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(83050, 4530, 'content', '<p>Since 2010, the global economy has continued to struggle, impacting the Middle East.&nbsp; Sanctions on Iran have increased, impacting the region&rsquo;s bilateral trade and investment, and we have also seen the &lsquo;Arab Spring&rsquo; protests, which have directly impacted politics and economics within the region.<br /><br />Al Tamimi &amp; Co established a dedicated Property Practice in 2003, and many of the lawyers in the Property team have been practising in the UAE since then.&nbsp; As such, we have witnessed first hand the changes that have occurred over the last decade and have been at the forefront of developing legal initiatives and advising government departments on real estate matters.<br /><br />In mature markets throughout the world, it is fairly much taken for granted that the necessary laws and regulations are in place to provide for all scenarios &ndash; boom, bust, investor protection, co-ownership, legally protected registration of title etc.<br /><br />However, when HH Sheikh Mohammed Bin Rashid Al Maktoum announced in May 2002 that real estate in designated areas of Dubai would become available for ownership by foreigners on a freehold basis, there were virtually no specialized laws and regulations in place to accommodate Dubai&rsquo;s burgeoning real estate market.&nbsp;<br /><br />The same can be said of Abu Dhabi upon enactment of Law No. 19 of 2005, which allowed property ownership in the Emirate for the first time.&nbsp; The Northern Emirates legislative framework remains inconsistent in areas but is slowly developing.<br /><br />Given the interest in real estate investment within the Middle East region generally, the task has been to systematically introduce the necessary new legislation and regulations to create a robust and comprehensive structure in which to protect and legislate for all parties&rsquo; rights and obligations, which will, in time, underpin and support the real estate markets.<br /><br />Much of the United Arab Emirates now permits foreigners to own real estate in certain areas.&nbsp; Other countries beyond the UAE remain restrictive, and in our next article we shall focus on KSA and Qatar.<br /><br />Dubai has been at the forefront of the legislative development, and now, at the middle of 2012, we can see the emergence of a mature real estate market and a continued flow of inward foreign investment into real estate, whether from within the GCC region or internationally, in respect of all asset types.&nbsp;<br /><br />This article therefore continues our focus on legislative development within the real estate market in the UAE, and as mentioned above, in our next article we shall consider the Qatar and KSA markets, which continue to grow, and where we have also had the benefit of long-standing experience.<br /><br /><strong>(B)&nbsp;DUBAI</strong><br /><br />The issue of new legislation has been relatively quiet since the end of 2010, but as mentioned above, Dubai&rsquo;s legislative framework in respect of real estate matters had developed considerably between 2002 and 2010.&nbsp;<br /><br />Following the creation of Dubai&rsquo;s Real Estate Regulatory Authority (&ldquo;RERA&rdquo;) in 2007, we have seen it playing an increasingly public and crucial role in developing and supervising Dubai&rsquo;s real estate regulatory framework and development.<br /><br />The &lsquo;Escrow Law&rsquo; introduced in 2007, brought protection for purchasers&rsquo; money invested into off-plan sales in developments under construction, later supplemented by creation of the Interim Real Estate Register, further providing protection of purchasers&rsquo; rights through a requirement to register off-plan sale contracts on the interim register, which is maintained by the Dubai Land Department.<br /><br />In 2008, a framework for registration of lenders&rsquo; pre-mortgage interests on the Interim Real Estate Register, as well as mortgages on the main Real Estate Register, (with mechanisms for enforcement and sale of property by public auction) was introduced. Originally intended to provide banks and other financial institutions with the confidence they needed to lend against property in Dubai, this legislation was timely in providing an ability to deal with the new phenomenon of mortgage defaults brought about by the global financial crisis.<br /><br />The Strata Law was another major piece of legislation enacted, with implementing regulations following in April, 2010.&nbsp; Today, developers continue to work towards implementation of compliant strata schemes, empowering property owners to jointly manage their communities and buildings, whilst protecting transparency and fairness on issues such as service charge levels, contracting with service providers, and the use of common areas and facilities.&nbsp;<br /><br />The legislative initiatives featured above sought to bring regulation, protection and fairness between parties in a positive property market. However, the Dubai Government was soon required to introduce measures to ease tensions and conflicts that ensued between developers, investors and financiers when the flow of money ran dry in late 2008.<br /><br />As a result, enactment of Law No 9 of 2009 established a process for a developer to terminate an off-plan sales contract for purchaser defaulted of its payment obligations.&nbsp; It became imperative to ensure that in cases where developers sought termination of a sale contract due to non-payment by a purchaser, the measure of compensation that a developer could expect would be directly related to his own progress towards completion of the project and fulfillment of the sale contract. Law No 9 therefore introduced a regime whereby the compensation that a developer could claim in the event of his termination of a sale contract was linked to the stage of construction reached on site.<br /><br />These provisions were confirmed by Executive Council Resolution No 6 of 2010, which went further by also establishing grounds upon which a purchaser could seek termination of a sale contract due to the developer&rsquo;s breach. The Resolution also introduced the grounds upon which RERA could take action to cancel a development project and the process to be followed after such cancellation.<br /><br />A final welcome legislative initiative issued in 2010 introduced a mechanism to enable holders of industrial or commercial granted lands in Dubai to convert their granted title to freehold title upon payment of a fee assessed against the market value of the land in a deemed &lsquo;unimproved&rsquo; condition. The benefits of having freehold title rather than granted title include the ability to mortgage the property to raise capital and to sell the property on the open market (subject to applicable nationality restrictions).<br /><br />As regards Dubai&rsquo;s ability to capably deal with the rising volume and specific nature of real estate disputes, we saw a number of specialized dispute resolution forums introduced, namely: the new Property Court; the so-called &lsquo;Bounced Cheque Committee&rsquo;; and the two Special Judicial Committees established to resolve disputes involving Dubai World and the property finance companies Amlak Finance and Tamweel, respectively.<br /><br />Since the end of 2010, legislative development has been relatively quiet.&nbsp; In 2011, a circular was issued by the Dubai Land Department confirming that it was prohibited for offshore companies (except for those incorporated in the Jebel Ali Free Zone) to own property in Dubai.&nbsp; Foreign companies and free zone companies incorporated in the UAE were not affected by this ruling, as these companies are not considered to be offshore.<br /><br />More recently in May 2012, a draft law on the Protection of the Property Investor in Dubai was circulated for consideration and comment, which seeks to introduce the notion that an investor should not be held to a Reservation Form, but should be entitled to see and agree to the full Sale and Purchase Agreement, and be given some time to consider this prior to signing.&nbsp; In the event of non-agreement on the terms, the purchaser is entitled to a refund of its deposit.<br /><br />At the time of printing, the draft law on the Protection of the Property Investor in Dubai remains in draft form and unissued.<br /><br /><strong>(C)&nbsp;ABU DHABI<br /><br /></strong>Development of the real estate market in Abu Dhabi mostly commenced in 2005, when the issue of Law No. 3 of 2005 introduced regulation in respect of registration of real property, including the establishment of a Land Registration Department at Abu Dhabi and Al Ain Municipalities.&nbsp;&nbsp; Of fundamental importance was the clear requirement for every deed creating, transferring or extinguishing real property rights, (including leases with a term exceeding 4 years), to be registered.&nbsp; Confirmation was also provided in the Law, that the absence of registration would render such rights ineffective.<br /><br />Importantly, the law further permitted UAE nationals to sell or purchase residential, commercial, investment or agricultural land allotted to them, with the main proviso that at least 5 years must have passed since the date of such allotment.<br /><br />Subsequently, Law No. 19 of 2005 (incorporating amendments to it under Law No 2 of 2007) introduced provisions relating to ownership, development, leasing and mortgaging of land and property in Abu Dhabi, and differentiated between the rights of UAE nationals, GCC nationals and non-UAE/GCC nationals.&nbsp;&nbsp;<br /><br />Law No 19 introduced the creation of Investment Zones (currently 12 in number), as areas of land within Abu Dhabi in which GCC and non UAE/GCC nationals were entitled to real property rights - which as a fundamental difference to Dubai, specifically exclude ownership rights to land for foreigners.<br /><br />The above laws were supplemented in 2010 by Executive Council Resolution No. 64, which reconfirmed current legislation governing the rights of ownership and registration of property and property rights within Abu Dhabi, and set out specific directions to the Registrar of the Emirate&rsquo;s real estate registration departments to:</p>\r\n<ul>\r\n<li>register ownership rights (and issue registration certificates/title deeds) to non-UAE nationals for property rights located within the Investment Zones.&nbsp; (The Resolution also clarified and confirmed the status of long-term leases granted to non-UAE nationals over land located within the Investment Zones, by directing registration of rights to long-term leases);</li>\r\n<li>register ownership of property rights in respect of property located outside the Investment Zones (as may be permitted pursuant to current legislation); and</li>\r\n<li>register mortgages over property and property rights, (whether same are located inside or outside the Investment Zones).</li>\r\n</ul>\r\n<p>Issue of the Resolution was particularly welcome as it clearly requires commencement of registration of all interests as permitted under current legislation, thereby allowing parties to secure protection of their rights and interests.&nbsp;&nbsp; The Resolution reconfirmed Law No 19 of 2005&nbsp; stating that a new resolution will be issued dealing with common ownership of property and the management and administration thereof.<br /><br />Whilst current legislation already provides a framework relating to property registration generally, in practice, minimal registration of property and/or property rights within the Investment Zones particularly, has occurred to date.&nbsp;&nbsp;<br /><br />The laws have established legal principles, but do not yet have sufficient teeth to enable full implementation.&nbsp;In particular, we still await issue of separate rules and regulations specifically dealing with common ownership of property.&nbsp; Given that a number of multi-owned towers have now been completed and either have been, or are in the process of being handed over to owners, this would be a welcome addition to the existing legislative framework, providing timely certainty and clarity in respect of co-ownership matters.<br /><br />We are aware that such regulations are currently being drafted, and that the concept of a consolidated property law has been mooted.&nbsp; In our view, the promulgation of specific legislation dealing with these issues, (which in the absence of same mostly remain governed by the UAE Civil Code), would greatly supplement existing legislation and support the real estate industry within Abu Dhabi, which continues to be impacted by the global recession.<br /><br /><strong>(D)&nbsp;Northern Emirates</strong><br /><br /><strong>Sharjah<br /><br /></strong>Sharjah introduced its property registration law in 1972 through Law No 10 of 1972.&nbsp; Pursuant to this Law and its Implementing Regulations, a real estate registration office was established in Sharjah which allowed only UAE nationals to own property in Sharjah.&nbsp; Exceptions were permitted only with the Ruler&rsquo;s approval.&nbsp; Law No. 5 of 2010 Concerning Real Estate Registration and Executive Council Decisions No. 32 and No. 38 of 2005 regarding the Sale of Properties in Sharjah were subsequently issued which extended the scope of Law No. 10 of 1972, permitting GCC nationals the right of ownership of property in Sharjah.<br /><br />In 1980, Law No. 4 was issued which regulated ownership of multi-storied buildings and provided an early concept of jointly owned property/strata ownership.&nbsp; This was enhanced in 1981 by the issue of Amiri Decree No. 1 which further regulated the rights and obligations of each owner in a multi-owned building, together with the management of the building and provided for the formation of a Co-owners&rsquo; Association.<br /><br /><strong>Ras Al Khaimah<br /><br /></strong>Over recent years, Ras Al Khaimah has seen a large amount of development of mixed-use projects where off-plan sales to investors have occurred.&nbsp; To support this, specific co-ownership and investor protection legislation was introduced in Ras Al Khaimah as early as 2003.<br /><br />Law of 2003 Regulating Flat Ownership in Ras Al Khaimah introduced the concept of ownership of apartments and floors in multi-owned buildings, providing greater guidance on the concept of co-ownership than existed under the UAE Civil Code. The Law provides for a system of registration of condominium (strata) ownership along with the identification of flats and floors; a right of pre-emption in favour of other owners in the building if one of the owners in the building decides to sell his apartment; and a simplified procedure regarding reconstruction of a building in the case of a building being destroyed.&nbsp; The Law however, did not clarify who has a right of ownership, and this was subsequently clarified by Decision No. 20 of 2005.<br /><br />Decision No. 20 of 2005 provided that UAE nationals can own property in all areas of Ras Al Khaimah. GCC nationals are not specifically provided for in the Decision, but in practice in Ras Al Khaimah, they have been treated in the same way as UAE nationals.&nbsp; It was provided that all other nationalities were able to own property in specific investment projects provided that they established a company in the Ras Al Khaimah Free Zone or Al Hamra Free Zone, and purchased the property in the name of the company, i.e. foreign nationals could not buy directly in their individual capacity.&nbsp;&nbsp; This was subsequently amended through issue of Decision No. 12 of 2007, which relaxed the previous rules, allowing non-UAE nationals and corporate bodies (regardless of where they are incorporated), to own freehold title to property in projects owned by RAKIA, Al Hamra and Rakeen, without the need to establish a company in Ras Al Khaimah.<br /><br />In 2006, Amiri Decree No. 15 was issued to permit registration of mortgages by way of security over long term leases (i.e. leases with a term exceeding 20 years) of property located in investment areas in Ras Al Khaimah.&nbsp; More particularly, this Decree authorises the creation of a mortgage over such long term leasehold interest. The Ras Al Khaimah Lands Department is directed to establish a &ldquo;Temporary Register&rdquo; for the registration of such &ldquo;Temporary Mortgages&rdquo;. As a condition to registration of a mortgage, the Landlord&rsquo;s consent to the mortgage is required and the term of the mortgage should not exceed the term of the lease.<br /><br />Amiri Decree No. 22 of 2008 established the system of Guarantee Accounts and the sale of off-plan property. It became compulsory for developers who sell off-plan properties to register their names in the Real Estate Developers Register with Ras Al Khaimah Investment Authority to obtain permission/license for the development.<br /><br /><strong>Ajman<br /><br /></strong>In 2008, Amiri Decree No. 7 was introduced to permit UAE and GCC nationals (and companies/entities owned wholly by them, together with public joint stock companies incorporated in the UAE and public corporations and authorities incorporated in Ajman) to own a freehold right over land in Ajman.<br /><br />Additionally, foreigners are entitled to own a right of freehold or usufruct, including long leases for a term of 50 years, with the approval of the Ruler of Ajman.<br /><br />Subsequently, Amiri Decree No. (8) was issued in 2008 regulating the provisions of jointly owned property and common areas within such property.&nbsp; It also required any developer in Ajman to register as such with the Ajman Land Department, and to open an escrow account for the development project.<br /><br />Through Local Order No. 4 of 2008, all developers are required to obtain approval for the Master Plan of a project together with approval for all of the infrastructure work for same.&nbsp; It further restricts a developer from commencing sales for a project, before obtaining a site plan for the underlying land (which will require the issue of a No Objection Certificate certified by the previous owner of the land which confirms that the whole value of the purchase price for the land has been paid).<br /><br />To complement the legislation issued as outlined above, the Ajman Real Estate Regulatory Authority (&ldquo;ARRA&rdquo;) was established in 2008 with the authority to regulate real estate developments in Ajman.&nbsp;&nbsp; In addition, Amiri Decree No. 12 of 2008 was issued to require the creation of project escrow accounts, certified by ARRA and registration of all real estate projects with ARRA.<br /><br /><strong>Umm Al Quwain</strong><br /><br />Umm Al Quwain issued legislation in 2006, through Law No. 3 allowing ownership by UAE and GCC nationals, and Public Joint Stock companies, to own property anywhere in the Emirate. Foreigners were granted the right to own floors without land, together with a 99 year usufruct right or a 50 year musataha right, in designated investment areas.<br /><br />In 2007, Law No. 3 was issued preventing any developer from carrying out real estate development unless it is registered in the Developers&rsquo; Register at the Survey and Planning Department.&nbsp; Further, any developer wishing to sell units off-plan must apply to the Survey and Planning Department to open a Guarantee Account in the name of the project, to be used exclusively for the purposes of construction.<br /><br /><strong>Al Fujairah<br /><br /></strong>There remain, to date, no specific laws regarding property registration and ownership in the Emirate of Fujairah. The provisions of the Civil Code, and the instructions of the Ruler, therefore continue to regulate the real estate sector.<br /><br /><strong>(E)&nbsp;CONCLUSION<br /><br /></strong>In 2010, we considered whether Dubai&rsquo;s real estate market would see a recovery, and our opinion then was, &ldquo;Yes, of course&rdquo;, although not at the property prices and rental values of the dizzying heights of mid-2008.<br /><br />In 2012, we find a maturing market, with assets of quality and good location retaining their value and attracting most investment interest.&nbsp;&nbsp; There is a marked increase of appetite for commercial property providing good yields from occupational leases, and transactions in this area have grown.&nbsp; We have represented purchasers and sellers on several transactions of this nature over recent months, and see interest growing for those assets which are priced correctly.&nbsp;<br /><br />The extent to which recovery of Dubai&rsquo;s real estate market has been assisted by the development of its legislative structure cannot be accurately ascertained, but in our view, it is an important contributing factor, and testament to the importance of the existence of a robust legal framework, to create protection, certainty and security.<br /><br />The real estate market of Abu Dhabi continues to develop and mature, however, it has generally struggled since 2010 &ndash; both as a result of the global recession and, in the residential sector particularly, due to the timing of hand-over of a substantial supply to the market.&nbsp;&nbsp;<br /><br />Regardless of this, Abu Dhabi has created, and continues to create, some much needed prestigious grade A accommodation, both in respect of commercial and retail space.&nbsp; Sowwah Square on Al Maryah Island has proven extremely popular both for commercial and retail tenants, and a number of new malls across Abu Dhabi are predicted to open later in 2012/2013.&nbsp;<br /><br />Combined with the many new hotel developments which have recently opened or are shortly to be opened, Abu Dhabi continues to move on, and has delivered some prestigious real estate developments to date.&nbsp; These are in line with the Abu Dhabi 2030 plan, and the Government retains a long term view on the continued development of the Emirate.&nbsp; The recent reaffirmation of the Government&rsquo;s commitment to the delivery of a number of significant infrastructure projects reflects this, and we continue to watch its progress with interest.<br /><br />In our view, issue of the long awaited strata regulations can only benefit investor confidence and certainty, and we hope that these will appear in the not too distant future.<br /><br />Ras Al Khaimah continues to attract a great deal of interest, particularly in respect of its developing hospitality industry.&nbsp; Indeed, the Government of Ras Al Khaimah continues to actively promote the Emirate as a tourism destination, and the recent creation of the Ras Al Khaimah Tourism Development Authority is testament to this, and is very active in raising the profile of the Emirate within the region and internationally.&nbsp;&nbsp;&nbsp;<br /><br />The Property team at Al Tamimi &amp; Co looks forward with interest, to the new cycle commencing, together with the opportunities, issues and challenges this may bring.&nbsp; It might even be said that, for Dubai, the new cycle has already begun?</p>'),
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(86921, 4731, 'content', 'June 2013\r\n\r\n<hr />\r\n\r\n<strong>1. Arbitration Clause</strong>\r\n\r\nMany commercial agreements now have an arbitration clause embedded within them. The clause regulates the method of resolving any possible future disputes. Usually these are standard clauses provided by the institution which the parties have agreed to use to administer the future dispute. Such clauses should contain, as minimum, details of (a) the arbitration rules that will govern the proceedings and the institution, if any, which is to administer the process; the seat, or legal place of the arbitration, the number of arbitrators, and the language of the arbitration.\r\n\r\nA clause lacking in one of these respects may be inoperable or allow the other party to delay the proceedings whilst the ambiguity is resolved. For example, if the clause does not state the number of arbitrators and no agreement is made on such issue, this will need to be determined by the institution administering the arbitration) or, if the parties have not agreed on an institution, the courts of the seat.\r\n\r\nIf national courts are asked to assist this can waste a significant amount of time and money. In one case handled by Al Tamimi &amp; Company in Abu Dhabi, the claimant resorted to the national court to seek the appointment of a sole arbitrator and the court issued a judgment to appoint a sole arbitrator in line with arbitration clause referred to in the disputed agreement. The agreement specified that the arbitrator shall be one arbitrator to be mutually agreed to by the parties.\r\n\r\nInstead of closing its file the court kept the case on hold by not deciding on the court’s fees which was to be decided on at later stage. The court essentially adopted the arbitration and treated it as a court-administered arbitration under the UAE Procedural law, which is not what the parties had agreed to.\r\n\r\nThe sole arbitrator administered the arbitration and proceeded to issue an award in favor of the claimant, who then filed a fresh case before Abu Dhabi Court to ratify the award. The Abu Dhabi Court of First Instance rejected the case on the basis that law applying to court-administered arbitrations had not been followed. Article 213(1) of the UAE Procedural Law provides that the arbitrator should submit the award to the court within 15 days of its issuance, which did not occur. The claimant appealed on the grounds that article 213(1) was  not applicable to this case as the arbitration was agreed to pursuant to the arbitration clause signed before resorting to court, and so was not a court-administered arbitration. The Court of Appeal confirmed the claimant’s view and overturned the ruling of the Court of First Instance.\r\n\r\nAlthough eventually this matter was resolved, this case shows how a badly drafted arbitration clause leads to a series of unwanted obstacles. To avoid similar obstacles, the parties should have agreed that in the event of disagreement to choose an arbitrator, he will be chosen by the institution to administer the proceedings.\r\n\r\n<strong>2. Submission Agreements / Arbitration Deeds</strong>\r\n\r\nWe noted that arbitration clauses are made before any dispute arises. Submission agreements however are agreements to arbitrate made after the dispute has arisen. Submission agreements are also known as ‘arbitration deeds’, and sometimes as ‘Terms of Reference’ (although as explained below, an arbitration deed or terms of reference are usually prepared irrespective of whether the agreement is by way of a submission agreement or arbitration clause).\r\n\r\nA submission agreement is less common than an arbitration clause. As they are prepared after the dispute has arisen, they tend to be much longer than an arbitration clause. A submission agreement will contain details of the dispute and the issues between the parties, and clearly record that it is being referred to arbitration.\r\n\r\nIt will then contain the same important details as an arbitration clause, such as the legal seat and number of arbitrators. A submission agreement which does not clearly state the details of the dispute being referred to the arbitration may be declared later on as null and void, along with any award made pursuant to it.\r\n\r\nSubmission agreements can be made during litigation to remove the dispute from the jurisdiction of the court provided the Court of First Instance has not issued its judgment yet and the pleadings stage is still taking place.\r\n\r\nIt may be assumed that having an arbitration clause means that there is no need for a submission agreement. The purpose of a submission agreement is to define and specify the scope of arbitration so as to enable the court – later on - to ensure that the arbitral award was issued within the limits specified by the parties. It can be argued that an arbitration clause fulfills this purpose as it limits any arbitration to issues arising from or connected to the agreement, even though the limits are wide.\r\n\r\nUAE Law however is not clear on this.  Article 203(3) of the UAE Civil Procedural Law states that the subject of the dispute must be defined in an arbitration clause or during the examination of the claim, and Article 216(1)(a) provides that an arbitral award can be annulled for lack of an ’arbitration document’. It is not clear if this means arbitration clause or more substantial document such as a submission agreement.\r\n\r\nIt is therefore always recommended that, even though there may be an arbitration clause, that a submission agreement (usually known in this context as an ‘arbitration deed’ or ‘terms of reference’) be signed in any arbitration proceedings whether there is an arbitration clause in the disputed contract or not.\r\n\r\n<strong>3. Arbitration Agreement incorporated by reference</strong>\r\n\r\nA disputed agreement may not include an arbitration clause. Nevertheless if the agreement refers clearly and explicitly to another document which does contain an arbitration clause, the arbitration clause will be deemed to have been incorporated into the main agreement by reference provided the reference is made clearly (such as under the title of “Dispute Resolutions and Governing Law”). If the referral is vague or subject to conflicting interpretation, the national courts may retain jurisdiction.\r\n\r\nIt is common to find this type of arbitration agreement in construction contracts, where the contract may make reference to standard FIDIFC conditions which contain a standard arbitration agreement.  In this regard, the Court of Cassation stated in one of its judgments that:\r\n\r\n“It is sufficient in a construction contract to make a referral, so that in case a dispute arises between the client and the contractor in respect of the construction contract, it becomes resolved through the general conditions of construction (FIDIC). This means that the parties agreed to arbitration in respect of all the disputes arising out of the obligations stated in said contract without the need to refer to the details of such condition, where the referral to it is sufficient…”\r\n\r\n<strong>(Cassation no. 462 of 2002- Hearing of 2/3/2003)</strong>\r\n\r\nNevertheless, the UAE case law has been consistent in its view that arbitration agreements are special agreements which deprive a party of its right to refer a dispute to the local court and therefore must be absolutely clear. We therefore advise that such clauses are avoided, and if this is not possible, that the referred to document be signed in full on every page so that there can be no dispute that it forms part of the main agreement and the arbitration clause was brought to the attention of the parties.'),
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(86424, 4706, 'content', 'May 2013\r\n\r\n<hr />\r\n\r\nTara: As you know, our regional Hospitality practice has grown rapidly over recent years, and we now support an extensive range of clients who operate within the hotel and leisure industry, Each client, whether a hotel  owner, hotel or restaurant operator, tour operator or an investor has different requirements which can cover anything from advice on corporate structure, licensing, acquisition/disposal, appointment of an operator to manage a hotel, employment issues or dispute resolution.\r\n\r\nWe have recently opened our new office in Ras Al Khaimah, one of the Northern Emirates in the UAE, and that decision was driven, at least in part, to support its plans to further enhance and develop the Emirate’s tourism industry.\r\n\r\nThe Technology, Media &amp; Telecommunications practice provides a range of services which are relevant to companies involved in the hospitality, leisure and travel industry.  In your view, what are the main TMT areas that companies operating within this industry, need specialist legal support for?\r\n\r\nNick: Thanks Tara. I appreciate that the Hospitality industry is fairly broad, and requirements will obviously vary depending on the nature of the particular enterprise – be it a hotel operation, restaurant, tour operator or a golf club. Using hotels as a basic reference, one key area where specialist TMT legal support is essential is in respect of technology.\r\n\r\nHotels use technology to enhance guest experience in a variety of many different ways, ranging from streamlining the reservation process to providing in-room entertainment and communications systems.\r\n\r\nTara: Can you give me some specific examples of the type of legal support that the TMT team would provide in this area?\r\n\r\nNick: Well, one example is in the context of software licensing,  implementation and support services.\r\n\r\nMost hotels employ a combination of ‘off-the-shelf” and customized software applications in order to manage a variety of functions, such as reservations and F&amp;B inventory. Such software applications must be appropriately licensed to the hotel by the software provider, and suitably maintained (eg. by an annual maintenance agreement with a service provider), so as to ensure that updates are applied and any errors in respect of such applications do not adversely affect operations.\r\n\r\nAnother example of the type of Technology work we handle is in advising some of the well-known international on-line travel or accommodation booking service providers about the extent to which their on-line activities may need to be licensed in the Middle East region.\r\n\r\nTara: What about on the ‘media’ side of your TMT practice?\r\n\r\nNick: One area in which we encounter a lot of queries from Hospitality sector clients is in the context of advising on local advertising regulations.\r\n\r\nBy way of example, we are often asked to advise on local restrictions on the advertising of alcohol, and on local requirements relating to promotional activities – competitions and so on.\r\n\r\nAn interesting issue that we have been asked to consider on a number of occasions is the use of social media as a platform for promotional activity in the UAE. Not many people know that promotions in the UAE are regulated on an emirate-by-emirate basis, and social media platforms typically require, as part of their terms, that promotions be compliant with local law. For that reason, clients planning on-line promotions in the UAE, or directed at consumers in the UAE, need to know what they must do in order to be compliant with local requirements. We are also asked to assist with developing social media policies for employees, and things like ‘Bring Your Own Device’ policies. We have also advised on reward programmes, which are very popular in a hospitality context, and raise a number of legal issues.\r\n\r\nReviewing agreements relating to in-house entertainment is another example of the wide-ranging Media work that we handle in a hospitality context. A related area that we often handle in the course of our Media practice is the ‘MICE’ sector (Meetings, Incentives, Conferences and Exhibitions), which is closely aligned with the Hospitality sector in many ways.\r\n\r\nTara: And on the ‘telecommunications’ side?\r\n\r\nNick: When it comes to the Hospitality sector, there is a significant overlap between our Technology practice and our Telecommunications practice.\r\n\r\nWe often advise on contractual matters in respect of procuring technology hardware, which includes telecommunications systems, and related services such as implementation and maintenance.\r\n\r\nA regular query that we encounter relates to the use of VoIP in a corporate context. The regulation of VoIP, and other telecommunications-regulatory issues, is very topical for the Hospitality sector - particularly when the legal regime in the UAE for such products may be quite different to other jurisdictions in which our Hospitality sector clients have experience.\r\n\r\nTara: Thanks for your insight. Given the increasing development and sophistication of the hospitality and travel industries in the region, I think there will be more and more opportunities for us to work together.\r\n\r\nNick: Thanks Tara, I look forward to it.  TMT issues can really have a big impact on the day to day operations of a company operating within the hospitality industry, and we are keen to provide our clients with as much support and advice as possible, to avoid any potential pitfalls along the way.\r\n\r\nTara: By the way, when are you going to come and visit our new offices in Ras Al Khaimah?\r\n\r\nNick: I can’t wait. I think Ras Al Khaimah has so much going for it. The beaches and mountains are outstanding. There are already a number of first class hotels, and the plans that are currently being put in place will bring more and more visitors from around the region, and beyond. The opening of Al Tamimi’s office there is a great initiative.'),
