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(104284, 5671, 'content', 'May 2017\r\n\r\n<hr />\r\n<p class=\"p1\"><strong>Background </strong></p>\r\n<p class=\"p2\">It is well known that corporations and individuals register their trademark in order to protect their brand so that competitors and infringers do not use confusingly similar or identical trademarks. Since trademarks are a means to differentiate from one product to the other and it is very much in the benefit of trademark owners to register the trademark, logos and designs that they have developed. To this effect a trademark registration creates a favorable presumption that the registrant is in fact the owner of the mark. In case of a dispute over the trademark or its registration, the person challenging the trademark registration has the burden of proof (which is a heavy one) to establish that the trademark should not have been registered due to a third party’s prior use of the trademark, or that the registration was obtained fraudulently.</p>\r\n<p class=\"p1\"><span class=\"s2\"> In other cases, where the intellectual property right is a software code, literal or artistic work, the author of such work can resort to the Egyptian Copyrights’ Office to obtain a copyright certificate, as proof that the work has been registered as a copyright. Although by its definition, the rights associated to copyright exists from the moment of its creation, a copyright certificate is however a necessary requirement by the Egyptian Courts in cases claiming copyright infringement and for copyright enforcement cases. Much like trademark certificates, a copyright registration creates a favourable presumption towards the registrant of the right. Hence, in case of third party challenges as to the validity of the copyright, the burden of proof lies with the challenging party. </span></p>\r\n<p class=\"p1\">In order to protect trademark and copyright holders against unauthorized use of their work and brands, the Egyptian Legislature has enacted Law no. 57 of 1939 for the Protection of Trademarks and Trade Information, and the Law no. 354 of 1954 for the Protection of Copyrights. Following which, the Law no. 82 of 2002 for the Protection of the Intellectual Property Rights replaced the former laws, which governs the protection of Trademarks, Trade Secrets, Patents, Industrial Designs, and Copyrights.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Trademark Infringement </strong></span></p>\r\n<p class=\"p1\"><span class=\"s3\">Where a third party is attempting to register an identical or confusingly similar trademark, a trademark owner has the right to file an opposition against the published trademark. Proposed trademarks are published in monthly gazettes. It is up to the brand owners to monitor the gazettes for confusingly or identical trademarks. According to the regulations in Egypt, oppositions are required to be filed within 60 days from the date of proposed trademark publication. Once a proposed trademark is opposed, an opposition board is appointed by the trademark office, and its task is to adjudicate on the parties’ argument and evidence and decide on whether the registration of the proposed trademark can lead to consumer confusion with prior existing trademark rights. Opposition proceedings are an effective tool for brand owner’s to stop third parties seeking to enter the market with confusingly or identical trademarks, and potentially prevent trademark infringement. </span></p>\r\n<p class=\"p1\"><span class=\"s3\"> Trademark infringement can also occur in other instances whereby an entity manufactures products bearing a trademark similar or identical to another’s registered mark. In such a case the infringing party has not sought to register the confusingly similar or identical trademark, but rather has affixed the disputed trademark directly to the goods and is exploiting the infringing trademark for commercial gain. In such cases, the goods are usually identified as counterfeit goods. The Egyptian legislature provides a brand owner with more than one route to legally pursue his rights. One such route is to file a complaint before the Commercial Fraud Bureau which can conduct a raid on the factory, warehouse, and/or store and seize the infringing goods. Following a raid, a sample of the seized product shall be sent to the Trademarks’ Office which will be required to prepare a report as to the similarity of the trademarks. If it is determined that there is an infringement, the Public Prosecutor can impose criminal charges against the infringer for commercial fraud and the imitation of a registered trademark.</span></p>\r\n<p class=\"p1\"><span class=\"s3\"> Another legal avenue which may be explored by brand owners is filing an action for unfair competition before the Economic Court, requesting for the immediate cease of manufacturing and marketing of the products bearing the confusingly similar or identical trademark. Additionally, the brand owner has the right to claim damages for the loss profit and the damages sustained to the brand, i.e. the bad publicity resulting from the low quality of the infringer’s imitated products and/or the profits gained by the infringer.</span></p>\r\n<p class=\"p1\"><span class=\"s3\"> It should be noted that the legal protection under the Egyptian Intellectual Property Law is not limited only to registered trademarks; it also extends to unregistered marks and grants owners of a well-known trademark the legal right to protect their mark, even if the trademark is not registered in Egypt. </span></p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Copyright Infringement </strong></span></p>\r\n<p class=\"p1\">Copyright infringement can occur in various forms. For literary works, infringement occurs when the work is published by a third party and without the consent of the author. In such a case the author of the work may resort to the competent court to request the withdrawal of the work. In addition the author would also be entitled to claim damages sustained as a result of the unauthorized publication of his work, and claim the profits made by the infringer.</p>\r\n<p class=\"p1\">Stealing and copying of software codes is another form of copyright infringement. The Egyptian legislature provides software developers various methods to enforce their rights. Right holders can file a complaint to the the General Administration of Copyrights Investigation, which in turn investigates the incident in cooperation with the Ministry of Communication and Information Technology and the Ministry of Culture. If it is discovered that an infringement has occurred the matter will be referred to the public prosecutor whereby criminal charges will be imposed. The right holder may alongside the criminal action file a civil suit claiming compensation and remedies.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Summary</strong></span></p>\r\n<p class=\"p1\"><span class=\"s2\">Enforcement actions and civil claims are effective tools for the protection and enforcement of intellectual property rights in Egypt. The general policy is directed towards the protection of acquired rights and the encouragement of investments in Egypt, and what better way to encourage investors than to protect the rights derived from their practice and business.</span></p>'),
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(104311, 5672, 'content', 'May 2017\r\n\r\n<hr />\r\n<p class=\"p1\">This article does not aim to give specific legal advice or to advocate a specific position, and interested parties should always take specific legal advice. Instead, it aims to offer some guidance on what can be expected in Iraq.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Frequently Asked Contract Drafting Questions</strong></span></p>\r\n<p class=\"p1\">By far the most frequently asked contract law questions are, firstly, whether a given choice of forum clause is enforceable, and secondly, whether the contract will be read in the light of the law chosen by the parties.</p>\r\n<p class=\"p1\"><em>Choice of Forum</em></p>\r\n<p class=\"p1\">Choice of forum can be a little tricky in Iraq because courts do not look to party autonomy or choice when deciding jurisdiction. The default jurisdiction rules in Iraq are considered part of public policy, and they allow for suing a foreigner, if:</p>\r\n\r\n<ul>\r\n 	<li>he or she is present in Iraq;</li>\r\n 	<li>if the lawsuit involves real state property that is in Iraq territory;</li>\r\n 	<li>if it involves a contract that was signed or performed in Iraq; or</li>\r\n 	<li>if it involves an event, which took place in Iraq.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p7\">This leaves contracting parties very little room to affect the court’s decisions on jurisdiction. The only way to give some certainty over jurisdiction is to structure properly the contract (and particularly the place of contractual performance).</p>\r\n<p class=\"p1\">Even in the case of an arbitration clause, and notwithstanding that party autonomy is a core tenant of arbitration, Iraqi courts add a twist to the usual position. Iraqi courts now respect arbitration clauses, but due to the current interpretation of Iraq’s peculiar position and international commitments, a case brought before an Iraqi court is not dismissed on jurisdictional grounds if a defence raising arbitration is used, instead, proceedings are stayed.</p>\r\n<p class=\"p1\">In addition, further complications arise when the contract, or parts of it, engages mandatory rules in Iraqi law and sometimes rules dictating exclusive jurisdiction of Iraqi courts. A prominent example of such rules are labour contracts, which are subject to the exclusive jurisdiction of Iraqi courts.</p>\r\n<p class=\"p1\"><em>Choice of Law </em></p>\r\n<p class=\"p1\"><span class=\"s2\">The answer to the second question on choice of law is at first simpler than choice of forum because under the Iraqi Civil Code, the law of the parties’ common domicile or the law of the state within which the contract was concluded governs the contract unless an agreement otherwise exists (or unless one of the default rules referred to above has effect). However, even with a simple rule that allows the parties to choose a governing law for their dispute resolution, practice teaches us otherwise. When deciding whether to respect a choice of law agreement, the Iraqi court is likely to start by asking how simple the chosen foreign law is. Litigation experience shows that if foreign law can be presented in a simple and straight-forward way, the courts are more receptive to enforcing its rules. If a party’s arguments are based on an understanding of a complicated statute built on previous precedents from a common law jurisdiction that contains many exceptions and complex passages, it is akin to speaking in tongues to an Iraqi court. </span></p>\r\n<p class=\"p1\">In short, it is not impossible to have a foreign choice of law clause respected by the Iraqi courts, and we have certainly seen foreign laws applied by courts in Iraq, but prospective parties should consider the form and complexity of the legal regime for practical reasons.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Legal Culture and Contract Drafting</strong></span></p>\r\n<p class=\"p1\">Like many other civil law jurisdictions, Iraq has codes that contain general rules and principles covering a very broad area of conduct. A few examples include the Civil Code, the Code of Commerce, the Code of Civil Procedures, and the Code of Criminal Procedures. These codes provide a legal framework of default rules, which often form the starting point of any given legal reasoning. Another aspect of Iraqi legal culture is that Iraqi courts accept evidence external to the contract document. In addition, all it takes to conclude an enforceable contract is the intent to form an agreement, a lawful object of the agreement, and a lawful purpose. With this in mind, Iraqi parties, including the government, draft short contracts and leave much detail to the broader legal framework. This is not seen as a problem because, given the general rules and principles that apply, it is rather difficult to argue that an agreement is not enforceable for lack of specify.</p>\r\n<p class=\"p1\"><span class=\"s3\"> Parties prefer to leave much unsaid in their contracts because the legal process views their agreement in light of their overall conduct, any facts admitted by a counter party or proven otherwise, and general legal theory. This may be alarming to parties unfamiliar with Iraqi law looking to do business in Iraq. Parties considering an agreement under Iraqi law should:</span></p>\r\n\r\n<ul>\r\n 	<li>Make their contracts simple. Simpler contracts are understandable by lawyers and non-lawyers alike making them more useful documents for their intended audiences and reducing transaction costs.</li>\r\n 	<li>Bear in mind that Iraqi law covers many situations that parties would normally make provision for in their agreements. People are bad prophets of the future and so trying to plan for every possible contingency is not a very wise approach.</li>\r\n 	<li>Remember that additional agreements such as collateral and side contracts can be added later on. A simple agreement is more flexible and keeps more options open allowing it to evolve with the parties’ relationship.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p7\">To better illustrate the cultural expectations in Iraq and the preferences outlined so far, take the example of two construction subcontracts for work awarded by the Iraqi government. Iraqi law governed both contracts and they were of roughly the same value. One contract was between two Iraqi parties and it was a simple contract; the other was between an Iraqi and a foreign party and it was a more detailed contract. Unexpected events took place during the performance of the lengthy detailed contract. However, the added contract terms were of no aid to the parties under the new circumstances. The parties with the much simpler contract would have been in the same legal position had the same calamity befell them.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Practical Considerations for Concluding Contracts in Iraq</strong></span></p>\r\n<p class=\"p2\">Contract enforcement in any jurisdiction requires parties to follow certain formalities specific to that jurisdiction. In Iraq, with only a few notable exceptions, most legal formalities ensure the parties ability to prove the existence of a contract not its validity. Therefore, it is always advisable to notarise contracts even if it is not a legal requirement. Notarised contracts can be authenticated through a public notary, providing strong evidence of the parties’ agreement. Notarisation does not need to take place in Iraq, but it is much easier to use documents that have been notarised in Iraq because they do not have to be authenticated through as many government bodies as documents originating outside of the country. Finally, while notarization is mostly restricted to proving authenticity of a signature not the content of a document, it adds a unique benefit as documents notarised or stamped by a public official have a “definite date”, the date of notarisation, which is very difficult to disprove barring an allegation of forgery.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Conclusion</strong></span></p>\r\n<p class=\"p1\"><span class=\"s4\">In conclusion, drafting contracts is more of an art than an exact science, and so it is never possible to claim that one approach is better in all situations. Nevertheless, some observations can be made and understanding different approaches can be a great aid in drafting cross border contracts. </span></p>\r\n<p class=\"p4\"><span class=\"s4\"> </span></p>\r\n<p class=\"p1\"><span class=\"s4\"><em>Al Tamimi &amp; Company’s Iraq team regularly advises on contract law. For further information, please contact Ali Al Dabbagh (A.AlDabbagh@tamimi.com)</em></span></p>'),
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(104326, 5673, 'content', 'May 2017\r\n\r\n<hr />\r\n<p class=\"p1\">In addition to numerous amendments and developments made to the existing laws and regulations, a number of new laws have been issued to tackle fundamental obstacles in facing investors in the State of Kuwait, such as Law No. 116 of 2013 (Regarding the Promotion of Direct Investment in the State of Kuwait), Law No. 116 of 2014 (Regarding Public Private Partnerships), Law No. 20 of 2014 (Promulgating the Electronic Transactions Law), Law No.13 of 2016 (Regulating Commercial Agencies), and Law No 49 of 2016 (Public Tenders Law).</p>\r\n<p class=\"p1\"><span class=\"s1\"> In light of the emerging trend, the Ministry of Commerce and Industry (“MOCI”) recently launched the new ‘One-Window Transaction’ at the Kuwait Business Center (“KBC”) as a significant shift to a successful implementation of a ‘paperless’ government initiative. The notion of KBC was conceived in late 2015 when the Kuwait government contemplated gathering all government bodies under one umbrella with the ability of submitting the necessary documents for a company’s establishment electronically in order to make it easier for investors and reduce delays in incorporating an entity. By going ‘paperless’ effectively, government bodies are able to reduce bureaucracy and significantly improve efficiency and cost benefits. However, many entrepreneurs, investors and professionals were eager to see whether this new KBC will run effectively and have the capacity and resources to deal with the volume of requirements from the differing governmental authorities, particularly with the general lack of communication between such government bodies which often presents frustrating challenges.</span></p>\r\n<p class=\"p1\">After considerable efforts of the officials, H.E. Khaled Nasser Abdullah Al-Roudan the Minister of Commerce and Industry announced the trial of the KBC in Ishbiliya Area in the latter quarter of year 2016. Thereafter, the KBC was officially launched at the end of 2016 and headed by Mrs. Adawiyah Al Failakawi.</p>\r\n<p class=\"p1\">We are pleased to confirm that the newly devised system works very well. The government has achieved their objectives to create a paperless system for the incorporation of companies. Whilst the time required to establish an entity used to take an average of 7 – 9 weeks and included numerous visits to various government bodies, this has been significantly reduced to only three days (on occasion, less), with just one visit required in order to authenticate the memorandum of association before the notary public at the Ministry of Justice and subsequently register an entity in the Commercial Registry. Thereafter, within approximately six months, investors may apply electronically to obtain the commercial or industrial license required to carry out their desired business whilst the KBC assists in expediting the regulatory approvals. Moreover, in the event that an authority delays in sending their approval, the KBC will provide investors with a temporary license for 60 days in order to carry out their business and allow time to follow-up with the concerned authority.</p>\r\n<p class=\"p1\"><span class=\"s2\"> At this stage, the KBC is fully functioning but accepts only establishment applications of certain types of profit companies such as Partnership, With Limited Liability and Single Person Companies. Currently it does not accept applications for establishing shareholding nor non-profit companies. </span></p>\r\n<p class=\"p1\">Furthermore, it is worth noting that the KBC is using a standard form of memorandum of association and are very reluctant to make any substantive changes to this. Accordingly, investors are not free to tailor the registered memorandum of association to reflect the actual agreed terms they wish to incorporate within it. Nonetheless, the founders may register their new entity and afterwards amend the Memorandum of Association through the traditional route at the MOCI.</p>\r\n<p class=\"p1\">In conclusion, while incorporating and registering an entity might have been an intimidating process before, now through the KBC:</p>\r\n\r\n<ul>\r\n 	<li>The application for establishing an entity has become much more simple;</li>\r\n 	<li>An effective link has been successfully established between over 35 government bodies; and</li>\r\n 	<li>The officials of the KBC are very professional, friendly and keen to provide the support required to investors through its’ entire incorporation process’.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p4\">We believe that launching the KBC and providing such professional services to investors will enhance Kuwait’s ranking position within The World Bank’s annual ‘Doing Business’ report and enable Kuwait to attract further foreign investment to sustain and grow its economy into the future.</p>'),
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(104345, 5674, 'content', 'May 2017\r\n\r\n<hr />\r\n<p class=\"p1\">Qatar’s efforts to develop its tourism sector can be easily seen through its efforts in attracting investments in several aspects of the tourism sector, including the investment in travel agencies, where there are currently 332 licences issued for companies providing travel related services.</p>\r\n<p class=\"p1\">The Ministry of Economy and Commerce of Qatar has recently set out rules for investing in travel business, in order to promote the growth of this sector and achieve Qatar National Vision 2030, which is aimed at establishing a diversified and competitive knowledge-based economy.</p>\r\n<p class=\"p1\">The permitted services of travel offices, as defined by law, include services related to selling and issuing of travel tickets, facilitation of luggage transfers, reservation of seats in regular transport, carrying out exchange of passenger’s transportation, and any other related businesses and services. In order to perform the services of travel offices, a licence must be obtained from the Civil Aviation Authority of Qatar. The application for such a licence must be accompanied with the following:</p>\r\n\r\n<ul>\r\n 	<li>letter explaining relevant experience in the travel related services;</li>\r\n 	<li>engineering design for the office by an authorised and licensed engineering firm based in Qatar;</li>\r\n 	<li>guarantee in the amount of two hundred thousand Qatari Riyals (QR 200,000) in cash to the Civil Aviation Authority treasury. The guarantee may also be submitted in the form of a bank guarantee addressed to the Authority, issued by a bank operating in Qatar, valid for the entire duration of the licence period, and unrestricted by any conditions or limitations. This guarantee will be used to pay any debts or obligations in the event of a default on part of the travel office; and</li>\r\n 	<li>the initial licence fee, being ten thousand Qatari Riyals (QAR 10,000).</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p4\">The establishment of travel offices is governed by the general rule of doing business in Qatar, as stipulated under the Foreign Investment Law (Law No. 13 of 2000), where such business cannot be carried out in Qatar without 51 per cent of the capital of any enterprise being owned by Qataris. However and as an exception, it is permitted for GCC nationals (whether individuals or companies fully owned by GCC nationals) to own up to 100 per cent of companies in the field of air travel offices in Qatar, without the need for a Qatari partner(s).</p>\r\n<p class=\"p1\">Under the provisions of the Proxy Law (Law No. 25 of 2004, concerning Combating Concealment of Non-Qatari Practice in Commercial, Economic, and Professional Activities in Contravention of the Law), and in particular Article 1 of the Proxy Law, it is a criminal offence for a non-Qatari to be engaged in any commercial, economic, or professional activity within Qatar, unless legislative exclusions are available. Article 2 of the Proxy Law provides that Qataris may not assist foreigners in carrying on the activities set out in Article 1.</p>\r\n<p class=\"p1\">Taking into consideration the restrictions under the Proxy Law, there are some schemes used in Qatar that are believed to be legal and within the provisions of the Foreign Investment Law and the Proxy Law. Such schemes could include:</p>\r\n\r\n<ul>\r\n 	<li>Subscription for the shares of the company to be formed (the ‘Company’) should be 51 per cent by a Qatari national, with 49 per cent to the non-Qatari national;</li>\r\n 	<li>The Articles of Association of the Company could provide that all managers/directors of the Company are to be appointed by the non-Qatari national;</li>\r\n 	<li>The Articles of Association of the Company could provide that the vast majority of the profits (up to 97 per cent are to be distributed to the non-Qatari national, as permitted under the Commercial Companies Law (Law No. 11 of 2015);</li>\r\n 	<li>The simple majority of 51 per cent for shareholders’ resolutions could be increased to 60 per cent, so that the Qatari partner may not unilaterally pass shareholders’ resolutions;</li>\r\n 	<li>The powers to the management appointed by the non Qatari partner could be given very widely to ensure that there is a bare minimum that requires the approval of the Qatari partner at a shareholders’ meeting;</li>\r\n 	<li>A Shareholders’ Agreement could be entered into by the shareholders of the Company, where it will be agreed that the non-Qatari partner will provide management services for the Company, so as to justify a higher profit margin to the non-Qatari;</li>\r\n 	<li>A Shareholders’ Agreement can also provide for the shares of the Qatari partner to be transferred to the non-Qatari partner at par value in the event the law changes so as to allow a foreigner to hold more than a 49 per cent shareholding;</li>\r\n 	<li>Assuming that the non-Qatari partner will finance the operations of the Company and its capital, the Shareholders’ Agreement could provide that the capital of the Qatari partner is provided by way of a loan from the non-Qatari partner, repayable upon transfer of shares or dissolution of the Company; and</li>\r\n 	<li>An Option Agreement could be signed by the Qatari partner granting the non-Qatari partner the right to acquire all of the Qatari’s shares at par value at any time, either in its own name (if the law permits) or in the name of a nominee appointed by the non-Qatari partner.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p1\">It is worth mentioning that these structures have been successfully used in Qatar, but to date have not been tested in courts. However, foreign investors should note that there should be no legal agreements that make provisions for the non-Qatari national to ‘own’ any or all the shares of the Qatari national, and consideration should be given by the non-Qatari national to maintain levels of assets at minimal levels, using equipment leases and the like whenever suitable.</p>'),
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(104364, 5675, 'content', 'May 2017\r\n\r\n<hr />\r\n<p class=\"p1\">With approximately 31 million inhabitants, Saudi Arabia has a globally important, and by far the largest, economy in the Middle East. Historically, the economy has been oil based and revenue from oil dominates export earnings and government revenue.</p>\r\n<p class=\"p1\">The Islamic <em>Shari’ah</em> is the primary foundation of all Saudi Arabian laws. The formation and enforceability of contracts is governed by and relies upon uncodified <em>Shari’ah</em> principles. Under <em>Shari’ah</em>, contracts which are not expressly prohibited by the Holy <em>Qur’an</em> or the <em>Sunnah</em> are permitted as binding and valid. In practice, the parties are generally free to agree their commercial bargain except and to the extent that it contravenes <em>Shari’ah</em> principles as interpreted and applied in Saudi Arabia or any secular law.</p>\r\n<p class=\"p1\">In recent years the Saudi government has introduced a number of measures aimed at developing the country’s economy. These include limited deregulation, the encouragement of foreign investment and privatisation in selected areas of the economy. In 2016 the Saudi Government launched its Saudi Arabia’s Vision 2030, a roadmap to diversify its economy and address the challenges brought by lower global energy prices. The implementation of Saudi Vision 2030 will lead to major changes and opportunities across all sectors of Saudi business.</p>\r\n<p class=\"p1\">In this article, we focus on commercial agency arrangements in the KSA as those will inevitably form a significant part of the development of Saudi economy over the coming decades.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Main Body</strong></span></p>\r\n<p class=\"p1\">In terms of the available structures for setting up in the KSA, businesses should keep in mind they may be able to export goods to the Kingdom and sell them through a local distributor, without having to obtain a business registration in the KSA.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Legal Framework</strong></span></p>\r\n<p class=\"p1\">Agency arrangements in the KSA are governed by the Commercial Agencies Law (Royal Decree No. 11 dated 20/02/1382 H), (“Law”), and the Implementing Regulation of the Agency Law (Decision of the Minister of Commerce and Investment No 1897 dated 24 / 05/ 1401 H), (“Regulation”). Under Saudi law, a commercial agency is a contractual relationship formed between a producer and its representative in the Kingdom (“Agency Contract”). Under the Agency Contract, an agent/a distributor performs the commercial activities to make profit. Under Saudi law, if the local agent engages any sub-agents in the carrying out of the Agency Contract, the local agent remains responsible for all legal obligations towards the customer in the KSA.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Who Can Be an Agent? </strong></span></p>\r\n<p class=\"p1\">Under Saudi law, only a Saudi national (natural or legal person) can be a commercial agent. The capital of the local agent’s business must be contributed by Saudi partners only, all the directors, managers and authorized signatories of the local agent must be Saudi nationals.</p>\r\n<p class=\"p1\">The agent shall: (i) provide the required spare parts to its customers in the KSA at reasonable prices (including providing rare spare parts within 30 days of the customer’s request); and (ii) provide the maintenance needed for the products at reasonable charges and according to the standard specifications of the Kingdom.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Goods Specification</strong></span></p>\r\n<p class=\"p1\">In order to obtain customs clearance, all imported goods must have a “Conformity Certificate for the Goods Exported to the Kingdom of Saudi Arabia”. A conformity certificate must be issued by an accepted accreditation body authorised by the relevant official agency in the country of origin.</p>\r\n<p class=\"p1\">The Saudi Standards, Metrology and Quality Organisation (“SASO”) formulates national standards for products including labelling, inspection and testing. The party submitting the conformity certificate must declare compliance of the goods with SASO’s requirements.</p>\r\n<p class=\"p1\">Imported goods must identify the country of origin on both the shipment packaging and the product itself.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Conditions of Registration</strong></span></p>\r\n<p class=\"p1\">Under Saudi law, the foreign principal and the local commercial agent must enter into the Agency Contract which must be registered within three months of it commencing with the Commercial Agencies Department of the Ministry of Commerce and Investment (“Agencies Department”). Failure to register can result in fines and other penalties.</p>\r\n<p class=\"p1\">The registration application documents must be submitted for validation with Under Secretary of the Ministry of Commerce and Investment (“MOCI”) before the Agency Contract is registered. The information required under the application form are the name, the address of the commercial agent or distributor, the name the authorized signatories, and the duration of the commercial agent, description of the goods to be brought into the KSA foe distribution, name, nationality, and address of the principal.</p>\r\n<p class=\"p1\">Pursuant to the regulation, to meet the registration requirements, the following documents must be filed with the Agencies Department:</p>\r\n\r\n<ul>\r\n 	<li>Two copies of the Agency Contract (one of them shall be original and notarized by the competent authorities in the KSA);</li>\r\n 	<li>An accredited Arabic translation of the Agency Contract and any other documents in the language of the principal;</li>\r\n 	<li>A copy of the commercial registration of the local agent that allows the agent to act as agent in relation to the goods to be distributed, in the KSA;</li>\r\n 	<li>A written confirmation issued by the MOCI confirming 100% of the share capital of the local agent is held by Saudi natural/legal persons; and</li>\r\n 	<li>Copy of Chamber of Commerce certificate of the local agent; and</li>\r\n 	<li>Receipt confirming the relevant fees for the registration of the arrangement with the Agency Department have been paid.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p3\"><span class=\"s1\"><strong>Export documentation</strong></span></p>\r\n<p class=\"p1\">The commercial documents required for all shipments from outside the Kingdom into it include, in relation to the goods to be imported into the KSA:</p>\r\n\r\n<ul>\r\n 	<li>Commercial invoice with Arabic translation;</li>\r\n 	<li>Certificate of origin;</li>\r\n 	<li>Bill of lading or airway bill;</li>\r\n 	<li>Steamship or airline certificate;</li>\r\n 	<li>Insurance certificate (where goods are insured by the exporter); and</li>\r\n 	<li>Packing list.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p7\">There may also be additional authorisations and requirements applicable to the particular products.</p>\r\n<p class=\"p9\"><span class=\"s1\"><strong>How About the Letterhead? </strong></span></p>\r\n<p class=\"p1\"><span class=\"s2\">All correspondence in relation to the distributed product taking place in the Kingdom (e.g. corporate correspondence, contracts, advertisements, and invoices) shall bear the agent’s name, the nature and territory of the agency, and the registration number of the agency under the Agencies Department. </span></p>\r\n<p class=\"p9\"><span class=\"s1\"><strong>Violation and Penalties </strong></span></p>\r\n<p class=\"p1\">Under Saudi law, certain government officials have been appointed ted to monitor compliance by businesses with the Law and the Regulations. Their authority extends to accessing documents and inspecting business premises of the agent/other parties to verify compliance with the Law.</p>\r\n<p class=\"p1\">A penalty may be imposed by authorities in the KSA against any person violating the Law. Penalties vary. They shall be between SAR 1,000 and SAR 50,000 per violation. Also, if a penalty has been imposed, the authorities will process a publication of information about it in a local newspaper, at the expense of the local agent. If the non-Saudi principal or the non-Saudi principal and the local agent (acting jointly) have been found in breach of the Law/Regulations, the authorities in Saudi may order that the local business that had been carrying out the arrangement in breach of Saudi law be liquidated and banned from operating an agency for an unlimited period of time/permanently.</p>\r\n<p class=\"p9\"><span class=\"s1\"><strong>Termination</strong></span></p>\r\n<p class=\"p1\">The commercial agent has no statutory right to compensation upon the lawful non-renewal or termination of the Agency Contract. However, claims are often made by commercial agents for compensation for their contribution to the goodwill of the principal’s business. Commercial agents may sometimes refuse or delay de-registering commercial agencies on expiry or termination with a view to obtaining compensation from the foreign principal, although it is generally possible to register a new agent without de-registration.</p>\r\n<p class=\"p10\"><em>For further information please contact i.szadkowska@tamimi.com.</em></p>'),
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(104381, 5676, 'content', 'May 2017\r\n\r\n<hr />\r\n<p class=\"p1\">In abstract the principle remains almost the same everywhere in the world; nonetheless it ranges in application according to jurisdiction and contract. This article analyses the general average from a domestic perspective to Kingdom of Saudi Arabia “(KSA”) while drawing comparisons with the international practice.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>So what is General Average?</strong></span></p>\r\n<p class=\"p1\">The question of general average will face the shipmaster when there is a “force majeure” event (e.g. piracy, fire, powerful storms, etc.) that causes the parties to the sea venture to face probable and foreseeable perils. In such a case of emergency, the shipmaster has to make a choice to alleviate what could be a greater loss by voluntarily jettisoning some of the cargo off-board to save the reminder of cargo and the ship. The basic principle for general average can be summarised as follows:</p>\r\n<p class=\"p4\">”that which have been scarified for the benefit of all, shall be made good by the contribution of all”</p>\r\n<p class=\"p1\">In essence, the general average would result in changing the original legal positions of the parties and redistributes it amongst them according to the risk of peril, so they will be placed in new positions compelling them to share the loss with one another. This principle is also known in Arabic as Qismat Ghorama’a.</p>\r\n<p class=\"p1\">As a result of the law of general average, there are many variances in practice as to who should bear the loss, the applicable rules, and how and where to bring a claim.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>The Law of General Average in KSA</strong></span></p>\r\n<p class=\"p2\">In the KSA, maritime law is governed by the Commercial Court Law (“CCL”) of 1931. In the absence of a prior agreement amongst the parties on the rules to administer general average, the adjustment of the claim, the Saudi courts will review the proceedings in accordance with Chapter 12 of the CCL.</p>\r\n<p class=\"p1\">Chapter 12 of the CCL has 32 articles dealing with the definition and rules of treatment for maritime losses, the required declarations by the shipmaster and others, the adjustment of values and the production of documentary evidence, and the duties of the parties concerned.</p>\r\n<p class=\"p1\">In additional to the principals outlined in Chapter 12 of CCL, Saudi Courts may take into account the contractual rules of adjusting and claiming general average. These rules are typically included in charter agreements, bills of lading, contracts of freight, and marine insurance policies. The most internationally recognized standards for average adjusting are the York-Antwerp Rules (“YAR”) of 1974 later amended in 1994, and these will be recognized in KSA.</p>\r\n<p class=\"p1\"><span class=\"s2\"> It is important to note that other local KSA laws may potentially be concerned with the general average adjustment and claim: The law of Procedure before Shariah Courts provides guidance to the local conventional litigation process; the Saudi Law of Arbitration oversees aspects of local arbitration; and the Saudi Enforcement Law introduces requisites and directions to the enforcement thereof, in addition to the enforcement of foreign judgments and arbitral awards.</span></p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Adjustment of General Average in KSA</strong></span></p>\r\n<p class=\"p1\">The general average undergoes two main phases in KSA. First, the advisory phase of adjusting the claim,  which  is essentially when the claim of average derives merit. Second, is the litigation phase when the claim is raised seeking accreditation and enforcement of the adjustment on the contributing party. The treatment of average adjusting is stipulated in both the CCL and the YAR.</p>\r\n<p class=\"p1\"><span class=\"s3\"> According to the CCL, the shipmaster has to, as soon as possible, declare the state of general average and report the same to the shipowners and the other interest holders. Furthermore, the shipmaster and his fellow marine advisors would have to collectively “sign off” on their official report that would include a description of the events, justifications of sacrifice, and the list of the items jettisoned or damaged in the wake of the event. </span></p>\r\n<p class=\"p1\">Following the official report, interest holders should file a request with an accredited Average Adjuster for adjusting the loss. The Average Adjuster is a specialized professional authorized to administer and advise on the general average. Normally the Average Adjuster expert is appointed by the shipowners who incurred the initial expenses and perhaps most of the loss, yet he will act independently of their influence to administer the adjustment fairly amongst the parties. Hence, the Average Adjuster effectively takes over the administration of the failed voyage and manages its settlement going forward; as such he is responsible for collecting and admitting evidence and relevant persons, manages the guaranties and accounts, registers objections, and produces a conclusive advice on the average adjustment.</p>\r\n<p class=\"p1\">The amount of general average will include the cost of repairing the ship, loss freight to the unfinished journey, and the ost to cargo owners where their goods have been partially lost or have diminished in value. The value for items under adjustment will be settled according to the net value at the place and time of terminating the sea venture, taking into account of original values as ascertained by their respective invoices. According to the CCL, the value of the cargo is to be calculated as actual value but the value for the ship and freight is only to be considered for one half of its actual value. Eventually contributing values will be settled in proportion to each party’s respective value.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>The General Average Claim in KSA</strong></span></p>\r\n<p class=\"p2\">After the adjustment is completed by the Average Adjuster, it is possible that legal proceedings may be commenced by an interested party to seek the adjustment by KSA Courts or an arbitration tribunal, and also to obtain effective enforcement of such on the defaulting party.</p>\r\n<p class=\"p1\">The KSA has no devoted maritime courts, but it has specialized commercial courts or circuits with subject matter jurisdiction over maritime claims and damages including that of general average. International claimants should be aware that Saudi courts honour arbitration clauses regarding general average and the CCL, the parties may agree to arbitration.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>A Comparative Glance</strong></span></p>\r\n<p class=\"p1\">The practice of general average in KSA has particular nuances and it is possible to draw a few comparisons to the practice between the CCL and the YAR. It is fair to say that, the CCL is written as a classical civil text and uses such terms as “grave harm” or “general losses” when referring to the general average incident. Conversely, the YAR is a set of modern common law rules that are perhaps more comprehensive and organized with clear subheadings and lettered and numerical rules.</p>\r\n<p class=\"p1\">According to the CCL, maritime losses come in one of two categories; they would either be solely and privately borne or they would commonly and collectively contribute for. To differentiate between private and general losses the CCL applies a three-tier test on the sacrifice; (i) whether it was for the common safety, (ii) whether it was extraordinary, and (iii) whether it was intentional or voluntary.</p>\r\n<p class=\"p1\">The YAR also requires all of the said three elements in addition to a fourth element to the standard for the determination of peril; whether it was imminent or whether it could have been avoidable. The YAR is more strict than the CCL as it enables the court to review the shipmaster’s “discretionary power” in declaring the event, whereas under the YAR his discretion is subjected to a heightened standard of reasonableness, so much so that the YAR would only admit the general average claim if there was a truly imminent peril and not just a looming one. This qualitative requirement means that the shipmaster cannot take a subjective decision for following precautionary measures and expect the loss to be adjusted as general average. The CCL significantly differs from the YAR as it does enable the court to check the shipmaster decision, as we further explain below.</p>\r\n<p class=\"p1\">The CCL imposes a different standard of reasonableness on the shipmaster decision. The threshold test requires that the shipmaster only need to obtain a secondary opinion from his marine advisors and that the items are jettisoned in specific order. According to the CCL, if the shipmaster decided to jettison any items off-board, even as a precautionary measure to escape peril or harbour into safety, he would only need to obtain the advice of his veteran marine navigators and also cargo interest holders if any of them were on board the ship. Also, the master must abide by the following order of jettisoning; (1) the least necessary, (2) the heaviest load, (4) the least valuable, and then (5) items stored on the deck after seeking the advice of veteran marine navigators. This means that even the shipmaster precautionary measures may be considered a reasonable loss and thus may be included in the average adjusting, as long as the shipmaster has followed the procedure to the letter and obtained his advisors consensus to validate his concerns and proposed measures.</p>\r\n<p class=\"p1\">Moreover, the CCL lists 6 types of private losses (known as the negative list) to be excluded from what is to be commonly shared by the parties. This negative list is as follows: (1) vessel malfunction, (2) expenditure for salvaging the ship and its cargo, (3) ship mass and ropes lost due to sea perils, (4) replenishment and repair expenditure for emergency docking at refuge port, (5) sailors accommodation expenditure in case of vessel arrest, (6) losses befalling the vessel or its freight.</p>\r\n<p class=\"p1\">Conversely and to the exclusion of the aforesaid negative list, the CCL lists 13 types of general average losses beginning with pirate ransom and ending with erecting a temporary dock for the ship. All of the 13 types summarised under one definition pointed in the CCL as follows: “all the harms and damages and expenditure sustained voluntarily, for the entire duration of the event, and for the benefit and safety of all, as reported by the master and navigators”.</p>\r\n<p class=\"p1\">A final comparison on the treatment of salvaged goods under KSA law is particularly important with regards to the respective duties to the preservation of cargo. For instance, the YAR allows the interested party to withhold from releasing the salvaged goods as considers the goods to be a direct lien for guaranteeing average contribution. In contrast in KSA law, the CCL prohibits such practice and only awards the interested party with a lien over the goods value post liquidation. Intuitively, the CCL also imposes a duty on the shipmaster and interested parties to preserve the cargo by liquidating remaining assets with haste before further deterioration occurs.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>A Local Merchant View</strong></span></p>\r\n<p class=\"p1\">The international Saudi merchant should be alert and prepare for a general average event. If the unlikely event happens, he may be required to undertake a cash deposit or a bond to release the remaining cargo. The purchase of an insurance policy with adequate coverage to the general average could save valuable recourses from being locked on account for a prolonged time. Considering that the average bond could potentially exceed the value of the original investment, marine insurance coverage is a sound investment. In return to its financial bail, the insurance company may ask the merchant to relinquish ownership rights over the salvaged goods or its sale value. If the merchant defaults, or instruct the insurance company to default, he could be at risk of losing the right to object to the settlement and perhaps worse as he may lose the right to receive the rest of his cargo.</p>\r\n<p class=\"p1\"><span class=\"s2\"> It is strongly advised that any Saudi merchant and others taking over his rights and position should seek professional advice as soon as the general average is declared. By doing so, the Saudi merchant will be able to understand their rights and obligations from the very beginning, and will be able to be prepared to face the peril and the consequences that follow.</span></p>'),
