INSERT INTO `tm_postmeta` (`meta_id`, `post_id`, `meta_key`, `meta_value`) VALUES
(85679, 4667, 'content', '<p>The ruling is the latest in a series of positive decisions rendered  pursuant to the UAE acceding to the New York Convention in November  2006. It tackles different arguments relating to the scope of  jurisdiction of local courts with respect to foreign awards, the burden  of proof for setting aside the award and the scope of review allowed  from the lower courts.</p>\r\n<p>Summary of facts: &nbsp;</p>\r\n<p>The Claimant (an international steel trader) entered into a purchase  agreement with the Respondent (a contractor domiciled in Dubai) under  which the Respondent purchased a consignment of steel sheeting from the  Claimant.</p>\r\n<p>The Parties agreed to refer any dispute arising from their agreement  to be resolved by way of DIFC-LCIA arbitration seated in London.&nbsp;</p>\r\n<p>A payment dispute arose between the parties which was referred to  arbitration according to their agreement. The arbitration tribunal  rendered two awards for the Claimant, the first award concerned damages  under the agreement and the second award concerned arbitration and legal  costs. Consequently, the Claimant initiated legal action before Dubai  Court of First Instance seeking enforcement of the two arbitral awards  issued against the Respondent, and requested that the precautionary  attachment be confirmed as enforceable.&nbsp; &nbsp;</p>\r\n<p>Procedural History</p>\r\n<p>- First Instance Court:</p>\r\n<p>The Respondent for the court to set aside the two arbitral awards&nbsp; on the following grounds:</p>\r\n<p>a- The signatory of the arbitration agreement did not posses required  authority to agree to arbitrate on behalf of the Respondent nor the  authority required to dispose of the right which is the subject of the  dispute.&nbsp;</p>\r\n<p>b- Procedures of appointing the arbitrator were invalid.&nbsp;</p>\r\n<p>c- The two arbitral awards were issued without an arbitration deed as  required by Article 216 of the UAE Civil Procedures Law (CPL) and  Article 5 (c) of the New York Convention.&nbsp;</p>\r\n<p>d- The arbitration proceedings were invalid as the arbitral awards  were rendered by application of the English law in contradiction with  the parties&rsquo; agreement to arbitrate under DIFC rules. &nbsp;</p>\r\n<p>e- The Arbitrator failed to administer the oath to the witnesses as required by Article 211 of CPL.&nbsp;</p>\r\n<p>The Court of First Instance ruled the following:</p>\r\n<p>- In the main action: to recognise the two arbitral awards subject of  dispute and to confirm the precautionary attachment filed by the  Claimant.&nbsp;</p>\r\n<p>- In the counter action: to dismiss the counter claim filed by the Respondent for lack of jurisdiction.&nbsp;</p>\r\n<p>The Respondent appealed to the Court of Appeal which upheld the lower  court&rsquo;s judgment; consequently the Respondent challenged the judgment  before the Court of Cassation.&nbsp;</p>\r\n<p>Judgment: &nbsp;</p>\r\n<p>The appeal is based on five grounds.</p>\r\n<p>The agreement between the parties was invalid, it was not signed by  the manager of the company who is the authorised signatory. The  Respondent, during proceedings before the lower court, requested that  the Claimant produces original of the agreement, however the latter  failed to produce the original and merely submitted a faxed copy  alleging that the agreement was concluded via fax.&nbsp;</p>\r\n<p>The Court of Cassation rejected this argument. The lower courts  allowed the Respondent to realise its defence by identifying its  employee who signed the contract in order to determine whether or not  such employee was granted the authority to sign agreements on behalf of  the manager. However, the Respondent denied knowing the identity of the  employee and denied having concluded the agreement contrary to its  admissions in its memorandum before the lower courts in which the  Respondent admitted having concluded the agreement and only concerned  its defence around irregularity in the arbitration proceedings.  Furthermore, Article 5 of the New York Convention of 1958 placed the  burden of proof on the party claiming nullity of an arbitration award in  this case the Respondent who merely denied the documents without  furnishing any evidence supporting its allegations.&nbsp;</p>\r\n<p>The First Instance Court dismissed the Respondent&rsquo;s counter claim for  lack of jurisdiction on grounds that such jurisdiction belonged to the  arbitrator who issued the two arbitral awards and that the court&rsquo;s  supervision is limited to ensuring that the arbitral awards were issued  in compliance with Federal Decree no. 43 of 2006 (by which the UAE  acceded to the New York Convention of 1958 on the recognition and  enforcement of foreign arbitral awards). The Respondent further stated  that the New York Convention provisions do not preclude an action for  setting aside an arbitral award. The Respondent requested setting aside  the arbitral awards as per Article 206 of the CPL which states that it  is permissible for parties to request setting aside arbitral awards  while the action to ratify such award is being heard before courts.&nbsp;</p>\r\n<p>The Court of Cassation rejected this argument. It is concluded from  provisions of the CPL in relation to arbitration and the procedures to  be followed by the court when ratifying arbitral awards, in particular  articles 212, 213 and 215 that the national courts have the jurisdiction  to either ratify/recognise or set aside an arbitral award that was  issued within the UAE, otherwise the court is compelled to apply rules  concerning arbitral awards issued in a foreign state.&nbsp;</p>\r\n<p>It is also construed from Article 238 of CPL that rules of  international conventions which were ratified by the UAE are considered  as internal legislation within the UAE and it is compulsory for the  national courts to apply such rules to all disputes arising in relation  to the execution of foreign arbitral awards and foreign judgments. &nbsp;</p>\r\n<p>The two arbitral awards subject of dispute were issued in London in  accordance to the New York Convention on recognition and execution of  foreign arbitral awards, therefore the UAE courts jurisdiction in  relation to foreign arbitral awards is only limited to ensuring they do  not contravene the required procedural and substantive forms for awards  as per articles 4 and 5 of the New York Convention. The Court of  Cassation confirmed that the two arbitral awards fulfilled these  requirements.</p>\r\n<p>The Respondent argued the invalidity of the arbitration clause  included in the agreement as well as the invalidity of the procedures by  which the arbitrator was appointed in accordance to Article 44/7 of the  DIFC arbitration rules. Furthermore, The Arbitrator failed to  administer the oath to the witnesses as per Article 211 of CPL.&nbsp;</p>\r\n<p>The Court of Cassation rejected this argument. As mentioned above,  Article 5 of the New York Convention placed the burden of proof on the  party claiming nullity of an arbitration award. The Respondent in this  case requested to set aside the arbitral award failed to produce any  evidence to support the above allegations.&nbsp;</p>\r\n<p>The Respondent further claimed that the jurisdiction to hear this case was for the DIFC courts as per the parties&rsquo; agreement.&nbsp;</p>\r\n<p>The Court of Cassation held that these arguments were inadmissible.  The effect of Federal Decree no. 43 of 2006, is that all UAE courts have  the jurisdiction to recognise and enforce foreign arbitral awards which  means that parties can resolve to any court in the UAE to request  enforcing a foreign arbitral award.</p>\r\n<p>The arbitral awards were issued in contradiction to Islamic Sharia  and public policy in the UAE as it awarded usurious interests.&nbsp;</p>\r\n<p>The Court of Cassation rejected this argument. Prohibition on  agreeing to usurious interest in any type of civil or commercial  transaction under Article 409 of the Penal Law and Article 714 of the  Civil Transactions Law is limited to transactions between individuals  without extending to transactions between individuals and corporate  entities which can agree with other corporate entities or individuals on  conventional interest. As per the documents, the parties to the  agreement subject of dispute in question are corporate entities;  therefore any interest awarded is permissible.&nbsp;</p>\r\n<p>Accordingly, the petition to cassation was dismissed.</p>\r\n<p><em>Practice Note</em></p>\r\n<p>The judgment in study has affirmed several important principals  concerning commercial international arbitration. At the international  level, the judgment as mentioned earlier confirmed the UAE Courts&rsquo;  determination to comply with the New York Convention. On the domestic  level, the judgment confirmed the&nbsp; principle that all UAE courts shall  have the jurisdiction to hear actions in relation to confirmation and  enforcement of foreign arbitral awards.</p>'),
(85680, 4667, '_content', 'field_59b649b5c8b2b'),
(85681, 4667, 'lawUpdateArticleMonth', '4661'),
(85682, 4667, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(85683, 4667, 'content_description', 'In a recent judgment issued on 18 September 2012, Dubai Court of Cassation confirmed to the international society its determination and commitment to strictly complying with the New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards.'),
(85684, 4667, '_content_description', 'field_59b641c07f473'),
(85685, 4667, 'pageSummary', 'In a recent judgment issued on 18 September 2012, Dubai Court of Cassation confirmed to the international society its determination and commitment to strictly complying with the New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards.'),
(85686, 4667, '_pageSummary', 'field_59e59b307dec8'),
(85687, 4667, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-5/february-4/dubai-cassation-court-emphasises-its-strict-compliance-to-the-new-york-convention.html'),
(85688, 4667, '_currentURL', 'field_59d35123ab1e7'),
(85689, 4667, 'lawUpdateArticleWriters_0_lawUpdateArticleWriter', '848'),
(85690, 4667, '_lawUpdateArticleWriters_0_lawUpdateArticleWriter', 'field_59da2ac06b065'),
(85691, 4667, 'lawUpdateArticleWriters', '1'),
(85692, 4667, '_lawUpdateArticleWriters', 'field_59da2a866b064'),
(85693, 4667, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Marwa El Mahdy'),
(85694, 4667, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(85695, 4667, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'm.elmahdy@tamimi.com'),
(85696, 4667, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'field_59e59afcd15de'),
(85697, 4667, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', ''),
(85698, 4667, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', 'field_59e59b05d15df'),
(85699, 4667, 'lawUpdateArticleNoWriters', '1'),
(85700, 4667, '_lawUpdateArticleNoWriters', 'field_59e59aaed15dc'),
(85701, 4667, 'lawUpdateArticlePractices_0_lawUpdateArticlePractice', '410'),
(85702, 4667, '_lawUpdateArticlePractices_0_lawUpdateArticlePractice', 'field_59dc79c8e10ce'),
(85703, 4667, 'lawUpdateArticlePractices', '1'),
(85704, 4667, '_lawUpdateArticlePractices', 'field_59dc7918de021'),
(85705, 4667, '_yoast_wpseo_metadesc', 'In a recent judgment issued on 18 September 2012, Dubai Court of Cassation confirmed to the international society its determination and commitment to strictly complying with the New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards.'),
(85706, 4668, 'content', '<p><strong>Background</strong></p>\r\n<ol>\r\n<li>The Branch Manager received a request from an unlisted client  (&ldquo;Branch Manager&rdquo;), for a bankers draft for 236,000,000 Indian Rupees  (&ldquo;Draft&rdquo;) to be made out to an Official Receiver. &nbsp;&nbsp;</li>\r\n<li>Despite the Claimant protocols and the Foreign Exchange and Cheque  Expectance Procedure, requiring confirmation from the bank that proceeds  of cheques are received and credited to the Claimant account prior to  the bank drafts being delivered, the Branch Manager drew the drafts in  excess of his personal limit and did not wait until the cheque cleared  prior to forwarding the drafts to the receiver.&nbsp;</li>\r\n<li>The Branch Manager drew 20 bank drafts for a total sum of AED  21,320,340 and increased his own personal authorization by instructing  another employee to change his authorization level on the allegation  that he was authorized to do so by head office, presumably to get over  the individual authorization limit for a draft for an unapproved  customer.&nbsp; The drafts were signed by another employee and counter-signed  by the Branch Manager. The drafts were presented and the Claimant  account has been debited accordingly.&nbsp;</li>\r\n<li>The cheque bounced when presented due to insufficient funds.&nbsp;</li>\r\n<li>The Branch Manager jumped off a tower building killing himself and  on the same day the Claimant reported the bounced cheque to the police.&nbsp;</li>\r\n</ol>\r\n<p><strong>Court of first Instance</strong></p>\r\n<p>The Claimant filed a claim against the Defendant to claim the limit  of the insurance policy, due to the fact that the Claimant is entitled  to indemnity under the policy, up to the policy limit for employee  infidelity. &nbsp; As the Branch Manager breached the trust by not following  established procedures and transferred the money before confirming with  the bank that there was money in the account. &nbsp;</p>\r\n<p>The court has decided to refer the matter to an expert in order to: &nbsp;</p>\r\n<ol>\r\n<li>Review and consider the memos and the supporting documents which were submitted by both parties.&nbsp;</li>\r\n<li>The court allowed the expert to attend the Claimant premises to check the original documents related to this matter.&nbsp;</li>\r\n<li>To determine whether the Branch Manager made a mistake or exceeded  his authority and if he did make a mistake to clarify the type of  mistake, determine the damage and the value of the compensation.&nbsp;</li>\r\n<li>The court allowed the expert to attend at any governmental authority to check documents if need be.</li>\r\n</ol>\r\n<p>The expert reached the following conclusions:</p>\r\n<ol>\r\n<li>Beneficiary received an amount of 236,000,000 Indian rupees from the Claimant bank account.</li>\r\n<li>The Claimant suffered losses from the transaction performed by the Branch Manager.&nbsp;</li>\r\n<li>The Branch Manager did not follow the normal procedures in  transferring the amount, since he issued 20 draws and transferred the  amount to the beneficiary before receiving the funds.</li>\r\n</ol>\r\n<p>The expert did not reply to the court query of whether he  deliberately performed the transaction or not. The expert left this  point to the court to consider because it is a legal point.&nbsp;</p>\r\n<p>The Claimant confirmed to the court that the Branch Manager committed  an intentional mistake to benefit from the funds, which is apparent  from the following facts:&nbsp; &nbsp;</p>\r\n<ol>\r\n<li>The Branch Manager had transferred the money in 20 drafts.</li>\r\n<li>The Branch Manager had instructed one of the employees to increase his authority to transfer the amount to the beneficiary. &nbsp;</li>\r\n<li>The Branch Manager should have followed the strict procedures before transferring the amount.&nbsp;</li>\r\n<li>The Branch Manager had not informed the Claimant that the cheques have bounced.&nbsp;</li>\r\n<li>The Branch Manager had very good experience regarding following the  correct procedures before transferring the amount, being a Branch  Manager. &nbsp;</li>\r\n<li>The Branch Manager&rsquo;s suicide when he failed to obtain his passport and leave the country.&nbsp;</li>\r\n<li>The Branch Manager had used fraudulent methods to conclude the  transaction; despite the fact that the Claimant has a very good security  system.</li>\r\n</ol>\r\n<p>The Court of First Instance rendered&nbsp; its&nbsp; judgment&nbsp; in&nbsp; favor&nbsp; of&nbsp;  Claimant by ordering the Defendant to&nbsp; pay&nbsp; the Claimant the amount of  USD $ 1,975,000 with&nbsp; 9%&nbsp; interest from the date of filing the claim  until the full payment, in addition to all expenses and fees.&nbsp;</p>\r\n<p>The Defendant has filed an appeal before the Court of Appeal to  challenge the Court of First Instance judgment. The Court of Appeal has  not rendered a judgment yet.&nbsp;</p>\r\n<p>The abovementioned judgment is currently under the appeal, and we  will publish a further article once we receive the outcome of the appeal  court judgment.</p>'),
(85707, 4668, '_content', 'field_59b649b5c8b2b'),
(85708, 4668, 'lawUpdateArticleMonth', '4661'),
(85709, 4668, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(85710, 4668, 'content_description', 'The Claimant is a money exchange company (“Claimant”) and the Defendant, an insurance company (“Defendant”). The Claimant signed an insurance policy with the Defendant to cover any loss resulting solely and directly from dishonest or fraudulent acts by employees;'),
(85711, 4668, '_content_description', 'field_59b641c07f473'),
(85712, 4668, 'pageSummary', 'The Claimant is a money exchange company (“Claimant”) and the Defendant, an insurance company (“Defendant”). The Claimant signed an insurance policy with the Defendant to cover any loss resulting solely and directly from dishonest or fraudulent acts by employees;'),
(85713, 4668, '_pageSummary', 'field_59e59b307dec8'),
(85714, 4668, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-5/february-4/fidelity-policy.html'),
(85715, 4668, '_currentURL', 'field_59d35123ab1e7'),
(85716, 4668, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Rami Al Tal'),
(85717, 4668, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(85718, 4668, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'r.altal@tamimi.com'),
(85719, 4668, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'field_59e59afcd15de'),
(85720, 4668, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', ''),
(85721, 4668, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', 'field_59e59b05d15df'),
(85722, 4668, 'lawUpdateArticleNoWriters', '1'),
(85723, 4668, '_lawUpdateArticleNoWriters', 'field_59e59aaed15dc'),
(85724, 4668, '_yoast_wpseo_metadesc', 'The Claimant is a money exchange company (“Claimant”) and the Defendant, an insurance company (“Defendant”). The Claimant signed an insurance policy with the Defendant to cover any loss resulting solely and directly from dishonest or fraudulent acts by employees;'),
(85725, 4669, 'content', '<p>The inauguration of the Centre for Amicable Resolution of Disputes in  April 2012 has proven to be a great success so far.&nbsp; The Centre was  launched by the Department of Economic Development in co-operation with  the Dubai Courts to provide a mediation alternative to the judicial  process.&nbsp; The Centre aims to facilitate the amicable and affordable  settlement of disputes via mediation within a period of one month before  referring the matters to the courts to proceed via the usual court  process. &nbsp;&nbsp;</p>\r\n<p>Mediation is a voluntary process. It is therefore not possible  without full participation and commitment from all parties.&nbsp; All parties  must therefore agree to enter into the process with the right mindset,  although in some jurisdictions this may only be after judicial  recommendation with associated risks of costs sanctions against the  party who refused to mediate.</p>\r\n<p>The opening of the Centre demonstrates the government&rsquo;s commitment to  encourage and increase the use of mediation in Dubai, by making it  available a part of the court process.&nbsp; The Centre is currently able to  consider the following disputes:</p>\r\n<ol>\r\n<li>Commonly-owned property;</li>\r\n<li>Debt of a maximum value of AED 50,000;</li>\r\n<li>Disputes agreed to be settled before the centre by virtue of an agreement entered into between the parties</li>\r\n</ol>\r\n<p>All disputes of this nature must now be reviewed by members of the  Centre before they may be filed as law suits before the relevant Dubai  courts. If the dispute is referred to the Centre then the facts of the  dispute will be reviewed and handled by a number of mediators under the  direct supervision of the concerned judge. &nbsp;</p>\r\n<p>It is important to mention that all limitation periods and  prescription periods for the claim will be put on hold until the Centre  issues its verdict to transfer the claim to the relevant court. This  provides an invaluable incentive for those who may be worried about  impending time bars, due to the expiration of limitation periods, to  explore mediation before instigating legal proceedings.&nbsp;</p>\r\n<p>The Centre provides an alternative avenue for the resolution of  disputes which will save time and costs.&nbsp; It also shows judicial  pioneering and an innovative attitude in light of global developments.&nbsp;  In recent years, the use of mediation has increased exponentially in  common law jurisdictions and the inauguration of the Centre shows an  important development within the civil law jurisdiction.</p>\r\n<p>The Centre presently has limited application and the following disputes are excluded from the Centre&rsquo;s jurisdiction:</p>\r\n<ol>\r\n<li>Urgent claims;</li>\r\n<li>Claims where the Government is one of the parties;</li>\r\n<li>Claims which are not subject to the jurisdiction of the courts;</li>\r\n<li>Claims which were registered in the courts before this law came into force;</li>\r\n<li>Labour disputes;</li>\r\n<li>Family disputes.</li>\r\n</ol>\r\n<p>The benefits of the work carried out by the Centre are significant.&nbsp;  Disputes which are referred for amicable settlement are usually mediated  and settled within a maximum period of one month from the date when the  parties first appear before the Centre, opposed to the 3 staged Dubai  Court system which can see disputes in the courts for 18 to 24 months.&nbsp;  Mediation is a process which allows the parties to focus on the  commercial aspects of their dispute rather than the legal issues which  can sometimes take the parties focus away from the real cause of the  dispute. &nbsp;</p>\r\n<p>The one month resolution period for the centre may be extended for a  further month by court order if required but if settlement is reached a  settlement agreement will be prepared by the Centre signed by the  parties.&nbsp; This signed settlement agreement will be attested by a Dubai  Court judge and can be enforced immediately.&nbsp; The Centre provides a very  quick route to obtain an enforceable judgment in the UAE.</p>\r\n<p>If settlement is achieved, 50% of the paid court fees will be  returned to the parties.&nbsp; If settlement is not achieved however, the  dispute will be referred to the relevant court and will proceed as a  normal court case.</p>\r\n<p>The terms of any settlement achieved during the mediation process are  confidential, however the parties are free to agree to an alternative  agreement if they so wish. Mediation aims to resolve a dispute by  maximizing all parties&rsquo; interests and achieving a &ldquo;win-win&rdquo; outcome so  that the parties do not feel compromised.&nbsp; It aims to resolve a dispute  swiftly so that parties can move on from the dispute and preserve  commercial relationships which the court process so often destroys.&nbsp; The  parties get to agree the terms of the settlement themselves and hence  the results achieved are such that they may never be considered or  imposed by a court.&nbsp; The mediation process enables the parties to agree  their own terms of settlement and this allows for ingenuity and extra  legal solutions.</p>\r\n<p><strong>Registering a dispute at the Centre</strong></p>\r\n<ol>\r\n<li>The claimant must submit two copies of a request in writing to the  court including, names of claimant and defendant, email addresses for  all parties, postal address and subject of the claim.&nbsp; The requesting  party must pay all registration fees.</li>\r\n<li>The court will refer the request to the Centre. The dispute will be  reviewed and considered by the Centre.&nbsp; Once completed, the Centre will  either issue a decision of approval to mediate or refer the matter to  the relevant court.&nbsp;</li>\r\n<li>A hearing session will be scheduled for first deliberation of the  claim and the claimant will be notified of the date and time for  attendance.</li>\r\n<li>The defendant will be notified of the first hearing session via the usual court notification procedures.</li>\r\n<li>Parties may attend by themselves or they may send a representative duly authorised by Power of Attorney.</li>\r\n</ol>\r\n<p><strong>Collaboration with the Royal Institute of Chartered Surveyors (&ldquo;RICS&rdquo;) Mediation Panel</strong></p>\r\n<p>Since its official UAE launch in October 2012, the RICS Mediation  Panel has been collaborating with the Dubai Courts and the Dubai Land  Department in order to promote further public understanding of the  advantages of the mediation process as alternative dispute resolution. &nbsp;</p>\r\n<p>The meeting of minds by these highly respected government departments  and the globally respected RICS has enabled many experienced parties to  work together and discuss the evolution of mediation and the Centre for  Amicable Resolution of Disputes in the region.&nbsp; The Centre has already  demonstrated an unrivalled success in achieving settlement of a large  percentage of disputes that have been referred to it so far by the Dubai  Court.</p>\r\n<p>The Centre is currently working with the RICS to implement further  training from the RICS Mediation Panel in order that the already  experienced mediators from the Centre may benefit from training in the  standard model of mediation which is so regularly used in the global  arena.</p>'),
(85726, 4669, '_content', 'field_59b649b5c8b2b'),
(85727, 4669, 'lawUpdateArticleMonth', '4661'),
(85728, 4669, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(85729, 4669, 'content_description', 'His Highness Sheikh Mohammed bin Rashid Al Maktoum, Vice President and Prime Minister of the UAE and Ruler of Dubai, created the Centre for Amicable Settlement of Disputes in Dubai (the “Centre”) under Dubai  law Number 16 of 2009.'),
(85730, 4669, '_content_description', 'field_59b641c07f473'),
(85731, 4669, 'pageSummary', 'His Highness Sheikh Mohammed bin Rashid Al Maktoum, Vice President and Prime Minister of the UAE and Ruler of Dubai, created the Centre for Amicable Settlement of Disputes in Dubai (the “Centre”) under Dubai  law Number 16 of 2009.'),
(85732, 4669, '_pageSummary', 'field_59e59b307dec8'),
(85733, 4669, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-5/february-4/the-centre-for-amicable-resolution-of-disputes-in-dubai.html'),
(85734, 4669, '_currentURL', 'field_59d35123ab1e7'),
(85735, 4669, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Abigail Powell'),
(85736, 4669, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(85737, 4669, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'a.powell@tamimi.com'),
(85738, 4669, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'field_59e59afcd15de'),
(85739, 4669, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', ''),
(85740, 4669, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', 'field_59e59b05d15df'),
(85741, 4669, 'lawUpdateArticleNoWriters', '1'),
(85742, 4669, '_lawUpdateArticleNoWriters', 'field_59e59aaed15dc'),
(85743, 4669, '_yoast_wpseo_metadesc', 'His Highness Sheikh Mohammed bin Rashid Al Maktoum, Vice President and Prime Minister of the UAE and Ruler of Dubai, created the Centre for Amicable Settlement of Disputes in Dubai (the “Centre”) under Dubai law Number 16 of 2009.'),
(85744, 4670, 'content', '<p>As well as increased activity in the private sector, governments  across the region are recognising an urgent need for updated social and  economic infrastructure in sectors including health, housing, transport,  water/wastewater, hospitality and tourism and energy.</p>\r\n<p>Against this backdrop, this article briefly considers some of the key  legal characteristics of the Middle East construction market.</p>\r\n<p>Apart from a few exceptions (such as Saudi Arabia and Oman), Middle  Eastern legal systems are founded upon principles of civil law  (primarily derived from Egyptian law which, in turn, was heavily  influenced by the French legal system) and are therefore codified.&nbsp; In  the UAE, for example, the UAE Civil Code has a specific chapter entitled  &ldquo;Muqawala&rdquo;, which contains provisions governing the relationships  between the participants in a construction project.&nbsp;</p>\r\n<p>Projects across the Middle East are procured on a variety of bases,  including lump sum turnkey, construction management and management  contracting variants, EPCM and traditional direct contracting.&nbsp; FIDIC  forms of contract (the standard developed by the International  Federation of Consulting Engineers) are commonly used as the base  project documents but are usually heavily amended to favour the  Employer.&nbsp; Additionally, as there are a large number of common law  trained lawyers practising in the Middle East, contracts are  significantly influenced by common law principles.&nbsp; This creates  difficulties as, unless used so widely as to constitute local custom or  practice, certain common law principles do not fit neatly under local  law and may be unworkable or ultimately, unenforceable.&nbsp;</p>\r\n<p>A good example of this is liquidated damages. In common law  jurisdictions, parties are free to commercially agree rates of  liquidated damages and the courts will enforce whatever is agreed  provided that it is loosely a genuine pre-estimate of the loss  suffered.&nbsp; However, in most Middle East jurisdictions, parties may  petition the court to either increase or decrease the agreed liquidated  damages so as to accurately reflect the true extent of any loss or harm  suffered. &nbsp;</p>\r\n<p>The concept of &ldquo;good faith&rdquo; is a key area of difference.&nbsp; Although  &ldquo;good faith&rdquo; has doubtful legal meaning in a common law setting, it is  an important codified principle in Middle Eastern civil codes and courts  have the power (which they frequently use) to prohibit conduct they  consider falls short of the standards imposed by this far-reaching  principle of law.</p>\r\n<p>An equivalent remedy to damages in tort for economic loss is  generally available while serious complications can arise if a contract  is terminated other than by mutual consent, by court order or at law.  This has obvious implications for some customary clauses like  termination for convenience.&nbsp; There are, of course, many other features  of the law in Middle Eastern countries that have an important bearing on  matters of contract and law to parties involved in construction  projects that we have not touched on this short note.</p>\r\n<p>Differences in concept and approach may come as a surprise to those  unfamiliar with the nuances of the Middle East.&nbsp; When things go wrong,  how are disputes resolved?&nbsp; Arbitration is the most common form of  dispute resolution in contracts involving international parties (Saudi  Arabia is a notable exception to this for a number of reasons) and, as  well as arbitration pursuant to international rules of arbitration,  there are a number of well respected local arbitral bodies including the  Dubai International Arbitration Centre and the DIFC/LCIA Arbitration  Centre.&nbsp; In the absence of an arbitration clause, the default position  is that disputes are resolved by local courts, where proceedings are  conducted in Arabic, in a civil law setting.&nbsp; There is no system of  precedent, although decisions of the highest court typically have  persuasive authority. &nbsp;</p>\r\n<p>Alternative dispute resolution is in its relative infancy in the  Middle East, with methods such as mediation rarely used.&nbsp; There are  reasons for this, including a lack of confidence in the application of  the concept of &ldquo;without prejudice&rdquo;, which is obviously enshrined in  common law countries.&nbsp; Methods tend to be generally more conservative  than those employed in the common law world.</p>\r\n<p>It is imperative that stakeholders obtain expert local law advice  prior to entering into contracts in the Middle East.&nbsp; Naturally, parties  should do the same at the earliest possible stage if an existing  contractual relationship is turning, or has turned, sour.</p>\r\n<p>Al Tamimi &amp; Company&rsquo;s Construction &amp; Engineering team offers  an unrivalled mix of the highest calibre English and Arabic speaking  lawyers who have practiced in numerous jurisdictions in the Middle East  and across the world and advised on a wide range of major projects (from  inception to completion) and project disputes.&nbsp;</p>\r\n<p>Al Tamimi &amp; Company is the largest law firm in the Middle East  that was established in Dubai in 1989.&nbsp; As well as having offices across  the UAE, we have fully serviced offices in Kuwait, Saudi Arabia,  Jordan, Qatar and Iraq.</p>\r\n<p>All enquires and comments on this article should be addressed to Adam Balchin, Regional Head of Construction and Engineering.</p>\r\n<p><em>Published in Asian Legal Business February edition.</em></p>'),
(85745, 4670, '_content', 'field_59b649b5c8b2b'),
(85746, 4670, 'lawUpdateArticleMonth', '4661'),
(85747, 4670, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(85748, 4670, 'content_description', 'The construction industry across the Middle East is showing very encouraging signs of sustained recovery from the global economic crisis.'),
(85749, 4670, '_content_description', 'field_59b641c07f473'),
(85750, 4670, 'pageSummary', 'The construction industry across the Middle East is showing very encouraging signs of sustained recovery from the global economic crisis.'),
(85751, 4670, '_pageSummary', 'field_59e59b307dec8'),
(85752, 4670, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-5/february-4/the-middle-east-construction-and-the-law-1.html'),
(85753, 4670, '_currentURL', 'field_59d35123ab1e7'),
(85754, 4670, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Adam Balchin'),
(85755, 4670, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(85756, 4670, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'a.balchin@tamimi.com'),
(85757, 4670, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'field_59e59afcd15de'),
(85758, 4670, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', ''),
(85759, 4670, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', 'field_59e59b05d15df'),
(85760, 4670, 'lawUpdateArticleNoWriters', '1'),
(85761, 4670, '_lawUpdateArticleNoWriters', 'field_59e59aaed15dc'),
(85762, 4670, 'lawUpdateArticlePractices_0_lawUpdateArticlePractice', '537'),
(85763, 4670, '_lawUpdateArticlePractices_0_lawUpdateArticlePractice', 'field_59dc79c8e10ce'),
(85764, 4670, 'lawUpdateArticlePractices', '1'),
(85765, 4670, '_lawUpdateArticlePractices', 'field_59dc7918de021'),
(85766, 4670, '_yoast_wpseo_metadesc', 'The construction industry across the Middle East is showing very encouraging signs of sustained recovery from the global economic crisis.'),
(85767, 4671, 'content', 'In light of the importance of this topic, this article intends to shed some light on the treatment of Performance Bonds under Qatari law.  In particular, we will identify the ways in which a contractor may resist the arbitrary encashment of such instruments.\r\n\r\n<strong>The Nature of the Performance Bond under Qatari Law </strong>\r\n\r\nAll standard form construction contracts (and many bespoke contracts) require the Contractor to submit a Performance Bond to the Employer as a form of guarantee in respect of the former’s performance of the contract works.  In the event that a Contractor breaches its contractual obligations, the Employer has the option to recoup some or all of his losses by making a call on the Performance Bond, in addition to having recourse to any other available contractual or legal remedies.  As such, Performance Bonds are merely intended to operate as guarantees, and not advance payments in respect of monies which a court or arbitral tribunal may or may not later award to the Employer at a merits hearing.\r\n\r\nIn this jurisdiction, it is common practice for employers to request that a Performance Bond takes the form of an “on demand” Letter of Guarantee from the Contractor’s bank (‘the Bank’) - a document which will unambiguously stipulate that the Bank will remit the full amount of the bond to the Employer upon receipt of written confirmation from the Guarantee’s beneficiary (the Employer) that the Contractor has breached its obligations under the contract.\r\n\r\nArticles 406 to 413, inclusive, of Qatar’s Commercial Law (Law No. (27) of 2006) deal with “on demand” letters of guarantee. Article 406 of the Commercial Law stipulates that:\r\n\r\n<em>“A letter of guarantee is a <strong>written, irrevocable</strong> commitment <strong>issued by a bank</strong> pursuant to the request of one of its clients… <strong>to pay a specified</strong> amount or an amount that can be specified later to… the “beneficiary”, if the beneficiary requests it to do so, within the period specified in the letter, <strong>without taking any objection into consideration. </strong>The letter of guarantee shall specify the purpose for which it was issued.”</em> (emphasis added)\r\n\r\nThus, where the contractual wording confirms that the performance guarantee is to take the form of an unconditional on-demand bond - meaning that the full amount of same is payable upon written demand without being subject to any condition - and the beneficiary (Employer) submits such demand to the guarantor (the Bank), the Bank is obliged to honour the call, even if the Contractor disputes liability for the alleged breach, or if the Employer does not know or believe that he is entitled to call on the Bond, or is simply reckless as to whether he is entitled to payment of the sum demanded.\r\n\r\nThe requirements of the aforementioned Article 406 are further supported by Article 409 of the Commercial Law, which states that a bank shall not be entitled to refuse to pay the beneficiary due to any reason connected to the Bank’s relationship with the applicant (that is, the Contractor) or the applicant’s relationship with the beneficiary (the Employer).\r\n\r\nBased on the above-referenced provisions of Qatari law, it is clear that a bank does not have discretion to decide whether or not a call on a Performance Bond is justified, or whether such a call is arbitrary or fraudulent.  Further, the bank is not entitled to refuse to honour a call on a Performance Bond for any reason whatsoever.\r\n\r\n<strong>Remedies Available to the Contractor</strong>\r\n\r\nA Contractor has two layers of defence against an arbitrary call by an Employer on a Performance Bond, as follows:\r\n\r\nA. Taking Action Before the Call is Made\r\n\r\nIf a Contractor has serious concerns that the Employer may make a call on the Bond, he can seek injunctive relief from the Court, which would suspend the Employer’s right to encash the bond pending the outcome of a hearing on the merits of the Contractor’s claim - that is, if the Contractor has filed, or is about to file, a claim against the Employer on the merits.\r\n\r\nFor the purposes of increasing the likelihood of success in relation to an application for an injunction, the documents submitted by the Contractor in connection with such application will need to persuade the Court that there is a prima facie case to be heard, thus enabling the Court to grant interim relief without making any determination as to the substance, or merits, of the dispute at issue.\r\n\r\nThe Contractor should look to convince the Court, by way of solid, written evidence, that the Employer is likely abusing his right to call on the Bond.  Of particular usefulness here would be evidence confirming that the contract works have been performed substantially or in full (such as, for example, interim or practical completion certificates), or documents which would substantiate an assertion that the Employer’s motivation in making the call is to gain some leverage over the Contractor.  The nature of the supporting documents will differ from one case to another; however, this kind of injunctive relief is very rarely awarded by the Qatari Courts.\r\n\r\nB. Acting After the Call\r\n\r\nAfter an Employer makes a call on a Performance Bond, the Contractor may have recourse to one of the following two remedies:\r\n<ol>\r\n 	<li>The Contractor may seek an injunction from the Court, on an urgent basis, which would have the effect of estopping the bank from making any payment on foot of the Bond until completion of a full hearing on the merits of the dispute between the parties, assuming that such proceedings have been, or are imminently to be filed by the Contractor against the Employer.  However, this option often proves impractical, depending as it does on the speed with which the bank in question reacts to the Employer’s written demand for payment of the bond’s sum; it may be that the Contractor will not have sufficient time to file injunctive proceedings before payment is remitted to the Employer. In light of the foregoing, it is highly advisable that, where such a call appears imminent, the Contractor undertakes all advance preparations required to support his application for an injunction, such as executing a Power of Attorney in favour of his chosen legal representative(s), and translating any documents to be submitted to the Court into Arabic.</li>\r\n 	<li>If the Contractor fails to obtain an injunction before or after the call on the Bond, he may defend the Employer’s allegations as to contractual breach(es), in addition to making any claims he may wish to raise under the Contract, by initiating Court or arbitral proceedings (as appropriate).  In the course of such proceedings, in addition to claiming any available contractual or legal rights or remedies, the Contractor may claim the full amount of the Performance Bond paid to the Employer.</li>\r\n</ol>\r\n<strong>Conclusion</strong>\r\n\r\nNotwithstanding the recent spate of case law on this issue, the treatment of Performance Bonds in Qatar remains largely uncertain.  While there appears to be a noticeable reticence on the part of the Qatari Courts to issue injunctions preventing demands against such guarantees being honoured by banks.  We have, on occasion, been successful in obtaining such injunctive relief for contractor clients following an arbitrary bond call by an Employer.'),
(149979, 4671, 'core_values', ''),
(149980, 4671, '_core_values', 'field_59b64ab071de4'),
(149981, 4671, 'file', ''),
(149982, 4671, '_file', 'field_59b64c10f6600'),
(149983, 4671, 'orderValue4', '4'),
(149984, 4671, '_orderValue4', 'field_59d2096a8ff34'),
(149985, 4671, 'related_pages_header', ''),
(149986, 4671, '_related_pages_header', 'field_59b6441e3cc94'),
(85768, 4671, '_content', 'field_59b649b5c8b2b'),
(85769, 4671, 'lawUpdateArticleMonth', '4661'),
(85770, 4671, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(85771, 4671, 'content_description', 'Queries raised by our clients in recent months, and discussions in wider industry circles in Qatar would indicate that there is a high incidence of seemingly-arbitrary calls on Performance Bonds, causing real headaches to main and sub-contractors in this jurisdiction.'),
(85772, 4671, '_content_description', 'field_59b641c07f473'),
(85773, 4671, 'pageSummary', 'Queries raised by our clients in recent months, and discussions in wider industry circles in Qatar would indicate that there is a high incidence of seemingly-arbitrary calls on Performance Bonds, causing real headaches to main and sub-contractors in this jurisdiction.'),
(85774, 4671, '_pageSummary', 'field_59e59b307dec8'),
(85775, 4671, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-5/february-4/performance-bonds-in-qatar-contracts-strike-back.html'),
(85776, 4671, '_currentURL', 'field_59d35123ab1e7'),
(149963, 4671, 'lawUpdateArticleNoWriters', ''),
(149964, 4671, '_lawUpdateArticleNoWriters', 'field_59e59aaed15dc'),
(85779, 4671, 'lawUpdateArticleWriters', '1'),
(85780, 4671, '_lawUpdateArticleWriters', 'field_59da2a866b064'),
(85781, 4671, '_yoast_wpseo_metadesc', 'Queries raised by our clients in recent months, and discussions in wider industry circles in Qatar would indicate that there is a high incidence of seemingly-arbitrary calls on Performance Bonds, causing real headaches to main and sub-contractors in this jurisdiction.'),
(85782, 4672, 'content', '<p>North Sudan continues to be governed by the earlier Trademark Law through the national Trademark Office.</p>\r\n<p>Unfortunately to date there are no laws in Southern Sudan regulating  Intellectual Property and needless to say the Trademark Laws of North  Sudan no longer prevail.&nbsp; The Ministry of Justice in Southern Sudan has  issued directives to officials at the Trademark Office that they adopt  certain procedures known as the &ldquo;Reservation of a Trademark&rdquo; until  issuance of a trademark law.&nbsp; The implication is that Southern Sudan  follows a Cautionary Notice approach to the protection of trade marks at  the present time. &nbsp;</p>\r\n<p>At present procedures to be followed in respect of the &ldquo;Reservation of a Trademark&rdquo; are as follow:&nbsp;</p>\r\n<ol>\r\n<li>A written application needs to be submitted to the Registrar  indicating the trademark to be protected, as well as prints of the mark  in question.</li>\r\n<li>The Registrar will conduct a search in the database of the Registry to ascertain whether the mark is registered or not.</li>\r\n<li>If the relevant mark is not registered, the mark will be &ldquo;reserved&rdquo;  in the applicant&rsquo;s name, and no other person will be allowed to use the  said mark.</li>\r\n</ol>\r\n<p>It is also to be noted that no official fees have been fixed at this time for the &ldquo;Reservation of a Trademark&rdquo; procedure.</p>\r\n<p>As a result of the absence of a specific law dealing with the  protection of trademarks in Southern Sudan we are unable to comment on  the legal effect or value of the &ldquo;Reservation of a Trademark&rdquo; procedure.</p>'),
(85783, 4672, '_content', 'field_59b649b5c8b2b'),
(85784, 4672, 'lawUpdateArticleMonth', '4661'),
(85785, 4672, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(85786, 4672, 'content_description', 'Following the end of the civil war in Sudan in 2005 and the separation of North and South Sudan the continuous worry for trademark owners is the protection of their rights in Southern Sudan. '),
(85787, 4672, '_content_description', 'field_59b641c07f473'),
(85788, 4672, 'pageSummary', 'Following the end of the civil war in Sudan in 2005 and the separation of North and South Sudan the continuous worry for trademark owners is the protection of their rights in Southern Sudan. '),
(85789, 4672, '_pageSummary', 'field_59e59b307dec8'),
(85790, 4672, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-5/february-4/trademark-registration-in-southern-sudan.html'),
(85791, 4672, '_currentURL', 'field_59d35123ab1e7'),
(85792, 4672, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Shernaz DeSa'),
(85793, 4672, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(85794, 4672, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 's.desa@tamimi.com'),
(85795, 4672, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'field_59e59afcd15de'),
(85796, 4672, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', ''),
(85797, 4672, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', 'field_59e59b05d15df'),
(85798, 4672, 'lawUpdateArticleNoWriters', '1'),
(85799, 4672, '_lawUpdateArticleNoWriters', 'field_59e59aaed15dc'),
(85800, 4672, 'lawUpdateArticlePractices_0_lawUpdateArticlePractice', '634'),
(85801, 4672, '_lawUpdateArticlePractices_0_lawUpdateArticlePractice', 'field_59dc79c8e10ce'),
(85802, 4672, 'lawUpdateArticlePractices', '1'),
(85803, 4672, '_lawUpdateArticlePractices', 'field_59dc7918de021'),
(85804, 4672, '_yoast_wpseo_metadesc', 'Following the end of the civil war in Sudan in 2005 and the separation of North and South Sudan the continuous worry for trademark owners is the protection of their rights in Southern Sudan.'),
(219650, 7612, '_yoast_wpseo_focuskeywords', '[]'),
(219651, 7612, '_yoast_wpseo_canonical', 'https://www.tamimi.com/law-update/august-2/august-2016/'),
(219652, 7611, '_edit_last', '1'),
(219653, 7611, '_yoast_wpseo_content_score', '30'),
(219654, 7611, '_yoast_wpseo_focuskeywords', '[]'),
(219655, 7611, '_yoast_wpseo_canonical', 'https://www.tamimi.com/law-update/november-7/november-2017/'),
(219656, 7610, '_edit_last', '1'),
(219657, 7610, '_yoast_wpseo_content_score', '30'),
(219658, 7610, '_yoast_wpseo_focuskeywords', '[]'),
(219659, 7610, '_yoast_wpseo_canonical', 'https://www.tamimi.com/law-update/september-6/september-2016/'),
(219660, 7609, '_edit_last', '1'),
(219661, 7609, '_yoast_wpseo_content_score', '30'),
(219662, 7609, '_yoast_wpseo_focuskeywords', '[]'),
(219663, 7609, '_yoast_wpseo_canonical', 'https://www.tamimi.com/law-update/december-2017-january-2018/september-2017/'),
(219664, 7608, '_edit_last', '1'),
(219665, 7608, '_yoast_wpseo_content_score', '30'),
(219666, 7608, '_yoast_wpseo_focuskeywords', '[]'),
(219667, 7608, '_yoast_wpseo_canonical', 'https://www.tamimi.com/law-update/december-2017-january-2018/october-2017/'),
(219668, 7607, '_edit_last', '1'),
(219669, 7607, '_yoast_wpseo_content_score', '30');
INSERT INTO `tm_postmeta` (`meta_id`, `post_id`, `meta_key`, `meta_value`) VALUES
(219670, 7607, '_yoast_wpseo_focuskeywords', '[]'),
(219671, 7607, '_yoast_wpseo_canonical', 'https://www.tamimi.com/law-update/december-2017-january-2018/may-2017/'),
(219672, 7606, '_edit_last', '1'),
(219673, 7606, '_yoast_wpseo_content_score', '30'),
(219674, 7606, '_yoast_wpseo_focuskeywords', '[]'),
(219675, 7606, '_yoast_wpseo_canonical', 'https://www.tamimi.com/law-update/december-2017-january-2018/june-july-2017/'),
(219676, 7604, '_edit_last', '1'),
(219677, 7604, '_yoast_wpseo_content_score', '30'),
(219678, 7604, '_yoast_wpseo_focuskeywords', '[]'),
(219679, 7604, '_yoast_wpseo_canonical', 'https://www.tamimi.com/law-update/december-2017-january-2018/august-2017/'),
(219680, 7603, '_edit_last', '1'),
(219681, 7603, '_yoast_wpseo_content_score', '30'),
(219682, 7603, '_yoast_wpseo_focuskeywords', '[]'),
(219683, 7603, '_yoast_wpseo_canonical', 'https://www.tamimi.com/law-update/december-2017-january-2018/april-2017/'),
(219684, 7602, '_edit_last', '1'),
(219685, 7602, '_yoast_wpseo_content_score', '30'),
(219686, 7602, '_yoast_wpseo_focuskeywords', '[]'),
(219687, 7602, '_yoast_wpseo_canonical', 'https://www.tamimi.com/law-update/march-2018/law-update-march-edition/'),
(219688, 7601, '_edit_last', '1'),
(219689, 7601, '_yoast_wpseo_content_score', '30'),
(219690, 7601, '_yoast_wpseo_focuskeywords', '[]'),
(219691, 7601, '_yoast_wpseo_canonical', 'https://www.tamimi.com/publication/doing-business-in-oman/doing-business-in-oman-4/'),
(219692, 7574, '_edit_last', '1'),
(219693, 7574, '_yoast_wpseo_content_score', '30'),
(219694, 7574, '_yoast_wpseo_focuskeywords', '[]'),
(219695, 7574, '_yoast_wpseo_canonical', 'https://www.tamimi.com/law-update/may-2018/may-law-update-edition/'),
(219696, 7573, '_edit_last', '1'),
(219697, 7573, '_yoast_wpseo_content_score', '30'),
(219698, 7573, '_yoast_wpseo_focuskeywords', '[]'),
(219699, 7573, '_yoast_wpseo_canonical', 'https://www.tamimi.com/publication/chambers-global-practice-guides-copyright-2018/2018-chambers-global-practices-guides-copyright/'),
(219700, 7543, '_edit_last', '1'),
(219701, 7543, '_yoast_wpseo_content_score', '30'),
(219702, 7543, '_yoast_wpseo_focuskeywords', '[]'),
(219703, 7543, '_yoast_wpseo_canonical', 'https://www.tamimi.com/our-offices/al-khobar/al-khobar-location-map/'),
(219704, 4096, '_edit_lock', '1531135015:1'),
(219705, 4096, '_yst_prominent_words_version', '1'),
(219706, 1338, '_wp_attachment_image_alt', 'Fatma Moosa'),
(219707, 841, '_yst_prominent_words_version', '1'),
(219708, 7716, 'practicesKeyContacts_0_practicesKeyContact', '507'),
(219709, 7716, '_practicesKeyContacts_0_practicesKeyContact', 'field_59d21fc0185c5'),