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(86447, 4707, 'content', 'May 2013\r\n\r\n<hr />\r\n\r\nThe initiative, called “Transforming Dubai into a Global Centre for Islamic Bonds”, primarily aims at making Dubai the world capital of the sukuk market, hence potentially also transforming Dubai into the world capital of Islamic finance. According to reported statistics, Dubai’s publicly listed Sukuk market alone was valued in 2012 at around USD 10 billion, making Dubai a major player in listed sukuk issuing competing with the world leaders Malaysia and London. Regionally, the UAE leads the sukuk market followed by the main regional issuers, Saudi Arabia and Qatar respectively.\r\n\r\n<strong>Distinguishing factors:</strong>\r\n\r\nThe distinguishing factors behind the success of Dubai’s sukuk industry, and Islamic finance more generally, can be attributed to various factors including economic, legal, administrative, and cultural factors. By way of an example, Dubai was the pioneer in 2010 to exempt Ijara transactions (a structure whereby title to property needs to be transferred to the bank and back to the customer) from the double payment of registration fees payable on a transfer of title; hence rendering this type of transaction more feasible, attractive, and effective. Dubai made these changes ahead of its competitors, including London where the same approach was adopted more recently.\r\n\r\nOn the economic and cultural side, the fact that Dubai is a tax free haven in which a large portion of local and regional fortunes culturally relate to Islamic finance has clear advantages. On the legal and administrative side, the necessary legal instruments were introduced in the UAE ahead of the other countries of the region and were accompanied by an effort from the executive and administrative bodies to adapt and anticipate market needs. These factors have contributed to the UAE becoming the first country in the region to achieve a leading position.\r\n\r\nTo meet the goals set by this ambitious initiative and rise with Dubai to global leadership in this field, we believe that the current legal infrastructure can be further improved and a number of hindering issues would need to be addressed going forward.\r\n\r\n<strong>Issues and solutions:</strong>\r\n\r\nAlthough we believe that the majority of the Shariah supervisory boards in the UAE have somewhat unified approaches on most major issues, it remains true that there is currently no accreditation process for Shariah scholars practicing in the UAE and the role of Shariah supervisory boards need to be more clearly defined. Is the role of the Shariah scholar a compliance, executive, advisory or auditing role? If the role is perceived to be an executive role then a conflict of interest may arise if a Shariah scholar is serving on multiple boards to various types of institutions. To address this issue, Malaysia for instance has limited Shariah scholars to advising only one institution per market segment.\r\n\r\nAlso, many Islamic structures, such as sukuk and property musharaka, apply the concepts of trust and beneficial ownership, which are concepts that is not accepted under UAE law and makes enforcement of Islamic structures in the UAE challenging and, to a certain extent, uncertain. Beneficial ownership is where an individual or group of individuals indirectly benefit from the title of the asset held in the name of someone else. If the local legislator could consider recognising this legal concept or introduce alternatives, this would add certainty to the application of these structures under UAE law and any related security granted over assets located in the UAE. As an example, options available in other jurisdictions include the ability to record beneficial interests in land and to legally register trust interests.\r\n\r\nIn addition, many Islamic structures entail the incorporation of an offshore special purpose vehicle (SPV). For transactions out of the UAE, offshore jurisdictions such as Jersey, the Cayman Islands and the British Virgin Islands are the popular but relatively limited choices. A one stop shop for the incorporation of SPVs for financing purposes within Dubai or the UAE would be advantageous, especially if key criteria such as speed of incorporation, low start up and annual maintenance costs, can be met.\r\n\r\nAnother issue is that courts throughout the UAE are sometimes faced to situations where they need to qualify Islamic finance arrangements using conventional laws that were not initially designed to suit Islamic finance structures because of the lack of adapted laws to date. As an example, the Dubai Courts have taken the view that an Ijara transaction viewed in its entirety is a contract for sale of property on deferred payment terms, rather than a lease. Although the approach of the Dubai Courts seems to have so far solved the issue of lack of specialised legalisation, laws specifically designed for Islamic finance structures, or which can encompass both the Islamic and the conventional models should be adopted as soon as possible to avoid misinterpretation, confusion or potential complications in the future.\r\n\r\n<strong>Al Tamimi’s engagement:</strong>\r\n\r\nSukuk has been a reliable financial instrument in developing many projects and certainly big projects such as airports and maritime infrastructure projects and other projects which required large scale funding in the region. Al Tamimi and Company has had the opportunity to be involved in some of these Islamic finance based projects; which in turn has helped us to identify and understand the recurrent issues among the jurisdictions of the region and how to overcome these issues to the extent possible. As you may recall from our October 2012 Law Update edition, Jordan passed a new law governing sukuk in mid September 2012 and was then followed by Tunisia, while it is now expected that other countries in the region will finalise the process of passing laws specifically governing the issuance of sukuk. We will naturally keep you updated on all major developments in this regard.\r\n\r\nPlease do not hesitate to contact us if you have any questions in regard to the above.'),
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(85866, 4676, 'content', '<p>The QCB Regulations set the SWIFT system for the interbank dealings  e.g. in relation to the messages of the daily inter-bank payments, the  message no.&rdquo;MT203&rdquo; or &ldquo;MT202&rdquo; should be used to transfer any amount from  the clearing account of the bank to one or more of the banks operating  in Qatar.&nbsp; No other messages will be accepted for this purpose.&nbsp; In  addition, the field &ldquo;58A&rdquo; should be used to indicate the beneficiary  bank.&nbsp; If the beneficiary bank is not a Swift system user, the field  &ldquo;58D&rdquo; should be used according to the bank&rsquo;s identification symbol.&nbsp;</p>\r\n<p>According to the QCB Regulations, the bank issuing the SWIFT message  will be liable for sending the messages correctly.&nbsp; All banks should  liaise with the Banking, Payment and Settlement Systems Department of  the QCB to be advised of the updated technical details for sending SWIFT  messages.&nbsp;</p>\r\n<p>If a SWIFT message is issued clearly and in line with the QCB  Regulations in relation to each type of dealing, it shall have a binding  effect on the sending bank.&nbsp;</p>\r\n<p>The TELEX system is also considered an alternative by QCB for banks that are not yet set up with the SWIFT system.</p>\r\n<p>The E-Commerce Law provisions apply to transactions between parties  who agree to conduct transactions using electronic communications.&nbsp; The  law defines electronic communication as any transmission, emission or  reception of signs, signals, writing, images, sounds, pictures, data or  information of any kind by wire, radio, optical, other electromagnetic  means of communications or any other similar means of communication.  This definition is broad enough to cover SWIFT messages being a way of  transmitting data.</p>\r\n<p>The law excludes governmental entities from the above rule by stating  that governmental entities shall give explicit consent in relation to  electronic transactions of which they are a party. This also indicates  that the electronic communication implies the consent of the parties and  accordingly should be binding on them, except for governmental entities  who must give their explicit consent.</p>\r\n<p>Article 4 of the E-Commerce Law further elaborates on the contract  formation for conducting transactions, that an offer or acceptance of an  offer may be expressed, in whole or in part, by means of electronic  communications.</p>\r\n<p>A contract or transaction shall not be denied validity or  enforceability solely on the grounds that one or more electronic  communications were used in its formation.</p>\r\n<p>In light of the above, SWIFT messages are a valid and legally binding  method of communication between the banks, provided that the QCB  Regulations and the E-Commerce Law provisions are observed in relation  to each type of dealing.</p>'),
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(85889, 4677, 'content', '<p>Once such receivables are assigned to the lenders, these receivables  are &lsquo;ring fenced&rsquo; thereby securing the cash flows from the asset for  servicing the payments under the loan provided in connection with the  asset.</p>\r\n<p>Generally, an assignment is a process of transferring rights and/or  obligations held by one party&mdash;the assignor to another party&mdash;the  assignee.&nbsp; Assignment agreements relating to assignment of rights (or  receivables) are typically bilateral agreements between the assignor and  the assignee with a notification sent to the debtor.&nbsp; The assignment  agreement, relating to an assignment of obligations in general is a  tri-party agreement, between the debtor, the creditor and the assignee. &nbsp;</p>\r\n<p>There are two types of assignments; an assignment of rights and an  assignment of debt also known as an assignment of obligations.&nbsp; Under  the assignment of rights, the assignee is a third party who assumes the  rights to collect the receivables accruing to the creditor, while under  the assignment of debt; the assignee replaces the debtor and the  debtor&rsquo;s obligations to repay its debt to a creditor.</p>\r\n<p>Although assignments are permitted under the Qatari Civil Code, Law  No. 22 of 2004 (the &ldquo;Civil Code&rdquo;), some contracts may include a clause  stipulating that &ldquo;assignments are not permitted&rdquo; or that &ldquo;any assignment  is subject to the consent of all the parties to the agreement&rdquo;.&nbsp; Where  such a restriction is included in the contract and a contracting party  attempts to assign the contract such an assignment will not only be  ineffective, but also, the assigning party will be in breach of the  relevant contract.&nbsp; However, where a contractual restriction relating to  assignment is present and all the contracting parties accept the  assignment, the assignment will be deemed effective and enforceable.</p>\r\n<p>The Civil Code sets out the process by which an assignment can be  executed.&nbsp; The law differentiates between the assignment of rights and  the assignment of debts. Article 324 to Article 336 of the Civil Code  relates to assignment of rights, while Article 337 to Article 353  regulates the assignment of debts.</p>\r\n<p><strong>Process&nbsp;</strong></p>\r\n<p>The procedures to effect an assignment of rights is different form  that of the assignment of debts.&nbsp; Assignment of rights does not require  the debtor&rsquo;s approval, however, the debtor must be notified and the  debtor&rsquo;s acknowledgement is required.&nbsp; If the acknowledgment is signed  by the debtor, it should be date certified from the Ministry of Justice  in Qatar, as opposed to the notary&rsquo;s office in some legal systems.&nbsp; In  the event the debtor refuses to sign the acknowledgment, an official  court notification can be served upon the debtor, which shall be deemed  an &ldquo;acknowledgment&rdquo; under the law.&nbsp; The court notification in many civil  law jurisdictions is made through a court bailiff. However, since court  bailiffs do no exist in Qatar, the court undertakes the notification  process through an internal postal system.</p>\r\n<p>According to the Civil Code, an assignment of rights can include the  rights under the corresponding security provided by the debtor to secure  payments and other related rights.&nbsp; Having said that, it is advisable  to clearly specify the security being assigned to the assignee.</p>\r\n<p>Another significant factor is that the contracts being assigned must  be identified.&nbsp; In other words, it is not permitted to assign the rights  or receivables from an asset generally.&nbsp; The assignment agreement must  include a description of the contracts and receivables that are being  assigned by the assignee to the assignor.</p>\r\n<p>An assignment of debt requires the prior approval of the creditor,  and not merely acknowledgment of the creditor.&nbsp; If the creditor received  a notification of the assignment of debt and does not respond within  the deadline stipulated under the notification, the assignment will be  deemed rejected by the creditor.&nbsp; However, the assignment shall be  effective between the original debtor and the assignee, even if the  creditor rejected the assignment, hence, the assignee shall be obliged  to pay the debt, when due, to the creditor.</p>\r\n<p>The creditor does not guarantee the solvency of the debtor at the  time of the assignment of rights while the debtor must guarantee the  solvency of the assignee at the time of the assignment of debt, unless  otherwise agreed.</p>\r\n<p>The Civil Code does not recognize the concept of &ldquo;assignment as a  security&rdquo;, the assignment under the Civil Code is an absolute  assignment.&nbsp; However, in practice, assignment of rights is typically  used as security, where the bank has no right to enforce the assigned  rights except in case of the occurrence of a default by the creditor.</p>\r\n<p>In general, there are some assets that may not be subject of an assignment.&nbsp; Those types of assets are:</p>\r\n<p>(a)<span>&nbsp;</span>Real Estate, as there are certain laws which provide  for specific formal procedures and registration requirements to assign  title relating to real estate assets;</p>\r\n<p>(b)<span>&nbsp;</span>Movables, in respect of which a mortgage or pledge  over movables is created by following specific formal procedures with  the relevant competent authorities, depending on each type of asset;  and&nbsp;</p>\r\n<p>(c)<span>&nbsp;</span>A business enterprise or &ldquo;Fonds de Commerce&rdquo;, where a  security interest shall only be valid and enforceable vis-&agrave;-vis any  third party provided the procedures set out under Qatar Commercial Code  No. 27 for 2006 are followed. &nbsp;</p>\r\n<p>It is also recommended that the assignee takes possession of the  assigned rights to facilitate enforcement if the assignment is taken as a  security.&nbsp; For example, where the assignment relates to receivables,  the receivables can flow into an account pledged to the assignee.</p>\r\n<p><strong>Assignment and Novation</strong></p>\r\n<p>The Civil Code recognizes two ways of transfer of rights or  obligations, one is by assignment, which has been explained above and  the other is by novation.</p>\r\n<p>Articles 381 to 386 of the Civil Code deal with the novation.  Novation is defined under the law as &ldquo;a change of the debt when the two  parties agree to substitute a new obligation for the original  obligation.&nbsp; The new obligation differs from the original obligation in  respect of its object or as regards its source by a change of the  debtor, when a creditor and a third party agree that such third party  shall take the place of the original debtor and that the original debtor  shall be released of the debt without his consent being necessary, or  when the debtor has procured the consent of the creditor to substitute  the debtor by a third party who consents to be the new debtor; also by a  change of the creditor, when the creditor, the debtor and a third party  agree that his third party shall be the new creditor.&rdquo;</p>\r\n<p>It is recommended to advise banks to obtain assignment as a security  rather than novation, as the significant difference between assignment  and novation under the Civil Code is that the security associated with  the debt is not automatically transferred under novation, unlike the  assignment, where security is automatically transferred to the assignee.  &nbsp;</p>\r\n<p><strong>Conclusion</strong></p>\r\n<p>While assignment of receivables is a very popular form of security  among lenders in the region, it is essential to ensure that the nuances  relating to creation of such security are diligently followed.&nbsp;</p>\r\n<p>Lenders should pay special attention to the transferability of  collateral associated with the rights or obligations being assigned.&nbsp;  Specifically, lenders should consider the benefits of an assignment or  rights over a novation.&nbsp; This is especially significant as under an  assignment of rights there may not be a need to re-execute security  documents.&nbsp;</p>\r\n<p>Lenders should also be aware that when assigning receivables, the  receivables should be identifiable and quantifiable at the time of  executing the assignment agreement.</p>'),
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(85820, 4674, 'content', '<p>A new companies law has been passed in Kuwait which provides a more  realistic and practical perspective than the previous companies law. The  issuance of such new companies law can be regarded as progress as it  reforms the outdated practices and offers investors a more attractive  investment environment, which will positively affect the economy in  Kuwait. Law No. 25 of 2012 Promulgating the Companies Law was published  in the official gazette &ndash; (Al Kuwait Al Youm) on 29 November 2012 (the  &ldquo;Companies Law&rdquo;).&nbsp;</p>\r\n<p>A high level review of the Companies Law demonstrates that such new  law provides more details and clarity than the previous one. Further, it  provides guidance in relation to certain matters, as the previous law  was silent on various areas (i.e. shareholders&rsquo; agreement) and such non  codification often resulted in investors facing uncertainty and thereby  triggering their hesitance to invest in Kuwait.&nbsp;</p>\r\n<p>The Companies Law provides more types of companies that can be  established in Kuwait, such as the incorporation of non-profit  companies. Non profit companies are now permissible under the Companies  Law in order to undertake a social role, along side the commercial  companies, which is going to benefit the social function of Kuwait.  Moreover, new forms of companies have been introduced in the Companies  Law, such as a sole person company and the professional companies.  Professional companies may take the form of a closed shareholding  company, limited partnership or a company with limited liability.&nbsp;</p>\r\n<p>Further, the Companies Law also has changed some provisions with  respect to holding companies, as under the Companies Law holding  companies may take the form of a closed shareholding company, a limited  liability company or a sole person company.&nbsp;</p>\r\n<p>With respect to the incorporation procedures of companies, it is  acknowledged that the process for starting a business in Kuwait is  lengthy and complicated thereby hindering commerce and the establishment  of new companies. To address this issue, the Companies Law has adopted  what is known as the one window system for finalizing the procedures of  incorporating companies. Procedures of incorporating companies shall be  completed through a special department for this purpose at the Ministry  of Commerce and Industry, which comprises representatives of the  concerned government bodies to ensure prompt finalization of the  incorporation procedures. The aim of the Companies Law is to facilitate  the entire process, while encouraging more investors to establish  companies in Kuwait.</p>\r\n<p>In light of the above, the Companies Law is a welcomed reform that  should have a positive impact on investments in Kuwait and the Kuwaiti  economy overall.</p>'),
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(85839, 4675, 'content', '<p><strong>INTRODUCTION</strong></p>\r\n<p>The tremendous amounts of illicit profits generated encourage the  criminals involved to discover innovative methods of controlling their  ill-gotten funds without jeopardizing their underlying activity or  identity. They do this by disguising the sources of the funds, changing  their form, or moving them to a place where they are less likely to  attract attention.</p>\r\n<p>The United Nations Office on Drugs and Crime (UNODC) reported that  criminal proceeds amounted to an estimate of 3.6% of the global GDP in  2009, with around 2.7% (or USD 1.6 trillion) laundered throughout that  year . Although it is impossible to calculate with certainty the amount  of money that is globally laundered every year due to the illegal nature  of the whole process, other studies have estimated that the overall  value of criminal proceeds being laundered each year amounts to USD 3  trillion.</p>\r\n<p>International agreements and UAE national laws strongly associate  money laundering with fraud. The connection between both crimes will be  explored through out this article.</p>\r\n<p><strong>THE DISTINCT NATURE OF MONEY LAUNDERING</strong></p>\r\n<p>Practically, INTERPOL considers any act or attempted act to conceal  or disguise the identity of illegally obtained proceeds in order to  appear to have originated from legitimate sources to be a crime of Money  Laundering .</p>\r\n<p>Therefore, money laundering is a derivative crime that mandates a  predicate offense as the source of the illicit proceeds subject to  laundering. A predicate offense is a crime that has been concluded  before the commencement of money laundering. Both crimes shall have  distinct legal elements but not any predicate crime qualifies as a  prerequisite for money laundering. Legislation limits predicate crimes  subject of money laundering to certain offenses. Examples of such  predicate offenses are bribery, embezzlement, breach of trust and fraud.  In other words, money laundering as a crime only occurs after the  perpetration of certain prior crimes such as those previously mentioned.</p>\r\n<p>However, the aforementioned should not be interpreted to entail that  criminals accused of money laundering must be the same as those who  committed the predicate offense. It is legally acceptable to be solely  accused of committing money laundering, if the criminal being accused of  such crime did not take part in seizing the illicit proceeds being  laundering.</p>\r\n<p><strong>THE EMIRATI APPROACH IN COMBATING MONEY LAUNDERING</strong></p>\r\n<p>Money laundering in the United Arab Emirates is primarily  criminalized by Federal Law No. 4 of 2002 and supported by the Federal  Penal Law No. 3 of 1987 and Federal Penal Procedures Law No. 35 of 1992.  The aforementioned Federal Law No. 4 of 2002 regarding criminalization  of money laundering sets out the rules governing such crime in line with  the international treaties ratified by the UAE, in order to penalize  dealing in the proceeds of certain crimes, including but not limited to,  drug trafficking, illegal arms dealings, bribery, embezzlement, breach  of trust and fraud.</p>\r\n<p>The aforementioned law mandates that any suspicious transaction must  be reported to the Anti-Money Laundering and Suspicious Cases Unit  (AMLSCU) of the Central Bank of the UAE. The said unit investigates such  reports, gathers intelligence and decides whether further prosecution  should follow. After evaluating the gravity of reported suspicious  transactions, the said unit decides whether to freeze the suspected  properties and refer the matter to public prosecution, or disregard  further investigation. It is worthy to note that the UAE Attorney  General has exclusive authority to initiate criminal actions in relation  to money laundering accusations.</p>\r\n<p><strong>A PRACTICAL APPROACH</strong></p>\r\n<p>In a recent cassation case, the public prosecution charged eleven  accused parties (two of which are companies) with money laundering, on  the basis that they intentionally transferred into the UAE, GBP  4,209,625 and USD 380,461.95, illegally obtained from a fraud in order  to conceal and disguise the illicit origins of such proceeds.</p>\r\n<p>The prosecution claimed that the accused parties conspired to  deceitfully forge documents on behalf of an airline company after  hacking its private bank account. They also forged signatures of the  representatives of the said airline company and sent instructions, by  misrepresenting such company, to its bank to transfer the aforementioned  monies to their private bank accounts.</p>\r\n<p>The First Instance Criminal Court sentenced each of the accused  natural persons to one year imprisonment, fined each an amount of AED  30,000 and ordered the confiscation of the proceeds. The same court  fined each of the two accused companies an amount of AED 300,000.  However, the judgment was appealed by the convicts. The Appeals Court  upheld the challenged judgment but amended it to relieve the convicts  from the ordered confiscation of their illicit proceeds.</p>\r\n<p>The matter was brought forward to the Cassation Court on grounds that  the lower courts erred in their reasoning, misconstrued presented  evidence and misapplied the law. It was argued that the lower courts  mistakenly characterized the attributed crime as money laundering on  grounds that money laundering is a derivative crime that requires a  prior separate crime as the source of the illicit proceeds being  laundering. In addition, the said prior committed crime has to be one of  those crimes exclusively set out by Article 2 of Federal Law No. 4 of  2002 regarding criminalization of money laundering.</p>\r\n<p>The Cassation Court concluded that lower courts have full discretion  to evaluate the facts of the case and the evidence submitted by the  parties. It restated that the appeal judgment had duly illustrated the  facts of the case to establish all the legal elements of the charged  crimes and properly correlated the undertaken criminal actions with  logical prosecution evidence pursuant to the documents and testimonies.</p>\r\n<p>When interpreting Article 2 of the Federal Law No. 4 of 2002, the  Cassation Court stated that the material aspect of money laundering as a  crime is composed of any criminal behavior undertaken by the  perpetrator with the effect of concealing or disguising the origins of  the proceeds of one of the crimes exclusively set out by the  abovementioned article including, among others, fraud and breach of  trust.&nbsp; The court maintained that a predicate crime has to be concluded  from which the illicit proceeds are obtained and that the criminality  relates to the possession of such proceeds, regardless of the purpose of  such possession as long as the perpetrator had prior knowledge at the  time of receiving such proceeds of it&rsquo;s &ldquo;dirty nature&rdquo; and with no  consideration to whether the perpetrator is a natural or judicial  person.</p>\r\n<p>The Cassation Court demonstrated that money laundering is an  intentional crime entailing a criminal intent. Such criminal intent is  prior knowledge that the proceeds possessed by the perpetrator stem from  a crime punishable by law.</p>\r\n<p>In addition, the convicts argued before the Cassation Court that  their actions ought to be interpreted as forgery and not fraud as  misconstrued by the lower courts and, therefore, their undertaken  actions do not fall within the scope of Article 2 of the Federal Law No.  4 of 2002. Accordingly, the whole case has to be dismissed against  them. The court established that the law intended to penalize dealing in  the proceeds of certain crimes as fraud. Moreover, fraud implies  actions undertaken by the perpetrator to seize for himself or for  others, the possession of any movable property by using fraudulent  practice, assuming a false name or quality whenever it is intended to  deceive the victim and bring him to surrender a legal right.</p>\r\n<p>Accordingly, the Cassation Court reached a conclusion that the  Appeals Court properly applied the law when it concluded from the  presented evidence that all the legal elements of fraud were present and  that despite the forgery of documents, such forgery was a step towards a  bigger fraudulent scheme to deceive the victim into surrendering the  proceeds that were afterwards attempted to be laundered.</p>\r\n<p>In line with the above, the Cassation Court restated that the Appeals  Court properly applied the law on the facts and sustained its view to  relieve the convicts from confiscation of the crime proceeds but instead  such proceeds should be restituted to the victim of the crime. The  reasoning behind this is that, despite the fact that Federal Law No. 4  of 2002 explicitly states that criminal proceeds shall be confiscated,  the proper application of the general rules of law according to Article  82 of the Federal Penal Law No. 3 of 1987 limit confiscation to cases  where there is no prejudice to the rights of any bona fide third party  (i.e. other parties having good faith or the victim of the crime).</p>\r\n<p>In summary, the Cassation Court rejected all the arguments and claims  of the convicts, reaching an ultimate decision that the challenged  judgments are in conformity with the law and consequently upheld the  judgment of the Appeals Court.</p>\r\n<p><strong>CONCLUSION</strong></p>\r\n<p>Concealing or disguising the proceeds of fraud is considered as money  laundering. Fraud entails any false representation of a matter of fact  that deceives and is intended to deceive a victim so that the latter  will act upon it to his legal injury and detriment. The foregoing  illustrates the gravity of both crimes and that the deceptive nature of  both crimes needed harsh punishments by laws in order to deter  criminals.</p>\r\n<p>Unfortunately, money launderers exploit the complex existing global  financial systems and the differences between the respective national  anti-money laundering laws and systems. Also, they exploit jurisdictions  with weak or ineffective controls in order to move their funds more  easily without detection. In that sense, money laundering has several  negative impacts such as undermining the integrity and stability of  financial institutions and systems, discouraging foreign investments,  distorting international capital flows and ultimately destroying  societies by allowing criminals to attempt committing the same crimes  again and again.</p>\r\n<p>In addition, the previous problems are further aggravated by the fact  that the UAE is one of leading business hubs world wide with its well  known free market. Therefore, the UAE courts interpret money laundering  broadly to combat all perpetrations as long as the prior committed crime  constitutes one of those prohibit by the money laundering law.</p>\r\n<p>Finally, the UAE is making concerted efforts to tackle this problem  by implementing stern measures and modern safeguards along with signing  and implementing mutual judicial cooperation agreements and extradition  treaties.</p>'),