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(104424, 5679, 'content', 'June - July 2017\r\n\r\n<hr />\r\n<p class=\"p1\">In a judgment handed down in October 2014, the Abu Dhabi Cassation Court confirmed the application of another rule available to Courts or arbitrators in interpreting conflicting provisions in an agreement; namely that specific clauses override general clauses dealing with the same subject matter. In this judgment the Cassation Court confirms the application of the foregoing rule where the conflicting clauses provided for recourse both to State Courts and arbitration for the resolution of their disputes.</p>\r\n<p class=\"p1\">The Court further addressed the distinction between the required authority for the validity of an arbitration agreement and the authority required by Article 58 of the Civil Procedures Law to appoint an attorney to represent a company in the arbitration proceedings, which does not have any legal effect on the validity of an arbitration agreement.</p>\r\n<p class=\"p2\"><strong>The facts of the case</strong></p>\r\n<p class=\"p1\">At the Court of Cassation, the Respondent was a manager and a shareholder of a limited liability company (“Company”).</p>\r\n<p class=\"p1\">The Respondent, in his capacity as the manager of the Company, entered into a sub-contractor agreement with another company (“Contractor”) for the performance of certain construction works for the value of AED 2 million (“Agreement”).</p>\r\n<p class=\"p1\">The Company completed all works as per the Agreement; however, the Contractor failed to settle all the Company’s invoices.</p>\r\n<p class=\"p1\"><span class=\"s2\"> The Respondent, in his personal capacity and as a proxy of the other two shareholders in the Company, assigned their shares in the Company to other parties by virtue of a notarised Memorandum of Association (“MOA”). In the Memorandum of Association, it was agreed that any rights derived or stemming from contracts or transactions concluded prior to the assignment of the shares would be kept by the assignors. It was further agreed that the assignors have the full right and capacity to seek redress in connection with such contracts or transactions without the prior consent of the assignees. </span></p>\r\n<p class=\"p1\">The Respondent issued a claim at the Abu Dhabi Court of First Instance (“CFI”) seeking the appointment of an arbitrator to look into the dispute between him and the Contractor. The CFI appointed an arbitrator who later issued an award against the Contractor.</p>\r\n<p class=\"p1\">The Respondent then filed a claim for the ratification of the Arbitration Award (“the Award”) at the CFI. The Contractor filed a counter claim seeking to have the Award annulled.</p>\r\n<p class=\"p1\">The Abu Dhabi CFI ratified the Award. Dissatisfied with this outcome, the Contractor appealed the decision. On appeal, the Abu Dhabi Appeal Court upheld the CFI judgment. The Contractor therefore filed a petition to the Abu Dhabi Court of Cassation (“CC”) challenging the lower Courts’ judgments.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>On Appeal to the Court of Cassation</strong></span></p>\r\n<p class=\"p1\">The Contractor’s argument before the CC was twofold:</p>\r\nFirst, the Contractor argued that the Appeal Court erred in its decision to uphold the ratification of the Award despite the Contractor’s claim for an annulment of the Award on the ground that the Company’s representative (i.e. the Respondent) did not have the requisite capacity to either enter into and bind the Company to the arbitration agreement or to sign the Power of attorney delegating that power to the appointed attorney to represent the Company in the arbitration proceedings. The Contractor argued that it is evidenced from the Company’s Memorandum of Association, appointing the Respondent as the Company’s manager; nevertheless, the MOA did not authorise the Respondent to enter into arbitration on behalf of the Company. The Contractor further asserted that Article 58 of the UAE Civil Procedures Law (“CPL”) requires an express and specific authorisation to enter into arbitration agreements. The Respondent, albeit not authorised as such, signed the Agreement on behalf of the Company and further appointed an attorney to represent him and the other shareholders.\r\n\r\nSecondly, that the decision being challenged contradicted certain provisions of the law and the Court had further erred in its application of the law in dismissing the Contractor’s assertion that the dispute stemming from the Agreement did not fall within the scope of the arbitration agreement. In this vein, the Contractor argued that Clause 10 of the Agreement provided for the exclusive jurisdiction for the Abu Dhabi Courts over any dispute that may arise between the parties. Nevertheless, the Appeal Court dismissed the Contractor’s argument on the ground that the arbitration clause contained in the Agreement is construed as a specific clause that supersedes the general clause i.e. Clause 10. The Contractor argued that the Appeal Court’s conclusion in this respect contradicts the general principle which dictates that resorting to Courts is the rule and arbitration is the exception.\r\n<p class=\"p3\"><span class=\"s1\"><strong>Judgment of the Court of Cassation</strong></span></p>\r\n<p class=\"p1\">The CC rejected both the Contractor’s arguments:</p>\r\nThe CC stated that in order for an arbitration agreement to be valid, the required legal capacity pursuant to Article 216 (b) of the CPL is the capacity and competence to dispose of the disputed right. It is also established in the Commercial Companies Law and the rulings of the Cassation Court that the director of a limited liability company has the full authority and legal capacity to manage the company including the capacity to agree to arbitration on behalf of the company. The foregoing does not contradict the provision of Article 58 of the CPL because Article 58 concerns the authority granted to an attorney to litigate the dispute before the concerned forum.\r\n\r\nThe Appeal Court in its application of the above stated that it is evidenced that the Agreement was entered into between the Contractor and the Respondent in his capacity as a director of a limited liability company. It is also evidenced from the Company’s trade license that it is a limited liability company with the Respondent and two others as the shareholders and it is further evidenced from the Company’s trade license that the Respondent is its director. The Appeal Court concluded that the Agreement was made prior to the assignment of the shares and was signed by a person who had the authority and capacity to agree to arbitration.\r\n\r\nThe CC upheld the Appeal Court’s findings and further stated that the Appeal Court’s application of the law was correct, especially since there is no clause in the Company’s MOA that limits the Director’s capacity or precluded him from entering into an arbitration agreement. The CC further stated that the power of attorney granted from the Respondent to his attorney in the arbitration proceedings is irrelevant to the validity of the arbitration agreement and thus the above argument was rejected. In stating this, the CC distinguished between the capacity to dispose of the disputed right required to bind a company to arbitration and the capacity to appoint an attorney to represent the company in arbitration proceedings as required by Article 58 of the CPL.\r\n\r\nThe CC stated that the interpretation of disputed contracts, terms, and clauses falls within discretionary power of the court of substance to identify the parties intention; provided that such interpretation considers the agreement as a whole and does not read the contractual provisions in a vacuum.\r\n\r\nThe Appeal Court had found that: “Even if Clause 10 of the Agreement subject of arbitration provided for the exclusive jurisdiction of the Abu Dhabi Courts over any dispute that may arise between the parties which echoed the general rule of the State Courts’ jurisdiction to adjudicate disputes. Nevertheless, the Parties followed this general clause with a specific one i.e. Clause 12 whereby they agreed that any dispute arising from the Agreement or its interpretation shall be amicably settled between the parties otherwise for such dispute to be referred to be settled by arbitration in Abu Dhabi. The Court construes from the foregoing that the Parties intended for their disputes to be settled through arbitration.”\r\n\r\nThe CC found that the Appeal Court’s interpretation of the Agreement to be sound and falls within the Appeal Court’s discretionary power to interpret contracts and their clauses and therefore the CC rejected the Contractor’s second challenge.\r\n<p class=\"p3\"><span class=\"s1\"><strong>Conclusion</strong></span></p>\r\n<p class=\"p1\"><span class=\"s2\">In confirming arbitration as an exceptional mode of dispute resolution, the above judgment is without doubt another positive leap taken by the UAE Courts towards establishing the UAE as an arbitration friendly jurisdiction. However, it is imperative for parties to be mindful of any inconsistencies or conflicting provisions in their agreements. These inconsistencies may render a clause or certain clauses inoperative or at the very least provide room for dispute. Since the practice before the UAE Courts is for arbitration clauses to be interpreted in a very narrow manner, parties must ensure that their arbitration clause is detailed, clear and signed by a competent individual to avoid any future challenges to its validity and enforceability. </span></p>'),
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(104447, 5680, 'content', 'June - July 2017\r\n\r\n<hr />\r\n<p class=\"p1\"><span class=\"s1\">Article 2 of the Penalties Law (Law No. 3 of 1987) states that “<em>No person shall be held accountable for the crime of another person. An accused is innocent until proven guilty in accordance with law</em>”. Rulings of the Court of Cassation have emphasised this point on multiple occasions. </span></p>\r\n<p class=\"p1\">Article 65(1) of the Penal Law (as amended) extends the principle that a person can only be accountable for his own acts by attributing criminal liability to legal bodies acting through their human agents: “<em>Judicial persons, with the exception of governmental agencies and their official departments, public organisations, and establishments, are responsible for any criminal act committed, for their account or in their names by their representatives, directors, or agents.</em>”</p>\r\n<p class=\"p1\"><span class=\"s2\"> In a recent ruling of the Abu Dhabi Cassation Court dated 30 April 2017 in Penal Case No. 4542/2015, the principle that a person cannot be accountable for the acts of others was judicially examined. Al Tamimi and Company acted in this appeal. </span></p>\r\n<p class=\"p3\"><span class=\"s3\"><strong>Facts</strong></span></p>\r\n<p class=\"p1\">The defendant was a holding company and special purpose vehicle. Its main, authorised commercial activity was the purchase and sale of shares in other companies. The acquired companies in turn became subsidiaries of the holding company. An employee of the subsidiary company was injured while repairing an aircraft engine when a steel object fell off the engine onto his hand. The treating hospital reported the matter to the police, who after completing their investigations referred the matter to the Public Prosecutor. The Public Prosecutor charged the holding company in respect of the injury, alleging that it had acted negligently in failing to take the necessary precautions for the safety of the employee.</p>\r\n<p class=\"p1\">The holding company based its defence on the liability of its subsidiary. Evidence showed the subsidiary was the injured man’s sponsor on his official residence visa and the injury occurred in the subsidiary’s engine maintenance department. The holding company argued it was not responsible for the subsidiary’s actions and could therefore not be held liable.</p>\r\n<p class=\"p3\"><span class=\"s3\"><strong>First Instance Decision</strong></span></p>\r\n<p class=\"p1\">The Court of First Instance rejected this argument and convicted the holding company on the basis of the following:</p>\r\n\r\n<ul>\r\n 	<li>The person who has actual control over something that requires special attention, whether that person be an owner or a lessee, is responsible for the damage caused by that thing when it causes harm to others.</li>\r\n 	<li>It was proven to the Court, after considering the memorandum of association of the subsidiary company, that the accused holding company owned shares in the subsidiary, thereby conferring criminal liability for the victim’s injury on the holding company because it controlled the subsidiary.</li>\r\n 	<li>It was also proven to the Court that the holding company had failed to provide equipment to properly ensure the safety of workers. By its failures, the holding company had enabled the victim’s injury.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p6\">The Court fined the holding company and ordered it to pay compensation to the injured worker.</p>\r\n<p class=\"p3\"><span class=\"s3\"><strong>Abu Dhabi Court of Appeal</strong></span></p>\r\n<p class=\"p1\">The holding company appealed against this judgment on the following grounds:</p>\r\n\r\n<ul>\r\n 	<li>The First Instance decision violated the principle that a person is not accountable for another’s actions in contravention of Article 93 of the Civil Transactions Law. Companies have independent legal personality and therefore have independent financial liability. The holding company had completely independent legal personality from its subsidiaries, including the subsidiary employing the injured worker.</li>\r\n 	<li>The First Instance decision confused civil and criminal liability when it found that ownership of shares in the subsidiary company made the holding company liable under the principle of control.</li>\r\n 	<li>The First Instance Court had wrongly applied civil law principles rather than criminal law principles. The Court had relied on a legal opinion to support the finding that a person who has actual control over something that requires special attention, whether an owner or a lessee, is responsible for the damage and harm caused by that object. That legal opinion was applicable in a civil law context and did not apply to the Penalties Law under which the holding company was charged. Evidence in the police inspection report did not prove that the holding company had a sufficient degree of control over the work place, and the holding company claimed it knew nothing about that particular site.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p2\">The Appeal Court upheld the judgment of the First Instance Court and stated that it was satisfied by the reasons given by the latter, as well as the evidential basis for the conviction of the holding company. The Appeal Court did not address the arguments raised in the holding company’s defence.</p>\r\n<p class=\"p3\"><span class=\"s3\"><strong>Abu Dhabi Court of Cassation</strong></span></p>\r\n<p class=\"p1\">Many commentators found the judgment of the Appeals Court disappointing, having expected that the case would assert the orthodox position on criminal liability. The holding company filed a further appeal to the Court of Cassation. The holding company sought an order remitting the case to the Appeal Court under Article 240 Penal Procedure Law for a retrial by alternative Judges. The alternative option was for the Court of Cassation to avoid remitting the case for retrial and deciding the case itself. However, such an order is rare and only happens when the Court of Cassation believes its intervention is necessary to settle a dispute decisively.</p>\r\n<p class=\"p1\">In reality, the reasons for challenging the Appeal Court’s decision before the Cassation Court were similar to those before the Appeal Court. However, the arguments before the Court of Cassation stressed the grave violation of the principle that a person is not accountable for another’s actions in terms of criminal liability and the implementation of the provisions of the Penal Law. They also stressed that the first instance and appeal courts had gravely erred in the implementation of law when they held the holding company’s liable for criminal acts committed by its subsidiary.</p>\r\n<p class=\"p1\">The Court of Cassation brought the appeal hearing forward as a matter of urgency given the public importance of the appeal points. The Court simultaneously considered the points of appeal raised by the Public Prosecutor.</p>\r\n<p class=\"p1\">The Court heard the holding company’s arguments that it should not be held responsible for the subsidiary’s actions given its separate legal personality and the holding company’s lack of substantive control over the subsidiary. In a rare move, the Court exercised its power under Article 249 of the Penal Procedures Law and decided to impose its own decision on the facts of the case without remitting the matter back to the lower courts. It upheld the holding company’s appeal and overturned the conviction.</p>\r\n<p class=\"p1\">The Court found:</p>\r\n<p class=\"p1\"><span class=\"s1\">“<em>The context of Articles 2 and 65 of the Federal Penalties Law No. 3 of 1987 and the amendments thereto indicate that no person shall be held accountable for the crime of another person, and that legal persons are criminally responsible for the crimes committed by their representatives, directors, or agents thereof for the account and in the name thereof exclusively. The challenged judgment has violated the requirements of such articles and as such, it has violated the law and erred in the interpretation and implementation thereof.</em>”</span></p>\r\n<p class=\"p1\">The Court of Cassation thereby stood for the principles that no person shall be held accountable for the crime of another and that an accused is innocent until proven guilty in accordance with law. It also restated the conventional position that a company is a legal person, independent from its shareholders, and with its own financial liability.</p>\r\n<p class=\"p1\"><em>Al Tamimi &amp; Company’s litigation team in Abu Dhabi regularly advises on criminal matters. For further information please contact Ashraf Shoukri (a.shoukri@tamimi.com).</em></p>'),
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(104462, 5681, 'content', 'June - July 2017\r\n\r\n<hr />\r\n<p class=\"p1\">A party seeking to invalidate the arbitration agreement, as a ground for the annulment of an arbitration award, may allege that the signatory to the arbitration agreement was not authorised to agree to bind the company to arbitrate. The most common scenario that leads to such a claim is when the signatory to the arbitration agreement is not the manager of the limited liability company and does not have the necessary authorisation to bind the company to the arbitration clause.</p>\r\n<p class=\"p1\">In a recent judgment issued by the Dubai Court of Cassation (the ‘CC’) dated 24/2/2016, the CC tackled the issue of the authorised signatory in order to ensure the stability of commercial transactions and the principle of good faith when two parties are entering into an agreement, especially where arbitration is an agreed term.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>The facts of the case</strong></span></p>\r\n<p class=\"p1\">The Claimant is a leading real estate developer that entered into sale and purchase agreements for four plots of land (the ‘SPAs’) with the Defendant. The Claimant alleged that the Defendant had breached the SPAs by their failure to pay the full purchase price of the plots. The Claimant issued a claim against the Defendant at the Dubai Court of First Instance (‘CFI’) claiming an amount of AED 22,753,201.00, together with interest.</p>\r\n<p class=\"p1\">The Defendant filed its defence initially as a jurisdictional challenge, which essentially invoked the arbitration clause and requested that the Court dismiss the claim for its lack of jurisdiction. The Claimant, which is a limited liability company, responded claiming that the arbitration clause was invalid because the signatory to the SPAs was not the manager of the Claimant’s company and, hence, did not have the capacity to bind the company to an arbitration clause.</p>\r\n<p class=\"p1\">On 29/1/2015 the CFI issued its judgment dismissing the Claimant’s case due to the parties’ agreement to resolve their disputes through arbitration.</p>\r\n<p class=\"p2\"><strong>On Appeal to the Court of Appeal</strong></p>\r\n<p class=\"p1\">The Claimant appealed the CFI’s judgment and on 30/6/2015 the Dubai Appeal Court overturned the CFI’s judgment and referred the case back for the lower court to re-adjudicate the case. In its decision the Appeal Court found the arbitration clause invalid because it was agreed to by a signatory other than the manager of the Claimant’s company.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>On Appeal to the Court of Cassation</strong></span></p>\r\n<p class=\"p1\">The Defendant challenged the Appeal Court’s decision at the CC on the grounds that the Appeal Court erred in finding the arbitration clause invalid due to the lack of capacity and authority of the Claimant company’s signatory.</p>\r\n<p class=\"p1\">The Defendant argued that it is evidenced from the Claimant company’s trade licence that the director/manager of the Claimant’s company at the time of signing the SPAs was the same person whose name is stated in the SPAs as a representative of the Claimant’s company.</p>\r\n<p class=\"p1\">In addition, the Defendant further argued that the principles of good faith dictate that authority and capacity to enter into arbitration on behalf of a limited liability company is presumed to be issued by its manager/director or by a representative authorised to represent the company in the agreement.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Judgment of the CC</strong></span></p>\r\n<p class=\"p1\">The CC upheld the Defendant’s argument.</p>\r\n<p class=\"p1\">The CC stated that it is an established rule that arbitration is the parties’ explicit agreement for their disputes to be resolved by one or more arbitrators rather, than the normal route of resorting to the State Courts. It is also well established in the rulings of the CC that an arbitration agreement may only be made by a party having the capacity and competence to dispose of the disputed right. This is because the agreement to arbitrate amounts to a waiver of the right to institute the action before the State Court, which has certain guarantees provided to litigants. Arbitration, as an exceptional mode of dispute resolution, therefore requires a special power of attorney. In this vein, a director of a limited liability company is the only person that has the capacity to bind the company to an arbitration agreement (unless such company’s articles of association dictate otherwise).</p>\r\n<p class=\"p1\">Furthermore, it is established in precedents of the CC that, if the name of a certain company is stated at the beginning of an agreement and a person signed the agreement on behalf of this company where signatories are set out to sign, this constitutes a legal presumption confirming that the person who signed the agreement was authorised by the company to enter into contractual agreements. In this case, all rights and obligations stemming from this agreement become binding on the company.</p>\r\n<p class=\"p1\">To elaborate, the CC made a distinction between two scenarios:</p>\r\n\r\n<ul>\r\n 	<li>If the name of the company is stated at the beginning of an agreement, followed by the name and capacity of its representative, and such agreement was signed by a readable name, other than that of the representative stated at the beginning of the agreement, and when such agreement contains an arbitration clause, a party may argue the invalidity of the arbitration agreement due to the lack of capacity of the signatory to bind the company to arbitration.</li>\r\n 	<li>If the name of the company is stated at the beginning of the agreement without stating the name and capacity of its representative, and when such agreement is signed with an unreadable signature, it is then a conclusive legal presumption that such signature is attributed to the person who has the legal capacity to bind the company to an arbitration agreement. A party may not then challenge the validity of the arbitration agreement.</li>\r\n</ul>\r\n<p class=\"p6\">The reason for such distinction, as reasoned by the CC, is that the principles of good faith dictate that a party’s consent when entering into a contractual obligation must be free of any coercion or misrepresentation. This is in addition to the legal rule that a party may not manufacture evidence for itself against another.</p>\r\n<p class=\"p1\">In light of the above, when examining the SPAs where the parties agreed to arbitration, the CC noted that the names of parties were stated without explicitly stating the names of its representatives. The SPAs were further signed by unreadable signatures without stating the names of such signatories. Consequently, the Court found that, in line with the legal principles stated above, the signatures on the SPAs were attributed to the legal representatives of the parties and as such their agreement to arbitrate was valid and the State Courts did not have jurisdiction over the dispute.</p>\r\n<p class=\"p2\"><strong>Conclusion</strong></p>\r\n<p class=\"p1\">Parties entering into any agreement would be advised to ensure that the names and capacities of their signatories are clearly stated both at the ‘parties’ clause as well as the ‘signature’ section of the contract. This is especially the case when there is an agreement to arbitrate.</p>\r\n<p class=\"p1\">Moreover, the parties must be mindful of the fact that only the authorised person whose name is stated in the agreement must actually sign the agreement, otherwise they may face challenges to the authority of the signatories and, by extension, the terms of the agreement.</p>'),
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(104474, 5681, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'z.oghli@tamimi.com'),
(104475, 5681, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'field_59e59afcd15de'),
(104476, 5681, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', 'Sharjah, UAE'),
(104477, 5681, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', 'field_59e59b05d15df'),
(104478, 5681, 'lawUpdateArticleNoWriters_1_lawUpdateAuthorName', 'Marwa El Mahdy'),
(104479, 5681, '_lawUpdateArticleNoWriters_1_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(104480, 5681, 'lawUpdateArticleNoWriters_1_lawUpdateAuthorEmail', 'm.elmahdy@tamimi.com'),
(104481, 5681, '_lawUpdateArticleNoWriters_1_lawUpdateAuthorEmail', 'field_59e59afcd15de');
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(104482, 5681, 'lawUpdateArticleNoWriters_1_lawUpdateAuthorLocation', 'Sharjah, UAE'),
(104483, 5681, '_lawUpdateArticleNoWriters_1_lawUpdateAuthorLocation', 'field_59e59b05d15df'),
(104484, 5681, 'lawUpdateArticleNoWriters', '2'),
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(104486, 5681, '_yoast_wpseo_metadesc', 'It has been noted in a series of cases that when an application to ratify an arbitration award is filed a respondent, hoping to resist enforcement of the arbitration award often resorts to challenging the capacity of the signatory to the arbitration clause.'),
(104487, 5682, 'content', 'June - July 2017\r\n\r\n<hr />\r\n<p class=\"p1\"><strong>Background</strong></p>\r\n<p class=\"p2\">The broadcaster entered into a production agreement with a UAE based production company, whereby the latter would produce and deliver a television program to the broadcaster. The agreement obliged the production company to prepare, record and deliver the final complete series after satisfying all legal and non-legal requisites. The broadcaster obviously aired the program to the public on both its usual platform but also to its digital channels, as was anticipated by the agreement.</p>\r\n<p class=\"p1\">In one of the episodes, members of the public were video recorded without their knowledge. In this case, certain of those members of the public has not been asked if they could be included within the program, nor had they signed an appearance release, as would be usual for such programs.</p>\r\n<p class=\"p1\">The program was aired and these members of the public discovered that they were on television only as the program went to air. However they did not see the funny side of the program and filed criminal complaints under UAE Law No. 5 of 2012 (concerning Cyber Crimes) (the Cyber Crimes Law); charges were lodged against the broadcaster and the production company as well as each of the presenters of the program.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Public Prosecution</strong></span></p>\r\n<p class=\"p1\">The Public Prosecution accused each of the defendants of recording and broadcasting footage of people, without obtaining their consent.</p>\r\n<p class=\"p1\">As part of the defence prepared for the broadcaster, a private media expert was appointed to prepare a report explaining the different roles and obligations of broadcasting and production companies in these situations. The expert explained that international and regional common practice was that broadcasters only bear responsibility for reviewing and censoring scenes from episodes that touch upon major issues that are not permitted to be broadcast by law, such as the promotion of drugs, insulting religions etc.</p>\r\n<p class=\"p1\">This responsibility does not generally include ensuring that approvals were taken from third parties whether they are for the appearance in the program, as in this case, or for material used such as music, photographs or artwork. This obligation traditionally always falls on the production company as does other practical production matters such as securing approvals and licenses required to record in public places.</p>\r\n<p class=\"p1\">The Court of First Instance issued its judgment imposing a fine of AED 50,000 to be paid by each defendant, with the fines totalling AED 450,000.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Deportation</strong></span></p>\r\n<p class=\"p1\">The Public Prosecution appealed this judgment, asking that the court also consider Article 42 of the Cyber Crimes law which relates to deportation. The article states that:</p>\r\n<p class=\"p4\"><em>“The Court shall adjudge to deport the foreigner convicted for committing any of the crimes provided for in this Decree by Law after executing the prescribed punishment.”</em></p>\r\n<p class=\"p1\">The Court of Appeal agreed with the Public Prosecution in the Appeal judgment and added deportation to the initial ruling. The TV presenters challenged this judgment before the Court of Cassation. The challenge was rejected by the Court of Cassation and consequently, the judgment issued by the Court of Appeal is now final.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Comment</strong></span></p>\r\n<p class=\"p1\">This case is a powerful reminder of the importance of ensuring proper legal checks are followed before material is broadcast.</p>\r\n<p class=\"p1\">Whilst it is usually the obligation of production companies within the media industry to seek all clearances , it is still recommended that broadcasters and publishers working in any digital environment ensure that production companies are aware of their obligations pertaining to obtaining all necessary approvals, and fulfil all legal requirements in relation to content that they deliver. This applies in relation to their legal requirements under the contract, and their obligations under the law.</p>\r\n<p class=\"p1\">Legal professionals should also be involved in the review of content production agreements and, in addition, of materials being considered for broadcast to ensure the proper filtering and removal of illegal scenes and materials.</p>\r\n<p class=\"p1\"><span class=\"s3\"> Whilst a contract is always a good first step in the process, it cannot replace the implementation of proper legal checks to ensure that all parties understand what to expect beyond the boundaries of the contract, and how to mitigate risks by ensuring that all necessary approvals and licenses are in place. </span></p>\r\n<p class=\"p5\"><span class=\"s3\"> </span></p>\r\n<p class=\"p1\"><em>Al Tamimi &amp; Company’s Technology Media and Telecommunications team regularly works with the Litigation team on issues arising from media and content agreements and on regulatory matters and disputes. For further information please contact Fiona Robertson (f.robertson@tamimi.com or Omar Khodeir (o.khodeir@tamimi.com).</em></p>'),
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(104489, 5682, 'lawUpdateArticleMonth', '5677'),
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(104491, 5682, 'content_description', 'A broadcaster in the Arab World, as well as the production company and the on screen presenters have all been fined AED 50,000 in a criminal matter. They were each fined because of the broadcast of a television program that contained a prank where the consent of members of the public involved in the prank had not been obtained. This article considers the legal issues involved.'),
(104492, 5682, '_content_description', 'field_59b641c07f473'),
(104493, 5682, 'pageSummary', 'A broadcaster in the Arab World, as well as the production company and the on screen presenters have all been fined AED 50,000 in a criminal matter. They were each fined because of the broadcast of a television program that contained a prank where the consent of members of the public involved in the prank had not been obtained. This article considers the legal issues involved.'),
(104494, 5682, '_pageSummary', 'field_59e59b307dec8'),
(104495, 5682, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-15/june-july/every-player-gets-a-fine-uae-criminal-court-issues-fines-for-broadcast-of-content-without-consent.html'),
(104496, 5682, '_currentURL', 'field_59d35123ab1e7'),
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(104498, 5682, '_lawUpdateArticleWriters_0_lawUpdateArticleWriter', 'field_59da2ac06b065'),
(153842, 5682, 'lawUpdateArticleNoWriters', ''),
(153843, 5682, '_lawUpdateArticleNoWriters', 'field_59e59aaed15dc'),
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(104503, 5682, '_yoast_wpseo_metadesc', 'They were each fined because of the broadcast of a television program that contained a prank where the consent of members of the public involved in the prank had not been obtained. Al Tamimi & Company considers the legal issues involved.'),
(104504, 5683, 'content', 'June - July 2017\r\n\r\n<hr />\r\n<p class=\"p1\">In some instances, UAE traders, who are often, caught selling illegally-unlocked set top boxes (receivers) and Internet Protocol television (IPTV) decoders to consumers, which allow users to access exclusive TV channels, may face severe criminal penalties. These flow from several UAE laws that protect intellectual property, trademarks and copyright, such as the UAE’s Federal Copyright Law No. 7 for 2002, and Federal Trademark Law No. 37 for 1992 and its subsequent amendments. Additional and more severe penalties can be imposed the offences are done through electronic platforms, making provisions of the Federal Law by Decree No. 5 of 2012 regarding Combating Cybercrimes, commonly known as the Cybercrime Law, also applicable.</p>\r\n<p class=\"p1\">In other cases, traders unlawfully place famous trade names and trademarks on their products to deceive the consumer, with the aims of selling goods, increasing market share and generating fat profits.</p>\r\n<p class=\"p1\">To provide more insight on illegal piracy, we highlight below two cases that demonstrate the potential criminal consequences for anyone caught infringing the copyright laws of media content and breaching IPR.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Case 1</strong></span></p>\r\n<p class=\"p1\">An unknown person established a website that could be accessible by the public in order to download or upload exclusive movies and TV shows. On the website, the perpetrator uploaded a considerable number of famous old and recent movies and TV series that could be downloaded for further use.</p>\r\n<p class=\"p1\">The movies and series were only licensed to be provided by a leading, direct-broadcast satellite provider of popular TV entertainment content, who broadcast movies, comedy shows and sports channels from major networks and studios. Access to such content required subscription and payment of a fee by the consumer.</p>\r\n<p class=\"p1\">The perpetrator also placed the famous trade name and trademark of the broadcasting company next to the website’s download links. In doing so, he intended to confuse the public into believing that the website somehow originated from or was affiliated with the broadcasting company.</p>\r\n<p class=\"p1\">Criminal proceedings were instituted against the perpetrator in Abu Dhabi. The Abu Dhabi Police investigation department successfully followed the available leads and revealed the identity of the perpetrator. The Public Prosecution office issued an indictment order against the perpetrator for committing acts penalized by the Cybercrime Law and the Federal Law by Decree No. 3 of 2003 regarding the Organization of the Telecommunications Sector (as amended). Those acts were as follows:</p>\r\n\r\n<ul>\r\n 	<li>Unlawfully benefiting from the broadcasters visual channels via technological means;</li>\r\n 	<li>Exploiting telecommunication devices to transmit the broadcaster’s telecommunication services; and</li>\r\n 	<li>Facilitating for others the unlawful benefiting from the broadcaster’s visual channels via technological means.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p1\">The accused was found guilty before the Court of First Instance and sentenced to 6 months along with payment of 50,000 AED as compensation to the victim broadcaster, from whom we acted. The Court further ordered the perpetrator’s deportation and the removal of all content available on the illegal website.</p>\r\n<p class=\"p1\">The accused appealed and the Court of Appeal reduced the sentence from 6 to 2 months’ imprisonment.</p>\r\n<p class=\"p8\"><span class=\"s1\"><strong>Case 2</strong></span></p>\r\n<p class=\"p1\">In a second recent case, traders were discovered to be subscribers to the exclusive TV channels outside the UAE and to offer access to the TV channels to their local consumers within the UAE. The traders used a number of measures in order not to reveal the source of the subscription.</p>\r\n<p class=\"p1\">The Dubai Criminal Court of First Instance convicted one of the traders of copyright infringement by using the internet. The Court’s judgment obliged the perpetrator to:</p>\r\n\r\n<ul>\r\n 	<li>Pay a fine of 200,000 AED</li>\r\n 	<li>Close the store used for selling the IPTV decoders for a period of one year;</li>\r\n 	<li>Deport the perpetrator from the UAE; and</li>\r\n 	<li>Refer the civil claim for compensation to the competent civil court.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p1\">In most scenarios, the traders or the perpetrators do not expect such severe penalties. However, these sentences show the seriousness with which the criminal courts treat breaches of laws affecting IPR.</p>\r\n<p class=\"p1\">In conclusion, traders of electronic devices such as set top boxes (receivers)/ IPTV decoders must cease offering TV and media services which are not permitted in the UAE even if such services are allowed outside of the UAE. The operation of receiving the exclusive TV channels through the internet from somewhere out of the UAE and redistributing the same one a commercial level to the consumers within the UAE is a crime as per the UAE Federal Copyright Laws No. 7 for 2002 and the Federal Law by Decree No. 5 of 2012 regarding Combating Cybercrimes. With the aim to minimize the occurrence of such crimes, the UAE imposes specific regulations for this type to trade. With the understanding that those types of crimes adversely affect important sectors, such as the telecommunications sector, be it private or public, the Courts tend to have a harsh approach towards anyone who breaches the laws regulating it.</p>\r\n<p class=\"p1\"><em>Al Tamimi &amp; Company’s IP and Litigation team regularly advises on cases involving IP infringement. For further information please contact Bassam Al Azzeh (b.alazzeh@tamimi.com) or Omar Khodeir (o.khodeir@tamimi.com).</em></p>'),