(219710, 7716, 'practicesKeyContacts_1_practicesKeyContact', '539'),
(219711, 7716, '_practicesKeyContacts_1_practicesKeyContact', 'field_59d21fc0185c5'),
(219712, 7716, 'practicesKeyContacts', '2'),
(219713, 7716, '_practicesKeyContacts', 'field_59d3480f3918a'),
(219714, 7716, 'pageBanner', '6345'),
(219715, 7716, '_pageBanner', 'field_59d238c922b29'),
(219716, 7716, 'orderValue1', '1'),
(219717, 7716, '_orderValue1', 'field_59d0c6e5175b5'),
(219718, 7716, 'stats_list', ''),
(219719, 7716, '_stats_list', 'field_59b6372466bcc'),
(219720, 7716, 'orderValue2', '2'),
(219721, 7716, '_orderValue2', 'field_59d0c6f6175b8'),
(219722, 7716, 'timeline_header', ''),
(219723, 7716, '_timeline_header', 'field_59b63de5b74bf'),
(219724, 7716, 'timeline', ''),
(219725, 7716, '_timeline', 'field_59b63b29266de'),
(219726, 7716, 'orderValue3', '3'),
(219727, 7716, '_orderValue3', 'field_59d2094f8ff33'),
(219728, 7716, 'content_header', 'Regulatory'),
(219729, 7716, '_content_header', 'field_59b641b57f472'),
(219730, 7716, 'content_description', ''),
(219731, 7716, '_content_description', 'field_59b641c07f473'),
(219732, 7716, 'content', '<h4>• Regulatory Issues • Risk Management • Compliance • Licensing • Corporate Governance</h4>\r\nRegulatory expertise at Al Tamimi &amp; Company reflects the growth of regulated business activities across the GCC region. We lead the market in providing a complete range of regulatory services. We understand that compliance with regulation is key to any successful business strategy.\r\n\r\nOur Regulatory experts are drawn from all our specialist practice areas, including Corporate / Merger &amp; Acquisitions, Commercial, TMT, Construction, Healthcare, Real Estate, Hotels &amp; Leisure, Intellectual Property and Dispute Resolution. Our Regulatory experts are a mix of English and Arabic speaking lawyers of the highest calibre. We offer a genuine ‘one-stop shop’ for regulatory compliance at federal and local level. This capability truly sets us apart.\r\n\r\nWe are often asked to draft or amend laws, and we have excellent relationships with regulators. This puts us in the best position to advise private business on matters of law, legal interpretation and the ‘approach’ taken by regulators in securing compliance at federal and local levels.\r\n\r\nWe believe in the importance of helping our clients to achieve compliance and regularly host regulatory specific workshops and client seminars.\r\n<table style=\"height: 454px;\" width=\"1068\">\r\n<tbody>\r\n<tr>\r\n<td width=\"308\"><strong>Regulatory Services</strong>\r\n<ul>\r\n 	<li>Corporate and commercial regulatory advice</li>\r\n 	<li>Due diligence reporting</li>\r\n 	<li>Governance, Risk and Compliance</li>\r\n 	<li>Legislation &amp; policy</li>\r\n 	<li>Licensing and permit applications</li>\r\n 	<li>Operational regulatory compliance;</li>\r\n</ul>\r\n&nbsp;</td>\r\n<td width=\"308\">&nbsp;\r\n<ul>\r\n 	<li>Regulatory investigations and crisis management</li>\r\n 	<li>Charities and Foundations</li>\r\n 	<li>Competition</li>\r\n 	<li>Consumer protection, product conformity and standards</li>\r\n 	<li>Customs</li>\r\n 	<li>Environmental</li>\r\n</ul>\r\n&nbsp;</td>\r\n<td width=\"308\">&nbsp;\r\n<ul>\r\n 	<li>Health and safety</li>\r\n 	<li>Import/export controls</li>\r\n 	<li>Legal registers and updates</li>\r\n 	<li>Procurement</li>\r\n 	<li>Utilities regulation</li>\r\n</ul>\r\n&nbsp;</td>\r\n</tr>\r\n</tbody>\r\n</table>\r\n<strong>Sectors we support</strong>\r\n<ul>\r\n 	<li>Construction</li>\r\n 	<li>Defence</li>\r\n 	<li>Energy</li>\r\n 	<li>Healthcare</li>\r\n 	<li>Logistics and trade</li>\r\n 	<li>Projects</li>\r\n 	<li>Rail</li>\r\n 	<li>Retail</li>\r\n 	<li>Sports and Events Management</li>\r\n</ul>'),
(219733, 7716, '_content', 'field_59b649b5c8b2b'),
(219734, 7716, 'core_values', ''),
(219735, 7716, '_core_values', 'field_59b64ab071de4'),
(219736, 7716, 'file', ''),
(219737, 7716, '_file', 'field_59b64c10f6600'),
(219738, 7716, 'orderValue4', '4'),
(219739, 7716, '_orderValue4', 'field_59d2096a8ff34'),
(219740, 7716, 'related_pages_header', 'Meet the Team'),
(219741, 7716, '_related_pages_header', 'field_59b6441e3cc94'),
(219742, 7716, 'related_pages_0_page', '507'),
(219743, 7716, '_related_pages_0_page', 'field_59b64384f4881'),
(219744, 7716, 'related_pages_1_page', '539'),
(219745, 7716, '_related_pages_1_page', 'field_59b64384f4881'),
(219746, 7716, 'related_pages', '2'),
(219747, 7716, '_related_pages', 'field_59b6434af4880'),
(219748, 7716, 'sidebar', ''),
(219749, 7716, '_sidebar', 'field_59ccd0a1283de'),
(219750, 970, '_yst_prominent_words_version', '1'),
(219751, 3837, '_yst_prominent_words_version', '1'),
(219752, 7717, '_edit_lock', '1554275865:1'),
(219753, 7717, '_edit_last', '1'),
(219754, 7717, '_yst_prominent_words_version', '1'),
(219755, 7718, '_wp_attached_file', '2018/07/Video4.jpg'),
(219756, 7718, '_wp_attachment_metadata', 'a:5:{s:5:\"width\";i:2667;s:6:\"height\";i:1500;s:4:\"file\";s:18:\"2018/07/Video4.jpg\";s:5:\"sizes\";a:4:{s:9:\"thumbnail\";a:4:{s:4:\"file\";s:18:\"Video4-150x150.jpg\";s:5:\"width\";i:150;s:6:\"height\";i:150;s:9:\"mime-type\";s:10:\"image/jpeg\";}s:6:\"medium\";a:4:{s:4:\"file\";s:18:\"Video4-300x169.jpg\";s:5:\"width\";i:300;s:6:\"height\";i:169;s:9:\"mime-type\";s:10:\"image/jpeg\";}s:12:\"medium_large\";a:4:{s:4:\"file\";s:18:\"Video4-768x432.jpg\";s:5:\"width\";i:768;s:6:\"height\";i:432;s:9:\"mime-type\";s:10:\"image/jpeg\";}s:5:\"large\";a:4:{s:4:\"file\";s:19:\"Video4-1024x576.jpg\";s:5:\"width\";i:1024;s:6:\"height\";i:576;s:9:\"mime-type\";s:10:\"image/jpeg\";}}s:10:\"image_meta\";a:12:{s:8:\"aperture\";s:1:\"0\";s:6:\"credit\";s:0:\"\";s:6:\"camera\";s:0:\"\";s:7:\"caption\";s:0:\"\";s:17:\"created_timestamp\";s:1:\"0\";s:9:\"copyright\";s:0:\"\";s:12:\"focal_length\";s:1:\"0\";s:3:\"iso\";s:1:\"0\";s:13:\"shutter_speed\";s:1:\"0\";s:5:\"title\";s:0:\"\";s:11:\"orientation\";s:1:\"0\";s:8:\"keywords\";a:0:{}}}'),
(219757, 7717, '_wp_old_date', '2018-07-09'),
(219758, 7717, 'videoImage', '7718'),
(219759, 7717, '_videoImage', 'field_59e4d26b1aa21'),
(219760, 7717, 'videoID', 'XfN9yv__XIY'),
(219761, 7717, '_videoID', 'field_59e4d27f1aa22'),
(219762, 7717, 'videoDate', ''),
(219763, 7717, '_videoDate', 'field_59f04780721ca'),
(219764, 7717, 'videoContentField', 'At the recent 3rd Annual Arab Lawyers Forum, Dr. Roland Vogl, Director, Stanford Law School shares his thoughts on the future of legal services and recent technological advancements.\r\n\r\nThis successful event was organised by Al Tamimi &amp; Company in collaboration with Hassan Radhi &amp; Associates, Zu’bi &amp; Partners, Haya Rashed Al Khalifa Law Firm, The Bahrain Centre of Disputes Resolution, Thomson Reuters and Deloitte.'),
(219765, 7717, '_videoContentField', 'field_5b025aa31135f'),
(219766, 7717, 'sidebar', ''),
(219767, 7717, '_sidebar', 'field_59ccd0a1283de'),
(219768, 7717, '_yoast_wpseo_content_score', '30'),
(219769, 7717, '_yoast_wpseo_focuskeywords', '[]'),
(226231, 8185, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(226230, 8185, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Reem Khader'),
(219773, 7719, '_edit_lock', '1554275867:1'),
(219774, 7719, '_edit_last', '1'),
(219775, 7719, '_yst_prominent_words_version', '1'),
(219776, 7720, '_wp_attached_file', '2018/07/Video5.jpg'),
(219777, 7720, '_wp_attachment_metadata', 'a:5:{s:5:\"width\";i:2667;s:6:\"height\";i:1500;s:4:\"file\";s:18:\"2018/07/Video5.jpg\";s:5:\"sizes\";a:4:{s:9:\"thumbnail\";a:4:{s:4:\"file\";s:18:\"Video5-150x150.jpg\";s:5:\"width\";i:150;s:6:\"height\";i:150;s:9:\"mime-type\";s:10:\"image/jpeg\";}s:6:\"medium\";a:4:{s:4:\"file\";s:18:\"Video5-300x169.jpg\";s:5:\"width\";i:300;s:6:\"height\";i:169;s:9:\"mime-type\";s:10:\"image/jpeg\";}s:12:\"medium_large\";a:4:{s:4:\"file\";s:18:\"Video5-768x432.jpg\";s:5:\"width\";i:768;s:6:\"height\";i:432;s:9:\"mime-type\";s:10:\"image/jpeg\";}s:5:\"large\";a:4:{s:4:\"file\";s:19:\"Video5-1024x576.jpg\";s:5:\"width\";i:1024;s:6:\"height\";i:576;s:9:\"mime-type\";s:10:\"image/jpeg\";}}s:10:\"image_meta\";a:12:{s:8:\"aperture\";s:1:\"0\";s:6:\"credit\";s:0:\"\";s:6:\"camera\";s:0:\"\";s:7:\"caption\";s:0:\"\";s:17:\"created_timestamp\";s:1:\"0\";s:9:\"copyright\";s:0:\"\";s:12:\"focal_length\";s:1:\"0\";s:3:\"iso\";s:1:\"0\";s:13:\"shutter_speed\";s:1:\"0\";s:5:\"title\";s:0:\"\";s:11:\"orientation\";s:1:\"0\";s:8:\"keywords\";a:0:{}}}'),
(56164, 3360, '_wp_attached_file', 'uploads/media-3359.jpg'),
(56165, 3360, '_wp_attachment_metadata', 'a:5:{s:5:\"width\";i:100;s:6:\"height\";i:133;s:4:\"file\";s:22:\"uploads/media-3359.jpg\";s:5:\"sizes\";a:0:{}s:10:\"image_meta\";a:12:{s:8:\"aperture\";s:1:\"0\";s:6:\"credit\";s:0:\"\";s:6:\"camera\";s:0:\"\";s:7:\"caption\";s:0:\"\";s:17:\"created_timestamp\";s:1:\"0\";s:9:\"copyright\";s:0:\"\";s:12:\"focal_length\";s:1:\"0\";s:3:\"iso\";s:1:\"0\";s:13:\"shutter_speed\";s:1:\"0\";s:5:\"title\";s:0:\"\";s:11:\"orientation\";s:1:\"0\";s:8:\"keywords\";a:0:{}}}'),
(85297, 4648, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(85295, 4648, '_content', 'field_59b649b5c8b2b'),
(84884, 4627, '_content', 'field_59b649b5c8b2b'),
(84885, 4627, 'lawUpdateArticleMonth', '4618'),
(84886, 4627, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(84887, 4627, 'content_description', 'The Dubai International Financial Centre, a financial services free zone located in the Emirate of Dubai, has its own ‘European style’ data protection law, applicable in the jurisdiction of the DIFC. '),
(84888, 4627, '_content_description', 'field_59b641c07f473'),
(84889, 4627, 'pageSummary', 'The Dubai International Financial Centre, a financial services free zone located in the Emirate of Dubai, has its own ‘European style’ data protection law, applicable in the jurisdiction of the DIFC. '),
(84890, 4627, '_pageSummary', 'field_59e59b307dec8'),
(84891, 4627, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-5/january-2/new-difc-data-protection-law-comes-into-force.html'),
(84892, 4627, '_currentURL', 'field_59d35123ab1e7'),
(84893, 4627, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Nick O\' Connell'),
(84894, 4627, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(84895, 4627, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'n.oconnell@tamimi.com'),
(84896, 4627, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'field_59e59afcd15de'),
(84897, 4627, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', ''),
(84898, 4627, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', 'field_59e59b05d15df'),
(84899, 4627, 'lawUpdateArticleNoWriters', '1'),
(84900, 4627, '_lawUpdateArticleNoWriters', 'field_59e59aaed15dc'),
(84901, 4627, '_yoast_wpseo_metadesc', 'The Dubai International Financial Centre, a financial services free zone located in the Emirate of Dubai, has its own ‘European style’ data protection law, applicable in the jurisdiction of the DIFC.'),
(84902, 4628, 'content', '<p>For many companies the business case is compelling. As with any  business decision, it is important to be fully informed, and aware of  the risks.&nbsp; In this article, the first in a series of two, we look at  some of the core legal considerations associated with cloud computing.<br /><br /><strong>Information</strong><br /><br />As  one might expect, issues relating to information are central to legal  considerations associated with cloud computing. Many of the  information-related issues that arise are closely inter-related. By  signing-on with a Cloud Service Provider, and moving data to the CSP&rsquo;s  cloud, the CSP&rsquo;s client is no longer in direct control of the data.&nbsp;  Depending on the nature of the cloud (public, private or &lsquo;hybrid&rsquo;), the  potential vulnerability of the data may vary. In some instances, where  the CSP uses infrastructure located abroad, data is sent outside the  client&rsquo;s country. When data comprises personal data (such as information  relating to the client&rsquo;s customers or employees), the client needs to  be particularly aware of its obligations with regard to data protection.  In the UAE, the processing of personal data may be subject to the Penal  Code prohibition on the disclosure of &lsquo;secrets&rsquo; without the consent of  the person to whom the secret relates. Other laws may also be applicable  where the personal data involves health insurance, medical records, and  credit information. For entities in the Dubai international Financial  Centre and Dubai Health Care City, specific European-style data  protection regulations also impact on the processing of personal  information and sensitive personal information, including with regard to  whether permission is required to transfer the data to another  jurisdiction.&nbsp;<br /><br />Before signing on with a CSP, the client should  familiarize itself with the legal obligations relating to its handling  of personal data. When negotiating the terms of service, the client  should ensure that the agreement does not permit the CSP to engage in  any conduct that would be inconsistent with the client&rsquo;s own obligations  in respect of personal data. The client should also consider whether  there might be any practical aspects of its privacy obligations that the  CSP&rsquo;s system would need to accommodate. (By way of example, in some  jurisdictions, compliance with data protection regulations may require  the ability to annotate records to reflect objections raised by the data  subject. If the CSP&rsquo;s system cannot facilitate this requirement, this  may result in the client failing to comply with its legal obligations.)<br /><br />Security  of information is another important consideration. ISO 27001 is a  standard that details requirements for establishing, implementing,  operating, monitoring, reviewing, maintaining and improving an  information security management system. It acts to formalize specific  criteria for a range of IT security-related processes, including:  information classification and handling; third-party access; incident  management and communication; disposal of media; hiring, discipline and  termination of staff; acceptable use of computer equipment; development  processes; release and change management; and data access, availability  and integrity. As part of its due diligence, a client should aim to  engage CSPs that can show they are compliant with ISO27001. This  certification illustrates that the CSP has implemented a wide range of  security and privacy controls at all levels of its business and that all  its employees have been educated in relevant security and privacy  issues. The client should seek to build compliance with ISO27001 into  the terms of service as a means of ensuring that the CSP will treat  information security with the level of attention it requires.&nbsp;<br /><br />Rules  governing document retention are another point to bear in mind when  considering a move to the cloud. In the UAE, the Commercial Transactions  Law (Federal Law No. 18 of 1993) sets out general requirements for the  retention of commercial records, requiring that such records be retained  for a minimum period of five years from the date of issue or receipt.  With limited exceptions, the Electronic Commerce and Transactions Law  (Federal Law No. 1 of 2006) provides that, where it is required by law  to retain a certain document, record or information for any reason  whatsoever, the retention requirement shall be considered met if the  document, record or information is stored in any electronic form. When  engaging a CSP to manage commercial records, the client should focus on  making sure that the terms relating to the document retention period are  consistent with the requirements of the client&rsquo;s own jurisdiction &ndash; and  not with those of the CSP.&nbsp;<br /><br />In some instances, CSPs may  consolidate the data of multiple clients in order to determine data  usage patterns, business trends and strategies. If this type of use is  undesirable, then the client should seek to have the terms of service  prohibit the CSP from monitoring data usage and from using such  &lsquo;confidential information&rsquo; of the client other than for the purpose of  providing the cloud service to the client. (Such a restriction would, of  course, be additional to any broader confidentiality provisions that  should be specified in the agreement with the CSP.)<br /><br />A further  consideration relates to the location of the client&rsquo;s data when it is  held in the cloud. In many jurisdictions, the government can require  CSPs to disclose client data. In some jurisdictions, the law  specifically protects data stored in the cloud from access by the  government without due process. In other jurisdictions data stored in  the cloud may be disclosed to governmental authorities without due  process. Depending on the nature of the data, and the business of the  client, it may be advisable to confirm with the CSP the location in  which data will be held, and verify independently whether there are any  local law concerns in such jurisdiction. It may also be appropriate to  agree with the CSP that data will not be held in certain jurisdictions.<br /><br />Al  Tamimi &amp; Company&rsquo;s Technology, Media &amp; Telecommunications team  regularly advises on IT service agreements, including in a cloud  context, as well as related issues such as data protection, document  retention and confidentiality provisions. For further information,  please contact David Yates<a href=\"mailto:d.yates@tamimi.com\">d.yates@tamimi.com</a>&nbsp;or Nick O&rsquo;Connell&nbsp;<a href=\"mailto:n.oconnell@tamimi.com\">n.oconnell@tamimi.com</a>.&nbsp;</p>'),
(84903, 4628, '_content', 'field_59b649b5c8b2b'),
(84904, 4628, 'lawUpdateArticleMonth', '4618'),
(84905, 4628, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(84906, 4628, 'content_description', 'Remote access computing services, whereby software applications, databases, data storage, network configuration and programming tools are made available to clients as a service, are becoming increasingly popular. Cloud computing allows businesses to convert capital expenses associated with IT systems and infrastructure into operating expenses associated with platforms, capacity and applications.'),
(84907, 4628, '_content_description', 'field_59b641c07f473'),
(84908, 4628, 'pageSummary', 'Remote access computing services, whereby software applications, databases, data storage, network configuration and programming tools are made available to clients as a service, are becoming increasingly popular. Cloud computing allows businesses to convert capital expenses associated with IT systems and infrastructure into operating expenses associated with platforms, capacity and applications.'),
(84909, 4628, '_pageSummary', 'field_59e59b307dec8'),
(84910, 4628, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-5/january-2/legal-issues-in-cloud-computing-part-i.html'),
(84911, 4628, '_currentURL', 'field_59d35123ab1e7'),
(84912, 4628, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Nick O\' Connell'),
(84913, 4628, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(84914, 4628, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'n.oconnell@tamimi.com'),
(84915, 4628, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'field_59e59afcd15de'),
(84916, 4628, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', ''),
(84917, 4628, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', 'field_59e59b05d15df'),
(84918, 4628, 'lawUpdateArticleNoWriters', '1'),
(84919, 4628, '_lawUpdateArticleNoWriters', 'field_59e59aaed15dc'),
(84920, 4628, '_yoast_wpseo_metadesc', 'Remote access computing services, whereby software applications, databases, data storage, network configuration and programming tools are made available to clients as a service, are becoming increasingly popular. Cloud computing allows businesses to convert capital expenses associated with IT systems and infrastructure into operating expenses associated with platforms, capacity and applications.'),
(84921, 4629, 'content', '<p>Where the contractor has failed to complete by the scheduled  completion date, he will be liable to a claim for liquidated damages  either by way of action, by deduction or by a set-off.&nbsp; There can be no  inquiry into the actual loss suffered.&nbsp; The advantage to an employer is  that he will not need to prove the loss suffered.&nbsp; The most common  default by a contractor that will give rise to a claim for liquidated  damages is a failure to reach completion or to achieve specific  milestones.<br /><br />The contractor may have a defence to the claim by  proving that the agreed sum is a penalty.&nbsp; In order to establish a  penalty, the contractor will need to demonstrate that the predominant  contractual function of the provision was to deter it from breaking the  contract, rather than to compensate the innocent party for the breach.&nbsp;  Proportionality of the damages to the costs reasonably anticipated to be  incurred is key to maintaining a valid liquidated damages claim.&nbsp; If  successful in establishing a penalty, the contractor could, however,  still be vulnerable to a claim for unliquidated (general) damages.<br /><br />The  FIDIC Red Book, 1987, provides at clause 47.1 for &ldquo;Liquidated Damages  for Delay&rdquo;, while the 1999 edition provides at clause 8.7 for &ldquo;Delay  Damages&rdquo;.<br /><br />When contractors are contemplating signing a contract  for work in the UAE and the contract is to be governed by UAE law,  however, they need to take heed of the local laws that apply to this  subject.<br /><br /><strong>The UAE Civil Code<br /><br /></strong>Article  390(2) of the UAE Civil Code addresses the issue of the enforceability  of liquidated damages in the UAE.&nbsp; In our translation, the Article  provides:</p>\r\n<ul>\r\n<li>The contracting parties may fix the amount of compensation in  advance by making a provision in the contract, or by later agreement,  subject to the provisions of the law</li>\r\n<li>The court may, on the application of either party, vary such  agreement so as to make the compensation equal to the loss and any  agreement to the contrary shall be void.</li>\r\n</ul>\r\n<p>Under UAE law, despite what the parties may have agreed, the court  (or an arbitrator) has the ability retrospectively to change that  agreement, to ensure that the damages are equal to the loss that has  been suffered.&nbsp; The parties are not able to contract out of this.<br /><br /><strong>Interpretation by the Court<br /></strong><br />Dubai  Court of Cassation judgment 138/94 shows how the Court will view  liquidated damages and penalties.&nbsp; While decisions of the Courts in the  UAE are not binding, Court of Cassation judgments are certainly  persuasive and often followed by lower Courts.<br /><br />In this case,  there was a dispute between a contractor and a subcontractor regarding  delay to completion.&nbsp; The contract between the parties contained a  &ldquo;penalty clause&rdquo; for delay to completion and the Claimant sought to  recover the penalty in full.<br /><br />The Court confirmed its general  power to reduce the amount of damages agreed in the contract, where it  is evident that the actual loss suffered is less than the total amount  of damages agreed in the contract.&nbsp; A wide discretion is certainly alive  and well.<br /><br />It seems in fact that Courts in the UAE do not draw a  distinction between a pure penalty and a pure liquidated damages  provision and indeed the terms penalty and damages were used  interchangeably during the hearing.&nbsp; It is correct to assume that the  distinction between the two terms made in common law jurisdictions is  not significant in the UAE, due the overriding nature of the power of  the courts under Article 390 of the Civil Code.<br /><br /><strong>Conclusion<br /><br /></strong>Parties  entering into contracts need to be aware that the liquidated damages  number that is &lsquo;hotly&rsquo; negotiated and agreed, may be varied by a judge  or arbitrator where the contract is governed by UAE law.&nbsp;&nbsp; There is  discretion under UAE law for a judge or arbitrator to revise the damages  up or down so as to match the actual loss that is suffered.&nbsp; In our  experience, it is more common for the argument to be mounted by a  contactor to reduce the damages.&nbsp;That said, there are certainly  instances where an employer may apply to increase the damages.</p>'),
(84922, 4629, '_content', 'field_59b649b5c8b2b'),
(84923, 4629, 'lawUpdateArticleMonth', '4618'),
(84924, 4629, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(84925, 4629, 'content_description', 'International contractors from common law jurisdictions will be familiar with the concept of liquidated damages.  A typical clause will provide that should the contractor fail to complete by a date stipulated in the contract, or any extended date, he shall pay or allow the employer to deduct liquidated damages at the rate of ‘X’ per day, or week, for the period during which the works remain uncompleted.'),
(84926, 4629, '_content_description', 'field_59b641c07f473'),
(84927, 4629, 'pageSummary', 'International contractors from common law jurisdictions will be familiar with the concept of liquidated damages.  A typical clause will provide that should the contractor fail to complete by a date stipulated in the contract, or any extended date, he shall pay or allow the employer to deduct liquidated damages at the rate of ‘X’ per day, or week, for the period during which the works remain uncompleted.'),
(84928, 4629, '_pageSummary', 'field_59e59b307dec8'),
(84929, 4629, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-5/january-2/liquidated-damages.html'),
(84930, 4629, '_currentURL', 'field_59d35123ab1e7'),
(84931, 4629, 'lawUpdateArticleWriters_0_lawUpdateArticleWriter', '864'),
(84932, 4629, '_lawUpdateArticleWriters_0_lawUpdateArticleWriter', 'field_59da2ac06b065'),
(84933, 4629, 'lawUpdateArticleWriters', '1'),
(84934, 4629, '_lawUpdateArticleWriters', 'field_59da2a866b064'),
(84935, 4629, 'lawUpdateArticlePractices_0_lawUpdateArticlePractice', '537'),
(84936, 4629, '_lawUpdateArticlePractices_0_lawUpdateArticlePractice', 'field_59dc79c8e10ce'),
(84937, 4629, 'lawUpdateArticlePractices', '1'),
(84938, 4629, '_lawUpdateArticlePractices', 'field_59dc7918de021'),
(84939, 4629, '_yoast_wpseo_metadesc', 'International contractors from common law jurisdictions will be familiar with the concept of liquidated damages. A typical clause will provide that should the contractor fail to complete by a date stipulated in the contract, or any extended date, he shall pay or allow the employer to deduct liquidated damages at the rate of ‘X’ per day, or week, for the period during which the works remain uncompleted.'),
(84940, 4630, 'content', '<strong>The Kurdish objective</strong>\r\n\r\nWith an estimated population of 1,294,000<sup>1</sup> , Erbil is the 4th largest city in Iraq.  Located in so-called Iraqi Kurdistan, it straddles an interesting divide between the centralized Iraqi government and the Kurdistan Regional Government (the KRG).  Although Baghdad’s policies and laws still reach Kurdistan, the KRG is an autonomous authority controlling the three northern governorates of Dahuk, Erbil and Sulaymaniyah.  It has its own President – Masoud Barzani – elected assembly, and security forces division<sup>2. </sup>It has successfully unified the leadership within Kurdistan and has its own legislative powers.  The KRG’s agenda has allowed for networking events and forums to promote investment and development in the region, such as international exhibitions that are oft frequented by government officials and economists.  Although the KRG attempts to woo a European and American crowd, around 55% of foreign companies currently investing in the region are Turkish<sup>3</sup>.  Kurdish officials have managed to garner support from countries such as Turkey and Iran before looking beyond the ocean.  Governor Nawzad Hadi states “the true objective is to serve the citizen<sup>4</sup>”.\r\n\r\nIf serving the citizen is the true goal, than the KRG has indeed made significant steps to ensure that it is accomplished.  Part of this effort involves putting Kurdish denizens in touch with internationally recognized brands.  This requires making key information easily accessible to companies looking to open departments in the region.  The KRG’s website, for example, offers documents and text in English, unlike the central governments website. It also has a downloadable and detailed investment brochure and offers translations of its important legislation.\r\n\r\nHalf way through 2011, Ernst and Young, Rotana and Standard Chartered had already established themselves in Erbil<sup>5</sup>.  A shopping centre dubbed “The Family Mall” not only showcases products from Ecco, Timberland, and Samsonite, but also has an indoor skating rink and adjacent outdoor theme park<sup>6</sup>. Goods and services that were unavailable to Iraqis under Saddam Hussein’s regime are now prominently on display.\r\n\r\nThe result of the KRG’s efforts to gather investment from across the nation and beyond its borders, according to a report by Middle East business News and Data (MEED) is fruitful.  During the first half of 2012, Kurdistan drew in $3.4 billion worth of foreign investment, compared to $3 billion in 2011 and $4.8 billion in 2010<sup>7</sup>.  Since its touted Investment Law was passed in 2006, the region has attracted “$21 billion in foreign and domestic private sector investment”, $12.5 of which has gone to Erbil<sup>8</sup>. The primary foreign investors in the region are Turkey and Iran, followed by the US, Lebanon, UK, UAE, Jordan, Kuwait, Italy and Germany, contributing to 17% of all investments<sup>9</sup>.\r\n\r\nKurdistan plays a particularly important role in trade between Turkey and Iraq, accounting for 75% of the $12 billion trade in 2011; its contribution is “expected to increase following the opening of a second border crossing”. Local businesses and individuals made up 79% of investment, with the remaining 5% belonging to joint venture companies<sup>10</sup>. Of the 10,500 registered companies in Kurdistan, 11% are international<sup>11</sup>. Kurdistan is evidently proving to the rest of Iraq and the world that it is an economically viable region that continues to grow and prosper.\r\n\r\n<strong>Erbil: making a name for itself</strong>\r\n\r\nArguably, the primary reason for Erbil’s success is the KRG’s 2006 Investment Law.  This law provides for: equal treatment of foreign and local investors, the ability for investors to own all the capital of their projects and to repatriate profits in full.  Furthermore, projects that meet certain criteria will receive the benefit of free or cheap land.  The most enticing stipulations are likely those that give investors a 10-year tax break and the freedom for foreign companies to not have to partner with local firms or have local shareholders operating in the region. This is complemented by a 2009 Iraqi law, which allows foreigners to own land in Iraq.\r\n\r\nThe rebuilding and creation of key infrastructure has warranted the presence of a number of foreign investors from various sectors at the Erbil International Fair and has engendered construction opportunities. In 2009, the annual Construction Fair showcasing building equipment and electrical appliances amassed 300 companies from 23 countries.  With its large, proven oil reserves (estimated at 45 billion barrels), Kurdistan has also garnered attention from East Asia.  South Korea has had a consulate in Erbil since 2008 to promote its country’s trade interests in Iraq, and to also enable scholarship and vocation opportunities for regional inhabitants<sup>12</sup>. China also has plans on opening an office in the near future.\r\n\r\nWith both domestic and international attention being paid to Kurdistan’s capital, the region finds itself economically reborn.  Catering for all of the unprecedented visitors, Hilton has recently announced that it will build a 300-room hotel, featuring a spa, boardrooms and both indoor and outdoor pools<sup>13</sup>.  The Turkish Divan Hotel, having opened in May 2012, has rooms varying in price from $500 to $15,000 a night, indicating the level of international business it expects to come into the region.  With its 8% economic growth in 2011, Erbil’s land prices have increased<sup>14</sup>.  In June 2012, the city discussed spending $172 million a year to resolve a residential shortage by building 5,000 residential units a year.  The Ministry of Housing and Reconstruction has already started to award contracts<sup>15</sup>.  Apart from the incessant housing and commercial building development, foreign car companies such as Porsche and Mercedes have managed to profit from the increasing disposable income in the area.  Erbil even has its own stock exchange. It is no surprise that it is often credited as the “Other Iraq” or the “New Dubai<sup>16</sup>”.\r\n\r\nMichael O’Hanlon of Brookings Institution explains that influx of foreigners brings a certain market with it: “Reporters, oil workers, diplomats are willing to pay extra to sleep safely, work safely and eat safe food.  If the hotel can deliver, then it makes sense for them to expand into high-risk areas<sup>17</sup>.”  The risks that foreign companies, such as hotels, are subject to are mitigated because “hoteliers are only responsible for operating a property without [incurring] the costs associated with the underlying real estate acquisition<sup>18</sup>”.  O’Hanlon also notes, however, that the entry of investors and oil companies into Kurdistan is for the ultimate purpose of “getting a foot in the door to the rest of Iraq<sup>19</sup>”. Nevertheless, Kurdistan strives to differentiate itself from the rest of the country, both politically and economically.\r\n\r\n<strong>Expanding construction opportunities</strong>\r\n\r\nThe opportunities for construction companies in Erbil are large and continue to grow.  They will present themselves in a number of ways, courtesy of the various concurrent projects in operation. Fady Darwish, General Manager of the annual Erbil construction fair, notes: “with some $25 billion in housing projects, $8 billion in transportation and $5.5 billion in water and sewage, the Iraqi government is focusing primarily on reconstruction and rehabilitation<sup>20</sup>.” Governor Hadi stresses the importance of water, stating, “the future focus of the KRG is on building dams, irrigation systems and addressing the water system<sup>21</sup>”.  Cement plants are being constructed or redone across Iraq to facilitate the growing need for “construction solutions<sup>22</sup>”.  Although the water management system in Dubai may be complex, the city had the necessary infrastructure before Erbil.  In this sense, the two cities are dissimilar.  Like Dubai, however, there is an influx of foreign workers for service jobs, which results in competitive pricing and a potent workforce.\r\n\r\nMaking use of the increase in foreign labour, projects currently underway include the construction of two Best Western Premier hotels to be completed in 2013 and 2014 respectively.  Glenn de Souza, VP of Best Western’s International Operations Asia, remarked that Erbil was the “natural first choice” for development in Iraq considering its increasing access to air transport, important roads and status as a recognized trading centre<sup>23</sup>.  Empire Iraq is also scheduled to build an upscale Marriot hotel and series of executive apartments expected to cost over $100 million to complete<sup>24</sup>.  Perhaps more important than the buildings are the roads connecting them. Kita, the first Turkish company to offer logistics and trucking information in Iraq, opened an office in Erbil because of its proximity to strategic oil and gas locations<sup>25</sup>.\r\n\r\nIn relation to oil, the KRG recently agreed with Korean engineering company Posco and Korea National Oil to construct two plants for $700 million<sup>26</sup>.   Foreign companies such as Kita and Posco, in not having to establish partnerships with local entities, are therefore able to bank greater profits.\r\n\r\n<strong>Risk assessment</strong>\r\n\r\nOne of the biggest issues that companies face when establishing business in Erbil is ironically being affected by the same problems they are trying to fix.  Services like water and electricity, although better than they used to be, are lacking.  The Erbil municipality is only able to provide around 17 hours of electricity per day, while country-dwelling residents in Kurdistan may not have access to power at all.   This will pose added costs and delays to any attempts at improving infrastructure.\r\n\r\nFurther fueling expenses is the “lack of local expertise [which] has partially slowed growth, forcing the Kurdish government to lure foreign players with a whole range of business-friendly regulations<sup>28</sup>.”  This would indicate that the KRG is reliant upon foreign investment to fuel and sustain its development initiatives.  Conversely, the majority of Erbil’s investors are Iraqi, and the work culture is something that any company needs to adapt to.  In spite of these inherent flaws in Kurdistan’s current setup, continued investment and growth is expected.\r\n\r\nThe Kurdish language, culture, and history aside, the most crucial and current difference between Kurdistan and the rest of Iraq is its relative safety.  Retired Army colonel Harry Schute believes that Kurdistan is safer than New Jersey<sup>29</sup>.  But Iraq has gained a reputation for violence and minimal security, a scare for tourists, investors and workers.  In May 2007, two car bombs killed a total of 45 people and wounded 150.  A company has to be certain that its employees are going to have physical security and peace of mind.  In spite of the bombings, Lufthansa and Austrian Airlines conduct four flights a week to Erbil, and certain countries, such as the UK, have specifically mentioned that traveling to Kurdistan does not pose the same risks as traveling to the rest of Iraq<sup>30</sup>.  Airlines in the UAE have been flying to Erbil for some time.\r\n\r\nRegardless of a company’s relations with the KRG, the KRG’s relationship with the Iraqi central government is tense.  A good example is when Kurdish authorities allowed Iraq’s VP Tariq al-Hashimi to travel to Qatar in spite of a warrant for his arrest in Baghdad<sup>31</sup>.  Moreover, the KRG halted oil exports through the Iraqi pipeline between April and August 2012, alleging that the KRG had not been adequately compensated for its oil by Baghdad<sup>32</sup>.   The KRG further aggravated the situation when it unilaterally signed a contract with ExxonMobil, prompting the Iraqi government to threaten Exxon with the possibility of legal action – a threat it has, to date, not made good on<sup>33</sup>.  Unfortunately for the KRG, it has no independent pipeline and the Turkish government, with whom it does the most business, has not yet agreed to maneuver around Baghdad’s current policy on Kurdish exports<sup>34</sup>.   Regardless of how much regional autonomy the KRG possesses, it must still respect Baghdad’s authority.  Tensions between regional and central government will not bode well for investment.\r\n\r\nAn added, but minor, complication to doing business in Erbil is that there is little access to ATMs that accept international cards.  This limitation requires a number of dealings to be done in cash, which could pose problems for security.  Cash payments also make money laundering difficult to trace.  Governor Hadi admits “many things and sectors of the state have changed very rapidly, so there will be some corruption<sup>35</sup>.”  This type of illicit conduct could be subject to scrutiny from UK or US regulators (especially following the UK’s Anti-Bribery Act 2010).\r\n\r\nA final, but not fully known variable, is the impact of UN, EU and US sanctions of Iran.  Iran is a heavy investor in Erbil meaning that companies affiliated with certain Iranian businesses or doing any type of business with Iran need to be cautious.  The unilateral sanctions imposed by the US have been particularly strict; companies doing business in the US will be slapped with fines and possibly jail terms should they fail to comply.\r\n\r\n<strong>How we can help</strong>\r\n\r\nAl Tamimi &amp; Company is well placed to assist clients with their legal needs in Iraq.  With an office in Baghdad with a sizeable team of lawyers, Al Tamimi is experienced in providing the type of legal insight that gives a project in a rapidly changing economy such as Kurdistan the greatest chance of success.  The firm has a strong understanding of its clients’ industries and objectives and its depth of advisors and resources allows for a comprehensive and devoted approach to advisory work.  Al Tamimi is experienced in assisting its clients in their ventures in Kurdistan and offers its services to local, regional and international companies alike.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nAs Erbil seeks to reinvent itself, companies across the globe are keen to reap the benefits from this unique process.  Although there will be a significant number of difficulties for current and future investors, Erbil’s economy is advancing at a lightening-fast pace because of its construction and development initiatives across all sectors.  As business grows, so will the need for legal assistance in a variety of areas for domestic and international clients alike.  Al Tamimi is ready to assist clients embrace the exciting new challenges and opportunities in Erbil.\r\n\r\n<strong> Footnotes</strong>\r\n<pre>1-As of 2009\r\n2- “Iraq: Country Profile”. Al Jazeera, 14 Dec. 2011. &lt;<a href=\"http://www.aljazeera.com/indepth/spotlight/2011/12/2011124121054690602.html\">http://www.aljazeera.com/indepth/spotlight/2011/12/2011124121054690602.html</a>&gt;\r\n3-Yassine el-Rabei. “Erbil exhibitions: an opportunity for foreign investment”. The Iraqi Dinar, 23 May 2012. AKNews&lt;<a href=\"http://theiraqidinar.com/2012/05/23/erbil-exhibitions-an-opportunity-for-foreign-investment/\">http://theiraqidinar.com/2012/05/23/erbil-exhibitions-an-opportunity-for-foreign-investment/</a>&gt;\r\n4-Ibid\r\n5- Rebecca Bundhun. “Erbil Remedy to Develop Iraqi Tourism”. The National, 16 May 2011&lt;<a href=\"http://www.thenational.ae/business/travel-tourism/erbil-remedy-to-develop-iraqi-tourism\">http://www.thenational.ae/business/travel-tourism/erbil-remedy-to-develop-iraqi-tourism</a>&gt;\r\n6-Ibid\r\n7- Ed James. “Kurdistan investment levels soar”. MEED, 2 Sept. 2012&lt;<a href=\"http://www.meed.com/3149039\">www.meed.com/3149039</a>&gt;\r\n8-Ibid\r\n9-Ibid\r\n10-Ibid\r\n11-Ibid\r\n12-“Korean Consul General completes term in Erbil”. Kurdish Globe, 28 Aug. 2012 &lt;http://www.kurdishglobe.net/display-article.html?id=AD3564C96BCE8F3C1BB0767BD6064226&gt;\r\n13-“Hilton announces 300-room hotel bound for Erbil”. Construction Week Online, 2 Aug, 2012 &lt;http://www.constructionweekonline.com/article-17892-hilton-announces-300-room-hotel-bound-for-erbil/&gt;\r\n14-Matteo Fagotto. “Is Erbil’s growth spurt hype or for real?”. Gulf News, 5 Aug 2012. alpha Magazine&lt;<a href=\"http://gulfnews.com/news/region/iraq/is-erbil-s-growth-spurt-hype-or-for-real-1.1057846\">http://gulfnews.com/news/region/iraq/is-erbil-s-growth-spurt-hype-or-for-real-1.1057846</a>&gt;\r\n15-Kadhim Ajrash and Khalid al-Ansary. “Iraq Kurdistan Needs 5000 New Homes a Year to End Shortage”. Bloomberg, 12 June 2012&lt;<a href=\"http://www.bloomberg.com/news/2012-06-12/iraq-kurdistan-needs-5-000-new-homes-a-year-to-end-shortage.html\">http://www.bloomberg.com/news/2012-06-12/iraq-kurdistan-needs-5-000-new-homes-a-year-to-end-shortage.html</a>&gt;\r\n16-Op cit, n14\r\n17-Nadja Brandt. “Iraq Draws US Hotel Operators Banking on Business Travelers”. Bloomberg, 15 Dec 2011&lt;<a href=\"http://www.bloomberg.com/news/2011-12-15/iraq-draws-u-s-hotel-operators-banking-on-business-travelers.html\">http://www.bloomberg.com/news/2011-12-15/iraq-draws-u-s-hotel-operators-banking-on-business-travelers.html</a>&gt;\r\n18-Ibid\r\n19-Ibid\r\n20-“Construction Trade Fair in Erbil”. Iraq Business News, 11 Sept. 2010&lt;<a href=\"http://www.iraq-businessnews.com/2010/09/11/construction-trade-fair-in-erbil/\">http://www.iraq-businessnews.com/2010/09/11/construction-trade-fair-in-erbil/</a>&gt;\r\n21-“Erbil Governor outlines development and challenges ahead”. Erbil Governorate, 17 June 2012. Rudaw &lt;<a href=\"http://www.hawlergov.org/en/article.php?id=1340000866\">http://www.hawlergov.org/en/article.php?id=1340000866</a>&gt;\r\n22-Ibid. \r\n23-“Construction Starts on Erbil Best Westerns”. Construction Week Online, 24 Aug. 2012 &lt;http://www.constructionweekonline.com/article-18179-construction-starts-on-erbil-best-westerns/&gt;\r\n24-“Iraq Empire to launch two Marriott hotels in Erbil” Empire World, 2012&lt;http://www.empireiraq.com/erbil-marriott-hotel/overview.html&gt;\r\n25- “Kita Opens Truck Operation in Iraq”. Construction Week Online, 20 Jan 2011&lt;http://www.constructionweekonline.com/article-10841-kita-opens-truck-operation-in-iraq/&gt;\r\n26-Nayla Razzouk.“Iraq’s Kurdistan Signs Power Agreements with KNOC, Posco”. Bloomberg, 7 Aug 2012&lt;<a href=\"http://www.bloomberg.com/news/2012-08-07/iraq-s-kurdistan-signs-power-agreements-with-knoc-posco.html\">http://www.bloomberg.com/news/2012-08-07/iraq-s-kurdistan-signs-power-agreements-with-knoc-posco.html</a>&gt;\r\n27-Op cit, n14\r\n28-Ibid\r\n29-Bernd Debusmann. “Iraqi tourism ? Not for the faint-hearted”. New York Times, 8 Aug. 2007 &lt;<a href=\"http://www.nytimes.com/2007/08/08/business/worldbusiness/08iht-dinar.5.7048682.html?_r=1\">http://www.nytimes.com/2007/08/08/business/worldbusiness/08iht-dinar.5.7048682.html?_r=1</a>&gt;\r\n30-Ibid\r\n31-Kadhim Ajrash. “Iraq Asks Qatar to Hand Over VP Al Hashimi”. Bloomberg, 2 Apr. 2012&lt;<a href=\"http://www.bloomberg.com/news/2012-04-02/iraq-asks-qatar-to-hand-over-kurdish-vice-president-al-hashimi.html\">http://www.bloomberg.com/news/2012-04-02/iraq-asks-qatar-to-hand-over-kurdish-vice-president-al-hashimi.html</a>&gt;\r\n32-Joost R. Hiltermann. “Baghdad and Erbil battle for Iraq”. The National Interest, 17 Aug. 2012&lt;<a href=\"http://nationalinterest.org/commentary/baghdad-erbil-battle-iraq-7357\">http://nationalinterest.org/commentary/baghdad-erbil-battle-iraq-7357</a>&gt;\r\n33-Ibid\r\n34-Ibid\r\n35-Op cit, n21</pre>'),
(121170, 6170, '_wp_attached_file', '2017/10/20130318_S1310-MENA-Flyer-bilingual.pdf'),
(121171, 6170, '_edit_lock', '1508912382:1'),
(121172, 2225, '_edit_lock', '1522235601:1'),
(121173, 2225, '_edit_last', '1'),
(121174, 2225, 'newsPractices', ''),
(121175, 2225, '_newsPractices', 'field_59e8a0e952a26'),
(121122, 4630, 'core_values', ''),
(121123, 4630, '_core_values', 'field_59b64ab071de4'),
(121124, 4630, 'file', ''),
(121125, 4630, '_file', 'field_59b64c10f6600'),
(121126, 4630, 'orderValue4', '4'),
(121127, 4630, '_orderValue4', 'field_59d2096a8ff34'),
(121128, 4630, 'related_pages_header', ''),
(121129, 4630, '_related_pages_header', 'field_59b6441e3cc94'),
(121130, 4630, 'related_pages', '');
INSERT INTO `tm_postmeta` (`meta_id`, `post_id`, `meta_key`, `meta_value`) VALUES
(121131, 4630, '_related_pages', 'field_59b6434af4880'),
(121132, 4630, 'relatedArticles', ''),
(121133, 4630, '_relatedArticles', 'field_59d349d04107c'),
(121134, 4630, '_yoast_wpseo_content_score', '30'),
(121135, 4497, '_edit_lock', '1508912223:1'),
(121136, 4497, '_edit_last', '1'),
(121137, 4497, 'lawUpdateArticlePractices', '1'),
(121138, 4497, '_lawUpdateArticlePractices', 'field_59dc7918de021'),
(121139, 4497, 'lawUpdateArticleSectors', ''),
(121140, 4497, '_lawUpdateArticleSectors', 'field_59ec462a1e203'),
(121141, 4497, 'lawUpdateArticleWriters', ''),
(121142, 4497, '_lawUpdateArticleWriters', 'field_59da2a866b064'),
(121143, 4497, 'orderValue1', '1'),
(121144, 4497, '_orderValue1', 'field_59d0c6e5175b5'),
(84941, 4630, '_content', 'field_59b649b5c8b2b'),
(84942, 4630, 'lawUpdateArticleMonth', '4618'),
(84943, 4630, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(84944, 4630, 'content_description', 'The devastating effects of the 2003 Iraqi War, subsequent sectarian violence and struggles for power have complicated efforts to promote foreign investment, economic growth and reconstruction efforts in the country thought to hold the “cradle of civilization”.  There is, however, a city in Iraq that has managed to not only encourage investment by the private sector, but has made it the heart of its economic ambitions.  Since its harsh economic sanctions were lifted, the northern, semi-autonomous Kurdish region of Iraq has declared itself open for business, enticing foreign enterprises with generous investment laws and a relatively secure business environment. Welcome to Erbil.'),
(84945, 4630, '_content_description', 'field_59b641c07f473'),
(84946, 4630, 'pageSummary', 'The devastating effects of the 2003 Iraqi War, subsequent sectarian violence and struggles for power have complicated efforts to promote foreign investment, economic growth and reconstruction efforts in the country thought to hold the “cradle of civilization”.  There is, however, a city in Iraq that has managed to not only encourage investment by the private sector, but has made it the heart of its economic ambitions.  Since its harsh economic sanctions were lifted, the northern, semi-autonomous Kurdish region of Iraq has declared itself open for business, enticing foreign enterprises with generous investment laws and a relatively secure business environment. Welcome to Erbil.'),
(84947, 4630, '_pageSummary', 'field_59e59b307dec8'),
(84948, 4630, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-5/january-2/here-comes-erbil.html'),
(84949, 4630, '_currentURL', 'field_59d35123ab1e7'),
(84950, 4630, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Adam Balchin'),
(84951, 4630, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(84952, 4630, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'a.balchin@tamimi.com'),
(84953, 4630, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'field_59e59afcd15de'),
(84954, 4630, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', ''),
(84955, 4630, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', 'field_59e59b05d15df'),
(84956, 4630, 'lawUpdateArticleNoWriters', '1'),
(84957, 4630, '_lawUpdateArticleNoWriters', 'field_59e59aaed15dc'),
(84958, 4630, 'lawUpdateArticlePractices_0_lawUpdateArticlePractice', '537'),
(84959, 4630, '_lawUpdateArticlePractices_0_lawUpdateArticlePractice', 'field_59dc79c8e10ce'),
(84960, 4630, 'lawUpdateArticlePractices', '1'),
(84961, 4630, '_lawUpdateArticlePractices', 'field_59dc7918de021'),
(84962, 4630, '_yoast_wpseo_metadesc', 'The devastating effects of the 2003 Iraqi War, subsequent sectarian violence and struggles for power have complicated efforts to promote foreign investment, economic growth and reconstruction efforts in the country thought to hold the “cradle of civilization”. There is, however, a city in Iraq that has managed to not only encourage investment by the private sector, but has made it the heart of its economic ambitions. Since its harsh economic sanctions were lifted, the northern, semi-autonomous Kurdish region of Iraq has declared itself open for business, enticing foreign enterprises with generous investment laws and a relatively secure business environment. Welcome to Erbil.'),