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(85313, 4649, 'content', '<p>As a matter of fact, abstaining from dealing with blacklisted entities, ensuring that self-regulation is diligent and thorough, and actively ensuring the validity of a client or transaction in line with applicable trade sanction laws will best enable companies to comply with these far-reaching economic sanctions.</p>\r\n<p>Enhanced due diligence is the key, as highlighted by the recent advisory issued by the US Treasury&rsquo;s Office of Foreign Assets Control (OFAC) in January 2013.&nbsp;</p>\r\n<p>The OFAC has issued on the 10th of January 2013 an <span>Advisory on &ldquo;the Use of Exchange Houses and Trading Companies to evade US Economic Sanctions against Iran&rdquo;,</span> providing primarily and cautiously guidance to US financial institutions dealing with such entities located in countries/regions identified as high risk by the OFAC. In particular, the OFAC identifies the Iranian evasion techniques used to circumvent but also to adapt to the existing economic sanctions (i.e. the use of third country exchange and trading companies to access the US financial system). The OFAC Advisory is available at: &nbsp;<a href=\"http://www.treasury.gov/resource-center/sanctions/Programs/Documents/20130110_iran_advisory_exchange_house.pdf\" target=\"_blank\">http://www.treasury.gov/resource-center/sanctions/Programs/Documents/20130110_iran_advisory_exchange_house.pdf&nbsp;</a></p>\r\n<p>Important note from the OFAC: &ldquo;The Advisory is not intended to suggest that U.S. financial institutions close accounts they hold for third-country exchange houses and/or trading companies. Additionally, the Advisory should not be interpreted to signal that third-country exchange houses and/or trading companies are necessarily facilitating illicit finance&rdquo;. &nbsp;</p>\r\n<p>This recent development is briefly summarized below, as it is relevant from a business perspective in the Middle East.&nbsp;</p>\r\n<p>1.Practices used by third country exchange houses and trading companies</p>\r\n<p>- Both the exchange houses and the trading companies are able to transmit funds on behalf of third parties, and consequently allowing them to access the US financial system.</p>\r\n<p>- The OFAC identifies practices used by third country exchange houses and trading companies to circumvent international and US Economic Sanctions against Iran; in particular:</p>\r\n<ul>\r\n<li>Omitting references to Iranian addresses</li>\r\n<li>Omitting the names of Iranian persons or entities in the originator or beneficiary fields; and</li>\r\n<li>Transmitting funds from an exchange house or trading company located in a third country to or through the US on behalf of an individual or company located in Iran or on behalf of a US designated person without referencing the involvement of Iran or the designated persons.</li>\r\n</ul>\r\n<p>2. Fact Patterns identified by the OFAC</p>\r\n<p>- Trading companies would try to send payments through the US on behalf of a company located in Iran thus with an Iranian address: such payment would be blocked or rejected after review by the US financial institution&rsquo;s filter. The Trading companies would resubmit payments through the US, with no reference to the company&rsquo;s address located in Iran, to avoid the US financial institutions&rsquo; filters.</p>\r\n<p>- Trading companies or exchange houses would repeatedly try to send payments through the US to Iran and without the required information in relation to the involved entities/individuals and their location (Iran). &nbsp;</p>\r\n<p>- Trading companies or&nbsp; exchange houses would have for example:</p>\r\n<ul>\r\n<li>an unusual frequency/volume of payments, or</li>\r\n<li>an inconsistent volume/frequency of payments in light of the type of business</li>\r\n</ul>\r\n<p>3. Recommended Measures and Risks Mitigations&nbsp;</p>\r\n<p>- When processing such payments, it is recommended:</p>\r\n<ul>\r\n<li>to monitor such payments by exchange houses and trading and requesting any relevant information from the correspondents in relation to the parties involved</li>\r\n<li>to conduct account and transactions reviews for &ldquo;individual exchange houses or trading companies that have repeatedly violated or attempted to violate the US sanctions against Iran&rdquo;</li>\r\n<li>to contact and request additional information from the correspondent bank that holds accounts for (or facilitate transactions on behalf of), a trading company or a third country exchange house</li>\r\n</ul>\r\n<p>As per the US Treasury Department&rsquo;s statement in January 2013, the US Undersecretary for Terrorism and Financial Intelligence will discuss &ldquo;issues related to illicit finance including the implementation of international economic sanctions against Iran and Syria&rdquo; with senior officials in the UAE. This is in line with the continued cooperation between both countries on combating terrorism and illicit finance. Press reports also indicate that some global banks have taken a step further by deciding &ndash; under certain conditions - to discontinue accounts of customers from countries that are subject to significant sanctions from the USA or the European Union.</p>\r\n<p>In the context of significant expansion of Iran sanctions and with the Middle East being on the watchlist (e.g. re. the hawala system), it is crucial for companies located in the Region to ensure that proper detection and compliance programs are in place, as it is the best practice to limit your exposure.</p>\r\n<p>For any questions on this topic, please contact Ibtissem Lassoued, heading the Global Economic Sanctions Practice at Al Tamimi &amp; Company: i.lassoued@tamimi.com.</p>'),
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(84883, 4627, 'content', '<p>The Data Protection Law 2007 (DIFC Law No. 1 of 2007), was recently amended by the Data Protection Law Amendment Law 2012 (DIFC Law No. 5 of 2012), which became effective on 20 December 2012.&nbsp;The \'new\' Data Protection Law amends the \'old\' Data Protection Law,  which prescribed rules and regulations regarding the collection,  handling, disclosure and use of personal data in the DIFC, the rights of  individuals to whom the personal data relates, and the role of the DIFC  Authority with regard to data protection. The amended Data Protection  Law retains the international best practice standards found in the 2007  law, and is broadly consistent with the 1995 EU Data Protection  Directive. It is designed to balance the legitimate needs of businesses  and organizations to process personal information with the importance of  upholding an individual&rsquo;s right to privacy.<br /><br />Besides  miscellaneous amendments aimed at improving drafting and clarity, the  key changes in the amendedData Protection Law can be summarised as  follows:<br /><br />Duty to notify changes: A Data Controller must notify  the Commissioner of Data Protection of any changes to the particulars of  the Data Controller&rsquo;s notification to the Commissioner. Failure to  notify the Commissioner of such changes as soon as possible &ndash; and in any  event within 14 days from the date upon which the particulars becomes  inaccurate or incomplete &ndash; is a contravention of the law.<br /><br />Delegation  powers of the Commissioner of Data Protection: The Commissioner may  delegate functions and powers to officers and employees of the Dubai  International Financial Centre Authority.<br /><br />General contravention  and administrative imposition of fines: The proposed changes set out  provisions relating to contraventions of the law and the administrative  imposition of fines.<br /><br />As part of the set-up process in the DIFC,  an entity is required to notify the DIFC&rsquo;s Commissioner of Data  Protection if it intends to process personal information. This  notification has to be updated when the entity&rsquo;s commercial licence is  renewed, or if at any time the entity changes the way in which it will  process personal information. The apparent absence of this requirement  from the amended Data Protection Law is one aspect that would have  benefitted from more detailed consideration.<br /><br />An entity that  wishes to process &lsquo;Sensitive Personal Data&rsquo; (being personal information  revealing or concerning (directly or indirectly) racial or ethnic  origin, communal origin, political affiliations or opinions, religious  or philosophical beliefs, criminal record, trade-union membership and  health or sex life), or that wishes to transfer personal information  outside the DIFC to a jurisdiction that is not recognised by the DIFC as  offering an adequate level of protection to personal information, needs  to seek a permit from the Commissioner of Data Protection.</p>\r\n<p>It remains to be seen whether the amendments to the DIFC Data  Protection Law indicates that the Commissioner of Data Protection is  going to become more active in policing the data protection compliance  of entities operating in the DIFC.</p>\r\n<p>Interestingly, in January this year, the European Commission  published its proposal for a new Data Protection Regulation. The EU&rsquo;s  current rules, which the DIFC Data Protection Law emulates to some  degree, are about 17 years old, and the revision is intended, to some  extent, to \'future proof\' the EU\'s data protection regime. It will be  interesting to see if further changes to the DIFC Data Protection Law  will be considered once new European rules make it through the European  legislative process.</p>\r\n<p>Al Tamimi &amp; Company&rsquo;s Technology, Media &amp; Telecommunications  team regularly advises on data protection issues in the Middle East,  including in on-shore Dubai and free zones such as DIFC. For any data  protection related queries, please contact Nick O&rsquo;Connell (<a href=\"mailto:n.oconnell@tamimi.com\">n.oconnell@tamimi.com</a>).</p>'),
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(84856, 4626, 'content', '<p><strong>Introduction</strong></p>\r\n<p>As part of the process of  acceding to the WTO, Jordan has enacted its new Patent Law No. 71 of  2001 (the \"Patent Law\"), in accordance with the international standards  which Jordan has been committed to through joining the TRIPs Agreement.  This law also came to remedy the previous law (Patent Law No. 23 of  1999), which suffered ambiguity in several respects.&nbsp;</p>\r\n<p>In general, the  rules of the new Patent Law enjoy clarity and simplicity, and are well  divided under various main subjects of the Patent Law. The main subjects  are gradually headlined in the Patent Law as follows: Registration of  the patent, Rights of the patentee, Licensing of inventions, Expiry and  nullification of patents, Industrial property registration agents,  Crimes and penalties, the Precautionary measures, and Closing rules.<br /><br /><strong>The major amendments:</strong><br /><br />In  substance, the amended Patent Law contains new established rules and  modified rules. The major amendments can be summarized as follows:</p>\r\n<ul>\r\n<li>The Patent Law establishes the rule of priority claim when filing a patent application.</li>\r\n<li>The Patent Law identifies the duration of temporary protection for  the patent applicant to be the period between the acceptance date of the  application and the granting date of the patent, giving the applicant  the right to exploit the invention and legally act against any  infringement on the invention.</li>\r\n<li>The Patent Law grants the patentee the right to act against any  infringement on the patent and to claim compensation if the infringement  is repeated.</li>\r\n<li>The Patent Law extends the duration for any person to oppose a  patent at the Registrar\'s office to three months from the date of  publication in the Official Gazette.</li>\r\n<li>The Patent Law modifies the duration of the patent protection to be  twenty years from the date of filing the application for registration.</li>\r\n<li>Regarding criminal protection, the Patent Law unifies the penalties  of patent crimes to imprisonment for a period not less than three months  and not more than one year and/or a fine not less than one hundred  Jordanian Dinars and not more than three thousand Jordanian Dinars.</li>\r\n<li>The Patent Law awards the patentee the right to claim damages on all  types of crimes underlined by the Patent Law which may occur to the  patent.</li>\r\n<li>The Patent Law grants the patentee, even prior to filing criminal  and/or civil case, the right to request the court to issue an order to  take any of the specified following precautionary measures :</li>\r\n</ul>\r\n<ol>\r\n<li>Obtain a Court order to stop the infringement by freezing products being manufactured, imported, exported or distributed.</li>\r\n<li>Obtain an injunction against the infringing products.</li>\r\n<li>Obtain a Court order to seize all evidence relating to the infringement.</li>\r\n</ol>\r\n<p><strong>The procedures<br /></strong><br />Once the application is filed,  it is queued to be examined by Jordanian patent office with respect to  compliance with formalities. If accepted the applicant is notified to  settle the substantive examination fees. Upon settlement, the  application is forwarded to substantive examination. The examiner may  request amendments to the application. When the application meets all  the requirements stipulated in the Patent Law and the terms of granting  the patent, and upon settlement the publication fees, a decision of  preliminary is issued and published in the official Gazette. In absence  of any opposition within 3 months as of the publication date, the  register shall issue his decision granting the patent after the payment  of the due fees.</p>'),
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(84191, 4591, 'content', '<p>Whatever your opinion of the ESG, it is important to be aware of the ongoing discussions surrounding the gratuity payment scheme as any decision to reform the ESG model will impact on the majority of employees and employers in the UAE.<br /><br /><strong>The ESG explained<br /><br /></strong>ESG is a sum of money that an employer is lawfully required to pay an employee upon the termination of the employment relationship, subject to the employee satisfying certain conditions that are set out in the UAE Labour Law.&nbsp; The ESG scheme was introduced 40 years ago to ensure that when employment relationships were terminated, employees without pension benefits received a lump sum payment to assist them during the period following termination or for them to put towards their savings.&nbsp;</p>\r\n<p>The payment is based on the employee&rsquo;s basic salary and length of service, although it may be reduced depending on the circumstances of the termination of employment and where the employee was working (see &ldquo;reduced amount&rdquo; section below).&nbsp; The calculation does not take into account payments that are additional to basic salary, such as housing and car allowance. However, where an employee receives a guaranteed or regular commission payment, this may be included within the calculation of basic salary for the purposes of the ESG calculation.<br /><br /><strong>The amount<br /><br /></strong>Employees with at least 12 months service are entitled to 21 calendar days&rsquo; salary for each year of service in the first five years of employment and 30 calendar days&rsquo; salary for each year of service worked beyond five years. The ESG payment is calculated on a pro-rata basis and therefore employees receive credit for the entire period of service.&nbsp; Importantly, the calculation is applied to the employee&rsquo;s salary at the time of termination, which can result in the ESG being substantial for long serving employees.&nbsp; The maximum ESG entitlement cannot however exceed two years salary.<br /><br /><strong>Reduced amount<br /><br /></strong>Where individuals are employed in onshore organisations within the UAE (and some of its free zones), reductions may be applied to their ESG entitlement should they resign from their roles. In particular, where an employee on a limited term contract with less than five years service resigns prior to the expiry of the fixed term, the employee is not entitled to an ESG payment whatsoever. In the case of an employee on an unlimited term contract, having been employed for more than one year but less than three years, he will receive one third of the full ESG entitlement. Where the period of continuous service is more than three years but less than five years the departing employee will be entitled to two thirds of the full ESG. Once an employee has accrued five years service, either on a limited or unlimited term contract, there will be no reduction pursuant to a resignation.<br /><br />There are exceptions to the above rule for employees who are working within particular free zones, such as the Jebel Ali Free Zone, the Dubai Airport Free Zone and the Dubai International Financial Centre, where no reductions are applied to the ESG calculation where employees resign.<br /><br /><strong>No ESG<br /><br /></strong>In addition to the alternative options to the ESG system which are available to employers (see current alternatives section below), employees will not be entitled to an ESG where their employment terminates in the following circumstances:</p>\r\n<ol>\r\n<li>The employment relationship terminates before the employee accrues 12 months service.</li>\r\n<li>The employee was dismissed for a breach of Article 88 of the UAE Labour Law or for one of the ten reasons stated in Article 120 of the Labour Law.</li>\r\n<li>An employee on a limited term contract with less than five years continuous service resigns before the end of the defined period.</li>\r\n<li>The employee was employed pursuant to an unlimited term contract and resigned without notice (in circumstances other than those set out in Article 121 of the Labour Law).</li>\r\n</ol>\r\n<p><strong>The Region<br /><br /></strong>The ESG system is not unique to the UAE.&nbsp; All of the other five countries in the Gulf Cooperative Council (&ldquo;GCC&rdquo;), namely Saudi Arabia, Bahrain, Kuwait, Qatar and Oman operate similar ESG models in respect of the non-national workforce although the calculation and specific conditions of the termination payment vary from country to country. It is estimated that the combined ESG liability of all employers operating in the GCC is more than US$15 billion (AED54.75 billion). Notwithstanding this, the appetite to review the ESG model is not as prevalent in the other GCC countries as it is in the UAE.<br /><br /><strong>Current alternatives to the ESG<br /><br /></strong>The current alternatives to paying ESG sums to employees are for employers to:</p>\r\n<ol>\r\n<li>Provide a pension scheme to their non-national employees, which is more beneficial than what the employees would otherwise receive under the ESG model. Such a pension scheme must be published and known to all employees. Critically it must specify that it will be a substitute to the ESG and the employees must expressly agree and acknowledge that it will be paid to them in place of the ESG (if not the employee will be entitled to the pension and the ESG).&nbsp; However, as employers are not legally obliged to provide this alternative for non-national employees, the majority of private employers have opted to not put in place such pension schemes.</li>\r\n<li>Register their UAE national employees into the state pension scheme and accordingly pay pension contributions to the General Pensions and Social Security Authority.&nbsp; National employees are subsequently entitled to draw a pension when they reach retirement age.&nbsp; National employees working in the private and public sector are usually registered onto the state pension scheme but where they are not, they will also be entitled to an ESG payment on termination.</li>\r\n</ol>\r\n<p>A prudent employer may consider setting aside a sum equivalent to approximately 8% of its payroll each year (or a 13th month payroll sum) to ensure that its ESG liability is met on an ongoing and sustainable basis.&nbsp; If this annual payment was strategically invested then it is likely that the actual cost of ESG to the employer would be less than the ESG payment which is due.<br /><br /><strong>Ongoing discussions<br /><br /></strong>It has been reported that the UAE Government is tentatively considering alternatives to the current system.&nbsp; As referred to above, the Dubai Department of Economic Development recently instructed the World Bank to undertake a study into the current ESG system in the UAE, following which the World Bank recommended the establishment of a pension fund for expatriate employees in Dubai.&nbsp; Following receipt of the World Bank&rsquo;s report, Ali Ibrahim, Deputy Director-General for the Planning Affairs and Development department stated that creating the pension fund for expatriate employees is one of the most important projects which the department is focussing on.&nbsp; He stated that the Department of Economic Development &ldquo;has started taking steps to implement the [World Bank] recommendations in coordination with other relevant local bodies&rdquo;.&nbsp;<br /><br />An example of the how the proposed change may work is the introduction of a Government-led pension fund that requires employers to pay approximately 8% of basic salary into the fund and employees would receive pension payments following the termination of employment.&nbsp; Whether the pension benefit would mature at the date of termination or the date of retirement is unclear although the latter would seem a more straightforward option for all concerned.<br /><br />Inevitably, the proposal for change has created debate about whether a change to the current system is necessary and whether it would be a positive measure for non-nationals working and living in the UAE.&nbsp;<br /><br /><strong>Arguments for change</strong></p>\r\n<ul>\r\n<li>Where an employer is in financial difficulties and/or becomes insolvent, the employee will have limited prospects of recovering their full entitlement to an ESG. This could have serious financial implications on departing non-national employees, particularly those with long periods of service who are relying on the ESG payment to supplement their retirement fund. This was a particular area of concern during the economic crisis in 2008/9, when many businesses were experiencing financial difficulties and business owners would disappear without honouring such termination payments.</li>\r\n<li>If an employee believes he has not received his full entitlement to an ESG payment, he is required to refer the matter to the Ministry of Labour.&nbsp; However, those employees who do not have the understanding or technical know-how to pursue a claim are at a significant disadvantage and are often unable to pursue a former employer for their ESG entitlement.</li>\r\n<li>As explained above, the ESG sum is calculated on basic salary alone.&nbsp; It is therefore common practice for UAE employers to particularise an employee&rsquo;s overall income into an artificially modest basic salary and increase additional benefits such as travel and housing allowance.</li>\r\n<li>Where an employee is dismissed for a specific cause and without notice in accordance with Article 88 or 120 of the Labour Law, the employee will not be entitled to an ESG.&nbsp; Some critics argue that this rule encourages employers to create artificial reasons for dismissing an employee pursuant to Article 88 or 120.</li>\r\n</ul>\r\n<p><strong>Arguments against change</strong></p>\r\n<ul>\r\n<li>Non-nationals who intend to work in the UAE for a limited period only before returning to their home country prefer to receive a one-off payment rather than having to wait for a foreign based pension scheme, which contributions were made into for a limited period during their career, to mature when they retire in the distant future.</li>\r\n<li>If ESG funds are converted into a pension fund and invested in stock markets, there is a risk of those investments depreciating in value before the individual&rsquo;s entitlement to the pension matures.</li>\r\n<li>The current system has worked effectively for 40 years and the region continues to attract the most talented professionals from all corners of the world.&nbsp; Therefore, a significant overhaul of the ESG system and the introduction of a multi-billion Dirham pension fund would be a time consuming, expensive and risky process which is not necessary at the present time.</li>\r\n</ul>\r\n<p>As you can see from the above, there are well founded and persuasive arguments for and against reforming the ESG system and the expat community&rsquo;s opinion is divided. In a recent Arabian Business Poll, it was determined that 31% of those polled believed the introduction of a pension plan could assist foreign workers in creating a nest egg for their retirement although 19% believed that the roll-out of a pension plan would deter foreign workers from moving to the UAE.</p>\r\n<p>It is unlikely that a final decision will be made in the near future but it is certainly a debate that the employment team at Al Tamimi will follow with interest in the coming months.&nbsp; With an estimated total value of UAE companies&rsquo; ESG liability amounting to more than AED 14.6 billion, it is a matter which will have a significant impact on non-national workers and the UAE economy in general.</p>'),
(84168, 4590, 'content', '<p>From January 2011, the requirements also extended to those flying over UAE territory. The liabilities of aircraft operators in the UAE under the Commercial Transactions Law, Number 18 of 1993, are similar to (but not identical to) those encompassed in the Montreal Convention for the Unification of Certain Rules for International Carriage (&ldquo;Convention&rdquo;). Those countries that are signatory to the Convention are obliged under Article 50 to ensure that air carriers are adequately insured to cover the liabilities under the Convention. In the UAE, Article 7(6) of the Civil Aviation Act, Number 20 of 1991 also provides a requirement for aircraft operating in or over UAE airspace to hold adequate insurance in respect of ground injury.&nbsp;</p>\r\n<p><br />But does the GCAA&rsquo;s IB minimum insurance requirements, truly satisfy the requirements stipulated by the Convention or even provide for sufficient cover in cases where local UAE law is applied? In some aspects it does, in others, it falls short.&nbsp;</p>\r\n<p><br />The IB sets forth minimum insurance requirements for an aircraft in respect of liability to third parties, injury, death, loss or damage to baggage and cargo. The IB also places an obligation upon the Operators and the Insurers to advise the GCAA of circumstances that may affect the insurance cover or its validity. Under the IB, liability to third parties is based upon an aircraft&rsquo;s Maximum Take Off Mass (or weight) (&ldquo;MTOM&rdquo;) with a minimum insurance requirement range of 750,000 SDRs per accident for an aircraft under 500 kilograms MTOM, to 700,000,000 per accident for an aircraft over 500,000 kilograms MTOM. This requirement is for both those aircraft operating in the UAE and those flying over UAE territory.&nbsp; Liability for passengers, baggage and cargo, is limited to those landing in and taking off from the UAE.&nbsp; In respect of passengers the minimum insurance coverage is set at 250,000 SDRs per passenger for commercial operations and 100,000 SDRs per passenger for non-commercial operations by an aircraft with an MTOM of under 2,700 kilograms. Cover for liability in respect of baggage claims is set at 1,000 SDRs, and for cargo, it is set at 17 SDRs.&nbsp;</p>\r\n<p><br />Unfortunately there has not been an updated IB regarding minimum insurance coverage since the increase of the Convention limits of liability that were determined in 2009 and came into force in 2010. Article 24 of the Convention provides that the limits of liability are to be reviewed by the International Civil Aviation Organisation (&ldquo;ICAO&rdquo;) at five-year intervals by reference to an inflation factor which corresponds to the accumulated rate of inflation since the date of entry into force of the Convention.</p>\r\n<p><br />For death and bodily injury under the Convention, the original limit of liability was set at 100,000 SDRs per person; this was increased in 2010 to 113,100 SDRs per person. Damage caused by delay of passengers, was originally limited to 4,150 SDRs and have been increased to 4,694 SDRs. Loss, damage or delay to passengers&rsquo; baggage was originally limited to 1,000 SDRs per person and is now 1,131. Loss, damage or delay to cargo, was originally limited to 17 SDRs per kilogram and is currently 19 SDRs per kilogram.</p>\r\n<p><br />In most cases the IB set minimum insurance requirements of 250,000 SDRs per passenger will cover the increased limit imposed by the ICAO and the limits contained in the UAE Civil Transactions Law, however for lost, damaged or delayed baggage and cargo the minimum amounts stipulated in the IB fall short.&nbsp; Furthermore, the Convention and the UAE law also specify that an airline may set higher limits of liability, or do away with the limit of liability entirely.&nbsp; Therefore in circumstances where an airline has not stipulated that it would enforce the maximum limits of liability as stipulated in the Montreal Convention or in the UAE Civil Transactions Law (or been silent upon their application), but has rather stated that liability is not limited or is fixed at a higher rate, this may lead to a situation whereby an airline who has complied with the bare minimum of cover required, is found liable for an amount that exceeds the limits of liability set out in the Convention and the UAE law and therefore, is liable for a claim that exceeds their insurance coverage.</p>\r\n<p><br />Aircraft operators need to ensure that if they have waived the limit of liability stipulated in either or both the Convention and the UAE law, that it has sufficient insurance in place to cover possible claims.&nbsp; Furthermore, in cases where the Convention does not apply, UAE law and limits may be applied and this, in the case of compensation for lost, damaged or delayed luggage or cargo, is calculated at a maximum rate of 150 Dirhams per kilogram (unless a declaration of a higher value is provided) which equates to approximately 26 SDRs per kilogram, significantly higher than that imposed by the Convention and higher than the liabilities anticipated in the IB.</p>\r\n<p><br />Operators who fail to meet at least the minimum insurance requirements as stipulated in the IB may find themselves subject to the sanctions outlined in the UAE Civil Aviation Law 20 of 1991, in brief, this may be suspension or revocation of licenses, airworthiness certificates, authorizations and permits, bans and even jail for up to one year and a fine of up to 50,000 Dirhams.</p>\r\n<p><br />Irrespective of the limits outlined in the IB, Operators should assess their own situations and likely exposure to claims that may exceed the minimum insurance requirements.&nbsp; Aside from bearing in mind the revised limits of liability under the Convention and obtaining insurance that adequately covers these limits, they should look at their exposure in other countries, such as EU countries where EC Regulation 785 of 2004 provides for compulsory insurance of air carriers and operators in for their liabilities in respect to passengers, baggage, cargo and third parties on the ground.&nbsp; Furthermore, a close assessment of an Operator/Carrier&rsquo;s terms and conditions of carriage and air waybills should be made to determine if the Convention and UAE limits are being relied upon, or whether an increased limit of liability has been incorporated into the contractual documents. If higher limits of liability have been agreed, this should be reflected and covered in the insurance arrangements.</p>'),
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(84126, 4588, 'content', '<p>The overall outlook is positive and encouraging, a sure sign that the UAE Courts are honoring the intention of the parties and allowing them to choose the ideal process for all their disputes, be it court litigation or arbitration. In recent rulings, the UAE Courts have laid down principles in support of international arbitration and the UAE&rsquo;s commitment to respecting the provisions of the New York Convention those rulings include:</p>\r\n<p><strong><br />a)&nbsp;Fujairah Federal Court of First Instance:</strong></p>\r\n<p>In a recent case before the Fujairah Federal Court of First Instance (No. 35/2010 [27.04.1020]) the Fujairah Court recognized a foreign arbitral award which had been issued in London and confirmed several important principles including the following:</p>\r\n<p>1-&nbsp;The substantive merits of the arbitral award should not be reviewed when considering the ratification and enforcement of an arbitral award; and<br />&nbsp;<br />2-&nbsp;Ratified treaties and conventions between the UAE and other countries such as the New York Convention should be treated as &ldquo;internal legislation&rdquo; with respect to the recognition and enforcement of foreign arbitral awards.</p>\r\n<p><strong><br />Facts of the Case:</strong></p>\r\n<p><br />The matter concerned a dispute over a charterparty. US$235,735.76 was claimed together with interest and costs. The matter was presided over by the London Maritime Arbitrators Association and an award was rendered in the Claimant&rsquo;s favour.</p>\r\n<p>The Claimant sought to have the award recognized and enforced in Fujairah, UAE due to the fact that the opponent&rsquo;s assets were located in Fujairah and due to the fact that both the UK and the UAE are signatories to the New York Convention.</p>\r\n<p><strong><br />In the recitals, the Court held:</strong></p>\r\n<p><br />&ldquo;According to Article 212(4) of the Civil Procedure Law, the arbitral award shall be issued in the UAE; otherwise the rules pertaining to foreign arbitral awards shall apply.&rdquo;</p>\r\n<p>&ldquo;Article 215(1) of the aforementioned Law states that the arbitral award shall not be enforced except after being recognized by the court with whose office of the clerks it was filed; and that after reviewing the award and the terms of reference and ascertaining that there is no impediment to enforcement.&rdquo;</p>\r\n<p>&ldquo;It is a well settled principle of judicial construction that the court would not review the substantive merits of the arbitral award when hearing an action to recognize it (Appeal No. 556-24, 19.04.05 Hearing) and that ratified treaties and conventions between the UAE and other states are applicable as internal legislation with respect to the enforcement of foreign arbitral awards subject to national courts verifying that the necessary criteria are met before confirming any award (Appeal No. 764-24 &ndash; 07.04.05 Hearing).&rdquo;</p>\r\n<p>The court in its reasoning concluded that whenever an Arbitral Award has been issued in conformity with the domestic laws of the foreign country, it is afforded recognition in the UAE.</p>\r\n<p>&ldquo;Having reviewed the mandatory arbitration clause and the two awards to be recognized, the Court sees no legal impediment to confirming the awards&rdquo;.</p>\r\n<p><strong><br />b)&nbsp;Dubai Court of Appeal - Civil Appeal No. 531/2011 [06.10.11]:</strong></p>\r\n<p><br />The facts of the case are that the claimant commenced proceedings before the Dubai Court of First Instance (Civil Action No. 274/2011 &ndash; Full Bench) against the defendant seeking to have SIAC arbitral award no. 128/2009 recognized, enforced and vested with an executory formula.</p>\r\n<p>On 22.06.07, the claimant and the defendant entered into an agreement whereby the latter was granted broadcasting rights for 6 one day cricket matches in the Middle East for a license fee payable by the defendant to the claimant. Clause 16 of the agreement provided that any dispute arising under the agreement would be submitted to mandatory arbitration in Singapore under SIAC Rules.</p>\r\n<p>In the course of performance of the agreement a dispute arose between the claimant and the defendant and the matter was referred to SIAC, the arbitral award in question was issued on 28.09.2010 on the following terms: the defendant was ordered to pay the claimant the sum of USD 267,000 and 7.08% interest per annum from 1.11.07 until the date of the award along with arbitration costs.</p>\r\n<p>In order to enforce the award, the claimant filed the above mentioned action before Dubai Court to have the award recognized pursuant to the New York Convention. On 18.05.2011, a default ruling was made dismissing the action with fees and costs.</p>\r\n<p>The claimant appealed in Civil Appeal no. 531/2011 seeking an order challenging the lower court&rsquo;s ruling and seeking recognition of the SIAC arbitral award no. 128/2009 dated 18.09.10 and directing that it be enforced and vested with an executory formula.</p>\r\n<p><strong>In the recitals the court held:</strong></p>\r\n<p>&ldquo;Whereas both UAE and Singapore are signatories of the New York Convention, and Article 3 of the said convention stipulates that that &lsquo;Each state party shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon&rsquo;&nbsp;<br /><br />And whereas the Dubai Appeal Court reviewed the fulfillment of all the conditions required according to the New York Convention, it ruled that the lower Court&rsquo;s ruling dismissing the action is incorrect and is undermined by grounds of appeal, the ruling will thus be challenged and therefore the court rendered its judgment recognizing and enforcing the arbitral award no. 128/2009 issued by SIAC arbitrator on 28.09.10, the Respondent is to pay fees and costs.&rdquo;</p>'),