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(104508, 5683, 'content_description', 'Intellectual property law overlap with criminal law in many ways, one of which is piracy of media content. This is one of the fastest-growing forms of criminal offence and breaches of intellectual property rights (‘IPR’) in the region.'),
(104509, 5683, '_content_description', 'field_59b641c07f473'),
(104510, 5683, 'pageSummary', 'Intellectual property law overlap with criminal law in many ways, one of which is piracy of media content. This is one of the fastest-growing forms of criminal offence and breaches of intellectual property rights (‘IPR’) in the region.'),
(104511, 5683, '_pageSummary', 'field_59e59b307dec8'),
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(104513, 5683, '_currentURL', 'field_59d35123ab1e7'),
(214089, 5683, '_lawUpdateArticleNoWriters_1_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(214088, 5683, 'lawUpdateArticleNoWriters_1_lawUpdateAuthorName', 'Omar Khodeir'),
(104516, 5683, 'lawUpdateArticleWriters', ''),
(104517, 5683, '_lawUpdateArticleWriters', 'field_59da2a866b064'),
(104518, 5683, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Bassam AlAzzeh'),
(104519, 5683, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(104520, 5683, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'b.alazzeh@tamimi.com'),
(104521, 5683, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'field_59e59afcd15de'),
(104522, 5683, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', 'Dubai, UAE'),
(104523, 5683, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', 'field_59e59b05d15df'),
(104524, 5683, 'lawUpdateArticleNoWriters', '2'),
(104525, 5683, '_lawUpdateArticleNoWriters', 'field_59e59aaed15dc'),
(104526, 5683, 'lawUpdateArticlePractices_0_lawUpdateArticlePractice', '634'),
(104527, 5683, '_lawUpdateArticlePractices_0_lawUpdateArticlePractice', 'field_59dc79c8e10ce'),
(104528, 5683, 'lawUpdateArticlePractices', '1'),
(104529, 5683, '_lawUpdateArticlePractices', 'field_59dc7918de021'),
(104530, 5683, '_yoast_wpseo_metadesc', 'To provide more insight on illegal piracy, Al Tamimi & Company highlight two cases that demonstrate the potential criminal consequences for anyone caught infringing the copyright laws of media content and breaching IPR.'),
(104531, 5684, 'content', 'June - July 2017\r\n\r\n<hr />\r\n<p class=\"p1\">The fact is that the entire world has gone digital so even if some brands have not established a strong internet branding presence, it will not deter potential customers from engaging with brands online. In fact, it is very likely that the first thing potential consumers of a brand do upon learning of a brand is to do an online search to research the brand even if the brand does no business online. The brand’s reputation will precede the actual presence in cyberspace. Peer review publications, industry publication, blogs, news and popular media channels will generate considerable online data for any brand. All of these media outlets are hungry for content and more likely than not, will have discovered and discussed most brands on the internet, even where the brand has not established an active online presence.</p>\r\n<p class=\"p1\"><span class=\"s1\"> After obtaining a clearance search and preferably seeking trademark registration, brand owners including UAE brand owners should consider reserving the marks as domain and social media usernames. If a third party registers and uses the domain in good faith before the brand does, the brand owner will usually be unable to obtain the domain other than by purchasing it. On the other hand, if the domain was registered and used by a third party in bad faith, the brand brand owners including UAE brand owners could file a Uniform Domain Name Dispute action before the likes of WIPO as an efficient and cost-effective means to retrieve the domain name.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> With the proliferation of generic Top Level domains (“gTLDS”) such as “. etc.”, becoming available for registration, the option of reserving valuable marks on relevant new keyword gTLDs that relate to the mobile market, such as “.app”, “.mobile”, or the particular industry, such as “.money”, “.party”, “.fund”, “.legal”, “.poker”, “.cash” etc., is increasingly recommended. </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> Brand owners including UAE brand owners are advised to attempt to reduce the misappropriation of their trademarks in new domains as they are released by taking advantage of the Trademark Clearinghouse (“TMCH”).</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> The TMCH is a centralized database devised by the Internet Corporation for Assigned Names and Numbers (“ICANN”) as part of a regime to protect brands and intellectual property rights. It comprises a central repository, which is managed by Deloitte wherein brand owners may submit their trademarks for validation. </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> Mobile applications or “apps” are omnipresent. There is literally an app for any kind of venture or enterprise if not for business then at least for information sharing. Mobile devices are outselling personal computers, and an increasing percentage of internet access is made through mobile devices. With the increasing prevalence of apps, brand owners including UAE brand owners should rightly feel the need to create distinctive brands that set their product apart from competing apps. With the sheer number of apps and the resulting marks being registered, it is imperative to have in place a comprehensive regime of trademark protection and enforcement. </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> In a market proliferating with apps selling all kinds of products, where purchase decisions are made at a touch of a touch screen, brand presence is of crucial importance. Brevity is the order of the day and outlandish or fanciful visual marks which are highly distinctive and possibly complemented by a novel logo would do well to capture the imagination of harried consumers that are typically overwhelmed by the multitude of apps. Given the global reach of the market, brand owners including UAE brand owners attempting to reach markets across jurisdictions should ensure that their chosen trademark travels well in cyberspace while taking care all the while to ensure that their trademark does not infringe the rights of others.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> In launching their apps on app distribution platforms, which are accessible across multiple jurisdictions, such as Google Play® and the iOS® App Store, there are specific rules and requirements to be adhered to regarding app names, which would impact upon the choice of a brand owner’s trademark. </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> As part of Apple’s naming protocol, the use of an app name that is a registered trademark of another party or is already in use in the iOS® App Store may result in its removal. Apple imposes a maximum number of characters for the names of apps, which is thirty-five characters. Further, it is common for app distribution platforms to have strict guidelines with respect to the use of their trademarks to indicate compatibility with their platforms.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> In summary, brand owners need to be aware of certain considerations as they navigate the world of domain names and social media as they roll out their brands in establishing their internet presence.</span></p>'),
(153689, 5684, 'core_values', ''),
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(153693, 5684, 'orderValue4', '4'),
(104532, 5684, '_content', 'field_59b649b5c8b2b'),
(104533, 5684, 'lawUpdateArticleMonth', '5677'),
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(104535, 5684, 'content_description', 'Internet presence and social media presence is all important for brand owners in today’s brave new world of consumers clutching their mobile phones, tablets and laptops at every turn. Brand owners need to protect themselves in cyberspace. If a brand is worth protecting, it is by the same virtue also worth hijacking and nowhere is it easier to misappropriate than in cyberspace.'),
(104536, 5684, '_content_description', 'field_59b641c07f473'),
(104537, 5684, 'pageSummary', 'Internet presence and social media presence is all important for brand owners in today’s brave new world of consumers clutching their mobile phones, tablets and laptops at every turn. Brand owners need to protect themselves in cyberspace. If a brand is worth protecting, it is by the same virtue also worth hijacking and nowhere is it easier to misappropriate than in cyberspace.'),
(104538, 5684, '_pageSummary', 'field_59e59b307dec8'),
(104539, 5684, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-15/june-july/navigating-domain-names-and-social-media-platforms-for-brand-owners.html'),
(104540, 5684, '_currentURL', 'field_59d35123ab1e7'),
(104541, 5684, 'lawUpdateArticleWriters_0_lawUpdateArticleWriter', '926'),
(104542, 5684, '_lawUpdateArticleWriters_0_lawUpdateArticleWriter', 'field_59da2ac06b065'),
(104543, 5684, 'lawUpdateArticleWriters', '1'),
(104544, 5684, '_lawUpdateArticleWriters', 'field_59da2a866b064'),
(104545, 5684, 'lawUpdateArticlePractices_0_lawUpdateArticlePractice', '634'),
(104546, 5684, '_lawUpdateArticlePractices_0_lawUpdateArticlePractice', 'field_59dc79c8e10ce'),
(104547, 5684, 'lawUpdateArticlePractices', '1'),
(104548, 5684, '_lawUpdateArticlePractices', 'field_59dc7918de021'),
(104549, 5684, '_yoast_wpseo_metadesc', 'Brand owners need to protect themselves in cyberspace. If a brand is worth protecting, it is by the same virtue also worth hijacking and nowhere is it easier to misappropriate than in cyberspace.'),
(104550, 5685, 'content', 'June - July 2017\r\n\r\n<hr />\r\n<p class=\"p1\">The expanding significance of the economic value of the local market requires establishing practical mechanisms for protecting and enforcing intellectual property (‘IP’) rights. Trademark being one of the dominant and common IP rights, and this article examines various aspects of protecting and enforcing trademarks in Iran. The trademark practice in Iran generally focuses on protection, i.e. filing and registration, and enforcement of brands against infringement and counterfeit.</p>\r\n<p class=\"p1\"><span class=\"s1\"> The Patent and Trademark Registration Act of 2008 [] and related Regulations, together with the Paris Convention for the Protection of Industrial Property of 1959 and the E-commerce Law of 2003 establish the legal framework for the registration, protection and enforcement of trademarks in Iran, and set out the procedures for civil actions and criminal prosecution.</span></p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>Trademark Protection</strong></span></p>\r\n<p class=\"p1\">The Iranian laws provide no protection to unregistered trademarks. A trademark must be registered in order to enjoy protection. Trademarks may be used in Iran without registration, but the owner of an unregistered trademark is not able to use the law to protect against infringement. The exclusive right to use a trademark rests with the party that has registered the mark. Mere use of a trademark does not entitle the user to enforce its unregistered rights and benefit from protection of the mark.</p>\r\n<p class=\"p1\"><span class=\"s1\"> <strong>Registration</strong>: The registration of a trademark in Iran involves the typical procedures of filing, examination, publication and then registration. The typical time frame to complete the registration process is 15 to 18 months with relatively minimal fees and expenditures for brand owners. The brand owner should complete the process through a local attorney and should provide the following information and documents: </span></p>\r\n\r\n<ul>\r\n 	<li>Name, address details and nature of business of the applicant</li>\r\n 	<li>A specimen of the trademark to be protected</li>\r\n 	<li>List of goods and services to which the trademark applies</li>\r\n 	<li>A Power of Attorney to the applicant’s representative, duly legalised by the Iranian consulate</li>\r\n 	<li>A copy of the incorporation certificate for the applicant (if a corporation), duly legalised by the Iranian consulate</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p6\">A clearance search of the trademark is always recommended to brand owners prior to registration and use. Whilst proof of use is not required to register a trademark in Iran brand owners should carry out such searches prior to commencing registration or commercial exploitation of brands as a precaution. These searches can be initiated and completed within an average period of five working days.</p>\r\n<p class=\"p1\">Under Iranian trademark laws, a trademark is any design, image, word, expression, seal, cover, etc., adopted to distinguish industrial, commercial, or agricultural products. Moreover, non-traditional trademarks such as Three-dimensional marks and Colour marks are registrable in Iran. In addition to the standard restrictions such as national flag, official emblems and so on that cannot be registered as a trademark, trademarks covering “alcoholic beverages” in class 33, “beer and ale “ in class 32 and all trademarks comprising portraits of a woman in any form, are prohibited from registration in Iran.</p>\r\n<p class=\"p1\"><span class=\"s1\"> Iran uses the International Classification of Goods and Services for the purposes of registration of trademarks (the Nice Classification), although the Registry has adopted a local pre-defined list of goods and services which may not cover all the goods and services listed in the Nice Classification. An application should choose a list of goods and services from the above said pre-defined list which the Registry follows. Iran follows a Multi-class filing system which means that an application to register a trademark can cover more than one class with a discounted official fee applied for each additional class.</span></p>\r\n<p class=\"p1\">Once the registration application is submitted, it will be examined by the Trademark Office and, if no objections or oppositions to the registration are raised, or the objections or oppositions are resolved in favour of the applicant, the application will be published, followed by a 30-day opposition period. If no oppositions are filed within this period, the mark will be registered and a number assigned to it. The registration will then be published once again and the registration certificate will be issued following publication.</p>\r\n<p class=\"p1\"><strong>Use Requirements</strong>: If an owner of a mark, his legal agent, or successor does not use the registered mark without any legitimate reasons within a period of three years from the registration date, such mark may be vulnerable to a cancellation action by a third party. Trademark owners are not required to submit any proof of use of the mark, unless a third party files a request for cancellation on the ground of non-use during the term indicated above.</p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>Trademark Enforcement</strong></span></p>\r\n<p class=\"p1\">As mentioned earlier, the Iranian legal system affords no protection to unregistered marks. Only registered marks enjoy protection and may be enforced through civil or criminal actions. The trademark registration certificate is prima facie evidence of ownership and a trademark owner holds exclusive rights to use the trademark. A trademark registrant may initiate anti-counterfeiting measures against infringers only through the courts, and not with the Trademark Office. The Trademark Office is not the authority to enforce registered trademarks rights in Iran.</p>\r\n<p class=\"p1\">We set out below the most common options for trademark owners under Iranian law and practice to enforce their registered trademarks:</p>\r\n<p class=\"p1\"><strong>Legal Notice</strong>: Sending a legal notice or cease and desist letter appears to be a very efficient tool to resolve many problems at an early stage in Iran. Therefore, trademark owners should consider this option against retailers, traders or local entities that infringe or sell counterfeit goods as a first step. The legal notice can be sent as a cease and desist letter from the trademark owner or its lawyer or via an official notice that is served through a court bailiff.</p>\r\n<p class=\"p1\"><strong>Criminal Action</strong>: A criminal complaint is often a swift and effective method to protect against infringement in Iran. If a trademark owner finds that its trademark is being illegally used in such a way that consumers do not realize they are purchasing counterfeit products or that use of a confusingly similar trademark is misleading, it may launch a criminal action. Although it is also possible to do so, it is not advisable to bring a criminal action in cases where the similarity between the marks is arguable.</p>\r\n<p class=\"p1\">The criminal complaint will be filed before the Public Prosecution. Following the examination of the complaint and the supporting documents, the Public Prosecutor may issue an injunction order for Police to raid on the infringer and its business within five to seven working days in the normal course of events. The injunction order will be valid for 15 days from the issuance during which the local counsel should conduct the raid along with the Police. The Prosecutor will order the Police to remove all infringing trademarks, logos and signage and seize counterfeit goods and other infringing materials such as business cards and other marketing materials with the infringing trademark on it.</p>\r\n<p class=\"p1\">A trademark infringer is liable for imprisonment of three months to six months and/or a penalty of $400 to $1600 or both. However, generally in practice the Courts do not tend to sentence infringers to imprisonment.</p>\r\n<p class=\"p1\"><span class=\"s3\"> <strong>Civil Action</strong>: A trademark owner can also enforce and protect its rights through a civil court action, which would include a claim for damages. If a trademark owner finds that its trademark is being unlawfully used by others , it may bring a civil court action to stop the infringement. Where the similarity between the marks is arguable, it is advisable to bring a civil action rather than a criminal action, because the court must first be satisfied that the similarity would confuse and mislead the targeted consumers before ordering the infringer to cease use of the imitated mark.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> A preliminary interim injunction is also available in a civil action, but subject to depositing a bond with the court to cover possible damages to the other party if the complainant loses the action. The amount of the bond will depend on the court’s discretion and cannot be predicted. The time frame for obtaining an interim injunction in a civil action will be around 20 days [from the date of receiving the complaint on file]. </span></p>\r\n<p class=\"p1\"><strong>Administrative Actions</strong>: Generally speaking, there is no administrative action available against trademark infringement activities in Iran. However, in the matter of trademark infringement on signboards, a complaint is available before the Police Supervising of Public Places, a department within Iran’s Police, as the authorized department to carry out raids against signboard infringement.</p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>Online Disputes</strong></span></p>\r\n<p class=\"p1\">The E-commerce Law in Iran provides for the protection of trademarks used online . The use of a mark as a domain name, or any online use of a trademark that confuses or misleads consumers as to the source of goods or services, is considered as infringement and prohibited by the law. The E-commerce Law provides IP rights owners with remedies against the following activities:</p>\r\n\r\n<ul>\r\n 	<li>domain name registration of an existing trademark by an unauthorised party</li>\r\n 	<li>domain name registration of a name that is confusingly similar to an existing trademark owned by a third party</li>\r\n 	<li>domain name registration of another party’s trademark in the top-level domains ‘.ir’, ‘.co.ir’ and similar</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p7\"><span class=\"s4\">The E-commerce Law prescribes that the use of a registered trademark as a domain name by a third party, or any online use of trademarks that may mislead or confuse consumers as to the source of goods and services, is illegal. The infringer will be liable for criminal penalties ranging from one to three years’ imprisonment and fines of between $2,500 and $12,500.</span></p>\r\n<p class=\"p9\"><span class=\"s2\"><strong>Conclusion</strong></span></p>\r\n<p class=\"p1\">Brand value is of paramount importance and should be protected to the fullest extent possible against unlawful and illegal use and a brand can easily be destroyed if used in conjunction with counterfeit goods. Since unregistered rights are unavailable in Iran, brand owners should register their trademarks for the Iranian market at an early stage. Once the trademark is registered, enforcement proceedings may then be taken to protect brand value and recover any damages suffered or incurred.</p>'),
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(104573, 5686, 'content', 'June - July 2017\r\n\r\n<hr />\r\n<p class=\"p1\">This is also true for the UAE as banks in the UAE are recognising the risks and competition they face from technology companies looking to provide financial services using technology (FinTech). To counter this, UAE banks are embracing innovation and technology by investing in FinTech solutions and adapting their business to ensure efficiency and ease in a more cost effective provision of financial services.</p>\r\n<p class=\"p1\">To promote the adoption of FinTech in the UAE, while ensuring the highest standards of consumer protection and financial stability, regulators have been actively issuing new rules, regulations and initiatives. We set out below a synopsis of recent regulations issued by the UAE Central Bank (‘Central Bank’), Dubai Financial Services Authority (‘DFSA’) and Financial Services Regulatory Authority (‘FSRA’).</p>\r\n<p class=\"p2\"><strong>I. UAE Central Bank </strong><strong> </strong></p>\r\n<p class=\"p1\">The Central Bank has issued the Regulatory Framework for Stored Values and Electronic Payment Systems on 1 January 2017 (‘Regulation’). The Central Bank is the sole authority with the power to regulate existing and future digital payment mechanisms onshore in the UAE.</p>\r\n<p class=\"p1\">The following concepts and definitions are central to comprehending the various aspects of the Regulation. The Regulation defines Digital Money as any monetary value represented by a claim on its issuer, issued against AED stored on electronic, magnetic, or mobile channels. In international parlance it is electronic money.</p>\r\n<p class=\"p1\"><strong>Digital Payment</strong> has been defined as any payment using electronic, mobile, or magnetic channels excluding credit and debit cards payment.</p>\r\n<p class=\"p1\"><strong>Payment Instruments</strong> that are permissible for being used to initiate or receive a payment instruction are AED denominated cash, bank transfers; credit cards, debit cards, or stored value facility / prepaid cards.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Licensing of PSP</strong></span></p>\r\n<p class=\"p1\">Pursuant to the Regulation, payment service providers (‘PSPs’) now require a license from the Central Bank.</p>\r\n<p class=\"p1\">There are four categories of PSP licenses namely the retail PSP, Micropayments PSP, Government PSP and Non Issuing PSP.</p>\r\n\r\n<ul>\r\n 	<li><em>Retail PSP </em></li>\r\n</ul>\r\n<p class=\"p6\">Commercial banks or entities owned at least 50% by banks are eligible for the retail PSP license. It is the broadest category of license. A retail PSP can conduct the entire spectrum of permissible services, the most important of which is issuing Digital Money. Essentially, a retail PSP can offer a prepaid wallet which can be used for purpose of cardless deposits and withdrawals of cash at ATMs.</p>\r\n\r\n<ul>\r\n 	<li><em>Micropayment PSP</em></li>\r\n</ul>\r\n<p class=\"p6\">A micropayments PSP mainly targets the unbanked sector and is suitable for entities like telecommunication companies, exchange houses and entities licensed by the national transport authority. It permits much smaller funding and transaction limits.</p>\r\n\r\n<ul>\r\n 	<li><em>Government PSP</em></li>\r\n</ul>\r\n<p class=\"p6\">As the name suggests, a government PSP license enables prepaid digital payments to federal and local statutory bodies. There are also no transaction limits.</p>\r\n\r\n<ul>\r\n 	<li><em>Non-Issuing PSP</em></li>\r\n</ul>\r\nThe last category is the non issuing PSP license. This license does not permit the issuance of digital money, handling or solicitation of funds. This category is exempt from several sections of the Regulation related to safeguarding payments, outsourcing, segregated bank accounts, registration requirements, outsourcing and Know Your Customer checks (‘KYC requirements’). There are also no transaction limits.\r\n<p class=\"p8\">It should be noted that the Regulation details fourteen ‘dimensions’ which should be considered by a PSP when providing digital payment services in the UAE. These range from obtaining a Central Bank license to customer registration, appointment of agents, KYC requirements, Anti-Money Laundering matters, load and transaction limits, limits on charges, privacy matters, dispute resolution, payment execution, clearing and settlement etc.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Exemptions from the Regulation </strong></span></p>\r\n<p class=\"p1\">The Regulation lists eight categories of payment services/providers that are exempt from the application of the Regulation. Certain categories are regulated under other Central Bank regulations like payment transactions using a credit or debit card. Two important categories are issuers of closed loop payments instruments and technical service providers.</p>\r\n<p class=\"p1\">Technical service providers are not considered to be conducting financial activities since they only facilitate the provision of financial services to PSPs. They do not handle or transfer cash and therefore do not acquire any financial transactions. A payment gateway operator could fall under this category.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Prohibition</strong></span></p>\r\n<p class=\"p1\">The entities that are eligible to apply for a license are required to be those incorporated in the UAE (including in non-financial free zones). Entities incorporated in the Dubai International Financial Centre (‘DIFC’) and Abu Dhabi Global Market (‘ADGM’) are excluded.</p>\r\n<p class=\"p1\">There also appears to be some ambiguity in the Regulations as to the offering of virtual currencies or crypto currencies.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Restrictions on Fees and Charges </strong></span></p>\r\n<p class=\"p1\">The Regulation sets out limits on funding, holding, daily and per transaction spending that must be complied with. The Regulation also provides that certain charges may not be imposed on users.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Transition Period </strong></span></p>\r\n<p class=\"p1\">The Central Bank has recognized the impact that the Regulation could have on existing participants in the financial FinTech sector and has therefore provided a one year transition period.</p>\r\n<p class=\"p1\">Notwithstanding the one year transition period, concerned entities should promptly consider applicable compliance measures under the Regulation, in view of the breadth of scope and requirements of the Regulation. Non-compliance of the Regulation could attract financial penalties as well as other orders to be imposed by the Central Bank as it considers reasonable under the circumstances.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>II. Dubai International Financial Centre</strong></span></p>\r\n<p class=\"p2\"><strong>DIFC’s FinTech Hive Accelerator program</strong></p>\r\n<p class=\"p1\">In January 2017, the DIFC launched the FinTech Hive Accelerator programme, providing a platform for financial services and technology firms to build solutions for the financial sector. Supported by Accenture, the programme runs over twelve weeks during which time participants have the opportunity to develop, test and modify their FinTech innovations in collaboration with top executives and financial institutions in the DIFC. It is intended to provide a platform that will allow concepts to be fast-tracked and converted into tried and tested, commercially viable propositions.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>DFSA’s Innovation Testing Licence</strong></span></p>\r\n<p class=\"p1\">In May 2017, the DFSA, the financial services regulator for the DIFC, announced that FinTech firms can apply for a type of financial services licence referred to as an Innovation Testing Licence. This restricted type of financial services licence will allow FinTech firms to develop and test their concepts from within the DIFC, without being subject to all of the DFSA’s rules and regulations. This would mean that firms operating under such licence would not have to comply with the DFSA rules when the concept is at a testing stage. Graduation from the testing phase would be a step towards obtaining a full financial services licence.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>III. Abu Dhabi Global Market</strong></span></p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>FSRA’s Regulatory Laboratory in the ADGM</strong></span></p>\r\n<p class=\"p1\">In November 2016, the FSRA of the ADGM launched its Regulatory Laboratory (‘RegLab’) with the implementation of its FinTech legislative framework. This framework sets out the FSRA’s approach to the RegLab which is a specially tailored regulatory framework that provides a controlled environment for FinTech participants to develop and test FinTech solutions without immediately being subject to all the regulatory requirements that would otherwise apply to a fully licensed firm. It is intended to provide a safe environment within controlled boundaries for businesses to test, develop and provide innovative FinTech products.</p>\r\n<p class=\"p1\">The ADGM had approved its first batch of RegLab participants in May 2017, comprising five FinTech startups with various innovative offerings. Participants will be granted a ‘Financial Services Permission’ by the FSRA to carry on the regulated activity of developing financial services technology within the RegLab. Participants can remain in the RegLab environment for up to two years, during which time it is expected that the technology will be developed to the point where it is in a position to launch and the participant will be able to migrate to a full financial services licence within the ADGM. The second batch of ADGM RegLab applications opened on 16 May 2017 and closes on 31 July 2017.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Conclusion</strong></span></p>\r\n<p class=\"p1\">Taking into consideration the various licensing frameworks and initiatives briefly outlined in this article, it is clear that by laying these foundations the UAE is looking to support and encourage the growth of FinTech in the region. Entities looking to offer FinTech solutions should take into account which jurisdiction is most suitable and what licenses, if any, are required.</p>\r\n<p class=\"p1\"><em>Al Tamimi &amp; Company’s Financial Regulatory team regularly advises on licensing related matters. For further information please contact Divya Abrol Gambhir (d.abrol@tamimi.com).</em></p>'),
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(104596, 5687, 'content', '<p class=\"p1\">A memorandum of agreement (“MoA”) is customarily the governing sales contract. Various standard form MoAs exist, the most widely used being a joint product of the Norwegian Shipbrokers’ Association and BIMCO. The latest version of this periodically updated MoA, and the subject of this article, is the “SALEFORM 2012”, better known as the Norwegian Sale Form 2012 (“NSF 2012”). The NSF 2012 and its preceding versions (notably the NSF 1993) have become industry standards within the UAE and most other popular shipping jurisdictions.</p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>Before Concluding the Memorandum of Agreement</strong></span></p>\r\n<p class=\"p1\"><em>Brokers &amp; Preliminary Negotiations</em></p>\r\n<p class=\"p1\">Before signing the MoA, there are several important stages. Generally a prospective buyer, or eager seller, will approach a ship broker as a first port of call. Brokers are ordinarily remunerated on a commission basis, conditional upon closing, calculated against the value of the vessel. Traditionally it is the seller who is legally responsible for the brokers’ commissions. The total brokerage fee is often split between the seller’s and buyer’s brokers, with an effective commission of one percent each. In practice there are many variations of this arrangement. Parties should be mindful that, contractually, brokers are invariably not party to the principal sale and purchase agreement.</p>\r\n<p class=\"p1\">Once a prospective sale is identified, the main terms are considered, with negotiations often led by the brokers. The extent of preliminary negotiations may vary, but will usually focus on larger items, such as; price, required deposit, lay dates for delivery, and inspections. Lawyers are often only engaged once these preliminary negotiations are complete.</p>\r\n<p class=\"p1\">Parties are cautioned to ensure these negotiations are not capable of unintentionally creating legally binding agreements. This could (and has) occur through inadvertently extending an offer capable of acceptance through a broker (as ostensible agent), or accepting such an offer. Such risks may be easily avoided by, for example, ensuring correspondences, or recaps, clearly assert that all terms are subject to execution of the MoA. The inclusion of phrases such as “subject to contract” in relevant exchanges have become good practice in this regard.</p>\r\n<p class=\"p1\"><em>Inspections &amp; Due Diligences</em></p>\r\n<p class=\"p1\">Before signing the MoA, buyers may seek a basic inspection of the vessel and copies of the main certificates. Whilst recourse is available for failed inspections after signing the MoA, a prospective buyer with no contractual obligations (or paid deposits) may more easily walk away from a sale should the vessel be patently unacceptable. Detailed inspections and surveys are usually performed after signing the MoA, as considered below.</p>\r\n<p class=\"p1\">Before signing, each party is also encouraged to perform a preliminary due diligence on the other. Modern vessel ownership is typically structured using single ship-owning entities registered in regulatorily friendly offshore jurisdictions. Opaque structures may obscure the identity and arrangement of one’s true contractual adversary. Similar to inspections, safeguards should also be employed in the MoA, for example; evidence of good standing, proof of vessel ownership, etc. And similarly, it is recommended to perform basic checks before committing to the MoA, after which it may be more difficult to avoid the sale if an unsatisfactory position is discovered.</p>\r\n<p class=\"p1\">Parties should also be aware of any financing relevant to the sale, before concluding the MoA. If the vessel is mortgaged, or otherwise encumbered, a prospective buyer will be eager to ascertain how clean title will be attained. A seller should also establish from the outset if the buyer intends obtaining financing. From a practical perspective there are various elements that require attention if debt, or equity, financing is applicable. For example; required deletions of registered mortgages, registration of new mortgages, permissible corporate structures, particular requirements of the lender, etc. Whilst it is beyond the scope of this article to consider ship finance in any detail, parties should be mindful that applicable financing will invariably affect some elements of the sale and purchase transaction.</p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>Sale in terms of the Memorandum of Agreement</strong></span></p>\r\n<p class=\"p1\">The NSF 2012, in its unamended form, extends just eight pages covering eighteen clauses. The short document is, however, remarkably versatile. It provides a roadmap of what is required by the parties before transfer of the vessel, what may be done if such requirements are not met, and how transfer of the vessel should take place. Here we consider the main terms.</p>\r\n<p class=\"p1\"><em>The Parties</em></p>\r\n<p class=\"p1\"><span class=\"s1\">The identities of the buyer and seller are not always immediately apparent. In practice, the named buyer will often be a special purpose vehicle (“SPV”). Alternatively, a mechanism permitting novation of the MoA is frequently sought by buyers who have not yet established a SPV to own the vessel at the time of signing the MoA. The buyer should also confirm the identity of the named seller, which should be the same entity listed as the officially registered owner of the vessel.</span></p>\r\n<p class=\"p1\"><em>Vessel Description, Purchase Price and Deposit </em></p>\r\n<p class=\"p1\">Two essential terms of any contract of sale are the property being sold (ie; the vessel) and its price. Both should be clearly stated.</p>\r\n<p class=\"p1\">Payment of a deposit by the buyer, to the value of 10% of the purchase price, is standard practice. The NSF 2012 affords the buyer three banking days to make such payment to a third party holder, after signing, and confirmation from the deposit holder that the relevant account has been opened. All things being equal, the deposit will ultimately be transferred to the seller on delivery of the vessel.</p>\r\n<p class=\"p1\"><em>Inspection</em></p>\r\n<p class=\"p1\">Inspection of the subject vessel, her records, and acceptance thereof is a requirement particularly susceptible to disputes. The various NSF versions have long taken the default position, and still do, of affording the buyer unfettered discretion to effectively either accept or reject the vessel on the basis of inspection.</p>\r\n<p class=\"p1\">To accept the vessel, the buyer is required to perform a positive action – the issuance of a written notice of acceptance to the seller. This should be provided within 72 hours of the inspection, unless stated otherwise. If accepted, the NSF 2012 deems the sale “<em>outright and definite</em>.” Should such notice not be forthcoming, the sale is automatically considered null and void, and the buyer is entitled to have its full deposit returned along with any interest it may have earned.</p>\r\n<p class=\"p1\">In practice the inspection clause is often keenly negotiated. Sellers may seek to amend the default position so that the inspection will only nullify the sale if defects are discovered, which cannot be rectified within a reasonable period of time. Buyers will likely seek to maintain total freedom to entirely avoid the sale if desired. Reliance on a purportedly failed inspection is a popular route for buyers seeking to avoid the sale for any number of reasons. Parties should also be mindful of the underwater or drydocking inspections the buyer is entitled to, although non-acceptance in this instance does not by default vitiate the sale, even if defects are found. In all cases, parties would be well advised to clearly stipulate their respective rights and obligations concerning inspections.</p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>Closing the Sale</strong></span></p>\r\n<p class=\"p1\"><span class=\"s1\">A ship sale and purchase transaction culminates with its “closing.” Here the buyer and seller (usually on the same day) exchange documents, make payment, and physically deliver and transfer the vessel. It requires careful coordination between various parties who operate in unison to ensure the sale successfully closes. Each party has its role to play. As an indication, some key participants on the day may include; seller and buyer (or authorised representatives), lawyers, bankers (both as financiers and for payments), flag state representatives, crew (old and new if replaced), brokers, class representative, insurers, with others potentially also required, normally not all in the same location, or even the same time zone. </span></p>\r\n<p class=\"p1\"><span class=\"s3\"> There are essentially three main elements to a conventional sale and purchase closing; (i) delivery of documents, (ii) delivery of the vessel, and (iii) payment. Closing often occurs through two simultaneous meetings – one onshore in a meeting room and the other onboard the vessel. Parties will establish communications between the two meetings, and with any required third parties. A “pre-closing” meeting may also occur as a dry run before final closing.</span></p>\r\n<p class=\"p1\"><em>(i) Delivery of Documents</em></p>\r\n<p class=\"p1\">Documentary exchange usually extends to two types of documents. Firstly, the delivery of vessel documents by the seller to the buyer. Secondly, delivery of all other documents stipulated in the MoA.</p>\r\n<p class=\"p1\"><span class=\"s1\"> Vessel documents are those directly associated with the continued operation of the vessel, often kept onboard. They may include; safety certificates, class certificates, technical documents, logbooks, manuals, plans, blueprints, etc. These documents are often exchanged at the ship meeting. Buyer’s representative onboard the vessel, commonly an appointed technical manager, will confirm the vessel documents are in apparent order to the onshore meeting. </span></p>\r\n<p class=\"p1\">The second portion of documents is all others required by the MoA. These are generally exchanged at the onshore meeting. The core documents provided by the seller to the buyer are:</p>\r\n\r\n<ul>\r\n 	<li><em>Bill of Sale</em></li>\r\n</ul>\r\n<p class=\"p5\"><span class=\"s1\">This is an important document, legally recording the sale between the parties, normally in a statutory or official form dictated by the flag state. As per the NSF 2012, it should be in a form recordable in the buyer’s nominated flag state, transferring title of the vessel and stating that the vessel is free from all mortgages, encumbrances and maritime liens. It should also be notarised, legalised or apostilled (as may be required). Parties should afford sufficient time to have this process completed, and also factor in costs. </span></p>\r\n\r\n<ul>\r\n 	<li><em>Evidence the transaction is authorised</em></li>\r\n</ul>\r\n<p class=\"p5\">Corporate entities should provide board and/or shareholders’ resolutions.</p>\r\n\r\n<ul>\r\n 	<li><em>Power of attorney appointing representatives</em></li>\r\n</ul>\r\n<p class=\"p5\">The actual execution of the necessary documents, and transfer of the vessel, should be completed by parties duly authorised to do so (buyer and seller).</p>\r\n\r\n<ul>\r\n 	<li><em>Certificate from registry evidencing current ownership</em></li>\r\n 	<li><em>Evidence of class</em></li>\r\n</ul>\r\n<p class=\"p5\">Here evidence is presented of the vessel’s good standing with a particular classification society.</p>\r\n\r\n<ul>\r\n 	<li>\r\n<div class=\"p6\"><em>Certificate of deletion from previous registry</em></div></li>\r\n 	<li><em>Commercial invoice</em></li>\r\n 	<li><em>Commercial invoice for bunkers &amp; lubes</em></li>\r\n</ul>\r\nOrdinarily a buyer will pay for the vessel’s bunkers remaining on board, as well as any unused lubricating and hydraulic oils. Practically, this is often directly deducted from the purchase price.\r\n<p class=\"p1\"><em>(ii) Delivery of the Vessel</em></p>\r\n<p class=\"p1\">Physical delivery of the vessel is facilitated through several stages. Firstly, the parties elect a place for delivery. In accordance with the NSF 2012 the seller is obliged to deliver the vessel at this location “s<em>afely afloat at a safe and accessible berth or anchorage.</em>”</p>\r\n<p class=\"p1\"><span class=\"s1\"> The parties will also record the lay dates for delivery, being the acceptable period within which delivery may take place. This is done through recording a particular date after which the seller may issue a notice of readiness (“NOR”). The NOR stipulates that the vessel is ready for delivery. Following its issuance, the buyer is obliged to accept such delivery, or risk being considered in default. The seller is obliged to keep the buyer abreast of when it intends tendering the NOR, with intermittent notices of twenty, ten, five and three days being required. </span></p>\r\n<p class=\"p1\">The parties will also record a “cancelling date.” The seller is obliged to tender the NOR before such date, failing which, the buyer is afforded the option to cancel the contract.</p>\r\n<p class=\"p1\">At closing, delivery of the vessel is achieved through two actions, which take place simultaneously. The first action is the <em>physical</em> delivery of the vessel by the buyer to the seller. There are various possibilities in this regard, depending on the circumstances of the sale. Sometimes representatives are placed onboard to communicate with the shore meeting that the vessel is handed over, as noted in the vessel’s log book. It may be accompanied with a crew change.</p>\r\n<p class=\"p1\">The other action is the <em>documentary</em> delivery of the vessel through the signing of a protocol of delivery and acceptance (“PoDA”). The PoDA records the exact time and place of delivery. It is generally regarded as evidencing the exact time title and risk pass from the seller to the buyer. It is ordinarily signed by the authorised representatives at the shore meeting once payment of the purchase price is confirmed.</p>\r\n<p class=\"p1\"><em>(iii) Payment</em></p>\r\n<p class=\"p1\"><span class=\"s1\">In accordance with the NSF 2012, the buyer is obliged to pay the balance of the purchase price, and release the deposit, “<em>on the delivery of the Vessel, but not later than three (3) Banking Days after the Notice of Readiness has been given.</em>” Aligning payment and delivery presents practical challenges, with international bank transfers often taking up to several working days. Various mechanisms have been developed to address this predicament. </span></p>\r\n<p class=\"p1\">One option is a suspense account. Here the buyer prepositions the funds with the seller’s bank for quick release upon its instructions. The release may be made in accordance with an irrevocable payment instruction from the buyer/its bank. This is often achieved through issuance of a SWIFT message, usually a MT 103, from the buyer’s bank to the seller’s bank instructing the payment. Often an accompanying SWIFT MT 199 message details when such payment may be made, and any applicable conditions (eg; receipt of the PoDA).</p>\r\n<p class=\"p1\"><span class=\"s1\"> Confirmation and payment letters are another option. The buyer’s bank may confirm it will initiate payment to the seller’s nominated account immediately following any specific action (eg; signing of the PoDA). A payment letter will accordingly be released at closing, neutralising any timing challenges.</span></p>\r\n<p class=\"p1\">An escrow agent is a further option. Here a third party is mandated to release funds received from the buyer (in advance), against agreed conditions.</p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>Conclusion</strong></span></p>\r\n<p class=\"p1\"><span class=\"s3\">The sale and purchase of a ship presents a variety of challenges, both legal and practical. Many of these may be overcome through careful planning and execution. The NSF 2012 remains a stalwart contract aimed at clearly guiding both buyer and seller through the process. As with sailing a ship, performed well, a sale and purchase will mostly be smooth sailing. Performed poorly, and she may quickly run aground. </span></p>'),