(84963, 4631, 'content', '<p><strong>Management of bonuses</strong></p>\r\n<p>Employment relationships in the United Arab  Emirates (&ldquo;UAE&rdquo;) are generally regulated by the UAE Federal Law No. 8 of  1980 (as amended) (the &ldquo;Labour Law&rdquo;) together with regulations  promulgated under that law. The Labour Law applies to all employees  working in the UAE, with a small number of exceptions. One of those  exceptions relates to employees working in the Dubai International  Financial Centre (&ldquo;DIFC&rdquo;) who are subject to the DIFC Employment Law No.  4 of 2005 (the &ldquo;Employment Law&rdquo;).<br /><br />Neither the Labour Law nor the  Employment Law contain provisions in respect of bonuses and it is  therefore a discretionary matter for employers in the UAE and the DIFC  as to whether employees receive bonus payments and, if so, how the  underlying schemes are operated.<br /><br />In some sectors or industries,  it is commonplace for employees to receive bonuses as a result of custom  or practice. Where this is the case, it is likely that the contract of  employment will make some reference to the payment of a bonus.  Contractual reference does not, contrary to popular belief, mean that a  bonus is automatically guaranteed. Ultimately, entitlement to a bonus is  a matter for whether the bonus is deemed to be discretionary or  non-discretionary and this, in itself, can be a tricky matter.<br /><br /><strong>Discretionary vs. non-discretionary<br /><br /></strong>Discretionary  bonuses (whether contractual or not) are those which give the employer  the ability to determine whether a bonus should be paid and, if so, in  what amount. Frequently, where a discretionary bonus is operated,  mention of such bonus will be omitted entirely from the contract of  employment. Alternatively, the contract of employment may mention that a  bonus scheme is from time to time operated but that payment of any  bonus is entirely at the discretion of the employer&rsquo;s management team  and usually subject to certain performance criteria of the individual  and the employer as well.&nbsp;<br /><br />Non-discretionary bonuses are those  which essentially guarantee payment of a bonus to the employee. Whilst  such schemes may utilise eligibility criteria, for example, requisite  length of service or performance targets, they nonetheless guarantee  payment to the employee (subject to meeting the prescribed criteria) and  remove discretion from the employer.<br /><br />It is not unusual for  employers to seek to retain an element of discretion whilst in reality  implementing non-discretionary bonus schemes. This might arise where the  employer implements a bonus scheme which refers to the company meeting  certain levels of turnover or profit and subsequently the employee  meeting targets but then goes on to state that the employer has overall  discretion as to payment of the bonus. In reality, such schemes are  non-discretionary and can create difficulties where the employer  believes that it has retained discretion when this is in actual fact not  the case.<br /><br />In order to avoid complaints, it is prudent for  employers to proceed with some caution when exercising their discretion  over the payment of bonuses. It is apparent that few employers consider  exactly what is meant by the term &ldquo;discretionary&rdquo;, and to what exactly  the discretion relates. A recent UK Employment Appeals Tribunal  decision, which may be persuasive in cases in the UAE and particularly  those before the DIFC Courts, indicated that &ldquo;discretionary&rdquo; in the  context or bonus schemes may mean:</p>\r\n<ol>\r\n<li>The provision of an overarching bonus scheme itself was discretionary;</li>\r\n<li>A decision to operate the bonus scheme each year is discretionary;</li>\r\n<li>The method of calculating the bonus is discretionary; or</li>\r\n<li>&nbsp;The threshold or performance target which triggers a bonus payment is the subject of discretion.</li>\r\n</ol>\r\n<p>The distinctions could potentially have a significant impact on the  respective rights and entitlements of the employer and employee over the  bonus scheme and therefore it is imperative, where the contract of  employment or the bonus scheme documents refer to discretion, that there  is little doubt as to what this discretion refers to. This case  highlights the importance of setting out the terms of any bonus scheme  very carefully, and at the very least making it clear where the employer  can exercise its discretion - be that over the status of the scheme,  the calculation of any bonus payment, and/or the terms of entitlement to  any bonus payment. The fact that a bonus scheme has been referred to as  &ldquo;discretionary&rdquo; may not in fact give the employer the unfettered right  to withhold or refuse to make a bonus payment to employees.&nbsp;<br /><br /><strong>End of service gratuity (&ldquo;EoSG&rdquo;)<br /><br /></strong>An  employee is ordinarily entitled to an EoSG payment in the event of  termination of employment, so long as he has the qualifying length of  service (and is not being summarily dismissed). EoSG is calculated on  the basis of 21 calendar days\' pay for each year of service for the  first five years, and 30 calendar days\' pay for each year of service  thereafter. Pay for the purposes of EoSG is generally accepted as being  the employee&rsquo;s \"basic pay\", excluding allowances, provided that the  contract of employment properly distinguishes between the basic pay and  allowances.<br /><br />A recent Court of Cassation judgment has added some  confusion to this area.&nbsp; Essentially, the Court of Cassation has deemed  that EoSG calculations should be based upon basic salary and, in  addition, commissions or bonuses where such amounts are essentially  fixed or guaranteed. Accordingly, there is now a risk for employers  paying bonuses on a fixed or guaranteed basis that such bonuses may lead  to a much larger obligation on termination than originally intended.<br /><br />In  order to seek to limit the potential liability for EoSG for employees  who receive bonuses, it is advisable that performance indicators are  utilised which, if not met, mean that the bonuses are not payable.<br /><br /><strong>Managing expectations<br /><br /></strong>Despite  efforts to manage employees&rsquo; expectations, the award of (or failure to  award) bonuses can have both a detrimental effect on employee morale,  and may lead to allegations of breach of contract and/or discrimination.<br /><br />Where  an employer is intending to introduce a bonus scheme, caution should be  exercised to ensure that the rules of the scheme are sufficiently well  drafted to cover most eventualities.&nbsp; When drafting discretionary bonus  scheme rules, it is also important to consider in what circumstances  payments may not be made to the employee.&nbsp; For example, it is useful  practice to have a provision in the employee&rsquo;s contract saying that any  discretionary payment under the bonus scheme will only be made if the  employee is in employment on the bonus payment date, and is not under  notice (whether given or received).&nbsp; This is intended to enable an  employer to exercise its discretion not to award an employee a  discretionary bonus payment in circumstances where the employee has  resigned to go to a competitor, or has been dismissed part way through  the year.<br /><br />To avoid any dispute as to this matter upon termination  of employment, it is sensible to include wording in the contract of  employment (where the bonus is contractual) which states that any bonus  entitlement which has not been declared or paid out at the time of  notice being given or received is forfeited.<br /><br />It is also worth  considering what specific factors will be taken into account in  exercising discretion.&nbsp; Many employers prefer not to express this and to  leave their discretion as wide as possible.&nbsp; However, it may be helpful  sometimes to express that both employer and employee (and perhaps team)  performance can be taken into account in assessing the discretionary  payment which may be made to an employee. Moreover, mention of  discretion without clarity as to the scope thereof, may lead to  arguments as to what the discretion relates to (as discussed above).<br /><br /><strong>Potential disputes<br /><br /></strong>The  relevant case law also indicates that where an employer has an absolute  discretion, it must not exercise, or fail to exercise, that discretion  irrationally, and it must act in good faith particularly in the DIFC.  Cases in other jurisdictions have suggested that the test may be even  stricter than this, and that &ldquo;it is presumed to be the reasonable  expectation and therefore the common intention of the parties that there  should be genuine and rational, as opposed to an empty or irrational,  exercise of discretion&rdquo;.<br /><br />If discretion is exercised perversely or  irrationally, or in breach of any express conditions detailed in the  employee&rsquo;s contract or bonus scheme rules, the employee could bring a  claim for breach of contract. The damages sought would be the bonus  monies the employee believes he should have been paid. In addition, as  any breach would relate to the employee&rsquo;s remuneration (which is  considered a fundamental term of a contract of employment), it would be  open for the employee to resign and claim constructive arbitrary (or  unfair) dismissal. The employee would seek his notice monies, and  arbitrary dismissal compensation constituting a basic award of up to 3  months&rsquo; remuneration (outside of the DIFC) and potentially damages (in  the DIFC). Alternatively, the employee could remain in employment but  protest at the level/lack of bonus and commence proceedings for an  unlawful deduction from wages.<br /><br />When paying out a contractual  bonus, employers should be careful to ensure that they are making the  award in accordance with the rules of the scheme, otherwise a claim for  breach of contract is likely to ensue. Where this type of claim has come  before the UAE Courts previously, a pro-rated payment of the potential  bonus entitlement has been favoured.<br /><br />Finally, the employee could  claim that the discretion has been exercised in a discriminatory way.  This is more likely to be a serious consideration for employers in the  DIFC.<br /><br />When determining bonuses, employers should therefore be  cautious not to forget about those who remain employees but are not  currently working in the office, such as those who are on long term  sickness absence or maternity leave.&nbsp; Care should be taken to ensure  that those employees are treated fairly and in accordance with the rules  of the bonus scheme (which must not be discriminatory).<br /><br />Given  the complexities involved in drafting bonus schemes, it is often a good  idea to seek advice at an early stage, before claims are brought as a  result of employees not receiving what they had expected under the rules  of the scheme.</p>'),
(84964, 4631, '_content', 'field_59b649b5c8b2b'),
(84965, 4631, 'lawUpdateArticleMonth', '4618'),
(84966, 4631, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(84967, 4631, 'content_description', 'Employers often use bonus schemes as incentives to reward and retain valuable employees and this is usually the time of year when employers are reviewing performance and determining whether bonuses will be issued. The criteria on which performance is measured, and against which bonuses are ultimately quantified, vary across companies and market sectors and, although bonus schemes are common, there are no statutory restrictions or guidelines dealing with the payment of bonuses in the UAE.'),
(84968, 4631, '_content_description', 'field_59b641c07f473'),
(84969, 4631, 'pageSummary', 'Employers often use bonus schemes as incentives to reward and retain valuable employees and this is usually the time of year when employers are reviewing performance and determining whether bonuses will be issued. The criteria on which performance is measured, and against which bonuses are ultimately quantified, vary across companies and market sectors and, although bonus schemes are common, there are no statutory restrictions or guidelines dealing with the payment of bonuses in the UAE.'),
(84970, 4631, '_pageSummary', 'field_59e59b307dec8'),
(84971, 4631, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-5/january-2/bonuses.html'),
(84972, 4631, '_currentURL', 'field_59d35123ab1e7'),
(84973, 4631, 'lawUpdateArticleWriters_0_lawUpdateArticleWriter', '917'),
(84974, 4631, '_lawUpdateArticleWriters_0_lawUpdateArticleWriter', 'field_59da2ac06b065'),
(84975, 4631, 'lawUpdateArticleWriters_1_lawUpdateArticleWriter', '891'),
(84976, 4631, '_lawUpdateArticleWriters_1_lawUpdateArticleWriter', 'field_59da2ac06b065'),
(84977, 4631, 'lawUpdateArticleWriters', '2'),
(84978, 4631, '_lawUpdateArticleWriters', 'field_59da2a866b064'),
(84979, 4631, '_yoast_wpseo_metadesc', 'Employers often use bonus schemes as incentives to reward and retain valuable employees and this is usually the time of year when employers are reviewing performance and determining whether bonuses will be issued. The criteria on which performance is measured, and against which bonuses are ultimately quantified, vary across companies and market sectors and, although bonus schemes are common, there are no statutory restrictions or guidelines dealing with the payment of bonuses in the UAE.'),
(84980, 4632, 'content', '<p>Three factors are mainly to blame. First, the natural stresses of  family dynamics, sibling rivalry and a failure to educate and inspire  the new generation to become stewards of the family legacy is a factor.  Second, the dilution of ownership naturally occurring as part of the  estate devolution rules often results in the business being run by a  bickering committee of family heirs and not all businesses survive being  governed in this way.&nbsp;<br /><br />Without a properly pre-framed family rule  book, no business can prosper in the face of unresolved family  conflicts, deferred decision making and general bad management. This  pushes the family into going their separate ways by breaking up or  dividing the business thus undermining a once successful economic force.  Family businesses are often better off staying together, their market  strength and staying power stems from this unity. This divide may  ultimately end the business and deprive the coming generations of the  family legacy.&nbsp;<br /><br /><strong>Third,</strong>&nbsp;the main UAE legal  platform, the UAE Commercial Companies Law (&ldquo;CCL&rdquo;) lends no assistance  to generational transition and the preservation of family legacy because  it does not provide any adequate framework for central and strong  stewardship after the fragmentation of holdings through the inheritance  rules. The CCL is not adapted to handle the unique features of family  companies (particularly large ones) and is not flexible enough to deal  with the evolution of the families from one generation to another.&nbsp;<br /><br />Family  businesses are not ordinary companies and it is about time they  received special treatment. Without a legislative recognition for family  companies, family &lsquo;rule books&rsquo; will have no teeth.<br /><br />This article  will highlight some of the main impediments entrenched in the CCL which  hinder the successful implementation of the two main pillars of family  success. Those pillars as usually mandated in a family book are mainly  (i) family corporate governance; and (ii) Keeping the family business  together.&nbsp;<br /><br /><strong>I.&nbsp;Family Corporate Governance:</strong><br /><br />This first part will focus on those impediments in the CCL in relation to implementing a successful family governance program.&nbsp;<br /><br /><strong>Restrictions in Number of Shareholders:</strong><br /><br />Let&rsquo;s  take this example; a family business with a significant number of  potential heirs operates under a limited liability company (&ldquo;LLC&rdquo;).&nbsp;  When transitioning from one generation to another, the large numbers of  potential family heirs become owners, and exceed the fifty partners&rsquo;  limitation imposed by Article 218 of the CCL.&nbsp;<br /><br />The family company  considers its options and switches to a joint stock company to  accommodate its ever-expanding family (where no so such legal limit  exists) only to face other legal road blocks. The joint stock company  requires hands-on procedural governmental involvement and red tape  involving the Ministry of Economy if the company wishes to amend its  Articles of Association to adapt to changes in their structure and  family arrangements. So it is an unsuitable platform for family  companies where flexibility is a welcome feature to its ever expanding  shareholder registry.&nbsp;<br /><br />There is no obvious &ldquo;go-to&rdquo; option in such  a situation. Large family companies should not be faced with hurdles on  the number of shareholders allowed. They should be able to operate  under their choice of corporate legal platform (an LLC is the most  common type found in the UAE) so they can set their own rule book  regardless of the number of family shareholders.<br /><br />Family companies need special exemptions to enable them to operate as LLCs.<br /><br /><strong>The case of the accidental shareholders</strong><br /><br />&ldquo;Accidental&rdquo;  shareholders are best described as those family heirs who become  shareholders by operation of the inheritance rules and not as the result  of any conscious decision. If you take the literal meaning, by no means  is &ldquo;inheritance&rdquo; considered an accident, the business should be well  prepared for the possibility of the heirs becoming potential partners.  Yet, many proprietors by inheritance do not prepare for their role and  most companies fail to plan for their arrival.<br /><br />The term  &ldquo;accidental&rdquo; is more of an analogy for the element of surprise that  comes along with it. Will they act for the best interest of the  business, or will they treat the business as their personal ATM machine  and cast their shareholder votes accordingly?&nbsp;<br /><br />Reform is required  to protect the legacy and prosperity of the business from the business  equivalent of &ldquo;mob rule&rdquo; and the scramble for cash.<br /><br /><strong>I am a partner and have strategic powers!</strong><br /><br />An  outburst like that from an &ldquo;ATM only&rdquo; partner can have a chilling  effect on committed partners (here, our &ldquo;good guys&rdquo;). Even with  management powers delegated largely to the board, there are still some  strategic decisions that fall into the hands of shareholders and that  could be an issue if the &ldquo;ATM only&rdquo; faction has power.<br /><br />Those  decisions, which are mandated by the CCL, cannot be contracted out in  either the company&rsquo;s by-laws or separate shareholder agreements.&nbsp;  Examples of some of those decisions are set forth below:<br /><br /><strong>(i)&nbsp; &nbsp;Powers to dismiss members of the board:</strong>&nbsp;<br /><br />Article 116 of the CCL mandates the General Assembly has the power to dismiss any or all members of the board of directors:&nbsp;<br />Those powers explicitly override any conflicting article in the company&rsquo;s by-laws.<br /><br /><strong>(ii)&nbsp;Powers to amend the by-Laws &amp; crucial decisions:</strong>&nbsp;<br /><br />Article  137 of the CCL mandates the Extraordinary General Assembly with the  powers to amend the company&rsquo;s by-Laws and incorporation contract (all  amendments permissible except for certain restricted events) and  additionally shall have the following powers:<br />-&nbsp;To increase or to reduce the company&rsquo;s capital;<br /><br />-&nbsp;to dissolve the company or&nbsp; amalgamate it with another company;<br />-&nbsp;to sell or otherwise dispose of the project undertaken by the company; and<br />-&nbsp;to extend the duration of the company.<br /><br />The  dangers of the decisions being in the hands of &ldquo;ATM only&rdquo; partners are  obvious. They could disrupt the growth of the business should they  (unrightfully) decide to veto some strategic decisions or fail to  respond in timely manner thus compromising important deals for the  business.&nbsp;<br />The CCL should create different classes of shares with  different voting rights. Not every partner must be warranted voting  rights! For example, the business can implement rules where it grants  the voting rights to certain individuals answering to certain specific  criteria.. This will require major legislation reform but it can be a  useful tool in keeping at bay undesired partners from the decision  making process.<br /><br /><strong>Notes:</strong></p>\r\n<ul>\r\n<li>The reference to the articles above applied to joint stock companies  given that they have the most hurdles and require most reforms.  However, LLC&rsquo;s do not fair any better, they share similar restrictions  (if more flexible) with regards to governance and have a similar effect  on hindering family transition.</li>\r\n<li>Furthermore, we have not addressed the importance of board  management, its selection process and eligibility criteria and how it  should be dealt with under the CCL. These should be addressed in depth  and in a separate article given their significance in proper family  governance.&nbsp;<br />Next we tackle the second pillar of a family success which is keeping the family together.</li>\r\n</ul>\r\n<p><br /><strong>II.&nbsp;Keeping the Family Together</strong><br /><br />Exit  mismanagement is one of the main culprits in family conflicts. This  almost certainly creates imbalance in ownership, triggering a chain of  reaction of resentment, unfairness and ultimately leading to the break  up of the business and the loss of family control.&nbsp;<br />A good exit management (i.e. share exchanges) allows the following:</p>\r\n<ul>\r\n<li>Fair treatment of family members by preserving their exit rights;</li>\r\n<li>Meeting the liquidity needs (to the extent possible) of family shareholders; and</li>\r\n<li>Sustaining the business by protecting against breakup of ownership.</li>\r\n</ul>\r\n<p>So how do we face exit mismanagement and preserve the sustainability of the business?&nbsp;<br /><br />You  cannot rely solely on family ties as an incentive to resolve conflicts.  There needs to be a more tangible and foreign force to which those  family shareholders can rely on to resolve the much hyped conflicts  tagged to unruly exits.&nbsp;<br /><br />What better force than tailored  statutory rules! The current system under the CCL (or the lack of it)  regulating share exchanges does not have a good track record in securing  smooth exits between family members. We emphasize below on the buy  backs and how they are dealt with under the CCL.&nbsp;<br /><br /><strong>Buy backs:</strong>&nbsp;<br /><br />Let&rsquo;s  take the example of a family shareholder who, in need of liquidity,  offers part or all of his shares for sale. Ideally, the business should  have the flexibility and discretion (depending on the terms of family  book) to offer to buy those shares This will help the business control  any off the record dealings between the shareholders (which could result  in some members obtaining a majority control of shares) and fairly meet  (depending on its cash availability) the liquidity needs of a  shareholder. For this process to run smoothly, the business needs enough  flexibility to allow it to dictate (and enforce) in the family book and  its by-laws the exit mechanics from transfer window to payment mode and  the like. This helps the business control the exits and possibly  mitigate potential family conflicts.<br /><br />Now compare this ideal level of flexibility to the current situation under the CCL.<br /><br />Under  the CCL, buy backs are heavily regulated for joint stock companies and  are only allowed in two stipulated circumstances. Article 168 of the CCL  sets forth lengthy and procedural conditions governing buy backs and  requiring the involvement of the competent ministry. Additionally, the  business needs to comply as well with Article 209 of the CCL which  limits the option to reduce capital (i.e. as a result of buy back) only  in two stipulated circumstances (capital exceeding a company&rsquo;s  requirements and the business sustaining a loss which is not recoverable  from future profits).&nbsp;<br />As such, under the CCL, the business will not  be able to implement a selective buy back and hence accommodate an  exiting shareholder outside those two cases.&nbsp;<br /><br />Effective family  management and uniting the family is one of the main facets of  survivability of family businesses. Yet, they are often poorly served by  the CCL. What we need for preserving family businesses and legacy is a  clear legislation reform that recognizes family companies and exempts  them from the many legal hurdles awaiting them upon transition. Families  businesses are a special breed and so should be their legal platforms!</p>'),
(84981, 4632, '_content', 'field_59b649b5c8b2b'),
(84982, 4632, 'lawUpdateArticleMonth', '4618'),
(84983, 4632, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(84984, 4632, 'content_description', 'Did you know that most of the successful businesses in the Gulf are in fact family owned? Did you also know that only a small minority actually survive into the second generation? '),
(84985, 4632, '_content_description', 'field_59b641c07f473'),
(84986, 4632, 'pageSummary', 'Did you know that most of the successful businesses in the Gulf are in fact family owned? Did you also know that only a small minority actually survive into the second generation? '),
(84987, 4632, '_pageSummary', 'field_59e59b307dec8'),
(84988, 4632, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-5/january-2/can-family-companies-survive-the-winds-of-change-a-cry-for-legislative-help.html'),
(84989, 4632, '_currentURL', 'field_59d35123ab1e7'),
(84990, 4632, 'lawUpdateArticleWriters_0_lawUpdateArticleWriter', '878'),
(84991, 4632, '_lawUpdateArticleWriters_0_lawUpdateArticleWriter', 'field_59da2ac06b065'),
(84992, 4632, 'lawUpdateArticleWriters', '1'),
(84993, 4632, '_lawUpdateArticleWriters', 'field_59da2a866b064'),
(84994, 4632, '_yoast_wpseo_metadesc', 'Did you know that most of the successful businesses in the Gulf are in fact family owned? Did you also know that only a small minority actually survive into the second generation?'),
(84995, 4633, 'content', '<p>Consider the shared systems and services in an integrated building  such as this, including, fire systems, lifts, and the exterior. Consider  also the levels of service and corresponding costs that a residential  apartment building may find desirable compared to that required by a  hotel.&nbsp;</p>\r\n<p>Thankfully, many potential compromises will exist in order to balance  these tensions for any development, the exact nature of which forms  much of the focus of a lawyer&rsquo;s craft. Of course individuals may  disagree as to whether a fair compromise has been reached and for this  reason it is important to emphasise (once again) the importance of  developers clearly disclosing to all investors the compromise and  structures chosen for their developments.</p>\r\n<p>Such developments are regulated pursuant to Law No 27 of 2007 on  Ownership of Jointly Owned Properties in the Emirate of Dubai (&ldquo;JOP  Law&rdquo;) and the Directions to Law No 27 of 2007 which are implemented by  RERA (&ldquo;Directions&rdquo;).&nbsp;<br /><br />Such &ldquo;simple&rdquo; schemes of joint ownership  however have come close to being the exception in Dubai and many other  cities in the Gulf where mixed use developments are common. A mixed use  development will usually possess more than one &ldquo;uses&rdquo; for example;  residential apartment, office, hotel and retail uses. The volumetric  area comprising each such &ldquo;use&rdquo; is generally termed a &ldquo;Component&rdquo;.&nbsp;<br /><br />All  mixed use developments present certain challenges in terms of  management. Consider for example the case of a residential and retail  building. Perhaps the residential Component has a swimming pool and gym  as part of its facilities. Should the retail Owner(s) be responsible for  the costs of these facilities? Conversely would the residential Owners  want the retail Owner(s) and potentially their clients using the  swimming pool and gym?<br /><br />Generally speaking retail Owners would  have no interest in such facilities and would not want to pay for the  same. Such issues would therefore need to be resolved through the  constitutional documents (for example the &ldquo;Jointly Owned Property  Declaration&rdquo; as it is termed in Dubai) for the development.&nbsp;<br /><br />The  above however represents a fairly simple situation, where the interests  of the parties are clear. There are however numerous occasions where  more complex issues arise both by virtue of the areas and services in  question and the nature of the building. There is no better example of  this than in the case of mixed use developments incorporating a hotel,  residential and other Components.<br /><br />To illuminate the issues, let  us consider Diagram 1 (below) where area &ldquo;A&rdquo; is a singly owned Hotel  Component and area &ldquo;B&rdquo; is a jointly owned Residential Component. Area  &ldquo;C&rdquo; represents an area shared between the two Components.&nbsp;<br /><br /></p>\r\n<table border=\"0\" align=\"center\">\r\n<tbody>\r\n<tr>\r\n<td><img height=\"257\" src=\"https://admin.newsweaver.com/notessa/repository/169641484993255628/H8/31ork0b9i6d2l2r6c4bw8xa6q1yflhfa9asatfqteulkpzq3j.jpg\" width=\"438\" /></td>\r\n</tr>\r\n</tbody>\r\n</table>\r\n<p>Let us say that area &ldquo;A&rdquo; (the &ldquo;Hotel Component&rdquo;) and Area &ldquo;B&rdquo; (the  &ldquo;Residential Component&rdquo;) are relatively self contained with each  retaining its own entrance lobby and mechanical, electrical and plumbing  infrastructure. Area &ldquo;C&rdquo; in this example comprises a shared leisure  area comprising a swimming pool, gym area and spa area (&ldquo;Facilities&rdquo;).<br /><br />Both Components may have a legitimate interest in the use of the Facilities however the following issues arise:</p>\r\n<ol>\r\n<li>Who should control the management of the Facilities?</li>\r\n<li>To what standard should the Facilities be maintained and operated  to? The standard required of the Residential Component or the standard  required by the Hotel Component?<span>&nbsp;</span></li>\r\n</ol>\r\n<p>The answer from the Owner of the Hotel Component has to be that these  areas must remain in their control as the Hotel Component Owner will  need to be able to promise to its Operator, control over such areas in  order that the Operator can maintain its &ldquo;brand standards&rdquo; and customer  service levels.&nbsp;<br />&nbsp;<br />Let us therefore consider the following management possibilities for Area &ldquo;C&rdquo;:</p>\r\n<ol>\r\n<li>The area becomes a Common Area and an Owners Association be formed having jurisdiction over Area &ldquo;C&rdquo;; on</li>\r\n<li>Ownership over Area &ldquo;C&rdquo; passes to the Owner of Component &ldquo;A&rdquo; (the Hotel Component&rdquo;)</li>\r\n</ol>\r\n<p>Let us consider in more detail each management possibility:<br />&nbsp;<br /><strong>Option 1 &ndash; Area &ldquo;C&rdquo; is Common Area and an Owners Association is formed.</strong><br />&nbsp;<br />Under this option the following needs to be considered:</p>\r\n<ol>\r\n<li>Decisions of an Owners Association are made either by the General Assembly or by the Board.</li>\r\n<li>Decisions of the General Assembly usually relate to constitutional  issues such as rule formation and the appointment of the Board.</li>\r\n<li>Decisions on constitutional matters may depend on the number of votes of the voting &ldquo;entitlement&rdquo; the relative Components have.</li>\r\n<li>Decisions as to who the Board may comprise may depend on the number  of Owners in each Component and also the number of votes or voting  &ldquo;entitlement&rdquo; held.&nbsp;</li>\r\n</ol>\r\n<p>It will be apparent from the above that to leave decisions as to who  manages such areas strictly to the JOP Law and Directions can be  arbitrary and risks an ongoing political struggle for control of such  Facilities.&nbsp;<br />&nbsp;<br /><strong>Option 2 &ndash; Ownership of Area &ldquo;C&rdquo; passes to the Owner of the Hotel Component.</strong><br />&nbsp;<br />Under this option the following needs to be considered:</p>\r\n<ol>\r\n<li>Ownership would entitle the Owner of Component &ldquo;A&rdquo; to exclude all  Owners in the Residential Component &ldquo;B&rdquo; (the Residential Component).</li>\r\n<li>The Owners of Component &ldquo;B&rdquo; would be required to pay for the costs  of the maintenance and repairs and all other services in connection with  the Facilities.</li>\r\n<li>The above factors would mean that transparency as to the costs of  the Facilities may be unlikely, and could lead to a situation where the  Owner of Component &ldquo;A&rdquo; simply names its price for the use of the  Facilities.&nbsp;</li>\r\n</ol>\r\n<p>Option 2 would appear the optimal solution for the Hotel Component  Owner, however in many cases the developments may have been designed  such that such Facilities were intended for the use of both Components.  In other cases the developments may have been sold on the basis of  shared use (to have sold on a &ldquo;user pays&rdquo; basis may have reduced the  sale price of the Residential Units).&nbsp;<br />&nbsp;<br />The astute reader may  well have gathered that either Option 1 or Option 2 may work provided  appropriate mechanisms are put in place to protect the respective  Owners&rsquo; interests. The other important point (though not the focus of  this article) is that any mechanisms need to be disclosed to investors  prior to the sale of Component A or Units in Component B.&nbsp;<br />&nbsp;<br />Let us consider some potential mechanisms for resolving this Hotel/Residential mixed use scenario:<br />&nbsp;<br /><strong>Option 1 &ndash; Area &ldquo;C&rdquo; is Common Area and an Owners Association is formed.</strong><br />&nbsp;<br />Within  the constitutional documentation for the Owners Association the  following needs to be clarified so as to bind the Owners Association, as  well as the Owner of the Hotel Component and Owners in the Residential  Component:</p>\r\n<ol>\r\n<li>The standards of maintenance and repair and provision of the  Facilities needs to be that required by the Owner of the Hotel  Component.</li>\r\n<li>Owners within the Residential Component would need to accept  heightened charges for the Facilities due to the higher standards  required, or at least a cost split agreed up front.</li>\r\n<li>If the Owners in the Residential Component dominated at the General  Assembly or could control the Board then there would need to be a means  of curtailing such rights to ensure 1 and 2 above were achieved.&nbsp;</li>\r\n</ol>\r\n<p><strong>Option 2 &ndash; Ownership of Area &ldquo;C&rdquo; passes to the Owner of the Hotel Component.</strong><br />&nbsp;<br />For  this option to add value to the Owners in the Residential Component  there would need to be an agreement (commonly called a &ldquo;Building  Management Statement&rdquo;) setting out the rights and obligations of the  Owners of the Components in relation to Area &ldquo;C&rdquo;.&nbsp;<br /><br />Typically a Building Management Statement would:</p>\r\n<ol>\r\n<li>Specify that Area &ldquo;C&rdquo; would fall within the Hotel Component;</li>\r\n<li>By a separate plan designate that rights would be granted over Area &ldquo;C&rdquo; to the Owners in the Residential Component;</li>\r\n<li>By the Building Management Statement and usually a schedule  (commonly called a &ldquo;Building Management Schedule&rdquo;) designate the rights  and obligations of the Owners in the Residential Component in relation  to Area &ldquo;C&rdquo; including:<br />&nbsp;<br />a.&nbsp;that the Owner of the Hotel Component would have the right to appoint the contractors;<br />&nbsp;<br />b.&nbsp;by  the Building Management Schedule, setting out the level of costs that  the Owners respectively would have to share in relation to Area &ldquo;C&rdquo;.</li>\r\n</ol>\r\n<p>Neither Option 1 nor Option 2 represents a perfect solution for both  parties.&nbsp; Each requires consideration in order to reach a balance that  is attractive to both parties.&nbsp;<br /><br />Option 1 would require the Owner  of the Hotel Component to become subject to the jurisdiction of an  Owners Association with its associated procedures and mechanisms which  may be considered onerous and more capable of dispute in a situation  where Operators may want clarity, simplicity and control.&nbsp;<br /><br />Option  2 however would lack transparency from the point of view of an Owner in  the Residential Component. In particular, how could the Owners in the  Residential Component be confident that the contracts and costs incurred  by or on behalf of the Owner of the Hotel Component were procured in a  fair and transparent fashion?&nbsp;<br /><br />At this juncture, readers may also  like to consider Diagram 2 where Area &ldquo;A&rdquo; once again is the Hotel  Component, Area &ldquo;B&rdquo; is the Residential Component and Area &ldquo;C&rdquo; represents  the shared car-parking, lobby and foyer areas and pool gym and  recreational areas.&nbsp;</p>\r\n<p><span><br /></span></p>'),
(84996, 4633, '_content', 'field_59b649b5c8b2b'),
(84997, 4633, 'lawUpdateArticleMonth', '4618'),
(84998, 4633, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(84999, 4633, 'content_description', 'Dubai is now familiar with the concept of Jointly Owned Property where developments are sub-divided into “Units”, being the separately owned part of the development (for which the Owner will receive their title), and “Common Areas”, which are to be owned by all Owners in undivided shares and managed by the “Owners Association”. '),
(85000, 4633, '_content_description', 'field_59b641c07f473'),
(85001, 4633, 'pageSummary', 'Dubai is now familiar with the concept of Jointly Owned Property where developments are sub-divided into “Units”, being the separately owned part of the development (for which the Owner will receive their title), and “Common Areas”, which are to be owned by all Owners in undivided shares and managed by the “Owners Association”. '),
(85002, 4633, '_pageSummary', 'field_59e59b307dec8'),
(85003, 4633, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-5/january-2/mixed-use-developments-incorporating-hotel-and-residential-features.html'),
(85004, 4633, '_currentURL', 'field_59d35123ab1e7'),
(85005, 4633, 'lawUpdateArticleWriters_0_lawUpdateArticleWriter', '860'),
(85006, 4633, '_lawUpdateArticleWriters_0_lawUpdateArticleWriter', 'field_59da2ac06b065'),
(85007, 4633, 'lawUpdateArticleWriters', '1'),
(85008, 4633, '_lawUpdateArticleWriters', 'field_59da2a866b064'),
(85009, 4633, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Katrine Kofoed'),
(85010, 4633, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(85011, 4633, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'k.kofoed@tamimi.com'),
(85012, 4633, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'field_59e59afcd15de'),
(85013, 4633, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', ''),
(85014, 4633, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', 'field_59e59b05d15df'),
(85015, 4633, 'lawUpdateArticleNoWriters', '1'),
(85016, 4633, '_lawUpdateArticleNoWriters', 'field_59e59aaed15dc'),
(85017, 4633, '_yoast_wpseo_metadesc', 'Dubai is now familiar with the concept of Jointly Owned Property where developments are sub-divided into “Units”, being the separately owned part of the development (for which the Owner will receive their title), and “Common Areas”, which are to be owned by all Owners in undivided shares and managed by the “Owners Association”.'),
(85018, 4634, 'content', '<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;</p>\r\n<p>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;</p>\r\n<p>Law No. (4) introduces changes for renewal of leases upon their  expiry and 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;</p>\r\n<p>The deadline for full implementation set by Law No. (4) was  originally set for 9 November 2010, however the deadline has  subsequently been extended three times.&nbsp; The resolution issued on 13  November 2012 now states that the law will not be fully implemented  until 9 November 2013.&nbsp; We currently await publication of this  resolution in the Official Gazette.</p>'),
(85019, 4634, '_content', 'field_59b649b5c8b2b'),
(85020, 4634, 'lawUpdateArticleMonth', '4618'),
(85021, 4634, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(85022, 4634, 'content_description', 'Abu Dhabi Law No. (20) of 2006 (the “Landlord and Tenant Law”), as amended by Laws No. (6) of 2009 and No. (4) of 2010 (“Law No. (4)”) and Executive Council Resolutions No. (56) of 2010, No. (25) of 2011 (“Resolution No. (25)”) and another resolution (as yet unpublished) made on 13 November 2012, regulates most landlord and tenant relationships in the Emirate of Abu Dhabi.'),
(85023, 4634, '_content_description', 'field_59b641c07f473'),
(85024, 4634, 'pageSummary', 'Abu Dhabi Law No. (20) of 2006 (the “Landlord and Tenant Law”), as amended by Laws No. (6) of 2009 and No. (4) of 2010 (“Law No. (4)”) and Executive Council Resolutions No. (56) of 2010, No. (25) of 2011 (“Resolution No. (25)”) and another resolution (as yet unpublished) made on 13 November 2012, regulates most landlord and tenant relationships in the Emirate of Abu Dhabi.'),
(85025, 4634, '_pageSummary', 'field_59e59b307dec8'),
(85026, 4634, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-5/january-2/abu-dhabi-rent-controls-and-lease-renewals.html'),
(85027, 4634, '_currentURL', 'field_59d35123ab1e7'),
(85028, 4634, 'lawUpdateArticleWriters_0_lawUpdateArticleWriter', '523'),
(85029, 4634, '_lawUpdateArticleWriters_0_lawUpdateArticleWriter', 'field_59da2ac06b065'),
(85030, 4634, 'lawUpdateArticleWriters', '1'),
(85031, 4634, '_lawUpdateArticleWriters', 'field_59da2a866b064'),
(85032, 4634, '_yoast_wpseo_metadesc', 'Abu Dhabi Law No. (20) of 2006 (the “Landlord and Tenant Law”), as amended by Laws No. (6) of 2009 and No. (4) of 2010 (“Law No. (4)”) and Executive Council Resolutions No. (56) of 2010, No. (25) of 2011 (“Resolution No. (25)”) and another resolution (as yet unpublished) made on 13 November 2012, regulates most landlord and tenant relationships in the Emirate of Abu Dhabi.');
INSERT INTO `tm_postmeta` (`meta_id`, `post_id`, `meta_key`, `meta_value`) VALUES
(85033, 4635, 'content', '<p>We shed some light on some of said issues, particularly, (i) the  event of not signing part of the agreement; (ii) not calling upon the  arbitration clause before the national courts and (iii) the absence of a  special delegation to the signatory of an arbitration agreement, as  follows:</p>\r\n<p><strong>I. Not signing part of the Agreement where the arbitral clause is embedded</strong>:</p>\r\n<p>In a recent case handled by Al Tamimi &amp; Company in Abu Dhabi, the  Claimant filed a case against the Defendant before the Abu Dhabi Courts  disputing some issues in the agreement they previously concluded and  requesting the appointment of an expert to evidence the Defendant&rsquo;s  alleged defaults.&nbsp;</p>\r\n<p>The disputed agreement was a set of documents divided into two parts attached to each other, namely, part 1 and part 2.</p>\r\n<p>a) Part 1 was four pages signed by both parties containing the very  basic details of the contracting parties and a summary of their  obligations.&nbsp;</p>\r\n<p>This part had an explicit clause referring to Part 2, deeming it as  an integral part forming the whole agreement and further states that the  Claimant has received, read and agreed to comply with its terms.&nbsp;</p>\r\n<p>b) Part 2 was the full extensive part of the agreement, detailing the  obligations of each party, the triggers for default, and an arbitration  clause clearly stating that any dispute shall be resolved by  arbitration.&nbsp;</p>\r\n<p>Since Part 1 (signed by both parties) referred to Part 2 and the  parties knew that the agreement could not be executed without Part 2,  the parties saw no need to sign Part 2.</p>\r\n<p>At the first hearing before the Abu Dhabi Court of First Instance,  the Defendant brought the arbitration clause to the court&rsquo;s attention.  Nevertheless, the Court of First Instance rejected such plea and instead  issued a preliminary judgment to appoint an expert as requested by the  Claimant.&nbsp;</p>\r\n<p>The Court&rsquo;s rationale was that the Court deemed the above Parts (1  and 2), as two separate agreements. The Court further explained that  only Part 1 was signed by the parties showing their consent to its  content, on the contrary to Part 2 which was not signed. The Court  neglected Part 2 (or the &ldquo;second agreement&rdquo; as per its interpretation)  and thus the arbitration clause was not binding.&nbsp;</p>\r\n<p>The Defendant appealed the preliminary judgment for misapplication of the law and misinterpreting the facts of the dispute.&nbsp;</p>\r\n<p>The Appellant relied on the fact that an agreement to arbitration was  made through the reference made in Part 1 to the content of Part 2 i.e.  the arbitration clause.&nbsp;</p>\r\n<p><strong>The Court of Appeal upheld the judgment issued by the Court of First Instance for the same reason.&nbsp;</strong></p>\r\n<p>Originally and as a general rule, we note that the national courts  retains jurisdiction for disputes arising from contractual agreements.  However, paragraph 1 of article 203 of the Civil Procedure Code No. 11  of 1992 as amended (the &ldquo;CPC&rdquo;) provides an exception to the above rule.  Said paragraph states that:</p>\r\n<p>1. <em>&ldquo; It shall be permissible for contracting parties generally to  stipulate in the original contract or in a subsequent agreement to  refer any dispute between them concerning the implementation of a  specified contract to one or more arbitrators and it shall likewise be  permissible to agree by special conditions to arbitration in a  particular dispute.&rdquo;</em></p>\r\n<p>Although such exception is regulated by law, certain conditions must  be satisfied for it to be deemed as a valid agreement. We note that  paragraph 2 of the above article states that:</p>\r\n<p>2. <em>&ldquo;An arbitration agreement may be proved only by writing.&rdquo;</em></p>\r\n<p>It is thus essential to have the agreement to arbitrate made in  writing, which is the case for most standard commercial agreements. It  is the act of &ldquo;signing the said agreement&rdquo; that remains a question to be  addressed. Is signature mandatory or would the evidence showing that it  was agreeable by the parties - even if it was not initialed and signed &ndash;  suffice? In the above example, the implied doctrine is that it should  be signed, otherwise it will not be deemed&nbsp; binding and will be  overlooked.</p>\r\n<p>In conclusion and to avoid any unforeseen alteration to a planned  method of resolving potential disputes, it is recommended that the  contracting parties sign and initial every page of the agreement.</p>\r\n<p><strong>II. Call upon Arbitration at the first hearing before the National Court:</strong></p>\r\n<p>We often encounter situations where our clients instruct us on a very  short notice to represent them in a dispute before the national court  whose hearing is scheduled the next day. The first question we ask the  client is whether there is an arbitration agreement between the two  parties.&nbsp;</p>\r\n<p>Unless you wish to give the courts jurisdiction to hear a case,  raising the issue of arbitration before the national court is very  important.&nbsp; If not raised at the first hearing, the court will assume  that the parties have waived their rights to refer the matter to  arbitration and submit to the jurisdiction of the court.&nbsp;</p>\r\n<p>Paragraph 5 of Article 203 of the CPC provides that:</p>\r\n<p><em>&ldquo;If the parties agree to arbitrate the dispute it shall not be  permissible to bring an action in respect thereof before the courts but  nevertheless if one of the parties does have recourse to litigation  without regard to the arbitration clause and the other party does not  object at the first hearing the action must be tried and the arbitration  clause shall be deemed to be cancelled.&rdquo;</em></p>\r\n<p>The timing you should call upon the arbitration clause is a key  factor to have the claim rejected by the national court. The principle  established in the Abu Dhabi judiciary is that any objection to  jurisdiction on the basis of having an agreement to resolve the dispute  through arbitration should be raised at the first hearing. The first  hearing in such context means the very first one where your lawyer  attends before the court, even if the purpose of such attendance is to  submit the power of attorney and requests an extension to review the  case file and submit the statement of defence.&nbsp;</p>\r\n<p>As a result,, remaining silent and not contesting jurisdiction for  having an arbitration clause is deemed a waiver of the previous  agreement to arbitration. The arbitral clause will become ineffective  and the national court retains jurisdiction to review the dispute.</p>\r\n<p>In this regard the Cassation Court ruled in the Cassation No. 141 of  2007 &ndash; Session of 22/11/2007 (Commercial) that the party adhering to the  arbitration clause must take a positive action to object in the first  hearing on the filing of the claim made before the national court by his  opponent.&nbsp;</p>\r\n<p>Consequently, it is essential that the above objection occur at the  first hearing or else the case will be reviewed by the national court  and the arbitration agreement will be cancelled.&nbsp;</p>\r\n<p><strong>III. Absence of a special delegation to the signatory of the Arbitration Agreement:</strong></p>\r\n<p>We always bring to the attention of our clients that the signatories  to an arbitration agreement should have explicit authority allowing them  to arbitrate. Article 203(4) of the CPC states that: &ldquo;It shall not be  permissible to arbitrate in matters which conciliation is not  permissible. An agreement to arbitrate shall not be valid unless made by  persons having the legal capacity to make a disposition over the right  the subject matter of the dispute.&rdquo;</p>\r\n<p>In application of the above article, the Dubai Cassation Court ruled  &ldquo;In accordance with article 203 (4) of the Civil Procedures Law &ndash; that  it is not permissible to agree on resorting to arbitration without  having the capacity to make a disposition over the right of the subject  matter, and not the legal capacity to resort to court. Agreeing to  arbitration means waiving the right to file the claim before the  national courts, which requires a special power of attorney. A  delegation from the principals to the agent to conclude some actions and  dealings will not do.&rdquo; Cassation No. 577/2003 &ndash; Hearing of 12/6/2004</p>\r\n<p>Furthermore, article 58(2) of the CPC stipulates that: &ldquo;No admission  or waiver of a right alleged or settlement or submission to arbitration  or acceptance of or requisition for the oath or refusal thereof or  abandonment of the proceedings or waiver of the judgment in whole or in  part&hellip;.. without special authority&rdquo;.&nbsp;</p>\r\n<p>The above articles of the CPC denote that no rights shall be  submitted to arbitration without a special authority (power of attorney)  to authorize such submission.</p>\r\n<p>In many events we find that the signatories of an agreement having an  arbitration clause do not have a special authority evidenced in their  delegation/power of attorney authorizing them to sign arbitration  agreements in compliance with articles 203(4) and 58(2) of the CPC noted  above.&nbsp;</p>\r\n<p>In light of the above, the arbitration clause could be declared null  and void and resorting to arbitration may not be possible, making the  national courts competent to review the dispute, or even allowing for a  situation where any arbitral award rendered based on said clause could  be annulled by the national courts while ratifying it as per article 216  (b) of the CPC. Article 216 allows the parties to request nullification  from the Court (that looks into the ratification of the arbitration  award) of the arbitration award in the following circumstances, one of  which is having an agreement to arbitrate made by a person lacking the  capacity to arbitrate as outlined above.</p>'),
(85034, 4635, '_content', 'field_59b649b5c8b2b'),
(85035, 4635, 'lawUpdateArticleMonth', '4618'),