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(84145, 4589, 'content', '<p>In the first,&nbsp; the blend of legal and political considerations that are involved in extradition were highlighted, the procedure for extradition was explained and the available defences, one of which is &lsquo;dual criminality&rsquo;, were set out.&nbsp; In the second article<sup>2</sup>,&nbsp; the author explored the increasing problem of dishonoured cheques in the UAE, the difference in approach taken by the criminal and civil courts and the establishment of the Judicial Committee for Bounced Cheques by Decree No.56 of 2009.&nbsp; In recognising the commercial nature of some transactions and the practice, among some property developers, of presenting a cheque for payment to which they are not (or not yet) entitled, that article urges the criminal courts to investigate the circumstances and merits behind a criminal complaint that a cheque was issued in bad faith, with the option of referring the case to the civil court where it can be dealt with if no bad faith is established.&nbsp; Finally, it considers the situation where a borrower of a bank loan defaults on the repayment schedule with the result that the security cheque is presented by the bank in order to prosecute the borrower.<br /><br /><strong>COMBINING THE TOPICS IN AN EXAMPLE &ndash; AMANDA JANE ALLEN<br /><br /></strong>This article examines the recent decision by the High Court of England &amp; Wales in the case of The Government of the United Arab Emirates v Amanda Jane Allen [2012] EWHC 1712 (Admin)<sup>3</sup>.&nbsp;&nbsp; This case is an example of the meeting of the two subjects of extradition and dishonoured &lsquo;loan security cheques&rsquo;.<br /><br />In May 2008, Amanda Allen took a loan of AED 2,380,000 from Abu Dhabi Commercial Bank to purchase a property, the total cost of which was AED 2,800,000.&nbsp; The loan was repayable over 20 years by monthly instalments through a credit card account with the bank.&nbsp; As security, she provided the bank with an undated cheque for AED 2,337,500.&nbsp; In late 2009, she defaulted on the loan.&nbsp; The bank called in the loan, entered 30 December 2009 on the cheque and presented it for payment, but there was insufficient credit to meet the cheque.&nbsp; Ms Allen then made a payment of AED 800,000, which left an unpaid balance of approximately AED 1,500,000, and returned to the UK.<br /><br />Ms Allen was prosecuted in absentia at the Abu Dhabi Court of issuing an uncovered cheque contrary to Article 401(1) of the Federal Penal Code.&nbsp; She was sentenced to three years&rsquo; imprisonment.<br /><br />On 22 March 2011, the UK received a request for Ms Allen&rsquo;s extradition.&nbsp; She was arrested and brought before Westminster Magistrates&rsquo; Court where, on 2 December 2011, the District Judge found in her favour and ordered her discharge.&nbsp; The UAE appealed to the High Court against the District Judge&rsquo;s decision.&nbsp; The appeal was heard on 14 June 2012 and judgment was handed down on 22 June.&nbsp; The High Court dismissed the UAE&rsquo;s appeal<sup>4</sup>.<br /><br />What follows is a summary of the relevant law, an examination of the reasons for the findings of the UK courts and concluding remarks about why this request for extradition was never likely to succeed.<br /><br /><strong>THE LAW AND ISSUES<br /><br /></strong>There are two legal instruments relevant to the extradition part of this case:&nbsp; The bilateral Extradition Treaty of 2006&nbsp;<sup>5</sup>&nbsp;between the UAE and the UK and the UK&rsquo;s Extradition Act 2003<sup>6</sup>.<br /><br />The 2006 Treaty was announced in the UAE by Federal Decree No (38) of 2007.&nbsp; It came into force in both countries on 2 April 2008.&nbsp; The UAE is designated a Category 2 territory under the UK&rsquo;s Extradition Act 2003.&nbsp; Therefore, the provisions in the 2006 Treaty, as to requirements for extradition requests and available defences, mirror those contained in Part 2 of the 2003 Act.</p>\r\n<p>The sections of the 2003 Act relevant to Ms Allen&rsquo;s case are sections 78, 138 and 86:</p>\r\n<ul>\r\n<li>Section 78 requires the Court to ensure that the extradition request documentation is in order, satisfy itself as to the person&rsquo;s identity and establish whether the offence specified in the extradition request is an &lsquo;extradition offence&rsquo;.&nbsp; This last concept is known as the requirement for &lsquo;dual criminality&rsquo;.</li>\r\n<li>Section 138 sets out the conditions to be satisfied in determining whether the offence for which a person has been convicted and sentenced in a category 2 territory is an &lsquo;extradition offence&rsquo;, which includes a requirement that the conduct would constitute an offence in the United Kingdom punishable with imprisonment for a term of 12 months or greater and a sentence of imprisonment for a term of 4 months or a greater has been imposed in the category 2 territory.</li>\r\n<li>Section 86 requires the Court to decide whether there is, on the papers in the extradition request, sufficient evidence to make a case requiring an answer by the person whose extradition is sought, if the proceedings were a summary trial (a prima facie case).</li>\r\n</ul>\r\n<p>As noted above, the Extradition Act requires &lsquo;dual criminality&rsquo;.&nbsp; Article 401(1) of the Federal Penal Code (Law No.3 of 1987 as amended) states:<br />&nbsp;<br />A punishment of confinement shall be inflicted on any person who, in bad faith draws a check without an existing or drawable provision, or who, after issuing the check, withdraws all or part of the fund so that the balance becomes insufficient to settle the amount of the check, who orders the drawee not to pay check, or deliberately makes or signs the cheque in such a manner as to prevent it from being paid.<br /><br />Section 2 of the Fraud Act 2006&nbsp;<sup>7</sup>&nbsp;states:</p>\r\n<p>(1) A person is in breach of this section if he&mdash;<br />(a) dishonestly makes a false representation, and<br />(b) intends, by making the representation&mdash;<br />(i) to make a gain for himself or another, or<br />(ii) to cause loss to another or to expose another to a risk of loss.<br /><br />(2) A representation is false if&mdash;<br />(a) it is untrue or misleading, and<br />(b) the person making it knows that it is, or might be, untrue or misleading.<br /><br />(3) &ldquo;Representation&rdquo; means any representation as to fact or law, including a representation as to the state of mind of&mdash;<br />(a) the person making the representation, or<br />(b) any other person.<br /><br />(4) A representation may be express or implied.</p>\r\n<p>Although the letter of the law in the UAE requires bad faith for the offence to be established, in practice, a finding that the opponent issued the cheque and that the cheque was dishonoured will usually result in confinement.&nbsp; The UK does not punish the mere non-payment of a cheque by criminal means.&nbsp; In the absence of dishonest intent, the matter of unpaid cheques is one for the civil courts.&nbsp; The UAE&rsquo;s case in the extradition proceedings needed to overcome this issue, which would be realised as a dual criminality defence.&nbsp; It therefore argued implied misrepresentation: that Ms Allen was guilty of an offence under section 2 of the Fraud Act 2006 (Fraud by false representation) on the date entered on the cheque by the bank (30 December 2009) on two propositions:</p>\r\n<p>1.&nbsp;There was an implied representation by her at the time she provided the cheque in 2008, that it would in the ordinary course be met whenever it was presented for payment.</p>\r\n<p>2.&nbsp;This representation became false (bad faith was established) when her account was depleted so as to render the balance insufficient to meet the cheque on presentation.<br /><br />It is important to note that it was not the UAE&rsquo;s case that the representation was false at the time of the loan (that could not have been sustained on the facts), but that it became false at the time there was insufficient credit to meet it.<br /><br />The High Court identified the critical issue as: what, if any, representations were to be implied from the giving of the cheque in the commercial context in which it was given?<br /><br />As to the UAE&rsquo;s first proposition, Toulson LJ pointed to a number of what he called &lsquo;striking features&rsquo; of this case that distinguished it from a situation where a cheque is presented in a deception by a person who knows, when he hands over the cheque, that there are, will or might be insufficient funds to meet it:</p>\r\n<ul>\r\n<li>The amount of the cheque was practically equal to the amount of the loan, but was not the intended method of repayment.&nbsp; Rather, the cheque was to provide a form of security upon a certain contingency, such as default, which might occur at any time within the 20-year period of the loan.&nbsp; Any banker would know there are a number of reasons why a borrower might default in that time, other than a deliberate intention to do so, and takes them into account when deciding the terms on which it will lend, including the rate of interest.</li>\r\n<li>The purpose of the loan was to buy a property.&nbsp; No banker could have supposed Ms Allen to be suggesting that she could keep the amount of the loan in her bank account.&nbsp; If that was her position, it is unlikely she would have needed the loan.&nbsp; The bank knew her financial circumstances and there was no evidence that she did not make full and frank disclosure of her financial circumstances.</li>\r\n<li>The bank would have known that the value of the security (the cheque) would depend on Ms Allen&rsquo;s circumstances at such time as default might occur, which might arise for any number of reasons.&nbsp; No reasonable banker could have inferred that she was making a representation that her current financial circumstances were such that the cheque would be met if presented at any time during the period of the loan.&nbsp; The Court commented that it would make no sense if she were to be taken by the bank as saying that in an event resulting in default, her circumstances at the time of the loan were nevertheless such that the cheque would be met, despite the fact that she could not now meet the repayments.</li>\r\n</ul>\r\n<p>In answer to the first proposition, therefore, the Court held there was no implied representation by Ms Allen that the cheque would in the ordinary course be met whenever it was presented for payment.</p>\r\n<p>As to the second proposition, the High Court dismissed the arguments advanced on behalf of the UAE, for the following reasons:</p>\r\n<ul>\r\n<li>A representation is limited to statements about past or present intent and cannot be made as to a future state of mind.&nbsp; Any such statement will not fall within the legal classification of a representation.&nbsp; Therefore, any breach of such statement will not be a false representation.</li>\r\n<li>There was no requirement for Ms Allen to keep the bank updated about her financial situation and there was no basis for inferring a continuing implied representation (by her silence) that she was still in a position to meet the cheque (which would have become a misrepresentation at the time she had insufficient credit to meet it).</li>\r\n<li>The cheque provided the bank with a cause of action, with the reinforcement of criminal sanctions under UAE law.&nbsp; It was not (contrary to the submission made by counsel for the UAE) rendered commercially worthless if it did not operate as providing such a continuing representation.</li>\r\n</ul>\r\n<p>In relation to the requirement under s.86 for a prima facie case to be established in the extradition request, although it was not necessary to decide the point given the above findings as to the issue of representation, the High Court found that no evidence was provided to show, either directly or by inference, that Ms Allen had acted with any dishonesty.&nbsp; As dishonesty is a required element of s.2 Fraud Act, a prima facie case would not have been established.<br /><br /><strong>CHANCES OF SUCCESS<br /><br /></strong>Although the High Court correctly identified that the scope of representations is in law limited to statements as to the past or present (including the person&rsquo;s state of mind) and that there was no basis for an implied continuing representation by Ms Allen, this request for extradition was doomed to failure for the lack of dishonesty too.<br /><br />The purpose of extradition is to allow participating states to investigate, put on trial and sentence individuals who commit serious criminal acts and then flee the jurisdiction.&nbsp; It is not intended to assist in the enforcement of commercial agreements.&nbsp; It should come as no surprise, therefore, that in the absence of any evidence that Ms Allen acted dishonestly when taking out the loan (or at any stage), there was no offence under the Fraud Act and thus no basis for her extradition.<br /><br /><strong>CONCLUDING COMMENTS<br /><br /></strong>In an article with what could be considered as an inflammatory headline, the High Court has been reported&nbsp;<sup>8&nbsp;</sup>as saying that &ldquo;Jail for bounced cheques makes no sense&rdquo;.&nbsp; This is inaccurate.&nbsp; What the Court said &ldquo;makes no sense&rdquo; is for an inference to be drawn that a borrower would make a representation, at the time a loan is taken, that a security cheque would be met in the ordinary course of events if presented at any time during the 20-year period of a loan, when the ordinary course of human events may well include illness, accident or unemployment so as to render him unable to meet the monthly instalments.&nbsp; This was in the context of the Court explaining that a bank will know that the value of a security cheque will depend on the financial circumstances of the borrower at the time the security is needed.&nbsp; Of course, this will invariably be at a time when, for whatever reason, the borrower has little or no money.<br /><br />The issue of whether the UAE should invoke the criminal law for people who later become unable, rather than unwilling, to honour a cheque written in good faith is not a subject upon which the High Court commented in this case.&nbsp; It merely confirmed that, in these circumstances, there is no representation that the cheque will always be met and so, in the event that it is dishonoured, there is no basis for a criminal charge in the UK.&nbsp; The reality of the situation is that the arguments advanced on behalf of the UAE were inherently unsupported by UK legal theory or precedent precisely because the remedy for Ms Allen&rsquo;s actions would, in the UK, lie in civil action rather than criminal proceedings.<br /><br />If, as was urged in Hassan Arab&rsquo;s article referred to above, the Abu Dhabi Criminal Court had investigated the circumstances of this case, it may have found that Ms Allen did not act in bad faith, but that her circumstances had changed such that she was no longer able to repay the loan.&nbsp; Lenders in the UAE are of course entitled to file criminal complaints against their defaulting customers, but this article would also urge the Criminal Courts to take into account (i) that default may result from a change in circumstances rather than bad faith; (ii) that lenders will know that an average borrower cannot realistically be certifying that they will always have sufficient funds to repay the full debt by way of the security cheque; and (iii) that, in the absence of bad faith, the repayment of the loan is likely to be the preferred outcome for all parties.<br /><br />Given that lenders must always have known that an average borrower is unable to repay the loan at any time and given the known difference in approach to dishonoured cheques between various jurisdictions, it seems highly unlikely that this judgment of the High Court will have any direct effect on current lending practices in the UAE.&nbsp; Having said that, the business of lending is of course a risk-based activity that may look to preferring secured loans over personal cheques, and to requiring substantial deposits from borrowers to mitigate any future loss.<br /><br />In any event, in terms of enforcement, progress might conceivably be made by focussing on civil recovery rather than criminal punishment.&nbsp; If a lender&rsquo;s desire is to recoup the money owed to it, the best chance of achieving that aim is to obtain a money judgment against the debtor for the amount actually due, with an easily-enforceable right (granted by a loan agreement secured against the property and/or by a power of attorney given by the borrower) to sell the debtor&rsquo;s identified assets.&nbsp; In addition to recognising the situation for the commercial transaction that it is, this approach would also acknowledge the futility, however incentivising it may be, of confining to prison a person who could more usefully be finding ways to repay his debt.<br /><br />Footnote:</p>\r\n<ol>\r\n<li>&lsquo;Extradition Requests and Available Defences&rsquo; by Ibtissem Lassoued &amp; Mahmoud Mostafa, Al Tamimi Law Update (January/February 2012)</li>\r\n<li>&lsquo;Dishonoured Cheques in the UAE - a Criminal Law perspective&rsquo; by Hassan Arab, Al Tamimi Law Update (June 2012)</li>\r\n<li><a href=\"http://www.bailii.org/ew/cases/EWHC/Admin/2012/1712.html\">http://www.bailii.org/ew/cases/EWHC/Admin/2012/1712.html</a></li>\r\n<li>There was a further right of appeal (not taken in this case) to the Supreme Court, to be sought within 14 days of the discharge, but this needs permission of the High Court (or the Supreme Court) which permission must not be given unless the High Court has certified a point of law of general public importance and it is a point that the Court considers ought to be heard by the Supreme Court: s.32 Extradition Act 2003.</li>\r\n<li><a href=\"http://www.official-documents.gov.uk/document/cm73/7382/7382.pdf\">http://www.official-documents.gov.uk/document/cm73/7382/7382.pdf</a></li>\r\n<li><a href=\"http://www.legislation.gov.uk/ukpga/2003/41/contents\">http://www.legislation.gov.uk/ukpga/2003/41/contents</a></li>\r\n<li><a href=\"http://www.legislation.gov.uk/ukpga/2006/35/contents\">http://www.legislation.gov.uk/ukpga/2006/35/contents</a></li>\r\n<li>Shane McGinley, Arabian Business, 24 July 2012 &ldquo;Jail for bounced cheques &ldquo;makes no sense&rdquo; &ndash; UK judge&rdquo;.</li>\r\n</ol>'),
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(84048, 4584, 'content', '<p>Developments in technology (including increased capacity, functionality, and availability), as well as economic and social globalisation, have resulted in new challenges. Social networking sites, location-based services, on-line shopping, cloud computing, smartphones, and other such developments, mean that we leave digital traces wherever we go. If not managed carefully, this personal information can get into the wrong hands &ndash; ranging from telemarketers and spammers to fraudsters and stalkers.<br /><br />In this article, we outline some notable developments in data protection law in the European Union, the Dubai International Financial Centre and Singapore.<br /><br /><strong>Proposal for new EU Data Protection Regulation</strong><br /><br />The European Commission has driven the development of policy and law relating to the protection of personal information. The approach taken in Europe has been influential around the world. Under EU law, everyone has the right to the protection of personal information. It can only be gathered legally under strict conditions, for a legitimate purpose. Persons and organisations that collect and manage personal information must protect it from misuse and must respect certain rights of data subjects.<br /><br />In January this year, the European Commission published its proposal for a new Data Protection Regulation. The EU&rsquo;s current rules date from 1995, and since then there have been significant changes in technology and the way personal data is accessed stored and used. The proposal for the new Data Protection Regulation is intended to strengthen online privacy rights and boost Europe\'s digital economy, while addressing complexity, uncertainty and cost that has arisen due to inconsistencies between the ways in which the various member states of the EU have implemented the 1995 rules.<br /><br /><strong>Proposed changes to the current regime include:</strong></p>\r\n<ul>\r\n<li>There will be a single set of rules on data protection, valid across the EU. Companies will only have to deal with a single data protection authority located in the member state in which they have their main establishment. Individuals will have the right to refer all cases to the data protection authority in their home country - even when their personal data is processed outside their home country.</li>\r\n<li>EU rules will apply even if personal data is processed abroad. While this gives people in the EU confidence that their data is protected world-wide, it also makes companies outside the EU subject to EU data protection rules if they offer goods or services in the EU.</li>\r\n<li>A reinforced &lsquo;right to be forgotten&rsquo; will help people better manage data protection risks online. People will be able to delete their data if there are no legitimate reasons for retaining it.</li>\r\n<li>Wherever consent is required for data to be processed, it will have to be given explicitly, rather than assumed (as is sometimes the case now). In addition, people will have easier access to their own data and be able to transfer personal data from one service provider to another more easily.</li>\r\n<li>There will be increased responsibility and accountability for those processing personal data. Companies and organisations must notify the relevant national supervisory authority of serious data breaches as soon as possible.</li>\r\n</ul>\r\n<p>The proponents of the new system claim it will reduce complexity and uncertainty and, in doing so, reduce compliance costs. In contrast, some voices from industry are highlighting the potential for the new system to result in further bureaucracy and costs - without actually increasing efficiency.<br /><br />The draft Regulation still needs to pass through the EU political process. The general expectation is that it will come into effect in 2014, subject to any changes that may arise in the course of the political process.<br /><br /><strong>Proposed changes to DIFC Data Protection Law<br /><br /></strong>By way of background, certain provisions of the UAE Penal Code provide the main legal basis for data protection under UAE law. The relevant provisions are essentially pointed at the privacy of the individual, and &ndash; being, as they were, drafted in the 1980s &ndash; they do not specifically envisage the types of technological advancements that have made data protection so topical. Other federal laws, including the Medical Liability Law (Federal Law No. 10 of 2008) and the Credit Information Law (Federal Law No. 6 of 2010) amongst others, restrict the use of personal information in specific circumstances.&nbsp;<br /><br />In contrast, the Dubai International Financial Centre, a financial services free zone located in the Emirate of Dubai, has its own &lsquo;European style&rsquo; data protection law, applicable in the jurisdiction of the DIFC. The Data Protection Law 2007 (DIFC Law No. 1 of 2007) prescribes rules and regulations regarding the collection, handling, disclosure and use of personal data in the DIFC, the rights of individuals to whom the personal data relates, and the role of the DIFC Authority with regard to data protection. The Data Protection Law embodies international best practice standards, and is broadly consistent with the 1995 EU Data Protection Directive. It is designed to balance the legitimate needs of businesses and organizations to process personal information with the importance of upholding an individual&rsquo;s right to privacy.&nbsp;<br /><br />Generally speaking, as part of the set-up process in the DIFC, an entity is required to notify the DIFC&rsquo;s Commissioner of Data Protection if it intends to process personal information, including transferring personal information outside of the DIFC. This notification has to be updated when the entity&rsquo;s commercial licence is renewed, or if at any time the entity changes the way in which it will process personal information.&nbsp;<br /><br />An entity that wishes to process &lsquo;Sensitive Personal Data&rsquo; (being personal information revealing or concerning (directly or indirectly) racial or ethnic origin, communal origin, political affiliations or opinions, religious or philosophical beliefs, criminal record, trade-union membership and health or sex life), or that wishes to transfer personal information outside the DIFC to a jurisdiction that is not recognised by the DIFC as offering an adequate level of protection to personal information, needs to seek a permit from the Commissioner of Data Protection.<br /><br />A number of changes to the Data Protection Law have been proposed recently. Besides miscellaneous amendments aimed at improving drafting and clarity, the key changes to the Data Protection Law can be summarised as follows:<br /><br />Duty to notify changes: A Data Controller must notify the Commissioner of Data Protection of any changes to the particulars of the Data Controller&rsquo;s notification to the Commissioner. Failure to notify the Commissioner of such changes as soon as possible &ndash; and in any event within 14 days from the date upon which the particulars becomes inaccurate or incomplete &ndash; is a contravention of the law.<br /><br />Delegation powers of the Commissioner of Data Protection: The Commissioner may delegate functions and powers to officers and employees of the Dubai International Financial Centre Authority.<br /><br />General contravention and administrative imposition of fines: The proposed changes set out provisions relating to contraventions of the law and the administrative imposition of fines.</p>\r\n<p><strong><br />Developments in Singapore</strong><br /><br />Meanwhile, Singapore is planning to pass a new law that will be known as the Personal Data Protection Act, which is likely to come into effect in the third quarter of 2012.&nbsp;<br /><br />The current situation in Singapore has some parallels with legal protection of personal information in the UAE. Specifically, there has been no specific data protection law of general application, and the protection of personal information has largely been handled in the context of other more general legal provisions that protect privacy.&nbsp;<br /><br />According to the bill, the new law will establish a data protection commission responsible for the administration and enforcement of the law. The law will apply to all private sector organizations in Singapore, and &ndash; significantly - will also apply to organizations located abroad that are engaged in data collection, processing and disclosure of such data within Singapore. (This aspect is similar, to some degree, to changes being proposed in Europe.) Organizations will be required to appoint an officer responsible for compliance with the law, and to implement policies and practices to comply with the law. Individuals will be able to request access to their personal data in order to find out how it is being used or collected, and to correct any inaccuracies and seek readdress of suspected breaches of the law. Notably, under the law, Singapore is planning to introduce a &ldquo;do not call registry&rdquo; which allows users to register their contact details so that they do not receive unsolicited marketing communications. This process will require would be telemarketers to verify with the registry before sending any messages that the intended recipients number does not appear on the register.<br /><br />As a small nation committed to developing its knowledge economy, Singapore is an example that UAE might like to follow.<br /><br />Al Tamimi &amp; Company&rsquo;s Technology, Media &amp; Telecommunications team regularly advises on data protection issues in the Middle East, including in on-shore Dubai and free zones such as DIFC. For any data protection related queries, please contact David Yates (<a href=\"mailto:d.yates@tamimi.com\">d.yates@tamimi.com</a>) or Nick O&rsquo;Connell (<a href=\"mailto:n.oconnell@tamimi.com\">n.oconnell@tamimi.com)</a></p>'),
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(84063, 4585, 'content', '<p>Protection for a patent for second and further medical use typically relates to the use of a known substance or composition for a therapeutic purpose that is different or new to that which was identified when the substance or composition was new.&nbsp; When the substance or composition is &ldquo;old&rdquo;, it can no longer be protected as such, and understandably there is a strong desire on the part of pharmaceutical companies to protect their investment in researching the new application of the known substance or composition.<br /><br />In the opinion of at least some of the member governments of Gulf Cooperation Council (GCC), such as the United Arab Emirates (UAE) and Saudi Arabia (KSA), patent applications that include claims in respect of second and further medical use lack novelty.&nbsp; Pharmaceutical companies may argue that the method of using the relevant compounds or compositions is new, but the mentioned governments take the view that such ways or methods of use are excluded from protection by law as method of treatment.<br /><br />It is important for patent applicants to bear in mind that novelty, inventive step and industrial applicability (non-obviousness) are the main three conditions for the granting of a patent application.&nbsp; However, in addition an invention should also not be excluded from the protection afforded by law, which exclusions include methods of treatment of humans and animals by diagnosis, therapy and surgery as specified in for example paragraph 3/B of article 27 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).<br /><br />During the last few years, pharmaceutical companies have put pressure on governments to grant protection to inventions which include claims of second and further medical use in order to safeguard their investments in research and development and they have succeeded in at least some jurisdictions.&nbsp; An example of where such pressures resulted in a greater acceptance of second medical use claims is the European Patent Office (EPO).&nbsp;&nbsp;<br /><br />In EISAI/Second Medical Indication, the Enlarged Board of Appeal (EBA) of the EPO considered the protection of second and further medical uses.&nbsp; In this regard the EBA found that second and further medical uses were excluded from protection in terms of articles 54(5) and 52(4) of the European Patent Convention (EPC1973) as inter alia methods for treatment of the human or animal body.&nbsp; To circumvent the exclusion provided for in law, the EBA accepted a practice followed by the Swiss Federal Intellectual Property Office related to certain claims (Swiss-type claims).&nbsp; The Swiss Federal Intellectual Property Office accepted claims that were directed to the use of a substance or composition, not as a method of treatment, but for the manufacture of a medicament for a new therapeutic application.&nbsp;&nbsp;<br /><br />By accepting this form of claim, the EBA accordingly introduced not a form of protection for second medical use as such, but protection for use of a known substance or composition for the manufacture of a medicament for a new therapeutic purpose.<br /><br />Swiss-type claims can be thought of as process claims and not substance or composition claims.&nbsp; Swiss-type claims use the following structure:<br /><br /><strong>&ldquo;Use of compound X in the manufacture of medicament for the treatment of disease Z.&rdquo;</strong><br /><br />It will be noted that in a Swiss-type claim &ldquo;novelty&rdquo; relates to the use of the known compound or substance in the manufacturing of a product for the treatment of a disease, and not to the way the substance is used as a method of treatment, or the composition of the substance itself.<br /><br />Swiss-type claims were accordingly accepted at the European Patent Office (EPO) following the EBA&rsquo;s decision in EISAI/Second Medical Indication, until the EPC 2000 addressed the issue of second and further medical use patents specifically.&nbsp; A new article 54(5) in EPC 2000 confirmed the principles underpinning the EISAI/Second Medical Indication decision, providing that new applications or uses of known substances are protectable.&nbsp; Second and further medical use patents are accordingly now accepted by the EPO.<br /><br />The format of a claim of second and further medical use can be stated as simply:<br /><br /><strong>&ldquo;Compound X for use in the treatment of disease Z.&rdquo;</strong><br /><br />In the UAE, KSA and at the GCC Patent Office the issue of second and further medical use has not specifically been addressed in local laws, however upon reviewing granted pharmaceutical patent applications in these jurisdictions and the results of the substantive examinations, it would appear as if Swiss-type claims are in fact allowed.<br /><br />The Saudi Arabian patent gazette published in issue no. 34 of 7 August 2012 the Saudi Arabian patent no. 2927 where claim no. 11 is a Swiss-type claim.&nbsp; The claim reads as follows:<br /><br />&ldquo;Use of substituted sulphonamides in the general formulation (I) as in claims 1-3 and or salts, hydrates or solvents accepted physiological, in the manufacture of medicament for the treatment of Glaucoma&rdquo;<br /><br />Further, the GCC patent gazette published in issue no. 14 of 30 September 2010 patent no. GC 0001215 where claim 27 is a Swiss-type claim, reading:<br /><br />&ldquo;Use of the compound defined in any one of claims 1 to 23 for the treatment or prophylaxis of a disease modulated by LXR alpha and/or LXR beta agonists.&rdquo;<br /><br />The UAE has followed the same trend as the GCC Patent Office and the Saudi Arabian Patent Office as can be seen from the UAE patent application no. 171/1998 where claim no. 11 is an amended Swiss-type claim.<br /><br />Claims of second and further medical use are however, still not acceptable in the UAE, KSA and at the GCC Patent Office as illustrated for example in the Saudi Arabian patent application no. 8290018 where the examiner requested the applicant to change the format of certain claims to the Swiss-type format in order to allow the subject patent.<br /><br />The objection of examiners in the UAE, KSA and at the GCC Patent Office to claims of second and further medical use is justified on the ground that second medical use either implies a lack of novelty or that they are considered as methods for treatment which is excluded from protection by law, such as for example Article 6 of the UAE Patent Law no. 31 of 2006 which provides that:<br /><br /><strong>A Patent shall NOT be granted for the following:<br /><br /></strong></p>\r\n<p>b)&nbsp;Methods of treatment of humans and animals by diagnosis, therapy and surgery.<br />c)&nbsp;Scientific principles, discoveries, theories and mathematical methods.&nbsp;<br /><br />Another possible reason for the rejection by the mentioned GCC governments of patents of second and further medical use may be to guard against the extension of the term of protection of pharmaceutical patents for first medical use through the protection of another patent for so called second and further medical use.&nbsp;<br /><br />It is possible that a continued rejection of patent claims for second and further medical use may motivate pharmaceutical companies to disclose more of the features of novel compounds and their uses in the initial patent applications, but it is more likely that pharmaceutical companies will continue to work for the amendment of applicable laws in order to ensure adequate protection for the significant research and development investments required to identify and safeguard second and further uses of know substances and compounds.<br /><br />In summary, the UAE, KSA and the GCC Patent Office grant protection for novel pharmaceutical compounds and for the first medical use of such compounds, but based on current practices will not do so in respect of second and further medical use, even if Swiss-type claim are allowed.</p>'),