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(104614, 5687, '_yoast_wpseo_metadesc', 'The latest version of this periodically updated MoA, and the subject of this article, is the “SALEFORM 2012”, better known as the Norwegian Sale Form 2012 (“NSF 2012”).'),
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(104615, 5688, 'content', 'June - July 2017\r\n\r\n<hr />\r\n<p class=\"p1\">Blockchain is the technology used to maintain the digital currency bitcoin, and it can be used to facilitate instant payments. There is a public digital ledger of all Bitcoin transactions that efficiently shares and tracks information, and is highly suited to serve as a form of incorruptible and unalterable form of receipt, or proof of all transactions, shared on a network.</p>\r\n<p class=\"p1\">However the uses of blockchain technology extend far beyond Bitcoin, or even use at retail points of sale. Dubai believes that using blockchain technology on an Emirate-wide level will drive an efficient business public sector environment and accelerate its development as a trading and financial hub. Dubai Government agencies are now evaluating the potential of blockchain technology to track the import and export of goods traded across the MENA region. These agencies are currently collaborating with the global company IBM to achieve this.</p>\r\n<p class=\"p1\">Although blockchain technology has not yet been utilized widely for commercial use, the technology is attracting notice from major global players. Blockchain technology has attracted attention in the financial-services, supply-chain management, healthcare and shipping sectors. One global company testing the technology is Wal-Mart, which is using the technology to improve the way food is tracked, transported and sold to consumers across China.</p>\r\n<p class=\"p1\"><span class=\"s1\"> The shift to using blockchains could slash costs, including, for example the cost of maintaining and exchanging in real- time information about warehousing and inventory. The Dubai Department of Economic Development believes that the potential benefits may be immense. Blockchain technology offers the potential to speed up transactions, increase transparency and accountability in multiple dealings and reduce levels of fraud and money laundering. Trade is Dubai’s biggest business, and the use of blockchains could enable business and government to leap into paper-free systems, with smart and verifiable contracts, eliminating the multiple copies of paper documents used track, ship and sell goods.</span></p>\r\n<p class=\"p1\">Many factors remain to be considered before Dubai deploys this technology on a large scale. One area of concern is cyber security. Because the technology has yet to be used on a large scale, it remains to be seen whether the security will truly protect important transactional information in an impregnable fashion. Supporters of blockchains claim they are secure by design; however, a number of recent hacking attacks against digital currency records have raised concerns.</p>\r\n<p class=\"p1\">Another factor to be considered is regulatory uncertainty. In this regard, legal frameworks across the globe will have to adapt. Dubai aims to be at the forefront of the technology and to be the first city built on blockchains. Along with the challenge of adapting its legal framework, Dubai and its residents will face technical challenges to integrate blockchain databases with existing systems. Furthermore, additional factors include the high costs associated with the shift to the new technology.</p>\r\n<p class=\"p1\">Dubai has already initiated a citywide effort to use blockchains. Over the subsequent months, Smart Dubai, will run workshops to educate the public and private sectors about the technology’s potential, meet with government, semi-government and private organizations, to identify and prioritise the industries and services which can benefit the most from this technology, and implement pilot projects to be conducted this year. Smart Dubai is a project supported by a framework between government, private-sector and institutional partnerships to encourage engagement and collaboration in achieving the vision of His Highness to make Dubai the happiest city on Earth.</p>\r\n<p class=\"p1\">Major organisations in Dubai have already begun testing blockchain technology. The Dubai Department of Economic Development, the government agency which registers companies and business, issues commercial licenses and protects consumer and business rights, has shifted its entire business registration and licensing system to blockchain. Another participant in the shift is Emirates NBD Bank; in February 2017, Emirates NBD began cooperating with IBM to use blockchain for trade finance and logistics.</p>\r\n<p class=\"p1\">Dubai has set its eyes on accomplishing its goal to be a city built on blockchains by 2020. If it succeeds, Dubai will lead its business sector into the terrain of the future; a paper-free digital environment allowing information to be stored in a digitally secure, verifiable and incorruptible form.</p>'),
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(104630, 5689, 'content', 'June - July 2017\r\n\r\n<hr />\r\n<p class=\"p1\"><em>(1) Barclays Bank PLC (2) Credit Suisse Loan Funding L.L.C. (3) Midtown Acquisitions L.P. (4) Special Situations Investing Group Inc v Essar Global Fund Limited [2016] DIFC CFI 036</em></p>\r\n<p class=\"p1\"><strong>The New York Judgment</strong></p>\r\n<p class=\"p1\">A settlement agreement was reached between, amongst others, the claimant lenders and defendant borrower, Essar, in relation to a series of debts, whereby Essar would pay sums of money by installments. In February 2016, Essar was notified that events of default had occurred under the settlement agreement, triggering an obligation to pay immediately over US$412 million.</p>\r\n<p class=\"p1\">The claimants applied to the Supreme Court of the State of New York for a judgment by confession, a form of decision available under New York law which allows for judgment to be entered for a sum of money if a defendant confesses it is due in an affidavit and consents to the entry of judgment. Such a judgment is entered by a court upon the filing of the affidavit of confession by the creditor without any adversary proceedings. It is effectively a written statement signed by the defendant accepting liability for damages.</p>\r\n<p class=\"p1\">A judgment for US$171,769,169 was consequently issued on 25 August 2016 by the Supreme Court of the State of New York (‘the New York Judgment’).</p>\r\n<p class=\"p1\"><span class=\"s2\"> Essar did not appeal the New York Judgment. In October 2016, the claimants, through the third claimant, issued their claim form in the DIFC Courts seeking enforcement of the New York Judgment, and subsequently applied for immediate (summary) judgment. Five days later, Essar filed a motion before the Supreme Court of New York to vacate the New York Judgment on the grounds of fraud, misrepresentation and other misconduct. Essar argued that the judgment by confession mechanism was only to be used if there had been a default on the agreed payment programme, which there had not. Essar then filed a second motion before the Supreme Court of New York, alleging it had not been served or notified of the New York Judgment until after the judgment had been entered, and that judgment was issued in violation of the terms of the signed confession.</span></p>\r\n<p class=\"p1\">Justice Field was presented with several matters for judgment, of which two – the constitutionality of the DIFC Courts and their jurisdiction to recognise and enforce foreign judgments – were most important.</p>\r\n<p class=\"p5\"><span class=\"s1\"><strong>The Constitutionality of the DIFC Courts</strong></span></p>\r\n<p class=\"p1\"><span class=\"s3\">Essar contended that the DIFC Courts did not have jurisdiction to enforce judgments of foreign courts because matters of ‘foreign affairs’ are exclusively reserved to the UAE Federation by Article 120 of the Constitution of the UAE. The Court rejected this proposition. The judge found that ‘the expression “foreign affairs” in [Article 120] and related Articles in the Constitution connote the conduct of foreign policy as between states on the international plane, which is something wholly different from the recognition of a foreign judgment by the DIFC Courts’ (paragraph 32).</span></p>\r\n<p class=\"p1\">The Court further held that, even if such recognition and enforcement was within the scope of Article 120, an exception existed within the Constitution conferring jurisdiction on the DIFC Courts. It was not necessary to refer the matter to the Union Supreme Court.</p>\r\n<p class=\"p1\">The judgment of Justice Field concluded that the enforcement of the New York Judgment by the DIFC Courts was not a matter of foreign policy. It was instead founded on a rule of private commercial law and based on a voluntary, private or consensual quasi-contractual obligation assumed by Essar (paragraph 35).</p>\r\n<p class=\"p5\"><span class=\"s1\"><strong>The Authority of the DIFC Court of Appeal Judgment in the DNB Bank case on the Issue of Jurisdiction</strong></span></p>\r\n<p class=\"p1\"><span class=\"s4\">Essar argued that the finding of the DIFC Court of Appeal (CoA) in DNB Bank ASA v Gulf Eyadah Corporation &amp; another [2015] DIFC CA 007, specifically that the DIFC Courts have jurisdiction to recognise and enforce foreign judgments, was not essential to that judgment and therefore not binding because the defendant in that case abandoned its challenge to the jurisdiction of the DIFC Courts. Justice Field rejected this argument and held that the CoA decision in the DNB Bank case ‘dealt authoritatively’ with the question of whether the DIFC Courts had jurisdiction to enforce foreign judgments. They were consequently bound to follow this precedent. </span></p>\r\n<p class=\"p1\">According to the judgment, it was a ‘necessary inference’ that if the DIFC Courts have the power to execute a foreign judgment under Dubai law, they have the power to enforce that judgment by issuing a fresh judgment ordering the defendant to pay the sums owed under the foreign judgment.</p>\r\n<p class=\"p4\"><span class=\"s1\"><strong>Other Arguments</strong></span></p>\r\n<p class=\"p1\">The judge gave short shrift to Essar’s contention that because the New York Judgment did not result from adversarial proceedings, it was not capable of enforcement in accordance with common law principles (paragraph 48). He also rejected Essar’s argument that since the New York Judgment could be vacated on motion (application) pursuant to New York civil procedure rules, it could not be enforced as it was not final and conclusive on the merits, being a condition of enforcement. The judge emphasised the common law position that a judgment is capable of being executed upon being issued, whether or not there remains the theoretical possibility of an appeal (paragraph 50).</p>\r\n<p class=\"p1\">He dismissed assertions that immediate judgment should be refused because the New York Judgment was procured by fraud or in breach of the requirements of natural justice, or that there was a triable issue involving foreign law. Essar had contended that the non-dishonest misleading of a foreign court was sufficient to establish a defence to the enforcement of a foreign judgment. The judge found ‘on the contrary’ that the correct approach ‘requires that the foreign court be misled or deceived with a dishonest intention, this being the hallmark of the common law conception of fraud’ (paragraph 63). There was no triable question of foreign law because the judge was content that the judgment by confession was a final and conclusive judgment (paragraph 70).</p>\r\n<p class=\"p1\">The DIFC Courts judgment concluded that Essar had no real prospect of establishing any of its defences against the third claimant’s claim and that it was just and appropriate to reach that conclusion without a trial. The third claimant’s application for immediate judgment was granted.</p>\r\n<p class=\"p4\"><span class=\"s1\"><strong>Analysis</strong></span></p>\r\n<p class=\"p1\">It is perhaps surprising that these aspects of the DIFC Courts’ jurisdiction should be seriously challenged by respectable counsel before the Courts today, after considerable debate that has resulted in seemingly settled authority.</p>\r\n<p class=\"p1\">Nonetheless, the DIFC Courts entertained Essar’s submissions in full, with the judge thoroughly weighing the arguments on both sides before making his findings.</p>\r\n<p class=\"p1\">This judgment is welcome for the clarity it gives in answer to key questions about the DIFC Courts’ constitutionality and jurisdiction, and it affirms an established precedent in favour of foreign judgment creditors selecting the DIFC as their preferred jurisdiction in Dubai.</p>\r\n<p class=\"p1\"><span class=\"s5\"><em>Al Tamimi &amp; Company’s DIFC Courts Litigation Group regularly advises on enforcement matters. For further information please contact Tarek Shrayh (t.shrayh@tamimi.com) or Peter Smith (p.smith@tamimi.com).</em></span></p>'),
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(104645, 5690, 'content', 'June - July 2017\r\n\r\n<hr />\r\n<p class=\"p1\"><strong>Who owns it?</strong></p>\r\n<p class=\"p2\">In some cases, the client company has in-house technical capabilities to develop its own app. In this scenario, it is important to make sure that the terms of the employment agreements of the individuals working on the coding provide that the employer owns the intellectual property rights in the developed app. On the point of ownership of an employee’s work product, it should not be assumed that the law in the UAE, or elsewhere in the GCC, is the same as one might find in many other jurisdictions.</p>\r\n<p class=\"p1\"><span class=\"s2\"> Where it is necessary to engage an external developer to undertake the app development, the approach to ownership will depend on the nature of the app being developed. For example, an app that is basically an ‘off the rack’ or ‘white label’ product, which only requires minimal customisation for the client company, would not typically be owned by the client company. It would normally be adequate for an appropriate licence to be in place, providing the client company the right to use the app in the manner it requires, whilst making clear that the client company retains all rights in any aspects that it contributes to the customised app. In contrast, where a bespoke app is prepared by an external developer, essentially from scratch at the client company’s direction and specification, then it is very important to make clear that all rights in the app vest in the client company and the developer has no right to the app. Failure to address these issues at the outset may result in disputes as to ownership of the app.</span></p>\r\n<p class=\"p1\"><span class=\"s3\"> An engagement with an external app developer should also include details such as confidentiality obligations, licences of any third party content used in the development of the app, and also warranties of non-infringement (and indemnities in the event of infringement) of third party intellectual property rights. If the app is going to need technical support during a warranty period or ongoing technical support over a longer term, it would also be prudent to consider engaging the developer to provide this type of support.</span></p>\r\n<p class=\"p1\">Regardless of whether the app is developed externally or internally, consideration should also be given to the listing of the app in the relevant digital distribution platform (e.g. Apple App Store, Google Play, or Windows Store). We have encountered many instances where the client company had expected the app to be listed in its own name, only to find that it ended up being listed in the name of an employee or an external developer.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>What about broader legal and regulatory considerations?</strong></span></p>\r\n<p class=\"p1\">Another important preliminary consideration relates to the underlying business. If you are producing an app that is revolutionising microcredit, have you thought about whether there are any financial services regulations that might impact on what you are doing? If you are introducing an app that connects freelancers with people needing work done, could you be facilitating non-compliance with licensing laws or directly breaching labour laws? If your app is going to allow people to order overnight petrol deliveries to their homes, have you made sure you are compliant with the rules relating to distribution of fuel? If your app is going to permit ride sharing or consumer-to-consumer car hire, have you thought about whether the transport regulator might have something to say on that? If your app-based e-commerce business is, through its payment structure, essentially providing credit, have you considered whether the local Central Bank’s rules relating to digital payment providers may apply to you? If your app is going to bring fantasy sports to the Middle East, have you taken formal advice on whether it might be facilitating unlawful gambling? Is your ‘Muslim version of ‘Tinder’ going to be embraced by the local telecoms regulator?</p>\r\n<p class=\"p1\"><span class=\"s3\"> As much as you might think you are ‘disrupting’ existing business models, you need to appreciate that laws and regulations may already exist in the space in which your app is going to be operating. Just because what you are doing may be innovative and not fit neatly into existing legal requirements, it would be reckless to think that the rules do not apply to you or that you simply need not comply. In some instances, non-compliance could result in significant criminal penalties, including fines and imprisonment. </span></p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>What about app documentation?</strong></span></p>\r\n<p class=\"p1\">It would typically be necessary to have terms that set out the basis upon which consumers or end users use the app, and govern the arrangement between the client company and its customers. As well as the type of details that any agreement might have, such terms and conditions will really need to be tailored to the specific purpose of the app and the associated business processes. An app for online retailing would need details on the mechanics of shipping and returns. An app that acts as a platform for introducing maintenance service providers to property owners would need to include details on complaints and responsibility for unsatisfactory work. An app that introduces restaurants and provides a platform for reviews would need to include clear demarcation as to responsibility for the content of user reviews.</p>\r\n<p class=\"p1\">The customer-facing terms and conditions are one side of the equation. In many instances, there will also need to be back-end agreements with merchants and service providers. These agreements will address aspects that are quite different to those addressed in the consumer-facing terms and conditions but, to the extent that some of the aspects overlap, it will also be necessary to make sure there is no conflict.</p>\r\n<p class=\"p1\">Privacy policies that set out the type of personal data that is gathered via the app, the purposes for which such data is used and the basis for such use, are also very important. In the GCC, where issues relating to personal data protection are generally not well-addressed in legislation, there are certain minimum requirements that should be met. It is also prudent to try to take an ‘international best practice’ approach so as to limit risk and future-proof this aspect of the operation. This is particularly important in circumstances where developments in personal data protection regulation outside the region may have an impact on the processing of personal data within the region.</p>\r\n<p class=\"p1\">It is also important to bear in mind the requirements of the relevant digital distribution platforms when it comes to developing user terms and conditions and privacy policies so that the documentation does not conflict with any of the platform requirements. Obviously, familiarising yourself with the platform requirements is a fairly fundamental consideration for the entire project and it would be sensible to do so early in the process.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>What about registering intellectual property rights?</strong></span></p>\r\n<p class=\"p1\">Preliminary trade mark clearance searching in the relevant markets for the name and logo under which the app is to be made available is important. A third party’s prior trade mark rights could act as a barrier to the use of the proposed name or logo and provide a basis for a trade mark infringement action. Additionally, registering the app’s name and logo would provide a basis for action against others subsequently seeking to use an identical or confusingly similar name or logo for similar offerings. A trade mark registration also provides a clear legal right that can become an asset for the purposes of valuation or sale of the associated business. Further information on considerations relating to trade mark protection for apps may be found in the article “How to Protect Your Trademark Smartly” in the November 2013 edition of Law Update.</p>\r\n<p class=\"p1\"><span class=\"s2\"> We are often asked if it is necessary to register copyright in software code. Copyright subsists in a copyright work without the need for any registration, although in the UAE (unlike in most countries) a copyright registration system also exists. The registration of copyright in the original coding of an app might be useful if one were seeking evidence of ownership of copyright in the software code, although our general view is that it should not be considered essential to register copyright in software code in the UAE. If one were to initiate a formal dispute as to the ownership of copyright in software code in the UAE, it may ultimately be necessary to submit proof of ownership of copyright in the software code in the form of a UAE copyright registration certificate, but seeking to register copyright at the outset to provide for this possibility may not be the most commercially pragmatic approach.</span></p>\r\n<p class=\"p1\">Care should also be taken to ensure that the app does not infringe copyright by incorporating any third party content (be it software code or ‘creative’ content such as images, graphics, text, or music) without the necessary authorisations.</p>\r\n<p class=\"p1\">The relevance of patent protection to apps is fairly nuanced. Copyright is the typical intellectual property right under which software, including apps, is protected. Patent protection relates to inventions that are novel and have an inventive step. The extent to which software or associated business processes might be eligible for patent protection varies considerably around the world. The position in the UAE is that computer programs as such are excluded from patentability, whereas computer programs suitably linked to hardware and presented as a technical solution to a technical problem might be considered eligible for patenting. This is broadly similar to the position in Europe.</p>\r\n<p class=\"p1\">Besides the question of whether an app is likely to be patentable from a technical perspective, consideration should also be given to the issue of whether seeking to patent the app makes commercial sense. Would the cost and timeframe associated with seeking a patent align with the potential commercial benefit and likely lifespan of the app? Would a patent or a pending patent application, actually add value to the business beyond the value associated to other intellectual property (e.g. copyright and trade marks) already associated with the app? Seeking to patent an app should not be considered absolutely essential in every case, although it is something to consider on a case by case basis.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>What next?</strong></span></p>\r\n<p class=\"p1\"><span class=\"s2\">Documenting proper arrangements with the developer, be it an employee or third party service provider, is essential. Consideration should be given to whether there might be any underlying legal or regulatory restrictions on what the app is proposing to do, how it is proposing to do it, and whether the terms of the relevant digital distribution platforms might also preclude what you have in mind. Suitable front-end and back-end documentation also needs to be prepared. It is also sensible to consider whether any intellectual property rights should be cleared or registrations sought. </span></p>\r\n<p class=\"p2\"><span class=\"s2\"> </span></p>\r\n<p class=\"p1\"><span class=\"s2\"><em>Al Tamimi &amp; Company’s Technology, Media &amp; Telecommunications team regularly advises on mobile app development related issues. For further information please contact Nick O’Connell (n.oconnell@tamimi.com) or Andrew Fawcett (a.fawcett@tamimi.com).</em></span></p>'),
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(104664, 5691, 'content', 'June - July 2017\r\n\r\n<hr />\r\n<p class=\"p1\">The Middle East &amp; North Africa Cloud Alliance, or “MENACA”, is an industry association that seeks to identify and resolve issues around cloud adoption in the Middle East &amp; North Africa. As an organisation set up to help the cloud industry develop, it is vendor-agnostic (not tied to the products of a specific manufacturer) and has diverse members ranging from global technology giants to local data centre operators, academic institutions, and thought leaders. Al Tamimi &amp; Company is a member of MENACA and provided input on MENACA’s Cloud Competitiveness Index 2017 for the GCC region, launched recently in Dubai. The aim of the Index is to turn publicly available data into insightful knowledge that might help advance cloud computing in the region.</p>\r\n<p class=\"p1\">The Index provides a general overview of core issues relating to cloud computing in the region, including issues relating to the licensing of cloud-related operations, information security, data protection, data sovereignty, and lawful access issues. These issues, and a variety of other issues fundamental to the development of the cloud industry (and therefore fundamental to the move towards digitalization in commerce, industry, and society), were discussed by speakers and attendees at the launch event.</p>\r\n<p class=\"p1\">Governments in the region are keen to innovate and a key aspect of this is the move towards greater use of data in developing policy, allocating resources, delivering services within government entities and to the public. Despite this, lack of clarity around the use of the cloud, inconsistency between approaches taken by different entities, and concerns around data residency and security are hindering uptake.</p>\r\n<p class=\"p1\">The roles of various players involved in delivery of cloud services are developing. Telecommunications service providers are able to leverage their technical skills, networks, and infrastructure to position themselves as fundamental to the cloud ecosystem. Data centre providers are moving away from simply providing data warehouses that dedicate a set of resources to particular computing technology, application, or line of business, to providing converged infrastructure, that pools and shares information technology resources, enhancing data centre efficiency. Managed service providers, who manage information technology infrastructure and end-user systems remotely, are becoming increasingly well placed to perform a brokering-type role for cloud services. Cloud service providers are enhancing their competence in interoperability and integration technologies, and systems integrators are having to move from simply providing hardware, software, and integration services, to providing long-term business solution integration.</p>\r\n<p class=\"p1\">In this context, the Index identified the important role that universities and training establishments have in trying to ensure that there are enough skilled workers to support the ongoing development of cloud infrastructure and cloud-based services in the region. Failure to address education in this area, both in terms of making the sector appeal as a career choice and in terms of ensuring high quality technical competence amongst trainees, has potential to be a major impediment to development.</p>\r\n<p class=\"p1\">In its conclusion, the Index highlights the role that cloud technology plays in enabling the likes of Smart Cities, Internet of Things, Big Data, and summarises three key take-away points on which the GCC needs to focus in order to ensure that the benefits of cloud technology are harnessed for these types of purposes. These can be summarized as Regulation, Price, and Talent.</p>\r\n\r\n<ul>\r\n 	<li><strong>Regulation</strong>: The Index highlights that clarity is required in areas such as cloud-specific regulations, data protection, data breach notification obligations, and law enforcement access to data. The Index asks whether the GCC might be able to learn from the mistakes of other countries and regions and take a consistent, collective approach to regulating these issues.</li>\r\n 	<li><strong>Price</strong>: The Index notes that cloud uptake requires access to reliable, high-speed infrastructure at a reasonable price so as to be competitive but many of the countries in the region score poorly on affordability when it comes to connectivity. The Index asks whether policy makers in the GCC might be able to incorporate adequate network access policies into their ICT visions.</li>\r\n 	<li><strong>Talent</strong>: The Index highlights an increasingly widening talent gap as a major challenge and suggests that local labour markets will have to improve to attract and retain global talent. It suggests that the effort that has successfully helped the rankings of various GCC centres as desirable places to do business could also be harnessed to providing an environment that helps to develop, attract, and retain skilled workers.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p4\">Cloud-based infrastructure and solutions will continue to provide the backbone for the rapid innovation that is swiftly becoming ubiquitous. The cloud needs to be embraced rather than viewed with suspicion. There is a lot of work to be done in the region to ensure that the benefits of cloud can be leveraged to the greatest extent possible.</p>\r\n<p class=\"p1\"><span class=\"s1\"><em>For further information on MENACA and the Cloud Competitiveness Index 2017, please visit: www.menacloud.org .</em></span></p>\r\n<p class=\"p1\"><em>For further information on issues relating to cloud computing, be it from a vendor or customer perspective, please contact Nick O’Connell (n.oconnell@tamimi.com) or Andrew Fawcett (a.fawcett@tamimi.com). </em></p>'),
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(104679, 5692, 'content', '<p class=\"p1\">The term “fintech” previously referred to back-end technology in the financial services sector; think software and information technology solutions relating to banks and insurance companies. More recently, the term has come to mean broader technological innovation in the financial services sector, including things like app-based retail banking, peer-to-peer lending and share-trading platforms. The term also refers to payment platforms that circumvent the roles of traditional financial services players, finance training platforms, distributed database / block-chain technologies, and crypto-currencies such as bitcoin. In some instances, fintech solutions might address gaps in existing financial service offerings, including in circumstances where an opportunity is best addressed by a more nimble and more entrepreneurial operation, unhindered by the bureaucratic processes and legacy technology issues that may slow down more established institutions.</p>\r\n<p class=\"p1\"><span class=\"s1\"> Regtech also seeks to utilise innovative technologies, such as Artificial Intelligence, block chain, big data analytics, cloud computing and biometrics. However, its core purpose is to address compliance and risk management issues, and enabling more effective management of compliance costs and reducing operational risks.</span></p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>DIFC’s FinTech Hive Accelerator programme </strong></span></p>\r\n<p class=\"p1\"><span class=\"s3\">In January 2017, the Dubai International Financial Centre launched the FinTech Hive Accelerator programme, providing a platform for financial services and technology firms to build solutions for the financial sector. Supported by Accenture, the programme runs over twelve weeks during which time participants have the opportunity to develop, test, and modify their fintech innovations in collaboration with top executives from the DIFC and regional financial institutions. It is intended to provide a platform allowing concepts to be fast-tracked into tried and tested commercially viable propositions.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> Participants receive access to leading financial services firms and executives, involving both mentoring, insight, and direct feedback from target user groups. The programme also involves workshops and discussions on relevant topics such as procurement, regulation, and industry trends. </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> The Dubai Financial Services Authority (the regulator for the DIFC) has also proposed that fintech businesses that meet certain qualifying criteria will receive an ‘Innovation Testing Licence’ (discussed elsewhere in this edition of Law Update), reflecting the nature of the activities to be undertaken during the testing phase. Graduation from the testing phase would be a step towards obtaining a full Financial Services Licence.</span></p>\r\n<p class=\"p2\"><strong>ADGM’s ‘sandbox’ and the FSRA’s Regulatory Laboratory Guidance </strong></p>\r\n<p class=\"p2\">In our June/July 2016 edition of <em>Law Update</em> we wrote about the Financial Services Regulatory Authority (FSRA) of the Abu Dhabi Global Market and its Consultation Paper No. 2 of 2016 regarding a proposed regulatory framework to support participants deploying innovative technology within the financial services sector. The Consultation Paper proposed the creation of a ‘regulatory laboratory’ or ‘sandbox’, intended to provide a safe environment, within controlled boundaries, for businesses to test, develop, and provide innovative fintech products.</p>\r\n<p class=\"p1\"><span class=\"s1\"> In November 2016, the FSRA (the regulator for the ADGM) issued its FinTech Regulatory Laboratory Guidance, which sets out the FSRA’s approach to the RegLab framework. In May 2017, media reports indicated that ADGM has approved its first batch of RegLab participants, comprising five fintech startups with various innovative offerings. Participants will be granted a ‘Financial Services Permission’ (also discussed elsewhere in this edition of Law Update), by the FSRA, to carry on the regulated activity of developing financial services technology within the RegLab. </span></p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>What next?</strong></span></p>\r\n<p class=\"p1\">The application of new technologies in the financial services sector has potential to bring clear, practical benefits. Besides DIFC and ADGM, others in the region are looking at accommodating fintech development by providing receptive environments. Notably, the Bahrain Economic Development Board has partnered with a Singapore fintech consortium to develop a fintech ecosystem and regulatory framework for Bahrain.</p>\r\n<p class=\"p1\"><span class=\"s1\"> For fintech developers each of these initiatives offer an attractive opportunity to test products under lighter restrictions and regulations in an environment that has committed itself to becoming a centre of fintech excellence in the Middle East.</span></p>\r\n<p class=\"p2\"><span class=\"s1\"> </span></p>\r\n<p class=\"p1\"><span class=\"s1\"><em>Al Tamimi &amp; Company’s Technology, Media &amp; Telecommunications team regularly advises on legal issues to do with the development of new technology, and works closely with specialists in our Banking &amp; Finance team with regard to issues relating to the use of technology in the regulated financial services sector. For further information please contact Nick O’Connell (n.oconnell@tamimi.com).</em></span></p>'),