(85036, 4635, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(85037, 4635, 'content_description', 'This article addresses situations where there is an arbitration agreement but the dispute is reviewed by the national courts instead of being referred to arbitration or the arbitration clause is contested. Minor issues could cause an unwanted outcome contrary to what the parties agreed to initially. '),
(85038, 4635, '_content_description', 'field_59b641c07f473'),
(85039, 4635, 'pageSummary', 'This article addresses situations where there is an arbitration agreement but the dispute is reviewed by the national courts instead of being referred to arbitration or the arbitration clause is contested. Minor issues could cause an unwanted outcome contrary to what the parties agreed to initially. '),
(85040, 4635, '_pageSummary', 'field_59e59b307dec8'),
(85041, 4635, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-5/january-2/so-you-think-you-can-arbitrate-1.html'),
(85042, 4635, '_currentURL', 'field_59d35123ab1e7'),
(85043, 4635, 'lawUpdateArticleWriters_0_lawUpdateArticleWriter', '556'),
(85044, 4635, '_lawUpdateArticleWriters_0_lawUpdateArticleWriter', 'field_59da2ac06b065'),
(85045, 4635, 'lawUpdateArticleWriters', '1'),
(85046, 4635, '_lawUpdateArticleWriters', 'field_59da2a866b064'),
(85047, 4635, 'lawUpdateArticlePractices_0_lawUpdateArticlePractice', '410'),
(85048, 4635, '_lawUpdateArticlePractices_0_lawUpdateArticlePractice', 'field_59dc79c8e10ce'),
(85049, 4635, 'lawUpdateArticlePractices', '1'),
(85050, 4635, '_lawUpdateArticlePractices', 'field_59dc7918de021'),
(85051, 4635, '_yoast_wpseo_metadesc', 'This article addresses situations where there is an arbitration agreement but the dispute is reviewed by the national courts instead of being referred to arbitration or the arbitration clause is contested. Minor issues could cause an unwanted outcome contrary to what the parties agreed to initially.'),
(85052, 4636, 'content', '<p><span>However, The Dubai Court of Cassation in its rulings  established an exception to this general rule laid by law. The court in  the following judgment rendered its decision extending the liability of  the partners in a limited liability company to reach their personal  assets provided the satisfaction of certain extraordinary specific  circumstances as we will see.&nbsp;</span></p>\r\n<p><strong>Summary of Facts:</strong>&nbsp;</p>\r\n<ul>\r\n<li>The Claimant (a creditor of a limited liability company) obtained a  court judgment (First Action) against its debtor (the limited liability  company, referred to as &ldquo;the LLC&rdquo;) obligating the latter to pay the sum  of AED 781,619.07 with interest.&nbsp;</li>\r\n<li>The Claimant, upon failing execution of the First Action, sought  recourse against the shareholders of its debtor ,the LLC, by filing  another commercial action against the Respondents (shareholders of the  LLC).&nbsp;</li>\r\n<li>The Claimant requested in its second action engaging the liability  of the Respondents in their personal assets to pay the sum of the debt.&nbsp;</li>\r\n<li>The Claimant also stated that the Respondents as shareholders in the  LLC are liable to pay the awarded amount each to the extent of his  share in the capital. Furthermore, according to the UAE Commercial  Companies Law the &ldquo;Law&rdquo; the Second Respondent being the Manager of the  LLC is liable to the full extent of his personal assets for the  company&rsquo;s liabilities and for claims for indemnity. Additionally the  Respondents are personally liable for their fault to comply with  Articles 238 and 255 of the said law.&nbsp;</li>\r\n</ul>\r\n<p><strong>Procedural History:</strong></p>\r\n<ul>\r\n<li>The Court of First Instance dismissed the case.</li>\r\n<li>The Claimant appealed before the Court of Appeals which overturned  the appealed judgment on the grounds of pre-adjudication in the same  subject matter.</li>\r\n<li>The Claimant, therefore, appealed to the Dubai Court of Cassation  which in turn overturned the Appeals Court&rsquo;s decision, and referred the  case back to the Appeal Court to adjudicate the case. The Cassation  Court held that the lower court erred in its application of the law when  it considered the matter pre adjudicated against the Respondents  although there is no unity in the parties or the causation of the  dispute.&nbsp;</li>\r\n<li>The referral court after referring the case to the Dispute  Resolution and Expertise Department of the Ruler&rsquo;s Court rendered its  judgment obligating the Respondents to pay to the Claimant the sum of  AED 781,619.07 jointly and severally each to the extent of his  share/shares in the capital.&nbsp;</li>\r\n<li>The Respondents appealed to the Court of Cassation requesting overturning the judgment.&nbsp;</li>\r\n</ul>\r\n<p><strong>The Court of Cassation</strong></p>\r\n<p><span>The Respondents in their challenging the Court of Appeals judgment raised two arguments</span></p>\r\n<p><span>&nbsp;</span><span>1. The Respondents argued that the lower court  erred in obligating the Respondents to pay the sum awarded in the first  action. On the grounds that the lower court contradicted the principal  of res judicata (courts may not re-adjudicate matters which have been  previously judicially finalized). In this sense the Appeals Court  allowed the Claimant to obtain a court order with the payment of the sum  awarded twice from the same transaction.&nbsp;</span></p>\r\n<p><span>Responding to this argument the court held that it was  groundless. It is an established judicial principle, that if there are  several sources of an obligation, meaning if one person&rsquo;s liability is  derived from the contract and another person&rsquo;s liability is derived from  the harmful act, while both liabilities are tied to the same matter,  each of these persons will be held liable against the injured party for  full compensation.&nbsp;</span></p>\r\n<p><span>In this case, the Claimant did not receive satisfaction of the  debt from the LLC as an entity, therefore, the Claimant sought recourse  against its shareholders personally (the Respondents). However, the  Claimant will not obtain compensation twice. The Claimant&rsquo;s right is  limited to receiving satisfaction of the sum just once. If he receives  the awarded sum from either the LLC as an entity or from one of the  Respondents, then the other is discharged. The Claimant will then have  no right of recourse or enforcement against any of the obligors (being  the LLC or the Respondents).&nbsp;</span></p>\r\n<p><span>Since there was no proof furnished that the Claimant obtained  the awarded amount, he has the right for recourse against the  Respondents for their harmful act.&nbsp;</span></p>\r\n<p>2. The Respondents further argued that the Court of Appeals erred in  establishing that the Respondents intentionally committed an aggravated  harm to the Claimant.&nbsp; The appealed judgment did not demonstrate the  harmful act or the Respondents&rsquo; role in harming their company&rsquo;s creditor  (the Claimant).</p>\r\n<p><span>&nbsp;</span><span>The Cassation Court held that this argument was groundless. The court established its reasoning on three bases:</span>&nbsp;</p>\r\n<p><span>1. The effect of the provisions of the UAE Commercial Companies Law in relation to limited liability companies provides:</span></p>\r\n<ul>\r\n<li>The share holders who are not also directors shall have the right to  inspect the operations of the company, to examine its books and  documents in addition to providing advice and guidance to the manager.&nbsp;</li>\r\n<li>The company shall have a general assembly consisting of all of the  shareholders, which shall meet at least once a year during the four  months following the end of the financial year.&nbsp;</li>\r\n<li>The agenda of such meeting must include hearing the manager&rsquo;s report  concerning the activities and the financial status of the company  during the year, the auditor&rsquo;s report, and a discussion of the balance  sheet and profit and loss account in addition to ratifying them.&nbsp;</li>\r\n<li>Any of the shareholders, whether in person or by his agent, has the  right to examine minutes of the general assembly meeting and resolutions  and he shall also have the right to examine the balance sheet , profit  and loss account and the annual report.&nbsp;</li>\r\n<li>The company must have an auditor of accounts elected by the general  assembly to audit accounts of the company and to observe whether the law  and the constitutive documentation of the company have been observed,  he must submit his report stating the result of the examination to the  general assembly.&nbsp;</li>\r\n<li>The company must set aside 10% of its net profits to form the  statutory reserve, and the shareholders may decide to stop setting aside  such monies if the reserve reaches one-half of the capital.&nbsp;</li>\r\n<li>The Court construed from the above that shareholders of a limited  liability company are required by the law to be aware and informed of  its profit and loss accounts.</li>\r\n</ul>\r\n<p><span>2. The general rule set forth in Article 218 of the CCL  provides that a shareholder in a limited liability company is  responsible only to the extent of his share/shares in the capital of the  company. The exception to this general rule, as the Court reasoned, is  that such shareholder will be held personally liable, if he exploited  the principle of the independent liability of the company, as means to  conceal his fraudulent acts or misappropriation of the funds of the  company in order to cause harm his partners or creditors. In such case,  the protection bestowed by law for shareholder in a limited liability  company will not apply. He will be held liable in his personal capacity  for such dispositions in a way that such liability will extent to his  personal assets.</span></p>\r\n<p><span>3. It is also construed from provisions of the CCL that the  manager of a limited liability company is liable towards the company,  the shareholders and third parties for indemnifying loss arising out of  his default and neglect in management, all acts of fraud and abuse of  power and any breach of the law or the company&rsquo;s constitutive  documents.&nbsp;</span></p>\r\n<p><span>The court further held that, the appointed expert&rsquo;s report  established the LLC&rsquo;s budget exhibited that its most valuable asset was  its reserve which value reached AED 6 million. The expert stated that  there are no traces of such reserve while the company&rsquo;s debt reached AED  1 million.&nbsp;</span></p>\r\n<p><span>The expert report in its conclusion revealed the intentional  vast committed by the manager and the shareholders (the Respondents).  Their fraudulent acts are exhibited in concealing the company&rsquo;s assets  which represented the company&rsquo;s general guarantee to its debts.&nbsp;</span></p>\r\n<p><span>The Court therefore established that the Respondents by  misappropriating the funds of the LLC by their faults intended to cause  damage it its creditors. The Court therefore held the Respondents  personally liable for the awarded sum and dismissed the challenge.&nbsp;</span></p>\r\n<p><strong>Practice Note:</strong>&nbsp;</p>\r\n<p><span>We understand from the above judgment that the exception to the  limitation of the liability of limited liability companies&rsquo;  shareholders to the extent of their shares is crucial to safeguard the  company&rsquo;s creditors. In some instances, shareholders in limited  liability companies opted to abuse the protection bestowed by law to  defraud the company&rsquo;s creditors. By engaging their personal liability,  this exception imposes a condition upon the shareholders and directors  of the limited liability company to maintain its assets as a general  guarantee to the creditors of the company. Such court practice helps  restore customers and investors credibility in conducting transactions  with limited liability companies.&nbsp;</span></p>\r\n<p><span>&nbsp;</span></p>'),
(85053, 4636, '_content', 'field_59b649b5c8b2b'),
(85054, 4636, 'lawUpdateArticleMonth', '4618'),
(85055, 4636, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(85056, 4636, 'content_description', 'A Limited Liability Company as defined by Article 218 of the UAE Commercial Companies Law is a company in which the liability of its partner is limited only to the extent of their shares in the capital.'),
(85057, 4636, '_content_description', 'field_59b641c07f473'),
(85058, 4636, 'pageSummary', 'A Limited Liability Company as defined by Article 218 of the UAE Commercial Companies Law is a company in which the liability of its partner is limited only to the extent of their shares in the capital.'),
(85059, 4636, '_pageSummary', 'field_59e59b307dec8'),
(85060, 4636, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-5/january-2/dubai-liability-of-shareholders-in-a-limited-liability-company.html'),
(85061, 4636, '_currentURL', 'field_59d35123ab1e7'),
(85062, 4636, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Al Misbah Sabiel'),
(85063, 4636, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(85064, 4636, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'a.sabiel@tamimi.com'),
(85065, 4636, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'field_59e59afcd15de'),
(85066, 4636, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', ''),
(85067, 4636, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', 'field_59e59b05d15df'),
(85068, 4636, 'lawUpdateArticleNoWriters_1_lawUpdateAuthorName', 'Marwa El Mahdy'),
(85069, 4636, '_lawUpdateArticleNoWriters_1_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(85070, 4636, 'lawUpdateArticleNoWriters_1_lawUpdateAuthorEmail', 'm.elmahdy@tamimi.com'),
(85071, 4636, '_lawUpdateArticleNoWriters_1_lawUpdateAuthorEmail', 'field_59e59afcd15de'),
(85072, 4636, 'lawUpdateArticleNoWriters_1_lawUpdateAuthorLocation', ''),
(85073, 4636, '_lawUpdateArticleNoWriters_1_lawUpdateAuthorLocation', 'field_59e59b05d15df'),
(85074, 4636, 'lawUpdateArticleNoWriters', '2'),
(85075, 4636, '_lawUpdateArticleNoWriters', 'field_59e59aaed15dc'),
(85076, 4636, 'lawUpdateArticlePractices_0_lawUpdateArticlePractice', '410'),
(85077, 4636, '_lawUpdateArticlePractices_0_lawUpdateArticlePractice', 'field_59dc79c8e10ce'),
(85078, 4636, 'lawUpdateArticlePractices', '1'),
(85079, 4636, '_lawUpdateArticlePractices', 'field_59dc7918de021'),
(85080, 4636, '_yoast_wpseo_metadesc', 'A Limited Liability Company as defined by Article 218 of the UAE Commercial Companies Law is a company in which the liability of its partner is limited only to the extent of their shares in the capital.'),
(85081, 4637, 'content', '<p>When it comes to setting the rules and principles of jurisdiction,  each country holds the absolute discretion in determining the cases over  which its courts shall have jurisdiction when it comes to both national  conflicts and conflicts concerning international parties. Additionally,  we usually find that the national legislator makes use of a few rules  concerning domestic jurisdiction as basis for convening international  jurisdiction in cases of similar nature. This includes, as an example,  the jurisdiction of the plaintiff&rsquo;s habitat or residency. However, it is  important to note that the organization and structuring of  International Jurisdiction is also subject to other rules concerning the  sovereignty of the state, the need for international dealings and the  power of enforcement. Additionally, it is important to note that in most  cases, international legislation contain common general principles when  it comes to the rules regarding jurisdiction. These include the  plaintiff&rsquo;s nationality, domicile, financial location, source or  execution of obligation place, voluntary submission, the correlation and  preliminary issues (the &ldquo;General Principles&rdquo;).</p>\r\n<p>Going back to the Iraqi Law, we find that the laws explicitly tackle  the issue of International Jurisdiction in certain legislation. This is  as conflicts of international character are subject to the provision of  the private laws when it comes to civil, commercial and personal status  issues. Moreover, these issues are mainly tackled in the provisions of  the Civil Code No.40 of 1951 (the &ldquo;Code&rdquo;) as well as the Personal Status  Law for Foreigners No 78 of 1931 (the &ldquo;Law&rdquo;).&nbsp;</p>\r\n<p>This is so as Article 14 of the Code provides that &ldquo;The Iraqi is  prosecuted before the Courts of Iraq for any obligations bestowed upon  him, even if it was concluded outside Iraq&rdquo;. Furthermore, Article 15  states &ldquo;the foreigner is prosecuted before Iraqi Courts in the following  conditions:&nbsp;</p>\r\n<ol>\r\n<li>If he was found in Iraq.</li>\r\n<li>If the prosecution was revolving around a right concerning a real  estate in Iraq or a moveable object in Iraq at the time of the bringing  of claim.&nbsp;</li>\r\n<li>If the litigation was about a contract concluded or enforceable in  Iraq or if the litigation was about an incident that occurred in Iraq.</li>\r\n</ol>\r\n<p>Additionally, Article 2 of the Law provides that:</p>\r\n<ol>\r\n<li>The Civil Courts look into the personal status claims for Foreigners.</li>\r\n<li>Sharia&rsquo;a Courts are competent to look into personal status issues  for Muslim Foreigners only when the applicable law in accordance with  item 1 above is a civil law rather are the jurisprudence and sharia&rsquo;a  provisions.</li>\r\n</ol>\r\n<p>Therefore, and according to the aforementioned provisions we can sum  up the rules of the international jurisdiction of Iraqi Courts to be:&nbsp;</p>\r\n<ol>\r\n<li>The jurisdiction based on Iraqi citizenship of the plaintiff.</li>\r\n<li>The jurisdiction based on the existence of money in Iraq.</li>\r\n<li>The jurisdiction based on the occurrence and the execution of obligation in Iraq.</li>\r\n<li>The jurisdiction based on voluntary submission, notwithstanding the  fact that this principle was not explicitly set by the Iraqi Legislator,  but it can be drawn from the concept of breach for article No. 7 of the  Law of Execution of Foreign Awards No 30 for 1928 (&ldquo;Foreign Awards  Law&rdquo;) that states the jurisdiction of the Foreign Court. As subsection  (E) provides that &ldquo;the sentenced was present at the proceedings upon his  own choice&rdquo; and subsection (Y) provides that &ldquo;the sentenced has agreed  on the jurisdiction of the Foreign court in his lawsuit&rdquo;&nbsp;</li>\r\n<li>5The jurisdiction of the preliminary issues and the reciprocal case  and the related case. As the jurisdiction for Iraqi Courts in previously  noted issues is in accordance to general rules, outlined in the Law of  Civil Procedures.&nbsp;</li>\r\n<li>The jurisdiction of issues regarding precautionary and temporary measures.</li>\r\n<li><span>Noting that the Iraqi  legislator did not provide rules on the jurisdiction of precautionary  and temporary international jurisdiction of Iraqi Courts, unlike other  countries&rsquo; laws such as the Egyptian Civil Procedures Law in article 3.&nbsp;</span></li>\r\n</ol>\r\n<p>However, Iraqi Courts hold this jurisdiction even if it was not  competent to rule in the original case, since the precautionary or  temporary measure might be in preparation for a case to be held in Iraq.  This jurisdiction is deemed an application of the general principles  listed in the Law of Civil Procedures. As their procedures correlate  with civil security. This includes the principle of precautionary  seizure stipulated in Articles (231-250) from the Law of Civil  Procedures.&nbsp;</p>\r\n<p>Exceptions to the General Principles are as follows:</p>\r\n<p>1.&nbsp;<span>The jurisdiction for lawsuits regarding real estate outside Iraq.&nbsp;</span></p>\r\n<p>There is an absolute jurisdiction for Iraqi courts in this matter. As  one can understand from the wording of Article 15 of the Civil code,  which grants jurisdiction to Iraqi courts in matters regarding real  estate in Iraq, that Iraqi courts correspondingly do not have any  jurisdiction in matters regarding a real estate outside Iraq. As in this  matter, the jurisdiction is given solely to the court of the country  where the real estate stands. This was explicitly listed in subsection  (a) of Article 7 of the Foreign Execution Law, which declared that the  foreign court in the area where the immovable property is has the  jurisdiction to rule.</p>\r\n<p>2. The jurisdiction for lawsuits pursuant to bankruptcy.</p>\r\n<p>This jurisdiction was stipulated explicitly in section five of the  Commerce Code No 9 of 1970, which elaborates on bankruptcy and still is  applicable despite the fact that the above mentioned law has been  cancelled. As Articles (573 -574) from Section 5 deals with  international jurisdiction for Iraqi courts in cases of bankruptcy and  any other related cases. The bankruptcy lawsuits are filed in the  domicile or place of business for the merchant. Equally, the main store  or the place of residence for the merchant are considered his domicile  if he passes away or retires from the profession.&nbsp;</p>\r\n<p>Additionally, and if the merchant carries out a part of his business  in a store in Iraq, or in a branch in Iraq or if the merchant was a  juristic person that owns a branch or an agency in Iraq, the bankruptcy  will be solely on the said branch or agency in the Iraqi territories,  unless there existed an international agreement that states otherwise.</p>\r\n<p>3. The Jurisdiction of Company&rsquo;s Lawsuits.&nbsp;</p>\r\n<p>Article 9 of the Law defined the International Jurisdiction of  the Iraqi Courts in claims regarding the management of any deceased  foreigners&rsquo; inheritance.&nbsp;</p>\r\n<p>4. The Jurisdiction granted by virtue of an enforced treaty in Iraq. &nbsp;</p>\r\n<p>If an enforced treaty exists and Iraq is a signatory, then the  articles of this treaty shall place constraints on the general  principles of jurisdiction as the provisions of the agreement shall be  deemed binding and should be followed, as it is considered a special  provision, and special provisions prevail over general provisions. For  example, Article 28 of The Warsaw Agreement on the Unification of some  provisions on the Responsibility of air carriers for 1929, where Iraq is  a signatory party. And the Riyadh Arab Agreement for Judicial  Cooperation for 1983 in Articles 26 and 27 state that the jurisdiction  shall be in the state&rsquo;s courts where the defendant resides.</p>\r\n<p>To conclude, the Iraqi legislator has determined the international  jurisdiction of Iraqi courts in certain provisions of the Iraqi laws.  These articles include Articles 14 and 15 of the Code in addition to  Article 2 of the Law. Furthermore, it is important to note that there  exists an international jurisdiction the Judge can derive from the  concept of breach; like the jurisdiction based on voluntary submission  as it was explained above. Or the jurisdiction based on general  principles included in the Law of Civil Procedures like the jurisdiction  of issues regarding precautionary and temporary measures. And as  explained above, there are exceptions to the general principles, for  example: the jurisdiction for lawsuits pursuant to bankruptcy or the  jurisdiction stipulated in international treaties.&nbsp;</p>'),
(85082, 4637, '_content', 'field_59b649b5c8b2b'),
(85083, 4637, 'lawUpdateArticleMonth', '4618'),
(85084, 4637, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(85085, 4637, 'content_description', 'On the onset, it is important to understand that jurisdiction is defined by local legislation to be “the set of rules that determine the competence of a state’s jurisdiction to look into cases inclusive to an international element. '),
(85086, 4637, '_content_description', 'field_59b641c07f473'),
(85087, 4637, 'pageSummary', 'On the onset, it is important to understand that jurisdiction is defined by local legislation to be “the set of rules that determine the competence of a state’s jurisdiction to look into cases inclusive to an international element. '),
(85088, 4637, '_pageSummary', 'field_59e59b307dec8'),
(85089, 4637, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-5/january-2/the-international-jurisdiction-of-the-iraqi-courts.html'),
(85090, 4637, '_currentURL', 'field_59d35123ab1e7'),
(85091, 4637, 'lawUpdateArticleWriters_0_lawUpdateArticleWriter', '617'),
(85092, 4637, '_lawUpdateArticleWriters_0_lawUpdateArticleWriter', 'field_59da2ac06b065'),
(85093, 4637, 'lawUpdateArticleWriters', '1'),
(85094, 4637, '_lawUpdateArticleWriters', 'field_59da2a866b064'),
(85095, 4637, 'lawUpdateArticlePractices_0_lawUpdateArticlePractice', '410'),
(85096, 4637, '_lawUpdateArticlePractices_0_lawUpdateArticlePractice', 'field_59dc79c8e10ce'),
(85097, 4637, 'lawUpdateArticlePractices', '1'),
(85098, 4637, '_lawUpdateArticlePractices', 'field_59dc7918de021'),
(85099, 4637, '_yoast_wpseo_metadesc', 'On the onset, it is important to understand that jurisdiction is defined by local legislation to be “the set of rules that determine the competence of a state’s jurisdiction to look into cases inclusive to an international element.'),
(85100, 4638, 'content', '<p><strong>Introduction</strong></p>\r\n<p>Wakala contracts are agency agreements that are widely used in  Shari&rsquo;ah compliant Islamic finance transactions.&nbsp; A wakala contract is  formed when a principal, the muwakkil, appoints an agent, the wakeel, to  undertake certain transactions on the principal&rsquo;s behalf.&nbsp; An important  characteristic of wakala contracts is that the muwakkil and the wakeel  share in the profit and risk of loss of the transaction.&nbsp; Nonetheless,  some wakala contracts contain provisions that guarantee a specified rate  of return or certain profits despite the results of the  transaction(s).&nbsp; Such provisions arguably contravene Shari&rsquo;ah principles  as guaranteed returns or profits are not Shari&rsquo;ah compliant in that  they do not enable risk sharing between the wakeel and the muwakkil.<span>&nbsp;&nbsp;</span></p>\r\n<p>Recent court decisions regarding disputes involving such wakala  contracts have created some concerns among the Islamic finance sector.&nbsp;  One such dispute involving Blom Developments Bank, S.A.L. (&ldquo;Blom&rdquo;), a  Lebanese bank, and the Investment Dar (&ldquo;TID&rdquo;), a Shari&rsquo;ah-compliant  finance house based in Kuwait, was litigated in England in late 2009.&nbsp;  In addition, a case with a similar fact pattern has been litigated in  Kuwaiti courts and its implications on the current Islamic finance  sector within Kuwait will be analyzed below.&nbsp;</p>\r\n<p><strong>Blom v. TID</strong>&nbsp;</p>\r\n<p>The aforementioned dispute surrounds Blom&rsquo;s English law governed  master wakala contract with TID (the &ldquo;Contract&rdquo;).&nbsp; Under the Contract  Blom appointed TID as its agent to make certain investments in  Shari&rsquo;ah-compliant instruments on behalf of Blom&rsquo;s 11.5 million US  Dollar investment with TID. TID also had an obligation to pay Blom a  specific rate of return regardless of the results of the investments.&nbsp;  TID&rsquo;s investments were unsuccessful and as a result TID was unable to  make payments to Blom under the Contract.&nbsp; Consequently, Blom filed a  claim for summary judgment requesting that the court order TID to repay  to Blom the amounts it had invested with TID, in addition to the repay  the specified rate of return on the investments owed to Blom.&nbsp; The  English High Court granted summary judgment to Blom and ordered that TID  pay Blom the original principal amount but not the profit element.&nbsp;</p>\r\n<p>During appeal, TID argued that its constitutional documents prohibit  it from entering into non-Shari&rsquo;ah compliant agreements and that the  Contract was non-Shari&rsquo;ah compliant, and therefore nullifying the  Contract. The appellate court held that TID raised an arguable case  which required consideration at a full trial.&nbsp;</p>\r\n<p><strong>National Sukuk Company v. Al-Madina Finance and Investment Company</strong></p>\r\n<p>With respect to the recent decision held by the courts of Kuwait, two  companies had entered into a wakala agreement (the &ldquo;Agreement&rdquo;) whereby  National Sukuk Company (the &ldquo;Principal&rdquo;) provided facility amount of  AED 120 Million (KD 9,261,045) to Al-Madina Finance and Investment  Company (the &ldquo;Investment Agent&rdquo;).&nbsp; In the Agreement, the two parties  agreed that upon a defined maturity date, the Investment Agent would  repay to the Principal the original facility amount plus a prescribed  profit amount. Upon the maturity date, the Investment Agent failed to  repay said amounts, and entered into a settlement agreement with the  Principal to pay a lesser amount on a subsequent maturity date. Upon  this subsequent maturity date, the Investment Agent failed to pay the  agreed upon amount, and thus the Principal filed a civil claim against  the Investment Agent.&nbsp;</p>\r\n<p>The Kuwait Court of First Instance rendered a judgment in favour of  the Principal ordering the Investment Agent to pay settlement amount to  the Principal. It based its opinion on a report submitted by an expert.  Upon appeal by the Investment Agent, the appellate court slightly  reduced the award to the Principal. The Investment Agent filed a second  appeal basing the same on the following: (i) the judgment is in  violation of the law; (ii) the court erred in its application of the law  by failing to provide an adequate explanation as to the fault of the  Investment Agent; and (iii) that its judgment was based on the expert&rsquo;s  opinion which failed to apply the principals of a Shari&rsquo;ah compliant  wakala agreement.&nbsp;</p>\r\n<p>The Investment Agent&rsquo;s argument against the expert&rsquo;s opinion was that  the expert failed to accept that the Agreement was based on the  Shari&rsquo;ah principles of a wakala arrangement by concluding that the  parties intended for the facility amount to be repaid with a fixed  profit. In other words, the relationship between the Investment Agent  and the Principal was built upon the premise that profit is expected and  probable and not fixed. Further, the Investment Agent argued that the  expert should have interpreted the Agreement whereby the Investment  Agent was not guaranteeing the facility amount but rather that the two  parties shared the risk of loss, unless in circumstances of intentional  error or gross negligence by the Investment Agent.&nbsp;</p>\r\n<p>The appellate court agreed with the Investment Agent that if these  defences raised by the Investment Agent were substantiated and if the  expert did not apply an acceptable rationale for its opinion, then there  would be reason to overturn the lower court&rsquo;s opinion. Therefore, the  appellate court remanded the case to a panel of three experts from the  Kuwait Department of Experts at the Ministry of Justice to determine the  following issues of law: (i) whether the facts of the case merit an  interpretation that the Agreement is a Shari&rsquo;ah compliant wakala  arrangement; (ii) whether either party had breached its obligations; and  (iii) what is the proper amount of the award, if any.&nbsp;</p>\r\n<p><strong>Analysis</strong></p>\r\n<p>An ultimate decision has yet to be held in either case; however, from  a Kuwaiti law and court perspective, it seems as though the outcome of  the National Sukuk case may provide an affirmative defence for Islamic  financial institutions like Al-Madina Finance and Investment Company  that because the executed transaction was later viewed as non-Shari&rsquo;ah  compliant despite having knowingly agreed and accepted terms and  conditions of the so-called wakala arrangement, its obligations to repay  become nullified. &nbsp;</p>\r\n<p>Such a decision will likely raise a red flag to any creditor who has  entered into similar arrangements under Kuwaiti law with Kuwaiti court  jurisdiction.&nbsp; Furthermore, the credibility of these institutions may be  negatively impacted if such an affirmative defence would allow  nullification of these arrangements.&nbsp; Ultimately, any creditor who seeks  to enter into a similar arrangement shall consider inserting protective  provisions such as a waiver by the investment agent to any defence it  may have in connection with the arrangement being Shari&rsquo;ah compliant and  furthermore to require a Shar&rsquo;iah pronouncement by the investment  agent&rsquo;s Shar&rsquo;iah board confirming the terms and conditions of the  arrangement.</p>'),
(85101, 4638, '_content', 'field_59b649b5c8b2b'),
(85102, 4638, 'lawUpdateArticleMonth', '4618'),
(85103, 4638, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(85104, 4638, 'content_description', 'Wakala contracts are agency agreements that are widely used in Shari’ah compliant Islamic finance transactions.'),
(85105, 4638, '_content_description', 'field_59b641c07f473'),
(85106, 4638, 'pageSummary', 'Wakala contracts are agency agreements that are widely used in Shari’ah compliant Islamic finance transactions.'),
(85107, 4638, '_pageSummary', 'field_59e59b307dec8'),
(85108, 4638, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-5/january-2/implications-of-the-kuwait-tid-v-blom-judgment-on-wakala-contracts.html'),
(85109, 4638, '_currentURL', 'field_59d35123ab1e7'),
(85110, 4638, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Paul Saba'),
(85111, 4638, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(85112, 4638, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'p.saba@tamimi.com'),
(85113, 4638, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'field_59e59afcd15de'),
(85114, 4638, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', ''),
(85115, 4638, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', 'field_59e59b05d15df'),
(85116, 4638, 'lawUpdateArticleNoWriters_1_lawUpdateAuthorName', 'Fatema Fathnezhad'),
(85117, 4638, '_lawUpdateArticleNoWriters_1_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(85118, 4638, 'lawUpdateArticleNoWriters_1_lawUpdateAuthorEmail', 'f.fathnezhad@tamimi.com'),
(85119, 4638, '_lawUpdateArticleNoWriters_1_lawUpdateAuthorEmail', 'field_59e59afcd15de'),
(85120, 4638, 'lawUpdateArticleNoWriters_1_lawUpdateAuthorLocation', ''),
(85121, 4638, '_lawUpdateArticleNoWriters_1_lawUpdateAuthorLocation', 'field_59e59b05d15df'),
(85122, 4638, 'lawUpdateArticleNoWriters', '2'),
(85123, 4638, '_lawUpdateArticleNoWriters', 'field_59e59aaed15dc'),
(85124, 4638, 'lawUpdateArticlePractices_0_lawUpdateArticlePractice', '410'),
(85125, 4638, '_lawUpdateArticlePractices_0_lawUpdateArticlePractice', 'field_59dc79c8e10ce'),
(85126, 4638, 'lawUpdateArticlePractices', '1'),
(85127, 4638, '_lawUpdateArticlePractices', 'field_59dc7918de021'),
(85128, 4638, '_yoast_wpseo_metadesc', 'Wakala contracts are agency agreements that are widely used in Shari’ah compliant Islamic finance transactions.');
INSERT INTO `tm_postmeta` (`meta_id`, `post_id`, `meta_key`, `meta_value`) VALUES
(85129, 4639, 'content', '<p>Additionally, the Court of Cassation has stated that &ldquo;the agreement  to arbitrate is not established unless the common intent of the  contracting parties is set on it.&rdquo; We take a look at one of the cases  where the parties had both an arbitration clause and a clause given  Dubai Courts jurisdiction, and how the Court of Cassation resolved the  dispute.</p>\r\n<p><strong>Facts of the case</strong></p>\r\n<p>Two Dubai trading companies (the &ldquo;Claimants&rdquo;) filed a commercial  action with the Court of First Instance against another local company  (the &ldquo;Defendant&rdquo;). The Claimants requested the Court to order the  Defendant to pay them the amount of AED 2,765,253.82 as compensation for  breaching a services contract which they had executed.&nbsp;</p>\r\n<p>The Claimants argued that on 1 March 2008 they had concluded a  services contract with the Defendant to prepare and carry out interior  design works, and to develop the Claimant&rsquo;s private hotels. The Claimant  further submitted that the Defendant had failed to adhere to its  obligations as stipulated in the contract, delivered the assigned work  late and delivered a defective work product which was below the  standards recognized by the hotel industry. As a consequence, the  Claimants terminated the contract.</p>\r\n<p>Due to the fact that the contract contained in Article 13 an  arbitration clause (&ldquo;the Arbitration Clause&rdquo;), the Defendant requested  the Court to dismiss the case for lack of jurisdiction. The Claimants  argued the same contract contained in Article 14 (&ldquo;the Dubai Courts  Clause&rdquo;) a clause which allowed either party to seek an order from the  Dubai Courts for any dispute that arises out of the contract.</p>\r\n<p><strong>Court of First Instance</strong></p>\r\n<p>The Court of First Instance ruled in favor of the Defendant and  dismissed the case for lack of jurisdiction. The Claimants subsequently  appealed the decision.</p>\r\n<p><strong>Court of Appeal</strong></p>\r\n<p>The Court of Appeal upheld the lower&rsquo;s court decision. The Claimants appealed to the Court of Cassation.</p>\r\n<p><strong>Court of Cassation</strong></p>\r\n<p>The Claimants argued that the Court of Appeal had erred in its  decision to uphold the lower court&rsquo;s decision in that reliance had been  placed on the Arbitration Clause of Article 13 of the services contract  instead of the Dubai Courts Clause of Article 14 of the same contract.  The Claimants submitted that the Dubai Courts Clause gave Dubai Courts  the jurisdiction to oversee any dispute arising out of that contract.</p>\r\n<p>The Court of Cassation interpreted Article 203 (1) and 203 (5) of the  Civil Procedure Law (CPL) to mean that if parties agreed to arbitrate a  dispute it shall not be possible to initiate an action before the  Court. If, notwithstanding the arbitration clause, one party did file an  action in Court and the other party did not object at the first  hearing, then the Court would consider the arbitration clause as void  and take jurisdiction of the case.&nbsp; However, if the other party did  raise an objection at the first hearing, the Court should dismiss the  case for lack of jurisdiction.&nbsp;</p>\r\n<p>The Court held also that arbitration is a final and binding form of  dispute resolution which is conducted outside the usual forum (i.e. the  local courts). The Court clarified however, that what the parties  intended to be meant by &ldquo;dispute&rdquo; should be clearly specified in the  arbitration deed.&nbsp;</p>\r\n<p>With regards to the conflict between the two clauses the Cassation  Court stated that the court looking at the essence of the dispute has  the authority to ascertain the facts of the case, the agreements of the  parties and the common intent of the parties. Any decision taken by such  court, as long as it is supported by sound reasoning based on evidence  provided, is not subject to review by the Court of Cassation. The Court  then proceeded to review the factors considered by the lower courts as  follows:</p>\r\n<ul>\r\n<li>The lower court had found that the Arbitration Clause was written in  a very detailed manner, whereas the Dubai Courts Clause was very short.</li>\r\n<li>The Court found that the recourse to the Dubai Court as stated in  Article 13 could be sought only to explain the contract and have a  binding decision in relation to this explanation, whereas the  adjudication of disputes arising out of the contract was to be dealt  with by arbitration as per Article 14 of the contract. The Court of  Cassation held that any explanation to the contrary would result in  conflict between the two Articles. If the Articles were viewed to be  contradictory, then the Court held that the clearer clause and the more  detailed clause should be applied rather than the ambiguous clause as it  did not need any explanation or clarification from the Court.&nbsp;</li>\r\n<li>Additionally, the Court reasoned, the Arbitration Clause came right  before the Dubai Courts Clause which shows that the parties clearly  intended for the Arbitration Clause to be binding. Furthermore, the  Dubai Courts Clause came under the subheading of &ldquo;Legal Procedure&rdquo;  whereas the Arbitration Clause was under the general heading of  &ldquo;Disputes&rdquo; which shows that the Dubai Courts Clause was meant to be used  in very limited situations.</li>\r\n</ul>\r\n<p>Given that these factors were supported by the evidence and the lower  courts relied on them in their determination, the Court of Cassation  upheld their judgment and the Arbitration Clause.</p>'),
(85130, 4639, '_content', 'field_59b649b5c8b2b'),
(85131, 4639, 'lawUpdateArticleMonth', '4618'),
(85132, 4639, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(85133, 4639, 'content_description', 'Article 203 of the UAE Civil Transactions Law allows parties to agree to seek arbitration for any dispute that arises between them in a given contract, and sets the rules for such agreement. However, since the agreement to arbitrate includes giving up the right to seek court review of the essence of the dispute, the legislators required for it to be expressed in writing.'),
(85134, 4639, '_content_description', 'field_59b641c07f473'),
(85135, 4639, 'pageSummary', 'Article 203 of the UAE Civil Transactions Law allows parties to agree to seek arbitration for any dispute that arises between them in a given contract, and sets the rules for such agreement. However, since the agreement to arbitrate includes giving up the right to seek court review of the essence of the dispute, the legislators required for it to be expressed in writing.'),
(85136, 4639, '_pageSummary', 'field_59e59b307dec8'),
(85137, 4639, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-5/january-2/arbitration-clauses-resolving-conflicting-jurisdictional-clauses-in-the-same-agreement.html'),
(85138, 4639, '_currentURL', 'field_59d35123ab1e7'),
(85139, 4639, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Suzzane Abdallah'),
(85140, 4639, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(85141, 4639, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'S.abdallah@tamimi.com'),
(85142, 4639, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'field_59e59afcd15de'),
(85143, 4639, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', ''),
(85144, 4639, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', 'field_59e59b05d15df'),
(85145, 4639, 'lawUpdateArticleNoWriters', '1'),
(85146, 4639, '_lawUpdateArticleNoWriters', 'field_59e59aaed15dc'),
(85147, 4639, 'lawUpdateArticlePractices_0_lawUpdateArticlePractice', '410'),
(85148, 4639, '_lawUpdateArticlePractices_0_lawUpdateArticlePractice', 'field_59dc79c8e10ce'),
(85149, 4639, 'lawUpdateArticlePractices', '1'),
(85150, 4639, '_lawUpdateArticlePractices', 'field_59dc7918de021'),
(85151, 4639, '_yoast_wpseo_metadesc', 'Article 203 of the UAE Civil Transactions Law allows parties to agree to seek arbitration for any dispute that arises between them in a given contract, and sets the rules for such agreement. However, since the agreement to arbitrate includes giving up the right to seek court review of the essence of the dispute, the legislators required for it to be expressed in writing.'),
(85152, 4641, '_wp_attached_file', 'uploads2/media-4640.jpg'),
(85153, 4641, '_wp_attachment_metadata', 'a:5:{s:5:\"width\";i:100;s:6:\"height\";i:133;s:4:\"file\";s:23:\"uploads2/media-4640.jpg\";s:5:\"sizes\";a:0:{}s:10:\"image_meta\";a:12:{s:8:\"aperture\";s:1:\"0\";s:6:\"credit\";s:0:\"\";s:6:\"camera\";s:0:\"\";s:7:\"caption\";s:0:\"\";s:17:\"created_timestamp\";s:1:\"0\";s:9:\"copyright\";s:0:\"\";s:12:\"focal_length\";s:1:\"0\";s:3:\"iso\";s:1:\"0\";s:13:\"shutter_speed\";s:1:\"0\";s:5:\"title\";s:0:\"\";s:11:\"orientation\";s:1:\"0\";s:8:\"keywords\";a:0:{}}}'),
(85154, 4640, 'lawUpdateImageURL', '5906'),
(85155, 4640, '_lawUpdateImageURL', 'field_59c8deca117cd'),
(85156, 4640, 'lawUpdateDesc', ''),
(85157, 4640, '_lawUpdateDesc', 'field_59da24cd91f17'),
(85158, 4640, 'lawUpdateYear', '2013'),
(85159, 4640, '_lawUpdateYear', 'field_59da245091f13'),
(85160, 4640, 'pageSummary', ''),
(85161, 4640, '_pageSummary', 'field_59e59b307dec8'),
(85162, 4640, 'lawUpdateStartMonth', 'March'),
(85163, 4640, '_lawUpdateStartMonth', 'field_59da247791f14'),
(85164, 4640, 'currentURL', 'http://www.tamimi.com/en/section/law-update/section-5/march-4'),
(85165, 4640, '_currentURL', 'field_59d35123ab1e7'),
(85166, 4642, 'content', '<strong>Introduction</strong>\r\n\r\nOn the 28th of April 2004 Mr. Daniel Kaufmann (Global Governance Director of the World Bank Institute) – commenting on the costs of corruption- stated that: “a conservative approach to such measurement gives an estimate for annual worldwide bribery of about US 1 trillion dollars.” <sup>1\r\n</sup>\r\n\r\nCorruption can take many forms that vary in degree from the minor use of influence to institutionalized bribery. Transparency International’s definition of corruption is: “the abuse of entrusted power for private gain”. This can mean not only financial gain but also non-financial advantages.<sup>2</sup>\r\n\r\nThe definition of corruption and how much money it involves is not a particularly challenging notion to tackle. This paper, rather, brings to the attention of the reader the economic importance of combating corruption. The aim is to show the reader: 1- the role law plays in economic development, 2- the negative effects of income inequality on sustainable economic development and importance of redistribution on grounds of the Marginal Utility theory, 3- redistribution as the most effective method of eradicating poverty, 4- the negative effects of low approval ratings (unhappiness) on sustainable economic development and 5- the negative effects of corruption on redistribution as well as approval ratings and consequently on sustainable economic development.\r\n\r\nThe argument simply put is as follows: 1- empirical studies show that countries with better redistribution of wealth enjoy longer periods of economic development. 2- Redistribution of wealth is justified by the idea that if utility is the building block of economic policy then redistribution of wealth is a favourable on the grounds that it brings upon well being to the greatest possible number of people (since the poor’s benefit is much greater than the rich’s loss out of the redistirbutional process). 3- Redistribution (based on the idea of Marginal Utility) should only limited by the idea of Efficiency Cost (when it robs production from individual incentive)<sup>3</sup>  4- Countries suffering from corruption cannot implement sound redistributional policies and thus are not expected to take benefit from sustainable economic development despite embarking upon economic growth from time to time for some reason or the other.\r\n\r\nThe argument, simply put, as well, has it that empirical studies show that countries with higher approval ratings (happiness index) enjoy longer periods of economic development. Countries suffering from corruption have low approval ratings because of the public’s frustration of their legitimate expectations, impressions of unfair treatments, expectations of unequal treatment which impose a great risk on individual incentive to produce (Efficiency Cost).\r\n\r\nWhereas some would differentiate between bad and good corruption  arguing that only corruption<sup>4</sup> which is associated with poor institutions has a negative effect on GDP growth whilst residual corruption (corruption which is uncorrelated with other governance characteristics) is positively related to GDP growth with poor institutions,. This line of thought has it that an analysis of financial data is positively correlated with capital accumulation and productivity growth in developing countries and that these empirical findings are consistent with the theory that corruption helps overcome inefficient barriers.\r\n\r\nThis article argues that all forms of corruption are intrinsically bad (from an economic point of view) justifying the contemporary global practice of combating corruption.\r\n\r\nThe paper will show how corruption, if left unchallenged, undermines a country’s attempts to: 1- fight poverty and inequality (redistribution of wealth), 2- increase approval ratings (happiness index) and 3- consequently engage in sustainable development. The paper attempts to do so by reflecting upon the role of law in economic development as well as shedding some light on current economic development policies and how paramount combating corruption features in them.\r\n\r\nIt is worth mentioning in this regard that the United Arab Emirates legal market takes benefit from the presence of Al Tamimi &amp; Company’s Special Projects Department, which is the only specialized team of experts in the field of combating corruption in any regional Arab law firm.\r\n\r\n<strong>Law and economic development:\r\n</strong>\r\n\r\n<strong>The role of law in development is obscure. Some see law as a transcendental notion of applied justice that has nothing to do with politics, morality and the distribution of wealth. Others see certain types of legal regimes as the environment that fosters and nourishes development. Others recognized the social effects of legalism, its political aspects and distributive function.</strong>\r\n\r\nIn this part I will explore these different roles attributed to law in the field of development.\r\n\r\n<strong>i. </strong><strong>Formalism</strong>\r\n\r\nThe formalists believed deduction of law to be a logical science. There could only be one legally right answer to a certain disputable fact. Law is coherent and has answers to every controversy. Law is detached from politics, morality, religion and society. It thus, according to this theory, has nothing to do with economic development because legalism entails no political decisionism, and exhibits no distributive effects. It is rather the product of impeccable logical deduction from transcendental notions existing supra-society.\r\n\r\nThe role of the state is to preserve private autonomy, keeping each individual as an absolute lord within his dominion (compartment) of private rights and liberties.\r\n\r\n<strong>I. </strong><strong>Weberianism\r\n</strong>\r\n\r\n<strong>Some saw in the abovementioned legal arrangements the pretext of economic development.<sup>6</sup> Law as a rational science separated from politics, religion, being man made, universally applied, and disputes decided by general rules, <sup>7</sup> essential for developing science, human activities, and entrepreneurship.</strong>\r\n\r\nOther societies which have no such legal doctrine could not develop specifically because they don’t have such laws.\r\n\r\nThe difference between this line of thought and the previous is that the “Law as pretext” acknowledges Formal legalism as the inevitable institutional infrastructure for development, whereas Formalists did not.\r\n\r\nTwo attributes of logically formal rationality legalism are highly praised. First its relative degree of calculability, second its capacity to develop substantive provisions, principally those relating to freedom of contract necessary to the functioning of the market system. <sup>7</sup>\r\n\r\n<strong>ii.</strong><strong>Realism\r\n</strong>\r\n\r\nThe Realists’ breakthrough is the critique they presented to the foundations of Formalism. Law derivation is not a science, it is not coherent, and it does not embody answers to all. Cases are decided on its facts not legal doctrine. <sup>8</sup>  Adjudication <sup>9</sup>  in essence is not deductive logic; it is rather judicial/political decision-making.\r\n\r\nThey also recognized the distributive function of legalism.<sup>10</sup> Each legal rule renders comparative advantage to the party it favours. In each situation, parties use the available legal norms to twist the counterparty’s arms in order to receive as much as possible of the outcome of the bargained deal. <sup>11</sup>  Foucault’s Power Relations theory entertains a highly praised position in their literature in addition to Hobbes state of nature.\r\n\r\n<strong>Chronological note on economic development:\r\n</strong>\r\n\r\nDevelopment as a field of study became the major concern of the post-Second World War international order. It starts off with two presumed hypotheses: 1) The problemization of poverty,<sup>13</sup>  meaning that even if we don’t view securing the well-being of individuals as the function of the state, the state from a pragmatic<sup>14</sup>  point of view has to address poverty because of its negative social effects. 