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(84039, 4583, 'pageSummary', 'ECJ Decision on software licenses: On July 3, 2012, the European Court of Justice (ECJ) issued a landmark decision related to the copyright protection of software licenses. '),
(84037, 4583, 'content_description', 'ECJ Decision on software licenses: On July 3, 2012, the European Court of Justice (ECJ) issued a landmark decision related to the copyright protection of software licenses. '),
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(83964, 4580, 'pageSummary', 'A usual concern among lenders is whether payment of interest on loans is allowed under Qatari law.'),
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(83972, 4580, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Sami Fakhoury'),
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(83985, 4581, 'content', '<p>Between 2000 and 2009, $4 trillion in Collateralized Debt Obligations (CDOs) were issued.&nbsp; Ratings agencies were paid fees which were based on a percentage of the total value of the CDOs which they rated.&nbsp; The fees which ratings agencies were being paid were so good that the competition to get the job to rate subprime products was intense.<br /><br />The raft of rule changes which the DFSA introduced in July of this year, not surprisingly included rules devoted specifically to credit rating agencies.&nbsp; Operating a Credit Rating Agency is now, a new type of financial service in the DIFC.&nbsp;<br /><br />In its explanation for the creation of this new category of financial services, the DFSA quite correctly were of the view that it was inappropriate that all of the rules regulating other financial services, should also apply to Credit Rating Agencies.&nbsp; So, for example, Credit Rating Agencies are not subject to capital requirements, not required to appoint an MLRO, they do not need to have complaint handing procedures or obtain the consent of the DFSA in relation to a change of control, and they are not subject to the client classification requirements.&nbsp;</p>\r\n<p><strong>So what rules do apply to Credit Rating Agencies?</strong></p>\r\n<p>Consistent with the rules relating to other financial services, the rules regulating Credit Rating Agencies are found in GEN and COB.&nbsp;<br /><br />The GEN module now lists &ldquo;operating a Credit Rating Agency&rdquo; as a new financial service in the DIFC.<br /><br />Rule 2.27.1 defines what is &ldquo;operating a Credit Rating Agency&rdquo; which is essentially &ldquo;undertaking one or more Credit Rating Activities for the purpose of producing a Credit Rating with a view to that Credit Rating being disseminated to the public or distributed to a Person by subscription, whether or not it is in fact disseminated or distributed.&rdquo;&nbsp;<br /><br />The exclusions from the definition of &ldquo;Operating a Credit Rating Agency&rdquo; include services like credit scoring systems or similar assessments relating to obligations arising from consumer, commercial or industrial relationships, on the basis that these services are not relied upon by the public.&nbsp; The DFSA advises that their approach is consistent with the approach which was adopted in the EU, Hong Kong and Singapore.&nbsp;<br /><br />The principles which apply to all Authorised Firms as set out in rule 4.2 of the GEN module, also apply to Credit Rating Agencies.&nbsp; In addition there are now Credit Rating Agency specific principles found in COB at 8.2.&nbsp;<br /><br />There are three overarching principles introduced in these Rules (8.2.1, 8.2.2 and 8.2.3).&nbsp; These are set out below.&nbsp;&nbsp;&nbsp;<br /><br />Rule 8.2.1 requires that a Credit Rating Agency ensure that its Credit Ratings are well founded and based on a fair and thorough analysis of all relevant information.&nbsp;<br /><br />Rule 8.2.2 requires that the decisions of a Credit Rating Agency to do with Credit Ratings are independent and free from political or economic pressures and not affected by conflicts of interest to do with ownership structure, business or other activities or conflicts of interest of its employees.&nbsp;<br /><br />The final principle in Rule 8.2.3 requires a Credit Rating Agency to conduct its Credit Rating Activities in a transparent and responsible manner.&nbsp;<br /><br />There are then extensive rules relating to the quality of the Rating Process (8.3), the integrity of the credit rating process (8.4), conflicts of interest and independence (8.5) and independence of rating analysts and other employees (8.6).&nbsp; In this section one of the more interesting rules is 8.6.6 which requires that a Credit Rating Agency ensure that its employees not be remunerated and ensure that their performance evaluations are not conducted on the basis of the revenue generated or expected from the credit ratings in which the employee was involved.&nbsp;<br /><br />Also of interest is the definition of &ldquo;Rating Subject&rdquo; in 2.27.3 which provides that a Rating Subject is a Person other than a natural person, a credit commitment or a debt or debt-like Investment.&nbsp; The significance of this is that COB 8.1.1(2) makes it clear that where a Rating Subject is some kind of financial product like a debt or debt like instrument, then, where required,&nbsp; &ldquo;Rating Subject&rdquo; should be read as a reference to the Person who was responsible for obtaining the Credit Rating.&nbsp;<br /><br />In the consultation paper prepared by the DFSA on the rules for Credit Rating Agencies, the DFSA advise that they propose to allow Credit Rating Agencies a maximum period of 6 months to comply with the applicable conduct standards, by way of waivers.&nbsp;<br /><br />The rules introduced by the DFSA which regulate Credit Rating Agencies are, by and large, consistent with the rules which have been introduced in other jurisdictions.&nbsp; The fact that the DFSA and other regulators saw the need to introduce rules at all, is understandable but unfortunate.</p>'),
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(84008, 4582, 'content', '<p>The Amendments primarily deal with the regulation of websites accessible in Jordan. While many view the Amendments as a limitation on the freedom of the Jordanian press, others are of the view that the Amendments are needed to regulate websites, hold the responsible parties accountable, and place an obligation on the persons interested in covering Jordan\'s internal and external news to register and get licensed like the print press.<br /><br />Most notably, the Amendments extend the definition of press material to capture what is colloquially known as &ldquo;user generated content&rdquo;. Further, they require Electronic Publications (i.e. websites having a specific address on the web that provide publishing services, including news, reports, press investigations, articles and comments) to obtain a license before issuing or distributing press publications relevant to the domestic or external affairs of Jordan.<br /><br />Jordan&rsquo;s Amendments to the Press and Publications Law mean that owners of Electronic Publications, irrespective of where their offices are located, must take care when allowing their websites to be viewed in Jordan. While the Amendments only contain four changes to the Press and Publications Law, under the new legislative regime Electronic Publications that contain news, press reports, press releases and comments have an additional obligation to register, obtain a license and actively monitor the content of the publication in order to ensure that they are in compliance with the laws in Jordan.<br /><br />1.&nbsp;Obligations on Electronic Publications.<br /><br />Article 49 of the Press and Publications Law previously stated that Electronic Publications could benefit from the privileges granted by the Press and Publications Law, if they chose to license and register in accordance with the provisions of this law.<br /><br />In a significant departure from the Press and Publications Law, the Amendments now require that all Electronic Publications that publish news, press reports, press releases, and comments relevant to the domestic or external affairs of Jordan must be registered and licensed with the Department of Press and Publications &ldquo;by virtue of the Director&rsquo;s decision&rdquo; (the Director being the General Director of the Department of Press and Publications). This means that the Director has the authority to assess whether a particular Electronic Publication requires registration and licensing. Once notified by the Director that the Electronic Publication must be registered and licensed, the owner of the Electronic Publication must do so within ninety days.<br /><br />The registration and license requirements apply to all Electronic Publications irrespective of their location of operation. Electronic Publications owned by individuals that reside outside of Jordan, or that have administrative offices outside of Jordan, are also subject to the provisions of these Amendments. However, if the owner of the Electronic Publication is unknown or is located outside of Jordan, the Director will issue a notice in two local newspapers to inform the owner of the Publication of the requirement to register and license the website.<br /><br />User generated content, such as comments left by readers on websites, will now be considered as press material. This means that Electronic Publications are responsible for content they place on the website and for content users place on their websites. Further, the Electronic Publication, its owner, editor-in-chief, manager and any employees can be held responsible if the content, including user generated content, published on the website is in violation of this law. Writers of user generated content that violate the law can also be subject to liability in their individual capacity.<br /><br />The Amendments place an affirmative duty on Electronic Publications to monitor content to ensure that it does not contain false information or information unrelated to the subject of the news. Electronic Publications are required to keep a register of the &ldquo;material subject&rdquo; of all comments received on press material along with information about the sender of the comments for at least six months from the date on which the comment is posted on the website.<br /><br />If an Electronic Publication is found to be in violation of the Press and Publications Law or its Amendments, the Director has the authority to block the pertinent website and close its administrative offices located in Jordan (if any). The Director also has the authority to block unlicensed websites that violate the Press and Publications Law, its Amendments or &ldquo;any other law&rdquo;.<br /><br />2.&nbsp;Publication of contempt, slander, defamation and content affecting personal freedom is prohibited.<br /><br />Article 38 of the Press and Publications Law prohibited, amongst other things, the publication of anything that abuses a recognized religion, content that offends or insults Prophets, content that insults religious beliefs, or content that offends individual dignity and personal freedom.<br /><br />The Amendments to the Press and Publications Law delete the reference to &ldquo;offending the dignity of individuals and their personal freedom&rdquo; and expand the notion by prohibiting the publication of &ldquo;anything that includes contempt, slander, or defamation of individuals or affects their personal freedom&rdquo;.<br /><br />3.&nbsp;Penalties include fine and shutting down of the institution issuing offending publication.<br /><br />Under Article 48 of the Press and Publications Law, press publications including daily publications, non-daily publications, electronic publications, specialized publications and news broadcasting publications (collectively &ldquo;Periodical Publications&rdquo;) that were issued without a license were subject to a fine not less than five thousand dinars and not more than ten thousand dinars.<br /><br />The Amendments now impose a lower fine on Periodical Publications that are issued without a license, i.e. the Periodical Publication that violate the Press and Publications Law will be fined an amount not less than one thousand dinars and not more than five thousand dinars. However, more significantly, the Amendments allow the Director of Press and Publications to shut down shops and institutions that issue Periodical Publications in violation of the Press and Publications Law. Such Periodical Publications can be confiscated and subsequently prohibited from further issuance.<br /><br />4.&nbsp;Tribunals have jurisdiction over Press and Publications Law cases.<br /><br />The Press and Publications Law mandated that &ldquo;publication cases&rdquo; be considered as expedited law suits and resolved within six months from the date of registration at the Court of Registry. Publication cases are those related to crimes committed:</p>\r\n<p>(i)&nbsp;in violation of the Press and Publications Law;&nbsp;<br />(ii)&nbsp;in violation of the Press and Publications Law (whether through print or audio-visual media); and&nbsp;<br />(iii)&nbsp;against the domestic and external security of Jordan (whether through print or audio-visual media).</p>\r\n<p>The nominated judge in the Court of First Instance had jurisdiction to hear publication cases. Further, the Judge of Press and Publications Cases at the Court of First Instance of Amman had jurisdiction to hear publication cases that were committed within the Amman Municipality or within the exclusive jurisdiction of the Amman Court of First Instance.<br /><br />The Amendments now require that publication cases which are considered as expedited law suits be resolved within for months from the date of registration at the Court of Registry. Further, the Amendments expand the definition of publication cases by adding to the category civil cases related to damages resulting from an act committed by a Publication or audio-visual media. The jurisdiction to hear publication cases under the Amendments is now vested in a tribunal which is formed at each Court of First Instance. Further, the tribunal of Press and Publications cases at the Amman Court of First Instance now has the jurisdiction to hear publication cases that fall within the Amman Municipality or within the exclusive jurisdiction of the Amman Court of First Instance.<br /><br />Al-Tamimi &amp; Company&rsquo;s Technology, Media &amp; Telecommunications team regularly deals with media regulatory issues in the region. For further information please contact David Yates at&nbsp;<a href=\"mailto:d.yates@tamimi.com\">d.yates@tamimi.com</a>, or Anita Siassios at&nbsp;<a href=\"mailto:a.siassios@tamimi.com\">a.siassios@tamimi.com</a>. For queries specifically relating to Jordan, please contact Khaled Saqqaf at<a href=\"mailto:k.saqqaf@tamimi.com\">k.saqqaf@tamimi.com</a>.</p>'),
(83958, 4580, 'content', 'The main concern derives from the fact that interest is generally prohibited under the Islamic Shariah, which is embedded in many provisions of law in Qatar.  For instance, Article 1 of the Qatari Constitution provides that Islam is the State’s religion and the Islamic Shariah is the main source of its legislations.  Article 1 of the Qatari Law No. 22 of 2004 (the \"Civil Code\") provides that in the absence of a text of law, the judge has to decide according to the requirements of the Islamic Shariah.\r\n\r\nApplying interest and more generally, remunerating a lender which offers a loan to a borrower, is a concept that has commonly been considered as valid and enforceable around the world.  However, in the State of Qatar, one needs to differentiate between the loans granted by licensed financial institutions and the loans that are granted by all other parties.\r\n\r\nAs a general rule, interest on loans other than loans granted by licensed financial institutions is not permitted in Qatar, pursuant to the provisions of the Civil Code.\r\n\r\nArticle 568 of the Civil Code provides that “If the loan contract included remuneration in excess of the lent monies under the contract, excluding the necessary guarantees securing the lender’s right, the remuneration condition shall be void but the contract as whole shall remain valid.”\r\n\r\nAccording to the aforementioned Article of the Civil Code, assuming the absence of special banking laws and regulations, loans shall be interest free and the restitution of the principle amount (in the case of a loan of a sum of money) shall be the only obligation of the borrower under the loan.\r\n\r\nHowever, Article 268 of the Civil Code provides that “If the obligation concerns an amount of money which the debtor fails to pay after being notified and the creditor proves that he has suffered damage as a result, the court may order the debtor to pay damages observing the principles of justice”.  The court may therefore decide that the borrower pays damages as a result of its failure to repay its due debt.\r\n\r\nWhile interest on loans is generally prohibited under the Civil Code when the lender is not a licensed financial institution, the situation is completely different when the loan is granted by a local bank (or a branch of a foreign bank) licensed to conduct banking activities by the Qatar Central Bank (“QCB”).\r\n\r\nThe QCB law No. 33 for 2006 (“QCB Law”), issued two years following the Civil Code, allows banks to apply interest in accordance with the regulations of the QCB.\r\n\r\nChapter two of the QCB Instructions to Banks (“QCB Instructions”) also clearly states that licensed banks have the discretionary power to apply or not to apply interest.  Therefore, set aside any issues relating to banking monopoly rules in Qatar, a foreign bank which does not have a branch licensed by the QCB to carry out banking activities in Qatar, may find that the interest which is applied on Qatari law governed loans may be invalidated by the local courts.  In order to mitigate this risk, such foreign banks entering into transactions with Qatari borrowers are choosing a foreign law to govern their loan documentation and are submitting the disputes arising in connection with their loan to international arbitration or foreign courts.\r\n\r\nDespite the QCB Law provisions and the QCB Instructions authorising the application of interest on loans, the Qatari courts have a very conservative view in respect of interest and default interest application, even for when loans entered into by licensed banks in Qatar.  Such conservative view and refusal to admit the right to apply interest and default interest for banks in Qatar, had caused some confusion in the banking sector’s business for a few years until the Qatar Court of Cassation, in several rulings in cases brought before the court in 2010 ,  overruled the decisions of the Court of Appeal which did not uphold the agreement of the parties in respect of application of interest and default interest in a loan transaction between a licensed bank and its customer.\r\n\r\nThe Court of Cassation mentioned in its decision that loans granted by banks in Qatar were to be considered as commercial acts by nature and that Article 110 of the QCB Law, which states that \"QCB has the right to apply interest or revenue to be determined by the QCB on scheduled credit facilities unless the agreement between the lending financial institutions with its customers states otherwise\" clearly provided for the right of the bank to apply interest on loans granted to their customers.\r\n\r\nThe Court of Cassation also clarified that interest could either be “compensatory interest” or “default interest”. According to the Court’s definition, the compensatory interest applies in return of lending an amount of money to be used by the debtor for an agreed maturity, while default interest shall apply in case of failure by the debtor to pay the due amount of the loan on its due date. In this decision, “compensatory interests” refers to the contractual interest payments agreed between the bank and its customers. The Court of Cassation has also clarified that banks will have the right to claim default interest in addition to compensatory interests even if the agreement between the banks and their clients did not stipulate for the application of such default interest.\r\n\r\nFollowing the decisions of the Court of Cassation, it has become clear that banks which are licensed by the QCB (whether they are local Qatari banks or branches of foreign banks) will be able to enforce the payment of interest and default interest due on their loans to their customers through the Qatari courts. .\r\n\r\n<strong>First Published in Arabian Business Qatar – October edition</strong>\r\n\r\n<strong>Footnotes:</strong>\r\n\r\n[1] Qatari Court of Cassation, decision of 28/12/2010, Case No 184/2010\r\nQatari Court of Cassation, decision of 11/01/2011, Case No 208/2010\r\nQatari Court of Cassation, decision of 11/01/2011, Case No 168/2010\r\nQatari Court of Cassation, decision of 04/01/2011, Case No 207/2010'),
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(83596, 4562, 'content_description', 'Introduction: In August 2012, the UAE Securities and Commodities Authority (“SCA”) issued Board Resolution No. 37 of 2012 concerning the rules of investment funds (the “Regulation”), which will become effective upon publication in the Official Gazette.  '),
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(83608, 4562, 'lawUpdateArticleNoWriters_1_lawUpdateAuthorName', 'Dena El khatib'),
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(83592, 4562, 'content', '<p>Such publication is expected to occur during September 2012.&nbsp; The issuance of the Regulation has been expected for some time and is the culmination of a number of changes taking place in the relationship between the UAE Central Bank (&ldquo;Central Bank&rdquo;) the SCA and in relation to financial regulations generally in the UAE.&nbsp; This changing relationship has been earlier evidenced by an arrangement entered into between the Central Bank and the SCA in 2010 to determine the responsibilities of each governmental entity relating to particular financial activities.&nbsp; Following this arrangement, the SCA undertook the responsibility of fund regulation and in January 2011, the SCA circulated an initial draft regulation as to the establishment, marketing and operation of investment funds in the UAE.&nbsp; This draft regulation prior to the issuance of the Regulation been applied informally by the SCA in relation to local investment funds and the marketing and promotion of foreign funds by UAE Central Bank licensed banks and investment companies.<br /><br />The Regulation will have a substantial impact on both the establishment of local investment funds and the marketing and promotion of foreign funds in the UAE, particularly where these are being marketed and promoted by foreign entities located off-shore or from a representative office located in the UAE.&nbsp; Such institutions will need to re-evaluate their current practices in order to ensure compliance with the Regulation.&nbsp; Previous reliance on &lsquo;tolerated practices&rsquo; will no longer be available to such foreign financial institutions &ndash; including their representative offices and financial institutions located in the DIFC as well as abroad.<br /><br /><strong>Local Investment Funds<br /><br /></strong>In our view, the impact on the establishment of local investment funds will be substantial.&nbsp; Under the earlier Central Bank regulations local banks and investment companies had a high degree of flexibility when establishing local funds as the regulations were very light and the emphasis was on approval by the Central Bank.&nbsp; With the Regulation, we now have a highly regulated and prescriptive environment with a number of mandatory third party service providers.&nbsp; We would expect that the cost of managing funds will increase and that the ability for funds to be flexible and target small numbers of investors will be more difficult.<br /><br />A local fund is defined as one that is established in the UAE (excluding the DIFC) and is licensed by the SCA.&nbsp; Existing funds which have been approved by the Central Bank have a period of one year from the date of publication of the Regulation in the Gazette to become compliant with the provisions of the Regulation (including obtaining the approval of the SCA).&nbsp; It is specifically stated that an investment fund established in a free zone in the UAE (i.e. the DIFC) will be considered to be a foreign fund for the purposes of the Regulation.<br /><br />The definition of a local fund is potentially very wide as it is defined as a financial pool which engages in the activity of collecting monies from investors in return for the issuance of investment units of equal value and rights for the purpose of investment.&nbsp; The Regulation does however exclude from this definition various activities outlined specifically such as, but not limited to, the pooling of monies in a joint bank account, collective insurance contracts, and monies collected for the establishment of an entity in accordance with the UAE Commercial Companies Law.&nbsp;<br /><br />In order for any local fund to be established or promoted within the UAE (excluding the free zones), such local fund is to be duly approved and registered with the SCA in accordance with the Regulation. The Regulation provides for specific requirements for the establishment of the local fund (i.e. management, daily monitoring of activities, offerings, etc) and the limitations on the promotion of such local funds.&nbsp;&nbsp; Of note, each local fund will be required to appoint an Investment Manager (although this may be the same entity as the fund founder), an Administrative Services Company, a Custodian and an external auditor.&nbsp; It is unclear if a commercial bank may undertake the functions of fund founder, investment manager, administrative services company and the custodian (as would be the case with a Central Bank regulated fund) but it would appear that at least the role of administrative services company and the custodian would need to be separate given the oversight function of these two service providers.<br /><br />In addition to the service providers there are other specific requirements which will impact a financial institution looking to establish a local fund in the UAE:<br /><br />1.&nbsp;The company establishing a local fund must invest at least 3% of the local fund&rsquo;s capital but not invest more than 49% of the capital of the fund unless the fund is closed ended and does not allow offering or trading of its units to the public.<br /><br />It is unusual for a bank or investment company to be expected to invest in the establishment of a local fund.&nbsp; However, this requirement in the Regulation is clearly noted and will be a new factor to consider when establishing a local fund in the marketplace.<br /><br />2.&nbsp;It isn&rsquo;t clear if the fund will be a separate juridical entity from the fund founder.<br /><br />Certain provisions imply that the governance of the fund will be subject to similar rules as a corporate entity (i.e. meetings of unitholders&rsquo;, liquidation etc.) however, it is unclear from the Regulation.&nbsp; Note that the current UAE Commercial Companies Law does not provide for the establishment of fund companies so it may be the intention that the local fund would not be a separate legal entity (at least until there is a change to the UAE Commercial Companies Law).<br /><br />In relation to the capacity and authority of the local fund, the Regulation notes that the local fund will be governed by a board of directors appointed by the board of the company to oversee the fund.&nbsp; It is important to note that each member of the local fund board of directors is to be approved by the SCA and may not be removed without such approval.&nbsp; The Regulation details the responsibility of the local fund board of directors, including the capacity to conclude contracts with the service providers to the fund, but it is unclear how it will in fact be effected if the fund is not a legal separate entity.<br /><br />Under the current Central Bank regulations there is also this problem and the better view has been that the local fund is really an investment account held with the financial institution which manages the local fund.&nbsp; It isn&rsquo;t clear if this will also be the case with local funds established under the Regulation.<br /><br />3.&nbsp;Each local fund appears to be required under the Regulation to have an investment manager, an administrative services company, a custodian and (if investing in real estate) a valuer.&nbsp;<br /><br />The condition of each appointment is to ensure that each appointed entity and/or person is suitably licensed to fulfill the responsibilities of the requisite task.&nbsp; There is a requirement that the investment manager and administrative services company be licensed to practice their respective activities and presumably this means a UAE license as the activities will be undertaken in the UAE.<br /><br />For the custodian, the license required will be an SCA license to provide custodial services.<br /><br />In each case, we assume that a DFSA license will be insufficient.<br /><br />4.&nbsp;There are extensive reporting requirements for the investment manager and administrative services company to comply with in relation to the fund.&nbsp; Accounts are required to be audited quarterly as well as annually.<br /><br />5.&nbsp;It is anticipated that there will be further regulations issued in relation to specialist funds (i.e. REIT, exchange traded funds).&nbsp;<br /><br /><strong>Marketing and Promotion of Foreign Funds</strong><br /><br />The Regulation also provide restrictions on the marketing and promotion of foreign funds in the UAE.&nbsp; The definition of a foreign fund will include any funds established in the DIFC as well as funds established outside of the UAE, even if being marketed by a Central Bank regulated representative office in the UAE.&nbsp; No foreign fund may be marketed or promoted in the UAE without first being approved by the SCA.<br /><br />In order to be eligible for approval by the SCA for a public offering, the fund must be established in a foreign country (including the DIFC) and be subject to the control of a supervisory authority similar to the SCA and licensed to promote a public offering.&nbsp; A private offering of a fund must also have the SCA approval and marketing activities will be limited to direct contact with pre-determined people.<br /><br />The approval process is to take 30 days from submission of all information and documents to the SCA.&nbsp; The SCA may however impose any conditions on such approval or may suspend any decision in its sole discretion.&nbsp; Any decision may be appealed with the SCA in accordance with the SCA guidelines and a final decision may be obtained in UAE court, if necessary.<br /><br />While the approval process should not be problematic, the main changes will be seen in relation to the operation of what has been called a &lsquo;tolerated practice&rsquo; in relation to the marketing and promotion of foreign funds in the UAE.&nbsp; Under the Regulation, a foreign entity (including a DIFC entity) wishing to promote a foreign fund in the UAE will not be able to do so without appointing a local promoter.&nbsp; The local promoter must be either a bank or investment company licensed by the Central Bank or a company licensed for such purpose by the SCA.&nbsp; It is unclear at this stage if this latter category may leave room for DIFC entities, representative offices or other foreign entities to obtain a SCA license, but this is generally considered to be unlikely.<br /><br />It is noted that representative offices, which have to date been able to market their own foreign fund products in the UAE, will only be able to promote foreign funds by private placement to institutions with a minimum investment of AED 10 million per subscriber.&nbsp; As many representative offices are of private banks, with private individual clients, meeting this requirement will be extremely difficult.&nbsp; We further note that DFSA regulated funds as well as funds from recognised regulated countries with sound regulation are not automatically exempted from the SCA approval process (as is the case in the DIFC).<br /><br />Local promoters may also face difficulties in meeting requirements for foreign funds as they are required to continue to follow up in relation to the performance of the foreign fund following promotion to ensure protection of investor&rsquo;s monies. This requirement is very vague and may be difficult if the local promoter does not have an ongoing relationship with the fund manager.&nbsp; The local promoters are also required to distribute dividend and redemption proceeds to unitholders if not otherwise undertaken by an entity in the UAE.&nbsp; Given that most foreign funds will have off-shore administrators tasked with this role, this will be difficult for the local promoter to undertake practically and is not an ongoing role that many would want or be set up to perform.<br /><br /><strong>Conclusion<br /><br /></strong>As stated above, in our view, the Regulation will have a substantial impact on both the local fund industry as well as the marketing and promotion of foreign funds in the UAE.<br /><br />Existing local funds will be required either to liquidate their assets and be wound within one year from the date the Regulation are gazetted or be amended to comply with the new requirements and obtain approval from the SCA under the Regulation.&nbsp; For local fund managers wishing to establish new funds there are a number of areas of uncertainty in relation to the form the local fund will be expected to take, the role and costs of the various service providers and the steps they will need to take to comply with the new Regulation.<br /><br />In relation to the marketing and promotion of foreign funds, foreign fund managers and foreign fund distributors will need to reassess their business strategy and determine whether they will appoint local promoters or whether they will attempt to market and promote their foreign funds to investors in the UAE using electronic means rather than face to face visits.<br /><br />We expect the new Regulation to be an area of major concern for fund managers and distributors looking to operate in the UAE.</p>'),