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(104694, 5693, 'content', 'June - July 2017\r\n\r\n<hr />\r\n<p class=\"p1\">However, in the wake of the Edward Snowden whistleblowing leaks that revealed mass foreign surveillance wiretaps of the Internet, a number of governments are considering implementing data localisation laws.</p>\r\n<p class=\"p1\">In practice, data localisation laws are highly likely to fragment the Internet resulting in inefficiencies and greater costs. Many recent technological advances may be affected or impeded by such laws.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>What is Data Localisation?</strong></span></p>\r\n<p class=\"p1\">Data localisation laws require that businesses that operate on the Internet, store and process data within the country where the businesses are located rather than servers overseas. Businesses that do not comply can be barred from doing business in that country or receive substantial fines.</p>\r\n<p class=\"p1\">Late last year the Russian’s communication authority, the Roskomnadzor, blocked access to the LinkedIn website to comply with a Moscow City Court ruling that LinkedIn was in breach of Russian laws that require websites to store personal data of Russian citizens on servers in Russia. LinkedIn reportedly had argued that the laws should not apply as LinkedIn does not have a physical presence in Russia and that its activity is international and not specifically directed at Russia.</p>\r\n<p class=\"p1\">The common justification for data localisation is the assumption that placing data abroad jeopardises security and privacy. However, it does not necessarily follow that data localisation will actually prevent surveillance, as physical access is not technically necessary in order to conduct such activities. Furthermore, data localisation laws can be used as a means for governments to ensure that data is more readily available to their own domestic law enforcement.</p>\r\n<p class=\"p1\">In November 2013, Richard Salgado, Google’s director of law information and information security is reported to have told a US congressional panel “If data localisation and other efforts are successful, then what we will face is the effective Balkanization of the Internet and the creation of a ‘splinternet’ broken up into smaller national and regional pieces, with barriers around each of the splintered Internets to replace the global Internet we know today.”</p>\r\n<p class=\"p1\">Some consider that data localisation laws can be used by countries as a trade protection strategy used to provide local businesses with competitive advantage to increase their share of domestic IT markets otherwise dominated by global IT companies. The reality is that any economic gains will be likely limited to a few local sectors, such as data centres. Such gains are likely to be small compared to the potential harm done to the remainder of the digital economy.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Where are these Laws Being Introduced?</strong></span></p>\r\n<p class=\"p1\"><span class=\"s2\">Data localisation laws already exist in various forms and degrees in several developed and developing countries.</span></p>\r\n<p class=\"p1\">Vietnam requires Internet service providers to maintain copies of data within Vietnam to allow for possible government inspection. Australia prohibits the transfer of health data out of Australia in some situations. Indonesia requires companies to have data centres and disaster recovery centres the territory of Indonesia.</p>\r\n<p class=\"p1\"><span class=\"s2\"> Arguably, although not strictly classed as a data localisation law, the EU’s Data Protection Directive (and its successor, the General Data Protection Regulation), could be considered as effectively requiring data localisation because of the Directive’s restrictions on transferring personal data to non-EU countries.</span></p>\r\n<p class=\"p1\"><span class=\"s3\"> However, there is a newer more worrying trend emerging of more comprehensive data localisation laws with greater global reach. The previously mentioned law in Russia requires that any personal data of Russian citizens to be stored and processed within Russia. The law also requires the disclosure of the location of these data centres to the Russian authorities.</span></p>\r\n<p class=\"p1\">Recently the Cyberspace Administration of China called for public comments on its draft “Security Assessment for Personal Information and Important Data Transmitted Outside of China”. These measures include a significant expansion of the data localisation measure that potentially applies to all businesses collecting data in China.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Some Developments in the GCC</strong></span></p>\r\n<p class=\"p1\">A public consultation document issued in July 2016 by Saudi Arabia’s Communications and Information Technology Commission (“CITC”) called for comments on proposed Regulation for Cloud Computing.</p>\r\n<p class=\"p1\"><span class=\"s4\"> The draft regulatory framework provides that “User Content” (defined as any data provided or generated under a contract for cloud services) will be subject to different levels of information security, depending on its sensitivity, origin, and other criteria. </span></p>\r\n<p class=\"p1\">It is proposed that no “Level 3” User Content can be transferred outside Saudi Arabia for whatever purpose and in whatever format, whether permanently or temporarily (e.g. for caching, redundancy or similar purposes).</p>\r\n<p class=\"p1\">While “Level 4” concerns highly sensitive or secret content belonging to concerned governmental agencies or institutions (and it is understandable that there may be a reason to localise such content), the “Level 3” classification in the proposed regulations is broader and includes “sensitive User Content of private sector companies or organisations”. What is “sensitive” is not defined.</p>\r\n<p class=\"p1\">Cloud service providers are to presume that “Level 3” information security is to apply to any government authorities or agencies.</p>\r\n<p class=\"p1\">This proposed regulation can be contrasted with information security controls currently in place in the UAE. The National Electronic Security Authority (“NESA”) has developed the ‘UAE Information Assurance Standards’ (“IAS”) which include security controls for cloud computing. Compliance with the IAS is only mandatory for “UAE government entities and other entities identified as critical by NESA” (e.g. operators of critical IT infrastructure) - although NESA has recommended that all UAE entities who are not strictly subject to the IAS requirements should adopt them as a matter of best practice.</p>\r\n<p class=\"p1\">While the IAS does not prohibit cloud services, it does require an entity to define information security requirements covering the retention, processing and storing of data in cloud environments, which requires the consideration of regulatory and other requirements potentially limiting the processing, and storage of information in external entities for example, laws or business agreements preventing certain types of information from being stored outside national borders.</p>\r\n<p class=\"p1\">This approach of mandating only that an entity must expressly turn its mind to what data it is storing outside national borders and the security of that information in the context of what is best for its particular operations is preferable to having a blanket prohibition that requires data localisation. This appears to provide more scope for balancing business and national interests.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Where Should Data be Stored?</strong></span></p>\r\n<p class=\"p1\">If data localisation becomes commonplace, determining what data must be stored in which country may be easier said than done.</p>\r\n<p class=\"p1\">If Company X is headquartered in India but has subsidiaries around the world, does that mean that under data localisation laws all of Company X’s data would have to be stored in India by the cloud service providers it uses to manage its online operations? Alternatively, should localised data be stored in the country of each Company X subsidiary? Will the country of incorporation matter or just the country where the relevant office or employee is located?</p>\r\n<p class=\"p1\">There are no clear answers as matters currently stand. Much will depend on how each jurisdiction drafts its data localisation laws on the issue.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>What Does This Mean For Companies?</strong></span></p>\r\n<p class=\"p1\">Data localisation laws create a significant barrier to companies seeking to expand their international presence. Widespread data localisation will require global service providers to build or rent physical infrastructure in each jurisdiction that requires data localisation. The associated costs and administration burdens will likely make the provision of many global services currently taken for granted by Internet users impractical.</p>\r\n<p class=\"p1\">Most markets in the GCC may be too small for many companies (e.g. start ups and app developers) to justify paying the costs associated with data localisation and consequently, a blanket imposition of data localisation by a GCC government means that the local markets risk getting left behind in the digital economy.</p>\r\n<p class=\"p1\"><span class=\"s4\"><em>Al Tamimi &amp; Company’s  Technology, Media &amp; Telecommunications team regularly advises on legal issues to do with information security  and data localisation.  For further information please contact  Andrew Fawcett (a.fawcett@tamimi.com) Nick O’Connell (n.oconnell@tamimi.com).</em></span></p>'),
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(104700, 5693, 'pageSummary', 'The borderless nature of the Internet has enabled the development of the digital economy and revolutionary technical innovations. It has become easy for companies (large and small) to achieve a global reach.'),
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(104709, 5694, 'content', 'June - July 2017\r\n\r\n<hr />\r\n<p class=\"p1\">Today, it is not unheard of for commercial and industrial companies to come under the same level of sophisticated attack that was once reserved for states. The increasing use and reliance on technology and the proliferation of new technological devices have made us more vulnerable now than ever before. To make matters worse, sophisticated crime syndicates are using encryption to hide their activity. Consequently, any company, government entity, non-profit organisation, or individual that uses computer systems or the Internet is susceptible to a cyber attack. The drivers for these crimes are varied and include extortion, commercial sabotage, hacktivism, cyber spying, cyber terrorism, and cyber warfare. There is particular concern about the vulnerability of the healthcare sectors in many countries as they process vast amounts of sensitive personal data.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Attacks in the Middle East</strong></span></p>\r\n<p class=\"p1\">The Middle East has long been a target for various types of cyber attacks.</p>\r\n<p class=\"p1\">The Shamoon attack on oil giant Saudi Aramco in 2012, described by former US defence secretary Leon Panetta as the most destructive cyber attack on a private business then seen to date, is believed by US officials to have been the work of hackers working on behalf of the Iranian government. In that attack, the virus crippled 35,000 computers at Saudi Aramco within hours by overwriting the master boot record and rendering their computers inoperable. Earlier this year, the Saudi government warned organisations in the Kingdom to be on the alert for variants of the Shamoon virus, following attacks on various ministries and government agencies. Given the continued conflicts in the region, such attacks are expected to increase.</p>\r\n<p class=\"p1\">At the time of writing, the WannaCry ransomware hack has indiscriminately hit 200,000 targets in at least 150 countries. Ransomware is a type of malicious software that blocks access to a computer system until a sum of money is paid. According to Symantec, Saudi Arabia is the most targeted country for ransomware attacks in the Middle East and Africa region, followed by the UAE.</p>\r\n<p class=\"p1\"><strong>Potential losses resulting from cyber attacks</strong></p>\r\n<p class=\"p1\">The frequency and severity of cyber attacks increases year-on-year, and it is now imperative that organisations take a proactive strategy to manage them. Such strategies need to be targeted to ensure:</p>\r\n\r\n<ul>\r\n 	<li>the preservation and continuity of commercial operations;</li>\r\n 	<li>protection of commercially sensitive information and valuable intellectual property;</li>\r\n 	<li>protection against the theft and misuse of sensitive and personal information of employees and staff;</li>\r\n 	<li>prevention of fraud; and</li>\r\n 	<li>minimal brand damage and loss of good will.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p3\"><span class=\"s1\"><strong>Protecting against, and recovering from, cyber attacks</strong></span></p>\r\n<p class=\"p1\">A multi-pronged approach should be taken to deal with this threat in a way that covers all bases, including:</p>\r\n\r\n<ul>\r\n 	<li>using information technology systems and products that were originally designed with security in mind;</li>\r\n 	<li>finding and fixing vulnerabilities before an attacker can try to exploit them;</li>\r\n 	<li>properly vetting new employees, agents and contractors who have access to information technology systems;</li>\r\n 	<li>deploying both proactive and reactive cyber security solutions;</li>\r\n 	<li>establishing internal security policies and plans for defending against attacks (and testing such plans through the use of exercises);</li>\r\n 	<li>preparing and promptly implementing disaster recovery in the event of a cyber attack;</li>\r\n 	<li>placing ‘best effort’ obligations on service providers to perform remedial action against virus contamination. This includes ensuring restoration of data from backups maintained by the service providers, locally stored data, and backups maintained by the customer as well as reconstructing lost or corrupt data;</li>\r\n 	<li>obtaining cyber security insurance. Note however that this type of insurance can be difficult to source as only specialised underwriters and IT experts have the requisite expertise to even come close to appropriately pricing the insurance risk. Even then, the actuarial estimate of the insurable risk is unlikely to be accurate as estimates of total annual loss due to cyber risk vary greatly from around $100 billion to over $1 trillion; and</li>\r\n 	<li>a right to terminate the contract where the service provider is not able to restore the service promptly following an attack. This leverage ensures immediate attention, and as a last resort, allows the customer to engage another service provider to restore the services.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p6\">Customers should review their existing IT contracts to ensure they contain sufficient obligations on the technology vendor or IT service provider to comply with the measures above. Where the contract does not address these issues, the customer should seek to raise these concerns with vendors and service providers with a view to having terms amended to address these types of essential concerns.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Conclusion</strong></span></p>\r\n<p class=\"p1\"><span class=\"s2\">Organisations can no longer afford to ignore cyber security threats and must put in place systems and processes to defend against and recover from cyber attacks. The recent global Wannacry ransomware hacks are a clear reminder of this. Financial institutions, healthcare providers, government agencies, airlines and online businesses are particularly vulnerable and should undertake an internal review to identify and address any weaknesses.</span></p>'),
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(104724, 5695, 'content', 'June - July 2017\r\n\r\n<hr />\r\n<p class=\"p1\">A lot of filmmakers start their creative output by financing their own films – small budget short films, paid with credit cards and assisted by the provision of free services, friends as cast and borrowed equipment. It all contributes towards the growth of the filmmaker, but at some stage any filmmaker with ambition is going to want to expand beyond this into larger longer films, with multimillion-dollar budgets. So just how are such films financed? For those that dream of a life behind the camera, we take a look at the various ways in which a filmmaker can strike a film finance deal.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Pre Sales</strong></span></p>\r\n<p class=\"p1\">The traditional method of financing films comes from pre-selling the distribution rights to the film to sales agents or distributors in certain key territories in advance of the production. This not only raises funds, but allows the filmmaker to promote the sales agent’s or distributor’s interest in the film, when negotiating for other forms of finance from third parties. Third party financiers are likely to be more interested in providing money to a film that has at least a chance of being released to cinema.</p>\r\n<p class=\"p1\">The filmmaker should always aim to seek an advance on the eventual returns from the film, which not only provides much-needed funding for the production of the film, but demonstrates the sales agent’s or distributor’s intention to actually take the film once it is complete. In the optimum pre-sales deal, the advance would be provided before pre-production, meaning that the money could be used to fund the production of the film. It is important to note that pre-sale advances are more likely to be paid to films with box office ‘draws’ in key cast or, in some cases, the director role. As one would expect, distributors will value an experienced and well-known director above a talented but unknown first time director.</p>\r\n<p class=\"p1\">In practical terms, the availability of distribution advances has significantly dropped in the digital age and is almost non-existent in the Middle East. However, obtaining a sales agent or distribution agreement at the earliest time possible is still desirable commercially. Such an agreement can significantly increase a filmmaker’s chance of obtaining other forms of third-party finance. To ensure that the distribution agreement is going to be advantageous, despite the failure to procure an advance, the filmmaker should seek the inclusion of a minimum guarantee in relation to the revenue that the film will raise. This is clearly an advantageous commercial term for the filmmakers, as it provides the distributor with an incentive to maximise its efforts to distribute the film and to increase potential revenue. As return of their investment, finance will generally be the goal of any third party financier, they will view the inclusion of a minimum guarantee as indicative of the films potential for commercial success.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Government Funding and Rebates</strong></span></p>\r\n<p class=\"p1\">Many governments across the globe provide incentives for filmmakers to undertake some or all of the production process within their borders. They view filmmaking as an excellent means of bringing in business but many also view it as culturally important to encourage filmmaking. Others also view it as part of their tourism development.</p>\r\n<p class=\"p1\">Whatever the reason, it is crucial that a filmmaker become familiar with the various incentives that could be used to either finance the film directly (grants or investment), provide rebates against costs incurred in the country, or provide a tax benefit. These change regularly, and filmmakers should keep themselves up to date on new incentives and changes to older schemes. Remember that incentives can be provided by governments in smaller territories – some of the states within the USA have their own schemes. In a further article published in this edition, we have provided a summary of the current incentives applicable to filmmakers wishing to film in Abu Dhabi.</p>\r\n<p class=\"p1\">Film finance that is provided by any government entity usually involves long and complex agreements. These will include clauses which determine the way revenue will be applied (known as the ‘waterfall’ in film circles). Whilst the entire agreement is incredibly important and should be reviewed in detail, the waterfall is an also an important part of the entire film deal and must properly reflect not only the government position as a financier, but must take into account all other parties that may have an investment position or a<span class=\"s2\"> right to a deferred payment. Whilst taking the time to ensure this is correct might not take priority in the midst of planning for the production of a film, it is incredibly difficult, if not impossible, to re-negotiate these terms later. This may mean that the filmmaker themselves have to sacrifice their own share of the film revenue to fix any errors that become apparent at a later date.</span></p>\r\n<p class=\"p3\"><span class=\"s3\"><strong>Bank Gap Finance</strong></span></p>\r\n<p class=\"p1\"><span class=\"s2\">Internationally, there are only a few banks that are interested in providing gap finance to filmmakers for film production; that is a small amount as a high interest loan, provided in order to complete the film. However, it is important to note that gap finance terms will always require payment first from the returns that come in from the film. They generally only finance a small percentage of the film budget – possibly the last 5-10%. They do also charge high interest in their investment. Therefore, approaching a bank for money for a film is generally only considered as a last option for a filmmaker, used when they have exhausted all other avenues and find that they are slightly short on the final total budget. On the positive side, once banks have been repaid their investment, they generally no longer have a stake in the film, leaving any subsequent returns for the filmmaker!</span></p>\r\n<p class=\"p3\"><span class=\"s3\"><strong>The Angel Investor</strong></span></p>\r\n<p class=\"p1\"><span class=\"s2\">There is no doubt that many filmmakers dream of meeting a person with disposable funds and a desire for involvement in the creation of an independent film – the so-called ‘angel investor’. In reality, these people are hard to find, but from time to time high net -worth individuals do provide money for film production.</span></p>\r\n<p class=\"p1\"><span class=\"s2\"> An angel investor will have their own reasons for being involved in the project and filmmakers should ensure that they clearly understand these goals from the outset. Some investors are seeking a tax break and so their main commercial goal will be to ensure that the film is produced in such a way (or in such a location) that guarantees that they can claim that tax break. Some investors will want to have copyright ownership in the film as part of their consideration for providing the finance but some may actually need to have copyright ownership in order to achieve their own financial goals. Filmmakers are generally uncomfortable with any deal that removes their ownership and control over the rights to their film, but this desire has to be balanced against the level of finance that is being provided by the investor; if an investors is prepared to provide a high percentage of the film’s budget, they are right to pursue (or negotiate?) some level of ownership. In this case, it is best to take advice about the establishment of a special company (known as an ‘SPV”) to own the film rights, with the filmmaker and investor both listed as shareholders in the SPV.</span></p>\r\n<p class=\"p3\"><span class=\"s3\"><strong>Conclusion</strong></span></p>\r\n<p class=\"p1\"><span class=\"s2\">In securing finance for a film at any stage, it is important to remember that the financier is generally interested in the way in which the investment is going to provide a return to their portfolio. It is rare to find a finance source that is satisfied with the simple act of investing as a gesture of support for a filmmaker’s vision. On the other side, filmmakers are always determined to ensure that the concept and direction of the film are not compromised by the insertion of the wrong cast member, the incorrect soundtrack, or the inappropriate design element. It is also important however, to ensure that the deal for finance does not end up compromising the filmmaker’s control or vision. Deals must be carefully crafted and properly documented in order to ensure that the financier is aligned with the filmmaker’s dream. The above represents only a small insight into some of the commercial and legal issues associated with film finance – filmmakers are strongly advised to carefully consider their options, reviewing the commercial deal points and reading the agreements from any finance source. Their own position as filmmaker and their own potential to earn any future revenue depends on it.</span></p>\r\n<p class=\"p2\"><span class=\"s2\"> </span></p>\r\n<p class=\"p1\"><span class=\"s2\"><em>Al Tamimi &amp; Company’s Technology, Media &amp; Telecommunications team advises both filmmakers and financiers on the commercial and legal issues associated with film production. For further information, please contact Fiona Robertson (f.robertson@tamimi.com).</em></span></p>'),
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(104739, 5696, 'content', '<p class=\"p1\">To remind people of this potential source of funding – and at 30% of spend, it is one of the highest rebates in any country – below is a summary of the basic provisions of the regulations and a synopsis of the process involved.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>What Does the Rebate Cover? </strong></span></p>\r\n<p class=\"p1\">Many different types of production can attract the rebate:</p>\r\n<p class=\"p1\">As is usual with rebates globally, feature films are included. To qualify as a feature for the rebate, the film should be at least 75 minutes long and “intended for initial commercial distribution to cinemas”. The rebate is not genre specific and can even apply to documentary filmmaking.</p>\r\n<p class=\"p1\">The range of television programming that will qualify for the rebate is very broad with the key criteria being, again, that it must be intended for commercial distribution. Neither vanity nor fund raising projects qualify for the rebate, nor do sports, news or current affairs or anything “magazine” style (such as talk shows, infotainment or lifestyle shows). However, this still leaves a lot of genres including comedy, drama, documentary, game shows and reality TV. The program can be stand-alone or a series but must have a minimum 30 minute duration per episode. Each series or season of a program is however only entitled to receive the rebate once.</p>\r\n<p class=\"p1\">The most unusual aspect of this rebate is that commercials and music videos also attract the rebate although for music videos, you do need to show that the video has been commissioned by an international entity for use commercially.</p>\r\n<p class=\"p1\">Animation is not yet covered by the rebate in any category.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>What Does the Rebate Apply To?</strong></span></p>\r\n<p class=\"p1\"><span class=\"s2\">The rebate applies to the expenditure incurred in respect of goods or services that are supplied in Abu Dhabi for the production. The shoot must have a minimum duration of one day. The rebate applies to any category of goods and so would naturally include all aspects of the shoot - catering, equipment, set build, filming, extras, travel, post-production and the rest but interestingly, the rebate also can be claimed against some unusual elements:</span></p>\r\n<p class=\"p4\"></p>\r\n\r\n<ul>\r\n 	<li>airfares booked through Abu Dhabi entities;</li>\r\n 	<li>per diems (daily expenses, allowances);</li>\r\n 	<li>legal and accounting fees; and</li>\r\n 	<li>public liability and workers’ insurance.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p6\"><span class=\"s2\">As with all such rebate schemes, it is important to cross check the current legal position before you book crews and fly people to the UAE as there are some important limitations on allowable expenditures. For example, per diems are currently limited to USD 100 per day per person for cast and crew. Cast fees cannot usually be claimed as local expenditure, although extras may be allowed.</span></p>\r\n<p class=\"p1\">There are also limits on the amounts that can be claimed. At the time of writing, for example, for feature films, the maximum rebate is USD 5,000,000 and advertising has a limit of USD 500,000.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>When Does the Rebate Apply?</strong></span></p>\r\n<p class=\"p1\"><span class=\"s2\">To obtain the rebate, you need to pay for budget items through a local Abu Dhabi based company. This can be done by hiring a local company to do the actual production. It can also be achieved by securing a local production services entity, undertaking the filming yourself and then having that production services entity pay the third parties (commonly known as a ‘pass through’). In this case, the local production services entity will have to apply for the rebate and will receive the money to their account. Note that joint applications are not permitted.</span></p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>What is Excluded from the Rebate?</strong></span></p>\r\n<p class=\"p1\">It is important that the production is financed by a third party that is resident outside of the UAE. So content that is financed by an entity within the local UAE market does not qualify for the rebate.</p>\r\n<p class=\"p1\">This condition does not apply to:</p>\r\n\r\n<ul>\r\n 	<li>feature films and telemovies of over 75 minutes duration; and</li>\r\n 	<li>long form television drama or comedy with at least 13 x 30 minute episodes.</li>\r\n</ul>\r\n<p class=\"p6\">These two forms of production can be financed locally.</p>\r\n<p class=\"p7\"><span class=\"s1\"><strong>How to Apply?</strong></span></p>\r\n<p class=\"p9\">In this process, as with many processes in the region, the paperwork is very important and can alter from time to time. Potential applicants are advised to thoroughly check the current requirements before applications are made and note that the Authorities are always able to request further documentation or information if they feel it is necessary to do so.</p>\r\n<p class=\"p1\">At the outset, the application process involves the following:</p>\r\n1. the production must be approved by the Abu Dhabi Film Commission or the National Media Council in the UAE – this process is managed by the Abu Dhabi Film Commission; and\r\n\r\n2. a list of required documentation must be lodged in order to secure an Interim Certificate, currently:\r\n<ul>\r\n 	<li>  the above approval;</li>\r\n 	<li>the relevant application form;</li>\r\n 	<li>shooting script, treatment or format;</li>\r\n 	<li>proposed production schedule;</li>\r\n 	<li>the proposed budget for the Abu Dhabi elements of the production;</li>\r\n 	<li>the agreement between the applicant and the actual producer;</li>\r\n 	<li>the agreement between the relevant party and the foreign finance source; and</li>\r\n 	<li>proof of relevant insurance.</li>\r\n</ul>\r\nOnce production is complete, the applicant must provide an auditor’s report on the costs incurred and the rebate claimed, sample footage from the shoot and a sworn statement in the approved form.\r\n<p class=\"p1\">The application will then undergo final assessment – this process usually takes a couple of weeks and payment can be made within 60 days of the issuing of that final assessment.</p>\r\n<p class=\"p2\"></p>\r\n<p class=\"p1\"><em>The Technology, Media and Telecommunications team at Al Tamimi &amp; Co regularly advises clients about matters relating to content financing, production and distribution for all types of media. For further information, please contact Nick O’Connell (n.oconnell@tamimi.com) or Fiona Robertson (f.robertson@tamimi.com).</em></p>'),
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(104754, 5697, 'content', '<p class=\"p1\">In the days before the expansion of media, when the options available to an advertiser encompassed billboards, radio, print, and stretched to television if the budget was big enough, there was no complexity involved in developing an agreement with your media agency. There was advertising and it was carried across the media that you chose for the fee that was charged at that time. Data was minimal. Distribution was localised. Campaigns largely carried the same message across all media.</p>\r\n<p class=\"p1\"><span class=\"s1\"> The massive growth of media into what is now known collectively as digital media (encompassing the web, social and mobile in particular) and digital media’s ability to react, distribute, and interact with consumers in ways that were not thought possible even 20 years ago, has meant that the simple act of contracting for a brand campaign is not as ‘simple’ as it once was. There is however one area where these media campaigns have remained unchanged – many brands and agencies are using agreements that are more suited to the 1997 media landscape than to the ways in which brands create content and communicate with their potential customers in 2017.</span></p>\r\n<p class=\"p1\">A standard advertising agreement contains terms that will, at a minimum, include the media, the frequency, the placement, the size, and the term. Fees will traditionally be based on a rate card that differentiates based on the potential audience for that placement – for example, for different times of the day or more desirable placement in a magazine. It was possible that if a media plan was set in stone, the fee could be readily determined at the outset of the agreement.</p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>Growth into New Ideas</strong></span></p>\r\n<p class=\"p1\">As advertising progressed away from the standard model of placing a static advert in a particular media, new ways of promoting brands were developed. One early iteration, still used today, was the placing of a product within video content (notably music videos; remember Michael Jackson holding the can of Pepsi?). Product placement progressed to advertorial content – a brand campaign that was completely integrated into editorial content, ideally in a seamless manner. This was eminently suitable to print content and segmented television programs and for some time was widely used within radio. In Australia, for example, this led to investigations by the authorities in the 1990’s, as it became increasingly difficult to differentiate between the editorial and the paid commentary.</p>\r\n<p class=\"p1\">At the time, agreements started to integrate new commercial terms that addressed the way in which these campaigns were delivered. Suddenly, we focused on ‘seconds on screen’ or ‘number of brand mentions’, albeit still accompanied by the usual inclusion of territory, number of spots and term.</p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>Different Campaigns, Different Deals</strong></span></p>\r\n<p class=\"p1\">Digital media has encroached seamlessly into our media consumption and with it, our exposure to brands and advertising has also altered in some ways. There has been a significant expansion from traditional media advertising and it has been embraced by brands worldwide. Certainly brands continued to seek familiar styles of advertising, with early digital advertising agreements referring to banners, pop ups and crawls, including references to the all important frequency and position. Such agreements might also include reference to the type of websites that would be targeted – perhaps ones that were of interest to male youth in Kuwait, or housewives in Saudi.</p>\r\n<p class=\"p1\"><span class=\"s1\"> However, as the consumers distaste for this style of content became evident, and the media itself grew in audience and most importantly bandwidth, advertising became more diverse and cleverly tailored to the new environment. Native advertising developed out of the concept of advertorial, but was effected in a much more subtle manner. The content or editorial was paramount, albeit that the brand was subtly noted within the content at some point.</span></p>\r\n<p class=\"p1\"><span class=\"s3\"> Native advertising now takes many forms. It might include search advertising, when advertising appears directly alongside content sites that are thrown up in an online search. Social media sites now contain a plethora of ‘promoted spots’ that are generally produced by the publisher of the site (in the case of closed platform content) or by the brand (for open platforms or hybrids). In either platform, they are intended to retain the look and feel of the material around the spots. They appear to be seamless, a perfect integration of brand with editorial.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> Clearly, an agreement that is designed for the provision of native advertising for a brand cannot be the same as an agreement for a banner ad. For example, an agreement for placement of advertising in a closed platform could include agreement as to demographic targets and geographic targets, but they will also need to contain a mechanism for the creation of the content itself, which would never have been included in an agreement for, say a banner ad. A banner ad would simply have been created by the brand and then provided to the publishing site. For native advertising, a key element for the brand campaign is the content itself, which may include more than one piece of content and which will most likely be created by the publisher or its contractors. So this agreement has to include not only references to the sought after demographics but must include direction as to the type of content and perhaps even, for some brands, an approval process for it to maintain control over the way that the brand is used. As an aside, the manner in which the brand is used – number of mentions, logo use or not – can still be a point of contention for brands who always want more than publishers are happy to deliver. It is important for brands to understand that this form of advertising is generally only effective if it contains minimal and subtle brand inclusion.</span></p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>True Content Marketing</strong></span></p>\r\n<p class=\"p1\"><span class=\"s1\">Content marketing has found its true place with the growth of digital marketing and, in particular, the ability of the internet to carry larger pieces of content directly to consumers. Content marketing, even more subtle again that native advertising, is a distinctive form of marketing that requires a brand to provide free content to the public in a manner that is designed to create a relationship between a potential customer and the brand. By creating content that may be valuable to the targeted consumer, the brand is anticipating a return by way of brand loyalty at a time when the product might be required. Interestingly, with content marketing, the focus is usually on a subject that is entirely removed from the brand itself, and may not mention the brand at all. The commonly cited example is the Red Bull content. It is clearly looking for a particular demographic but does so without ever discussing the actual product itself. Red Bull is now one of the most recognised beverage brands in the world due in a large part to this content marketing strategy.</span></p>\r\n<p class=\"p1\">The agreement required to establish this form of marketing is distinctly different to any other form of media buying agreement, most notably because the focus is entirely removed from the “advertising” element of the campaign and is focused on the content alone. Because of this, an agreement for content marketing should be treated as having two distinct components. It resembles a production services agreement in that it needs to include details about the creation of the content itself such as the hosts, the budgets, rights clearances and ultimate copyright ownership. But these agreements still require the essential media distribution elements – where is the content being placed and by whom. In addition, any brand would certainly require clear KPI’s regarding demographics and targets: Who is the brand trying to reach with this content? How often? What data is the brand trying to create? How will it be analysed? This is going to be a more complex agreement than the industry was using for banner ads, and even more complex than agreements for native advertising. Content marketing campaigns are multi-layered, and require careful consideration as to timing, content, tone and creative direction. The agreements that are created need to be similarly well crafted.</p>\r\n<p class=\"p1\">The days of ‘simple media’ agreements are now long behind us. As media plans have diversified into the various media streams that are now available, your agreement must be reviewed and updated to ensure that all parties are clear as to the scope and intentions of the brand in relation to the campaign on an ongoing basis. To do otherwise is just so 1997.</p>\r\n<p class=\"p2\"></p>\r\n<p class=\"p1\"><em>Al Tamimi &amp; Company’s Technology, Media &amp; Telecommunications team regularly advises on advertising and content matters both on-line and in traditional media, acting for producers, media agencies and publishers. For further information, please contact Fiona Robertson (f.robertson@tamimi.com)</em></p>'),