2) The importance of industrialization and technology.\r\n\r\nIn this coming section I will briefly account the line of thought of the Modernization theorists, the Dependency theorists and the Neo-liberal theorists as follows. This should give the reader an idea of the current state of affairs in economic policy and where does our contemporary global practice of combating corruption come from and where it fits.\r\n\r\n<strong>i.</strong><strong>Modernization theorists\r\n</strong>\r\n\r\nThey are influenced by the Weberian<sup>15</sup>  social theory.\r\n\r\nThe pillars of their line of thought are: anti-traditionalism (in both its material and psychological sense),<sup>15</sup>  and an emphasis on the role of the state and that every man is derived from his own economic self interest.<sup>17\r\n</sup>\r\n\r\nAccording to Modernization theorists, the problem with underdevelopment is that underdeveloped societies are traditional whereas developed societies are modern.<sup>17</sup>  They are modern in their means of production <sup>18</sup>  and their value systems.<sup>19\r\n</sup>\r\n\r\nFor a society to develop it has to shift from a “traditional society” to a more rational/material/modern one. It also has to transform its means of production to industrialization and technology.<sup>20</sup>  The role of the state is crucial because it is the state that will impose that shift. They believe that once the state sets the conditions of the shift people will change on their own in pursuit of their economic best interests and hence development inevitably occurs.<sup>21\r\n</sup>\r\n\r\nThey further suggested several approaches to introduce modernity to society. First the “Big Push” theory,<sup>22</sup> where the state will choose certain strategic projects and will use large scale industries in these projects to give momentum to the whole modernization process. Second the “Balanced growth” theory<sup>24</sup>,  where the state will use technological/industrial means in diverse sectors to create the momentum, coupled with decreasing its exports. Third is the “Unbalanced Growth” theory,<sup>24</sup>  where the state creates inbalance within sectors to create forward and backward linkages<sup>25</sup>  between industries.\r\n\r\n<strong>ii.</strong><strong>Dependency theorists\r\n</strong>\r\n\r\n<strong>They are influenced by Marxian ideology.<sup>26</sup>  They have a strong connection with the national/political independence movements in the third world.</strong>\r\n\r\nThe pillar of their line of thought is the exploitation of underdeveloped societies by developed societies and the causal link between being exploited and being underdeveloped.\r\n\r\nFor them the key is to de-link underdeveloped societies from developed societies and cut the vicious circle of exploitation. Unlike the Modernists, to them underdevelopment is not the attribute of underdeveloped societies (internal), but it is rather imposed by the developed via exploitation (external)<sup>27 </sup>and dominance. <sup>28</sup>  Dependency is thus the economic antidote of economic imperialism. <sup>29\r\n</sup>\r\n\r\nA dependent society is one that depends upon other societies for its accumulation of capital (funds, new technology, machinery, equipment of the production of capital goods and enterprise expansion).<sup>30</sup>\r\n\r\nTheir major contribution to the realm of development theory is their Import Substitution Industrialization (self reliance) policy (ISI).<sup>31</sup> The rationale behind the ISI ideology was to obtain self sufficiency via national industries. <sup>32\r\n</sup>\r\n\r\n<strong>iii.</strong><strong>Neo-liberal theorists\r\n</strong>\r\n\r\nThey are influenced by Adam Smith’s line of thought. The pillars of their theory are the diminished role of the state, private autonomy, and the emphasis on providing the best set of rules and conditions for market forces to function with the greatest liberty possible. The supporters of this school of thought (Ayn Rand, Alan Greenspan) were influential in our contemporary social order. Rand’s theory of Objectivist epistemology is a manifestation of the abstractions of the Neo-liberal ideologies.\r\n\r\nNeo-liberalists call for privatization of all means of production,<sup>33</sup>  free trade, free capital flows, free direct foreign investment and free immigration and movement of labour. <sup>34</sup>  The role of the state is restricted in providing basic services such as education, infrastructure, health care<sup>35</sup>  and providing for best practices for the well functioning of the free market economy. <sup>36</sup> This stems from the idea that state intervention and public spending in the functioning of the economy is non-productive and impairs societal economic growth <sup>c</sup>  because the market itself is the most efficient mechanism for allocating its resources.<sup>38</sup>\r\n\r\n<strong>iv.</strong><strong>2nd generation reforms or the post Washington consensus:\r\n</strong>\r\n\r\nThe development field today came as a reaction to the failure of the Neo-liberal theories. Underdeveloped countries that adopted the Neo-liberal strategies remained underdeveloped.\r\n\r\nThough Washington Consensus comes from the same economic background (free market economy) as that of the Neo-liberal movement, the concern now is with the necessary social infrastructure for a functioning/developing free market economy.\r\n\r\nTo seek unrestrained personal interests whilst sharing the very same limited resources with other human beings (who in their turn are also seeking unrestrained personal interests) is deeply conflicted. Some sort of organization/compromise must exist to sustain our existence (collective consciousness) <sup>39</sup>. Both social order as well as political power our products of social necessity. <sup>40</sup>\r\n\r\nUnderstanding that government was organically invented to serve a social need<sup>41</sup>  helps us attribute, consequentially, a purpose of governance and a criteria of judging the legitimacy of its exercise; the Greatest Happiness Principle<sup>42</sup>.\r\n\r\nLegislation seeks to realize the greatest possible happiness (all things considered) of the greatest number of citizens (Rule Utilitarianism-Act Utilitarianism).<sup>43\r\n</sup>\r\nRedistribution of wealth (taxation etc.) is only legitimate if and only if such limitation of individual rights is necessary for the welfare of society<sup>44</sup> (by application of the Marginal Utility Principle) and should stop when it starts to become counterproductive (Efficiency Cost). The sole reliance on human endeavors to determine the Greatest Happiness Principle<sup>45</sup>  is almost a practical impossibility<sup>46</sup>. That is why we rely on the idea of Marginal Utility. The idea is that the benefit a $ 100 brings to a single unemployed mother is much greater than that it contributes to the well being of a well-to-do business person. Imagine that a person is stranded in the desert and is dying of thirst. The added value of the first drink of water you offer him/her is priceless. But then this “added value” attributed to drinks diminishes the more he/she consumes what you offer. Same concept applies to money, goods and services. The idea of Marginal Utility is conceptualized. When applied in political economy it means that governments will take from the better doing and give to the less fortunate because economic policy is all about utility (added value). And utility is maximized whenever the greatest number of people benefit out of it. The challenge is to balance social well fare policies so as not to discourage productivity by robbing people of any individual incentive to produce (Efficiency Cost).\r\n\r\nContemporary development theories<sup>47 </sup>would have it that in order for a given economy to flourish there should be a pre-existing social/legal/human order. For a free market economy to function a certain legislative infrastructure should pre-exist.<sup>48</sup>  This theory of Development holds law at the very front of its battles.<sup>49 </sup>Law is not just a fostering environment for development;<sup>50</sup>  it is the most important tool<sup>51</sup> for redistribution of power and wealth.<sup>52\r\n</sup>\r\nHuman development is at the core of concerns of the development field today.<sup>53</sup>  To have a developing free market economy, they believe, it is crucial to remove all forms of constrains to human freedoms, both political and civil. <sup>54</sup>  They are concerned with Human Rights issues. They call for democracy, independent civil societies <sup>55</sup>  independent state institutions,<sup>56</sup>  better law enforcement, market friendly legislations, free trade, free transfer of funds, free transfer of labour, and more direct foreign investments. They preach and stress upon the combat of corruption, international crime and money laundry. They demand for gender equality. They emphasize on informal norms as a source of best practices.<sup>57</sup> They stress on the importance of formalization of all society’s assets.<sup>58</sup>\r\n\r\nThe players of the development field today are no longer just the governments and metaphysical market forces. In addition to the government and the market forces we have organizations such as the World Bank, the International Monetary Fund, the International Financial Institutions, International and National non-governmental organizations, civil society, in addition to pressure groups and business men. <sup>59</sup>  Public awareness and pro-activity is also highly praised in today’s development field. <sup>60</sup>\r\n\r\nAdopting GDP and/or per-capita income as signs of economic health and no longer trusted. Trusting in the invisible hand of the market and its Trickling Down Theory to achieve social as well as economic stability is no longer considered prudent.  Recognizing the draw backs of consumption economics<sup>61</sup>  economists now prefers to target perfect equality, transparency and stability in any given society. To measure this they usually apply, amongst other things, the Gini Coefficient<sup>62</sup>  which measures the extent of inequality in income distribution in a given country. By measuring income inequality (not wealth inequality) it distinguishes itself from being a Marxist ideology.  Also by excluding non-cash social benefit from the calculation (welfare provision through public services is ignored) it enables governments create a sort of social balance and economic stability by restoring the inequalities in income distribution by providing subsidized goods and services and thus creating a society wherein individuals are equally empowered (no one is suffering poverty) but not all are necessarily equally wealthy.\r\n\r\nThe Development field witnessed a further step forward by the work of Amartya Sen.  <sup>63 </sup>His contribution comes as an addition to the 2nd generation reforms in view of the role of human infrastructure. Typically all the previous developmental theorists would evaluate the development of a given society by means of fiscal measures. However, Professor Sen asserts that this is not immune to critique. He illustrates that the actual end of development is not to achieve financial welfare but rather to promote human well-being.\r\n<strong>\r\nConclusion:\r\n</strong>\r\nOne concludes, according to the above, that law plays a major role in development.\r\n\r\nResearch shows that a society with less income inequality (better redistribution) almost always enjoys more frequent and longer periods of economic growth (sustainable development). <sup>64</sup>\r\n\r\nResearch also shows that a society with a higher happiness index (approval ratings) almost always enjoys more frequent and longer periods of economic growth (sustainable development). <sup>65</sup>\r\n\r\nIt almost goes without saying that corruption is futile to any effective redistribution scheme a government is undertaking. It also goes without saying that corruption frustrates people and leave them disproving of their institutions. Both things mean that a society with corruption can not possibly enjoy leaps and bounds of sustainable economic growth and development.\r\n\r\nCorruption is now recognized to be one of the world’s greatest challenges. It is a major hindrance to sustainable development, with a disproportionate impact on poor communities and is corrosive on the very fabric of society.\r\n\r\nThe impact on the private sector is also considerable, it impedes economic growth, distorts competition and requests serious legal and reputational risks. Corruption is also very costly for business, with the extra financial burden estimated to add 10 % or more to the costs of doing business in many parts of the world.\r\n\r\nThe rapid development of rules of corporate governance around the world is also prompting companies to focus on anti-corruption measures as part of their mechanisms to protect their reputations and the interests of their shareholders. Their internal controls are increasingly being extended to a range of ethics and integrity issues and a growing number of investment mangers are looking to these controls as evidence that the companies undertake good business practice and are well managed.\r\n\r\nThe international legal fight against corruption has gained momentum in more recent times through the Organization for Economic Cooperation and Development (OECD) 1997 Convention on Combating Bribery of Foreign Public Officials in International Business Transactions<sup>66</sup>  and through the entering into force of the first globally agreed instrument; the United Nations Convention Against Corruption (UNCAC) – adopted in Merida, Mexico in December 2003- on the 14th of December 2005.<sup>67</sup>  The Arab Convention Against Corruption was signed by both the ministers of interior affairs and ministers of justice of all state members of the Arab League (save for Somalia) on the 21st of December 2010.\r\n\r\nOn the 24th of June 2004 during the United Nations Global Compact Leaders Summit it was announced that the UN Global Compact henceforth includes a tenth principle against corruption. The Principle reads as follows: “businesses should work against corruption in all its forms, including extortion and bribery.” This was adopted after extensive consultations and all participants yielded overwhelming expressions of support, sending a strong worldwide signal that the private sector shares responsibility for the challenges of eliminating corruption. It also demonstrated a new willingness in the business community to play its part in the fight against corruption.\r\n\r\nThe UNCAC is the underlying legal instrument for the 10th Principle against corruption.\r\n\r\nThe adoption of the 10th Principle commits UN Global Compact participants not only to avoid bribery, extortion and other forms of corruption, but also to develop policies and concrete programs to address corruption. Companies are challenged to join governments, UN agencies and civil society to realize a more transparent global economy. <sup>68\r\n</sup>\r\n\r\nLegal practitioners specializing in the field of combating corruption not only work in an ever developing exciting field but also play an important role in the upkeep of global economy.\r\n\r\n<strong>Footnotes:</strong>\r\n<ol>\r\n 	<li>For further details, please see: “the costs of corruption” under feature stories, press releases – news- on the World Bank website.</li>\r\n 	<li>See further: www.transparency.org</li>\r\n 	<li>Andrew G. Berg and Jonothan D. Ostry, “Equality and efficiency”, Finance and Development, IMF, 2011.</li>\r\n 	<li>Maxim Mironov, “Bad corruption, good corruption and growth”, Graduate School of Business, University of Chicago, November 14th 2005.</li>\r\n 	<li>David M. Trubek, “Max Weber on law and the rise of Capitalism”, p. 722.</li>\r\n 	<li>Id. P. 724.</li>\r\n 	<li>David M. Trubek, “Max Weber on law and the rise of Capitalism”, p. 740.</li>\r\n 	<li>Joseph William Singer, “Legal Realism now”, p. 469.</li>\r\n 	<li>See further on adjudication: “A critique of adjudication”, Duncan Kennedy, Harvard University Press, 1999. And “Hard Cases”, Ronald Dworkin, HeinOnline, 88 Harv. L. Rev. 1057 (1974-1975).</li>\r\n 	<li>For further account of such effect see further: “Why the “Haves” come out ahead: Speculations on the limits of legal change”, Marc Galanter, Law and Society Review. Vol. 9, No. 1, (1974).</li>\r\n 	<li>David Kenedy, “The stakes of law, or Hale and Foucault”, p. 327.</li>\r\n 	<li>Arturo Escobar, “Encountering development: The making and unmaking of the third world”, p. 44.</li>\r\n 	<li>William James, “Pragmatism” Dover Publications Inc. 1995 p. 18.</li>\r\n 	<li>Max Weber, “Economy and society: An outline of interpretive sociology”, University of California Press, 4th ED. 1978.</li>\r\n 	<li>Myron Weiner, “Modernization: The dynamics of growth”, p. 3.</li>\r\n 	<li> Id. P. 11.</li>\r\n 	<li>W. W. Rostow, “The stages of economic growth”, P.4.</li>\r\n 	<li>Arturo Escobar, “Encountering development: The making and unmaking of the third world”, p. 39, 40.</li>\r\n 	<li>Myron Weiner, “Modernization: The dynamics of growth”, p. 5.</li>\r\n 	<li>Arturo Escobar, “Encountering development: The making and unmaking of the third world”, p. 39, 40.</li>\r\n 	<li>Myron Weiner, “Modernization: The dynamics of growth”, P. 9, 10.</li>\r\n 	<li>James M. Cipher and James L. Diety, “The process of economic development”, p. 137.</li>\r\n 	<li>Id. P. 140.</li>\r\n 	<li>Id. P. 143.</li>\r\n 	<li>Id. P. 144.</li>\r\n 	<li>The Material Dialect. The residues of Hegel is apparent in their line of thought.</li>\r\n 	<li>Henrique Cardoso and Enzo Faletto, “Dependency and development in Latin America”, p. viii.</li>\r\n 	<li>Id. P. xxii.</li>\r\n 	<li>Id. P. xv.</li>\r\n 	<li>Id. P. xxi.</li>\r\n 	<li>Gilbert Rist, “Self reliance: The communal past as a model for the future”, p. 123.</li>\r\n 	<li>Albert Hirschman, “The political economy of Import Substituting Industrialization in Latin America”, p.4.</li>\r\n 	<li>Jardish Bhagwati, “Economic freedom: Prosperity and social progress” (page not included).</li>\r\n 	<li>Id.</li>\r\n 	<li>Kerry Rittich, “Recharacterizing restructuring law distribution and gender in market reform”, p. 29.</li>\r\n 	<li>Id. P. 30.</li>\r\n 	<li>Id. P. 30.</li>\r\n 	<li>Id. P. 115.</li>\r\n 	<li>On the topic of interdependence (mechanical and organic solidarities), please see further: “De la division du travail social” – The division of labor in society, 1893, Emile Durkheim.</li>\r\n 	<li>More on the topic please see: “Droit constitutionnel et institutions politiques” – Constitutional law and political institutions, 1972, Andre Hauriou.</li>\r\n 	<li>More on the topic of public service please see further: “l’etat, les gouvernants et les agents”- The state, governments and agents, 1903, Leon Duguit.</li>\r\n 	<li>More on the theory of the Greatest Happiness Principle please see further: “Utilitarianism”, 1863, John Stuart Mill.</li>\r\n 	<li>Please see on the Utilitarian exercise of political power/legislation: “The principles of morals and legislation”, 1781, Jeremy Bentham.</li>\r\n 	<li>Please see further: “L’etat, le droit objectif et la loi positive” – The state, objective rights and positivist law, Leon Duguit.</li>\r\n 	<li>On the transformation from the Theological to the Metaphysical to the Positivist, please see further: “The course in Positive Philosophy”, 1830-1842, Auguste Comte. See also: “A general view of Positivism”, 1844, Auguste Comte.</li>\r\n 	<li>On the impracticality of identifying the Greatest Happiness choice, please see further: “Darwin’s dangerous idea”, 1995, Daniel Dennett.</li>\r\n 	<li>Post Neo-Liberal also known as the 2nd generation reforms..</li>\r\n 	<li>See further: David Schneiderman, “Constitutional approaches to privatization: An inquiry into the magnitude of Neo-Liberal Constitutionalism”, (2000) 63 Law and Contemporary Problems.</li>\r\n 	<li>Kerry Rittich, “The future of law and development: Second generation reforms and the incorporation of the social”.</li>\r\n 	<li>Max Weber, Economy and Society: An outline of interpretive sociology”, University of California Press, 4th ED. 1978. See also David M. Trubek, “Max Weber on law and the rise of Capitalism”.</li>\r\n 	<li>Joseph William Singer, “Legal Realism now”.</li>\r\n 	<li>David Kenedy, “The stakes of law, or Hale and Foucault”.</li>\r\n 	<li>Kerry Rittich, “The future of law and development: Second generation reforms and the incorporation of the social”, p. 200.</li>\r\n 	<li>Amartya Sen, “Development as freedom”, Oxford University Press, 1999, p.35.</li>\r\n 	<li>Carlos Solinas de Gortari and Roberto Mangabeira Unger, “The market turn without Neoliberalism”, p. 17.</li>\r\n 	<li>Roberto Mangabeira Unger, “The really new Bretton woods”, p. 17.</li>\r\n 	<li>Kerry Rittich, “ The future of law and development: Second generation reforms and the incorporation of the social”, p. 220.</li>\r\n 	<li>Hernando de Soto, “The mystery of capital”, p. 30.</li>\r\n 	<li>Kerry Rittich, “The future of law and development: Second generation reforms and the incorporation of the social”, p. 218.</li>\r\n 	<li> Id. P. 219.</li>\r\n 	<li>See further on this: E. Misham’s “The costs of economic growth”, E.F. Schumacher’s “Small is beautiful”, and Herbert Marcuse’s “One dimensional man”.</li>\r\n 	<li>Corrado Gini, “variabilita e mutabilita”, Jounral of the Royal Statistical Society, Vol. 76, No. 3, February 1913, PP. 326. Variability and Mutability by Corrado Gini.</li>\r\n 	<li>Professor of Economics at Harvard University and Noble Prize for economics award winner.</li>\r\n 	<li>See further: Andrew G. Berg and Jonathan D. Ostry, “Inequality and unsustainable growth: two sides of the same coin?”, IMF staff discussion note, SDN/11/08, April 8 2011 and Martin Ravallion, “A poverty-inequality Trade-off?”, Development Research Group, World Bank, WPS3579, April 2005.</li>\r\n 	<li>See further: Richard Layard, “Happiness: has social science a clue?”, “Lecture 2. Income and happiness: rethinking economic policy”, Lionel Robbins Memorial Lectures 2002/3, delivered on 3, 4, 5 March 2003 at the London School of Economics.</li>\r\n 	<li>See further: www.oecd.org/corruption/oecdantibriberyconvention.htm</li>\r\n 	<li>See further: www.unodc.org/onodc/en/treaties/cac/index.html</li>\r\n 	<li>See further: www.unglobalcompact.org/aboutthegc/thetenprinciples/principle10.html</li>\r\n</ol>'),
(217231, 4642, 'core_values', ''),
(217232, 4642, '_core_values', 'field_59b64ab071de4'),
(217233, 4642, 'file', ''),
(217234, 4642, '_file', 'field_59b64c10f6600'),
(217235, 4642, 'orderValue4', '4'),
(217236, 4642, '_orderValue4', 'field_59d2096a8ff34'),
(217237, 4642, 'related_pages_header', ''),
(217238, 4642, '_related_pages_header', 'field_59b6441e3cc94'),
(217239, 4642, 'related_pages', ''),
(217240, 4642, '_related_pages', 'field_59b6434af4880'),
(217242, 4642, '_yoast_wpseo_focuskeywords', '[]'),
(218642, 7639, '_wp_attached_file', '2018/06/Video8.jpg'),
(217244, 7569, '_yst_prominent_words_version', '1'),
(217245, 7569, '_edit_lock', '1554275983:1'),
(217246, 7569, '_edit_last', '1'),
(217247, 7569, 'newsPractices', ''),
(217248, 7569, '_newsPractices', 'field_59e8a0e952a26'),
(217249, 7569, 'blogWriters_0_blogWriter', '917'),
(217250, 7569, '_blogWriters_0_blogWriter', 'field_5a520f2c7f2bb'),
(217251, 7569, 'blogWriters_1_blogWriter', '847'),
(217252, 7569, '_blogWriters_1_blogWriter', 'field_5a520f2c7f2bb'),
(217253, 7569, 'blogWriters', '2'),
(217254, 7569, '_blogWriters', 'field_5a520f2c5b11e'),
(217255, 7569, 'orderValue1', '1'),
(217256, 7569, '_orderValue1', 'field_59d0c6e5175b5'),
(217257, 7569, 'stats_list', ''),
(217258, 7569, '_stats_list', 'field_59b6372466bcc'),
(217259, 7569, 'orderValue2', '2'),
(217260, 7569, '_orderValue2', 'field_59d0c6f6175b8'),
(217261, 7569, 'timeline_header', ''),
(217262, 7569, '_timeline_header', 'field_59b63de5b74bf'),
(85167, 4642, '_content', 'field_59b649b5c8b2b'),
(85168, 4642, 'lawUpdateArticleMonth', '4640'),
(85169, 4642, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(85170, 4642, 'content_description', 'On the 28th of April 2004 Mr. Daniel Kaufmann (Global Governance Director of the World Bank Institute) – commenting on the costs of corruption- stated that: “a conservative approach to such measurement gives an estimate for annual worldwide bribery of about US 1 trillion dollars.”'),
(85171, 4642, '_content_description', 'field_59b641c07f473'),
(85172, 4642, 'pageSummary', 'On the 28th of April 2004 Mr. Daniel Kaufmann (Global Governance Director of the World Bank Institute) – commenting on the costs of corruption- stated that: “a conservative approach to such measurement gives an estimate for annual worldwide bribery of about US 1 trillion dollars.”'),
(85173, 4642, '_pageSummary', 'field_59e59b307dec8'),
(85174, 4642, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-5/march-4/the-effects-of-corruption-on-economic-development.html'),
(85175, 4642, '_currentURL', 'field_59d35123ab1e7'),
(85176, 4642, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Mahmoud Moustafa'),
(85177, 4642, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(85178, 4642, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'info@tamimi.com'),
(85179, 4642, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'field_59e59afcd15de'),
(85180, 4642, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', ''),
(85181, 4642, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', 'field_59e59b05d15df'),
(85182, 4642, 'lawUpdateArticleNoWriters', '1'),
(85183, 4642, '_lawUpdateArticleNoWriters', 'field_59e59aaed15dc'),
(85184, 4642, 'lawUpdateArticlePractices_0_lawUpdateArticlePractice', '631'),
(85185, 4642, '_lawUpdateArticlePractices_0_lawUpdateArticlePractice', 'field_59dc79c8e10ce'),
(85186, 4642, 'lawUpdateArticlePractices', '1'),
(85187, 4642, '_lawUpdateArticlePractices', 'field_59dc7918de021'),
(85188, 4642, '_yoast_wpseo_metadesc', 'On the 28th of April 2004 Mr. Daniel Kaufmann (Global Governance Director of the World Bank Institute) – commenting on the costs of corruption- stated that: “a conservative approach to such measurement gives an estimate for annual worldwide bribery of about US 1 trillion dollars.”');
INSERT INTO `tm_postmeta` (`meta_id`, `post_id`, `meta_key`, `meta_value`) VALUES
(85189, 4643, 'content', '<p>Essam Al Tamimi did not build the region&rsquo;s largest Arab-owned law advisory and become recognised as one of his generation&rsquo;s brightest and most generous legal minds by luck, nor by &ldquo;sitting on a beach reading a book&rdquo; of the latter he is adamant.&nbsp; Like many of the best in this tough profession, his is a story of sheer, sheer determination, sweat and tears.&nbsp; It is a tale of great success born of long hours and clear vision. But unlike many of the most high profile of his peers, and lesser known to the public, his has been a journey coloured early on with academic failures, isolation and despair, making everything he has built today even more inspiring.<br /><br /><strong>The early years<br /><br /></strong>It will surprise many to learn that Essam was far from top of his class at school in the UAE.&nbsp; He was, in fact, one of the lowest achievers of his classes throughout, and across all subjects, at school.&nbsp; He can not recall what intrigued him about law originally, &ldquo;Possibly a movie or something&rdquo; he laughs.&nbsp; As fortune had it at that time, to encourage students in to law, lower grades were accepted and Essam made it into Al Ain University law school &ndash; where everything took a 360 degree turn.&nbsp; &ldquo;My life totally switched.&nbsp; I was suddenly in the library four hours a day, every day.&nbsp; Law lit something in me.&nbsp; After being the lowest in my school classes, I became a star pupil at college and I was soon encouraged to consider applying to the Ivy League law courses in the US.&rdquo;<br /><br />College in the States proved a tough and life defining path.&nbsp; &ldquo;I thought I knew everything about law when I left for Harvard. But when I got there I was at a great disadvantage that could&rsquo;ve threatened everything.&nbsp; Coming from a simple, Bedouin life, Harvard was a huge culture shock. I also struggled with the language and learning style.&rdquo;&nbsp; Essam recalls a heart-breaking misery and loneliness where he questioned his fundamental plan to follow law.&nbsp; But it proved to be an important challenge which honed the determination and single-vision focus that Essam attributes his many successes to date to.&nbsp; He made it through college in the US with a stronger determination to succeed than ever - &ldquo;It became about more than surviving college.&nbsp; I decided there, I didn&rsquo;t want to become just a lawyer &ndash; I decided I would become one of the very best lawyers.&rdquo;</p>\r\n<p><strong>Building the Foundation</strong></p>\r\n<p>This meant hard work.&nbsp; It meant years of typing his own pleadings in his bedroom at night, with no money to afford a clerk.&nbsp; It meant years of working 16 hour days.&nbsp; This dedication of course paid off and today he and his partners &ndash; whose crucial part in the Al Tamimi &amp; Company story Essam is keen to highlight &ndash; run the largest local law firm in the Middle East.</p>\r\n<p>In light of the empire that Essam and his partners have built, he has been able to reallocate these hours so that one-third of his time is now non-billable.&nbsp; A third of this time is spent contributing to law and regulation development around the region, a responsibility he takes very seriously.&nbsp; &ldquo;There&rsquo;s so much to be done and this work is a real passion of mine.&nbsp; You&rsquo;ll find an independent judicial system and set of laws at the heart of every peaceful and leading business market.&nbsp; Where my experience and passion for the cause can be of help, I give it &ndash; invited or otherwise&rdquo; he says with a smile.</p>\r\n<p>Strengthening the rule of law in the Middle East is a focus going forward at this stage in Essam&rsquo;s career. As is writing and lecturing.&nbsp; He is currently in the final stages of publishing another book on arbitration and researching for a paper on women and the law in Islam, something Essam feels has not been examined sufficiently until now.</p>\r\n<p>For the firm, he is working on nothing less than dominating every market in the Middle East.&nbsp; &ldquo;We&rsquo;ve chosen the best partners and people in all of our markets and even through the down-turn and Arab spring, we&rsquo;ve never taken one step back.&nbsp; We believe that Al Tamimi will be the biggest Arab law firm in every market in the Middle East.&rdquo;<strong><span><br /></span></strong></p>\r\n<p><strong>Life outside the Law</strong></p>\r\n<p>Unbelievably, Essam does have &lsquo;spare time&rsquo;.&nbsp; He has learned the art of time management and the value of an hour which is vital when balancing a young family and such a busy work life.&nbsp; &ldquo;I love to be with my family.&nbsp; I&rsquo;m currently teaching the children archery, a shared hobby, which is great fun.&nbsp; I also love to be outdoors &ndash; to fish, to ride horseback, to camp.&nbsp; I am a date tree that needs to be in the desert.&nbsp; I love to travel, but I couldn&rsquo;t live anywhere else in the world.&rdquo;</p>\r\n<p>And this home-loving nature extends to his favourite choice of restaurant, which he reports to be his home, and no less than his own cooking &ndash; &ldquo;You&rsquo;ll never eat better fish, anywhere in the world, than the fish I cook&rdquo;, he boasts, interestingly, with the same energy that is apparent when he talks about law.</p>\r\n<p>Essam considers himself a &ldquo;simple man&rdquo;, which is something very important to him.&nbsp; &ldquo;I eat simply, I live simply and I must end every day simply&rdquo;.&nbsp;</p>\r\n<p>Do these increasing non-billable hours, all this camping, cooking and &lsquo;simplicity&rsquo; mean that Essam may be losing his edge a little? Not at all, aside from his family, his biggest rush is always winning a case &ndash; &ldquo;I&rsquo;m a hunter.&nbsp; I need to hunt and I live for the kill.&rdquo;&nbsp;</p>\r\n<p>Despite early lifetime contribution awards under his belt, his mark firmly made on regional rule of law and surely nothing left to prove, Essam Al Tamimi still lives for the win. There&rsquo;s nothing less than Al Tamimi&rsquo;s. regional domination and evolution of the Middle East&rsquo;s judiciary on his plate now.</p>'),
(85190, 4643, '_content', 'field_59b649b5c8b2b'),
(85191, 4643, 'lawUpdateArticleMonth', '4640'),
(85192, 4643, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(85193, 4643, 'content_description', 'Essam Al Tamimi did not build the region’s largest Arab-owned law advisory and become recognised as one of his generation’s brightest and most generous legal minds by luck, nor by “sitting on a beach reading a book” of the latter he is adamant. \r\n'),
(85194, 4643, '_content_description', 'field_59b641c07f473'),
(85195, 4643, 'pageSummary', 'Essam Al Tamimi did not build the region’s largest Arab-owned law advisory and become recognised as one of his generation’s brightest and most generous legal minds by luck, nor by “sitting on a beach reading a book” of the latter he is adamant. \r\n'),
(85196, 4643, '_pageSummary', 'field_59e59b307dec8'),
(85197, 4643, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-5/march-4/interview-a-moment-with-essam-al-tamimi-founder-senior-partner-of-al-tamimi-company.html'),
(85198, 4643, '_currentURL', 'field_59d35123ab1e7'),
(85199, 4643, '_yoast_wpseo_metadesc', 'Essam Al Tamimi did not build the region’s largest Arab-owned law advisory and become recognised as one of his generation’s brightest and most generous legal minds by luck, nor by “sitting on a beach reading a book” of the latter he is adamant.'),
(85200, 4644, 'content', '<p><strong>Introduction<br /></strong></p>\r\n<p>The Draft Jordanian Investment Law (the &ldquo;Draft Law&rdquo;) aims to attract and encourage both local and foreign investment in Jordan, as well as, reinforce confidence in the investment environment in Jordan for the organization, revitalization and development of the economic environment.&nbsp; The Draft Law is still under study, having recently undergone its second reading.&nbsp;</p>\r\n<p>The Draft Law tackles the following issues:</p>\r\n<p>a)Tax exemptions;<br />b)Investors&rsquo; rights;<br />c)A one-stop shop investment window;<br />d)Development and Free zones, and the relevant tax and customs exemptions;<br />e)Residency in Development and Free Zones; and<br />f)The establishment of an Investment Board, as well as, a Higher Investment Committee.&nbsp;</p>\r\n<p>In this article, we will examine the sections regarding tax exemptions, investors&rsquo; rights, and the one-stop shop investment window.&nbsp;</p>\r\n<p><strong>Tax exemptions<br /></strong></p>\r\n<p>The Law currently in force is the Investment Promotion Law No. 16 of 1995, (as amended) (the &ldquo;Investment Law&rdquo;). Economic projects within the following Sectors or Sub-sectors currently enjoy tax exemptions under the Investment Law:</p>\r\n<ol>\r\n<li>Industry;</li>\r\n<li>Agriculture;</li>\r\n<li>Hotels;</li>\r\n<li>Hospitals;</li>\r\n<li>Maritime Transport and Railways;&nbsp;</li>\r\n<li>Leisure and Recreational Compounds;</li>\r\n<li>Conventions and Exhibition Centers;&nbsp;</li>\r\n<li>Pipeline transportation and distribution services for water, Gas and Petroleum derivatives as well as its exploitation.</li>\r\n</ol>\r\n<p>The Draft Law, on the other hand, seeks to change the emphasis from one that is sector specific, to one that is specific to goods and services that benefit from tax exemptions.&nbsp;</p>\r\n<p>Article 4 of the Draft Law applies tax exemptions to all areas of Jordan, except Free Zones and Development Zones (where specific provisions of the Draft Law apply.)&nbsp;</p>\r\n<p>The Council of Ministers, upon the recommendation of the Minister of Trade and Industry, as well as, the Minister of Finance based on the recommendation of the Technical Committee (created by virtue of the Draft Law), shall issue comprehensive tables of goods and services that shall benefit from tax exemptions, whereby the proposed structure is the following:&nbsp;</p>\r\n<ol>\r\n<li>A table for goods imported into Jordan that shall be exempt from Customs Duties, and subject to General Sales Tax at 0%;&nbsp;</li>\r\n<li>A table for services that shall be subject to General Sales Tax at 0%; and</li>\r\n<li>A table for goods and services in certain economic sectors that shall be exempt from Customs Duties and subject to General Sales Tax at 0%.</li>\r\n</ol>\r\n<p><strong>Foreign Investment<br /></strong></p>\r\n<p>Article 10 of the Draft Law adopts a similar definition of &lsquo;Invested Foreign Capital&rsquo; as the Investment Law, whereby Invested Foreign Capital is considered to be any monetary investment in Jordan by a non-Jordanian, whether in cash or in kind, or any rights with a monetary value, which are deemed to include:</p>\r\n<ol>\r\n<li>Amounts transferred by the foreigner into Jordan;&nbsp;</li>\r\n<li>Imported assets in-kind;</li>\r\n<li>Intangible property rights, such as licenses, patents, trademarks and trade names registered in Jordan;</li>\r\n<li>Profits, returns and reserves resulting from Invested Foreign Capital in an economic project in Jordan, which is used for increasing the capital of the economic project or undertaking, or for investment in another economic project;&nbsp; and</li>\r\n<li>Shares in an economic project resulting from the capitalizing and swapping of the debts of the investor.</li>\r\n</ol>\r\n<p>The Non-Jordanian Investor shall be entitled, under the Draft Law, to the following:</p>\r\n<ol>\r\n<li>Remittance abroad of all or part of the Invested Foreign Capital, in a convertible currency, that was brought into Jordan for the purposes of investment, in accordance with the relevant laws and regulations;</li>\r\n<li>Repatriation of revenues and profits outside of Jordan, in a convertible currency, earned by virtue of the investment; &nbsp;</li>\r\n<li>The liquidation or sale of the whole, or his share of the economic project or undertaking, as well as the ability to act with the proceeds without delay;&nbsp;</li>\r\n<li>The management of the economic project or undertaking in any way he sees fit, through personnel chosen by him; and</li>\r\n<li>Benefitting from the same treatment as a Jordanian investor.</li>\r\n</ol>\r\n<p>Further, any non-Jordanian workers in any economic undertaking shall have the right to remit their wages and compensation outside of Jordan.&nbsp;</p>\r\n<p>In this regard, Article 11 of the Draft Law provides that it shall not be possible to claim ownership of any economic project or undertaking, unless this is through appropriation for public benefit, provided that fair compensation is paid in a convertible currency without delay.</p>\r\n<p><strong>One-Stop Shop Investment Window&nbsp;<br /></strong></p>\r\n<p>In an aim to revise and simplify economic projects licensing procedures, the Draft Law aims to create a one-stop shop for the licensing of economic projects and undertakings in Jordan. All directorates, units or departments that carry out licensing activities in any official public entity shall be moved to one licensing department.&nbsp;</p>\r\n<p>Article 17 of the Draft Law provides that decisions regarding licensing must be issued within a maximum of 15 working days, from the date that all of the legal application requirements are met.&nbsp;</p>\r\n<p>In the case that the license application is rejected, then the applicant must be informed in writing within 3 business days, with attached details regarding any shortcomings in the application. There is also a mechanism in place allowing the applicant to challenge this decision with the Minister of Trade and Industry within 10 days of being informed of the rejection. The applicant shall be informed of the result of this challenge within 30 days, in accordance with Article 18 of the Draft Law.<br /><strong></strong></p>\r\n<p><strong>Conclusion</strong></p>\r\n<p>The Draft Law aims to provide further clarity in the area of local and foreign investment in Jordan, in a difficult economic climate. The Draft Law seeks to reorganize the body of law currently in place, specifically in relation to Development and Free Zones in Jordan. However, overall, in the other areas mentioned in this article, the Draft Law has made additions and administrative improvements, rather than fundamentally changed current laws.&nbsp; &nbsp;</p>'),
(85201, 4644, '_content', 'field_59b649b5c8b2b'),
(85202, 4644, 'lawUpdateArticleMonth', '4640'),
(85203, 4644, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(85204, 4644, 'content_description', 'The Draft Jordanian Investment Law (the “Draft Law”) aims to attract and encourage both local and foreign investment in Jordan, as well as, reinforce confidence in the investment environment in Jordan for the organization, revitalization and development of the economic environment. '),
(85205, 4644, '_content_description', 'field_59b641c07f473'),
(85206, 4644, 'pageSummary', 'The Draft Jordanian Investment Law (the “Draft Law”) aims to attract and encourage both local and foreign investment in Jordan, as well as, reinforce confidence in the investment environment in Jordan for the organization, revitalization and development of the economic environment. '),
(85207, 4644, '_pageSummary', 'field_59e59b307dec8'),
(85208, 4644, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-5/march-4/draft-jordanian-investment-law.html'),
(85209, 4644, '_currentURL', 'field_59d35123ab1e7'),
(85210, 4644, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Mays Kadhim'),
(85211, 4644, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(85212, 4644, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'm.kadhim@tamimi.com'),
(85213, 4644, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'field_59e59afcd15de'),
(85214, 4644, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', ''),
(85215, 4644, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', 'field_59e59b05d15df'),
(85216, 4644, 'lawUpdateArticleNoWriters', '1'),
(85217, 4644, '_lawUpdateArticleNoWriters', 'field_59e59aaed15dc'),
(85218, 4644, '_yoast_wpseo_metadesc', 'The Draft Jordanian Investment Law (the “Draft Law”) aims to attract and encourage both local and foreign investment in Jordan, as well as, reinforce confidence in the investment environment in Jordan for the organization, revitalization and development of the economic environment.'),
(85219, 4645, 'content', '<p>The judgment below highlights how a mortgage can be enforced by the Execution Court in the event a debtor defaults on paying the mortgage installments.&nbsp; The mortgage deed, in this case, was silent on the issue of obtaining attachments over mortgaged property.</p>\r\n<p><strong>Summary<br /></strong></p>\r\n<p>A Home Finance provider (the creditor- mortgagee) sought an order against a debtor (mortgagor) for an attachment to be levied on property and for the sale of land by public auction in order to collect a debt amounting to AED 1,637,807.22 from the proceeds of the sale.&nbsp; The Home Finance provider had given the debtor a mortgage in the amount of AED 1.6 million to construct a villa on the plot pursuant to a mortgage contract attested by the Land Department.</p>\r\n<p>The debtor defaulted on paying the mortgage installments and as a result, the Home Finance provider filed an application with the Execution judge of the Dubai courts to enforce the mortgage deed.</p>\r\n<p>The Court of Cassation held that the Home Finance provider was entitled to recover its debt from the sale proceeds pursuant to Article 292, 293 of the Civil Procedure Law and Articles 25, 26 of Dubai Law 14 of 2008 concerning mortgages.</p>\r\n<p>It was established that the Home Finance provider could proceed directly to the Execution judge to execute the mortgage deed without going to the courts. The judgment also highlights that pursuant to Article 173 (3) of the Law of Civil Procedures, it is not permissible to contest judgments by the appeal courts at cassation if they concern execution procedures.&nbsp;&nbsp;</p>\r\n<p>Execution procedures are steps taken by the execution judge in execution of judgments and other executory instruments by way of compulsory enforcement.&nbsp; 173(3) also encompasses disputes relating to the procedures falling within the jurisdiction of the execution judge.</p>\r\n<p><strong>Court of First Instance<br /></strong></p>\r\n<p>On 12.10.11, the judge dismissed the Home Finance Provider&rsquo;s application on the basis that the mortgage deed did not expressly state that the creditor-mortgagee had the right to obtain an executive attachment over the mortgaged property and therefore not entitled to request that it be sold by public auction before the end of the mortgage term (06.08.28)<br /><strong><br />Court of Appeal&nbsp;<br /></strong><br />The Home Finance Provider appealed the Court of First Instance judgment [Property Execution] and on 11.10.12, the Court of Appeal accepted the appeal in form and, on the merits, reversed the first instance decision and ordered that an executive attachment be imposed on the mortgaged property (in anticipation of selling it by public auction) and the Land &amp; Property Department be notified accordingly in accordance with its procedures and finally, the Home Finance provider was authorised to collect an amount equivalent to the principal amount of debt from the sale proceeds.<br /><strong><br />Court of Cassation&nbsp;&nbsp;<br /><br /></strong>The debtor/mortgagor appealed before the Court of Cassation on 05.03.12 seeking a reversal of the appealed decision. The Home Finance provider argued that no appeal against the Court of Appeal&rsquo;s decision was possible because it was final, pursuant to Article 173(3) of the Civil Procedure Law.<br /><br />The Home Finance provider&rsquo;s argument was accepted by the Court of Cassation on the basis of Article 173 (3) of the Civil Procedure Law and the last section of Article 17 of Law No. 3 of 1992 on the formation of the Dubai Courts, it reiterated that appeals at cassation are not available for disputes concerning enforcement where a request is made to bar, stay, continue, or invalidate enforcement, as the case may be, whether brought by a party to the enforcement action or otherwise, as long as the dispute concerns enforcement, whatever the amount or nature of the relief sought, be it provisional or substantive (except those actions specifically excluded by law such as an action for recovery of possession) where the final outcome is to allow or disallow enforcement as valid or invalid. This is known as an enforcement action.<br /><br />According to the grounds for relief, the action is a substantive enforcement action by the Home Finance Provider seeking an executive attachment over the property mortgaged in its favour, owned by the debtor-mortgagor, and registered in his name at the Land &amp; Property Department, Dubai and an order that the latter be notified to arrange for the property to be sold by auction in accordance with its applicable procedures, and that the creditor would be entitled to recover its debt from the sale proceeds pursuant to Articles 292, 293 of the Civil Procedure Law and Articles 25, 26 of Dubai Law No. 14 of 2008 concerning mortgages.<br /><br />The Home Finance Provider&rsquo;s requests were granted.&nbsp; The cassation appeal revolved around the issue of the writ of execution and the property in question and as this matter was adjudicated by the Court of Appeal, its decision cannot be appealed to the Court of Cassation. The appeal was dismissed with costs and AED 2,000 as advocate&rsquo;s fees with the deposit forfeited.&nbsp;&nbsp;</p>'),
(85220, 4645, '_content', 'field_59b649b5c8b2b'),
(85221, 4645, 'lawUpdateArticleMonth', '4640'),
(85222, 4645, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(85223, 4645, 'content_description', 'The judgment below highlights how a mortgage can be enforced by the Execution Court in the event a debtor defaults on paying the mortgage installments.  The mortgage deed, in this case, was silent on the issue of obtaining attachments over mortgaged property.'),
(85224, 4645, '_content_description', 'field_59b641c07f473'),
(85225, 4645, 'pageSummary', 'The judgment below highlights how a mortgage can be enforced by the Execution Court in the event a debtor defaults on paying the mortgage installments.  The mortgage deed, in this case, was silent on the issue of obtaining attachments over mortgaged property.'),
(85226, 4645, '_pageSummary', 'field_59e59b307dec8'),
(85227, 4645, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-5/march-4/enforcement-of-a-mortgage.html'),
(85228, 4645, '_currentURL', 'field_59d35123ab1e7'),
(85229, 4645, 'lawUpdateArticleWriters_0_lawUpdateArticleWriter', '569'),
(85230, 4645, '_lawUpdateArticleWriters_0_lawUpdateArticleWriter', 'field_59da2ac06b065'),
(85231, 4645, 'lawUpdateArticleWriters', '1'),
(85232, 4645, '_lawUpdateArticleWriters', 'field_59da2a866b064'),
(85233, 4645, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Zane Anani'),
(85234, 4645, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(85235, 4645, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'z.anani@tamimi.com'),
(85236, 4645, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'field_59e59afcd15de'),
(85237, 4645, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', ''),
(85238, 4645, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', 'field_59e59b05d15df'),
(85239, 4645, 'lawUpdateArticleNoWriters', '1'),
(85240, 4645, '_lawUpdateArticleNoWriters', 'field_59e59aaed15dc'),
(85241, 4645, 'lawUpdateArticlePractices_0_lawUpdateArticlePractice', '410'),
(85242, 4645, '_lawUpdateArticlePractices_0_lawUpdateArticlePractice', 'field_59dc79c8e10ce'),
(85243, 4645, 'lawUpdateArticlePractices', '1'),
(85244, 4645, '_lawUpdateArticlePractices', 'field_59dc7918de021'),
(85245, 4645, '_yoast_wpseo_metadesc', 'The judgment below highlights how a mortgage can be enforced by the Execution Court in the event a debtor defaults on paying the mortgage installments. The mortgage deed, in this case, was silent on the issue of obtaining attachments over mortgaged property.'),