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(83065, 4531, 'content', '<p>The Court also dismissed the counterclaim filed by National Bank of Umm Al Quwain (the &ldquo;Bank&rdquo;) against GIH which sought compensation amounting to nearly AED 1.442 billion representing its damages as a result of GIH&rsquo;s breach of the memorandum of understanding (MOU) which provided that GIH would acquire a 20% stake in the Bank pursuant to an increase of the Bank&rsquo;s capital.<br /><br />The Bank had considered the initial payment of USD 250 million a fixed deposit and requested that GIH pay the balance of payment pursuant to the terms of the MOU.&nbsp; The Bank argued that the MOU and its attachments constitute a valid and binding contract between the parties, not the subscription agreement (which had not been signed).&nbsp; The subscription agreement is only part of the execution of the contract. The Bank argued that it had fulfilled its contractual obligations to date whereas GIH refused to sign the subscription agreement in breach of its obligations.<br /><br />The Court of Appeal held that pre-contractual negotiations, requests and communications (such as the MOU in this case) are formalities with no legal effect, being preparations in anticipation of a contract. It is therefore important that the negotiations produce an agreement containing the essential terms of the contract.&nbsp; Negotiations are only a presumption of intent, which, like all other presumptions raised in proceedings, would be applied at the discretion of the trial court.<br /><br /><strong>The proceedings<br /><br /></strong>The proceedings in question commenced before the Dubai Courts on 24.02.09 and progressed from the Court of First Instance to the Court of Appeal.&nbsp; The Court of Appeal returned the matter to the Court of First Instance again on 25.11.09. After a counterclaim was filed, the Court of First Instance ruled in favour of GIH on 19.07.10. However, GIH wanted interest to be calculated from the request for the refund of the deposit in accordance with Article 78 of the Federal Commercial Transactions Law, not from the date the action was filed in the courts, and an appeal was registered under number 746-2010. The Bank also appealed and the Court of Appeal ruled, on 25.04.11, in favour of GIH by awarding interest from the 3 December 2008 (the due date) while dismissing the Bank&rsquo;s appeal. The Bank then appealed to the Dubai Court of Cassation which returned the matter to the Court of Appeal.<br /><br />The Dubai Court of Appeal reached the same conclusion, ordering on 21.05.12 that the Bank refund the full amount of USD 250 million plus 9% interest from the due date of 03.12.08 until paid.<br /><br />The claim was pursued under Articles 371, 372 and 373 of the Commercial Transactions Law with emphasis on Articles 257 and 265 of the Civil Transactions Law. The provisions are highlighted below:<br /><br />According to Articles 257 and 365 (1) of the Civil Transactions Law, the basic principles in contracts is the consent of the contracting parties and the obligations they have agreed to as set out in the contract.&nbsp; If the wording of a contract is clear, the parties should not depart from it by way of interpretation to ascertain the intention of the parties.&nbsp; In this case, Clause 3 of the MOU explicitly states that the Bank and GIH shall conclude a subscription agreement once the Bank completed all formalities and legal matters preceding that agreement.&nbsp; Thereafter, GIH should have paid the subscription amount to the Bank.&nbsp; As a result, only when the subscription agreement is signed does GIH become bound to perform its obligation to pay the amount agreed upon.&nbsp; This is a precondition to the performance of the agreement.<br /><br /><strong>Article 371 of the Commercial Transactions Law:</strong><br /><br />1-&nbsp;A bank cash deposit is a contract by which one person delivers a sum of money, by any means of payment, to the bank which undertakes to return it upon request or according to the agreed conditions.</p>\r\n<p>2-&nbsp;The bank shall acquire ownership of the deposited money and it shall be entitled to dispose of the money thereof for the needs of its own activity with an obligation to return its like to the depositor. Return of the money shall be in the same currency as that deposited.<br /><br /><strong>Article 372 of the Commercial Transactions Law:</strong></p>\r\n<p>1-&nbsp;Save where otherwise agreed, the deposit must be returned upon demand and the depositor may at any time dispose of the balance or any part thereof.<br /><br />2-&nbsp;This right may be made conditional upon the serving of prior notice or the expiry of a specific time limit&nbsp;<br /><br /><strong>Article 373 of the Commercial Transactions Law:<br /></strong><br />Save where the deposit is intended for investment, a deposit shall be considered a debt and clearance may be effected between a deposit and a debt owed to the bank by the depositor. Any agreement to the contrary shall be null and void&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;<br /><br /><strong>Article 257 of the Civil Transactions Law:<br /><br /></strong>The basic principle in contracts is the consent of the contracting parties and that which they have obligated themselves to the contract&nbsp;<br /><br /><strong>Article 265 of the Civil Transactions Law:</strong></p>\r\n<p>1-&nbsp;If the wording of a contract is clear, it may not be departed from by way of interpretation to ascertain the intention of the parties<br /><br />2-&nbsp;If there is scope for interpretation of the contract, an enquiry shall be made into the mutual intentions of the parties without stopping at the literal meanings of the words, and guidance may be sought in so doing from the nature of the transaction, and the trust and confidence that should exist between the parties in accordance with the custom current in dealings<br /><br /><strong>Summary<br /><br /></strong>As codified in Articles 371, 372, 373 of the Commercial Transactions Code, a general rule in banking operations is that a bank deposit is a contract whereby one party delivers a sum of money, by any means of payment, to a bank which undertakes to return such sum upon demand or in accordance with pre-agreed conditions.&nbsp;The bank shall acquire ownership of the deposited money and shall be entitled to dispose of the money, with an obligation to return it to the depositor upon demand or the expiration of an agreed upon time limit.&nbsp; Such deposit shall be considered a debt owed by the bank.<br /><br />The main claim and the counterclaim in this case together exceed AED 2.5 billion which makes this claim one of the largest ever filed in the Dubai Courts.<br /><br />Al Tamimi &amp; Company has now filed an application for provisional attachment against the Bank&rsquo;s assets after the Court of First Instance decision in order to secure its client&rsquo;s entitlements as awarded in the judgment. The Dubai Court of First Instance confirmed the attachment pursuant to Articles 254 and 255 of the Civil Procedure Law.</p>'),
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(82386, 4494, 'content', '<p>The main principle according to the above Law is to implement the registration of all medicines with the Ministry of Health (MOH) in order to be legally circulated in the UAE market. Article 65 of the Federal Law No. 4 of 1983 concerning the Profession of Pharmacy and Pharmaceutical institutions, states the following:&nbsp;<br /><br />&ldquo;No imported medicine, pharmaceutical preparation or children&rsquo;s food should be put for circulation before being registered in the Ministry. Any medical company, which plans the marketing of its production in the country, should be registered in the Ministry&rdquo;.<br /><br />Based on the above article, it is clear that the general rule is not to allow the import of any medicine unless it is registered in the UAE.&nbsp; However, the question arises as to whether there are any exceptions and does the above rule apply in all situations? According to the Law there are no exceptions, as imported drugs are only permitted if they have been registered with the MOH.<br /><br />However, practices by pharmaceutical companies have proven that there are indeed exceptions and in some cases, they have been able to import unregistered drugs. The MOH has enabled a process to import unregistered medicines in exceptional circumstances, namely:</p>\r\n<ul>\r\n<li>Medicines to be used in emergency situations necessary for the continuation of patients&rsquo; lives;</li>\r\n<li>Certain drugs that are not available in the local market and cannot be dispensed in hospitals, such as heart cancer treatments‬;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; ‪</li>\r\n<li>Other pharmaceuticals which have not yet been regulated by the Ministry‬;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; ‪</li>\r\n<li>Medicines required by health institutions affiliated to government or semi government agencies &amp; entities, which have been imported&nbsp;&nbsp; based on purchase orders from the government or semi government hospitals which are affiliated to Abu Dhabi Health Authority or Dubai Health Authority or Ministry if Defence or Ministry of Interior;</li>\r\n<li>Registered medicines that are not available at the official deal or not available in the market;</li>\r\n<li>Drugs whereby registration has been cancelled at the request of the official agent due to lack of local market demand;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; ‪</li>\r\n<li>Unregistered narcotic or psychotropic drugs, used in specialised hospitals (private &amp; governmental).</li>\r\n</ul>\r\n<p>Accordingly, some hospitals which are affiliated with Abu Dhabi Health Authority or Dubai Health Authority are allowed to import unregistered drugs into the UAE subject to approval from the MOH. The application to import unregistered drugs in such circumstances must be detailed and specific in order to gain approval.&nbsp; As such, the quantity of the imported medicines shall be limited to the hospital capacity and the number of existing and/or expected patients and under no circumstances are they able to supply non-registered medication outside the hospital. The MOH has the full authority to refuse an application to import unregistered drugs, amend the quantities, or issue a conditional or unconditional acceptance to such request and quantities.<br /><br />The MOH have set a number of conditions with regards to the import of unregistered drugs:&nbsp;</p>\r\n<ul>\r\n<li>The application to import unregistered medicines shall be made by a registered agent in the UAE, or through a licensed medicine store or authorised distributor (this condition does not apply to the import of unregulated pharmaceutical products, such as chemicals used in laboratories and other medical materials used in nuclear medicine in government hospitals);</li>\r\n<li>The medicine must be registered in the country of origin or an approved country such as the USA or in Europe or the GCC. If the medicine is registered in one of the GCC countries or by the European Medicines Agency or US FDA, then the obtaining of the approval from the MOH to import such unregistered medicine in the UAE will be easier.</li>\r\n<li>The application must be made from the Medical Director of the Hospital/Head of the concerned department of the purchase order‬ and contain:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; ‪</li>\r\n<li>A Letter of Undertaking from the hospital to use the product and bear all the responsibility of such use‬;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; ‪</li>\r\n<li>A registration certificate of the manufacturing company of chemical products‬; and&nbsp;&nbsp;&nbsp;</li>\r\n<li>A valid analysis certificate of the product from the plant‬.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; ‪</li>\r\n</ul>\r\n<p>Any hospital/entity which imports unregistered medicine is liable for such import and use of that medicine.&nbsp; This legal obligation is referenced by the condition above requiring a Letter of Undertaking from the hospital to use the product and bear all responsibility of such use. The sanctions stated in Law No. 4 of 1983 concerning the Profession of Pharmacy and Pharmaceutical Institutions shall be applied in case of any violation of the terms.<br /><br />As with the general rule applying to all medicines, the law also prohibits importers of unregistered drugs from promoting any medicine in any way as per Article 92 of the Pharmacy Law which states: &ldquo;Publication of pamphlets or books and advertising through newspapers, radio and TV for any medicine, pharmaceutical preparation or children&rsquo;s food to be determined by the Minister shall not be permitted&rdquo;.&nbsp; Conversely, the MOH welcomes medicine and disease awareness programs subject to their approval regardless of whether the drug is registered.<br /><br />As with most rules, the above shows that whilst the law prohibits the importation of unregistered drugs, there are instances in which exceptions can be made.</p>'),
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(82351, 4491, 'content', '<p>In on-shore Dubai, the rules and procedures governing bankruptcy are currently set out in Book 5 of the Commercial Transaction Law, Federal Law no. 18 of 1993 (&ldquo;The Law&rdquo;). The Law covers the rules and procedures in relation to the bankruptcy of individuals as well as commercial entities. However, the current bankruptcy legislation has not been frequently tested in the Courts. Further, a trend has emerged in that the Courts have been reluctant to apply the bankruptcy law &ndash; the tendency has been to circumvent the bankruptcy law and proceed straight to liquidation.<br /><br /><strong>Lawyers and businesses have long been calling for changes to the bankruptcy rules to mitigate financial problems and attract foreign investment.</strong></p>\r\n<p>A draft bankruptcy law designed to support companies in financial difficulties is currently being reviewed before it reaches the final stage of enactment.. This legislation will overhaul how the law deals with businesses and individuals with debt burdens they cannot pay. It is expected that the new legislation will map out a process for the restructuring of debt owed to creditors. The new and less traditional features incorporated in this law will aid in promoting growth in the UAE\'s economy as it will allow for businesses facing financial hardship to develop frameworks for restructuring which allow them to repay their debt without decreasing their productivity.<br /><br />This article seeks to give a brief overview of the current law dealing with bankruptcy in the UAE and the salient provisions of the new draft law which is expected to be issued this year. This article also analyses a relevant judgment.<br /><br /><strong>The current legislation regulating bankruptcy<br /><br /></strong>As stated above, the current rules and procedures governing bankruptcy are set out in Book 5 of the Commercial Transaction Law (&ldquo;The Law&rdquo;).<br /><br />The Law lacks any definition with respect to the term bankruptcy; rather, it merely highlights the circumstances in which the trader will be considered bankrupt. According to Article 4 of the law a trader is an individual or company carrying out commercial activities.<br /><br />However, by petitioning the Court to bankrupt a debtor, a creditor avails himself of a set of proceedings and procedures that may secure his debt. The creditor may also benefit from any scheme of settlement with the debtor which will enable him to recover at least some of what he is owed.<br /><br />Importantly, according to Article 645 of the Law a trader is not regarded as bankrupt unless he is declared bankrupt by the competent civil Court.&nbsp; According to Article 653, the competent Court is considered to be the Court where the trader&rsquo;s commercial office is located, however, if there is more than one office then it shall be for the Court where the principal office of the trader is located. If the trader stops his commercial activity the competent Court shall be considered to be in the country of residence and in case he has no residence in the country the competent Court shall be the jurisdiction in which he has stopped paying his debts.<br /><br /><strong>Article 645 of the Law stipulates that:</strong></p>\r\n<ul>\r\n<li>Any trader who is not able to pay his commercial debts on the due dates by reason of his financial instability, may be declared bankrupt;</li>\r\n<li>Any trader who uses illegal means for paying his debts shall be regarded as unable to pay those debts;</li>\r\n<li>A trader shall be declared bankrupt only after adjudication by the competent Court.</li>\r\n</ul>\r\n<p>Articles 647, 649 and 650 of the law specify the persons and government entities entitled to apply for a declaration of bankruptcy. These include the trader, the trader&rsquo;s creditor(s) and the Court on its own initiative. The public prosecution may also make a request for a declaration of bankruptcy.&nbsp;&nbsp;<br /><br />Article 649 of the Law grants the trader the opportunity to apply to the competent Court for a declaration of bankruptcy if he is not able to pay his debts; however, this is not compulsory for the trader unless 30 days lapse from the date when he ceased payment of his debts. Importantly, in these circumstances it becomes obligatory for him to apply for a declaration of bankruptcy; failing which he will be considered as committing an act of bankruptcy by default. This is a criminal offence under the UAE Penal Code, Law No.3 of 1987. Article 649 also sets out the procedure to be followed by a trader when applying for such declaration for being unable to pay his debts and the supportive documents that should be presented accordingly.<br /><br />Article 650 of the Law gives the creditor (s) (whether for a civil or commercial debt) or the trader the opportunity to apply for such declaration on condition that:</p>\r\n<ul>\r\n<li>they submit the evidence that satisfy the Court that debtor has ceased paying his commercial debts as they fall due;</li>\r\n<li>they satisfy the Court that the debtor has no residence in the UAE, he has closed his place of business and started the procedure for winding up, or that he has absconded,&nbsp; whereas for the debt not yet due, or he is carrying acts that adversely affect its creditor (s). In this case the creditor(s) will have to prove that the debtor ceased payment of a due commercial debt.</li>\r\n</ul>\r\n<p>After the bankruptcy application has been submitted to the Court, according to Article 652 of the Law the Court must take all the necessary measures and steps to preserve, protect the debtor&rsquo;s assets and manage them.<br /><br />After satisfying all the necessary procedures and resolving all disputes and applications concerning the case, the Court will then issue a judgment declaring the debtor bankrupt.<br /><br />After the Court delivers its judgment declaring bankruptcy, there are certain procedures that must be followed subsequent to that judgment, such as:</p>\r\n<ul>\r\n<li>sending a copy of the judgment to the public prosecutor, the Ministry of Economy &amp; Commerce, the trustee/receiver, the Central Bank and the competent commercial registrar (Article 655 (2));</li>\r\n<li>the Court in its ruling usually specifies an approximate date for the trader to stop payment of his debts (art 655 (1)); however, if the Court failed to specify such date, in this case the date of issuance of the judgment should be considered as an approximate date for the trader to stop the payment of his debt (Article 660 (1)). It should also be noted that Article 659 empowers the public prosecution, debtor, the creditor (s), the trustee and interested third party to amend the temporary date;</li>\r\n<li>displaying the judgment on the notice board at the Court for a period of 30 days, on the day following its issue. The judgment shall be sent to each Court having jurisdiction over the debtor&rsquo;s place of business or branch or agency or office of the debtor, in order to be displayed on the notice board at such Court for a period of thirty days (art 660 (2));</li>\r\n<li>once the bankruptcy judgment is issued, the Court shall order the closure of all the trader&rsquo;s places of business and shall appoint a trustee;</li>\r\n<li>publishing the judgment in a local newspaper by the trustee (art 661);</li>\r\n</ul>\r\n<p>According to Article 662 of the Law any interested third party may file an objection against the judgment before the Court that has issued it within ten days from the date of the publication of the judgment in the newspapers. If the Court reject&rsquo;s the opposition, the Court decision shall be appealable to the Court of Appeal.<br /><br />Articles 668-681 of the Law deals with the person (the trustee) who administers the bankruptcy as well as their powers and liabilities. Such persons should have good standing and reputation and should not be one of the bankrupt&rsquo;s creditors or a spouse or a close relative to the fourth degree, or an ex-partner, accountant, agent or employee of the bankrupt).<br /><br /><strong>Moreover, Articles 682-724 of the Law deal with the effect of bankruptcy on:</strong></p>\r\n<ul>\r\n<li>The debtor (Articles 682-702);</li>\r\n<li>On ordinary creditors (703-710) On creditors who have debts secured by moveable/immovable properties (711-720) and</li>\r\n<li>On legal claims (721-724).</li>\r\n</ul>\r\n<p>In this section the legislator establishes a rule that individual proceedings shall be suspended in the case of ordinary creditors or creditors holding liens, including individual enforcement proceedings against the property of the bankrupt or their completion if they were commenced before the declaration of bankruptcy, with certain exceptions &ndash; where proceedings have been permitted by the judge such as in the case of a sale of property on a fixed date. Pursuant to the principle enshrined under this Section, payment due dates are deemed to be cancelled upon the declaration of bankruptcy<br /><br />Furthermore, Part 5 of this section sets out provisions dealing with contracts that the bankrupt entered/concluded prior to being declared bankrupt; and reconciles the interests of creditors and the Bankrupt on the one hand and the other parties to the contracts on the other hand by providing that a bankruptcy order does not normally lead to the termination of binding contracts unless it is based on personal considerations. The other party to the contract reserves the right to terminate it if the trustee in the bankruptcy proceedings fails to perform the contract or continues with its performance and any action taken by the trustee, in respect of the contract, is subject to the judge&rsquo;s approval. A contracting party always has the right to participate in the bankruptcy as an ordinary creditor to recover for termination while retaining the lien prescribed by law. <br />&nbsp;<br />Administration of bankruptcy cases (such as administration of assets, realization of debts and closure of bankruptcy for lack of funds) is dealt with in articles 736-760 of the Law.<br /><br />However, one of the most important elements of bankruptcy proceedings is the composition or settlement arrangements made between the debtor and his creditors. The importance of such arrangements is that it may allow a debtor to avoid the consequence of an adjudication of his bankruptcy. A composition scheme is a preventive measure which will avoid the debtor facing bankruptcy proceedings and is usually arranged by the debtor before any adjudicating proceedings (&ldquo;Composition Scheme&rdquo;). There is also another scheme of composition in which the debtor can participate, which is a simple adjudication composition or settlement that is conducted after adjudicating proceedings (&ldquo;Judicial Composition&rdquo;).<br /><br />However, such composition whether Composition Scheme or the Judicial Composition can affect either the:</p>\r\n<ul>\r\n<li>debtor (such as avoidance of the threat of bankruptcy proceedings; the maintenance of full power, control and authority to manage his own business; and the payment of his debts according to a deferred payment schedule); or</li>\r\n<li>creditors (the terms of a Composition shall be binding on all ordinary &ldquo;unsecured&rdquo; creditors for all debts accruing before the Judicial Composition or Composition Scheme, irrespective of whether or not they have participated or voted for the adoption of the Composition. However, the Composition shall not apply to secured creditors or for ordinary debts accruing after the Composition application is submitted to the Court.)</li>\r\n</ul>\r\n<p>According to the provision of the Law a Composition shall be terminated once the debtor has honored all of his obligations. The Composition shall also terminate if an application is made and accepted for its nullification. The Composition may be annulled for any fraud undertaken by the debtor (such as concealment of property or falsification of debts or accounts). The Composition may also be repudiated by any creditor if the debtor fails to honor his obligations under the Composition. The effect on the debtor of honoring the conditions of the Composition is to allow him to resume all his rights and duties as a normal trader whereas the effect of any nullification or repudiation of the Composition restored the parties to their original positions before the presentation of the Composition. The debtor then faces the threat of bankruptcy and its severe consequences.<br /><br /><strong>The Draft Bankruptcy law<br /><br /></strong>The general aim of the new draft law is to create a more modern, debtor-friendly bankruptcy regime, with particular emphasis on the rescue of a debtor&rsquo;s existing business or the restructuring of a debtor&rsquo;s liabilities where the debtor gets into financial difficulties, rather than the existing formal bankruptcy procedures. Some of the bankruptcy procedures described herein draws heavily on existing French bankruptcy laws.<br /><br />The provisions of the new draft law apply more widely than the current rules and procedures governing bankruptcy in Book 5 of Federal Law No. 18 of 1993. However, the new draft law shall not govern Government authorities and Entities incorporated and licensed to operate in a financial free zone such as the DIFC. It will, however, apply to any company incorporated pursuant to the Commercial Companies Law as well as an individual (any natural or juridical person practicing any activity for profit purposes).<br /><br />New streamlined rescue procedures for traders and entities carrying on business for profit comprising a &lsquo;financial re-organisation&rsquo; procedure and a &lsquo;protective composition&rsquo; procedure feature in the draft law.<br /><br />The draft law incorporates provisions for a streamlined bankruptcy process for &lsquo;small&rsquo; bankruptcies; and specific provisions in relation to non-trading individuals where the bankruptcy regime is extended to include a rescue procedure. Furthermore, the concept of set-offs in bankruptcy matters was simplified in the draft law.<br /><br />Further, the draft law empowers the UAE Council of Ministers to set up a Commission; charged with the administration of financial re-organisation procedures and the preparation of an approved list of bankruptcy experts.&nbsp; The UAE Council will also maintain two registers, the first one for ineligible/incompetent persons that has been formerly judged as incompetent and the second for Court judgments and orders imposing any limits on bankrupts whether permanent or temporal.<br /><br />The provisions of the procedures of financial reregulation incorporated in the draft law aim to facilitate a consensual agreement signed outside the Court between the debtor and his creditors with the help of an assistant assigned by the committee for this purpose.<br /><br />Finally, the new draft law sets out provisions related to preventative composition procedures, bankruptcy procedures and preferential treatment of creditors.</p>\r\n<p><strong>A Case study - </strong>how the provisions in the current law have been interpreted by the Dubai Courts.<br /><br /><strong>The Facts</strong></p>\r\n<p>A commercial action (the &ldquo;Commercial Action&rdquo;) was filed on 11 April 2006 before Dubai Court of First Instance by a local company (&ldquo;the Claimant&rdquo;) against another local company (&ldquo;the Defendant&rdquo;). The Claimant requested the Court to:</p>\r\n<ul>\r\n<li>Declare the Defendant bankrupt and to confirm the date of 13.5.2004 as the date the Defendant ceased payments;</li>\r\n<li>to seal the Defendant&rsquo;s premises;</li>\r\n<li>to appoint a receiver/trustee to oversee the bankruptcy proceedings;</li>\r\n<li>to take appropriate measures to safeguard and manage Defendant&rsquo;s assets and to collect the fees, costs and advocate&rsquo;s fees out of the proceeds from the realisation of assets; and finally</li>\r\n<li>Render its judgment with immediate enforcement without the requirement of a bond.</li>\r\n</ul>\r\n<p>The Claimant submitted that it owed the Defendant an amount of AED 1,179,654 (&ldquo;the Claimed amount&rdquo;) in addition to any interest accruing from 16 April 2005 pursuant to the final decision rendered earlier in the Commercial Action that bore an executory stamp since 2004 (&ldquo;the First Court Action&rdquo;).<br /><br />The Claimant further submitted that the Defendant was a trading company which had failed to pay the amount of the judgment despite having being ordered to make such payment on 27 April 2004 by virtue of the First Court Action. However, the Defendant was not in a position to pay as he was going through financial distress.&nbsp; In addition, there were severe credit issues that put other creditor&rsquo;s claims at risk because of the various Court claims and attachments brought against the Defendant by the Claimant and other creditors.<br /><br />In light of these facts the Claimant contended that the conditions to declare the Defendant bankrupt were met.<br /><br />In accordance with Article 61 of the Evidence Law, the Public Prosecution was notified of the case in order to provide an opinion. The Public Prosecution advised the Court to appoint an accountant expert in the case in order to:</p>\r\n<ul>\r\n<li>investigate the financial status of the Defendant;</li>\r\n<li>To reveal whether it ceased payment of its debts, and if so the reason behind this;</li>\r\n<li>To reveal whether the Defendant was still carrying out commercial activities; and</li>\r\n<li>to assess its current financial status and its financial status for the fiscal year ending in 31.12.2005.</li>\r\n</ul>\r\n<p><br /><strong>The Court of First Instance</strong></p>\r\n<p>In light of the Public Prosecution&rsquo;s advice, the Court of First Instance issued its preliminary judgment on 30 January 2007 and decided to appoint an accounting expert to investigate the financial status of the Defendant and to address the question of whether the Defendant had ceased payment of its debts. The expert was also to look at the cause of the ceased payments and to assess its current financial status and during the fiscal year ending in 31 December 2005 and to ascertain whether the Defendant was still carrying out its commercial activities.<br /><br />The Court appointed expert submitted his report and concluded that:</p>\r\n<ul>\r\n<li>the Defendant Company was not carrying on business because its trade license had not been renewed since 14 May 2004. The expert also found that a closure report for the Company was made on 06 November 2006 which confirmed that the company had remained closed for several months;</li>\r\n<li>The Defendant had no outstanding amounts due except for one payment owing to one company located in the Emirates of Ajman.&nbsp; However, there were claims pending in Court and Defendant had not ceased to pay its debts as some were paid in Court while others were released or waived;</li>\r\n<li>The current financial status of the Defendant clearly indicated that it had stopped carrying out commercial activity since 12 August 2006;</li>\r\n<li>That although the Company Director was incarcerated, he had been acquitted and no penalty was imposed; and</li>\r\n<li>That the Company has ceased business operations and has not had an active premises since 06 November 2006.</li>\r\n</ul>\r\n<p>The Court of First Instance interpreted the facts of the case in light of Article 645 of the Commercial Transactions Law.&nbsp; The Court decided that the company had been shut down, had not been carrying out any business transactions for a few years, had no premises since 6 November 2006. It also found that the Defendant had not renewed its commercial license since 14 May 2004. Although its director and partner were still in jail the Court found that the&nbsp; Defendant had not ceased payment of its due debt as some were paid in Court while others were released or waived. It was also found that the last commercial transaction in cash took place on the 12 September 2006.<br /><br />The Court determined that it is an established principle that to declare the bankruptcy of a trader the latter should have stopped making payments as scheduled. The expert report clearly established that the Defendant did not cease payment of its due debts, meaning that the most important condition to declare the Defendant bankrupt was not met. Accordingly the Claimant&rsquo;s action was found to be devoid of any legal basis and was dismissed. The Court of First Instance directed the Claimant to pay the costs and AED 500 in advocate&rsquo;s fees.<br /><br />Consequently, the Claimant appealed the judgment to the Court of Appeal on 05.12.07.<br /><br /><strong>The Court Of Appeal<br /><br /></strong>In its explanatory appeal memorandum the Claimant argued that the Court of First Instance erred in its decision. The basis for the Claimant&rsquo;s appeal was that:</p>\r\n<ul>\r\n<li>The lower Court incorrectly applied the law;</li>\r\n<li>The lower Court ignored the documented facts, and failed to articulate its reasoning adequately by dismissing the case despite the conditions for declaring the Respondent bankrupt being met;</li>\r\n<li>The expert&rsquo;s report, read with the Claimant&rsquo;s evidence, was conclusive evidence that the Defendant was in fact in default of its debts due to severe financial distress which was undermines its credit rating. The Claimant argued that this placed the rights of its creditors (which included the Claimant) at risk. The Claimant made specific reference to the Defendant having failed to pay the debts it owed to the Claimant, which currently stood at over AED 1.2 million.