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(104768, 5698, 'content', '<p class=\"p1\">But establishing an e-commerce business, whether on its own or as an extension of a retail business, is not a simple matter of acquiring a domain name and adding a payment process. There are many legal matters that must be considered and developed before an e-commerce site can be launched.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Trade Licence Requirements for E-Commerce as an Activity</strong></span></p>\r\n<p class=\"p1\">It is important that the operator of any e-commerce business is in fact able to undertake e-commerce activities as part of their current trade licence. If these activities are not listed (or cannot be considered to be a legitimate part of the activities that are listed), then it is imperative that the company extends its business activities to cover e-commerce. When adding activities, some authorities will make a determination as to whether the new activities are compatible with the activities already listed. If they decide that is not the case, then they may refuse to extend the trade licence to cover these activities; in this case a new trade licence may be required.</p>\r\n<p class=\"p1\">Many companies, even when e-commerce is permitted under their current trade licence, may nonetheless choose to set up a separate entity to own and operate their new e-commerce platforms. This has the advantage of centralising the e-commerce operations but also of ensuring that any risk associated with the new enterprise is contained within a separate entity.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Terms and Conditions, Privacy Policies</strong></span></p>\r\n<p class=\"p1\"><span class=\"s2\">It is common practice, both locally and internationally, to attach terms and conditions to the use of a website. These will then govern the way that the business and its customers will interact with each other. </span></p>\r\n<p class=\"p1\">The terms and conditions might include details relating to delivery, refund policies, termination of accounts, and interactions between the users. But more importantly the terms and conditions must contain any terms that are required by the operators of the payment gateway. Over time, we have seen an increase in the number and scope of these requirements but it is important to note that the payment gateway will not allow the e-commerce site to commence operations until it has seen the final version of the terms and conditions.</p>\r\n<p class=\"p1\">In addition, an e-commerce site must have a privacy policy that is appropriate for the countries in which it operates. The most important role for the privacy policy is to provide customers with the confidence that their data will be properly stored, used and protected.</p>\r\n<p class=\"p1\">It is important to note that the payment gateway operator will also expect that certain terms are included within that policy. One term commonly required is the provision that data (such as credit card details) will in fact be used by third parties that are assisting with the provision of certain services. In operating an e-commerce business, it is very important to have clear terms and conditions to reduce any ambiguity and increase customer trust.</p>\r\n<p class=\"p5\"><span class=\"s1\"><strong>Content</strong></span></p>\r\n<p class=\"p1\">Website content, including content on e-commerce sites, can fall broadly into three categories:</p>\r\n<p class=\"p6\"></p>\r\n\r\n<ul>\r\n 	<li>content created by the operators of the e-commerce site – this will include the description of goods but might also include editorial content or reviews;</li>\r\n 	<li>content that is provided by third parties for use on the e-commerce site, such as press releases or articles about the products sold on the site; and</li>\r\n 	<li>content that is created by the customers, commonly known as user-generated content, which could include reviews or comments in forums.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p8\">It is important to recognise that, with all of these three types of content, the site operator is considered to be the publisher of the material, and so may be found liable for that content if it is found to breach the rights of another party, or breaks any laws or regulations. Whilst content regulation is quite a complex area of law that requires separate attention, note that Federal Law No 15 for 1980 (concerning Publications and Publishing) (“P&amp;P Law”) contains a list of material that is unacceptable for publication within Chapter 7. In addition, Federal Law No 5 of 2012 (on Combating Cybercrimes) (“Cybercrimes Law”) contains other matters that are not permitted in relation to activities on the internet.</p>\r\n<p class=\"p1\">Not only does the operator of an e-commerce site have to consider these laws in the creation of its own content but also when using the content of others. More particularly, this becomes problematic when the site allows user generated content to be created and shared. Customer reviews and contributions to forums can become confrontational and may inadvertently constitute a breach of the P&amp;P Law or the Cybercrimes Law. For this reason, many entities monitor user-generated content before they permit it to be published.</p>\r\n<p class=\"p2\"><strong>Copyright</strong></p>\r\n<p class=\"p1\"><span class=\"s3\">A person (or company) that creates content usually has the legal right to determine whether or not a third party can use that content. This position is generally the case across the world and certainly applies in the UAE and across the GCC. This means that, if the operator of an e-commerce site is commissioning a freelancer to produce content for the site, then it needs to enter into an agreement with that freelancer – the agreement will determine the ownership of the material created as well as the use that can be made of the material by both parties.</span></p>\r\n<p class=\"p1\">For ad hoc content, the operator should obtain a written licence from the owner of the material before using it. The only time that content could legitimately be used without a written licence would be for material that is clearly a press release or some other form of publicity – these are specifically provided in order to be used by third parties and therefore judicious use of that content (that is, within the expected usage and within a reasonable time from the date of the press release) will be unlikely to raise claims of copyright infringement.</p>\r\n<p class=\"p1\">Finally, be careful with the use of stock image libraries and music libraries. These libraries do have some limits on the use that can be made of their materials and it is wise to check the fine print in all cases. There have also been numerous cases of ‘bait and switch’ tactics with music libraries, where “unlimited use of music” was advertised but was not reflected within the standard terms that are sent to, and signed by, the user.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Advertising Regulations</strong></span></p>\r\n<p class=\"p1\">As the e-commerce site will fundamentally contain promotions for goods or services, it will be considered to be advertising and as such will be subject to the regulations that apply to such content. The main advertising regulations are contained within Resolution No.35 of 2012 (on the Standards of the Media Advertisements Content) (“Advertising Standards”).</p>\r\n<p class=\"p1\">These Advertising Standards contain numerous conditions that will apply to advertising within an e-commerce site and, in that regard, it is important to note that they are broadly worded and address a wide range of issues. These standards cover false and misleading claims, and the need for advertising to be clear and unambiguous. They also include provisions about clearly determining the identity of the advertiser in each case, and separating editorial and advertising content. Most important however is the following:</p>\r\n<p class=\"p9\"><em>The advertiser, the product and the publishing means shall bear the legal responsibility and consequences of delivering as per the claims related to promises, guarantees, pledges and compensations mentioned in the advertising.</em></p>\r\n<p class=\"p1\"><span class=\"s3\">This clearly notes that responsibility for the claims made in advertising can be attributed to the publisher – in this case, the operator of the e-commerce site. Yet not all operators of such sites will be in a position to verify the content of all advertising or classifieds that are contained within the e-commerce site. This means that they will need to set up documentation and processes that properly protect them from the inclusion of such content on the site.</span></p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Conclusion</strong></span></p>\r\n<p class=\"p1\">The establishment of e-commerce sites can be considered to be a logical extension of a retail brand or a simple way for a company to create and maintain a direct relationship with their customer base. However, e-commerce means extending usual business operations beyond the retail sector and into the publishing sector. As many retail operators are generally unaccustomed to considering matters such as liability for the publishing of content, or the management of data in accordance with a privacy policy, it is important that they not only set up appropriate documentation in each case but also establish protocols to ensure internal compliance with the various laws that will apply to their new business operations.</p>\r\n<p class=\"p2\"></p>\r\n<p class=\"p1\"><em>Al Tamimi &amp; Company’s Technology, Media &amp; Telecommunications team regularly advises on establishing e-commerce sites as well as all issues relating to content, terms and conditions, privacy policies and data use. For further information about these matters, please contact Fiona Robertson (f.robertson@tamimi.com) or Amna Qureshi (a.qureshi@tamimi.com ).</em></p>'),
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(104785, 5699, 'content', 'June - July 2017\r\n\r\n<hr />\r\n<p class=\"p1\">The words ‘accelerator’ and ‘incubator’ often appear to be used interchangeably, but these programs actually offer a different role and can have different implications for startups.</p>\r\n<p class=\"p1\">Accelerator programs are usually short term programs in which startups are often provided with a capital injection (usually in return for equity), mentorship and other useful resources with the aim of accelerating the growth of the business. Each accelerator program usually will have a cohort of numerous other startups, and the businesses go through the program to graduate together. Incubators often take a longer term view and focus on developing the foundation and core of the business. They are less likely to offer any funding or take equity, and are sometimes funded by governments or universities.</p>\r\n<p class=\"p1\">Here are some of the UAE’s leading incubators and accelerators that you should know about:</p>\r\n\r\n<ul>\r\n 	<li>\r\n<div class=\"p2\"><strong><em>AstroLabs Dubai </em></strong>– AstroLabs is a community, co-working space and tech hub based in Dubai and a member of the Google for Entrepreneurs network. The hub also has a strategic partnership with Dubai Multi-Commodities Centre (DMCC) free zone, which assists members with obtaining a fast-tracked free-zone company licence. AstroLabs also runs high quality training classes, which include digital marketing, Google analytics and Search Engine Optimisation.</div></li>\r\n 	<li><strong><em>Dubai Future Accelerators </em></strong>– A Dubai government initiative accelerator program whereby startups are given access to the resources and expertise of Dubai’s government entities, and tasked with addressing solutions to challenges faced by these entities (such as automated transport systems as a solution to air pollution and congestion). A number of high quality names have come out this leading accelerator.</li>\r\n 	<li><strong><em>FinTech Hive</em></strong> – The region’s first fintech-focused accelerator program, located in Dubai International Financial Centre (DIFC) free zone, provides participating startups with direct access to the world’s leading financial firms, as well as workshops and panel discussions on topics such as regulation and industry trends.</li>\r\n 	<li><strong><em>Flat6Labs</em></strong> – Based in Abu Dhabi, Flat6Labs (with support from twofour54 media free zone) works with start-ups at seed, early and growth phases, focusing on media and digital content. The core program runs over the course of four and a half months, and provides entrepreneurs with seed funding, mentorship, office space, and business training and support.</li>\r\n 	<li><strong><em>Hamdan Innovator and Incubator </em></strong>– HI2 is part of the Mohammed Bin Rashid Establishment, with the goal of fostering locally-driven businesses run by Emirati entrepreneurs. The incubator runs across three key stages, the Idea Lab (idea development), the Incubator (execution) and the Seed Fund (accessing capital). This incubator is not sector-specific and has supported many entrepreneurs since its launch in 2002.</li>\r\n 	<li><strong><em>Impact Hub</em></strong> - A co-working space and community of entrepreneurs, tech, creativity and innovation. “Hubsters” are given access to a large range of mentors and networking events.</li>\r\n 	<li><strong><em>in5</em></strong> – Launched by the TECOM Group in 2013, in5 is an enabling platform focused on tech, media and design which provides mentorship, training, networking opportunities to students, entrepreneurs and early stage startups, as well as assistance with set up and access to investors.</li>\r\n 	<li><strong><em>RegLab</em></strong> – Abu Dhabi Global Market launched RegLab in November 2016, with its FinTech legislative framework designed to create a progressive regulatory environment to allow for the growth of the FinTech industry and innovation in the UAE. FinTech participants are able to develop their proposition over the course of 2 years and applicants are welcomed from the MENA region and beyond.</li>\r\n 	<li><strong><em>Silicon Oasis Founders</em></strong> – A business incubator owned by the Government of Dubai, focused on the seed phase. The program runs for 6 –12 months and focuses on developing local entrepreneurial talents in the web and mobile applications space, as well as related technologies.</li>\r\n 	<li><strong><em>Turn8</em></strong> – Launched in collaboration with DP World, Turn8 offers a growth accelerator program and a follow-on investment fund. Participants are given investment, mentorship, training and 1 year of business development support. The follow-on investment fund aims to assist the startups with scaling and international growth. The programs run for 4-5 months. Focus areas include storage solutions, 3D printing, renewable energy and internet of things.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p4\"><span class=\"s2\">Whether you are interested in getting your startup/SME into an accelerator or an incubator, or being part of a startup community - partaking in networking events, workshops or learning and development initiatives, the UAE’s startup ecosystem offers an extensive range of options. These are just amongst some of the world class initiatives that are fostering innovation and contributing to the thriving tech industry in the UAE.</span></p>\r\n<p class=\"p4\"><span class=\"s2\"><em>Al Tamimi &amp; Company’s TMT team regularly advises on Technology, Media and Telecommunications matters. For further information please contact Amna Qureshi (a.qureshi@tamimi.com) or Nick O’Connell (n.oconnell@tamimi.com).</em></span></p>'),
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(104800, 5700, 'content', 'June - July 2017\r\n\r\n<hr />\r\n<p class=\"p1\">When people think about AI there are several assumptions that derive from how AI has been portrayed in popular movies, such as “Terminator”, “I, Robot” and “Ex Machina”, that all depict robots as a threat to humans. AI is not all just robots. It also applies to anything that fits the above definition. The Internet of Things (“IoT”), virtual personal assistants, smart cars, Google searches, Apple’s Siri and Amazon’s Echo are just some examples of current AI applications.</p>\r\n<p class=\"p1\">AI can transcend across all sectors (i.e. banking, education, healthcare and transport) and is slowly becoming a very natural part of our everyday lives. One such example is a British student has compiled software that is essentially an “AI lawyer” that can sort out what to do with the received parking ticket based on a few questions. As of June 2017, it had successfully appealed between 160,000 of 250,000 parking tickets in both London and New York, giving it a 64% success rate.</p>\r\n<p class=\"p1\">Many commentators believe that AI is an evolution in computing that is more important than the shifts to mobile or cloud computing.</p>\r\n<p class=\"p1\">Steve Case (the famous entrepreneur and co-founder of AOL) in his book “The Third Wave: An Entrepreneur’s Vision of the Future” describes the new era we are entering of immense technological advancements that are transforming virtually every non-digital sector of the economy, including education, healthcare, our food system, and beyond.</p>\r\n<p class=\"p1\">The First Wave was the creation of the internet and the foundation of our online world.</p>\r\n<p class=\"p1\">The Second Wave saw companies like Google and Facebook build on top of the Internet to create search and social networking capabilities, while apps like Snapchat and Instagram leveraged the smartphone revolution.</p>\r\n<p class=\"p1\"><span class=\"s1\"> We have now reached the third wave: a period in which entrepreneurs will vastly transform major “real world” sectors of the economy like health, education, transportation, energy, and food - and in the process change the way we live our daily lives. Case’s Third Wave is about applying the Internet and technology, including AI (artificial intelligence) to solve important issues such as hunger, disease and crime. </span></p>\r\n<p class=\"p1\">The examples given below, illustrate how the UAE is already in the process of undertaking the Third Wave.</p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>UAE, AI and Internet of Things: a golden opportunity?</strong></span></p>\r\n<p class=\"p1\">Why are AI and the IoT important for the UAE? In March 2014, the Dubai Government announced the Smart Dubai initiative to make Dubai a leading smart city. AI has been the trigger and the technology behind the facilitation of Smart Dubai.</p>\r\n<p class=\"p1\">This was undoubtedly also based on the predictions that over the next five years the smart cities market will increase from over $400 billion to $1.5 trillion. This would set Dubai on a global pedestal as a nest for innovation and technological advances in fields such as education and healthcare and would provide a steady growth incline for the UAE as a whole.</p>\r\n<p class=\"p1\">Smart Dubai has a three pronged approach:</p>\r\n\r\n<ul>\r\n 	<li>Smart Life</li>\r\n 	<li>Smart Economy</li>\r\n 	<li>Smart Tourism</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p6\">The one that is perhaps the most interesting is Smart Life. Smart Life deals with health, educational, transport, communications, public utilities and energy services. Smart Life not only offers innovation to the region but it offers a strong economic gain if it is steered properly.</p>\r\n<p class=\"p1\">Healthcare (as highlighted by Steve Case) is at the forefront. If you are able to capitalize on both the technological advancements alongside healthcare then you are able to breach this Third Wave. (SAP, IBM, Dell, Apple, Hewlett-Packard, Sentient Technologies are just a few of the companies investing heavily.) AI has allowed algorithms to be used to identify patterns in data which help to detect fraud, diagnose diseases and improve living standards in remote areas affected by healthcare issues. AI also facilitates:</p>\r\n\r\n<ul>\r\n 	<li>Data management; including data storage and collection so as to streamline medical records. (One example of this is Google Deepmind).</li>\r\n 	<li>Designing treatment plans: such as IBM Watson’s special program for oncologists that analyze structured and unstructured data in medical records and clinical notes to create bespoke and select treatments.</li>\r\n 	<li>Online consultants, health assistance via virtual appointments or nurses including drug creation and medical expertise.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p6\">These are just some of the areas where the UAE is well placed to capitalize. The way in which these are implemented is through the creation of the right medium between a strict and flexible legal framework.</p>\r\n<p class=\"p2\"><strong>Innovation </strong></p>\r\n<p class=\"p1\">The introduction of driverless cars has been anticipated since Dubai’s transport authority, the RTA bought 200 Tesla vehicles. Driverless, due to the disruptive nature of the technology, is a prime example of where the law needs to evolve.</p>\r\n<p class=\"p1\">Self driving cars and other devices that connect to telecommunication networks to enable AI and IOT need to seek type approval from the Telecommunications Regulatory Authority (“TRA”). The TRA provides a safety net, one that is trying to strike the balance between allowing flexibility for innovation and creating infrastructure to protect the general public.</p>\r\n<p class=\"p1\">This approach is much more preferable to the alternative which allows devices to go rogue, potentially giving rise to accidents such as the one involving Tesla in its very infant stages. Interestingly, Tesla’s press release in respect of this incident stated: “This is the first known fatality in just over 130 million miles where Autopilot was activated,” said the company. “Among all vehicles in the US, there is a fatality every 94 million miles. Worldwide, there is a fatality approximately every 60 million miles.”</p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>The Law</strong></span></p>\r\n<p class=\"p1\">The more advanced the AI environment becomes the greater pressure there is for the legal environment to change. There are two opposing arguments, one which demands less formalization of rules and regulations and allows the technology to evolve naturally and the other, which tightens regulation and constricts the parameters by which technology is bound. Lawmaking by its nature is reactive to changes in society rather than being proactive. No matter how quick governments try to be with implementing regulations that deal with up to date issues we will always be lagging. Suggestions that can aid the growth of technology within a safe legal environment, such as the incubator regimes for FinTech in the DIFC and ADGM financial free zones, are likely more productive.</p>\r\n<p class=\"p8\"><span class=\"s2\"><strong>Conclusion</strong></span></p>\r\n<p class=\"p1\"><span class=\"s3\">It is clear that the UAE is committed and dedicated to innovation and technology. Mubadala alone was reported to be investing US$15 billion in a technology fund, and with Smart Dubai shifting focus away from the traditional sectors the UAE, with the combination of legal support and push for innovation, is poised to become a hub for innovation.</span></p>\r\n<p class=\"p1\">However the spread of AI and IOT raises questions that our laws will need to adequately address: whether it is from a moral perspective, a resource perspective, an emotional perspective or one of innovation.</p>\r\n<p class=\"p1\"><span class=\"s1\"> It is not just restricted to a world where our fridge tells us what we are missing and what items need to be bought, where our car knows when to slow down or take an alternative route due to traffic - but extends to healthcare or where robots fight our wars based on pre programming of what is right and wrong. </span></p>\r\n<p class=\"p1\"><em>Al Tamimi &amp; Company’s Technology, Media &amp; Telecommunications team regularly advises on AI or IoT commercial and regulatory related issues. For further information please contact Eleonore Kressner (e.kressner@tamimi.com).</em></p>'),
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(104819, 5701, 'content', '<p class=\"p1\">The School of International Arbitration is one of Europe’s leading research centres on International Arbitration and Litigation. The Study provides practitioners in the Middle East and North Africa (“MENA”) region an insight into the global trends of TMT disputes. This article draws lessons from the Study for MENA related TMT disputes and discusses how these lessons can be implemented in practice.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Background of the Study</strong></span></p>\r\n<p class=\"p1\">The Study was conducted as part of an investigation into international dispute resolution practices. It mainly focused on TMT disputes and ways to resolve them efficiently. The Study presents a global view of the TMT dispute resolution market, involving findings from many countries (with 10% of the participants operating in the MENA region). The participants comprised of private practice lawyers, in-house lawyers, arbitrators, mediators and academic counsel.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Types of TMT disputes </strong></span></p>\r\n<p class=\"p1\"><span class=\"s2\">The Study revealed that the most common TMT disputes are related to intellectual property rights, joint venture disputes, licensing, information technology implementation programmes, competition, merger and acquisition agreements, non-disclosure agreements, data-related issues, outsourcing programs and reputation management issues. </span></p>\r\n<p class=\"p1\">Similarly, MENA arbitration centres have been receiving an increase in TMT disputed contracts over the last few years. As an example, the Cairo Regional Centre for International Commercial Arbitration experienced a 75% annual increase with 91 new arbitration cases filed in 2016. Out of the 91 arbitration cases filed, 11% involved media and entertainment, 3% related to telecommunications (3%), and 1% related to IPRs.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Preferred Dispute Resolution Method </strong></span></p>\r\n<p class=\"p1\">The Study assessed the responses on an all-participant level to determine the preferred Dispute Resolution method. Arbitration ranked as the most preferred resolution method in TMT disputes. However, litigation scored as the most used method in practice. IT and Telecoms suppliers were less in favor of arbitration, and instead preferred litigation and expert determination, respectively. In addition, the findings indicated that 41% of TMT disputes were settled via amicable settlement.</p>\r\n<p class=\"p1\">Participants in the Study indicated that the most significant factors in deciding whether or not to initiate proceedings are (1) legal costs, (2) strength of legal position, (3) parties’ relationship, (4) business convenience, (5) recoverable damages, (6) ease of enforcement, (7) strength of evidence, (8) settlement negotiation tactics, (9) solvency of the respondent, and (10) reputation.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Suitability of International Arbitration</strong></span></p>\r\n<p class=\"p1\">The Study revealed that 92% of its participants indicated that international arbitration is well suited for TMT disputes, despite some criticism and acknowledgement of opportunities for improvements. The Study also revealed that 82% of its participants believe there will be an increase in the use of international arbitration.</p>\r\n<p class=\"p1\">The participants stated that arbitration is the “go-to” option because of the TMT disputes’ complex nature. The most attractive features of international arbitration are: (1) enforceability, (2) the ability to avoid foreign jurisdictions, (3) confidentiality, (4) expertise of the decision maker, and (5) desire to use technology to improve the international arbitration process.</p>\r\n<p class=\"p1\">The Study also revealed four key elements with regard to suitability. Firstly, TMT contracts and supply chains have increasingly become more international, causing multi-jurisdictional disputes to arise. Therefore, arbitration is an attractive choice since it facilitates enforcement in foreign jurisdictions. International arbitration provides a huge advantage in regards to enforcement, as a result of the New York Convention 1958.</p>\r\n<p class=\"p1\">Secondly, parties usually share confidential information throughout their TMT business. Therefore, parties aim to ensure that confidential information remain private and thus try to steer related disputes away from public forums. Parties often choose arbitration because it limits the reputational damage that often results from public disputes, and it ensures that sensitive information remains confidential within the proceedings.</p>\r\n<p class=\"p1\">Thirdly, TMT disputes are complicated in nature and require the decision maker to be an expert in the field. Participants stated that, in choosing an arbitrator as a decision maker, the arbitrator’s knowledge of the subject matter is more important than knowledge of the arbitral process. The most important factor for choosing a decision maker is the commercial understanding of the TMT industry, followed by the knowledge of the applicable law of the contract.</p>\r\n<p class=\"p1\"><span class=\"s2\"> Fourthly, international arbitration is particularly dependent on interconnectivity. A typical TMT arbitration dispute may involve parties from two different countries, counsel from a third country, and arbitrators from different parts of the world. The use of Online Dispute Resolution (ODR) tools is key in resolving TMT disputes through international arbitration. 63% of the Study’s participants expected an increase in the use of ODR in TMT disputes in the next ten years. The use of technology can improve international arbitration in many ways including, but not limited to, (1) more efficient e-disclosure, (2) e-case management, (3) reduce the need for physical hearings and meetings, and (4) e-briefs and dematerialized submissions. In the European Union, the Directive on Consumer Alternative Dispute Resolution and the Regulation on Consumer Online Dispute Resolution are increasing the use of Online Dispute Resolution in the consumer context, especially for cross-border matters.</span></p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Challenges for resolving TMT disputes through arbitration in the UAE</strong></span></p>\r\n<p class=\"p1\">In the United Arab Emirates (“UAE”), there are a handful of challenges which may make arbitration unsuitable for TMT disputes. Firstly, parties involved in arbitration proceedings may incur high legal costs, which include arbitrator fees and administrative fees (and in some cases, expert fees), especially where the amounts in dispute are large and the arbitration costs are calculated on an ad valorem (percentage) basis or where the issues in dispute are complex. Moreover, in the absence of voluntary compliance, the party who obtains an arbitral award in its favor will have to apply to the Court of First Instance (in the respective Emirate that has jurisdiction) for ratification and enforcement the arbitration award. This process can be costly, since the fees are calculated as a percentage of the value of the claim (i.e., the awarded amount) (which in some, but not all cases, may not be capped). In addition, the parties would be liable to pay additional court fees if the enforcement of the award is appealed to the Court of Appeal and the Court of Cassation.</p>\r\n<p class=\"p1\">Secondly, there is no general concept of interim or injunctive relief available in the UAE, save for an attachment of assets. Therefore, depending on the precise wording of the contract at issue, it may be difficult for parties to request and obtain injunctive relief on an ex parte basis.</p>\r\n<p class=\"p1\"><span class=\"s3\"> Thirdly, there is likely a limited pool of UAE-based arbitrators with the requisite TMT expertise, since other types of disputes (e.g., construction, energy, etc.) tend to predominate. Therefore, parties would likely need to appoint international arbitrators outside of the UAE with TMT experience. However, international arbitrators may be dissuaded from arbitrating in the UAE, as a result of the latest revision of Article 257 of the UAE Penal Code No. 7 of 2016. Article 257 has caused serious concerns to be raised by recognized arbitration practitioners because this provision allows parties to pursue criminal proceedings against arbitrators by alleging contravention of the requirements of neutrality and integrity. This possibility has scared some international arbitrators away from the UAE and unless the provision is revoked or significantly amended, it may ultimately detract from the attractiveness of arbitration to resolve TMT and other technical disputes, at least as far as the UAE is concerned. </span></p>\r\n<p class=\"p1\">Moreover, if one of the parties commences a criminal complaint, pursuant to Article 257 of the Penal Code, against the arbitrator or arbitral tribunal, this could place the confidentiality of the arbitration at risk. It still remains unclear whether the facts of the arbitration can and will be kept confidential or whether they would be disclosed in the UAE criminal courts. However, there is a risk that the merits of the case would no longer remain confidential. Considering the importance attached to confidentiality in resolving TMT disputes such potential disclosure could dissuade parties from arbitrating TMT disputes in the UAE.<strong> </strong></p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>In-house Dispute Resolution Policy </strong></span></p>\r\n<p class=\"p1\">The Study revealed that 75% of organizations have a Dispute Resolution policy. In general, 50% of participants chose mediation as the “most encouraged” Dispute Resolution mechanism, while 47% of participants chose arbitration. However, the choice varied by sector, as (1) telecoms sector participants chose expert determination, (2) IT sector participants chose litigation, (3) energy, construction and manufacturing sector participants chose arbitration. Nevertheless, when all participants (not just in-house) were asked about their preference, the majority of the participants chose arbitration over any other method. It is evident that IT and Telecoms sectors usually encourage litigation and expert determination, but the opposite is true of some of their potential customers. These results can suggest that customers and suppliers could find the drafting of the dispute resolution clause in commercial contracts a contentious point.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Improving International Arbitration</strong></span></p>\r\n<p class=\"p1\"><span class=\"s4\">The Study invited the participants to contribute suggestions on improving arbitration mechanisms. The top three suggested changes to make international arbitration more appealing are: (1) lower costs, (2) specialized arbitrators, and (3) a neutral system for the accreditation of specialist arbitrators. </span></p>\r\n<p class=\"p1\">The above suggested changes could be used as a checklist to improve arbitration in the UAE. First, as demonstrated above, depending on applicable institutional and court rules or fee scales, there are excessive costs associated with UAE arbitrations. Arbitration might become more attractive if the legal costs and fees are lowered. There is a variety of ways to reduce costs including, but not limited to, (1) the use of technology, (2) better disclosure processes, (3) permitting only limited evidence, (4) submissions with page limits and a focused structure, and (5) limited cross-examination.</p>\r\n<p class=\"p1\">Secondly, there is a lack of TMT specialized arbitrators, and international arbitrators with the relevant expertise may well be dissuaded from arbitrating in the UAE for the reasons discussed above. Therefore, it is clear that there is a need for emerging arbitrators with sufficient TMT expertise. 87% of participants stated that it is likely that there would be increased specialism of TMT arbitrators in the next 10 years.</p>\r\n<p class=\"p1\">Thirdly, Article 257 should be revoked or significantly amended if it is hoped to attract TMT arbitration to the UAE for the reasons stated earlier.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Most-used Arbitration Institutions </strong></span></p>\r\n<p class=\"p1\">Participants indicated that the most used institutions for TMT disputes are the International Chamber of Commerce (ICC), World Intellectual Property Organization (WIPO), London Court of International Arbitration (LCIA) and Singapore International Arbitration Centre (SIAC).</p>\r\n<p class=\"p1\"><span class=\"s5\"> There are a number of well-known arbitration institutions in the MENA region, including Dubai International Arbitration Centre (DIAC), Dubai International Financial Centre – London Court of International Arbitration (DIFC-LCIA), Lebanese Arbitration and Conciliation Centre (LAMC) and the Cairo Regional Centre for International Commercial Arbitration (CRCICA). However, 67% of the Participants operating in the MENA region chose the ICC as the most-frequently used institution. MENA arbitration institutions ought to reflect on the reason why the ICC, an international arbitration centre, ranked as the most-frequently used in MENA instead of the regional well-known institutions. </span></p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Commentary</strong></span></p>\r\n<p class=\"p1\">In recent years, the growth of the TMT sector has been remarkable. Following such growth, TMT disputes are naturally expected to increase. The UAE, as a dispute resolution jurisdiction, its UAE arbitration centers, and its UAE-based arbitration practitioners should reflect on and draw some lessons from the Study, in order to be prepared to accommodate the likely rise in TMT disputes. It is important for all such stakeholders to take into consideration the views of the participants in order to attract TMT disputes to the UAE.</p>\r\n<p class=\"p1\"></p>\r\n<p class=\"p1\"><em>Al Tamimi &amp; Co\'s arbitration team members have appreciable experience in the area of TMT disputes, including as counsel, expert and arbitrator. For further information please contact John Gaffney (j.gaffney@tamimi.com).</em></p>'),
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(104846, 5702, 'content', 'June - July 2017\r\n\r\n<hr />\r\n<p class=\"p1\"><strong>Is an E-Trading license necessary? </strong></p>\r\n<p class=\"p2\">When activities are conducted via an online platform, it generates a lot of confusion in terms of whether or not these activities constitute conducting commercial activities within the UAE, given that they are online.</p>\r\n<p class=\"p1\">Article 6 of Law no. 13 of 2011 regulates the conduct of economic activity within the Emirate of Dubai and Article 328 of the Commercial Companies Law of 2015 (“CCL”) states that a foreign company should not conduct activities inside the UAE without obtaining a licence.</p>\r\n<p class=\"p1\">Article 355 of the CCL prescribes a penalty between AED 100,000 and AED 500,000 on a foreign company if it does not register itself with the Registrar.</p>\r\n<p class=\"p1\">Therefore the strict application of law requires a foreign company to be fully incorporated and hold a valid license to conduct activity in the UAE. Failure to do so, risks a penalty between AED 100,000 to AED 500,000.</p>\r\n<p class=\"p1\">Some may argue that an online business does not need to have a registered office nor does it need to employ staff in the UAE to carry out any activity on the ground, thus, Article 328 and Article 355 do not apply. However, it is difficult to predict how the Authorities will address this argument given their discretion is not structured by statute or practice. The strict approach is that in order to conduct any commercial activity within the UAE, the appropriate license must be obtained. A prerequisite to obtaining a license is to obtain and maintain a registered office. Therefore, the Authorities can in their discretion apply the strict approach to a company seeking an E-Trading license in the UAE.</p>\r\n<p class=\"p1\">In practice, there may be many unlicensed online platforms trading across the UAE. However it cannot be guaranteed that the regulator will not identify these unlicensed online traders and impose a penalty between AED 100,000 to AED 500,00.</p>\r\n<p class=\"p1\">The DED has recently introduced the following E-Commerce activities:</p>\r\n\r\n<ul>\r\n 	<li>\r\n<div class=\"p4\">Jewellery and precious stones E-Trading;</div></li>\r\n 	<li>Garments, Textiles and Gifts E-Trading;</li>\r\n 	<li>Publications and Media Materials E-Trading;</li>\r\n 	<li>Household, Professional and Personal Goods E-Trading;</li>\r\n 	<li>Vehicles and Transport means E-Trading;</li>\r\n 	<li>Equipment E-Trading;</li>\r\n 	<li>Sport and Recreational Events Tickets E-Trading.</li>\r\n</ul>\r\nAn E-Trading license provides traders the opportunity to sell to the general public over the internet without needing any human interaction, using any of the applications that rely on the internet. It involves co-ordinating with payment service providers which offer online electronic payments by a variety of payment methods including credit card, smart cards and digital money E-cash.\r\n<p class=\"p1\">At present there is no general E-Trading activity available, however the activity ‘General Trading’ will allow a company to perform and undertake all types of trading whether physically or via an online platform. Typically, if a company is licensed to trade in a particular industry, that trading license will qualify the company to also trade online.</p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>E-Trading activity in the free zone</strong></span></p>\r\n<p class=\"p1\">Unlike Dubai mainland which is subject to the CCL, free zones have their own set of regulations when it comes to licensing business activities. Free zone companies cannot conduct commercial activities outside of the free zone. Therefore, for a trader to freely trade and sell its products online, into the wider UAE, the trader must also obtain a license to do so from the DED. Some free zones do offer E-Commerce activities, but the scope of a free zone E-Commerce activity is limited to facilitating a sale through an electronic medium, rather than directly conducting retailing activities. In short, a free zone company with an E-Commerce activity can only act as a middleman, unless it also obtains a license from the DED to allow the free zone company to trade freely across the UAE.</p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>Introduction of the DED’s E-Trader Scheme </strong></span></p>\r\n<p class=\"p1\">Another development by the DED is the introduction of the ‘e-trader’ scheme whereby online business established via various social media applications such as Instagram, Snap Chat, Whatsapp, Facebook etc can now be licensed by the DED. The conditions are that the license holder must be a UAE national, over the age of 18 and the license cannot be used to open a physical store, nor can it issue visas. This development was introduced with a view to “promote consumer confidence when shopping for products and services on social networking sites” said Omar Bushahab, Chief Executive of the DED’s Business Registration and Licensing Department.</p>\r\n<p class=\"p1\"><em>Al Tamimi &amp; Company’s Corporate Structuring team regularly advises on corporate structures and incorporation requirements. For further information please contact Noff Al-Khafaji (n.alkhafaji@tamimi.com). </em></p>'),
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(104869, 5703, 'content', 'June - July 2017\r\n\r\n<hr />\r\n<p class=\"p1\">With this type of software, a victim could be locked out of his computer or other electronic devices until a certain ransom is paid to the hacker. The victim receives a request to pay a sum of money, in order to be able to access their locked data. The device remains blocked pending the payment of the specified ransom, hence the name “ransomware”. Even if the victims pay the requested amount, this does not guarantee that access will be restored.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Global Cyber Attacks</strong></span></p>\r\n<p class=\"p1\">Last month, the world witnessed one of the biggest global cyber attacks ever recorded. “WannaCry”, a ransomware, affected numerous international services. Sources argue that it affected 100,000 entities over 150 countries, including Taiwan, Ukraine, United Kingdom, Russia, India, China, Romania, Italy, Brazil, Egypt and others. The entities affected included FedEx, Spain’s Telefonica, Renault, and some NHS hospitals whose services were slowed down and patients’ appointments had to be canceled.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Recent cases in the Middle East </strong></span></p>\r\n<p class=\"p1\">In less sophisticated fraudulent acts, criminals simply impersonate others and request payment of money from third parties in lieu of offering a service or a commodity. Many of other cyber crimes commence by a simple email or even a private message on social media platforms.</p>\r\n<p class=\"p1\">In one case, a customer received a fraudulent email from a business’ head of office requesting the customer to transfer funds to a specific bank account. The customer, unaware of the fraudulent scheme, transferred the funds to the specified bank account and received nothing in return.</p>\r\n<p class=\"p1\"><span class=\"s2\"> In another case, a branch manager received an email purporting to be from the CEO of the company, requesting the branch manager to connect the CEO to the local travel agency so that he could book tickets for business trips. The branch manager complied with the request and unknowingly connected the fraudster via email to the travel agency who then booked 35 plane tickets for various people. Later on, the branch manager and the travel agency discovered that the real CEO never made such requests and that the previous correspondence was made with someone who impersonated the CEO’s identity. A total of 35 passengers flew between two countries with the business and the travel agency left to pick up the costs.</span></p>\r\n<p class=\"p1\">There have also been a number of other incidents where criminals attempted fraud by establishing websites and emails almost identical to those of legitimate businesses, with the aim of impersonating them and deceiving third parties.</p>\r\n<p class=\"p1\"><strong>Minimizing Risks </strong></p>\r\n<p class=\"p1\"><span class=\"s2\">In the UAE, the relevant authorities, including the public prosecution offices, are very effective in deterring cyber crimes. Moreover, a new department, the Federal Public Prosecution for Information Technology Crimes, specialised in information technology crimes, was established earlier this year. In a previous Law Update Articles, we explained how this signifies the UAE’s determination to safeguard individuals, the community and the Emirates from these types of crimes.</span></p>\r\n<p class=\"p1\">Given the difficulty in locating and identifying cyber criminals, the key is to have in place protective measures against cyber attacks, particularly ransomwares and other viruses that reach devices through the internet or when downloaded mistakenly through a malicious file. It is thus recommended to:</p>\r\n\r\n<ul>\r\n 	<li>Check the validity of requests received via email or text messages. This could be done by contacting the entity who sent the email by phone or even paying them a visit to meet in person;</li>\r\n 	<li>Do not click on internet links that you do not recognise;</li>\r\n 	<li>Do not download files from sources you are not sure of their credibility;</li>\r\n 	<li>Do not open attachments or any files sent to you through emails you do not recognise;</li>\r\n 	<li>Make it a regular habit to install software updates and anti-virus programs;</li>\r\n 	<li>Be doubtful and suspicious towards any requests you receive through technological platforms;</li>\r\n 	<li>Establishments and all corporations should provide regular training to ensure that they undertake the necessary actions;</li>\r\n 	<li>Specialised IT systems should be in place to increase cyber security.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p6\">In the unfortunate event your company is impacted by cyber crime, report it as soon as possible to the authorities. Cyber incidents and viruses that may seem insignificant to you (if for example it affected an old PC) are nevertheless worth reporting to the authorities as every piece of information helps authorities to assess the magnitude of the attack and can assist in tracking and combating the virus before it spreads further.</p>\r\n<p class=\"p6\"><em>Al Tamimi &amp; Company’s Litigation and TMT teams regularly advise on cyber security issues. For further information please contact Nick O’Connell (n.oconnell@tamimi.com) or Omar Khodeir (o.khodeir@tamimi.com).</em></p>'),