(85246, 4646, 'content', '<p>UAE Law no. 10 of 2008 defines Medical Negligence as an &ldquo;error caused by the lack of knowledge of technical matters when such knowledge is presumptive to exist in all those who practice the profession and that such error is due to negligence or substandard conduct (care)&rdquo;. <br /><br />This definition strives to maintain a balance between the protecting patients from the negligence of doctors and providing doctors with the freedom to practice without constant fear of medical malpractice suits which can be damaging to a doctor&rsquo;s reputation, if not career-ending.<br /><br />As set out in the below Dubai Court of Cassation Judgment, this balance is also reflected in the finding that a Doctor&rsquo;s medical responsibility is not to achieve a result, but rather to adhere to a professional standard of care towards a patient.<br /><br />Medical institutions and doctors are also required to carry adequate insurance, allowing doctors to practice without the fear of having to make huge payouts by way of compensation. <br /><br />In order to obtain a judgment against a doctor for medical malpractice/ negligence, three things must be established:<br /><br />1)&nbsp;That a duty of care was owed by the doctor to the patient; and<br />2)&nbsp;That the duty of care was breached due to the fact that the doctor failed to adhere to the correct standard of care; and<br />3)&nbsp;That the patient suffered damages as a result of the breach of the duty of care.<br /><br /><strong>Dubai Court of Cassation Case</strong> <br /><br />This case examined a doctor&rsquo;s duty of care towards his patient.<br /><br />The Claimant/patient was admitted to a hospital (the &ldquo;First Respondent&rdquo;) suffering from varicose veins in his left leg. He was examined by a doctor (the &ldquo;Second Respondent&rdquo;) who determined that he required surgery to remove the varicose veins. During the procedure the Second Respondent committed a medical error and cut a nerve in the patient&rsquo;s leg which was responsible for the movement of the leg. This resulted in the patient suffering from a 20% physical disability in his left leg. The Claimant therefore initiated proceedings before the Dubai Court of First Instance for damages. <br /><br />The Court of First Instance, after reviewing the appointed medical committee&rsquo;s report, awarded the Claimant the amount of AED 800,000. The First and the Second Respondents (the &ldquo;Respondents) subsequently appealed to the Court of Appeal and the award was reduced to AED 200,000. <br /><br />Both the Claimant and the Respondents challenged the Court of Appeal&rsquo;s judgment before the Dubai Court of Cassation. <br /><br />The Respondents&rsquo; arguments before the Court of Cassation were twofold:<br /><br />1-&nbsp;The Court of Appeal had erroneously established that the Second Respondent had committed negligent medical malpractice despite the fact that documents which had been submitted to the court contained a medical report which concluded that the Second Respondent did not breach his duty of care towards the patient; and&nbsp; <br /><br />2-&nbsp;The lower court when determining the sum awarded did not specify how the award was calculated in accordance with the damage allegedly suffered by the Claimant. <br /><strong><br />The Court of Cassation held:<br /></strong><br />1-&nbsp;The Court rejected the Respondents&rsquo; first argument on the basis that a doctor is not required to achieve a result (i.e. curing a patient) but rather has a professional duty to provide patients with competent medical care according to known scientific and technical principles in a manner that achieves the proper care for the patient.</p>\r\n<p>When measuring when the correct level of competent medical care was provided it needed to be established that an average competent doctor with the required scientific knowledge and technical expertise would have acted in the same way, taking into consideration the surrounding circumstances while following professional ethics as well as known scientific principles.</p>\r\n<p>When a doctor fails to provide such a duty of care, he or she is liable for damages suffered by the patient as long as it can be established that the damages were caused by the doctor&rsquo;s breach of his duty of care. Furthermore, the court has the discretion to determine whether the doctor has committed negligence from facts of the case.</p>\r\n<p>Further, the Court held that medical committee&rsquo;s report (upon which the judgments of the lower courts were based) set out that the patient was admitted to the hospital with the full ability to walk. After surgery to remove Varicose Veins; the patient lost the ability to move his left leg as a result of a nerve in his leg being cut during surgery. There was also a failure to take swift remedial measures in respect of this. The report also added that from a medical standpoint, the severing of such a nerve rarely happens in this type of surgery which demonstrates that the doctor had been negligent.</p>\r\n<p>2-&nbsp;The Cassation Court rejected the respondents&rsquo; second argument for the following reasons:<br /><br />Whilst the Court of Cassation recognized that the determination of whether damages had been suffered was ultimately subject to the review of the Court of Cassation, the sum awarded as compensation was to be determined by the court of substance (i.e. the lower courts) and was not subject to review by the Court of Cassation in circumstances where the court of substance had considered all of the elements of the damage and losses suffered by the injured party. <br /><br />The Court of Cassation held that the lower courts when calculating the award had correctly taken into account the following:<br /><br />a)&nbsp;The fact that Material Damage had occurred resulting in the patient suffering a physical disability which required compensating;<br />b)&nbsp;Moral Damages: the patient was a young man in the prime of life who due to the negligence of his doctor lost the ability to walk properly which affected his life. <br /><br />Accordingly, the Court of Cassation upheld the judgment of the Court of Appeal.</p>'),
(85247, 4646, '_content', 'field_59b649b5c8b2b'),
(85248, 4646, 'lawUpdateArticleMonth', '4640'),
(85249, 4646, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(85250, 4646, 'content_description', 'UAE Law no. 10 of 2008 defines Medical Negligence as an “error caused by the lack of knowledge of technical matters when such knowledge is presumptive to exist in all those who practice the profession and that such error is due to negligence or substandard conduct (care)”.'),
(85251, 4646, '_content_description', 'field_59b641c07f473'),
(85252, 4646, 'pageSummary', 'UAE Law no. 10 of 2008 defines Medical Negligence as an “error caused by the lack of knowledge of technical matters when such knowledge is presumptive to exist in all those who practice the profession and that such error is due to negligence or substandard conduct (care)”.'),
(85253, 4646, '_pageSummary', 'field_59e59b307dec8'),
(85254, 4646, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-5/march-4/elements-for-determining-negligence.html'),
(85255, 4646, '_currentURL', 'field_59d35123ab1e7'),
(85256, 4646, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Taiba Al Saffar'),
(85257, 4646, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(85258, 4646, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 't.alsafar@tamimi.com'),
(85259, 4646, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'field_59e59afcd15de'),
(85260, 4646, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', ''),
(85261, 4646, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', 'field_59e59b05d15df'),
(85262, 4646, 'lawUpdateArticleNoWriters_1_lawUpdateAuthorName', 'Marwa El Mahdy'),
(85263, 4646, '_lawUpdateArticleNoWriters_1_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(85264, 4646, 'lawUpdateArticleNoWriters_1_lawUpdateAuthorEmail', 'm.elmahdy@tamimi.com'),
(85265, 4646, '_lawUpdateArticleNoWriters_1_lawUpdateAuthorEmail', 'field_59e59afcd15de'),
(85266, 4646, 'lawUpdateArticleNoWriters_1_lawUpdateAuthorLocation', ''),
(85267, 4646, '_lawUpdateArticleNoWriters_1_lawUpdateAuthorLocation', 'field_59e59b05d15df'),
(85268, 4646, 'lawUpdateArticleNoWriters', '2'),
(85269, 4646, '_lawUpdateArticleNoWriters', 'field_59e59aaed15dc'),
(85270, 4646, 'lawUpdateArticlePractices_0_lawUpdateArticlePractice', '410'),
(85271, 4646, '_lawUpdateArticlePractices_0_lawUpdateArticlePractice', 'field_59dc79c8e10ce'),
(85272, 4646, 'lawUpdateArticlePractices', '1'),
(85273, 4646, '_lawUpdateArticlePractices', 'field_59dc7918de021'),
(85274, 4646, '_yoast_wpseo_metadesc', 'UAE Law no. 10 of 2008 defines Medical Negligence as an “error caused by the lack of knowledge of technical matters when such knowledge is presumptive to exist in all those who practice the profession and that such error is due to negligence or substandard conduct (care)”.'),
(85275, 4647, 'content', '<strong>Background to the Case</strong>\r\n\r\nThe Claimant/our client, a Swiss watchmaker, is the owner of a trademark which had been registered in the office of origin, Switzerland, with the World Intellectual Property Organisation (WIPO) and also registered internationally.  The Claimant lodged an application to register their trademark in Qatar, which consisted of a semi-figurative trademark featuring the company name and a symbol, with the Ministry of Business and Trade’s Industrial Property Rights Office.  The application was accepted and as part of the examination period was published for opposition purposes in the monthly Official Gazette.\r\n\r\nAn objection to the registered trademark was filed with the Trademark’s Registrar by the Defendant on the grounds that the Claimant’s trademark shared an identical symbol to theirs.  The Registrar issued a decision upholding the objection made by the Defendant and the registration process was halted.\r\n\r\n<strong>Ruling of the Court of First Instance (civil division)\r\n</strong>\r\nThe Claimant contested the decision of the Registrar before the Court of First Instance based on  the provisions of Article 6(5) of the Paris Convention (of which Qatar is a signatory state) and Article 8 of Qatar’s Trademark Law No 9 2002.\r\n\r\nThe Claimant stated their trademark differed from that of the Defendant’s based on the following reasons:\r\n<ul>\r\n 	<li>Pursuant to Article 8 (1) of the Trademark Law No 9 of 2002 certain symbols, including the contested one, are generic symbols which cannot be registered as a trademark;</li>\r\n 	<li>The two trademarks were different both in size and shape; and</li>\r\n 	<li>The two trademarks differ in the overall appearance and are distinct from one another.</li>\r\n</ul>\r\n<strong>The Court of First Instance rejected the claim on the following grounds:\r\n</strong>\r\n<ul>\r\n 	<li>The trademarks were similar in appearance;</li>\r\n 	<li>The symbol in question was identical to that of the Claimant; and</li>\r\n 	<li>The main distinguishing feature of the trademark being the symbol would cause confusion to the consumer as to the source of the trademark.</li>\r\n</ul>\r\nIn reaching its decision to uphold that of the Registrar, the Court also took into account the fact that the Defendant had registered their trademark in Qatar before the Claimant did.\r\n<strong>\r\nJudgment of the Court of Appeal (civil division)</strong>\r\n\r\nThe Claimant/our client appealed against the Judgement before the Court of Appeal based on the aforementioned reasons and argued that the Court of Cassation had previously issued a principle which had stated that in assessing the degree of similarity between two trademarks, the trademark should be examined in its entirety and not solely on a particular feature or aspect.\r\n\r\nThe Court of Appeal overruled the findings of the Court of First Instance and ruled in favour of the Claimant.  In deciding the case, the Court of Appeal applied the balancing test, where it viewed the overall aspects of the trademark and concluded that the trademarks were dissimilar and can be distinguished by the consumer.  They also viewed that the symbol in question was generic and the Defendant could not be afforded exclusivity of its use.  The Court of Appeal ruled that the Claimant be allowed to proceed with the registration of their trademark in Qatar.\r\n<strong>\r\nJudgment of the civil Court of Cassation\r\n</strong>\r\nThe Defendant did not appeal.  However, The Ministry of Business and Trade only appealed against the Judgement before the Court of Cassation based on the following arguments:\r\n<ul>\r\n 	<li>Based on Article 3/3 of the Law no. 7 of 2007 (Settlement of Administrative Disputes) the Administrative Court is alone entitled to look into the administrative disputes relevant to the requests presented by any entities aiming at the cancellation of the final administrative decisions. The controversial decision issued by the Ministry of Business and Trade’s Industrial Property Rights Office, thus the Administrative Division should be competent not the Civil Division, especially that Article 3/3 of the Law 7 of 2007 superseded Article 15/5 of Trade Mark Law no. 9 of 2002 which provides that The decision of the TM Office regarding the opposition shall be subject to appeal to the Civil Court...).</li>\r\n 	<li>The two trademarks were different both in size and shape; and</li>\r\n 	<li>The two trademarks differ in the overall appearance and are distinct from one another.</li>\r\n</ul>\r\n<strong>The Court of Cassation rejected the Ministry’s appeal on the following grounds:\r\n</strong>\r\n<ul>\r\n 	<li>The decision of the Ministry of Business and Trade’s Industrial Property Rights Office is not an administrative decision, because the aforementioned decision was taken regarding a trademark dispute between two private parties, and this dispute related to a private law (i.e. Trademark Law)</li>\r\n 	<li>The trademarks were dissimilar and can be distinguished by the consumer; and that the symbol in question was generic.</li>\r\n</ul>\r\nIn the light of the foregoing, the Court of Cassation upheld the judgment of the Court of Appeal and rejected the Ministry’s appeal.\r\n<strong>\r\nPractice Note:</strong>\r\n\r\nBased on the above, it is crucial for any party wanting to dispute a decision made by the Ministry of Business &amp; Trade to prove his rights on a Trademark, to be aware that the Civil Division is the competent division regarding the Trademark dispute, not the Administrative Division of the Civil Court regarding any controversial decision issued by the Ministry of Business and Trade’s Industrial Property Rights Office.  Therefore, this Judgment openly reserved the jurisdiction solely to the Civil Division Court.'),
(150272, 4647, 'core_values', ''),
(150273, 4647, '_core_values', 'field_59b64ab071de4'),
(150274, 4647, 'file', ''),
(85276, 4647, '_content', 'field_59b649b5c8b2b'),
(85277, 4647, 'lawUpdateArticleMonth', '4640'),
(85278, 4647, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(85279, 4647, 'content_description', 'Al Tamimi & Company’s Qatar Litigation team successfully won a recent lawsuit (Court of Cassation) brought on behalf of a Swiss watchmaker following a dispute which arose from the trademark registration process where the Swiss watchmaker was prevented from registering their trademark by a rival high end watchmaker for trademark infringement. \r\n'),
(85280, 4647, '_content_description', 'field_59b641c07f473'),
(85281, 4647, 'pageSummary', 'Al Tamimi &amp; Company’s Qatar Litigation team successfully won a recent lawsuit (Court of Cassation) brought on behalf of a Swiss watchmaker following a dispute which arose from the trademark registration process where the Swiss watchmaker was prevented from registering their trademark by a rival high end watchmaker for trademark infringement.'),
(85282, 4647, '_pageSummary', 'field_59e59b307dec8'),
(85283, 4647, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-5/march-4/the-competent-courtdivision-regarding-qatar-trademark-disputes.html'),
(85284, 4647, '_currentURL', 'field_59d35123ab1e7'),
(150256, 4647, 'lawUpdateArticleNoWriters', ''),
(150257, 4647, '_lawUpdateArticleNoWriters', 'field_59e59aaed15dc'),
(85287, 4647, 'lawUpdateArticleWriters', '1'),
(85288, 4647, '_lawUpdateArticleWriters', 'field_59da2a866b064'),
(85289, 4647, 'lawUpdateArticlePractices_0_lawUpdateArticlePractice', '410'),
(85290, 4647, '_lawUpdateArticlePractices_0_lawUpdateArticlePractice', 'field_59dc79c8e10ce'),
(85291, 4647, 'lawUpdateArticlePractices', '2'),
(85292, 4647, '_lawUpdateArticlePractices', 'field_59dc7918de021'),
(85293, 4647, '_yoast_wpseo_metadesc', 'Al Tamimi & Company’s Qatar Litigation team successfully won a recent lawsuit (Court of Cassation) brought on behalf of a Swiss watchmaker following a dispute which arose from the trademark registration process where the Swiss watchmaker was prevented from registering their trademark by a rival high end watchmaker for trademark infringement.'),
(85294, 4648, 'content', '<p>However, pursuant to a recent ruling by the Jordanian Court of Cassation, certain judgments issued by foreign religious courts may now have a greater chance of being enforced provided that certain conditions are met.<br /><br /><strong>Summary of facts:</strong></p>\r\n<ul>\r\n<li>The claimant filed a lawsuit against the defendant requesting the execution of a foreign Judgment in Jordan, obligating the latter to pay 941,904,600 Jordanian Dinars.</li>\r\n<li>The foreign Judgment was rendered by the Jeddah religious courts in the Kingdom of Saudi Arabia.</li>\r\n</ul>\r\n<p>Procedural History:</p>\r\n<ul>\r\n<li>The court of first instance ruled in favor of executing the foreign judgment in Jordan.</li>\r\n<li>The court of appeal ruled against the executing of the foreign judgment in Jordan.</li>\r\n<li>The court of cassation ruled in favor of the court of first instance judgment.</li>\r\n</ul>\r\n<p><strong>The court of cassation<br /></strong><br />A number of points were considered by the Court of Cassation including:<br /><br />-&nbsp;Whether the claimants held a valid power of attorney (it was not executed when the claimants were in Jordan).<br />-&nbsp;Whether there was a violation of article 102 of the Jordanian Constitution of 1952 which provides that:<br /><br />&nbsp;&ldquo;The Civil Courts in the Hashemite Kingdom of Jordan shall have jurisdiction over all persons in all matters, civil and criminal, including cases brought by or against the Government, except those matters in respect of which jurisdiction is vested in Religious or Special Courts in accordance with the provisions of the present Constitution or any other legislation in force&rdquo;<br /><br />-&nbsp;Whether there was a breach of article 25/B of the Riyadh Convention on Judicial Co-operation.<br />-&nbsp;Whether there was a breach of articles 99 and 27 of the Jordanian Constitution.<br /><br /><strong>The Decision</strong><br /><br />After reviewing all the facts provided by both parties to the case, the Court of Cassation ruled in favour of upholding the decision issued by the Court of First Instance in that they ruled in favour of executing the foreign judgment in Jordan.<br /><br />Furthermore, the Court of Cassation&rsquo;s ruling in favour of executing the Saudi judgment in Jordan set a new precedent in that it defied the provision of Article 99 of the Constitution. Article 99 provides that judgments issued by religious courts outside of Jordan are not enforceable in Jordan. However, the Court of Cassation held that the foreign judgment had to be enforced in Jordan as the same was, after being issued by the Religious Saudi Courts in the Kingdom of Saudi Arabia, certified by the Court of Cassation in Saudi Arabia and was awarded a preemptory status.<br /><br />In addition, the Court of Cassation found that the decision had been certified by all required parties and bodies which meant that in accordance with Article 34, in addition to Article 25/A, of the aforementioned Riyadh Agreement, the decision issued by the foreign Court of Cassation could be enforced in Jordan.<br /><br />Furthermore, the Court of Cassation provided in its decision that the courts that are requested to look into the enforceability of foreign judgments are not supposed to look into the merits of the case or alter the basis of its decision. It went on to determine that the tasks of the court were restricted to reviewing the basis of its enforceability in Jordan. Additionally, the Court of Cassation provided that in accordance with the Jordanian Law for the Implementation of Foreign Judgments No. 8 for the year 1952, Jordanian courts may reject the implementation of foreign judgments in Jordan under certain conditions, none of which were applicable to the case at hand.</p>'),
(56444, 3385, '_wp_attached_file', 'uploads/media-3384.jpg'),
(56445, 3385, '_wp_attachment_metadata', 'a:5:{s:5:\"width\";i:100;s:6:\"height\";i:133;s:4:\"file\";s:22:\"uploads/media-3384.jpg\";s:5:\"sizes\";a:0:{}s:10:\"image_meta\";a:12:{s:8:\"aperture\";s:1:\"0\";s:6:\"credit\";s:0:\"\";s:6:\"camera\";s:0:\"\";s:7:\"caption\";s:0:\"\";s:17:\"created_timestamp\";s:1:\"0\";s:9:\"copyright\";s:0:\"\";s:12:\"focal_length\";s:1:\"0\";s:3:\"iso\";s:1:\"0\";s:13:\"shutter_speed\";s:1:\"0\";s:5:\"title\";s:0:\"\";s:11:\"orientation\";s:1:\"0\";s:8:\"keywords\";a:0:{}}}'),
(84845, 4625, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(84844, 4625, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Manal Ben Said'),
(84843, 4625, '_currentURL', 'field_59d35123ab1e7'),
(84438, 4605, '_content', 'field_59b649b5c8b2b'),
(84439, 4605, 'lawUpdateArticleMonth', '4598'),
(84440, 4605, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(84441, 4605, 'content_description', 'Introduction: Limitation of liability (LOL) clauses are commonly used in construction related contracts in the UAE and indeed in most parts of the world. '),
(84442, 4605, '_content_description', 'field_59b641c07f473'),
(84443, 4605, 'pageSummary', 'Introduction: Limitation of liability (LOL) clauses are commonly used in construction related contracts in the UAE and indeed in most parts of the world. '),
(84444, 4605, '_pageSummary', 'field_59e59b307dec8'),
(84445, 4605, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-6/november-3/can-we-really-limit-liability.html'),
(84446, 4605, '_currentURL', 'field_59d35123ab1e7'),
(84447, 4605, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Faisal Attia'),
(84448, 4605, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(84449, 4605, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'f.attia@tamimi.com'),
(84450, 4605, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'field_59e59afcd15de'),
(84451, 4605, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', ''),
(84452, 4605, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', 'field_59e59b05d15df'),
(84453, 4605, 'lawUpdateArticleNoWriters', '1'),
(84454, 4605, '_lawUpdateArticleNoWriters', 'field_59e59aaed15dc'),
(84455, 4605, 'lawUpdateArticlePractices_0_lawUpdateArticlePractice', '537'),
(84456, 4605, '_lawUpdateArticlePractices_0_lawUpdateArticlePractice', 'field_59dc79c8e10ce'),
(84457, 4605, 'lawUpdateArticlePractices', '1'),
(84458, 4605, '_lawUpdateArticlePractices', 'field_59dc7918de021'),
(84459, 4605, '_yoast_wpseo_metadesc', 'Introduction: Limitation of liability (LOL) clauses are commonly used in construction related contracts in the UAE and indeed in most parts of the world.');
INSERT INTO `tm_postmeta` (`meta_id`, `post_id`, `meta_key`, `meta_value`) VALUES
(84460, 4606, 'content', '<p><span>In continuation of its objective of improving liquidity in the market and introducing international best business practices in the UAE, the SCA has recently issued four more regulations (&ldquo;Regulations&rdquo;). It is important to note that the Regulations have not been published in the Official Gazette. We would expect publication to take place within the next month. These Regulations, when implemented, would be landmark regulations. The four Regulations are:-</span><br /><br /><span>1.&nbsp;SCA Board Decision No. 48 of 2012 concerning the Regulations as to securities short selling (&ldquo;Short Selling Regulation&rdquo;):</span><br /><br /><span>Selling shares not owned by the seller at the time of sale is an activity that has always been prohibited by the SCA and the SCA has issued several notices to market members emphasizing this prohibition with warnings of severe penalties and cancellation of licenses to any person engaging in such activities.&nbsp; The SCA has now legalized short selling.</span><br /><br /><span>Currently, short selling has only been permitted to enable market makers to conduct their market making activity. Any other case for permitting short selling in the future would require approval by both the UAE exchange and the SCA. Additionally, securities in which short selling shall be permitted will require prior SCA approval. Securities may only be short-sold one month after their listing on any UAE exchange. There are provisions for suspension of short selling in securities.</span><br /><br /><span>Since a broker is obligated to ensure that it does not execute a short selling transaction except after ensuring its client&rsquo;s ability to deliver the concerned securities on the settlement date, a precondition to a short selling transaction may be a stock borrowing transaction by the short seller.&nbsp; The broker would also need to ensure that the price at which securities are short sold is higher than the last executed price. These restrictions would not apply to market makers short selling securities since such market makers would have provided an independent guarantee to the exchange.</span><br /><br /><span>Notwithstanding that the Short Selling Regulations do not obligate a market maker to enter into a stock borrowing transaction as a precursor to a short selling transaction, it may be likely from a legal perspective that a market maker has possession of the securities at the time of placing the short selling orders, since there is a risk that the UAE courts may disregard such a sale based on Shariah principles.</span><br /><br /><span>Failure to settle short sold securities could result in fines imposed on brokers or market makers and in some cases liquidation of bank guarantees provided by them to the exchange.</span><br /><br /><span>Each of the exchanges is expected to issue their internal by-laws that will govern the procedures for short selling.</span><br /><br /><span>2.&nbsp;SCA Board Decision No. 47 of 2012 concerning the Regulations as to lending and borrowing of securities (&ldquo;Securities Lending and Borrowing Regulations&rdquo;):</span><br /><br /><span>The SCA is proposing to provide an internationally accepted market framework whereby investors can borrow and lend securities. The scope of such transactions is essentially to assist market makers and for the purpose of covering a short position in a short sale transaction. Other cases would require SCA approval.</span><br /><br /><span>Such transactions may only be conducted through agents approved for such purpose by the SCA and counterparties to a transaction could either be the clearing house of the exchange or a borrowing/lending agent.</span><br /><br /><span>Approval granted to agents is valid for a year and requires the payment of fees to the SCA. Currently, custodians and brokerage houses licensed by the SCA and banks and investment companies licensed by the UAE Central Bank are eligible to apply and are required to comply with requirements placed by the SCA. SCA would respond to requests within 30 days.</span><br /><br /><span>Securities that are pledged or are under lien or purchased through margin trading or any other case determined by the exchange may not be the subject matter of a stock lending transaction.</span><br /><br /><span>The Securities Lending and Borrowing Regulations provide the minimum criteria to be set out in a stock lending agreement. The security to be provided by the borrower could be:-</span><br /><br /><span>(i)&nbsp;a cash guarantee of at least 105% to be retained by the lender&rsquo;s agent;</span><br /><br /><span>(ii)&nbsp;bank guarantee of at least 105%. If the lender is an individual resident, then such guarantee can only be provided by a local bank; or</span><br /><br /><span>(iii)&nbsp;securities owned by the borrower having a market value of at least 110% to be retained at the clearing house. If the lender is an individual resident then the securities offered as security would need to be UAE listed securities.</span><br /><br /><span>The Securities Lending and Borrowing Regulations place obligations on the agents which shall be supplemented with internal by-laws issued by each exchange and contain oversight and penal provisions. Lenders are entitled to sell the lent securities before redemption.&nbsp; It is important to note that transfer of ownership of securities related to lending and borrowing transactions are permitted to be off-exchange.</span><br /><br /><span>3.&nbsp;SCA Board Decision 46 of 2012 concerning the regulations as to Market Makers (&ldquo;Market Maker Regulations&rdquo;):&nbsp;</span><br /><br /><span>The regulations appear to be similar to those adopted by some stock exchanges in Europe. EU legislation concerning market making sets out a similar mechanism concerning market making or enhancing liquidity in stock listed on several EU exchanges.&nbsp;</span><br /><br /><span>The Market Maker Regulations permits brokerage houses licensed by the SCA and banks and investment companies licensed by the UAE Central Bank or other non financial UAE entities to apply for a license to conduct the activity of providing continuous prices for the purchase and sale of securities to increase their liquidity.&nbsp; A foreign company being similarly regulated in its home country and having been established in this area of practice for not less than five (5) years may also apply and register with a UAE exchange. Licenses shall be for a year and requires the payment of fees to the SCA.</span><br /><br /><span>An important positive development is the introduction of a new security namely, the issuance of warrants. Currently there are no regulations that govern the issuance of such warrants, however, we understand that these regulations are being finalized and should be out for public consultation in a couple of months.</span><br /><br /><span>Internal procedures and controls issued to regulate the market making activity shall be developed by the exchanges to provide for separate trading and settlement mechanisms, guarantees to be submitted to the exchange, obligations of market makers, standards for determination of eligibility of securities for market making, controls for execution of trades and trading commissions, reporting mechanisms. The Market Maker Regulations place continuous obligations on the market maker relating to due diligence, capital adequacy, reporting and record keeping requirements.&nbsp;</span><br /><br /><span>The market maker license is an important license since the SCA has granted exemptions to market makers from compliance with various requirements such as specific Articles of SCA&rsquo;s Disclosure Regulations. Market makers are permitted to engage in short selling of securities and in securities lending and borrowing transactions. They are permitted to issue warrants and if the issuer of warrants is a market maker then they are exempted from the requirement of having a minimum prescribed number of warrant holders. Securities subject to market making transactions may be permitted to be transferred off-exchange.</span><br /><br /><span>The Market Maker Regulations also contain oversight and penal provisions.</span><br /><br /><span>4.&nbsp;SCA Board Decision No. 49 of 2012 concerning the Regulations as to liquidity provision (&ldquo;Liquidity Provision Regulations&rdquo;):</span><br /><br /><span>The Liquidity Provision Regulations are supportive to the Market Making Regulations, whereby issuers of securities listed on UAE markets can directly engage market makers to enhance liquidity of the issuer\'s shares.</span><br /><br /><span>The requirement to have the Liquidity Provision Agreement approved by the Market seems overly burdensome and might result in over-regulation/over-intervention of the contractual freedom between liquidity providers and issuers. A notification that the criteria set out in the Liquidity Provision Regulations and as prescribed by the exchanges should have been sufficient compliance.</span><br /><br /><span>The liquidity provision ability of the liquidity provider is capped at 5% of the issuer&rsquo;s security. Additionally a liquidity provider is not permitted to be market maker for the same security. Exemptions available to market makers are also not granted to liquidity providers although they are required to comply with the same obligations placed on market makers.</span><br /><br /><span>It is not common practice in various markets that the agreement is publically disclosed.&nbsp; This proposed public disclosure of the amount of capital that would be allocated by the issuer to the liquidity provider under the Liquidity Provision Agreement is likely to affect the ability of the issuer to expeditiously inject additional capital for market making, should the publicly disclosed capital be utilized up.</span><br /><br /><span>The Liquidity Provision Regulations also contain oversight and penal provisions.</span></p>'),
(84461, 4606, '_content', 'field_59b649b5c8b2b'),
(84462, 4606, 'lawUpdateArticleMonth', '4598'),
(84463, 4606, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(84464, 4606, 'content_description', 'The Securities and Commodities Authority (“SCA”) issued new fund regulations (which came into effect on August 26, 2012) and pursuant to which the SCA has taken over the regulation of domestic and foreign funds.'),
(84465, 4606, '_content_description', 'field_59b641c07f473'),
(84466, 4606, 'pageSummary', 'The Securities and Commodities Authority (“SCA”) issued new fund regulations (which came into effect on August 26, 2012) and pursuant to which the SCA has taken over the regulation of domestic and foreign funds.'),
(84467, 4606, '_pageSummary', 'field_59e59b307dec8'),
(84468, 4606, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-6/november-3/new-sca-securities-regulations.html'),
(84469, 4606, '_currentURL', 'field_59d35123ab1e7'),
(84470, 4606, 'lawUpdateArticleWriters_0_lawUpdateArticleWriter', '838'),
(84471, 4606, '_lawUpdateArticleWriters_0_lawUpdateArticleWriter', 'field_59da2ac06b065'),
(84472, 4606, 'lawUpdateArticleWriters', '1'),
(84473, 4606, '_lawUpdateArticleWriters', 'field_59da2a866b064'),
(84474, 4606, 'lawUpdateArticlePractices_0_lawUpdateArticlePractice', '411'),
(84475, 4606, '_lawUpdateArticlePractices_0_lawUpdateArticlePractice', 'field_59dc79c8e10ce'),
(84476, 4606, 'lawUpdateArticlePractices', '1'),
(84477, 4606, '_lawUpdateArticlePractices', 'field_59dc7918de021'),
(84478, 4606, '_yoast_wpseo_metadesc', 'The Securities and Commodities Authority (“SCA”) issued new fund regulations (which came into effect on August 26, 2012) and pursuant to which the SCA has taken over the regulation of domestic and foreign funds.'),
(84479, 4607, 'content', '<p>Generally speaking, these standard contracts have been prepared in the UK, Europe, or the United States having regard to local laws applicable to the foreign corporation in its home country.&nbsp; The \"Governing Law\" clause tends to be towards the back of the contract, and the parties may come to consider this towards the end of the negotiations.&nbsp; There may be a tendency on the part of the foreign corporation, in the interests of closing the deal, to agree with the request of the local customer that the contract be governed by UAE law (with UAE courts having jurisdiction).&nbsp; That could be an entirely reasonable commercial approach for the foreign corporation to take.&nbsp; What can be of concern is when the foreign corporation takes the view that, if there is a dispute under the contract at a later time, this choice of UAE law and UAE courts is unlikely to make much of a difference to the foreign corporation\'s position.&nbsp; That, quite simply, is not the case.<br /><br />We do not have the space here to provide a detailed comparison of UAE law with the laws of other key \"technology-originating countries\" such as the US or the UK (although we are asked to provide such advices on a case-by-case basis).&nbsp; For the purpose of this article we wanted to highlight some key issues in the context of technology contracts, which may come as a surprise to lawyers and clients more familiar with the laws of their home countries.<br /><br /><strong>Liquidated damages</strong>&nbsp;<br /><br />Liquidated damages clauses are widely used in technology contracts.&nbsp; Article 390 of the UAE Civil Code (translated) states that: &ldquo;(1) The contracting parties may fix the amount of compensation in advance by making a provision therefore in the contract or in a subsequent agreement, subject to the provisions of the law. (2) The judge may in all cases, upon the application of either of the parties, vary such agreement so as to make the compensation equal to the loss, and any agreement to the contrary shall be void.&rdquo;&nbsp; This gives the Court the ultimate right (upon the application of one of the parties) to examine the level of pre-agreed, fixed compensation and increase or decrease the amount to reflect the actual loss suffered by a party.&nbsp; Liquidated damages are deemed to be ancillary contractual obligations, in the sense that they will not apply unless a primary obligation has been established in the first place.&nbsp; In other words, liquidated damages are not, per se, a cause of action for a claim for damages.&nbsp; Rather, they can only be invoked for establishing the amount of damages claimed.&nbsp; Recent cases have shown that something referred to as &ldquo;a penalty&rdquo;, being a more strict imposition of an amount regardless of whether a loss has been incurred, may not be upheld by a court, whereas a liquidated damages clause intended to reasonably quantify the loss likely suffered is more likely to be upheld.<br /><br /><strong>Interest on claims</strong><br /><br />Vendors often include interest clauses for late payments in supply contracts (although sometimes the interest may be referred to as an \"administrative fee\" or something similar).&nbsp; If the amount claimed was quantified at the time the claim was filed, then the court will grant to the claimant, in the money judgment, interest as from the time of filing the claim &ndash; or the date of judgment, it varies &ndash; until final payment.&nbsp; If the debt is confirmed by a contract, the court may even grant interest on the debt from the time the claimed amount became due until final payment.&nbsp; Under the UAE Commercial Code, if the subject matter of the commercial obligation is a sum of money of ascertained amount at the time the obligation arises, and the debtor delays in paying it, he will then be obliged to pay the creditor interest at the rate agreed in the contract, provided that it does not exceed 12% per annum.&nbsp; If there is no agreement in the contract for the payment of interest, then the judicial practice in the emirate of Dubai is that interest will be calculated at the rate of 9% per annum, with effect from the date the debt fell due for payment.&nbsp;<br /><br /><strong>Indemnities</strong><br /><br />There are no UAE law prohibitions on contracts containing indemnities in respect of any matters, either in respect of commercial matters generally or specifically in respect of intellectual property issues (the latter common in technology supply contracts).&nbsp; The UAE courts will generally require solid evidence to support the sums claimed under an indemnity.&nbsp; There are certain articles in the UAE Commercial Transactions Law which limit the amount of any indemnity in certain specific situations, but these are not relevant for present purposes.&nbsp; Article 290 of the UAE Civil Code states that it shall be permissible for the judge to reduce the level of indemnity or not to enforce an indemnity at all if the person suffering harm participated by his own act in bringing about or aggravating the harm.&nbsp; In all cases the indemnity shall be assessed according to the amount of harm suffered by the victim, together with loss of profit, provided that that is a natural result of the harmful act.&nbsp; Article 293 of the UAE Civil Code states that the right to indemnity for harm shall include moral harm, and an infringement of the liberty, dignity, honor, reputation, social standing or financial credit of another shall be regarded as being moral harm.&nbsp; The right to receive indemnification for moral harm may not be transferred to a third party unless the amount of it has been fixed by agreement or by a final judicial order.&nbsp; Further article 294 allows that the indemnity be made payable by installments or by way of a regular income.</p>\r\n<p><strong><br />Limit of liability for breach</strong><br /><br />It is said that, in general, the UAE courts will uphold limitation of liability clauses, unless there has been fraud or gross negligence, pursuant to Article 383 of the Civil Code.&nbsp; However, the concept of liability in this context must be appreciated.&nbsp; This is liability for failure to comply with a particular obligation, not financial liability (which is dealt with separately &ndash; see further below).&nbsp; The relevant article states (translated): &ldquo;If that which is required of an obligor is the preservation of a thing, or the management thereof or the exercise of care in the performance of his obligation, he shall have discharged that obligation if, in the performance thereof, he exercises all such care as the ordinary man would exercise, notwithstanding that the intended object is not achieved, unless there is an agreement or provision of law to the contrary.&nbsp; In all cases, the obligor shall remain liable for any fraud or gross error on his part.&rdquo;&nbsp; The article actually proposes a &ldquo;reasonable efforts&rdquo; level when assessing compliance but leaves this subject to agreement between the parties.&nbsp; With respect to total exemptions of liability, Article 296 of the Civil Code provides that &ldquo;Any condition purporting to provide exemption from responsibility for a harmful act shall be void.&rdquo;&nbsp; This is intended to deal with a prior stipulation of non-liability in respect of an unlawful act done by one person causing harm to another.&nbsp; As regards financial liability, Article 390 of the Civil Code provides (translated): &ldquo;The contracting parties may fix the amount of compensation in advance by making a provision therefore in the contract or in a subsequent agreement, subject to the provisions of the law.&nbsp; The judge may in all cases, upon the application of either of the parties, vary such agreement so as to make the compensation equal to the harm, and any agreement to the contrary shall be void.&rdquo;&nbsp;<br /><br /><br /><strong>Self-help means are valuable</strong><br /><br />We generally recommend to clients that any time spent in a technology contract negotiation on means of self-help, which could avoid the need to litigate disputes at a later point, is time well-spent.&nbsp; It is preferable not to have key issues such as those above before a Court.&nbsp; Thus it is our recommendation that if a technology vendor is considering adopting UAE law for a contract with a local customer, it should also consider building into the contract self-help means which they might not typically use in other countries, or for which they may not always negotiate as rigorously.&nbsp; For instance:</p>\r\n<ul>\r\n<li>Payment milestones linked to time milestones, or at least deliverables which the vendor can control.</li>\r\n<li>Deemed acceptance upon a particular period of time expiring after testing, regardless of use or payment.</li>\r\n<li>It is an obligation of the customer to execute and deliver an acceptance certificate.</li>\r\n<li>Letters of credit for milestone payments which are to be made down the track.</li>\r\n<li>Avoid set off clauses including in relation to SLC&rsquo;s.</li>\r\n<li>Right to suspend service upon breach of threatened breach by customer.</li>\r\n<li>Vendor has ultimate responsibility for determining whether change control takes the project outside of the original scope.</li>\r\n<li>Maintenance starts from acceptance, and payment of maintenance is another deemed acceptance event.</li>\r\n</ul>'),
(84480, 4607, '_content', 'field_59b649b5c8b2b'),
(84481, 4607, 'lawUpdateArticleMonth', '4598'),
(84482, 4607, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(84483, 4607, 'content_description', 'From time to time we act for foreign corporations who are looking to supply technology solutions to customers the UAE and who wish to do so using their \"standard\" technology supply contracts.'),
(84484, 4607, '_content_description', 'field_59b641c07f473'),
(84485, 4607, 'pageSummary', 'From time to time we act for foreign corporations who are looking to supply technology solutions to customers the UAE and who wish to do so using their \"standard\" technology supply contracts.'),
(84486, 4607, '_pageSummary', 'field_59e59b307dec8'),
(84487, 4607, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-6/november-3/technology-contracts-exercise-care-in-choosing-a-governing-law.html'),
(84488, 4607, '_currentURL', 'field_59d35123ab1e7'),
(84489, 4607, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'David Yates'),
(84490, 4607, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(84491, 4607, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'd.yates@tamimi.com'),
(84492, 4607, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'field_59e59afcd15de'),
(84493, 4607, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', ''),
(84494, 4607, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', 'field_59e59b05d15df'),
(84495, 4607, 'lawUpdateArticleNoWriters', '1'),
(84496, 4607, '_lawUpdateArticleNoWriters', 'field_59e59aaed15dc'),
(84497, 4607, '_yoast_wpseo_metadesc', 'From time to time we act for foreign corporations who are looking to supply technology solutions to customers the UAE and who wish to do so using their \"standard\" technology supply contracts.'),
(84498, 4608, 'content', '<p><span>In some cases, and especially with goods in transit, administrative complaints are not accommodated and hence the right holders&rsquo; option is to seek a court order. The common way to stop containers by way of a court order is to seek a preventive seizure decision from the court circuit allocated to address expedited requests.&nbsp;&nbsp;</span><br /><br /><span>This is an ex parte procedure which is subject to a financial security to be provided by applicant seeking the attachment order. Such security, which is determined by the Judge, would be kept with the court and be used for compensating the owner of the goods seized incase the owner is awarded damages as a result of this seizure.&nbsp; But when it comes to counterfeit goods, it is usually difficult to determine the financial security, because either the value of goods are difficult to determine, whether due to the counterfeit goods stuffed into container are mixed with genuine goods or with unrelated goods,&nbsp; or as in other cases, description of the goods on the bills of lading do not match the actual goods being shipped to avoid scrutiny by the customs authorities or to evade higher excise duties imposed to certain category of goods.&nbsp; Even in the event the court has determined a fixed amount as a financial security, this amount may remain on hold for several years particularly if the owner of the goods files a civil claim against the applicant on the basis of a wrongful infringement complaint.&nbsp; All these reasons have caused a trademark owner to rarely resort to expedited court order to stop and seize containers.</span><br /><br /><span>In a recent case, we had to resort to the court to stop a container in respect of goods arriving to the UAE port, the goods in transit.&nbsp; In order for the court to grant an expedited order to seize goods coming in transit, the court determined a substantially high financial security to be placed with the court before granting the preventive seizure. At this point, we amended our petition to the judge requesting a detailed report disclosing the types of goods and quantities subject of the container as a legal exercise is necessary to allow us to determine their estimated value of the goods in order to formally request the court to place an attachment order against each goods.&nbsp; Essentially this amended petition, served these same objectives as an attachment order against the container, in that it forced the customs authorities to seize the container and prevent it from being discharged, cleared or re-exported.&nbsp;</span><br /><br /><span>The order was obtained successfully from the Dubai Courts and enforced against a container for goods in transit, allowing both the trademark owner and the court to be able to receive a full report of the suspected shipment and determine whether to proceed in taking legal action to enforce trademark rights.</span></p>'),
(84499, 4608, '_content', 'field_59b649b5c8b2b'),
(84500, 4608, 'lawUpdateArticleMonth', '4598'),
(84501, 4608, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(84502, 4608, 'content_description', 'In the UAE, counterfeit goods at the Customs are stopped by an administrative complaint directly with the Customs Department. '),
(84503, 4608, '_content_description', 'field_59b641c07f473'),
(84504, 4608, 'pageSummary', 'In the UAE, counterfeit goods at the Customs are stopped by an administrative complaint directly with the Customs Department. '),
(84505, 4608, '_pageSummary', 'field_59e59b307dec8'),
(84506, 4608, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-6/november-3/new-approach-to-seize-containers-through-court-orders.html'),
(84507, 4608, '_currentURL', 'field_59d35123ab1e7'),
(84508, 4608, 'lawUpdateArticleWriters_0_lawUpdateArticleWriter', '897'),
(84509, 4608, '_lawUpdateArticleWriters_0_lawUpdateArticleWriter', 'field_59da2ac06b065'),
(84510, 4608, 'lawUpdateArticleWriters', '1'),
(84511, 4608, '_lawUpdateArticleWriters', 'field_59da2a866b064'),
(84512, 4608, 'lawUpdateArticlePractices_0_lawUpdateArticlePractice', '634'),
(84513, 4608, '_lawUpdateArticlePractices_0_lawUpdateArticlePractice', 'field_59dc79c8e10ce'),
(84514, 4608, 'lawUpdateArticlePractices', '1'),
(84515, 4608, '_lawUpdateArticlePractices', 'field_59dc7918de021'),
(84516, 4608, '_yoast_wpseo_metadesc', 'In the UAE, counterfeit goods at the Customs are stopped by an administrative complaint directly with the Customs Department.'),
(84517, 4609, 'content', '<p>The tenth edition of the Nice Classification was entered into force on January 1, 2012.&nbsp; The previous one was the ninth edition of the Nice Classification and had been in force since January 1, 2007.<br /><br />The number of classes in the 10th edition, as well as the class heading for each class, remains unchanged from the ninth edition. However, various goods have been moved from one class to another.&nbsp; For example, \'swimming belts\', \'swimming jackets\' and \'water wings\' have been moved from Class 9 to Class 28, \'soldering apparatus\', \'electric door openers\' and \'vending machines\' have been moved from Class 9 to Class 7 and &lsquo;entertainment and gaming devices&rsquo; are now classified uniformly in class 28.&nbsp; The gaming devices that are equipped with an external display screen or monitor were classified into Class 9 and those with built-in screen were classified in class 28 previously.&nbsp;<br /><br />The adoption of the 10th edition does not affect trademarks already filed/registered in Lebanon. Upon next renewal, the goods / classes affected by the change will be re-classified adequately.<br /><br />In the Middle East region, not all countries have adopted 10th edition of the Nice Classification, meaning that the same product or service may fall in different classes from country to country depends on which edition of the Nice Classification the country follows.&nbsp; As a result, it is important to bear in mind which edition of the Nice Classification applies when conducting clearance searches and filing trademark applications in a given country to ensure that applications are filed in the correct class.<br /><br />The table below classifies the countries in the ME region according to their adoption of the Nice Classification:<br /><br /></p>\r\n<table border=\"0\">\r\n<tbody>\r\n<tr>\r\n<td>Algeria, Bahrain, Cyprus, Egypt,<br />Jordan, Morocco, Syria, Tunisia and UAE,&nbsp;<br /><br /></td>\r\n<td><strong>10th</strong>&nbsp;Edition of the Nice Classification</td>\r\n</tr>\r\n<tr>\r\n<td>Iran, Oman and Saudi Arabia</td>\r\n<td><strong>9th</strong>&nbsp;Edition of the Nice Classification</td>\r\n</tr>\r\n<tr>\r\n<td>Gaza, Kuwait, Libya, Sudan, West Bank and Yemen</td>\r\n<td><strong>8th</strong>&nbsp;Edition of the Nice Classification</td>\r\n</tr>\r\n<tr>\r\n<td>Iraq and Qatar</td>\r\n<td><strong>7th</strong>&nbsp;Edition (with Iraq following a local sub-classification)</td>\r\n</tr>\r\n</tbody>\r\n</table>\r\n<p><br /><strong><br />Background:<br /></strong><br />The Nice Classification consists of a classification of goods and services for the purposes of registering trademarks and service marks. It is based on a multilateral treaty administered by World Intellectual Property Organization (WIPO). This treaty is called the Nice Agreement&nbsp; concerning the International Classification of Goods and Services for the Purpose of the Registration of Marks, which was concluded in 1957. This Classification is commonly referred to as the Nice Classification. The Nice Agreement is open to States party to the Paris Convention for the Protection of Industrial Property.<br /><br />The trademark offices of the contracting States of the Nice Agreement are required to include in the official documents and publications the numbers of the classes of goods and/or services.&nbsp; Use of the Nice Classification by national offices has the advantage of filing applications with reference to a single classification system. The preparation of applications is thereby greatly simplified, as the goods and services to which a given mark applies will be classified in the same way in all countries that have adopted it, although the differences between each edition of the Classification (as discussed above) raises some complications.<br /><br />The Nice Classification comprises the class headings accompanied by explanatory notes and an alphabetical list of goods and services, with the class in which each product or service is placed. The class headings describe in very broad terms the nature of the goods or services contained in each of the 34 classes of goods and 11 classes of services.&nbsp; In order to keep the Nice Classification up to date, it is continuously revised and a new edition is published every five years, although from this year onwards the review and issuing new editions with minor changes shall occur every year with substantial review and changes will continue to occur every five years. The revision is carried out by a Committee of Experts set under the Nice Agreement. All states party to the Agreement are members of the Committee of Experts.<br /><br />Although only 83 States are party to the Nice Agreement, the trademark offices of at least 150 States, as well as the International Bureau of WIPO, the African Intellectual Property Organization (OAPI), the African Regional Intellectual Property Organization (ARIPO), the Benelux Office for Intellectual Property (BOIP) and the Office for Harmonization in the Internal Market (Trade Marks and Designs) (OHIM) of the European Communities, actually use the Nice Classification.</p>'),