</li>\r\n</ul>\r\n<p>On 10 February 2008 the Court of Appeal dismissed the appeal and upheld the Court of First Instance&rsquo;s decision. The Court of Appeal relied upon the expert report and the Court of First Instance&rsquo;s interpretation of Article 645 of the Commercial Transactions Law. Again, the Claimant was directed to pay legal fees and AED 1,000 in advocate&rsquo;s fees. Subsequently, the Claimant filed an appeal before the Court of Cassation.<br /><br /><strong>The Court of Cassation<br /><br /></strong>The Court of Cassation interpreted Articles 645 (1), 647 (1), 650 (1), 801 and 802 (1) of the Commercial Transactions Law to mean that the creditor of an LLC company enjoys the right to request the Court to declare the concerned LLC bankrupt in cases were the LLC has ceased paying its commercial due debt as a result of financial distress and severe credit issues.<br /><br />The Court enounced that it was a settled principle that the non- payment of the debtor of his commercial due debts without any valid reason is a presumption that can be used against him but that it did not equate to an irrevocable conclusion that&nbsp; the debtor had permanently stopped/refrained from payment of his debt(s) because several explanatory situations could be applicable:</p>\r\n<ul>\r\n<li>An excusable reason/un-expectable situation that forced him to stop payment despite his ability to continue payment of his debt; or</li>\r\n<li>The debt amount is contested.</li>\r\n</ul>\r\n<p>The Court decided that the fact that the debtor ceased payment is a legal point for adjudication by Court of Cassation, and that such point is an essential condition that should be satisfied in order to declare the bankruptcy of any debtor.<br /><br />Furthermore, the Court decided that in order to declare the trader bankrupt it is not required that the trader should cease payment of several commercial due debts; it is sufficient to declare the bankruptcy of a trader if he ceased payment of only one commercial due debt.<br /><br />Moreover, the Court of Cassation decided that the appealed judgment had lacked reasoning as it failed to reply to an essential defence raised by the Claimant who provided evidence in support of it. According to the Court of Cassation such defence would be summarized as follows:</p>\r\n<ul>\r\n<li>The Defendant remains, without justification, in default of payment of its commercial debt of AED 921,797 plus interest pursuant to the First Court Action rendered against it earlier;</li>\r\n<li>a) The Defendant is in financial distress in view of the various attachments granted by a summary judge over its assets and from various criminal cases brought against its Director for issuing cheques without funds and; b) from the fact that its premises remained closed in addition to c) the fact that the Defendant refrained from resuming any commercial activities.&nbsp;</li>\r\n</ul>\r\n<p>The Court of Cassation held that the Court of First Instance had overlooked these facts, which the Court of Cassation determined led to a finding that the Defendant Company had ceased its payments and put the Claimant&rsquo;s claims at risk.<br /><br />The Court of Cassation rejected the lower&rsquo;s Court decision that concluded that the existence of its director in jail would prevent the Defendant from running the business.<br /><br />In light of this the Court of Cassation overturned the lower&rsquo;s Court decision and decided to refer the case back to the Court of Appeal for a new decision under a different panel of judges. This time, the Defendant was directed to pay the costs and AED 1,000 in advocate&rsquo;s fees.<br /><br /><strong>The Court of Appeal (referral Court/remand)</strong></p>\r\n<p>The Court of Appeal decided to reopen the proceedings for further submissions and to question the Court appointed expert on his report.<br /><br />At a subsequent hearing the Court appointed expert attended and answered the Court&rsquo;s questioning as follows:</p>\r\n<ul>\r\n<li>the Defendant is going through a difficult financial situation;</li>\r\n<li>its license had expired on the date indicated in the report;</li>\r\n<li>the Defendant is not carrying out any business commercial transaction;</li>\r\n<li>The Defendant did not cease payment (is not in default) as it had made payments for some of its debt obligations;</li>\r\n</ul>\r\n<p>The expert confirmed at the hearing that the Defendant had difficulties in paying the balance of the remaining accrued debts and had sought an extension of time to file an additional report based on the Court&rsquo;s enquiries.<br /><br />The expert submitted his additional report where he concluded that the Defendant had already settled some of the Court claims in connection with 53 criminal complaints but that it had failed to settle the remaining claims. Furthermore, the expert concluded that the Defendant had failed to pay the amount to the Claimant as determined by the First Court Action. The expert concluded that the reason the Defendant had ceased making payment was because of its weak administrative capacity. This was further linked in the expert&rsquo;s view to the expiry of the trade license and the closure of the Defendant&rsquo;s premises. Furthermore, the expert added in his report that the Defendant lacked sufficient revenues to meet its contingent liabilities i.e. Court claims, or to meet periodical and administrative liabilities and general expenses.<br /><br />Most importantly, the expert concluded that the Defendant was not considered creditworthy in the market and that its current financial status clearly reflected the existence of&nbsp; claims against it in court. The Defendant was also subject to bounced cheque claims as well as attachments over its assets which had been attached and sold in favor of the landlord on 06 November 2006. The expert also found that that the company had no vehicles registered in its name or any funds in its Dubai Islamic Bank account. Finally, the expert concluded his report by stating that &ldquo;the Defendant had not been carrying out any business transactions in the past year ending in 31 December 2005 but had some commercial transaction in the year 2006&rdquo;.<br /><br />In light of this report the Claimant&rsquo;s lawyer filed with the Court a docket list comprising an original certificate &ldquo;to whom it may concern&rdquo; from the Dubai Courts concerning an Execution Action for Dubai Rents filed by the landlord against Respondent whereby its assets were sold through the Court.<br /><br />In response, the Defendant&rsquo;s lawyer filed a memorandum commenting on the expert report and requested the Court to return the case back to the same expert and instructing him to meet with the Defendant&rsquo;s Director in jail to determine its liabilities to third parties.<br /><br />In support of his commentary memo the Defendant&rsquo;s lawyer filed a docket comprising:</p>\r\n<ul>\r\n<li>Waivers on the part of Complainants in criminal cases in favor of Defendant&rsquo;s Director.</li>\r\n<li>Particulars of a case attesting acquittal of the Defendant&rsquo;s Director in many cases.</li>\r\n</ul>\r\n<p>The Court of Appeal then decided to reopen the proceedings for further submissions and in order to request the Public Prosecution to advise on the subject matter of the case.<br /><br />The Public Prosecution advised that the appeal be accepted in form and on the merits.&nbsp; The Public Prosecution also advised that the contested decision be cancelled and that the Defendant be declared bankrupt and the legal procedures to be initiated accordingly.<br /><br />In view of the above facts, expert reports and the involvement of the Public Prosecution the Appeal Court decided that the Defendant should be declared bankrupt despite the fact its Director had settled some of its debts and the fact that certain complainants waived their claims.<br /><br />In light of the above, the Court of Appeal overturned the appealed judgment and declared the Defendant bankrupt and fixed the date of 14 May 2004 as the approximate date whereupon the Defendant had ceased payments. The Court of Appeal further decided to seal the Defendant&rsquo;s premises located in Dubai and to appoint a bankruptcy judge and a receiver to oversee the bankruptcy proceedings including the taking of appropriate measures to safeguard and manage the Defendant&rsquo;s assets in accordance with the law. The Court directed that the receiver&rsquo;s fees be paid out of the proceeds from the realization of assets.&nbsp;</p>'),
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(82332, 4490, 'content', '<p>This phrase fails to demystify the statement because a conventional view of life is not contrary to that of Islam.&nbsp; Rather in some instances a conventional model may be used to serve or further Islamic principles.&nbsp; Examples include the conversion of banks to Sharia compliant banking institutions, and the use of conventional banking services and products to provide Islamic wealth management. This article focuses on methods that a conventional business may apply in order to operate on an Islamic basis.&nbsp; However, it is important to note that, from a UAE legal perspective, there are no specific laws or regulations that govern corporate Shariah practices.&nbsp;&nbsp; Although there may be national laws that apply in some sectors, this article only provides general guidelines.&nbsp; <br /><br />Although a conventional business and an Islamic business may be fairly similar, there will be a few key differences demanded by Sharia law. These include <br />&bull;&nbsp;&nbsp;&nbsp; the structure of business arrangements (loan agreements, business-to-business contracts, etc.), <br />&bull;&nbsp;&nbsp;&nbsp; the structure of investments and debts,<br />&bull;&nbsp;&nbsp;&nbsp; business sectors in which the company is involved which may be banned under Sharia (alcohol, gambling, etc.), <br />&bull;&nbsp;&nbsp;&nbsp; any licensing requirements, <br />&bull;&nbsp;&nbsp;&nbsp; the appointment of a Sharia B/board or a consultant to assist with compliance, and <br />&bull;&nbsp;&nbsp;&nbsp; Sharia-specific internal controls or constitutional documents. <br /><br />Structuring business arrangements<br />First, the company should review and amend its business arrangements to ensure compliance with Sharia principles. Its liabilities must also comply with Sharia standards, which prohibit earning or paying interest.&nbsp; All the facility arrangements the company has undertaken with any financial institution must be Sharia compliant. For instance, conventional property financing will have a prevailing interest rate, a term, and non-payment penalties, while the company retains ownership of the property.&nbsp; Islamic financing for that property will commonly require an ijara model under which the property is owned by the bank and leased to the company. Business loans and arrangements also need to be assessed for Sharia compliance, and any conventional facilities converted. This review will not only include outstanding facility arrangements, third-party guarantees, and corporate credit cards, but business-to-business arrangements that impose penalties, fines or interest.&nbsp; <br /><br />Compliant investments and debts<br />A company needs to ensure that its investments are in accordance with Sharia standards, which may be a fundamental change to its risk management. Many company assets (such as savings accounts, stocks, bonds, mutual funds, stock in trade, etc.) may have attributes inconsistent with Sharia principles.&nbsp; Investments and debts are not limited to the financial sector, but extend throughout the value chain. If a company owns grocery stores which sell alcohol or pork products, these products must be removed from the shelves and the entire stock discarded.&nbsp; Any profits or funds related to these products may not be accrued, and the funds may not be mingled with the company&rsquo;s receivables.<br /><br />Reviewing business sectors<br />Taking a holistic approach, a company must ensure Sharia compliance within the various business sectors in which it operates or participates.&nbsp; Sharia prohibits engaging in any business that involves pork, alcohol, gambling, pornography, among other activities.&nbsp; A practical example is a company or a subsidiary which owns a restaurant..&nbsp; The restaurant may not serve, own, or distribute any alcohol or pork products. In the event that the company sells the restaurant&rsquo;s alcohol stock, then the company may not be considered Sharia compliant until the products are discarded. Any resulting funds may not be utilized as working capital or create a benefit to the company.&nbsp; This becomes more intricate and complex as companies engage in multiple activities and projects that have underlying profit centers (for example, airlines sell alcoholic beverages). This may also be a concern for entities with shareholdings in other companies that may engage in prohibited activities.&nbsp; Even if the shareholding is minimal, the business must be Sharia compliant. This extends to a company&rsquo;s marketing practices. As an example, raffles and other marketing plans may be considered gambling under Sharia law. <br /><br />Licensing under Sharia<br />The company must be compliant with all licensing and regulatory requirements within the jurisdictions in which it operates.&nbsp; In the United Arab Emirates/UAE/Emirates, the UAE Commercial Companies Law, Federal Law No. 8 of 1984 (Companies Law), does not specifically regulate Sharia compliance. Rather, the same Companies Law applies to both conventional and Sharia-compliant corporations. This is contrary to the regulation of financial institutions licensed by the UAE Central Bank which has specific requirements for Islamic institutions. The company needs to incorporate any additional or varied regulatory requirements within the new Sharia-compliant model and provide the necessary training for employees to ensure proper and adequate compliance. However, beyond Islamic financial institutions, the option to adopt Sharia compliance will often be an individual choice. <br /><br />A Sharia Board or consultant<br />A company should consider the appointment of a Sharia board or a Sharia consultant to aid in the transition and review of the company and its activities. Although not compulsory, it is in the company&rsquo;s interests since a Sharia board will identify even minor elements of its internal operations or asset management that require modification.&nbsp; Currently there are no global or regional standards governing Sharia-compliant companies. <br /><br />Codes for compliance<br />The company may elect to indoctrinate the Sharia policies in its corporate structure. This may include the development of internal policies that are drafted according to Sharia standards, or imposing guidelines and restrictions within its Memorandum and Articles of Association.&nbsp; For instance, the Memorandum and Articles of Association may restrict&nbsp; borrowing practices to ensure that all lending (including shareholder loans, guarantees, acquisition of subsidiaries, etc.) will be undertaken in accordance with Sharia principles and standards. <br /><br />Succession and wealth planning<br />Finally, a business owner has Islamic wealth management options, even if the business is in a jurisdiction that does not support the division of inheritance in accordance with Sharia law. There are various mechanisms that may be used to divest wealth in accordance with Sharia law, as described in Bank Sarasin&rsquo;s previous reports, Islamic Financial Planning and Estate and Succession Planning, respectively.&nbsp; There are options pertaining exclusively to a corporate structure that provide the greatest flexibility for the distribution of wealth while at the same time preserving the daily operations of the company. <br /><br />Shares in the business may be distributed in accordance to any desired percentage, including in accordance with Sharia principles. The business owner may maintain control over the new corporate entity through various mechanisms including statutory reserves, controlled voting, sale of stock restrictions, voting restrictions, and guidelines for the management of the company in the Articles of Association. Using a corporate structure, the business owner has the flexibility to retain control over the assets during his lifetime.&nbsp; Further, the corporate structure will continue to exist after the business owner dies, ensuring that his beneficiaries retains their respective inheritance.&nbsp; <br /><br />The conversion of a conventional entity to a Sharia compliant entity requires great attention to detail.&nbsp; Business owners are advised to initiate the process with a Sharia consultant who is not only familiar with the business model, but with the relevant jurisdictions&rsquo; laws and regulations. A Sharia consultant will assist in outlining specific procedures for the conversion and oversee the process, reducing risk. <br /><br /></p>');
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(82309, 4489, 'content', '<p><em><strong>According to the survey:</strong></em></p>\r\n<ul>\r\n<li>22% of the entities surveyed were adopting open source software consistently in all departments; and</li>\r\n<li>46% of the entities surveyed used open source software in specific departments and projects.&nbsp;</li>\r\n</ul>\r\n<p>Gartner predicted that by the middle of 2012, 30% of the overall software portfolios of organizations will be accounted for by open source software.<br /><br />According to the survey, open source software is clearly becoming an increasingly large contributor to software portfolios of organizations, a conclusion supported by the numerous public enterprise entities throughout the world formulating procurement strategies that require the consideration of open source software as an alternative to vendor specific software solutions.<br /><br /><strong>DEFINING OPEN SOURCE SOFTWARE<br /></strong><br />The meaning of the term &ldquo;open source&rdquo; remains in a stage of constant change.&nbsp; The Open Source Initiative (OSI), a non-profit organization for the open source community, describes &ldquo;open source&rdquo; as:<br /><br />&ldquo;&hellip; a development method for software that harnesses the power of distributed peer review and transparency of process. The promise of open source is better quality, higher reliability, more flexibility, lower cost, and an end to predatory vendor lock-in.&rdquo;<br /><br />OSI provides a useful definition of open source software by setting out the licensing conditions under which software must be released to be considered &ldquo;open source&rdquo;.&nbsp; This definition includes the following elements:&nbsp;</p>\r\n<ul>\r\n<li>free redistribution of software;</li>\r\n<li>allowing distribution in source code and compiled form;</li>\r\n<li>allowing modifications and derived works to be made/created;</li>\r\n<li>permitting distribution of software built from modified source code;</li>\r\n<li>no discrimination against persons, groups or fields of endeavor; and</li>\r\n<li>no dependence or restriction on the program being part of a particular software distribution.&nbsp;</li>\r\n</ul>\r\n<p><strong>BENEFITS OF OPEN SOURCE SOFTWARE</strong></p>\r\n<p>According to a Computerworld survey of 143 information technology professionals (reported in an article on 10 May 2010 by Brandel, M. entitled &ldquo;Open-source software&rsquo;s hidden snags&rdquo;), 80% of those surveyed cited cost saving as the number one benefit of open source software.&nbsp; The appeal of open source software is, however, not limited to the apparent cost savings that may be associated with it, but also includes a higher level of flexibility, faster solution delivery times and swifter responses to required solution updates.&nbsp; A guide published by the Australian Government during March 2011 entitled &ldquo;A Guide to Open Source Software for Australian Government Agencies&rdquo; cites the following as benefits of using open source software:</p>\r\n<ul>\r\n<li>There is usually no upfront payment;</li>\r\n<li>It encourages a competitive market for support services;</li>\r\n<li>There are fewer restrictions on the users of the software;</li>\r\n<li>It may reduce vendor lock-in;</li>\r\n<li>It allows users to view and modify source-code;</li>\r\n<li>It allows users to take advantage of improved functionality of new releases more rapidly; and</li>\r\n<li>It may increase interoperability by inter alia reducing the cost of integration.</li>\r\n</ul>\r\n<p><strong>RISKS ASSOCIATED WITH OPEN SOURCE<br /></strong><br /><em><strong>Intellectual Property Ownership</strong></em><br /><br />The term &ldquo;copyleft&rdquo; was created as a play on the term &ldquo;copyright&rdquo; and captures the &ldquo;open&rdquo; philosophy of the open source community as it relates to the ownership and &ldquo;restriction&rdquo; of the use of copyrighted works.&nbsp; The term &ldquo;copyleft&rdquo; (which is also sometimes referred to as &ldquo;reciprocity&rdquo;) reflects the use of copyrights to ensure that works derived from open source licensed software code are made available to the open source community.&nbsp;<br /><br />Copyleft is included to various degrees in different forms of open source license agreements and it is accordingly of particular importance to carefully consider the nature of the open source license in terms of which open source software is procured.&nbsp; There are a number of different license models including the General Public License, the Lesser General Public License, BSD-Style licenses and Permissive Licenses.&nbsp; Depending on the terms of the relevant license, how a licensee is entitled to act with software code derived from the open source software will be dependent on the nature of the relevant license.&nbsp;<br /><br />In terms of, for example, a General Public License, licensees are required to submit the code of the software they developed as derivative works from the original licensed open source software back to the open source community.&nbsp; Clearly, this approach is in line with the &ldquo;open&rdquo; philosophy of the open source community and brings with it the benefits of having a large General Public License open source community.&nbsp; The implication when combining open source software with other software however, may include an obligation on the licensee to reveal the code for the whole &ldquo;combined software work&rdquo; to the open source community &ndash; meaning possibly giving access to competitors to proprietary source code.&nbsp;<br /><br />Any proposed use of open source software should accordingly take into consideration the terms of the licenses under which the open source software will be used.&nbsp; Those terms and the obligations on the licensee must be aligned with the general commercial goals of the licensee and the specific nature of the solution the open source software is considered for.<br /><br /><strong><em>Warranties and Indemnities</em><br /></strong><br />Software code is protected through the intellectual property rights associated with the code.&nbsp; In commercial software license relationships, it is the right to authorize third parties to use those intellectual property rights that underpin the commercial relationship.&nbsp; Where a party is incurring a significant expense when acquiring the right to use software, it expects the owner of that software to provide it with (i) a warranty that the use of that software will not infringe the intellectual property rights of a third party and/or (ii) an indemnity in the event that an action is brought against the licensee for the infringement of third party rights.<br /><br />In the case of open source software, the relevant license terms are structured in a way that affords little protection to licensees.&nbsp; Typical open source software licenses do not include intellectual property warranties and indemnities in favour of the licensees.&nbsp; Considering that open source software projects comprise a development process that creates numerous opportunities for contributors to introduce infringing code, it is understandable why such provisions are not included.&nbsp; However, at the same time it compounds the risk of a possible claim of intellectual property right infringement.<br /><br />When considering the absence of such warranties and indemnities from a practical point of view, it can be concluded that it will in any event be challenging to recover anything against an open source software licensor in a case of intellectual property right infringement, as many of the open source software projects appear to be owned by entities with little financial/capital substance.<br /><br /><strong><em>Fitness for Purpose and Quality</em><br /></strong><br />Another legal risk to consider is the absence of representations of fitness for a particular purpose or quality of the software.&nbsp; Open source software licenses do not contain such provisions and licensees will have to consider the risks associated with software errors and possibly viruses that may impact business operations from a commercial point of view.<br /><br /><strong>CONCLUSION<br /></strong><br />Despite the many apparent benefits of the use of open source software, it is important for organisations to be aware of the risks associated with the use thereof.&nbsp; Most notably, such use is not unconditional, but subject to licenses, the terms of which have been successfully enforced in for example the United States of America.<br /><br />With continued economic pressures on organisations, it is to be expected that the appeal of the use of open source software will increase as a possible cost saving strategy.&nbsp; If such a strategy is to be pursued, (assuming it is in alignment with the commercial purpose of an enterprise) it is advisable that a specific open source software use and risk management policy be formulated.&nbsp; Such a policy may, as a minimum, require:</p>\r\n<p><strong>Identification of the relevant open source license;</strong></p>\r\n<ul>\r\n<li>A review of the legal obligations related to the use of the open source software;</li>\r\n<li>An analysis of the legal risks associated with the use of the open source software;</li>\r\n<li>An analysis of the commercial risks associated with the use of the open source software; and</li>\r\n<li>An analysis of the business requirements and ongoing costs associated with the maintenance of the open source software or related solution.</li>\r\n</ul>\r\n<p>Open source software appears to offer real benefits and may present a feasible alternative to vendor specific software.&nbsp; However, just like in the case of the procurement of vendor specific software, organisations need to carefully assess the legal and commercial implications of the use of open source software.</p>'),
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(82275, 4487, 'content_description', 'The employment relationship between employers and employees in the UAE is governed by the provisions of Law No. 8 for the year 1981, otherwise known as the Employment Law.\r\n \r\n'),
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(82277, 4487, 'pageSummary', 'The employment relationship between employers and employees in the UAE is governed by the provisions of Law No. 8 for the year 1981, otherwise known as the Employment Law.\r\n \r\n'),
(82278, 4487, '_pageSummary', 'field_59e59b307dec8'),
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(82286, 4488, 'content', '<p>According to Article 3 of the Draft Law, these provisions are applicable to all merchants practicing commercial activities except for the following:<br /><br />1.&nbsp;Companies licensed in accordance with the provisions of the Banking Law and the Currency Exchange Law.<br />2.&nbsp;Companies licensed in accordance with the Laws regulating the dealings with the foreign stock exchange.<br />3.&nbsp;Insurance companies licensed in accordance with the Draft Law regulating the Insurance activities or any Draft Law that may replace the same.<br /><br />When this Draft Law comes into effect, it will deal with issues such as the following:<br /><br />1.&nbsp;The reorganization of businesses in financial trouble.<br />2.&nbsp;Judicial settlement of debt incurred by merchants practicing commercial activities.<br />3.&nbsp;Bankruptcy of merchants conducting commercial activities.<br />4.&nbsp;Optional liquidation of merchants conducting commercial activities.<br />5.&nbsp;Compulsory liquidation of merchants conducting commercial activities.<br />6.&nbsp;Penalties applicable to the actions carried out in discordance with the provisions of this Draft Law.<br />7.&nbsp;Other general provisions applicable to merchants carrying out commercial activities.<br /><br /><strong>Reorganization:</strong><br /><br />According to Article 4 of the Draft Law, it is possible to reorganize the commercial activities of merchants conducting commercial activities, in the event they fall into financial turmoil, to a degree that would allow it to continue its operations. It is important to note, however, that in order to for a merchant to be eligible, there has to be a chance that his commercial operations could be revived.Further to the above, and given that a merchant is eligible for reorganization, the same could submit an application to the Controller of Companies or to the Registrar of Companies requesting that his commercial activities be reorganized in accordance with the regulations issued pursuant to the Draft Law. When submitting the application, the merchant is required to list the reasons which justify the application of the same as well as a proposed plan for reorganization, if possible. Further, the Draft Law provides that the merchant shall bear all the fees and expenses resulting from the submission of the said application.<br /><br />After submission of the application, the controller of companies or the registrar shall review the aforementioned application, or appoint experts for the same. Afterwards, they are required to submit an initial report including the following information:<br /><br />1.&nbsp;Whether the merchant\'s activities and financial standing are deteriorated to the point it would not revive without reorganization;<br />2.&nbsp;That the Merchant\'s business has the potential to be reorganized;<br />3.&nbsp;Any further suggestions the reviewer sees fit.<br /><br />In the case the controller of companies or the registrar accepts the reorganization application; it is then transferred to the competent Court of First Instance (the \"Court\") for their review. If the said court approves the application, a \"Reorganization Plan\" is prepared. This plan shall include the merchant\'s rights and obligations as well as the names of the creditors and debtors. Further, the plan shall include the financial, administrative and operational procedures regarding the reorganization of the business.<br /><br />Further, Article 10 of the Draft Law states that the court is responsible for sending a notice to all the company&rsquo;s creditors, within 7 days of receiving the Reorganization Plan, informing them of the name of the business holder, as well as a time and a place for holding the Creditor\'s Meeting. The court is also responsible for sending the creditors a copy of the Reorganization Plan. Either the merchant or his legal representative is required to attend the meeting. Further, the assessor that developed the Reorganization Plan is required to attend as well as any merchant whose presence the court requires. During the meeting, the people as well as the creditors are welcome to give notes and suggestions regarding the suggested Reorganization Plan and have the right to contest any of the proposed items. Creditors are required to then vote and sign on the issued discussed in the meeting before the court authorizes and endorses the Reorganization Plan.<br /><br />According to Article 13 of the Draft Law, the court reserves the right to reconstruct the Plan and agree to the selling, renting, investing, or the giving up of a part of the merchant\'s assets and/or projects if they are not mentioned in the Plan. This is it may be necessary to do so for the purpose of discharging the same and conserving his business. This, however, could only be done after the following conditions are satisfied:<br /><br />1.&nbsp;Notifying the merchant of the same and giving him no more than 7 days to object;<br />2.&nbsp; That the execution of the said action does not affect continuation of The merchant\'s activities or any other activity necessary for the implementation of the Plan;<br />3.&nbsp;That the proposed action cause the continuation of the merchant\'s activities for the longest time possible and achieve better pay to the creditors; <br />4.&nbsp;That the assessor supervise the undertaking of the proposed action after attaining the court\'s approval.<br /><br />Article14 of the Draft Law states that the Reorganization Plan is considered to be executed in the following cases:<br /><br />1.&nbsp;After the completion of the execution of the Plan in accordance with the provisions of the Draft Law and the regulations issued pursuant thereto.<br />2.&nbsp;If the merchant does not commit to or execute the Plan in accordance with the conditions agreed upon within the specified time limit.<br />3.&nbsp;If the merchant does any fraudulent or prohibited acts, or acts contrary to the agreed Plan.</p>'),