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(104884, 5704, 'content', 'June - July 2017\r\n\r\n<hr />\r\n<p class=\"p1\">We note that the existing Criminal and Cyber Crime Laws already penalise acts that may affect the national unity, public order, or social stability. For example, an English translation of Article 24 of the UAE’s Cyber Crime Law states the following:</p>\r\n<p class=\"p2\">‘Any person who established, operated or supervised an Electronic Site or published information on an Information Network or any of the Information Technology Tool to promote or favor any programs or ideas that may stir sedition, hatred, racism or sectarianism or hurting national unity or social peace or prejudice of public order or public morals shall be punished by temporary imprisonment and a fine not less than (AED 500.000) and not exceeding (AED 1.000.000).’</p>\r\n<p class=\"p3\">Apart from the above and generally speaking, millions of users of social media and other electronic platforms ’share’ and ‘re-post’ content on their newsfeed on a daily basis.</p>\r\n<p class=\"p1\">Without a doubt, an author creating illegal content (for example, negative comments towards the situation of Qatar in the developing context) and uploading it on social platforms may be legally liable. In fact, the legal risk could extend beyond the author, in some circumstances. Reposting or sharing materials available on one’s newsfeed could result in penalties and the user could find himself involved in a criminal case.</p>\r\n<p class=\"p1\">The large number of users, posts, and word count on social platforms also gives the user a false sense of security that his/her words do not matter and that no one would take notice. In many heated discussions over the internet, users may insult others or use defamatory language. They may use words that they think are appropriate, as it is in their home country, not knowing that it may constitute a crime in another country.</p>\r\n<p class=\"p5\"><span class=\"s1\"><strong>Crimes Associated with Re-posting and Sharing</strong></span></p>\r\n<p class=\"p1\"><span class=\"s2\">There are obvious risks if certain content was published, for example, where someone re-posts another user’s status that invites the public to purchase from him illegal drugs and narcotics. However, the matter becomes tricky if the ‘re-post’ concerns something that seems positive, on the face of it. For example, someone inviting the public to help the poor and donate to the unfortunate. In this regard, there are several restrictions in the UAE regarding collection and promotion of donations through media and technological platforms, including a requirement to obtain approval from the relevant authority prior to the same. Violating those restrictions could lead to criminal penalties, which could also extend to someone who shared or re-posted messages or content about the charity organisation. </span></p>\r\n<p class=\"p1\">In other scenarios, some statements could be seen by users as a normal way of expressing views; however, these statements sometimes include mockery and criticism of others, whether ordinary persons, high ranking officials, or governments. It can be held that such statements amount to a criminal offence.</p>\r\n<p class=\"p1\">This is not necessarily restricted to involving persons the government of the UAE, per se, and could extend to other countries. The UAE law prohibits publishing content disparaging or showing a negative aspect of a president of an Arab, or a neighbouring, country and content that may adversely affect the relationship between those countries and the UAE.</p>\r\n<p class=\"p1\">Also, offensive pictures uploaded on social media can constitute a crime. Similarly, publishing a picture of someone who did not approve its publication is also a crime.</p>\r\n<p class=\"p5\"><span class=\"s1\"><strong>Insults and Use of Defamatory Language</strong></span></p>\r\n<p class=\"p1\">In one incident, a number of users expressed their rage against a company, their former employer, by typing statements that contained insults and defamatory language. The statements were posted on a well-known website providing business and employment networking service. In reliance on the UAE Cyber Crime Law, the employer in question has the right to initiate criminal proceedings against those employees for insulting the company on an electronic platform.</p>\r\n<p class=\"p1\">In another case, work colleagues were discussing business and work oriented issues via internal emails. The discussion heated up, leading one of the colleagues to use inappropriate words that he believed to be acceptable in his home country. However, the recipient filed a criminal complaint against him arguing that those words constituted insults under the UAE Cyber Crime Law.</p>\r\n<p class=\"p1\">Similarly, liability can also be established for insults and defamatory language that one sees frequently in a simple comment on a picture or a discussion between others on a newsfeed. Needless to say, the same liability would also arise when the offensive content is sent directly to a smaller group of people in an email.</p>\r\n<p class=\"p1\">Whilst it is far-fetched to deem that a user who re-posts defamatory language that was posted by another user has committed a crime, it is nevertheless arguable as outlined in the context of this article and the below judgment.</p>\r\n<p class=\"p5\"><span class=\"s1\"><strong>Collecting and Re-publishing</strong></span></p>\r\n<p class=\"p1\">In one case, a claimant filed a case against a renowned company before the Abu Dhabi Court to claim for compensation. The defendant was an owner of a website providing access to information on politically exposed persons, entities, and individuals with high risk around the world. The database on the website assisted users in checking the background of various individuals to identify whether they carry high financial, reputational, or legal risk.</p>\r\n<p class=\"p1\">The defendant did not create the information, but rather compiled the database from other credible sources, such as renowned news and media companies. While arguing his case, the claimant noted that the defendant published inaccurate information about him being sentenced in a criminal case, describing him as a ‘terrorist’’, as being related to someone who is involved in criminal conduct, and other information that showed that he had a ‘high risk’ profile.</p>\r\n<p class=\"p1\">The information about the claimant on the website led to the rejection of the claimant’s requests for bank facilities and loans that the claimant had applied for, cancellation of visa for a country he needed to visit, as well as affecting many aspects of his business and social life.</p>\r\n<p class=\"p1\">The Abu Dhabi Court of First Instance ruled against the defendant, obliging it to pay compensation for the damages sustained. The judgement was upheld by the Court of Appeal and Cassation.</p>\r\n<p class=\"p1\">In its defence, the defendant asserted that it was not the author of the information in question, it only re-published the information already available from other sources on the internet. The defendant explained, as an analogy, that the service provided by it is similar to the search engines available on the internet. A user types the keyword and information from other sources are revealed to him, which includes negative and positive information provided by third parties. The search engine should not be liable since they are not the ‘author’ of such information.</p>\r\n<p class=\"p1\"><span class=\"s3\"> The Abu Dhabi Court of First Instance ruled against the defendant, obliging it to pay compensation for the damages sustained. The judgement was upheld by the Court of Appeal and Cassation.</span></p>\r\n<p class=\"p1\">Whilst there is no system of precedents in the UAE, the foregoing judgment still provides for some vagueness towards imposing liability on ‘non-authors’ who collect and compile previously published information in the one place. The same concept may apply to re-posting and re-publishing.</p>\r\n<p class=\"p6\"><strong>Recommendation</strong></p>\r\n<p class=\"p1\">As a general rule, we recommend the following:</p>\r\n\r\n<ul>\r\n 	<li>Do not post or re-post content on social or any other platform when you are not sure of the accuracy of the content.</li>\r\n 	<li>Avoid using personal data or infringing rights to privacy of an individual. This extends to individuals’ social statuses, personal or contact details, as well as personal photos or any other similar data.</li>\r\n 	<li>Avoid publishing or re-publishing content that:</li>\r\n</ul>\r\n<ul>\r\n 	<li>\r\n<ul>\r\n 	<li>\r\n<ul>\r\n 	<li>Encourages discrimination or acts of violence;</li>\r\n 	<li>Adversely affects or may affect public order or social stability.</li>\r\n 	<li>Infringes intellectual property rights of others;</li>\r\n 	<li>Violates children’s rights;</li>\r\n 	<li>Includes negative reference to religions; or</li>\r\n 	<li>Promotes illegal activities.</li>\r\n</ul>\r\n</li>\r\n</ul>\r\n</li>\r\n</ul>\r\nIn all cases, we recommend seeking legal review of the content before publishing or re-publishing material that may be questionable. Consulting with a lawyer will also provide you with insights and a proper assessment of risks to know the possible liabilities that may be faced.\r\n<p class=\"p1\"><em>Al Tamimi &amp; Company’s Litigation team regularly advises on Cyber Crimes. For further information please contact Omar Khodeir (o.khodeir@tamimi.com) </em></p>'),
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(104899, 5705, 'content', 'June - July 2017\r\n\r\n<hr />\r\n<p class=\"p1\">With the ever increasing consumption and processing of data, and the resultant need for secure and efficient storage solutions, the prevalence of such facilities will only continue to grow in the foreseeable future. According to datamap.com there are currently eight co-location data centres in the UAE.</p>\r\n<p class=\"p1\">Some typical types of transactions/arrangements associated with this burgeoning asset class that require consideration from a real estate perspective include:</p>\r\n\r\n<ul>\r\n 	<li>The acquisition of an existing facility or construction of a new data centre by a specialist data centre and co-location service provider (“Data Centre Service Provider”);</li>\r\n 	<li>The sale and leaseback of data centres by owners of such facilities in order to release capital;</li>\r\n 	<li>The long term leasing of a data centre by a Data Centre Service Provider from an owner or master developer that may require significant works / retrofitting to be carried out by such Data Centre Service Provider;</li>\r\n 	<li>The “wholesale” leasing or granting of rights of use by the Data Centre Service Provider relating to all, or substantially all, of the space in the data centre to a single end user with heavy usage requirements, such as to a large cloud provider. Such type of data centre may have been constructed on a build to suit basis to a particular end user’s specific requirements. Through such “wholesale” arrangements, organisations can access large scale networks for storage, processing and distribution of data without the corresponding capital investment otherwise required for such activities; and</li>\r\n 	<li>The “retail” leasing or granting of rights of use by a Data Centre Service Provider to multiple, different end users that have smaller power and space needs. Such end users typically lease or are granted exclusive rights over physically separated, often caged racks which house servers and equipment.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p4\">This article will primarily focus on the agreements entered into by a Data Centre Service Provider with an end user on either a “wholesale” or a “retail” basis (“Co-Location Agreements”).</p>\r\n<p class=\"p6\"><span class=\"s2\"><strong>Key considerations in locating and constructing a data centre</strong></span></p>\r\n<p class=\"p1\">A large number of commercial, physical and legal factors will be considered by Data Centre Service Providers in planning and locating a data centre. However, some key essentials for operating a successful facility attractive to end users include:</p>\r\n\r\n<ul>\r\n 	<li>the availability of access to uninterrupted power. The power requirements for a data centre are significant given the high density of hardware contained within, and its cooling requirements. Without a constant supply of power a server simply cannot function. For this reason, there will be back up systems and generators to ensure an uninterrupted supply of electricity that is also insulated from any sudden surges in current or voltage. The “rent” paid under a Co-Location Agreement is often calculated in accordance with power usage rather than the physical area of space or number of racks used;</li>\r\n 	<li>keeping the data centre as a cool environment with low humidity to allow servers to function at their most optimum. Given the climatic conditions of the UAE, there are added cooling costs to consider when compared with data centres located in other parts of the world with lower year round ambient temperatures;</li>\r\n 	<li>having a reliable and fast telecommunications infrastructure allowing the flow of data in and out of the data centre. With trading firms for example, who have taken space in a data centre, delays or “latencies” of mere milliseconds in the transfer of information can be significantly damaging in terms of their competitive position;</li>\r\n 	<li>ensuring that data is available, accessible and secure at all times with comprehensive data recovery procedures in place in the event of a failure of the data centre - for example due to a power outage, an event of damage or destruction or a cyber attack; and</li>\r\n 	<li>as well as maintaining data security, ensuring that the data centre is physically secure by adopting a range of procedures limiting individual access to the data centre and particular servers or racks.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p6\"><span class=\"s2\"><strong>Key drafting issues relating to Co-Location Agreements in the UAE</strong></span></p>\r\n<p class=\"p1\"><em>(a) Are Co-Location Agreements leases or contractual rights of access?</em></p>\r\n<p class=\"p1\">Although it may be preferable for some end users for such Co-Location Agreements to be expressed as a lease that establishes a formal landlord and tenant relationship (for example, to take advantage of the generally tenant friendly lease laws in the UAE), in our experience it is not usual for Co-Location Agreements to take the form of a lease. Instead, they are usually structured as contractual rights of access, albeit with many characteristics commonly seen in lease agreements, such as:</p>\r\n\r\n<ul>\r\n 	<li>exclusivity of use by the end user and a right of “quiet enjoyment” for the duration of its term;</li>\r\n 	<li>limitations on the Data Centre Service Provider’s rights of access to the end user’s designated space;</li>\r\n 	<li>respective repair and maintenance obligations;</li>\r\n 	<li>rights of renewal;</li>\r\n 	<li>provisions relating to assignment and sub-leasing/contracting;</li>\r\n 	<li>a description of the services to be provided by the Data Centre Service Provider;</li>\r\n 	<li>provisions regarding the end user’s rights to make alterations to the designated space;</li>\r\n 	<li>reinstatement and termination rights upon the occurrence of events of damage or destruction;</li>\r\n 	<li>reinstatement obligations at the end of the term; and</li>\r\n 	<li>rights of first refusal regarding additional space in the data centre.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p4\">From a Data Centre Service Provider’s perspective, such contractual rights of access are preferable to a formal lease arrangement as it gives greater flexibility on the issue of landlord’s access rights. This is particularly important when hosting a number of servers for multiple tenants on a “retail basis”. It is also uncertain as to whether, if such Co-Locations Agreement were drafted as leases, whether they would be capable of registration in the Ejari and Tawtheeq short-term, online lease registration systems applicable in Dubai and Abu Dhabi. In Dubai, there are also particular licensing issues and other RERA requirements that need to be satisfied in order for an entity to legally sub-lease property which are likely to be an unattractive option for a Data Centre Service Provider (if it is itself subject to a superior lease).</p>\r\n<p class=\"p1\">Notwithstanding the above, Data Centre Service Providers should be aware that, under UAE law, there is less of a clear distinction between leases and licences (or other contractual arrangements) to occupy/use/access than in some common law jurisdictions. If tested, there is a risk that a Co-Location Agreement could be construed as a lease by the relevant judicial authorities (even if there is express wording to the contrary in the agreement that no lease or landlord and tenant relationship is created). If deemed to be a lease, this could provide the end user with a greater level of protection relating to such matters as security of tenure / rights of renewal, termination and rent control by bringing the agreement within the remit of laws governing the landlord and tenant relationship.</p>\r\n<p class=\"p1\"><em>(b) End user’s right to make alterations and use of the premises</em></p>\r\n<p class=\"p1\">As end users are usually fully responsible for the maintenance of their own equipment in data centres, they will typically want wide scope to make alterations or additions within their designated space. These rights are necessary during the term of a Co-Location Agreement to ensure that relevant upgrades can be made to their technology. Therefore, it is important that an end user has the right to make those upgrades as often as required and to not be restricted by the usual provisions in commercial leases which often require a landlord’s consent to any tenant alterations.</p>\r\n<p class=\"p1\">A standard commercial lease will also place certain restrictions on the tenant’s use of its premises, such as observing weight requirements on floor plates and restricting the use and storage of dangerous goods in the premises. In a Co-Location Agreement, a Data Centre Service Provider should consider more strict requirements, particularly in “retail” data centres where multiple servers are housed for the benefit of multiple different organisations, each with a high dependence upon the uninterrupted functionality of their servers and equipment. This may include an obligation on an end user to not do anything that would interfere with another end user’s right to use and enjoy the data centre (including generating electrical interference).</p>\r\n<p class=\"p1\"><em>(c) Server outages and maintenance </em></p>\r\n<p class=\"p1\">Another issue that a Data Centre Service Provider should consider is what happens if a server fails. The potential for damages in these circumstances are significant as an outage could significantly disrupt or prevent the business operations of an end user. Therefore, an end user should consider inserting appropriate remedies at the outset such as releases, indemnities or liquidated damages to minimise the risk of damages for a Data Centre Service Provider and adequately protect the end user in the case of a server outage.</p>\r\n<p class=\"p1\">A Data Centre Service Provider may want to limit their exposure in the case of server outages and instead insert a remedy for the end user in the form of “rent” credits (a credit of “rent” paid pursuant to a Co-Location Agreement) or service credits (a credit of service fees sometimes paid pursuant to a separate Service Level Agreement (“SLA”)). Any such SLA, will usually sit alongside the Co-Location Agreement for the same term. It deals with the performance quality of the data centre and usually guarantees the level of its performance.</p>\r\n<p class=\"p1\">“Rent” or service credits are often capped at the current “rent” or service fee payable by the end user for that month. A common practice is for a claim to be capped at one credit per day regardless of how many service outages occur during that day. An end user may want to negotiate this cap and insert clear criteria when defining what constitutes a server outage (if a Data Centre Service Provider is insistent upon the end user’s remedies in such circumstances being limited to such “rent” or service credits).</p>\r\n<p class=\"p1\">A Data Centre Service Provider will usually also have certain maintenance obligations in relation to the building, the common areas, cooling equipment and other key service systems. However, given the importance of servers and equipment being kept continuously operational, an end user will need to consider whether it may require (and the degree of) step-in rights in the Co-Location Agreement if a Data Centre Service Provider has not properly discharged its obligations in relation to maintenance or in the case of an emergency.</p>\r\n<p class=\"p1\"><em>(d) “Rent”</em></p>\r\n<p class=\"p1\">The key purpose of a Co-Location Agreement is to enable the tenant to access the power available for its IT equipment. In the early days of such agreements, “rent” under a Co-Location Agreement was calculated on the area of the premises being leased, as is usual for general commercial leases. However, in recent years, the “rent” payable under Co-Location Agreements has, more appropriately, been calculated on the supply of power to the tenant’s equipment. Commercial discussions between the parties should therefore be focussed on calculation of rent based on power supply rather than area since the premises required depends on what power is available in order to provide an end user with reliable and fast telecommunications connections.</p>\r\n<p class=\"p1\"><em>(e) Grant of security interests </em></p>\r\n<p class=\"p1\">An end user should ensure that there is a provision in the Co-Location Agreement that prevents the Data Centre Service Provider from creating any security interests over an end user’s assets that are located in the data centre.</p>\r\n<p class=\"p1\"><em>(f) Meet Me Rooms</em></p>\r\n<p class=\"p1\"><span class=\"s1\">A unique feature of some data centres is connection rooms called “Meet Me Rooms” that allow end users to connect to other telecommunications carriers or third party networks. A Data Centre Service Provider may elect to house “Meet Me Rooms” as an attractive offering for end users to enable them to access telecommunications carriers at a low cost as the connection is within the Data Centre (rather than the end user having to travel out of the Data Centre to access telecommunication points). </span></p>\r\n<p class=\"p1\">If a Data Centre Service Provider includes “Meet Me Rooms” as part of their service, one issue is who should retain control of the connection from the carrier side and the end user side. Usually a Data Centre Service Provider will engage a third party management company to access both connection points. However, this does raise security concerns in relation to both data security and physical security for end users where a third party has access to their equipment.</p>\r\n<p class=\"p1\">One issue when supplying “Meet Me Rooms” in data centres in the UAE is that the Telecommunications Regulatory Authority may view these cross connects as a regulated activity which only Etisalat and Du are licensed to perform.</p>\r\n<p class=\"p6\"><span class=\"s2\"><strong>Conclusion</strong></span></p>\r\n<p class=\"p1\">As we expect to see data centres and Co-Location Agreements becoming more prevalent in the UAE, the above are unique considerations to be mindful of when drafting a Co-Location Agreement.</p>\r\n<p class=\"p1\"><em>Al Tamimi &amp; Company’s Real Estate team has experience in advising on legal issues relating to leasing and co-location arrangements relating to data centres, and works closely with specialists in our Technology, Media &amp; Telecommunications team. For further information please contact Ian Arnott (i.arnott@tamimi.com) or Andrew Fawcett (a.fawcett@tamimi.com). </em></p>'),
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(104916, 5706, 'content', 'June - July 2017\r\n\r\n<hr />\r\n<p class=\"p1\">The Iraqi Communications and Media Commission (‘Commission’) was established by Coalition Provisional Authority Order No. 65 in 2004 to license and regulate telecommunications, broadcasting, information services and other media in Iraq.</p>\r\n<p class=\"p1\">As of the date of this article, the only way to interpret the available laws with certainty is by direct inquiry with the Commission or other government bodies. A process that, when fruitful, takes a few months at best. To address the needs of this rapidly developing sector, the Commission has recently published a number of public consultations detailing draft future regulations pertaining to various aspects of the Commission’s legal domain.</p>\r\n<p class=\"p1\">While these consultations are not in force as law, they give a good indication of the Commission’s likely future regulatory requirements. This article provides a brief summary of three key public consultations on competition, lawful interception, and quality of service.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Competition Regulation Draft and the Market Reviews Consultation (Published in June 2016)</strong></span></p>\r\n<p class=\"p1\">This proposed telecommunications specific competition regulation builds on the Competition and Monopoly Prevention Law (Law No. 14 of 2010) (‘Competition Law’). That said, the Commission’s draft regulation is quite different from the Competition Law. The Commission’s anticipated regulation will apply only to holders of licenses issued by the Commission because regulation of non-licensed parties requires involvement of other regulatory bodies. The draft regulation contains both preventative and remedial competition preserving measures. Preventative measures or ex-ante regulations are unique to the telecommunication industry in Iraq and aim to intervene in the market before anti-competitive behaviour can occur or cause significant damage to competition. Remedial measures or ex-post regulations in the Commission’s competition regulation draft are largely derived from the Competition Law. The telecommunication specific ex-post competition regulation includes prohibitions on licensees from entering into non-retail agreements with parties who are not end customers, anti-competitive tying or bundling of services, customer discrimination, and other forms of abuse of dominant market power. The draft competition regulation states that the Commission will seek enforcement action against licensees for violations of ex-post regulation in a court with jurisdiction under the Competition Law as provided for under Article 15 of that law.</p>\r\n<p class=\"p1\">The Commission introduces a number of new concepts in its ex-ante regulation of competition in telecommunications and information services. One such new concept is ‘Significant Market Power’. The Commission uses data it collects from licensees as well as definitions and tests set out in a market review policy issued by it to determine Significant Market Power. The Commission published a public consultation on market review in 2015 and a draft policy followed in June 2016 along with the draft Competition Regulation. The market review consultation defines each market using two parameters (1) having demand-side or supply-side substitutability of products, and (2) geographic areas where the conditions of competition are similar. It is important to note that the Kurdistan region was not included in the Commission’s consultation document because the Commission was unable to procure the necessary data from the relevant Kurdistan telecom authority to conduct its review. Due to this disconnect between the relevant authorities and for other practical reasons, the Kurdistan region is likely to be considered a separate market for market review purposes.</p>\r\n<p class=\"p1\">According to the most recent draft market-review policy published by the Commission, the decision whether a given market is susceptible to ex-ante regulation is based on a three criteria test. If all three criteria are met, the market is considered susceptible to Ex-ante regulation. If at least one of the criteria is not met, the market is not susceptible to ex-ante regulation. The three criteria are:</p>\r\n\r\n<ul>\r\n 	<li>presence of high and non-transitory barriers to entry:</li>\r\n 	<li>the market does not tend towards effective competition within the relevant time horizon; and</li>\r\n 	<li>insufficiency of competition law alone to adequately address the market failure(s).</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p6\">When a determination that a market is susceptible to ex-ante regulation, designation of licensees with Significant Market Power will follow. Market share is the most important criterion to designate licensees with significant market power. For example, the June 2016 consultation concluded that Asiacell, Korek and Zain are licensees with Significant Market Power in the mobile market. Designation of Significant Market Power imposes regulations aimed at keeping the market open to new competitors and achieving the best market dynamics possible. For the three licensees mentioned above the market review consultation imposed the following obligations:</p>\r\n\r\n<ul>\r\n 	<li>to allow access to and use of specific network facilities;</li>\r\n 	<li>not to unreasonably bundle;</li>\r\n 	<li>non-discrimination;</li>\r\n 	<li>transparency;</li>\r\n 	<li>price control;</li>\r\n 	<li>cost accounting; and</li>\r\n 	<li>separate accounting.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p7\"><span class=\"s1\"><strong>Assistance for Lawful Interception and Data Retention Regulation Draft (Published in June 2016)</strong></span></p>\r\n<p class=\"p1\">The Assistance for Lawful Interception and Data Retention Regulation Draft builds on existing interception law and provides more clarity on compliance requirements. The draft includes some data retention requirements for providers of communications services, as well as operating procedures and standards relevant to interception. The draft regulation defines the type of authorization required to disclose information and contains obligations not disclose information to unauthorised persons. In addition, the draft regulation contains provisions on cost allocation of its implementation and the penalties for failure to comply. Finally, the draft regulation addresses technical matters such as the use of encryption and what information needs to be collected, retained, and made available on properly authorised request.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Quality of Service Consultation (Published in June 2016)</strong></span></p>\r\n<p class=\"p1\">The Quality of Service Consultation contains a Quality of Service Policy, a Retail Quality of Service Regulation and a Wholesale Quality of Service Regulation. The Commission used the information it received from service providers since the Commission was established to draft those documents. The Commission intends QOS regulation to improve the choice, price or quality of services offered in Iraq and to provide information about quality that will help consumers to make choices and service providers to maintain quality when there are too few choices available. The two regulations and the Quality of Service Policy cover measurements standards, reporting periods and areas, representative samples for reporting of measurements, governance and dispute resolution, sanctions and compliance measures, and measures aimed at ensuring customer awareness.</p>\r\n<p class=\"p1\">The Commission published the Quality of Service Consultation because the quality of service commitments in the existing licenses were poorly defined. While the Commission had copious amounts of information from service providers, it was not easy to compare the quality of service between service providers or verify the information. In addition, some of the new developments were motivated by the Consumer Protection Law (Law No 1 of 2010) and aim to keep the quality of service consistent with prices charged by service providers and claims made by them. The Commission’s regulatory requirements do not prevent consumers from exercising preferences that might actually to be to have low prices with low quality or high prices with high quality. However, when consumers are unable to exercise their preferences because there are too few service providers the Commission’s regulatory requirements aim to ensure sufficiently high quality and sufficiently low prices.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Conclusion</strong></span></p>\r\n<p class=\"p1\">By publishing public consultations and asking for the input of stakeholders, the Commission seems determined to keep the Iraqi telecommunications industry competitive and open to new service providers by offering a level of predictability to future regulations. The Commission aims to regulate only as and when deemed necessary and has made efforts to ensure transparent implementation of its rule making by publishing a draft Rules of Procedure Regulation that will govern its processes. Institutional independence and accountability of the Commission make the new developments a positive step towards better regulation in line with international standards.</p>\r\n<p class=\"p1\"><em>Al Tamimi &amp; Company’s Technology, Media &amp; Telecommunications team regularly advises on the regulation of the telecommunications sector across the Middle East, and works closely with the various teams in our regional offices, including in Iraq, to advise on issues of this nature. For further information on the topic in this article, please contact Andrew Fawcett (a.fawcett@tamimi.com) and Ali Al Dabbagh (A.AlDabbagh@tamimi.com) </em></p>'),
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(104931, 5707, 'content', '<p class=\"p1\"><strong>Data Protection Considerations in Oman </strong></p>\r\n<p class=\"p1\"><em>Overview</em></p>\r\n<p class=\"p1\">There is no specific data protection legislation in the Sultanate but elements of the Cyber Crime Law and Electronic Transactions Law apply.</p>\r\n<p class=\"p1\">The Information Technology Authority (“ITA”), which oversees such matters, has announced in previous years that it plans to prepare a data protection law but the current status of such proposed legislation is unclear.</p>\r\n<p class=\"p1\">Beyond the general principle of tortious harm contained in the Omani Civil Code, Article 48 of the Electronic Transactions Law prohibits prejudicing a data subject’s interests and this could form the basis of an action before the Omani courts.</p>\r\n<p class=\"p1\"><em>Specifics</em></p>\r\n<p class=\"p1\">The Cyber Crime Law makes it an offence to violate the privacy of individuals using technology, but does not impose any obligation on those who collect private data.</p>\r\n<p class=\"p1\">The Electronic Transactions Law has some data protection measures that only apply to those who deal with electronic transactions (defined widely as ‘Any action or contract concluded or to be partially or wholly executed by electronic message’) but not those who collect personal data in any other context or collect non-electronic data.</p>\r\n<p class=\"p1\">Chapter 7 of the Electronic Transactions Law provides that government bodies and authentication service providers (persons expressly so licensed) can use personal data only for the specified purpose it has been submitted for, by the data subject, unless express consent of the data subject is obtained (Article 43). The following matters form exceptions to the prohibition on collateral use:</p>\r\n<p class=\"p4\"></p>\r\n\r\n<ul>\r\n 	<li>investigation of crime</li>\r\n 	<li>collection of tax</li>\r\n 	<li>order of the court; and</li>\r\n 	<li>protection of the data subject’s interests.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p6\">Article 48 provides that no processing that prejudices the data subject’s rights is allowed.</p>\r\n<p class=\"p1\">Articles 49 stipulates that consideration of the security of the data must be made when transferring such data abroad, expressly considering:</p>\r\n<p class=\"p4\"></p>\r\n\r\n<ul>\r\n 	<li>nature of personal data</li>\r\n 	<li>source of information and data</li>\r\n 	<li>purpose and duration of processing</li>\r\n 	<li>destination country and its international obligations</li>\r\n 	<li>relevant rules in destination country; and</li>\r\n 	<li>security measure employed in destination country.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p1\"><em>Extra-territorial effect</em></p>\r\n<p class=\"p1\">Article 2 of the Cyber Crime Law provides that ‘The provisions of this law shall apply to cyber crimes, even if committed wholly or partially out of the Sultanate whenever damage to its interests is ensued, or if the criminal result is ascertained within its territories or being intended to be ascertained therein even though not yet ascertained’.</p>\r\n<p class=\"p1\">Worthy of note, however, is that foreign authentication service providers under the Electronic Transactions Law will only have their certificates recognised if a ministerial decision has confirmed such recognition.</p>\r\n<p class=\"p1\"><em>Enforcement and Sanctions:</em></p>\r\n<p class=\"p1\"><span class=\"s2\">The employees of the ITA have quasi-judicial powers in the application of the provisions of the Cyber Crime Law and the Electronic Transactions Law. </span></p>\r\n<p class=\"p1\">The Cyber Crime Law provides that juristic persons shall be subject to double the maximum limit of the fine applicable to natural persons but extreme caution should be exercised in terms of authorised managers and directors being personally liable for offending acts of juristic entities. Assisting and abetting are punishable in the same way and to the same extent as actual commission of the crimes.</p>\r\n<p class=\"p8\"><span class=\"s1\"><strong>Trade Mark Registration in the Sultanate for brand owners appointing distributors and agents</strong></span></p>\r\n<p class=\"p1\"><em>Overview</em></p>\r\n<p class=\"p1\">The impact of changes to the law, made in 2014 but now becoming apparent, relating to the appointment of commercial agents and distributors, should alert brand owners to the increased importance of registering all their relevant trade marks in the jurisdiction in order to ensure certainty as to the terms on which any such trade mark is licensed to the local agent or distributor.</p>\r\n<p class=\"p1\"><em>Specifics</em></p>\r\n<p class=\"p1\">Agency and distributorship agreements in Oman are governed by the Law of Commercial Agencies promulgated by Royal Decree (“RD”) 26/77 and the amendments thereto (the “Law”) contained in RD 73/96, RD 66/2005, and RD 34/2014. Commercial Agency is defined in the Law as –</p>\r\n<p class=\"p9\"><em>“any agreement whereby a manufacturer or supplier outside Oman assigns one or more merchants or commercial companies in Oman to sell, promote or distribute goods and products or supply services whether in his capacity as an agent, representative or intermediary for the product of the original supplier who has no legal presence in Oman, against a profit or commission.”</em></p>\r\n<p class=\"p6\">The original law, established in 1977, contained numerous provisions protective of agents/distributors. The commercial agency regime was significantly liberalised in 1996, when amendment of the law removed the restrictions against the appointment of multiple agents and appointments on a non-exclusive basis. Further significant changes to the Law were introduced to the Law by Royal Decree 34/2014, effective from 21 July 2014, which amended the law in three major ways:</p>\r\n<p class=\"p10\"></p>\r\n\r\n<ul>\r\n 	<li>The Law no longer expressly provides for compensation on termination of registered agents. The parties to relevant agreements can now decide the terms of renewal and termination of those agreements. The parties can expressly exclude liability for/entitlement to compensation on termination in accordance with the contract terms. Agents can, of course, still mount claims for breach of contract.</li>\r\n 	<li>A registered agent no longer has rights to claim commission from parallel imports and the agent no longer has a right to demand commission from the principal in respect of such imports.</li>\r\n 	<li>Although the power was not previously used due to WTO treaty obligations, the Minister of Commerce and Industry no longer has the statutory authority to ban the import of goods where a dispute between the registered agent/distributor and the principal results in termination of the agency without cause.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p11\"><span class=\"s2\">Article 11 of the Law sets out a requirement for registration of any agency/distributorship agreement with the Commercial Agencies Department at the Ministry of Commerce and Industry. Failure to so register a relevant agreement would render it enforceable only as a civil contract between the parties and not in accordance with the Law.</span></p>\r\n<p class=\"p8\"><span class=\"s1\"><strong>Conclusion</strong></span></p>\r\n<p class=\"p1\"><span class=\"s2\">Notwithstanding the current more principal-friendly provisions of the Law and the Article 11 obligation, relevant agreements often expressly provide that registration of the agreement is prohibited. Whether relevant agreements contain any such negative stipulation and regardless of well drafted termination and non-exclusivity provisions being included in all agreements, brand owners should: </span></p>\r\n\r\n<ul>\r\n 	<li>ensure their trade marks are registered in the Sultanate; and</li>\r\n 	<li>consider stand-alone licences of such trade marks to any agent.</li>\r\n</ul>\r\n<p class=\"p11\">While such advice is broadly protective of principals, well-advised distributors and agents should benefit from the contractual certainty secured by such contractual discipline.</p>'),