(84518, 4609, '_content', 'field_59b649b5c8b2b'),
(84519, 4609, 'lawUpdateArticleMonth', '4598'),
(84520, 4609, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(84521, 4609, 'content_description', 'Lebanon has decided to adopt the Tenth Edition of the International Classification of Goods and Services for the purposes of the registration of Trademark under the Nice Agreement (Nice Classification).'),
(84522, 4609, '_content_description', 'field_59b641c07f473'),
(84523, 4609, 'pageSummary', 'Lebanon has decided to adopt the Tenth Edition of the International Classification of Goods and Services for the purposes of the registration of Trademark under the Nice Agreement (Nice Classification).'),
(84524, 4609, '_pageSummary', 'field_59e59b307dec8'),
(84525, 4609, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-6/november-3/lebanon-adopted-10th-edition-of-the-nice-classification.html'),
(84526, 4609, '_currentURL', 'field_59d35123ab1e7'),
(84527, 4609, 'lawUpdateArticleWriters_0_lawUpdateArticleWriter', '884'),
(84528, 4609, '_lawUpdateArticleWriters_0_lawUpdateArticleWriter', 'field_59da2ac06b065'),
(84529, 4609, 'lawUpdateArticleWriters', '1'),
(84530, 4609, '_lawUpdateArticleWriters', 'field_59da2a866b064'),
(84531, 4609, 'lawUpdateArticlePractices_0_lawUpdateArticlePractice', '634'),
(84532, 4609, '_lawUpdateArticlePractices_0_lawUpdateArticlePractice', 'field_59dc79c8e10ce'),
(84533, 4609, 'lawUpdateArticlePractices', '1'),
(84534, 4609, '_lawUpdateArticlePractices', 'field_59dc7918de021'),
(84535, 4609, '_yoast_wpseo_metadesc', 'Lebanon has decided to adopt the Tenth Edition of the International Classification of Goods and Services for the purposes of the registration of Trademark under the Nice Agreement (Nice Classification).'),
(84536, 4610, 'content', '<p><span>Perhaps the most obvious criterion, but one which is often overlooked, is the requirement that parties who wish to arbitrate their disputes must have a valid arbitration agreement.&nbsp;</span><br /><br /><span>The UAE Civil Code (see Article 203(1)) allows parties to insert an arbitration clause in the main agreement / contract (arbitration clause), or to enter into a subsequent agreement to arbitrate. Other important requirements are that the arbitration agreement must be in writing and signed by a person capable of binding the party in question to arbitration.</span><br /><br /><span>Of course, as with any commercial transaction, the thought that the relationship may deteriorate to the point where a dispute may arise is often not within the parties&rsquo; contemplation at the time of contract formation. The result of this can be the drafting of an arbitration clause which is invalid or impractical (i.e. pathological).</span><br /><br /><span>This article does not intend to cover the main ingredients of an arbitration clause or how to successfully draft one. It does, however, intend to cover the likely outcome when one party makes an assertion that either the main contract or the arbitration agreement therein is invalid. Such assertions are generally made with a view to claiming that an arbitrator does not have jurisdiction to determine the dispute which has arisen between the parties. The jurisdiction of the tribunal is, of course, absolutely fundamental to the issue of whether the arbitrators have the power to determine the dispute. Awards which are issued in the absence of jurisdiction lack legitimacy. A lack of jurisdiction presents one of the very few available grounds upon which a party can seek to have an award set aside in the competent court. Issues of jurisdiction are generally decided in the early phase of the proceedings, because before deciding on the substantive issues in dispute, a tribunal must satisfy itself that it has jurisdiction. It is, however, sometimes the case that a decision on jurisdiction will be indicated with the final award.</span><br /><br /><strong>Separability &amp; Competence-Competence<br /><br /></strong><span>The doctrines of separability and competence-competence have developed to reinforce and strengthen the jurisdiction of a tribunal. Both concepts are recognised in the UAE.</span><br /><br /><span>A distinction must be made between whether the issue at hand relates to the validity of the main contract or the validity of the arbitration agreement within that main contract, or both.</span><br /><br /><span>A determination as to the validity of the main contract (which contains an arbitration clause) is usually within the jurisdiction of an arbitral tribunal. This is because of the principle of separability. The essence of this principle, which is embodied in the rules of many arbitral institutions, including those of the DIAC and DIFC-LCIA, is that regardless of the validity of the main contract, including whether the main agreement has been terminated or was void from its very beginning, the arbitration clause within that main agreement is to be treated independently.</span><br /><br /><span>For example, Article 23.1 of the DIFC-LCIA Arbitration Centre Rules provides as follows:</span><br /><br /><span>The Arbitral Tribunal shall have the power to rule on its own jurisdiction, including any objection to the initial or continuing existence, validity or effectiveness of the Arbitration Agreement. For that purpose, an arbitration clause which forms or was intended to form part of another agreement shall be treated as an arbitration agreement independent of that other agreement. A decision by the Arbitral Tribunal that such other agreement is non-existent, invalid or ineffective shall not entail ipso jure the non-existence, invalidity or ineffectiveness of the arbitration clause.</span><br /><br /><strong>Similarly, Articles 6.1 and 6.2 of the DIAC Rules provide:<br /><br />6.1&nbsp;</strong><span>Unless otherwise agreed by the parties, an Arbitration Agreement which forms or was intended to form part of another agreement shall not be regarded as invalid, non-existence or ineffective because that other agreement is invalid, or did not come into existence or has become ineffective, and the Arbitration Agreement shall for that purpose be treated as a distinct agreement.</span><br /><br /><strong>6.2</strong><span>&nbsp;If any party raises one or more pleas concerning the existence, validity, scope or applicability of the arbitration agreement, then the Executive Committee may decide, without prejudice to the admissibility or merits of the plea or pleas, that the arbitration shall proceed if it is prima facie satisfied that an arbitration agreement may exist under the Rules. In such a case, any decision as to the jurisdiction of the Tribunal shall be taken by the Tribunal itself.</span><br /><br /><strong>The effect of the above is perhaps best demonstrated by an example:<br /><br /></strong><span>Party A and Party B enter into a main contract, in which they decide via an arbitration clause to resolve certain disputes arising out of or in connection with the main contract by way of arbitration. This arbitration clause is valid under UAE Law. Party A terminates the agreement for breach of contract by Party B. There is, however, a dispute between Party A and Party B over the quantum of damages owed by Party B to Party A for Party B&rsquo;s breach of contract. Notwithstanding the fact that the agreement has been terminated, the arbitration clause survives and the dispute over damages owed must be resolved by arbitration in accordance with the clause. Put simply, under the principle of separability the arbitration clause survives termination and provides the parameters by which disputes are to be resolved.</span><br /><br /><span>The legal doctrine of competence-competence assists by overcoming the curiosity which results from decisions of an arbitrator on his or her own jurisdiction. Under this theory, issues as to the validity of an arbitration agreement can be determined by a Tribunal. A quick example of this is as follows: Party A and Party B have an arbitration clause in a main contract. Party A thinks the clause is valid and commences proceedings against Party B, who thinks the clause is invalid. Party B launches a jurisdictional challenge on this basis, and the Tribunal rules accordingly. The end result could be that the Tribunal determines they do not have jurisdiction. The immediately obvious question then becomes, of course, the basis upon which an arbitral tribunal could have been empowered by the parties to determine its own jurisdiction in circumstances where the tribunal lacks jurisdiction? The doctrine of competence-competence, which is sometimes referred to as a legal fiction, has developed and found its place in most modern arbitration rules and laws to overcome this issue and also to avoid the parties having to involve the competent court at an early stage at potentially great expense.</span><br /><br /><span>It is important to note the difference between competence-competence and separability. The former allows the Tribunal to determine its jurisdiction. The latter has an impact on the outcome of that determination. Without separability, a tribunal employing competence-competence to determine its own jurisdiction may be required to deny jurisdiction of the substantive merits, because the arbitration clause could potentially be affected by the invalidity of the main contract.</span><br /><br /><strong>Partial Challenges<br /><br /></strong><span>Finally, arbitrators are often faced with a partial challenge to their jurisdiction. This may arise in a dispute over termination of the main contract where a party may be making a number of different claims for relief. Often, arbitration clauses contain pre-conditions before being able to arbitrate, such as the initial referral of a dispute to the Engineer for determination (as is often the case in FIDIC type contracts), or notification in writing to an opponent of the existence of a dispute. Pre-conditions to arbitration have been recognized and upheld by the UAE Courts.</span><br /><br /><span>In the above case, it often transpires that the party commencing arbitration proceedings has adhered to the pre-conditions to arbitration in the case of 6 out of 10 claims referred to arbitration. It may, therefore, be open to the responding party to argue that the arbitral tribunal has no jurisdiction to hear the remaining 4 claims, because the pre-conditions to arbitration were not satisfied. It is open to the arbitrators to rule on their own jurisdiction in such circumstances &ndash; i.e. to determine for themselves whether the pre-conditions have been satisfied, and, if not, whether the failure to satisfy them impacts adversely on their jurisdiction to determine the dispute relating to those claims.</span><br /><br /><strong>Role of the Courts in Jurisdiction<br /><br /></strong><span>Decisions of Tribunal&rsquo;s relating to jurisdiction are open to review by the competent court. In this respect, it is important to distinguish a decision on jurisdiction from a decision on the substantive merits &ndash; the latter form of decision is not open to review by the courts (save for very limited public policy grounds).&nbsp; If a decision on jurisdiction is reached in the preliminary stages of proceedings, it may be challenged in the competent court by one of the parties. As a general premise, this challenge should not serve to restrain the continuance of the arbitration proceedings. This general premise, which reflects international best practice, can be found in Article 8(2) of the UNCITRAL Model Law:</span><br /><br /><span>Where [a court action has been brought regarding a tribunal&rsquo;s jurisdiction], arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the issue is pending before the court.</span><br /><br /><span>Parties often seek to challenge a decision on jurisdiction in the competent court as a matter of tactics, perhaps in an attempt to delay or disrupt the arbitration proceedings. Arbitrators are not, however, obliged to stay the arbitration proceedings in such circumstances.</span></p>'),
(84537, 4610, '_content', 'field_59b649b5c8b2b'),
(84538, 4610, 'lawUpdateArticleMonth', '4598'),
(84539, 4610, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(84540, 4610, 'content_description', 'In the UAE, arbitration is regarded as an exceptional and special dispute forum through which parties agree to resolve their disputes.'),
(84541, 4610, '_content_description', 'field_59b641c07f473'),
(84542, 4610, 'pageSummary', 'In the UAE, arbitration is regarded as an exceptional and special dispute forum through which parties agree to resolve their disputes.'),
(84543, 4610, '_pageSummary', 'field_59e59b307dec8'),
(84544, 4610, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-6/november-3/doctrines-in-support-of-jurisdiction-an-overview.html'),
(84545, 4610, '_currentURL', 'field_59d35123ab1e7'),
(84546, 4610, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Claire Clutterham'),
(84547, 4610, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(84548, 4610, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'c.clutterham@tamimi.com'),
(84549, 4610, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'field_59e59afcd15de'),
(84550, 4610, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', ''),
(84551, 4610, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', 'field_59e59b05d15df'),
(84552, 4610, 'lawUpdateArticleNoWriters', '1'),
(84553, 4610, '_lawUpdateArticleNoWriters', 'field_59e59aaed15dc'),
(84554, 4610, 'lawUpdateArticlePractices_0_lawUpdateArticlePractice', '410'),
(84555, 4610, '_lawUpdateArticlePractices_0_lawUpdateArticlePractice', 'field_59dc79c8e10ce'),
(84556, 4610, 'lawUpdateArticlePractices', '1'),
(84557, 4610, '_lawUpdateArticlePractices', 'field_59dc7918de021'),
(84558, 4610, '_yoast_wpseo_metadesc', 'In the UAE, arbitration is regarded as an exceptional and special dispute forum through which parties agree to resolve their disputes.');
INSERT INTO `tm_postmeta` (`meta_id`, `post_id`, `meta_key`, `meta_value`) VALUES
(84559, 4611, 'content', '<p><span>In the absence of an express choice of the DIFC Courts&rsquo; jurisdiction, Article 5A(1) of the Judicial Authority Law sets out the following five jurisdictional gateways which confer exclusive jurisdiction on the DIFC Courts to hear and determine:</span><br /><br /><span>(a)&nbsp;civil or commercial claims and actions to which the DIFC or any DIFC Body, DIFC Establishment or Licensed DIFC Establishment is a party;</span><br /><br /><span>(b)&nbsp;civil or commercial claims and actions arising out of or relating to a contract or promised contract, whether partly or wholly concluded, finalized or performed within the DIFC or that will be performed or is supposed to be performed within the DIFC pursuant to express or implied terms stipulated in the contract;</span><br /><br /><span>(c)&nbsp;civil or commercial claims and actions arising out of or relating to any incident or transaction which has been wholly or partly performed within the DIFC and is related to DIFC activities;</span><br /><br /><span>(d)&nbsp;appeals against decisions or procedures made by DIFC Bodies where DIFC Laws and DIFC Regulations permit such appeals; and</span><br /><br /><span>(e)&nbsp;any claim or action over which the DIFC Courts have jurisdiction in accordance with DIFC Laws and DIFC Regulations.</span><br /><br /><span>Contracting parties falling within one or more of the jurisdictional gateways cited above may however wish to opt out of the jurisdiction of the DIFC Courts in favour of the local (non-DIFC) Dubai Courts, which they are entitled to do pursuant to Article 13(1) of DIFC Law No. 10 of 2005 as amended (the Law relating to the application of DIFC Laws).&nbsp; Article 13(1) provides that a &ldquo;submission to the courts of a jurisdiction in a contract shall be effective&rdquo;.&nbsp; Such parties must exercise particular care when drafting a suitable jurisdiction clause giving effect to their intention to opt out in favour of the local (non-DIFC) Dubai Courts.&nbsp; This is because the DIFC Courts have determined that they will ordinarily exercise jurisdiction over contracts that fall within the jurisdictional gateways but contain jurisdiction clauses that are vague to the extent that they do not clearly identify which of the courts of Dubai the parties agree shall have jurisdiction to hear disputes arising under or in relation to their contract.&nbsp;</span><br /><br /><span>In such cases the DIFC Courts will examine whether the background circumstances of a contract lead to the conclusion that the parties intended to submit to the DIFC Courts&rsquo; jurisdiction.&nbsp; Factors relevant to such a judicial conclusion include having contracting parties: (a) entering into their contract within the DIFC and subjecting it to DIFC Law; (b) located in the DIFC; (c) providing services under their contract from the DIFC; and (d) with an English-language contract and related documentation.&nbsp;</span><br /><br /><span>These factors were expressly identified in Injazat Capital Limited and Injazat Technology Fund B.S.C. v Denton Wilde Sapte &amp; Co. (CFI 019/2010) earlier this year.&nbsp; In its judgment the DIFC Court determined that a reference to the &ldquo;exclusive jurisdiction of the Dubai courts&rdquo; in the terms of engagement of a DIFC-based law firm gave the DIFC Courts jurisdiction on the grounds that the DIFC Courts are also courts of Dubai.&nbsp; The Defendant law firm had argued that the phrase &ldquo;exclusive jurisdiction of the Dubai courts&rdquo; was a valid opt out of the DIFC Courts&rsquo; jurisdiction exclusively in favour of the local (non-DIFC) Dubai Courts.&nbsp;</span><br /><br /><span>In Injazat, the DIFC Court acknowledged that a distinction can be drawn between the Dubai Courts as established under Dubai Law No. 3 of 1992 and the DIFC Courts established under the Judicial Authority Law.&nbsp; However, the DIFC Courts looked to what the parties had intended by their reference to the &ldquo;Dubai courts&rdquo; and decided that the burden was on the DIFC-based law firm to establish that its terms constituted an agreement to opt out of the DIFC Courts&rsquo; jurisdiction.&nbsp; As the law firm is a DIFC entity it did not meet this burden.</span><br /><br /><span>This issue only arises where at least one of the contracting parties is a DIFC entity or one or more of the other jurisdictional gateways conferring exclusive jurisdiction on the DIFC Courts is engaged and the disagreement is whether the applicable jurisdiction clause can be taken to constitute an &ldquo;opt out&rdquo; of the DIFC Courts&rsquo; jurisdiction, thereby conferring jurisdiction on the local (non-DIFC) Dubai Courts.&nbsp;</span><br /><br /><span>Where none of the jurisdictional gateways conferring exclusive jurisdiction on the DIFC Courts are engaged and the parties have not expressly opted into the jurisdiction of the DIFC Courts, the usual jurisdiction provisions in a contract should suffice.&nbsp; However, in order to eliminate any remaining risk of being involuntarily drawn into the net of the DIFC Courts, a jurisdiction clause should still make it clear that a reference to the &ldquo;Dubai Courts&rdquo; is to the local (non-DIFC) Dubai Courts and not to the DIFC Courts.&nbsp; Therefore, where a party or transaction with any link to the DIFC intends to contract out of the DIFC Courts&rsquo; jurisdiction and refer disputes to the local (non-DIFC) Dubai Courts, the jurisdiction clause should make it clear that all disputes are to be referred to the Dubai Courts as established under Dubai Law No. 3 of 1992.</span></p>'),
(84560, 4611, '_content', 'field_59b649b5c8b2b'),
(84561, 4611, 'lawUpdateArticleMonth', '4598'),
(84562, 4611, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(84563, 4611, 'content_description', 'As is now widely known by lawyers and the business community in Dubai and beyond, Article 5(A)(2) of Dubai Law No.12 of 2004 as amended (the Judicial Authority Law) permits contracting parties to expressly agree to have any disputes arising between them resolved by the DIFC Courts, even if they have no other link to the DIFC.'),
(84564, 4611, '_content_description', 'field_59b641c07f473'),
(84565, 4611, 'pageSummary', 'As is now widely known by lawyers and the business community in Dubai and beyond, Article 5(A)(2) of Dubai Law No.12 of 2004 as amended (the Judicial Authority Law) permits contracting parties to expressly agree to have any disputes arising between them resolved by the DIFC Courts, even if they have no other link to the DIFC.'),
(84566, 4611, '_pageSummary', 'field_59e59b307dec8'),
(84567, 4611, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-6/november-3/opting-out-of-the-exclusive-jurisdiction-of-the-difc-courts.html'),
(84568, 4611, '_currentURL', 'field_59d35123ab1e7'),
(84569, 4611, 'lawUpdateArticleWriters_0_lawUpdateArticleWriter', '933'),
(84570, 4611, '_lawUpdateArticleWriters_0_lawUpdateArticleWriter', 'field_59da2ac06b065'),
(84571, 4611, 'lawUpdateArticleWriters', '1'),
(84572, 4611, '_lawUpdateArticleWriters', 'field_59da2a866b064'),
(84573, 4611, '_yoast_wpseo_metadesc', 'As is now widely known by lawyers and the business community in Dubai and beyond, Article 5(A)(2) of Dubai Law No.12 of 2004 as amended (the Judicial Authority Law) permits contracting parties to expressly agree to have any disputes arising between them resolved by the DIFC Courts, even if they have no other link to the DIFC.'),
(84574, 4612, 'content', '<p><span>In order to encourage constructive dialogue amongst parties and to encourage the use of conciliation to resolve disputes that may arise in respect of projects in Qatar, the Qatar International Center for Conciliation and Arbitration (QICCA) adopted a new set of Conciliation Rules in May 2012 (the &ldquo;QICCA Conciliation Rules&rdquo;), which are modelled on the UNCITRAL Conciliation Rules. In the wake of this welcome development, the Qatar International Court and Dispute Resolution Centre (QICDRC) has also prepared its own draft conciliation rules, which are expected to come into force in the near future. At contract drafting stage, parties to international contracts may now elect for the QICCA Rules, or those of the QICDRC (once adopted), as the procedural rules governing disputes arising under those contracts as an alternative to the more commonly used international institutional rules (such as the ICC Rules).&nbsp;</span><br /><br /><strong>The Conciliation Process under the QICCA<br /><br /></strong><span>In order for a dispute to be settled under the QICCA Conciliation Rules, the parties in a contractual relationship must agree that the dispute between them will be settled, in the first instance, by means of conciliation pursuant to the QICCA Conciliation Rules. In order to initiate the conciliation process under the QICCA Conciliation Rules, a party must file a conciliation request, setting out a pr&eacute;cis of the dispute, with the QICCA, and pay the required fee. The QICCA will then, within seven days, notify the other named party of the filing. The conciliation process does not officially commence until the other party expresses in writing its agreement to participate in the process. Unless otherwise specified in the Notice of Conciliation, the respondent is afforded two weeks from the date the QICCA sends the Notice of same to reply; otherwise the conciliation will not proceed. The QICCA Conciliation Rules do not stipulate as to the details to be included in the Notice of Conciliation, other than the required summary of the dispute. However, it is to be assumed such Notice ought to include the names and contact details of other parties, and the details relating to the method to be used to select a Conciliator, where same is not specified in the dispute resolution clause in the contract.</span><br /><br /><span>Under the QICCA Rules, the process shall be conducted by one mutually agreed-upon Conciliator, unless the otherwise stipulated by the parties in their contract. However, where the parties have agreed to appoint two Conciliators, each party is permitted to nominate one of its choosing. Where three Conciliators are to be appointed, the parties shall attempt to reach agreement with regard to the third. The parties may seek the assistance of the QICCA with respect to the designation of the Conciliators. In all cases, when individuals are nominated or appointed to work as Conciliators, the QICCA shall take into consideration the requirement for the Conciliators to remain neutral and independent in the performance of their duties. To that end, Conciliators must, within one week of their appointment, disclose any circumstances that may give rise to justifiable doubt in relation to their neutrality or independence. Furthermore, appointment of a Conciliator shall not be considered complete until the Conciliator accepts the nomination.</span><br /><br /><span>The Conciliator must ensure that the parties are treated fairly and equally and that they have been provided with adequate opportunity to present their case. The parties shall undertake to cooperate with the Conciliator in good faith and to comply with the Conciliator&rsquo;s requests to attend meetings and to provide evidence. Absent any agreement between the parties to the contrary, communications with the parties may be oral or in writing and the location of any meetings is to be determined by the Conciliator after having consulted the parties. The Conciliator is obliged to use their best endeavours to bring the parties to settlement in the time frame available, and in any event within three months, unless the parties agree to extend the process. The Conciliator shall abide by the parties&rsquo; instructions throughout the Conciliation in relation to what information, if any, is to be treated as confidential. The conciliation process terminates once the parties reach and sign a settlement agreement (discussed further below), or where the Conciliator informs the QICCA in writing (after consulting the parties) that the conciliation process has reached a deadlock, or upon notification by any of the parties to the QICCA confirming that such party no longer wishes to participate in the process.</span><br /><br /><strong>The Settlement Agreement<br /><br /></strong><span>When the parties to conciliation reach an agreement in relation to settlement of their dispute, a Settlement Agreement shall be drafted by the Conciliator and circulated to the parties for their signatures. The parties may wish to, and be given, an opportunity to comment on the draft Agreement and the Conciliator may reformulate same accordingly. The final Agreement, once signed by both parties, shall be considered binding and enforceable upon them.</span><br /><br /><span>The status of Settlement Agreements internationally, and particularly with regard to enforcement, is the subject of some debate. In some jurisdictions, Settlement Agreements may be enforced in the same manner as any other contract; in others, such agreements will only acquire the power to bind the parties where the dispute resolution clause which provided for the parties to enter into conciliation also stipulated that those parties may have recourse to arbitration should they fail to reach agreement at conciliation, in which case the Settlement Agreement may be given the force of an arbitral award.</span><br /><br /><span>Notwithstanding the fact that the QICCA Conciliation Rules, as well as their equivalent alternatives, provide for such agreements to be binding and enforceable, any party to a Settlement Agreement may decide, after signing a Settlement Agreement, not to abide by it for any reason it may consider valid. It is arguable that such a scenario would return the parties, who had initially selected conciliation in order to avoid having recourse to arbitration or to judicial intervention, back to their original positions. In such circumstances, would the party in default be in breach of a contractual obligation and, if so, would the other party seek a court order for specific execution?</span><br /><br /><span>In the Qatari context, parties entering into a Settlement Agreement should have regard to the provisions of Qatar&rsquo;s Civil Code relating to &lsquo;compromises&rsquo;, enshrined at Articles 573 to 581, inclusive thereof. Pursuant to the aforementioned Articles, the parties must have proper capacity to dispose of or vary their rights under the contract and the Settlement Agreement must only affect the rights of the contracting parties; the settlement terms must be in writing; and the Settlement Agreement must clearly delineate between the rights being disposed of or varied, and those which are excluded from its scope. It would be prudent to include a severability clause in the Settlement Agreement, in order to preclude the application of Article 581 of the Qatari Civil Code, which operates to nullify a &lsquo;compromise&rsquo; agreement where any part of it is determined to be void or is annulled.</span><br /><br /><strong>Conclusion<br /><br /></strong><span>As Qatar works to achieve the objectives set out in Qatar National Vision 2030, and particularly to build the infrastructure required to facilitate the FIFA World Cup 2022, the domestic construction and engineering industries are experiencing unprecedented growth. Our experience in practice informs us that many of the contracts relating to the largest projects currently underway or about to be commenced in Qatar stipulate Qatari law as the governing law. In light of the foregoing, developments such as the QICCA&rsquo;s adoption of new Conciliation Rules are to be welcomed, bolstering as they do the machinery available to parties contracting in this jurisdiction for the resolution of contractual disputes.</span></p>'),
(84575, 4612, '_content', 'field_59b649b5c8b2b'),
(84576, 4612, 'lawUpdateArticleMonth', '4598'),
(84577, 4612, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(84578, 4612, 'content_description', 'Parties to major international contracts, particularly within the construction industry, are increasingly opting to utilise conciliation in the hope of achieving early settlement of disputes arising from such contracts, prior to resorting to the lengthier and more costly arbitration procedure.'),
(84579, 4612, '_content_description', 'field_59b641c07f473'),
(84580, 4612, 'pageSummary', 'Parties to major international contracts, particularly within the construction industry, are increasingly opting to utilise conciliation in the hope of achieving early settlement of disputes arising from such contracts, prior to resorting to the lengthier and more costly arbitration procedure.'),
(84581, 4612, '_pageSummary', 'field_59e59b307dec8'),
(84582, 4612, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-6/november-3/new-conciliation-rules-promulgated-in-qatar.html'),
(84583, 4612, '_currentURL', 'field_59d35123ab1e7'),
(84584, 4612, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Seem Maleh'),
(84585, 4612, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(84586, 4612, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 's.maleh@tamimi.com'),
(84587, 4612, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'field_59e59afcd15de'),
(84588, 4612, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', ''),
(84589, 4612, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', 'field_59e59b05d15df'),
(84590, 4612, 'lawUpdateArticleNoWriters', '1'),
(84591, 4612, '_lawUpdateArticleNoWriters', 'field_59e59aaed15dc'),
(84592, 4612, 'lawUpdateArticlePractices_0_lawUpdateArticlePractice', '410'),
(84593, 4612, '_lawUpdateArticlePractices_0_lawUpdateArticlePractice', 'field_59dc79c8e10ce'),
(84594, 4612, 'lawUpdateArticlePractices', '1'),
(84595, 4612, '_lawUpdateArticlePractices', 'field_59dc7918de021'),
(84596, 4612, '_yoast_wpseo_metadesc', 'Parties to major international contracts, particularly within the construction industry, are increasingly opting to utilise conciliation in the hope of achieving early settlement of disputes arising from such contracts, prior to resorting to the lengthier and more costly arbitration procedure.'),
(84597, 4613, 'content', '<p>Indeed, it has always been a sign of prestige and significant social status for a person to be chosen to mediate in order to resolve disputes. Additionally, Islamic teachings have traditionally prescribed mediation in order to resolve disputes in society. However, this cultural preference has not until recently been buttressed by robust structural frameworks.&nbsp; As such it would typically be undertaken on an ad hoc basis.&nbsp;&nbsp;&nbsp;&nbsp;<br /><br />As far as legislation is concerned, Jordan has previously enacted the Mediation in Resolving Civil Dispute Act 2006 in order to formalize the process of mediation. However, before discussing this act one needs to briefly introduce the Jordanian judicial system. This provides a bird eye&rsquo;s view of the matrix in which this Act operates. It is important to note that Jordan is still experimenting with its new mediation Act. There is therefore little empirical evidence that addresses the impact of this Mediation Act 2006 on the Jordanian judicial process.&nbsp;<br /><br />The Mediation Act 2006 states that a &ldquo;Judicial Management Centre&rdquo; shall be established at the Court of First Instance, known as the &ldquo;Mediation Management Centre&rdquo;.&nbsp; This is comprised of judges from the Court of First Instance and the Magistrate Court. These are known as &ldquo;Mediation Judges&rdquo;, and supported by an administrative team. One must also clarify that when parties to a dispute come to register their cases at the Court of First Instance and/or Magistrate Courts situated at the Palace of Justice in Amman, the Registrar initially asks the parties if they want the case to be considered by the Mediation Management Centre &ndash; which is attached to the Palace of Justice.&nbsp;<br /><br />The Chairman of the Judicial Council has the authority to designate what is known as &ldquo;Special Mediators&rdquo; &ndash; selected from retired judges, lawyers, professionals, etc.&nbsp; However, it is not yet clear why the law has designated the category of &ldquo;Special Mediators&rdquo;, as the parties themselves can appoint their own private mediators. The Mediation Act 2006 states that the Case Management Judge or the Judge of the Magistrate Court, after meeting with the parties in the dispute or their legal representatives, may refer the dispute, upon the request of the parties or after their approval, to the Mediation Judge or to a Special Mediator to resolve the dispute amicably.&nbsp; In all cases, the judge shall take into consideration, as much as possible, the parties\' agreement while naming the mediator.&nbsp; However, the role of the direct involvement of the parties of appointing private mediators is not overruled completely by the Mediation Act 2006. In this respect, the parties may appoint private mediators upon the approval of the Case Management Judge or the Magistrate Judge.&nbsp; From a procedural viewpoint the Mediation Act 2006 makes a distinction between the requirements when submitting the file to the Mediation Judge and the Special Mediators.<br /><br />The mediation judge reserves the right to ask the parties to submit a brief memorandum of their claims or defenses. When submitting to the latter, parties need to submit such briefs within a period not exceeding 15 days as of the date of the referral. In this respect, Art.(4) of the Mediation Act 2006 states that:&nbsp;<br /><br />\"Parties to the dispute need to attend mediation sessions or their legal representatives, particularly if they were juridical persons.&nbsp; As far as the mediator is concerned, it is up to him/her to determine the date of each hearing and notify the parties in dispute or their representatives of dates and locations.&nbsp; The mediator shall meet with the parties in and their representatives and discuss with them the subject matter of the dispute including their requests and defenses.&nbsp; For this purpose, the mediator may give his/her opinion, evaluate the evidences, and present the legal grounds, precedents and other procedures, which will facilitate the mediation process.&nbsp; As far as time constraints are concerned, the mediator shall complete the mediation process within a period not exceeding three months as of the date of referring the dispute to him\".<br /><br />If the mediator reached a settlement, totally or partially, he/she shall submit to the Case Management Judge or to the Magistrate Judge a report of such enclosed with the settlement agreement signed by both parties in the dispute to be ratified. This agreement shall be considered, after ratification, as final.&nbsp; However, if the mediator did not reach a settlement, he/she shall submit a report to the Case Management Judge or to the Magistrate Judge, indicating that the parties did not reach a settlement &ndash;provided that he/she clarifies in this report the scope of their compliance and their representatives in attending the mediation hearings.&nbsp;&nbsp;<br />If the mediation was not successful due to the absence of one of the parties or their representatives, the Case Management Judge or the Magistrate Judge may impose a fine on that party or their representative.&nbsp; However, upon the conclusion of mediation, the mediator needs to return to each party the memorandums and documents submitted, without retaining any copies thereof, subject to the legal liability.&nbsp; The mediation, which shall be confidential, once ratified by the parties, shall be considered final.&nbsp; Additionally, subject to nullity, even the Mediation Judge would not be able to review the decision.<br /><br />As for the characteristics of the Jordanian System of Mediation, please note that:</p>\r\n<ol>\r\n<li>The Jordanian system of mediation is largely court-based. When registering their cases at the Palace of Justice in Amman, the Court&rsquo;s Registrar will recommend referring disputes to the Mediation Management Centre.</li>\r\n<li>The Jordanian system of court-based mediation is still experimental. The Mediation Management Centre is attached only to the Palace of Justice in Amman and not spread throughout the country. The legal community is still positive about the role of mediation in Jordan and is highly complementary that Jordan is the first Arab country to enact a Mediation Act.&nbsp;</li>\r\n<li>Jordan accepts private mediation, and allows the parties to choose their own mediators. However, as seen above under the Mediation Act 2006, such type of mediation often lack some of the enforcement mechanisms accorded to court-based mediation.</li>\r\n<li>Jordanian mediation needs to be confidential. Mediators owe a duty of confidentiality to the parties and may not in general circumstance divulge their proceeding to unauthorized persons or public bodies.&nbsp;</li>\r\n<li>Court-based mediation in Jordan has a time constraint of three months to conclude within this time. This is seen as a step forward in order to cut costs and ensure that the process of mediation is timely and efficient.</li>\r\n<li>Although mediation in Jordan is a voluntary exercise, once it is court-based certain enforcement mechanisms are employed to ensure that the process is taken seriously. For example, parties to the dispute will be fined if they (or their legal representatives, if they are juridical persons) fail to attend mediation cessions.</li>\r\n<li>Once approved by the parties, court-based mediation outcomes in Jordan are final and cannot be abrogated. However, this is not the case when mediation is not court-based.&nbsp; If the parties do not agree to the decision of a private mediator, then they can bring the case to the courts. This is seen by some judges in Jordan as duplicating the process, and often requiring further regulation.&nbsp;<br />Jordan&rsquo;s experience with ADRs is still relatively new. However, despite this, Jordan has recently made commendable strides towards institutionalizing this process, and is increasing its attention to mediation.</li>\r\n</ol>'),
(84598, 4613, '_content', 'field_59b649b5c8b2b'),
(84599, 4613, 'lawUpdateArticleMonth', '4598'),
(84600, 4613, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(84601, 4613, 'content_description', 'Mediation as a social phenomenon is a highly entrenched practice in Jordanian society. This stems from Jordan’s strong tribal roots which place high importance on the role of tribal leaders in mediating disputes.'),
(84602, 4613, '_content_description', 'field_59b641c07f473'),
(84603, 4613, 'pageSummary', 'Mediation as a social phenomenon is a highly entrenched practice in Jordanian society. This stems from Jordan’s strong tribal roots which place high importance on the role of tribal leaders in mediating disputes.'),
(84604, 4613, '_pageSummary', 'field_59e59b307dec8'),
(84605, 4613, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-6/november-3/mediation-in-jordan.html'),
(84606, 4613, '_currentURL', 'field_59d35123ab1e7'),
(84607, 4613, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Alaa Al Bataineh'),
(84608, 4613, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(84609, 4613, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'a.albataineh@tamimi.com'),
(84610, 4613, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'field_59e59afcd15de'),
(84611, 4613, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', ''),
(84612, 4613, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', 'field_59e59b05d15df'),
(84613, 4613, 'lawUpdateArticleNoWriters', '1'),
(84614, 4613, '_lawUpdateArticleNoWriters', 'field_59e59aaed15dc'),
(84615, 4613, 'lawUpdateArticlePractices_0_lawUpdateArticlePractice', '410'),
(84616, 4613, '_lawUpdateArticlePractices_0_lawUpdateArticlePractice', 'field_59dc79c8e10ce'),
(84617, 4613, 'lawUpdateArticlePractices', '1'),
(84618, 4613, '_lawUpdateArticlePractices', 'field_59dc7918de021'),
(84619, 4613, '_yoast_wpseo_metadesc', 'Mediation as a social phenomenon is a highly entrenched practice in Jordanian society. This stems from Jordan’s strong tribal roots which place high importance on the role of tribal leaders in mediating disputes.'),
(84620, 4614, 'content', '<p>The contract between the parties contained an arbitration clause. Accordingly, the Claimant requested the court to appoint an arbitrator. The dispute between the parties related to the Defendant&rsquo;s unilateral termination of usufruct contracts between the parties. The Claimant, which considered the Defendant&rsquo;s termination to be unlawful, also desired that the arbitrator assesses the quantum of damages suffered by it by virtue of the purported unlawful termination.<br /><br /><strong>Facts of the Case<br /></strong><br />The Claimant was the owner of a Hotel, and had entered into four usufruct contracts with the Defendant with respect to that Hotel. The Claimant argued that it had fulfilled all its contractual obligations, but that the Defendant had taken possession over three out of the four outlets and closed them down. It was the Claimant&rsquo;s case that this was done without any legal basis or justification. Accordingly, on 7 September 2007 the Claimant sent the Defendant a letter of termination of the contracts and requesting the hand over of the outlets.<br /><br /><strong>Procedural History<br /><br /></strong>On 24 October 2007, the Court of First Instance referred the case to the Judicial Department of the Emirate of Abu Dhabi to appoint a sole arbitrator to arbitrate the dispute between the parties, based on the request of the Defendant.<br /><br /><strong>The Court also held:</strong></p>\r\n<ul>\r\n<li>That the arbitrator should deposit the Award and the appendices with the Court within 15 days from the date of issuance.</li>\r\n<li>That within 15 days of the arbitrator depositing the Award, a hearing session to authenticate this award would be set.</li>\r\n</ul>\r\n<p>The Defendant appealed this decision to the Court of Appeals and the Court of Cassation but both appeals were dismissed. On 28 January 2009 the arbitrator issued the award, and on 8 April 2009 the Court of First Instance authenticated the award. The Defendant then lodged an appeal with the Court of Appeal.<br /><br />The Court of Appeal upheld the lower&rsquo;s court decision. Consequently, the Defendant appealed to the Court of Cassation.<br /><br /><strong>Court of Cassation<br /><br /></strong>The Defendant argued that the Court of Appeal had erred in its decision to uphold the decision of the Court of First Instance. The basis for the Defendant&rsquo;s appeal was that the Award was null and void. The grounds for this argument were as follows:<br /><br />a)&nbsp;The authentication of the arbitral award should not be filed after the issuance of the final decision on 24 October 2007 that ended the dispute by appointing an arbitrator as it is not admissible to accept the interlocutory application that was submitted by the Claimant requesting the court to authenticate the arbitral award after the Court issued its final decision;<br /><br />b)&nbsp;The procedure for authenticating the Award as imposed by the Court had not been requested by the parties.<br /><br />c)&nbsp;That the Claimant should have had to initiate its own independent proceedings to demand that the Court authenticate the arbitral award.</p>\r\n<p>d)&nbsp;That the Court lacked the jurisdiction to oversee the case as the Tenancy Dispute Resolution Committee (TDRC), as per law No 20 of 2006 (as amended by Law no. 6 of 2009 for the Emirates of Abu Dhabi) was the appropriate legal entity for the resolution of the dispute. The Defendant argued that this was the case notwithstanding the presence of an arbitration clause.</p>\r\n<p>e)&nbsp;Finally, the Defendant argued that the arbitration award was void due to the invalidity of the arbitration clause in the contracts as the Claimant&rsquo;s representatives were not authorized in their Power of Attorney to sign the arbitration clause on behalf of the Claimant.<br /><br />In relation to the first point, the Court of Cassation relied on Article 213 of the UAE Civil Procedure Law in holding that arbitration can be conducted either through the Court (Articles 213(1) and 213(2)) or through an independent institution (Article 213(3)).<br /><br />The Court of Cassation stated that if parties participating in an institutional arbitration wanted to enforce or set aside the arbitral award, they should file a claim in the relevant Court according to article 42 of the Civil Procedure Law. However, the Court of Cassation held that the arbitration proceedings in this case had been conducted through the Court. The Claimant&rsquo;s plea to set aside the Award was therefore rejected because of Article 213(1) of the UAE Civil Procedure Law, which permits a party to enforce the award without the need to file a new case with the court.<br /><br />The Court rejected the Claimant&rsquo;s plea that the procedure for authenticating the Award as imposed by the Court had not been requested by the parties.&nbsp; In this regard, the Court relied on subsections 1 &amp; 2 of article 213,&nbsp; and accordingly the court decided that the parties can authenticate the arbitral award as stated in subsections 1 of this article without the need to file a new case with the court.<br /><br />The Court of Cassation held that the TDRC was the legal entity that is entitled to oversee disputes emanating from the tenant-landlord relationship. Moreover, the Court held that the mandatory provisions of Article 2 Law no.20 of 2006 as amended by Law no. 6 of 2009 for the Emirates of Abu Dhabi prohibit parties &ldquo;to agree to arbitrate any dispute arising out of the tenancy agreement&rdquo;.<br /><br />However, the Court noted that Article 2 of the same law excluded from its provision leases for hotels and building for tourism purposes, including furnished apartments. The Court found that the effect of Article 2 was such that the TDRC did not have jurisdiction over cases related to leases for hotels and building for tourism purposes, including furnished apartments. The Court reasoned that since contracts falling under Article 2 were not covered by TDRC, parties to these types of contracts should be granted a limited time within which to agree to arbitrate their tenant landlord disputes. In this case, the Court ruled that as the subject property was a hotel for tourism purposes the TDRC did not have jurisdiction.<br /><br />The Court of Cassation also rejected the Claimant&rsquo;s capacity argument. The Court held that pursuant to Article 203(4), only those who have capacity/competence to participate in dispute resolution proceedings can agree on arbitration. The Court clarified that this authority could be expressed or implied.<br /><br />Such authority would be considered express when it is conveyed verbally or in writing, and implicit when inferred from the circumstance, such as speech and conduct. The Court further held that the agreement to arbitrate can be incorporated as a clause in the contract between parties or as a separate independent agreement in the course of a dispute between both parties. However, this is not to be confused with the doctrine of separability which prescribes that an arbitration clause in a contract is to be treated as separate from that main contract. The Court found that in this case, all contracts concluded between the parties were signed by the representatives of the Claimant and sealed with its company stamp. The Court also found although the representatives who signed the agreements containing the arbitration clause did not have express authority to do so,&nbsp; there was communication regarding arbitration between these representatives and the duly authorized persons within the company. These communications, according to the Court, were strong evidence of an implied authority to enter into arbitration. Additionally, the Defendant did not dispute the authority of these representatives at any earlier stage.&nbsp;<br /><br />The result of the case was that the Court of Cassation rejected the Claimant&rsquo;s pleas. The award was held to be valid and enforceable.</p>'),
(84621, 4614, '_content', 'field_59b649b5c8b2b'),
(84622, 4614, 'lawUpdateArticleMonth', '4598'),
(84623, 4614, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(84624, 4614, 'content_description', 'Claim: A commercial action was filed by a local company (“the Claimant”) before the Abu Dhabi Court against a Hotel operating company in the UAE (“the Defendant”). '),
(84625, 4614, '_content_description', 'field_59b641c07f473'),
(84626, 4614, 'pageSummary', 'Claim: A commercial action was filed by a local company (“the Claimant”) before the Abu Dhabi Court against a Hotel operating company in the UAE (“the Defendant”). '),
(84627, 4614, '_pageSummary', 'field_59e59b307dec8'),
(84628, 4614, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-6/november-3/the-uae-courts-approach-with-respect-to-upholding-arbitration-awards-1.html'),
(84629, 4614, '_currentURL', 'field_59d35123ab1e7'),
(84630, 4614, 'lawUpdateArticleWriters_0_lawUpdateArticleWriter', '929'),
(84631, 4614, '_lawUpdateArticleWriters_0_lawUpdateArticleWriter', 'field_59da2ac06b065'),
(84632, 4614, 'lawUpdateArticleWriters', '1'),
(84633, 4614, '_lawUpdateArticleWriters', 'field_59da2a866b064'),
(84634, 4614, 'lawUpdateArticlePractices_0_lawUpdateArticlePractice', '410'),
(84635, 4614, '_lawUpdateArticlePractices_0_lawUpdateArticlePractice', 'field_59dc79c8e10ce'),
(84636, 4614, 'lawUpdateArticlePractices', '1'),
(84637, 4614, '_lawUpdateArticlePractices', 'field_59dc7918de021'),
(84638, 4614, '_yoast_wpseo_metadesc', 'Claim: A commercial action was filed by a local company (“the Claimant”) before the Abu Dhabi Court against a Hotel operating company in the UAE (“the Defendant”).'),
(84639, 4615, 'content', '<p><span>The Claimant requested an order that the Respondent pay the amount of AED1, 253,528 along with interest in addition to the value of the final certified payment certificate.</span><br /><br /><span>In the course of the pleadings, the Respondent amended the relief sought by requesting that the Court appoint an arbitrator to settle the dispute between the parties. Connected with this plea was a request that the action filed by the Claimant be dismissed on the basis that the Dubai Court had no jurisdiction to hear the dispute because the performance of the construction contract had occurred in the Emirate of Sharjah.</span><br /><br /><span>Appeals may not be filed against judgments issued pursuant to Article 204(1) of the UAE Civil Procedure Code which deal with the appointment or replacement of an arbitrator.</span><br /><br /><strong>Procedural History:</strong><br /><br /><span>On 28 December 2006 the Court of First Instance ordered the appointment of an accounting expert to act as an arbitrator, charged with resolving a dispute which had arisen between the parties. The Respondent appealed this judgment to the Court of Appeal, the court rejected the appeal on the basis of Article 204(2) of the UAE Civil Procedure Code. Consequently the respondent appealed this decision to the Court of Cassation. The Claimant therefore filed a memorandum in defense.&nbsp;</span><br /><br /><span>Respondent argued that the Court of Appeal erred in its reasoning.&nbsp; By this the Respondent was referring to its pleas before the Dubai Court of First Instance. The relevant pleas were:</span><br /><span>&nbsp;</span><br /><span>a)&nbsp;that Court lacked the jurisdiction to determine the Claimant&rsquo;s request because the construction contract had been performed in Sharjah;</span><br /><br /><span>b)&nbsp;that the appointment of the arbitrator was incorrect and should be revoked.</span><br /><br /><span>The Respondent further argued that the Court of Appeal had determined the inadmissibility of its appeal without having properly examined the arguments put forward in support. Further, the Respondent argued that this was because, at least on its interpretation of the Court of Appeal&rsquo;s reasoning, those arguments were not admissible by virtue of Article 204(2) of the UAE Civil Procedure Code. The Respondent took the view that its arguments were essential arguments which ought to have been properly addressed. The Respondent&rsquo;s position was that the judgment issued by the Court of Appeal was therefore defective.&nbsp;</span><br /><br /><strong>Court of Cassation held:<br /><br /></strong><span>The Court of Cassation held that the Respondent&rsquo;s argument was groundless. The Court of Cassation held that it had been consistently established that orders appointing arbitrators cannot be appealed. The Court of Cassation acknowledged that this was an exception to the general rule that decisions of the Court are capable of appeal.</span><br /><br /><span>The Court of Cassation further re-iterated that the principle of the &ldquo;unchallengeable&rdquo; judgment does not extend to other subject matters such as pleas regarding lack of jurisdiction or, importantly, judgments rejecting requests to appoint an arbitrator, or, finally, judgments determining other preliminary questions upon which the adjudication of the request to appoint or replace an arbitrator is dependant: judgments falling within these categories are subject to appeal.&nbsp;However, judgments appointing arbitrators are not.</span><br /><br /><span>It was noted by the Court of Cassation that the Respondent, in the course of defending the action initially filed by the Claimant, had in fact requested the appointment of an arbitrator to resolve the dispute which had arisen in respect of outstanding payments.&nbsp;&nbsp;</span><br /><br /><span>What the legislator meant by the concept of the &ldquo;unchallengeable judgment&rdquo; in Article 204(2) of the UAE Civil Procedure Code is that orders of the Court appointing arbitrators cannot be appealed. This is an exception to the general rule which permits the appeal of judgments by methods permitted by law. Appeals may not be filed against judgments issued pursuant to Article 204(1) of the UAE Civil Procedure Code and which deal with the appointment or replacement of an arbitrator. The principle of the &ldquo;unchallengeable&rdquo; judgment does not extend to other subject matter such as pleas regarding lack of jurisdiction or, importantly, judgments rejecting requests to appoint an arbitrator, or, finally, judgments determining other preliminary questions upon which the adjudication of the request to appoint or replace an arbitrator is dependant: judgments falling within these categories are capable of appeal.&nbsp;</span><br /><br /><span>The Court of Cassation, in dismissing the Companies&rsquo; appeal, emphasized that decisions to appoint or replace arbitrators made pursuant to Article 204(1) of the UAE Civil Procedure Code enjoyed the protection of the principle of the &ldquo;unchallengeable judgment&rdquo; contained in Article 204(2).</span></p>'),
(84640, 4615, '_content', 'field_59b649b5c8b2b'),
(84641, 4615, 'lawUpdateArticleMonth', '4598'),
(84642, 4615, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(84643, 4615, 'content_description', 'Summary of facts: The Claimant filed an action before the Dubai Court of First Instance against two Companies (collectively known as “the Respondent”).'),
(84644, 4615, '_content_description', 'field_59b641c07f473'),
(84645, 4615, 'pageSummary', 'Summary of facts: The Claimant filed an action before the Dubai Court of First Instance against two Companies (collectively known as “the Respondent”).'),
(84646, 4615, '_pageSummary', 'field_59e59b307dec8'),
(84647, 4615, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-6/november-3/dubai-challenging-the-appointment-of-an-arbitrator.html'),
(84648, 4615, '_currentURL', 'field_59d35123ab1e7'),
(84649, 4615, 'lawUpdateArticleWriters_0_lawUpdateArticleWriter', '929'),
(84650, 4615, '_lawUpdateArticleWriters_0_lawUpdateArticleWriter', 'field_59da2ac06b065'),
(84651, 4615, 'lawUpdateArticleWriters', '1'),
(84652, 4615, '_lawUpdateArticleWriters', 'field_59da2a866b064'),
(84653, 4615, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Marwa El Mahdy'),
(84654, 4615, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(84655, 4615, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'm.elmahdy@tamimi.com'),
(84656, 4615, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'field_59e59afcd15de'),
(84657, 4615, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', ''),
(84658, 4615, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', 'field_59e59b05d15df'),
(84659, 4615, 'lawUpdateArticleNoWriters', '1'),
(84660, 4615, '_lawUpdateArticleNoWriters', 'field_59e59aaed15dc'),
(84661, 4615, 'lawUpdateArticlePractices_0_lawUpdateArticlePractice', '410'),
(84662, 4615, '_lawUpdateArticlePractices_0_lawUpdateArticlePractice', 'field_59dc79c8e10ce'),
(84663, 4615, 'lawUpdateArticlePractices', '1'),
(84664, 4615, '_lawUpdateArticlePractices', 'field_59dc7918de021'),
(84665, 4615, '_yoast_wpseo_metadesc', 'Summary of facts: The Claimant filed an action before the Dubai Court of First Instance against two Companies (collectively known as “the Respondent”).');
INSERT INTO `tm_postmeta` (`meta_id`, `post_id`, `meta_key`, `meta_value`) VALUES
(84666, 4616, 'content', '<p>&nbsp;Our team comprises dispute resolution lawyers based in Dubai, Abu Dhabi,  Sharjah, Qatar, Saudi Arabia, Jordan, Kuwait and Iraq with experience resolving  disputes in the local courts of each of the countries in which we operate, as  well as the Dubai International Financial Centre Court that is second to none.&nbsp;  Many of the senior individuals within the team are recognized as leading  practitioners in their field. Whatever problems our clients face, wherever they  occur in the Middle East and beyond, we are strategically placed to  assist.<br /><br />Led by Hassan Arab who is one of the leading and most respected  dispute resolution practitioners in the region, our team of highly qualified and  experienced practitioners from the Middle East, Europe, Australia, Africa and  North America brings a breadth and depth of legal expertise and experience that  is unequalled in the UAE and Gulf.&nbsp; Our lawyers include a team of UAE nationals  with rights of audience to appear before all Courts of law in the UAE. Not only  are our litigators licensed to appear before the local UAE Courts, we are also  honoured to have on our staff a retired senior judge who has served an  impressive thirty years behind the bench. We take pride that several of our  lawyers are recognized arbitrators who have acted as sole arbitrators in several  complex matters.<br /><br />In addition to the UAE litigation practice, Al Tamimi  has one of the largest and leading the Dubai International Financial Centre  (&ldquo;DIFC&rdquo;) Courts&rsquo; practice groups in the UAE led by Rita Jaballah.&nbsp; Al Tamimi was  actively involved in the establishment of the DIFC Courts and we have been  involved with the DIFC Courts&rsquo; Users&rsquo; Committee and DIFC Court Rules  Sub-Committee. We have a number of solicitors and barristers qualified in other  jurisdictions registered to appear before the DIFC Courts. To date we have been  involved in some of the leading DIFC Court of First Instance and the DIFC Court  of Appeal cases to come before the DIFC Courts.&nbsp;<br /><br />The teams&rsquo; success is  recognised by the leading legal directories with Chambers stating that our  lawyers &lsquo;excel at local law litigation&rsquo; and have commented that, &lsquo;the sheer  breath of the firms presence around the world ensures that clients can always  find informed advise on local disputes&rsquo;<br />Our clients rely on our global  perspective and our in-depth knowledge and understanding of local and regional  laws.&nbsp; We advise and represent clients involved in local, DIFC, regional and  international commercial disputes.&nbsp; Our familiarity with federal and local  government, federal and local laws, the laws and regulations of the Free Zones,  and with the many Courts and tribunals operating across the UAE and the Middle  East, enables our clients to conduct their affairs with increased certainty and  efficiency.&nbsp; <br /><br /><strong>OUR SERVICES AT A GLANCE&nbsp; INCLUDE:</strong></p>\r\n<ul>\r\n<li>Domestic and Regional Commercial, Banking and Finance, Intellectual  Property, Property, Construction and Employment Disputes and Litigation  (including all disputes filed before specialist tribunals such as the Rent  Committee and Specialist Judicial Committees</li>\r\n<li>Multijurisdictional Litigation</li>\r\n<li>Mediation and other forms of alternative dispute resolution</li>\r\n<li>Enforcement of foreign judgments and arbitral awards</li>\r\n<li>White collar crime and all forms of criminal prosecution and  defence</li>\r\n</ul>\r\n<p>What distinguishes Al Tamimi &amp; Company&rsquo;s Dispute Resolution practice from  others, though, is that, as part of the local community, we understand the local  culture. Emphasis on local knowledge and abilities has been and will continue to  be a key characteristic of the practice. Having international skills and talent  while remaining a local firm is one of the pillars of our  success.<br /><br /><strong>Key Contacts:<br /><br />Hassan Arab</strong><br />Deputy  Managing Partner<br />Regional Head of Litigation<br /><a href=\"mailto:h.arab@tamimi.com\">h.arab@tamimi.com</a><br /><strong><br /><br />Hussain  Eisa Al Shiri</strong><br />partner<br />Head of UAE Litigation<br /><a href=\"mailto:h.shiri@tamimi.com\">h.shiri@tamimi.com<br /></a><strong><br /><br />Ahmed  Allouz</strong><br />partner<br />Head of Dubai Litigation<br /><a href=\"mailto:a.allouz@tamimi.com\">a.allouz@tamimi.com</a></p>\r\n<p><strong><br />Rita Jaballah</strong><br />partner <br />Head of DIFC  Litigation<br /><a href=\"mailto:r.jaballah@tamimi.com\">r.jaballah@tamimi.com</a></p>\r\n<p><strong><br />Mohammed Al Marzouqi</strong><br />partner <br />Head of Litigation,  Abu Dhabi<br /><a href=\"mailto:z.oghil@tamimi.com\">m.almarzouqi@tamimi.com</a><br /><br /><strong><br />Zafar  Sheikh Oghli</strong><br />partner <br />Head of Sharjah office <br /><a href=\"mailto:z.oghil@tamimi.com\">z.oghil@tamimi.com</a><br /><br /><br /><strong>ARBITRATION<br /></strong><br />The  Arbitration team consists of international lawyers with considerable experience  of arbitrating disputes in a variety of regions and industries. The team is led  by Essam Al Tamimi who is a distinguished and highly respected practitioner and  speaker on both the local and international arbitration scene.&nbsp;The firm&rsquo;s  practitioners include lawyers from the UK, Australia, United States and India,  and they regularly write, consult and lecture on arbitration around the  world.</p>\r\n<p>The Firm&rsquo;s arbitration expertise extends to all types of disputes and  industries,  including:<br /><br />-&nbsp;Trade<br /><br />-&nbsp;Banking<br /><br />-&nbsp;Finance<br /><br />-&nbsp;Commodities<br /><br />-&nbsp;Corporate  and commercial problems<br /><br />-&nbsp;Agency disputes<br /><br />-&nbsp;Joint venture disputes  and company/corporate related issues<br /><br />-&nbsp;Shareholder  disputes<br /><br />-&nbsp;Fraud aspects arising out of international  trade<br /><br />-&nbsp;Bilateral investment treaty claims and matters arising out of  international treaties generally<br /><br />-&nbsp;Disputes relating to sale of goods and  commodities<br /><br />-&nbsp;Performance bonds, guarantees, letters of indemnity,  banking collateral agreements<br /><br />-&nbsp;Disputes regarding the sale, purchase and  construction of property and infrastructure<br /><br />-&nbsp;Insurance, re-insurance and  mutual assurance issues.</p>\r\n<p>The team regularly advises on the enforcement of domestic and foreign awards  in the Middle East, and provides expert witness evidence in arbitration  proceedings in various jurisdictions on a range of issues under UAE law.  <br /><br />The team also handles arbitrations conducted in Arabic, and works very  closely with other departments such as Construction, IP, Transport &amp;  Shipping and the Property Department to prevent and resolve our clients&rsquo;  problems.<br /><br />Our Arbitration lawyers have extensive experience in all types  of arbitration work including ICSID and UNCITRAL arbitrations and arbitrations  before the following:</p>\r\n<ul>\r\n<li>The Dubai International Arbitration Centre (DIAC)</li>\r\n<li>The DIFC &ndash; LCIA Arbitration Centre</li>\r\n<li>Abu Dhabi Commercial Conciliation &amp; Arbitration Centre (ADCCAC)</li>\r\n<li>GCC Commercial Arbitration Centre, Manama, Bahrain</li>\r\n<li>The International Court of Arbitration (ICC)</li>\r\n<li>The London Court of International Arbitration (LCIA)</li>\r\n<li>London Maritime Arbitrators Association, London Metal Exchange, the Refined  Sugar Association, Grain &amp; Feed Trade Association, Federation of Oils Seeds  and Fats Association, Coffee Trade Federation, Cocoa Association</li>\r\n<li>Kuala Lumpur Regional Centre for Arbitration</li>\r\n<li>Ad hoc arbitration tribunals in the UAE, Geneva, Stockholm and  Moscow</li>\r\n</ul>\r\n<p><br />Another key attraction Al Tamimi offers is that it is a one-stop shop  which covers every aspect of a commercial dispute, since it offers expertise in  mediation, conciliation, arbitration, and litigation, and can take a case from  the preliminary advisory stage all the way through to enforcement. Many firms  have to outsource their local court work to independent UAE law firms at great  expense and inconvenience to their clients, but that is not the case with Al  Tamimi &amp; Company. The Arbitration and Litigation teams work alongside each  other on a day-to-day basis to provide comprehensive and effective support to  our clients.<br /><br />The Arbitration and Litigation teams enjoy a varied and  interesting practice that deals with a wide range of problems.&nbsp; We believe it is  a real privilege for us to learn about our clients&rsquo; business and assist them in  any way possible. Although every problem is uniquely different, we believe there  is always a commercially pragmatic and effective solution, and we make sure we  attempt to find it for the benefit of those instructing us.<br /><br /><strong>Key  contact:</strong></p>\r\n<p><strong>Paul Turner</strong><br />Regional head of  Arbitration<br />p.turner@tamimi.com</p>'),
(84667, 4616, '_content', 'field_59b649b5c8b2b'),
(84668, 4616, 'lawUpdateArticleMonth', '4598'),
(84669, 4616, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(84670, 4616, 'content_description', 'Litigation : Al Tamimi & Company boasts the largest, strongest and broadest dispute resolution practice in the Middle East. '),
(84671, 4616, '_content_description', 'field_59b641c07f473'),
(84672, 4616, 'pageSummary', 'Litigation : Al Tamimi & Company boasts the largest, strongest and broadest dispute resolution practice in the Middle East. '),
(84673, 4616, '_pageSummary', 'field_59e59b307dec8'),
(84674, 4616, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-6/november-3/dispute-resolution-in-al-tamimi-company.html'),
(84675, 4616, '_currentURL', 'field_59d35123ab1e7'),
(84676, 4616, 'lawUpdateArticlePractices_0_lawUpdateArticlePractice', '410'),
(84677, 4616, '_lawUpdateArticlePractices_0_lawUpdateArticlePractice', 'field_59dc79c8e10ce'),
(84678, 4616, 'lawUpdateArticlePractices', '1'),
(84679, 4616, '_lawUpdateArticlePractices', 'field_59dc7918de021'),
(84680, 4616, '_yoast_wpseo_metadesc', 'Litigation : Al Tamimi & Company boasts the largest, strongest and broadest dispute resolution practice in the Middle East.'),
(84681, 4617, 'content', 'October 2013\r\n\r\n<hr />\r\n\r\nThe principle allows for the reduction of the agreed upon obligations of a party to a contract if that party’s performance was affected by an unforeseen public circumstances and justice warrants such a reduction by the judge. For this principle to be applicable, certain restrictions laid down by the legislator must be proven by the aggravated party whose contractual performance was rendered onerous by the unforeseen emergency. This principle is different than force majeure in that the latter renders the contractual performance impossible and thus the contractual obligations affected by it are cancelled.\r\n\r\nIn a recent case the Dubai Court of Cassation looked at the argument as to whether the Financial Crisis was sufficient cause to invoke the principle of exceptional circumstances as per Article 249 of the UAE Civil Code.\r\n\r\n<strong>Facts:</strong>\r\n\r\nA real estate developer entered into a sale agreement to sell a floor in one of its projects to an investment company. Later on, the parties agreed to terminate the agreement by virtue of a settlement agreement whereby the real estate developer took back the previously sold floor from the investment company for the amount of AED 25,300,176. However, the Claimant failed to pay the amount of AED 11,440,000 from the agreed upon settlement sum.\r\n\r\nThe investment company (the “Claimant”) filed an action before Dubai Court of First Instance against the real estate developer (the “Respondent”) requesting payment of the due amount plus 5% interest calculated from the date of each unsettled installment. The Respondent filed a counterclaim and requested the Court to abrogate the second agreement on grounds of Article 583 of the UAE Civil Code, and to reduce the due amount to a reasonable limit on grounds of exceptional circumstances as defined in Article 294 of the UAE Civil Code due to the occurrence of the global financial crisis.\r\n\r\n<strong>Procedural History:</strong>\r\n\r\nThe First Instance Court appointed an expert to look at Respondent’s performance of its contractual obligations. After submitting his report, the Court rendered its judgment as to the principal claim and ordered the Respondent to pay the amount of AED 11, 440,000 and 5% interest from the date of filing the claim until full payment and dismissed the counter claim.\r\n\r\nBoth the Claimant and the Respondent appealed the judgment to the Court of Appeals. The Court dismissed the Respondent’s appeal and increased the interest to 9% in response to the Claimant’s appeal and further upheld the lower court’s judgment as to all other aspects. Consequently, the Respondent filed an appeal before the Court of Cassation requesting to overturn the lower court’s judgment.\r\n\r\n<strong>The Court of Cassation:</strong>\r\n\r\nThe Respondent argued that the lower court erred in its application of the law when it relied in its judgment on the expert’s report and disregarded the Respondent’s argument as to its right for application of the principle of unforeseen circumstances stipulated under Article 249 of the UAE Federal Civil Transactions Law. While the Respondent would have performed its contractual obligations in usual circumstances, the occurrence of the Global Financial Crisis as an unforeseen public circumstance rendered performance of its obligations onerous and unreasonably excessive threatening it with vast losses due to the collapse of the real estate market. The collapse of the real estate market caused the deterioration of the Respondent’s financial status. Furthermore, it placed the Respondent’s business in daunting circumstances which led to financial distress and which requires reducing its contractual obligation to a reasonable level in accordance with the aforementioned article.\r\n\r\nThe Court of Cassation stated that it is well established that the basic rule in contracts is that it is not open to either of the two parties to a contract to unilaterally abrogate or vary from it nor is it permissible for the judge to do so. However, the legislator, in response to a pressing need necessitated by justice, laid down an exception, namely the exception of unforeseen circumstances as defined in Article 249 of the UAE Civil Code. The legislator has provided for material restrictions that must be present for the judge to be able to apply the aforementioned article, namely:\r\n<ol>\r\n 	<li>there must be an unforeseen event that rarely occurs and could not be predicated by the normal person;</li>\r\n 	<li>the unforeseen event is public and not only affecting the debtor or a limited scale of people;</li>\r\n 	<li>the event was not foreseen when the parties concluded their agreement and the criteria is the usual person measure;</li>\r\n 	<li>the debtor was unable to avoid the consequences resulted from the unforeseen event by exercising a reasonable effort;</li>\r\n 	<li>the unforeseen event occurred following concluding the agreement and prior to executing it;</li>\r\n 	<li>the unforeseen event rendered the performance of the obligation onerous threatening with unreasonable loss for the aggravated party; and</li>\r\n 	<li>in order to apply the principal of exceptional circumstances and to reduce the onerous obligation, the legislator used the term “if justice so required” which implies the necessitating of applying an objective judgment, and the judge has the discretion in characterizing the case facts and its evidence accordingly.</li>\r\n</ol>\r\nThe Court further stated that the Global Financial Crisis and its consequential influences on the countries can not be deemed as an exceptional unforeseen disaster or emergency that calls for application of Article 249 of the UAE Civil Code. The Court reasoned that financial unfavorable events occur frequently and could be anticipated in general. Moreover, the Respondent did not dispute the amount owed; they simply wanted it to be reduced based on the Financial Crisis. Therefore, the Respondent’s request to reduce its obligation set forth in the settlement agreement on grounds of Article 249 is groundless, and thus, the Court upheld the lower court’s judgment and dismissed the case.\r\n\r\n<strong>Practice Note: </strong>\r\n\r\nIt is important to distinguish between the principle of exceptional circumstances as defined in Article 249 and the principle of force majeure as defined in Article 273 of the Civil Code in that the former if applicable requires the judge to reduce the onerous performance while the latter ceases the performance and terminates the contractual obligation. Further as illustrated by this case, the Court’s are reluctant to apply the principle of exceptional circumstances in events that occur frequently or that can be generally predicted. While the recent impact of the Financial Crisis cannot be denied, due to the volatile nature of the financial markets the Court was unconvinced that it was truly unforeseen.'),
(183910, 4617, 'core_values', ''),
(183911, 4617, '_core_values', 'field_59b64ab071de4'),
(183912, 4617, 'file', ''),
(183913, 4617, '_file', 'field_59b64c10f6600'),
(84682, 4617, '_content', 'field_59b649b5c8b2b'),
(84683, 4617, 'lawUpdateArticleMonth', '4780'),
(84684, 4617, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(84685, 4617, 'content_description', 'In binding contracts, the general principal is that unilateral modification of contractual terms is not permitted. However, the UAE legislator, for requirements necessitated by justice, has made an exception in Article 249 of the UAE Civil Code, namely the principle of exceptional circumstances.'),
(84686, 4617, '_content_description', 'field_59b641c07f473'),
(84687, 4617, 'pageSummary', 'In binding contracts, the general principal is that unilateral modification of contractual terms is not permitted. However, the UAE legislator, for requirements necessitated by justice, has made an exception in Article 249 of the UAE Civil Code, namely the principle of exceptional circumstances.'),
(84688, 4617, '_pageSummary', 'field_59e59b307dec8'),
(84689, 4617, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-6/november-3/dubai-the-global-financial-crisis-and-the-principle-of-exceptional-circumstances.html'),
(84690, 4617, '_currentURL', 'field_59d35123ab1e7'),
(84691, 4617, 'lawUpdateArticleWriters_0_lawUpdateArticleWriter', '812'),
(84692, 4617, '_lawUpdateArticleWriters_0_lawUpdateArticleWriter', 'field_59da2ac06b065'),
(84693, 4617, 'lawUpdateArticleWriters', '1'),
(84694, 4617, '_lawUpdateArticleWriters', 'field_59da2a866b064'),
(84695, 4617, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Marwa El Mahdy'),
(84696, 4617, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(84697, 4617, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'm.elmahdy@tamimi.com'),
(84698, 4617, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'field_59e59afcd15de'),
(84699, 4617, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', ''),
(84700, 4617, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', 'field_59e59b05d15df'),
(84701, 4617, 'lawUpdateArticleNoWriters', '1'),
(84702, 4617, '_lawUpdateArticleNoWriters', 'field_59e59aaed15dc'),
(84703, 4617, 'lawUpdateArticlePractices_0_lawUpdateArticlePractice', '410'),
(84704, 4617, '_lawUpdateArticlePractices_0_lawUpdateArticlePractice', 'field_59dc79c8e10ce'),
(84705, 4617, 'lawUpdateArticlePractices', '1'),
(84706, 4617, '_lawUpdateArticlePractices', 'field_59dc7918de021'),
(84707, 4617, '_yoast_wpseo_metadesc', 'In binding contracts, the general principal is that unilateral modification of contractual terms is not permitted. However, the UAE legislator, for requirements necessitated by justice, has made an exception in Article 249 of the UAE Civil Code, namely the principle of exceptional circumstances.'),
(84708, 4549, '_edit_lock', '1536151047:5'),
(84709, 4619, '_wp_attached_file', 'uploads2/media-4618.jpg'),
(84710, 4619, '_wp_attachment_metadata', 'a:5:{s:5:\"width\";i:100;s:6:\"height\";i:133;s:4:\"file\";s:23:\"uploads2/media-4618.jpg\";s:5:\"sizes\";a:0:{}s:10:\"image_meta\";a:12:{s:8:\"aperture\";s:1:\"0\";s:6:\"credit\";s:0:\"\";s:6:\"camera\";s:0:\"\";s:7:\"caption\";s:0:\"\";s:17:\"created_timestamp\";s:1:\"0\";s:9:\"copyright\";s:0:\"\";s:12:\"focal_length\";s:1:\"0\";s:3:\"iso\";s:1:\"0\";s:13:\"shutter_speed\";s:1:\"0\";s:5:\"title\";s:0:\"\";s:11:\"orientation\";s:1:\"0\";s:8:\"keywords\";a:0:{}}}'),
(84711, 4618, 'lawUpdateImageURL', '5902'),
(84712, 4618, '_lawUpdateImageURL', 'field_59c8deca117cd'),
(84713, 4618, 'lawUpdateDesc', ''),
(84714, 4618, '_lawUpdateDesc', 'field_59da24cd91f17'),
(84715, 4618, 'lawUpdateYear', '2013'),
(84716, 4618, '_lawUpdateYear', 'field_59da245091f13'),
(84717, 4618, 'pageSummary', ''),
(84718, 4618, '_pageSummary', 'field_59e59b307dec8'),
(84719, 4618, 'lawUpdateStartMonth', 'December'),
(84720, 4618, '_lawUpdateStartMonth', 'field_59da247791f14'),
(84721, 4618, 'currentURL', 'http://www.tamimi.com/en/section/law-update/section-5/january-2'),
(84722, 4618, '_currentURL', 'field_59d35123ab1e7'),
(84723, 4620, 'content', '<p>While franchise agreements are obvious examples of commercial agreement underpinned by trademark licenses, various other commercial agreements also contain or may contain detailed provisions related to the use of trademarks, including for example agency-, distribution- and in certain circumstances manufacturing agreements.&nbsp;</p>\r\n<p>Adequately dealing with the rights associated with the use of trademarks in commercial agreements is critical to the owners of these valuable intellectual property rights, while it is equally critical to licensees who may be investing significantly in ventures where the rights associated with the use of the licensed trademarks are not fully appreciated. &nbsp;</p>\r\n<p>This article will look into some considerations related to trademark licensing in the UAE under Federal Law No. 37 of 1992 Concerning Trademarks (the &ldquo;Law&rdquo;). &nbsp;</p>\r\n<p>Exclusive, non-exclusive and sole licenses</p>\r\n<p>Articles 30 to 34 of the Law deals specifically with the licensing of trademarks providing that the proprietor of a trademark may, &ldquo;by a written and notarized contract&rdquo;, license one or more persons to use such mark for all, or some, of the products or services for which the trademark is registered. &nbsp;</p>\r\n<p>The Law accordingly confirms that a trademark owner is at liberty to choose to grant an exclusive or non-exclusive license in the UAE.&nbsp; An exclusive license means only the particular licensee can use the trademark, while no further licenses to other parties would be possible in respect of the same territory and goods or services. &nbsp; A non-exclusive license refers to a license by which the licensor may allow more than one party to use the same trademark in the same territory and in respect of the same goods or services. &nbsp;</p>\r\n<p>Importantly, the Law also confirms that it is possible for the owner of a trademark to license different licensees to use the same trademark in respect of different goods or services. It may accordingly be possible for a licensor to grant for example an exclusive license to use a trademark in respect of jewelry (included in class 14 of the trademark classification system) to one licensee, while also granting an exclusive license to another licensee to use the same trademark in respect of watches (also included in the mentioned class 14).&nbsp; In each case however, it will be critical to clearly define the scope of the relevant license with respect to the specific goods it is limited to.</p>\r\n<p>Article 30 of the Law provides that &ldquo;&hellip; the trademark owner may use [the trademark] by himself unless agreed otherwise&rdquo;.&nbsp; As a result of this provision in the Law it is accordingly very important for especially licensees to ensure that license agreements governed by the laws of the UAE specifically deal with the rights of the owner of the licensed trademark.&nbsp; Whether the terms &ldquo;exclusive license&rdquo; or even &ldquo;sole license&rdquo; are used, a best practice is not to leave the rights of the trademark licensor open to interpretation and to rather specifically set out the actual rights of, or limitation of the rights of, the trademark owner in the agreement.</p>\r\n<p>Recordal of licenses - is it mandatory?</p>\r\n<p>When it comes to the recordal of trademark licenses, a number of questions are generally raised by clients such as whether the recordal of a license with the trademarks registry is mandatory, the effect of non-recordal of a license and whether the licensee would be able to take legal action against infringers. &nbsp;</p>\r\n<p>According to the Law, a trademark license shall be recorded in the Register, and a license shall have no effect against third parties unless it has been recorded.&nbsp; The Law accordingly clearly requires the recordal of a trademark license with the trademarks registry although non-recordal should not have any effect on the contractual rights and obligations created between the licensor and the licensee.</p>\r\n<p>In addition to the above it is worth mentioning that according to Article 20 of the Law, the proprietor of a trademark may apply for the cancellation of its trademark registration from the trademarks Register.&nbsp; However, if the proprietor has granted a third party, by way of a recorded license agreement, a license to use the trademark, the said mark may not be removed from the Register without the licensee&rsquo;s written approval.&nbsp; In order to benefit from this provision of the Law, it is accordingly necessary to ensure that the licence is in fact recorded with the trademarks registry.</p>\r\n<p>Enforcing a licensed trademark&nbsp;</p>\r\n<p>With regard to the question whether a trademark licensee is entitled to take legal action in its own name in the UAE to enforce the trademark licensed to it, the Law provides that it is the proprietor of the trademark that is entitled to initiate legal action against trademark infringers.&nbsp; A trademark licensee is accordingly not authorised by the Law to initiate legal action in its own name against trademark infringers on the basis of a license - whether recorded or not &ndash; irrespective of any such right being granted in a license agreement. &nbsp; &nbsp;</p>\r\n<p>The Law does provide however, that any person who suffers damages as a result of the infringement of a trademark can initiate a civil action claiming damages from the infringer.&nbsp; However, it must be taken into consideration that the legal status of a licensee will only be recognized upon the recordal of the license with the trademark registry and the non-recordal of a trade mark license may accordingly also have an adverse effect on the ability of a licensee to seek compensation in civil proceedings based on the provisions of the Law.</p>\r\n<p>Conclusion</p>\r\n<p>Based on the above discussion, the only conclusion that can be reached is it is advisable and beneficial for both trademark licensors and the licensees to record trademark licenses with the trademark registry. &nbsp;</p>\r\n<p>For any assistance with respect to trademark licensing or the recordal of trademark license agreements with the trademark registry, please contact the authors of this article.</p>'),
(84724, 4620, '_content', 'field_59b649b5c8b2b'),
(84725, 4620, 'lawUpdateArticleMonth', '4618'),
(84726, 4620, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(84727, 4620, 'content_description', 'The licensing of trademarks is an essential component of various commercial agreements facilitating business operations in the UAE. '),
(84728, 4620, '_content_description', 'field_59b641c07f473'),
(84729, 4620, 'pageSummary', 'The licensing of trademarks is an essential component of various commercial agreements facilitating business operations in the UAE. '),
(84730, 4620, '_pageSummary', 'field_59e59b307dec8'),
(84731, 4620, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-5/january-2/considerations-in-trademark-licensing-in-the-uae.html'),
(84732, 4620, '_currentURL', 'field_59d35123ab1e7'),
(84733, 4620, 'lawUpdateArticleWriters_0_lawUpdateArticleWriter', '884'),
(84734, 4620, '_lawUpdateArticleWriters_0_lawUpdateArticleWriter', 'field_59da2ac06b065'),
(84735, 4620, 'lawUpdateArticleWriters', '1'),
(84736, 4620, '_lawUpdateArticleWriters', 'field_59da2a866b064'),
(84737, 4620, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Waldo Steyn'),
(84738, 4620, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(84739, 4620, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'w.steyn@tamimi.com'),
(84740, 4620, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'field_59e59afcd15de'),
(84741, 4620, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', ''),
(84742, 4620, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', 'field_59e59b05d15df'),
(84743, 4620, 'lawUpdateArticleNoWriters', '1'),
(84744, 4620, '_lawUpdateArticleNoWriters', 'field_59e59aaed15dc'),
(84745, 4620, 'lawUpdateArticlePractices_0_lawUpdateArticlePractice', '634'),
(84746, 4620, '_lawUpdateArticlePractices_0_lawUpdateArticlePractice', 'field_59dc79c8e10ce'),
(84747, 4620, 'lawUpdateArticlePractices', '1'),
(84748, 4620, '_lawUpdateArticlePractices', 'field_59dc7918de021'),
(84749, 4620, '_yoast_wpseo_metadesc', 'The licensing of trademarks is an essential component of various commercial agreements facilitating business operations in the UAE.'),
(84750, 4621, 'content', '<p>Chapter 9 of the Capital Markets Law governs the placement memorandum of securities issued by companies.&nbsp;Pursuant to Article 370 of the CMA Bylaws, no person may offer  securities for public offering or private placement unless a placement  memorandum is submitted in accordance with the data and procedures set  forth in the CMA Bylaws and as approved by the CMA.&nbsp; Therefore, the CMA  will request the submission for review of a private placement memorandum  (the &ldquo;PPM&rdquo;), which must contain the following:</p>\r\n<ul>\r\n<li>Name, address of the head office, date and place of incorporation of the issuing entity.</li>\r\n<li>Name and address of the subscription agent if the issuing entity is not the subscription agent.</li>\r\n<li>Names and positions of the board members of the issuing entity.</li>\r\n<li>Subscription period.</li>\r\n<li>Statement that the placement memorandum was prepared in accordance  with Law No. 7 and the CMA Bylaws and, was approved by the CMA.</li>\r\n<li>Statement that the CMA shall not be a party in any case related to  the damages resulting from any placement memorandum registered by the  CMA.</li>\r\n<li>If the placement memorandum contains a statement by an expert or  statement based upon an opinion prepared by an expert, the placement  memorandum shall refer to the fact that the expert has given its  approval, that such approval was submitted to the CMA and that the  expert did not withdraw this approval before submission of the  memorandum for registration with the CMA.</li>\r\n<li>The memorandum shall clearly include the following notice: \"about  the contents of this document, we advise you to consult a legally  authorized advisor, and specialized in providing advice about purchase  of shares and other securities before making the placement decision.\"</li>\r\n<li>Names, addresses and positions of the individuals in charge of placement memorandum.</li>\r\n<li>Declaration from the board of the issuing entity or board of the  subscription agent that they shall be responsible for any inaccurate  information which could be included within the placement memorandum and  that they declare, according to the best of their knowledge and belief,  that the information in the placement memorandum was prepared in  accordance with true facts and that the placement memorandum did not  overlook any information which could affect the content thereof.</li>\r\n<li>Number of securities offered and the category they belong to.</li>\r\n<li>Statement of the rights related to the securities in the detail provided for below in numbers 27-29.</li>\r\n<li>Statement of profit distribution related to the issuing entity  within the preceding five years, including the value of distributions  and forms thereof.</li>\r\n<li>Procedures for exercising the rights of priority related to  securities and indication of any restrictions on whether the securities  offered are convertible into other forms of securities.</li>\r\n<li>Statement of whether or not the securities offered are listed in the  Kuwait Stock Exchange (the &ldquo;KSE&rdquo;) and any reasons for the rejection of  the listing application shall be mentioned.</li>\r\n<li>Giving a brief description of any future arrangements for trading securities offered.</li>\r\n<li>Objective of issuing securities.</li>\r\n<li>Authority for issuing and offering securities.</li>\r\n<li>Total revenue expected from the offering and the net revenues expected after deducting expenses.</li>\r\n<li>Details for using issuance revenues, specifically indicating the area of their use.</li>\r\n<li>Capital expense, reduction of debt, acquisition, operating capital or any other uses.</li>\r\n<li>Names of any persons in charge of covering the offering in case there are unsubscribed securities.</li>\r\n<li>Value of the offering expenses or estimated value thereof and, the party in charge of its payment.</li>\r\n<li>Procedures of refunding money to subscribers if their applications  are totally or partially rejected and an indication of the time schedule  for the same.</li>\r\n<li>Name and address of the transfer or registration agent, if any.</li>\r\n<li>Period of time for delivering securities after allocation. (Please note that the below</li>\r\n<li>27 &ndash; 29 are rights associated with shares as referenced above in 12)</li>\r\n</ul>\r\n<p>If the securities are shares, the rights related to them shall be as follows:</p>\r\n<ol>\r\n<li><span>Price of offering securities or method of determining the price and time schedule for the same</span></li>\r\n<li>Voting</li>\r\n<li>Short-term profit rate of the share</li>\r\n<li>Revenue of capital when liquidating the issuing entity</li>\r\n<li>Redemption of value and summary of all the approvals necessary about the difference in any of the rights</li>\r\n<li>Method of subscription in unsubscribed shares</li>\r\n</ol> \r\n<ul>\r\n<li>If the securities are bonds or deeds, the rights related to them shall be as follows:</li>\r\n</ul>\r\n<ol>\r\n<li><span>Payable revenue</span></li>\r\n<li>Date of payment</li>\r\n<li>Date of payment of the original amount</li>\r\n</ol> \r\n<ul>\r\n<li>If the securities are convertible:</li>\r\n</ul>\r\n<ol>\r\n<li>Conditions and maturity dates for holder of convertible securities to obtain</li>\r\n</ol> \r\n<ul>\r\n<li>the promised securities.</li>\r\n<li>Procedures for exercising the rights of the promised securities.</li>\r\n<li>Any information related to the promised securities according to what is</li>\r\n<li>required in 27 and 28 above.</li>\r\n<li>Legal form of the issuing entity, the legislation under which it was incorporated and the legislation it is operating under.</li>\r\n<li>Summary of the provisions provided for by the articles of  association or the regulations of the issuing entity in respect of  determining its objectives.</li>\r\n<li>Volume of permitted and paid-up capital and the number of shares distributed over each of them.</li>\r\n<li>Number and details of any securities issued by the issuing entity,  whether listed or unlisted in the KSE, along with indication of the  conditions and procedures for their conversion and the number of  promised shares after conversion.</li>\r\n<li>Number and details of any securities listed or not listed in the KSE  that are issued by the issuing entity but do not represent the shares  of capital.</li>\r\n<li>If the issuing entity is a member in a group, a brief description  shall be submitted for the group and the position of the issuing entity  therein.</li>\r\n<li>Any information about persons directly or indirectly exercising control over the issuing entity.</li>\r\n<li>Indicating the name of shareholders holding more than 5 % of the  securities which have the right to vote in the capital of the issuing  entity and the percentage of holding for each thereof.</li>\r\n<li>Audited financial statements approved by the general assembly of the  issuing entity for the three years preceding the date of subscription.</li>\r\n<li>Statement submitted by the board members of the issuing entity  proving the commitment of the issuing entity to prepare the said  financial statements in accordance with the Law of Commercial Companies  and acceptance of responsibility therefore.</li>\r\n<li>If a period elapses exceeding nine months as of the date of the  preparation of the last auditors\' report, a new report of the auditors  shall be submitted for the said period and shall include the status of  work progress, the status of profits and losses with the issuing entity,  an indication of its approval to publish such report in the placement  memorandum and that it assumes full liability therefore.</li>\r\n<li>Brief description of the present or suggested contracts of the board  members with the issuing entity or any of the affiliated companies.</li>\r\n<li>Disclosure of the contracts wherein any of the board members of the  issuing entity have a valid interest during the issuance of placement  memorandum.</li>\r\n<li>Total financial and &ldquo;in kind&rdquo; benefits granted to the board members  of the issuing entity during the previous financial year for the date of  issuing the placement memorandum plus the estimated value of such  benefits to be issued to board members of the financial year of  subscription.</li>\r\n<li>Number and percentage of shares held by each board member of the  issuing entity out of its capital and indication of the type of such  shares, if any.</li>\r\n<li>Resumes of each of the present or suggested board members of the  issuing entity and nature of any family relationships among such board  members.</li>\r\n<li>Disclosure of any other administrative position held by any board member or suggested board member.</li>\r\n<li>Description of the main businesses of the issuing entity and any exceptional factors influencing the businesses thereof.</li>\r\n<li>Statement about the reliance of the issuing entity on any specific  clients or suppliers; on any patent rights, other intellectual property  rights, licenses; or on any special contracts&nbsp; gaining an overriding  importance in the business of the issuing entity.</li>\r\n<li>Statement of the factors the issuing entity considers as risks affecting any investor in this offering.</li>\r\n<li>Information relating to current investments, if any.</li>\r\n<li>Information related to any judicial procedures, arbitration  proceedings, whether effective or pending, being prepared therefore,  taken by or against the issuing entity or any member in the group of the  issuing entity which has or might have a great influence upon the  financial position of the issuing entity.</li>\r\n<li>Main information for all the main contracts and parties thereof,  whether related to the issuing entity or companies affiliated thereto,  within two years as of the date of issuing the placement memorandum and  such contracts shall not include contracts that are standard in carrying  on the business thereof.</li>\r\n</ul>\r\n<p>In conclusion, the Capital Markets Law sets forth the requirements  for obtaining approval from the CMA for a PPM. However, please note that  the CMA may require other conditions and requirements given the  relatively recent implementation of the CMA and its procedures.</p>'),
(84751, 4621, '_content', 'field_59b649b5c8b2b'),
(84752, 4621, 'lawUpdateArticleMonth', '4618'),
(84753, 4621, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(84754, 4621, 'content_description', 'In February 2010, the Kuwait government passed new laws and regulations related to the activities of securities in Kuwait, namely Law No. 7 of 2010 (the “Law No. 7”) and Executive Bylaws for Law No. 7 of 2010 Concerning Establishment of the Capital Markets Authority and Organization of Securities Activity (the “CMA Bylaws”), (collectively the “Capital Markets Law”). The Capital Markets Authority (“CMA”) is currently the regulatory authority primarily responsible for regulating the marketing, offer and sale of securities in Kuwait. '),
(84755, 4621, '_content_description', 'field_59b641c07f473'),
(84756, 4621, 'pageSummary', 'In February 2010, the Kuwait government passed new laws and regulations related to the activities of securities in Kuwait, namely Law No. 7 of 2010 (the “Law No. 7”) and Executive Bylaws for Law No. 7 of 2010 Concerning Establishment of the Capital Markets Authority and Organization of Securities Activity (the “CMA Bylaws”), (collectively the “Capital Markets Law”). The Capital Markets Authority (“CMA”) is currently the regulatory authority primarily responsible for regulating the marketing, offer and sale of securities in Kuwait. '),
(84757, 4621, '_pageSummary', 'field_59e59b307dec8'),
(84758, 4621, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-5/january-2/kuwait-requirements-for-obtaining-approval-of-a-private-placement-memorandum-from-the-capital-market.html'),
(84759, 4621, '_currentURL', 'field_59d35123ab1e7'),
(84760, 4621, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Fatema Fathnezhad'),
(84761, 4621, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(84762, 4621, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'f.fathnezhad@tamimi.com'),
(84763, 4621, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'field_59e59afcd15de'),
(84764, 4621, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', ''),
(84765, 4621, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', 'field_59e59b05d15df'),
(84766, 4621, 'lawUpdateArticleNoWriters', '1'),
(84767, 4621, '_lawUpdateArticleNoWriters', 'field_59e59aaed15dc'),
(84768, 4621, 'lawUpdateArticlePractices_0_lawUpdateArticlePractice', '411'),
(84769, 4621, '_lawUpdateArticlePractices_0_lawUpdateArticlePractice', 'field_59dc79c8e10ce'),
(84770, 4621, 'lawUpdateArticlePractices', '1'),
(84771, 4621, '_lawUpdateArticlePractices', 'field_59dc7918de021'),
(84772, 4621, '_yoast_wpseo_metadesc', 'In February 2010, the Kuwait government passed new laws and regulations related to the activities of securities in Kuwait, namely Law No. 7 of 2010 (the “Law No. 7”) and Executive Bylaws for Law No. 7 of 2010 Concerning Establishment of the Capital Markets Authority and Organization of Securities Activity (the “CMA Bylaws”), (collectively the “Capital Markets Law”). The Capital Markets Authority (“CMA”) is currently the regulatory authority primarily responsible for regulating the marketing, offer and sale of securities in Kuwait.');