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(104946, 5708, 'content', 'June - July 2017\r\n\r\n<hr />\r\n<p class=\"p1\">The ‘thriving economy’ aspect of the plan is largely reliant on the Kingdom’s ability to diversify its economy and reduce its reliance on oil. The transformation of the economy will have wide ranging implications for the Image result for the information and communication technology sector, including the recalibration of the regulatory framework, increased demand for talent and new opportunities for technology-focused businesses.</p>\r\n<p class=\"p1\">In this article, we provide an overview of some of the interesting information and communication technology related programs under Vision 2030.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Developing Digital Infrastructure</strong></span></p>\r\n<p class=\"p1\">Vision 2030 notes that sophisticated digital infrastructure is integral to today’s advanced industrial activities. Digital infrastructure attracts investors and enhances the competitiveness of the economy. For this reason, the government will partner with the private sector (including telecommunications operators) and support local investments in order to help develop the telecommunications and information technology sectors and ultimately lead the digital economy. A particular area of focus is improving the quality and expanding the coverage of high speed broadband to 90 percent of housing in densely populated cities and 66 percent in other urban zones.</p>\r\n<p class=\"p1\">The governance of digital transformation will be strengthened through a national council and improved regulations.</p>\r\n<p class=\"p5\"><span class=\"s1\"><strong>Leader in E-government</strong></span></p>\r\n<p class=\"p1\">The Kingdom aims to become a global leader in e-government by expanding online services and improving its governance standards. It is hoped that this, in turn will boost transparency and reduce delays. To date, a good deal of progress has been made in e-government with the scope of online services having been expanded over the last decade to include employment programs, online job searches, e-learning services, traffic, passports and civil affairs, online payment services and online issuance of commercial registers.</p>\r\n<p class=\"p1\">The scope of current online services will be expanded further to include areas such as geographic information, health care and education. Quality is slated to improve by streamlining processes, and diversifying communication channels. The government will also support the wider use of online applications in government agencies, such as cloud applications, data sharing platforms and HR management systems.</p>\r\n<p class=\"p1\">Although not specifically referred to in Vision 2030, the development of ‘Smart Cities’ also appears to be an area of focus. Recently, the first annual Saudi Smart Cities conference took place in Riyadh with over 700 participants from ministries and governmental bodies from across the Kingdom attending. The Ministry of Municipal and Rural Affairs (MoMRA) used the conference as a platform to bring together key stakeholders and initiate discussion about best-practices and leading technologies and services that could feature in the proposed Smart Cities. It has been reported that the Kingdom will invest over US$500 billion into modernising its infrastructure across the 285 municipalities in line with global standards in order to provide the best quality of life for its citizens.</p>\r\n<p class=\"p4\"><strong>Investing in Emerging Technologies </strong></p>\r\n<p class=\"p1\">The ongoing privatisation of state-owned assets, including leading companies, property and other assets, will bring in new and more diverse revenues for the Saudi government. This will further enhance financial resources to allow it to maximise its ability to invest in large international companies and emerging technologies from around the world.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Localising Defence Industries</strong></span></p>\r\n<p class=\"p1\"><span class=\"s2\">The Kingdom is the world’s third biggest military spender, having just recently signed a deal in Riyadh with the United States for arms to the value of US$350 billion over 10 years, with US$110 billion that to take effect immediately. Lockheed Martin, one of the world’s largest defence contractors and whose technology was part of the deal, said in a statement that the deal “will directly contribute to [Saudi Arabia’s] Vision 2030 by opening the door for thousands of highly skilled jobs in new economic sectors.” </span></p>\r\n<p class=\"p1\"><span class=\"s3\"> The Saudi government plans to manufacture half of its military needs within the Kingdom to create more job opportunities for citizens. Currently only two percent of its military spending occurs within the country, with the national defence industrial sector being limited to only seven companies and two research centres. Localisation is slated to be achieved through direct investments and strategic partnerships with leading companies in these sectors. It is hoped that this will result in the transfer of knowledge and technology, and the development of national expertise in the fields of manufacturing, maintenance, repair, research and development. </span></p>\r\n<p class=\"p1\">The proposed increase in local defence expenditure is expected to also stimulate other sectors such as industrial equipment, communications and information technology, which in turn will help create further job opportunities.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Supporting Small and Medium-sized Enterprises</strong></span></p>\r\n<p class=\"p1\">It has been identified that small and medium-sized enterprises contribute only 20 percent towards Saudi Arabia’s GDP whereas, in certain advanced economies, the figure is around 70 percent. It has been identified that SMEs endure unnecessarily slow and complex legal and administrative procedures. They also struggle to attract the required skills and funding as financial institutions currently provide, at almost five percent of total funding costs – again, a far lower percentage than the global average. To address this, the recently established SME Authority plans to review and revise laws and regulations, remove obstacles, facilitate access to funding, and enable youth and entrepreneurs to market their ideas and products. Additionally, the government will facilitate access to funding for SMEs and it will encourage financial institutions in the Kingdom to allocate up to 20 percent of overall funding to SMEs by 2030.</p>\r\n<p class=\"p1\">Lastly, the government will establish new business incubators, specialised training institutions and venture capital funds to help entrepreneurs in developing their skills and networks. SMEs will also be supported in marketing and exporting their products and services, by leveraging e-commerce and collaborating with international stakeholders.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>E-commerce in retail sector</strong></span></p>\r\n<p class=\"p1\">The Vision has identified that traditional retail dominates about 50 percent of the market in the Kingdom compared to 20 percent in a number of countries in the Gulf Cooperation Council (GCC), with the retail market suffering from limited penetration of modern trade and e-commerce. The government aims to increase the contribution of modern trade and e-commerce to 80 percent in the retail sector by 2030. This is planned to be achieved by attracting both regional and international retail investors, increasing financing of small retail enterprises to stimulate their growth and development and by easing restrictions on ownership and foreign investment.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Conclusion</strong></span></p>\r\n<p class=\"p1\">Vision 2030 offers a great opportunity for the development of the Kingdom’s information and communication technology sector and technology focussed businesses operating in the region are well-placed to benefit from this game changing initiative over the coming years. The potential for Vision 2030 to achieve its stated aims will largely depend on the ability of government entities to work with private sector stakeholders to improve the business environment, including by changing the regulatory framework, facilitating the flow of private investment, developing and nurturing local talent and expediting licensing procedures.</p>\r\n<p class=\"p1\"><em>Al Tamimi &amp; Company’s Technology, Media &amp; Telecommunications team regularly supports clients on information and communication technology matters in the Saudi market. For further information please contact Haroun Khwaja (h.khwaja@tamimi.com) or Nick O’Connell (n.oconnell@tamimi.com).</em></p>'),
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(104961, 5709, 'content', 'June - July 2017\r\n\r\n<hr />\r\n<p class=\"p1\">In the event of default by the customer on their repayment, the banks generally date the cheque(s) in their possession and present it for clearing, and in some cases, even with the knowledge that there are insufficient funds in the customer’s bank account. This results in the cheque(s) being dishonored and the issuer being criminally liable. This allows the banks to then file a criminal case against the customer for the dishonoured cheque(s). Although this is market practice, this is unlawful under the commercial laws of Bahrain and could result in the banks also potentially being criminally liable.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Requirements for a valid cheque under Bahrain law</strong></span></p>\r\n<p class=\"p1\">The Bahrain Law of Commerce states that a cheque should contain the following:</p>\r\n\r\n<ul>\r\n 	<li>The word ‘cheque’ should be written on the instrument;</li>\r\n 	<li>An unconditional order to pay a sum certain in money;</li>\r\n 	<li>The name of the person who should pay the drawee;</li>\r\n 	<li>The place of payment;</li>\r\n 	<li>The date and place of drawing the cheque;</li>\r\n 	<li>Signature of the maker (drawer) of the cheque; and</li>\r\n 	<li>The name of the person to whom or to whose order payment shall be made.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p6\">If an instrument does not contain any of the information listed above, it shall not be deemed to be a valid cheque except in the following cases:</p>\r\n<p class=\"p1\">If the place of payment if not indicated, the cheque shall be payable at the place shown next to the drawee’s name. If several places are indicated next to the drawee’s name, the cheque shall be deemed to be payable at the place first indicated. When these or any other particulars are not stated on the cheque, it shall be deemed to be payable at the head office of the drawee. When the place of drawing the cheque is not indicated, it shall be deemed to have been drawn at the place shown next to the drawer’s name.</p>\r\n<p class=\"p1\">The Law of Commerce states that cheques cannot be predated. A predated cheque is deemed to be a forgery. There is no guidance on post dated cheques, although it is common practice for post dated cheques to be used.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Criminal liability for signing cheques in respect of a bank account with insufficient funds</strong></span></p>\r\n<p class=\"p1\">The Bahrain Penal Code, as amended, states that: “<em>a prison sentence or a fine or both shall be the penalty for anyone who issues in bad faith a cheque which is not adequately covered by a cash consideration that is payable or if he recovers, after the issue of the said cheque, all or part of the said consideration, so that the balance would not cover the amount thereof, or if the drawee orders the stopping of the payment thereof or if he deliberately writes or signs it in a manner preventing the encashment thereof. The same penalty shall be applicable to any person who endorses a cheque to another or delivers thereto a cheque with the knowledge that it is worthless or is not payable. The same penalty shall be applicable to any person who forces another to give or endorses thereto a cheque with the knowledge that it is worthless or is not payable. If the offender’s act in the preceding paragraph was to cover a conventional loan (i.e. with interest) or to cover unlawful debt, it shall be deemed as an aggravating circumstance</em>”.</p>\r\n<p class=\"p1\">In light of the above and based on case law in Bahrain, in our view, the person signing the cheque would be held personally if they knew that there was insufficient funds in the bank account or generally issues it under circumstances as described in the Bahrain Penal Code.</p>\r\n<p class=\"p1\">When providing a loan, it is common practice for banks to request the account holder to provide signed but undated cheques covering the amount of the loan as security. This allows the bank to date the cheques and present them for clearing upon an event of default by the customer. Presumably once these cheques are dishonoured due to insufficient funds being held in the customer’s account, the bank would be able to issue criminal proceedings against the person who signed the cheques.</p>\r\n<p class=\"p1\">Despite this being common practice in Bahrain, the bank is also likely to be held criminally liable under the Penal Code on potentially two grounds, firstly, by making a physical modification to the cheque (caused by dating it) which has not been made by the issuer and secondly, at the time of obtaining the signed cheques or at the time of presentation, the bank was aware that there were insufficient funds in the account to clear those cheques. The second scenario is particularly relevant where post-dated rather than un-dated cheques are given. The issuer could bring proceedings against the bank on these basis and the banks adopting this practice are therefore at risk. It is common practice by the banks in Bahrain to procure cheques in this manner in order to grant any kind of facility, despite being unlawful under the Bahrain Penal Code. In addition, the use of cheques as a form of security is contrary to the purpose and nature of cheques under the laws of Bahrain (i.e. equivalent of cash).</p>\r\n<p class=\"p1\">Instead of taking signed undated cheques, the bank could take other security, such as a personal guarantee, a pledge over the account, or an assignment, which could be enforced on default. The bank would not be prevented from issuing proceedings against the borrower on default.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Return of post-dated and un-dated cheques</strong></span></p>\r\n<p class=\"p1\">When a customer fully repays their loan or settles their debt with the bank, the bank must immediately return all of the customer’s cheques taken as collateral or destroy such cheques and inform the customer in writing.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Dishonored cheques</strong></span></p>\r\n<p class=\"p1\">In addition to criminal liability associated with dishonoured cheques, the Central Bank of Bahrain will impose penalty charges of seven Bahraini Dinars (“BD”) on each returned cheque for the reasons of ‘Refer to Drawer’, ‘Not Arranged For’, ‘Present the cheque again’, and ‘Account Closed’ payable by the bank. Banks in Bahrain are entitled to charge customers no more than fourteen BD in respect of each dishonoured cheque.</p>\r\n<p class=\"p1\"><em>Al Tamimi &amp; Company’s Banking and Finance team regularly advises on security creation and enforcement in Bahrain. For further information please contact Natalia Kumar (n.kumar@tamimi.com).</em></p>'),
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(104980, 5710, 'content', 'June - July 2017\r\n\r\n<hr />\r\n<p class=\"p1\">The long anticipated law was unanimously approved by the House of Representatives. It is the first law to comprehensively regulate sports related matters in Egypt. It significantly reduces discretionary powers previously held by the Ministry of Youth and Sports (the “Ministry”) and repeals other conflicting legislation, notably certain sports specific articles of Law No. 77 for 1975 regarding Sports and Youth Institutions. Here the authors consider some key aspects of the new Sports Law.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Overview</strong></span></p>\r\n<p class=\"p1\">The Sports Law comprises of 95 articles addressing a range of sports related issues. It is divided into 10 Chapters covering various topics including:</p>\r\n<p class=\"p1\">- Sports institutions;</p>\r\n<p class=\"p1\">- Sports activities;</p>\r\n<p class=\"p1\">- Sports at companies and factories;</p>\r\n<p class=\"p1\">- Sports at schools, educational institutes and universities;</p>\r\n<p class=\"p1\">- Sports dispute resolution; and</p>\r\n<p class=\"p1\">- Investment in sports.</p>\r\n<p class=\"p1\">The Sports Law introduces several new concepts and fills several existing gaps in the regulation of sports in Egypt. Firstly, it fills the prevailing legal vacuum regarding companies which operate sports facilities, including private clubs, by regulating such companies. Secondly, it establishes an arbitration centre specialising in sports related disputes. Thirdly, the Sports Law recognises the standing of international codes and statutes, such as; the World Anti-Doping Agency (WADA) and the Olympics. Finally, it refers relevant matters to the Egyptian Olympic Committee and the Egyptian Paralympics Committee.</p>\r\n<p class=\"p1\">The enactment of this law highlights the previous lack of sufficient regulation surrounding sports in Egypt, and begs the question why appropriate steps were not taken sooner. It may be that certain entities stood to benefit from the lack of regulation and accordingly sought to frustrate any sought reforms. For example, the Ministry was the authority authorised to supervise many public sports organizations, and has been largely left to its own devices, save for minor regulations. This situation afforded the Ministry significant discretion to promulgate, and enforce, its own decrees. The Ministry was, essentially, both a legislative and executive authority in matters relating to sports.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Sports Dispute Resolution</strong></span></p>\r\n<p class=\"p1\">The previous law governing youth and sports organizations was issued and amended over forty years ago. It had become outdated in terms of the types of transactions taking place and the types of entities it covered. The previous law failed to provide a particular mechanism for the resolution of sports related disputes. The Sports Law fills this gap, providing in Article 66 for the establishment of an independent Egyptian Sports Arbitration Centre, residing in the Egyptian Olympic Committee (the “Centre”). The Centre enjoys jurisdiction over disputes where one party is an entity, a person, or an organisation governed by the Sports Law.</p>\r\n<p class=\"p1\">Article 66 further provides that the dispute resolution mechanisms applied at the Centre shall be mediation, conciliation, and arbitration. Whilst the Sports Law permits these recourses, it does not establish appeal procedures.</p>\r\n<p class=\"p1\">Article 67 of the Sports Law provides that agreements referring disputes to the Centre are to be concluded in arbitration agreements, submission agreements or stated in a sports related statute. It further states that disputes referred to the Centre may relate to, amongst others; (i) disputes arising out of the application of the Sports Law or the statutes of the Egyptian Olympics and Paralympics Committees, (ii) disputes arising out of television rights and broadcasting agreements, sponsorship agreements, intellectual property rights used during sports competitions, coaches’ contracts, athletes’ contracts, sports agents/intermediary agreements, and other sports related disputes.</p>\r\n<p class=\"p1\">We suggest that, considering the prevailing preference for sports arbitration above traditional recourse to courts, arbitration under the Sports Law will be favourably received. Further, the Sports Law does not make arbitration compulsory, so parties accordingly permitted to seek recourse through the courts, a position which is consistent with the Egyptian Constitution.</p>\r\n<p class=\"p1\">According to Article 68 of the Sports Law, the board of directors of the Centre shall be chaired by the chairperson of the Egyptian Olympic Committee and shall consist of; (i) a representative from individual sports, (ii) a representative from team sports, (iii) a representative from the Ministry of Sports, and (iv) three individuals of legal and technical backgrounds.</p>\r\n<p class=\"p1\">It is worth noting that the Centre should be particularly favourable for litigants with administrative law disputes, as disputes arising from this niche branch of law fall within the jurisdiction of the Centre. The Centre’s jurisdiction extends to all matters relating to public organizations, authorities, and establishments that deal with public goods. This can include sports federations, sporting clubs, and other authorities and committees charged with some kind of public good. Accordingly, such jurisdiction should provide a compromise in matters where administrative law may be biased towards public authorities (which may receive certain privileges based on the service they provides). This makes it far more difficult for private parties to enter agreements with the public authority as the law may not afford the parties equal weight. An arbitration clause in an agreement or executive regulation may avoid such challenges arising from dealings with administrative courts.</p>\r\n<p class=\"p1\">Article 69 of the Sports Law provides that the board of the Egyptian Olympic Committee shall issue a decision in compliance with the bylaws of the Centre and the specified rules for the type of procedure (arbitration, mediation, or conciliation).</p>\r\n<p class=\"p1\">Although the Centre will be established as an independent entity, it will be seated in the Egyptian Olympic Committee, its board of directors will be chaired by the committee’s president, and its bylaws and rules will be drafted by the committee. This may raise concerns as to the impartiality and independence of the Centre, especially in instances where one of the parties involved in a dispute may be the Egyptian Olympic Committee itself.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Investing in Sport Services</strong></span></p>\r\n<p class=\"p1\">Before the Sports Law, there was essentially no regulation or distinction between quasi-public entities, such as sporting clubs, and private entities that establish a sporting club, health club, gym or other type of sports services. Private companies that established clubs or similar facilities, legally found themselves limbo. There was uncertainty whether they were subject solely to the laws regulating companies conducting regular activities, or whether they fell within the legal framework governing ‘sports entities.’ Sports entities were previously strictly regulated by the Ministry. Private companies, on the other hand, remained largely governed by general Egyptian company, civil and commercial laws.</p>\r\n<p class=\"p1\">The legal uncertainty was most apparent in cases where private companies owned and operated a facility, such as a health club. Health clubs could reasonably be within the paradigm of sport, nonetheless do not strictly fall within the framework governing sports entities. This problem was exacerbated by the increase in diversity of sports enterprises, such as football academies as well as health and fitness clubs. Thankfully, Articles 71 to 78 of the Sports Law clarified some confusion by distinguishing between sports entities and companies that conduct sports services, establishing a guiding framework under which such companies may operate.</p>\r\n<p class=\"p1\">All companies that conduct sports services must be joint stock companies. Sports services are not defined in the Sports Law and may include managing, marketing, or operating private clubs and academies, health clubs, and fitness centres. Accordingly, small sports-related businesses (such as spas and gyms) may be obligated to abide by this legal structure.</p>\r\n<p class=\"p1\">These companies, under the Sports Law, are entitled to issue their shares through a public offering and list themselves on the Egyptian Stock Exchange Market, if such action does not affect its sports services. The Sports Law does not define the issues that are considered to affect the companies’ sports services. An individual interpreter may have discretionary power to determine whether or not a company may issue its shares through a public offering or be listed.</p>\r\n<p class=\"p1\">Additionally, sports entities may form joint stock companies with investors and members, or set up branches established by joint stock companies. All such companies remain subject to approval by the competent authorities in terms of activities while remaining compliant to the provisions of the Sports Law. They are also subject to financial oversight, including submitting financial statements to the competent authorities, and minimum and maximum fees for the provision of their services by the Minister of Youth and Sports.</p>\r\n<p class=\"p1\">Upon issuing the rules governing the status reconciliation by the Minister of Youth and Sports, the aforementioned companies will have to reconcile their status within two years in order to ensure their compliance with the Sports Law.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Fan Conduct</strong></span></p>\r\n<p class=\"p1\">The Sports Law establishes sanctions and fines for different actions, including actions of fans, unless the penal code or other law provides for tougher sanctions. Actions sanctioned by the Sports Law may include establishing or managing sports groups. This may be interpreted as a provision criminalising the ultras groups (i.e. dedicated supporters of football teams) who, in accordance with Article 90, will be subject to imprisonment and fines (with a minimum of EGP 50,000 and a maximum of EGP 200,000). Although ultras groups will be subject to stringent fines and imprisonment, regulation of and sanctions relating to executive management of sports legal entities (as stated in Article 93) remain vague.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Revisions and General Provisions</strong></span></p>\r\n<p class=\"p1\">The Sports Law changed the framework governing other sports entities. The most important of these changes is the increased role of general assemblies in governing such entities. Previously the Ministry held this power. Prior to the enactment of this law, sports entities were governed by bylaws uniformly issued by the Ministry. The Sports Law enables such entities to draft and enforce their own bylaws, with the approval of their general assemblies. The Sports Law will also give general assemblies plenary power to remove or change the board of directions without fear of Ministry intervention. The Egyptian Olympic Committee will be charged with providing sample bylaws for reference.</p>\r\n<p class=\"p1\">The Sports Law also includes provisions regulating previously unregulated areas of sports. For example, it stipulates that athletes representing Egypt in competitions at home or abroad may not be penalized for absence from work or school during the time of the competition.</p>\r\n<p class=\"p1\">The Sports Law brings the Egyptian Organization for Anti-doping, an organization previously untethered from local regulation, under legal framework. According to Article 34 of the Law, this organization will supervise the enforcement of the applicable international anti doping codes in Egypt.</p>\r\n<p class=\"p1\">The Sports Law accordingly covers far more areas than those covered by the laws preceding it while amending and expanding various areas already in existence.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Conclusion</strong></span></p>\r\n<p class=\"p1\">The promulgation of the Law is an important step in the evolution of the sports sector in Egypt. Its enactment was necessary following a series of unfortunate events relating to sports that have occurred in recent years. The application and interpretation of the Sports Law, however, remains to be seen and requires careful supervision.</p>\r\n<p class=\"p1\">The Sports Law will hopefully be the breath of fresh air the sporting sector needs to grow with confidence. The surge in sports promotion in society and the boom of the global sports market (estimated by PWC globally to exceed US$145 billion in 2015) creates a need a legal framework that enables growth, rather than hinders it.</p>\r\n<p class=\"p1\"><em>This article was first published by LawInSport on www.lawinsport.com on 9 June 2017.</em></p>\r\n<p class=\"p1\"><em>Laila El Shentenawi (l.elshentenawi@tamimi.com) is a Senior Associate in the Arbitration and Dispute Resolution practice based in the Dubai office and a member of Al Tamimi’s dedicated Sports &amp; Events Management practice. Laila focuses on international commercial arbitration, investment arbitration, mediation and sports dispute resolution. Her clients include governments, regional organisations, international organisations, multi-national companies, banks, investors, international athletes and sports bodies.</em></p>\r\n<p class=\"p1\"><em>Farah Ramzy is an Associate at Al Tamimi &amp; Company in Egypt with their Corporate Structuring Practice and a member of Al Tamimi’s dedicated Sports &amp; Events Management practice. Farah has experience in inland companies and partnerships, advising clients on matters of incorporation, structuring, maintenance, and liquidation . Along with her legal career, Farah is also professional volleyball player who recently took her team to the African Championship finals.</em></p>\r\n<p class=\"p1\"><em>Youssef Sallam is a paralegal at Al Tamimi &amp; Company in Egypt with their Corporate Structuring Practice. Youssef focuses on incorporations onshore and offshore, company maintenance, and legal research. He also occasionally assists the Arbitration Practice as well as the Corporate Commercial Practice.</em></p>'),
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(105005, 5711, 'content', 'June - July 2017\r\n\r\n<hr />\r\n<p class=\"p1\">When a ship collision occurs the parties are faced with evaluating risks, including loss of life and loss of assets, and consequent damages to the environment.</p>\r\n<p class=\"p1\">In Kuwait, liability for ship collision is governed by the Kuwait Maritime Law No. 28 for the year 1980 (‘The Maritime Law’) and the Kuwait Civil Law No. 67 for the year 1980 (‘The Kuwait Civil Law’).</p>\r\n<p class=\"p1\">Article 227/1 of the Kuwait Civil Law says:</p>\r\n<p class=\"p2\"><em>“Every person who by his faulty act has caused harm to another person shall be liable to reparation regardless of whether he was perpetrator or incitor and abettor.”</em></p>\r\n<p class=\"p3\">Consequently, there are three main pillars for the application of liability for ship collision at Kuwaiti Law:</p>\r\n\r\n<ul>\r\n 	<li>\r\n<div class=\"p4\">An act,</div></li>\r\n 	<li>Damage,</li>\r\n 	<li>A causal link between the act and the damage.</li>\r\n</ul>\r\nIf there is an incident involving a maritime collision in Kuwait, these three pillars must be present to oblige the defendant to compensate the aggrieved party. Furthermore, the person claiming damages has the burden to proof that these three main pillars are present, and that the defendant is liable for damages caused by the ship collision.\r\n<p class=\"p7\"><span class=\"s1\"><strong>What is a Collision?</strong></span></p>\r\n<p class=\"p1\">Article 223 of the Maritime Law defines a collision:</p>\r\n<p class=\"p2\"><em>1 - Where a collision occurs between mercantile ships or between mercantile ships and inland navigation boats the compensation accruing in respect of the damage caused to ships, items and persons on board the ship shall be settled in accordance with the provisions of this Chapter, regardless of the waters where the collision takes place.</em></p>\r\n<p class=\"p8\"><em>(2) The foregoing provisions shall also, where no material collision happens, apply to compensating the damage caused by one ship to another, to items or persons on board such ship, if such damages resulted from the movement of the waves because the ship was manoeuvring or failed to manoeuvre or because of failure to observe the laws or regulations.</em></p>\r\n<p class=\"p3\">In short, a’maritime collision’ is defined under Kuwaiti Maritime Law as the occurrence of a physical impact between two floating establishments (whether this impact was material or not).The rules of collision apply when calculating the damages caused by one vessel to another.</p>\r\n<p class=\"p1\">It has been established by case law that the rules of collision are excluded in all cases where the vessel collides with a fixed object such as a pier. It is assumed that the collision takes place between two floating objects and at least one of them will be a vessel regardless of its size, and it does not matter whether the vessel was in motion or anchored.</p>\r\n<p class=\"p1\">Articles 224, 225, 227 and 228 of the Maritime Law assist in determining the liability arising from a collision:</p>\r\n<p class=\"p9\"><em>Article 224: Where the collision is a result of a force majeure, or where there is doubt as to its cause, each ship shall bear the damages she sustained; this provision applies where the ships or one of them were at anchor at the time of the collision.</em></p>\r\n<p class=\"p9\"><em>Article 225: Where the collision is a result of the fault of any of the ships, such ship shall be bound to pay such damages which resulted from the collision.</em></p>\r\n<p class=\"p9\"><em>Article 227 :The liability stipulated in this Chapter shall apply where the collision was due to the pilot’s fault, even though pilotage is mandatory.</em></p>\r\n<p class=\"p9\"><em>Article 228: A fault may not be assumed in regard to liability arising from collisions.</em></p>\r\n<p class=\"p3\">It is clear from the above articles of the Maritime Law that proof of fault is essential. The burden of proving the fault for the collision lays with the claimant in the lawsuit brought by him for compensation. The claimant must show that the defendant has breached the general rules for proving fault of the defendant, whether by taking a wrong action, or by neglecting to follow the laws in Kuwait concerning the regulation of sailing on the seas. Further, the claimant must prove a causal link between the fault and the damage which is claimed.</p>\r\n<p class=\"p7\"><span class=\"s1\"><strong>Types of Collision</strong></span></p>\r\n<strong>Collisions arising from unexpected or doubtable reasons: </strong>\r\n<p class=\"p10\">Article 224 of the Maritime Law does not differentiate between collisions arising from unexpected reasons (e.g., an act of God orwar) and those collisions which occurred for ‘doubtable reasons’. As long as the exact cause of the collision cannot be established, the incident will be considered to have occurred by reason of a ‘force majeure.</p>\r\n<p class=\"p11\">A collision arising from a force majeure includes any unexpected accident that cannot be prevented and which has caused damage. In the case of force majeure, the defendant must prove that he was not at fault and that he had taken all the precautions required to prevent the accident under the circumstances of the case.</p>\r\n<p class=\"p11\">A collision will be deemed to have happened for doubtable reasons when the court finds that the data provided to explain the collision does not prove a force majeure, or does not prove the existence a fault of any of the vessels, or a common fault that has caused the accident. In the case of ‘doubtable reasons’, each vessel shall bear the damage caused to her as if the incident was exactly as if it was a force majeure case.</p>\r\n<strong>Collisions arising from an individual fault of one of the vessels:</strong>\r\n<p class=\"p11\">Article 225 of the Maritime Law clearly states that if the collision occurred due to the fault of one of the vessels, the party at fault will be liable to the other party to the maritime collision. Further, the party at fault will be liable towards any third party, and will be responsible to compensate the third party for the damage which occurred due to the vessel which caused the maritime collision.</p>\r\n<strong>Collisions arising from a common fault:</strong>\r\n\r\n<em>Dividing the damage in case of a common fault:</em>\r\n\r\n&nbsp;\r\n<p class=\"p15\">Article 226/1 of the Maritime Law stipulates that ‘<em>in case of a joint fault, the liability of each ship shall be assessed commensurately with the fault committed; however, where it is impossible due to the circumstances to assess the percentage of the fault of each ship, or where it appears that the fault was of equal degree, the liability shall be apportioned equally</em>’.</p>\r\n<p class=\"p15\">In drafting Article 226/1 of the Maritime Law, it would appear that the Kuwaiti legislators determined the apportionment of liability for each ship involved in the maritime collision based on the legal principle as stipulated in Article 227/1 of the Kuwait Civil Law, which states that each person should be responsible for the damage he had caused.</p>\r\n<p class=\"p15\">However, it is often hard to determine liability in cases where there are multiple faults on the part of each party to the maritime collision. It may be the case that all these faults combined have caused the damage, or that a specific fault has caused a higher percentage of damage than the other faults. The legal principle at Kuwaiti Law requires a causal link between the fault and the damage, and not between the fault and the incident, which resulted in the damage. The Kuwaiti Court will determine the division of responsibility for each party based on the seriousness of the fault and the court will examine each fault in accordance with the general rules of civil liability determined by Kuwaiti Law.</p>\r\n<p class=\"p15\">It should be noted that, if the court fails to determine the proportion of faults that occurred from each vessel, and if the court cannot determine the percentage of liability attributable to the specific fault and the contribution to causing the damage, it will conclude that the award of damage should be equally divided between the vessels.</p>\r\n&nbsp;\r\n\r\n<em>Third party’s claim for the material damages sustained from the collision: </em>\r\n\r\nIn the case of a maritime collision in which damage may be sustained to the cargo or luggage which has been carried by the vessel, Article 226/2 of the Maritime Law outlines the ability for a third party to file a civil case.\r\n<p class=\"p15\">Article 226/2 of the Maritime Law stipulates that ‘<span class=\"s2\"><em>the ship at fault shall be liable, but not jointly, according to the percentage stipulated in the preceding paragraph, to third parties for damages suffered by ships, goods, luggage or other property belonging to the seamen, passengers or any other person on board of the ship</em></span>’.</p>\r\n<p class=\"p15\">Therefore the third party should file its compensation claim for losses or damages sustained to cargo or luggage only against the actual carrier according to the agreed contractual conditions between the third party and the actual carrier. The third party does not have the right to file its suit against the vessels involved in the collision jointly.</p>\r\n<p class=\"p15\"><em>Compensation for the personal injury sustained from the collision:</em></p>\r\n&nbsp;\r\n<p class=\"p15\">Article 226/3 of the Maritime Law stipulates that ‘<em>The liability shall be joint where the damage was the result of the death or injury sustained to persons on board of the ship; where a ship pays more than her share she shall have a right of recourse against the other ships</em>’.</p>\r\n<p class=\"p15\">Therefore, in the case of death or injury, the aggrieved party has the right to commence proceedings jointly against the vessels involved in the collision.</p>\r\n<p class=\"p7\"><span class=\"s1\"><strong>The Court having Jurisdiction over </strong></span></p>\r\n<p class=\"p7\"><span class=\"s1\"><strong>Collision Lawsuit</strong></span></p>\r\n<p class=\"p1\">Article 231 of the Maritime Law sets out several options for the claimant to commence civil proceedings and in the event of a ship collision:</p>\r\nAn applicant may initiate proceedings before any of the following courts:\r\n<ul>\r\n 	<li>The court of the defendant’s domicile or the court having jurisdiction over the place wherein lies any of the ship’s exploitation centres;</li>\r\n 	<li>The court of the area wherein an attachment was effected on the defendant’s ship which caused the damage or, where permissible, on another ship belonging to him, or the court of the place where attachment could be but was not affected because the defendant produced a guarantee or other security;</li>\r\n 	<li>The court of the place where the collision happened, where it happens in ports, wharfs or inland waterways.</li>\r\n</ul>\r\nThe litigants may agree to initiate proceedings before a court other than the foregoing or to refer the dispute to arbitration.\r\n\r\n&nbsp;\r\n<p class=\"p3\">Therefore, claimants have more than one choice to file its case before one of the courts aforementioned and alternatively, the parties may agree to refer the matter to the arbitration.</p>\r\n<p class=\"p1\">It is important to note that the limitation period to file a lawsuit regarding maritime collision is two years from the date of the incident ,</p>\r\n<p class=\"p6\"><strong>The Evidence Acceptable to Prove a Collision</strong></p>\r\n<p class=\"p1\">In maritime collision cases, it is important to note that two processes will take place in the immediate aftermath regarding the collision sustained. There will be a civil action dealing with the compensation claims for the damages sustained, and alongside the civil proceedings, a criminal investigation shall take place covering the investigations into liability for the collision.</p>\r\n<p class=\"p1\"><span class=\"s3\"> The criminal investigation is undertaken by the Kuwait General Prosecution. The General Prosecutor will conduct the investigations into the circumstances of the incident and identify the responsible party who caused the damage due to his fault. Whereas the prosecutor is not specialized in the maritime field, the prosecutor will rely upon the survey reports which are carried out in respect of the collision. The criminal prosecutor may also appoint an expert to submit his opinion on the circumstances of the collision. </span></p>\r\n<p class=\"p1\"><span class=\"s3\"> The civil process will be started when an injured party file his case before the Kuwaiti court’s seeking compensation for the losses sustained to him. The civil court will investigate the material and moral losses sustained which shall be proved by the claimant and shall determine the compensation in accordance with the sufficient documents submitted by the parties. Article 9 of the Kuwait Evidence Law applies to civil and commercial matters which are dealt with before the Kuwaiti Civil courts and the provision states that :</span></p>\r\n<p class=\"p2\"><em>“Official documents are binding evidence to all people, including matters made by the public officer within the limits of his mission or signed by the concerned parties in his presence, unless indicated as falsified via legal route.</em></p>\r\n<p class=\"p1\">Article 8 of the Kuwait Evidence Law defines the documents which shall be considered ‘official documents’:</p>\r\n<p class=\"p2\"><em>Official documents are what a public officer or a person assigned to public service has obtained on his hands from the concerned parties, in accordance with the legal conditions and within the limits of his powers or his competency.</em></p>\r\n<p class=\"p1\">It should be stressed that in accordance with the above provisions, the court will give priority to ’official documents’ issued from governmental entities rather than any other documents which may be submitted by the parties to support their defences.</p>\r\n<p class=\"p7\"><span class=\"s1\"><strong>Conclusion </strong></span></p>\r\n<p class=\"p1\">In the light of the above, we advise that a party involved in a maritime collision should try to obtain survey reports which are issued from governmental authorities and/or be keen to conduct a joint survey undertaken by the parties involved in the collision (i.e vessel and vessels). This is important because both the General Prosecutor in criminal proceedings and the Kuwaiti civil courts investigating the basis of the compensation and defining the act, the damage and the causal link between them, usually rely on the conclusions of the official survey reports carried out regarding the collision.</p>\r\n<p class=\"p1\">It is also important to note that the conclusion of criminal proceedings, the General Prosecutor will impose a fine on the vessel at fault in case that she caused material damages, and in such case the party who has suffered harm shall be entitled to claim for compensation from the party responsible for this act in later civil proceedings.</p>\r\n<p class=\"p1\"><span class=\"s4\"> In order to prove loss arising from the maritime collision, it will be important for a claimant to collate the original invoices that determine the losses sustained by the claimant in determining the amount of the compensation, and to make reference to the survey reports issued by the governmental authorities in connection with the criminal investigation into the maritime collision. If no official survey report is available, it is recommended that the claimant submit a joint survey report undertaken by the parties involved in the collision (i.e., vessel and vessels) as evidence. </span></p>'),
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(105023, 5711, '_yoast_wpseo_metadesc', 'In maritime law, the term ’Ship collision’ is given when a physical impact occurs between two ships resulting in an accident which causes damage. The ship collision can occur between a moveable object, such as a ship, and a stable object like a quay or a floating structure like an offshore drilling platform.');