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(82244, 4486, 'content', '<p>It is therefore always important to observe those procedures as even a minor procedural error could destroy a case and ruin any progress made. The case in question illustrates the importance of legal process.<br />&nbsp;<br /><strong>Facts of the case</strong><br /><br />The Claimant and Defendant were partners in several companies and have various companies which they independently own and run. As a result of their various relationships, the parties entered into a final account agreement as representatives and directors of specific companies whereby one of Defendant&rsquo;s companies agreed to pay the sum of AED 30,000,000 to Claimant and Defendant agreed to personally pay those sums, if and only if he resigned his position as director of the company required to make payment under the agreement.<br /><br />Upon flying into the UAE, Defendant was suddenly arrested pursuant to a final court decision issued against him. It subsequently transpired that Claimant had sued the Defendant in his personal capacity for AED 18,000,000.<br /><br />A case summary is set out below:</p>\r\n<ul>\r\n<li>Claimant filed a claim Defendant without his knowledge using an incorrect residential address;</li>\r\n<li>Following inquiries as to the Defendant&rsquo;s address it emerged that he was out of the country at the time so the court decided to serve him notice by publication (in an official newspaper);</li>\r\n<li>The Claimant filed documents in court indicating that the Defendant had resigned from his position as director of the company thereby becoming personally liable to pay the amounts under the agreement;</li>\r\n<li>The Dubai Court of First Instance issued its ruling, holding the Defendant liable to pay said sum on the strength of the documents filed by the Claimant&nbsp;</li>\r\n<li>The Claimant served the Defendant notice of the ruling by publication based on an earlier service by publication and because of the fact that he was out of the country;</li>\r\n<li>Appeals to the Courts of Appeal and Cassation became time barred after the lapse of 30 days from the date of service</li>\r\n</ul>\r\n<p>Despite the fact he was time barred, the Defendant appealed the ruling arguing that the service of notice of the ruling and the writ of execution upon Defendant and service of the statement of claim was invalid as well as an irregularity in the ruling itself, having been issued on the basis of a material misrepresentation on the part of Claimant.&nbsp;&nbsp;&nbsp;&nbsp;<br /><br />The Defendant argued before the Appeal court that the Civil Procedure Law sets out a specific procedure for service of notice of rulings and statements of claim. This step-by-step procedure is to be followed strictly in order to ensure the service is considered valid.<br /><br />Article 152 of the Civil Procedure Law states that &ldquo;Unless otherwise provided by law, the time limit for challenging rulings starts to run the day after the ruling was made or from the date on which notice of the ruling was served upon the judgment debtor if the judgment debtor failed to attend any of the hearings that were scheduled in the proceedings and did not file a defense memorandum.&rdquo; Paragraph three of Article 152 states with regard to the method of service of notice of rulings that: &ldquo;Notice of rulings shall be served upon the person of the judgment debtor or at his domicile or place of work.&rdquo;<br /><br />Paragraph Three clearly and explicitly sets out the procedure to be followed when serving notice of rulings. A ruling would need to be served either:</p>\r\n<ul>\r\n<li>Upon the person of the judgment debtor; or</li>\r\n<li>At the domicile of the judgment debtor, either upon him personally or upon any spouse, relative, or in-law living with him if service cannot be performed on the person of the judgment debtor; or</li>\r\n<li>At his place of work, either upon him personally, or upon the person who appears to be in charge of the place or an employee of the establishment; or</li>\r\n<li>By publication, in a widely circulated UAE daily newspaper in Arabic and another newspaper published in English, if necessary, after taking all the above steps and failing to serve the judgment debtor in person or at his domicile or place of work, as detailed above, and no spouse, relative, or in-law of the judgment debtor living with him at his domicile and no employee at his place of work accepting service, once the court has verified that the person to be notified has no known domicile or place of work</li>\r\n</ul>\r\n<p>In light of the steps taken to serve notice of the ruling, it was argued that the steps had not been completed correctly because Defendant was served notice of the ruling by publication after no residential address could be found and inquiries revealed that he was out of the country. Pursuant to the Law, an attempt should have been made to perform service at his residential address or, failing that, his place of work. It was further argued that the extract from the Naturalization &amp; Residency Department which the Claimant produced as evidence of the Defendant&rsquo;s departure from the UAE contained particulars concerning the Defendant as well as the name of his sponsor and his place of work. The extract also indicated that his residence visa was still in effect. Therefore, in accordance with the Law, an attempt should have been made to perform service at his place of work<br /><br />The Court of Appeal said that the appeal was time barred and dismissed it in form. In its reasoning, the Court of First Instance opined that service had been properly performed by inquiring of the Defendant&rsquo;s address in the UAE and failing to find one. The Court confirmed that there was no point in conducting further inquiries given the statement from the Naturalization &amp; Residency Department that the Defendant was out of the country and any attempt to serve him in person would be futile.<br /><br />The Defendant appealed to the Court of Cassation on the basis of error in the application and interpretation of the law and flawed reasoning, focusing on two procedural aspects:<br /><br />The Court of First Instance erred in disregarding the plea that service of notice of the ruling had not been completed correctly and relying simply on an attempt to serve notice at the residence of Defendant when there was no attempt to serve him at his place of work despite a work address having been established from the documents on file.<br /><br />There was no correlation between serving the Defendant with the ruling by publication and the fact of his presence out of the country at the time. There is no requirement under the Civil Procedure Law that service always be performed upon the person of the judgment debtor. Service of notice of a ruling is valid if made upon a spouse or relative or relative by marriage living there and if he does not find the person required to be served at his place of work he must deliver the copy at that place to a person declaring that he is concerned in the management of that place or that he is an employee therein. The purpose of service would be realised in such case even if the judgment debtor is out of the country. The documents confirm that the Defendant has a valid residence visa and frequently travels to the UAE.&nbsp; Therefore he has a work domicile in the UAE.&nbsp;&nbsp;<br /><br />Thus, from a legal standpoint, an attempt should have been made to serve Defendant with notice of the ruling at his place of work before resorting to service by publication which should be used in exceptional circumstances after carrying out proper inquiries and first attempting service in the manner prescribed by law.<br /><br />The Court of Cassation found in the Defendant&rsquo;s favour by accepting the plea in question and confirming that there was in fact no correlation between serving Defendant with the ruling by publication and the fact he was out of the country at the time. Further, the Court of Cassation stated that the extract from the Naturalization &amp; Residency Department contained particulars concerning Defendant as well as the name of his sponsor and his place of work. The extract also indicated that his residence visa was still valid, which means that he had not left the UAE permanently. Therefore, pursuant to the law, an attempt should have been made to perform service at his place of work. The Court of Cassation held that all notification procedures that had been previously taken for serving the judgment on the Defendant was null and void. Therefore, the appeal period was still open. The Court of Cassation revoked the appealed judgment and referred the case back to the Court of Appeal for consideration of the merits.<br /><br />The Defendant maintained his argument before the Court of Appeal that service of the statement of claim was invalid and that service of notice in proceedings was marred by the same procedural and legal deficiencies as service of notice of the ruling. Since the Court of Cassation categorically held that service of notice of the ruling was invalid, so too is service of notice in proceedings under the same rationale. Other substantive pleas raised before the Court of Appeal include forgery of the documents which were submitted and ruling against a party having no capacity.<br /><br />The Court of Appeal ultimately declared the Court of First Instance ruling null and void due to an irregularity in service of the statement of claim and ordered that Claimant bear the fees, costs, and advocate&rsquo;s fees<br /><br />The Court of Appeal on remand from the Court of Cassation accepted the appeal in form and declared that the time limit for appeal had not expired.<br /><br />Requirements for Valid Service<br />Proceeding to the merits, the Court of Appeal took up the plea with regard to invalid service of the statement of claim and set out a number of legal principles which could be summarized under the following points:</p>\r\n<ul>\r\n<li>Through the Court of Cassation&rsquo;s consistent rulings, it is settled that service of a statement of claim or court ruling by publication in the press should be made in exceptional circumstances meant to address specific circumstances where any attempt to serve a party in person or at his original or elected domicile or place of work would be futile. The party requesting service may opt for this alternative only after exhausting all means necessary to locate his opponent&rsquo;s domicile or place of work in order to serve him with the statement of claim or ruling.</li>\r\n<li>It is established that no litigation shall arise between parties if an invalid service of the statement of claim has been served upon the defendant who has failed to attend court in person or by proxy</li>\r\n<li>Failure to effect proper service by the time of issue of the first instance ruling precludes litigation of the claim without any subsequent step in the proceedings being capable of rectifying the situation</li>\r\n<li>Hence, when invalid service of the statement of claim is in evidence before the Court of Appeal, the court would simply declare the first instance ruling as invalid without proceeding to adjudicate the merits so as not to deprive the party invoking irregularity in service of the statement of claim from the two stages of judicial process which is a principal tenet of the judicial system that cannot be violated by the court.</li>\r\n</ul>\r\n<p>In light of the above principles and their application to the matter in dispute, the Court of Appeal concluded that there was an invalid service of the statement of claim for the following reasons:</p>\r\n<ul>\r\n<li>It is clear that the process server attended Defendant&rsquo;s premises at the address indicated in the statement of claim but found no one there. Hence, service was not performed at Defendant&rsquo;s domicile.</li>\r\n<li>Upon inquiring about the Defendant&rsquo;s address, the Investigation Department reverted with an address comprising a telephone number and post office box number, advising that Defendant was employed by a company in the Emirate of Dubai and that no attempt had been made to serve him with the statement of claim at that address;</li>\r\n<li>A letter was then sent to the Naturalisation &amp; Residency Department which replied that Defendant had a complete work address but was out of the country. A manuscript note was made on the reply to the effect that Defendant&rsquo;s residence visa was valid. Defendant was not served at said address</li>\r\n</ul>\r\n<p>Therefore, Defendant&rsquo;s service by publication without having exhausted the other means for service mentioned above was void particularly given the fact that his address according to the above inquiries is different from his address in the statement of claim and he has a valid residence visa. It follows that Defendant&rsquo;s plea alleging invalid service of the statement of claim is well founded in the law and worthy of acceptance.</p>'),
(82225, 4485, 'content', '<p>Qatar has a separate law for the protection of copyright, a law for trademarks, trade names, geographical indications and industrial designs and models, a law for the protection of trade secrets, a law for the protection of layout designs for integrated circuits and a law for the protection of patents. This in addition to the international treaties related to intellectual property to which Qatar is a party. <br />In an addition to this comprehensive regime, a new law was issued on November 17, 2011 with respect to the border measures for the protection of intellectual property rights.<br /><br />The new law No. 17 of the year 2011 prohibits the entrance of any products that infringe any intellectual property rights protected under the law in Qatar. Furthermore, the new law obliges the General Administration of Customs to take all measures required to prevent the entrance of infringing products into the country, when it has prima facie evidence that these products are infringement.<br /><br />The law provides for a mechanism for IP right holders to stop the release of imported products that constitute infringement of their rights; this request shall be substantiated with sufficient evidences. The decision issued by the Customs Administration is subject to appeal before the Court of First Instance, which should issue its decision within a short period of time, 3 days according to the law.<br /><br />However, the law provides for some exceptions; which are related to small quantities of non-commercial goods, personal goods and gifts arriving with passengers or in small packages; transit goods; products that were placed in the country of export by the right holder or according to his permission (parallel imports) and products received through the inter-state borders with another country with which Qatar constitute a customs union where most restrictions on good movement were canceled.<br /><br />According to this law, recordation of intellectual property rights with the Customs Administration will now be possible; as the law allows right holders to record all the data related to their rights with the Customs with their address within the country.<br /><br />Recordation of trademark protections with Customs authorities is possible in a number of jurisdictions in the region, namely Jordan, UAE, Egypt, Lebanon, Syria, Tunisia, Morocco and Algeria. <br /><br />The law provides for significant penalties for entering any products infringing IP rights; the penalties are imprisonment not exceeding one year and/or fines not exceeding 10,000 Qatari Riyal.&nbsp; This is in addition to the confiscation of the infringing products. However, the law does not provide for the destruction of the infringing products. <br /><br />This law maybe the first stand alone legislation regulating IP protection in border measures in the region and will inevitably result in improvement as to the IP eco system and enforcement against piracy and counterfeiting.</p>'),
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(82198, 4484, 'content', '<p>Asset finance is a form of financing that is applied toward the purchase of tangible and movable assets. The purpose of this type of financing is to facilitate the purchase of capital equipment required for the day to day running of businesses, and on a larger scale, asset financing can also cover larger assets such as aircraft and vessels. <br /><br />The key components of the asset finance are that the asset being financed is the primary security provided to the lender and the revenue generated from the asset is used to repay the debt and service interest payments. Depending on the structure of the asset financing agreement, the borrowing entity may also be afforded additional flexibility such as having the option to replace or update the equipment at the end of the lease period. <br />This article sets out the typical financing structures available in the UAE and the possible means by which security over the financed assets may be provided.<br /><br /><strong>Asset Classes<br /><br /></strong>We examine below the different categories of assets which usually form the subject of asset financing in the UAE:<br /><br />(a)&nbsp;&nbsp;Plant and equipment<br /><br />This category covers a broad range of assets, including industrial equipment such as machinery, generators, cranes and storage units purchased by the borrowing entity.<br /><br />(b)&nbsp;&nbsp;Vehicles<br /><br />This category covers a range of vehicles which are used in the course of the borrowing entity&rsquo;s business, and apart from the normal fleet of cars, trucks and other forms of conventional transportation, can also include tractors, bulldozers, excavators and cranes.<br /><br />(c)&nbsp;&nbsp;Vessels<br /><br />This category deals with vessels that are over ten tons and that have been registered at the National Transport Authority in the relevant Emirate.<br /><br />(d)&nbsp;&nbsp;Aircraft<br /><br />This category deals with aircraft that are registered by the General Civil Aviation Authority.<br /><br /><strong>Financing Structures<br /><br />Term Loan<br /><br /></strong>The most common form of financing used is to provide a term loan to the borrower to purchase the asset. The asset that is being financed will be pledged or mortgaged to the lending bank and the receivables used to repay the outstanding debt.<br /><br /><strong>Lease Finance<br /><br /></strong>Here the asset remains in the name of the bank and leased to the lessee. At the end of the finance period the asset is transferred to the lessee. This type of structure may pose legal issues in the UAE as there is no specific law that governs lease finance and conventional banks and finance companies are restricted from owning assets and carrying out commercial activities such as leasing.<br /><br /><strong>Shari&rsquo;a Compliant Structures<br /></strong><br />In both cases above, Shari&rsquo;a compliant financing alternatives are also available as solutions to their conventional counterparts. A direct financing may be granted by way of Murabaha, where the bank purchases the asset directly from a third party and immediately resells the same asset to the borrowing entity at a profit. It is possible for the bank to enter into a pledge over the assets in question. However, this structure is not popular for medium or long term financing because the profit rate may not be benchmarked to LIBOR or EIBOR and must be a fixed rate.<br /><br />Alternatively, the bank can purchase the asset and subsequently lease the asset to its client pursuant to an Ijarah structure. Ownership of the leased asset is then transferred to the client upon the termination of the lease.<br /><br /><strong>Creating Security over Assets<br /><br /></strong>The following are the types of security that can be created over the different types of movable assets.<br /><br /><strong>Pledge<br /><br /></strong>In this section of the article, we are referring to movable assets that are not registered with any government authority in the UAE.<br /><br />A pledge would be relevant in case of unregistered moveable assets, being assets which are not of a permanently fixed nature (i.e. assets which can be removed without damaging or alerting its structure, physical appearance or surroundings).&nbsp; Simply put, moveable assets are assets which do not comprise real property (i.e. land) or any structure permanently affixed to the land. In cases where the asset subject to the asset financing can be specifically defined and ownership interests therein are not capable of being legally mortgaged, the pledge is a more appropriate form of security.&nbsp; The requirements for perfection of the pledge are set out below:<br /><br />(i)&nbsp;The Pledge should be executed in a written form and time certain.</p>\r\n<p>A pledge over movables is ineffective against non-contracting parties unless an instrument showing the debt and the property held in pledge together with the transfer of possession to a pledgee is made.<br /><br />Since there is no registration of pledged movable assets in the UAE, the signing of a pledge agreement in a notarised document serves as a document that fixes the time of signature of the pledge agreement and thereby confirms priority over other unsecured and subsequent secured creditors. Notarisation is the recognised and accepted practice to create time certainty.<br /><br />(ii)&nbsp;The pledged assets must be in existence and be identified.<br /><br />The Civil Code in general, requires that the subject of a pledge is identifiable at the time of the contract. Therefore, future assets are not able to be captured, nor is a &lsquo;floating&rsquo; pledge possible.<br /><br />(iii)&nbsp;The secured party must take custody of the pledged assets.<br /><br />The Civil Code&nbsp; and Commercial Code&nbsp; both require that custody of the pledged assets should either be held jointly or by the creditor or by a neutral third party.<br /><br />Therefore, if the lenders do not intend to have physical possession over the pledged asset, it would be required that the pledge agreement provides that the custody of the pledged asset should be transferred to a third party &ldquo;Bailee&rdquo;. If the borrower is a company (as with most financial institutions&rsquo; facility agreements) the pledge agreement may appoint the general manager of the borrower (in his personal capacity) as a Bailee.<br /><br />The following are some issues to be considered in the context of a pledge:</p>\r\n<ul>\r\n<li>It is not likely that a pledge can be entered over a portion of the relevant asset, unless such portion can be identified separately (for example, by way of a distinct serial number which would distinguish it from the rest of assets to which it is attached).</li>\r\n<li>A pledge is specific to the assets listed in the pledge document itself. Unlike a commercial mortgage, a pledge is not publicly registrable, and does not embody notification to the world at large. Hence, the bank and the borrowing entity have to weigh their respective objectives in achieving the best solution. It is suggested that a pledge, which is perfected in accordance with applicable formalities, would be more suitable in the context of asset financing.</li>\r\n</ul>\r\n<p><strong>Commercial Mortgage&nbsp;<br /><br /></strong>This is a mortgage over the tangible and intangible assets of the borrowing entity, and includes tools, machinery (listed in the mortgage agreement) and intangible elements such as goodwill or trade name. The requirements for creation of a business mortgage are as follows:</p>\r\n<p>(i)&nbsp;The mortgage must be notarised in front of a UAE notary public. Generally the notary will require notification prior to notarizing the mortgage.<br /><br />(ii)&nbsp;A search of the Commercial Register (nominal fee) is undertaken to ensure no prior business mortgage is recorded.<br /><br />(iii)&nbsp;Once notarization is complete, and the search is obtained, the mortgage must then be registered with the appropriate Commercial Registry. Until now, only four established Commercial Registries exist in the UAE, the Emirates of Dubai, Abu Dhabi, Sharjah and Ras al Khaimah. Thus, the mortgage over commercial business may only be effected in these Emirates (or anywhere else which has a commercial register).<br /><br />One difference between a pledge and commercial mortgage is that the mortgagor may continue to maintain possession of the commercial business or unit even after mortgaging the commercial business or unit.<br /><br />Registration with the Commercial Register provides protection for a period of five (5) years from the date of registration. Such registration must be renewed prior to expiry of the five (5) year period; otherwise, it will be automatically cancelled. The registration of a mortgage with the Commercial Registry may not be cancelled except by the consent of both parties or pursuant to a final court order.<br /><br /><strong>Vehicles<br /><br /></strong>Security over vehicles is effected by way of registration of a mortgage with the relevant Traffic Department. There is an absence of clear written law on this topic, however, in general all dispositions and ownership interests over vehicles must be registered. Accordingly, the borrowing party still retains the legal ownership of the vehicles, such ownership being subject to the mortgage.<br /><br />There may be cases in which the scope of the mortgage is not clear cut. For example, a trailer forming part of the vehicle, and is hence detachable, may arguably fall outside the scope of the mortgage, depending on how the mortgage was registered. Other assets, such as cranes, may not obviously fall into the &ldquo;Vehicles&rdquo; category.<br /><br /><strong>Vessels<br /><br /></strong>Vessel mortgages in the UAE are created pursuant to the UAE Commercial Maritime Law No. 26 for the year 1981 and amendments as per law No. 11 for the year 1988 (the &ldquo;Maritime Law&rdquo;). The Maritime Law permits the mortgage of a vessel if its total tonnage exceeds ten tons.&nbsp; The vessel being mortgaged in the UAE should be registered with the National Transport Authority, in other words, the vessel should maintain a UAE flag. <br />A vessel mortgage is only valid if it is made by an official instrument. The practical steps for perfection of a mortgage include the following:</p>\r\n<ul>\r\n<li>A notarized vessel mortgage agreement is filed with the National Transport Authority.</li>\r\n<li>The National Transport Authority will issue a new vessel registration certificate noting the mortgage registered in favour of the mortagee.</li>\r\n</ul>\r\n<p><br />The Maritime Law permits the creation of a mortgage over a vessel that is under construction however; the mortgage must be preceded by a declaration from the relevant Maritime Office in the port in its jurisdiction the vessel is being constructed, stating the length and other dimensions of the vessel, its approximate tonnage, and the address of the yard or place in which it is being built. The National Transport Authority is currently putting in place procedures to register mortgages over vessels that are under construction.<br /><br /><strong>Aircraft</strong><br /><br />Financing the purchase or lease of aircraft is common in the UAE where such aircraft are being acquired or leased by private operators or airlines. In relation to private operators or high net worth individuals acquiring a single aircraft, the financing structure usually includes a term loan coupled with an aircraft mortgage registered at the General Civil Aviation Authority (GCAA). Once the mortgage is perfected, the GCAA will issue a certificate of registration confirming the details of the owner/mortgagor, the operator (if the operator is a separate entity) and the financing bank as mortgagee.<br /><br />In relation to financing of a fleet of aircraft for airlines or private operators, the structure would include a special purpose company (jointly owned by the financier and the relevant airline) which is the owner of the aircraft and such special purpose vehicle would lease the aircraft to the airline. In certain instances, such leasing structures are also supported by a further layer of financing provided to the special purpose company. Accordingly, the special purpose vehicle would provide a mortgage to its financier.<br /><br />Banks and financial institutions would in addition to the mortgage registered at the GCAA require an additional registration of a security interest over the aircraft (airframe and engines) at the International Registry pursuant to the Cape Town Convention on International Interests in Mobile Equipment 2001 as adopted under UAE law. Such registration is effected through the GCAA which acts as an Authorized Entry Point in relation to the International Registry for the UAE.</p>'),
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(81606, 4452, 'pageSummary', 'The following is a summary of key aspects of notes from Nick O’Connell’s presentation at the Telecommunications Law & Regulation in the Middle East conference, held in Dubai on 12 & 13 December 2011.'),
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(81615, 4453, 'content', '<p>This law applies to petroleum operations on dry land as well as inland water, territorial water and beneath the water in all parts of the Republic of Iraq.&nbsp; According to Article 4, it is also applicable to areas that are &lsquo;subject to the Iraqi Law as per an agreement, international law, or international norms&rsquo;.<br /><br />By implementing this Law, the Ministry aims to lay out regulations that will allow them to gain control of the oil and gas, ensuring fair distribution to the people, as well as set strategic policies to &lsquo;regulate and develop the upstream oil and gas industry to achieve the highest benefit to the Iraqi people&rsquo;.&nbsp; Additionally, the Law states that it aims to ensure the development of the private sector in a way which will make it &lsquo;efficient, qualified and capable&rsquo; of contributing significantly in the production of petroleum worldwide.<br /><br />In order to achieve the aims outlined in Article 2 of the law, the Ministry provides a number of strategies in Article 3.&nbsp; These include &lsquo;establishing a new and advanced system for managing petroleum operations in Iraq, including setting log, medium, and short term strategies, policies and plans&rsquo;, exchanging oil and gas experiences with the international oil and gas industries and establishing the Federal Council of Oil and Gas (the \"FCOG\"), created by Article 5 of the Law.<br /><br />Article 6 of the Law outlines the entities that are responsible for managing the petroleum resources.&nbsp; These entities are the House of Representatives, the Council of Ministers, the Federal Oil and Gas Council, the Ministry of Oil, the Iraq National Oil Company and the Regional Body.&nbsp; Articles 7-14 outline the duties of each entity and the roles that they are responsible.&nbsp; For example, Article 9 states the duties and functions of the FCOG.&nbsp; According to Article 9(h), the FCOG shall be responsible to set the national level for the production of petroleum in accordance with the national policy.&nbsp; Furthermore, Article 9(a) states that the FCOG shall &lsquo;approve federal petroleum industry policies, exploration and fields development plans, and main pipelines plans, and amendments thereof&rsquo;.&nbsp; It has been argued by some industry experts that it cannot fulfill such obligations, since the FCOG does not have the legal authority or institutional representation to do this.<br /><br />In addition to stating the obligations of the entities responsible for managing the petroleum production, the Law also includes the criteria to be incorporated into model contracts for Petroleum Operations.&nbsp; For example, Article 16 states that said model contracts should include criteria such as &lsquo;Iraq\'s ownership of petroleum resources&rsquo;, the obligations of the contracting parties and the consequences of breaching such a contract.&nbsp; It also includes some &lsquo;reasonable incentives&rsquo; given to the investors to ensure they get the best possible results in terms of the transfer of technology, the extraction of the petroleum and the training and development of Iraqi staff working in the oil and gas industry.&nbsp; However, the Law does not clearly state the type of contracts Article 16 is applicable to.&nbsp;<br /><br />Part III of the Law deals with the exploration, development and production of petroleum in Iraq.&nbsp; It is specified in Article 21 that a contract made for the exploration, production and development of petroleum gives the contracting party the exclusive right to perform the aforementioned for an initial period of not more than four years.&nbsp; It continues, the body carrying out the exploration may be granted an additional period not exceeding two years, in the case of discovery if they need the time to evaluate and determine the commercial value of the discovery.&nbsp; An additional period not exceeding four years in the case of the discovery of a non-associated natural gas and a period not exceeding two years to complete the evaluation of the discovered undeveloped fields.&nbsp; Additionally, Articles 22, 23 and 24 outline the obligations held by the license holder and the criteria by which they should comply in relation to their work with the exploration, development and production of petroleum.<br /><br />When it comes to the financial aspect of the oil and gas industry in Iraq, Part VI of the Law provides some guidelines.&nbsp; While Article 40 deals with the returns and revenues made due to the sale of oil and gas, Articles 41 and 42 outline the financial obligations of both the license holders and the contracting companies.&nbsp; In reference to Article 40, the Law provides that all returns made due to the sale of oil and gas as well as the bonuses received from the oil contracts made with Iraqi or foreign companies to be distributed fairly among the people as regulated by the Law.&nbsp; The Article further provides that a fund by the name of Future Fund is to be established and states that a percentage of the excess revenues to be deposited into the fund in order to ensure the future of future generations.&nbsp; However, this may not be possible as some argue that according to Articles 106 and 112 of the Iraqi constitution this Article does not fit in this Law, as a Law for sharing revenues already exists.<br /><br />Article 45 of the Law states that any conflicts arising from the interpretation and application of this Law should be resolved by negotiations between the parties and &lsquo;as per the principle of good faith&rsquo;.&nbsp; Further, if in the case where the negotiations fail to resolve the conflict between the parties, the matter shall be referred to the Minister for resolution, failing that then referred to arbitration.<br />Even though the Federal Oil and Gas Draft Law rounds out an all-inclusive system aimed at achieving the highest level of growth in the reserves and production of Petroleum in Iraq, the passing of the Law has been repeatedly delayed due to disagreements between some of the country\'s MP\'s.&nbsp; As a result, some parliamentarian members walked out during the submission of the draft to parliament.&nbsp;&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;</p>'),
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(81619, 4453, 'content_description', 'In light of the recent development and economic reconstruction undergoing in Iraq, the Iraqi Ministry of Oil (the \"Ministry\") has submitted an amended draft of the Federal Oil and Gas Law (the \"Law\"), that was first introduced in July 2007 to the Council of Ministers on 25 August 2011.  '),
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(81621, 4453, 'pageSummary', 'In light of the recent development and economic reconstruction undergoing in Iraq, the Iraqi Ministry of Oil (the \"Ministry\") has submitted an amended draft of the Federal Oil and Gas Law (the \"Law\"), that was first introduced in July 2007 to the Council of Ministers on 25 August 2011.  '),
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(81573, 4451, 'content', '<p>One of the intriguing indeed enigmatic areas of practice the Special Projects Department prides itself with advising on is: &ldquo;Extradition&rdquo;. Extradition, with its transnational process, implications and interdisciplinary concerns is emblematic of the complexities of service of justice in this day and age. As a strand of criminal justice, Extradition is mainly differentiated from other strands of criminal justice by the matter that involves more than one jurisdiction. Lawyers faced with extradition cases are often confronted with the task of reconciling two or more jurisdictions of different countries to resolve extradition issues. The complexity of resolving extradition matters stems from an intricate juggling exercise between legal and diplomatic subtleties.&nbsp;<br /><br />Extradition can be defined as a series of exchange documents via diplomatic channels between authorities seeking the surrender of an alleged offender or fugitive to the state in whose territory the alleged offence was committed.<br /><br /><strong>Legal basis of an extradition request</strong><br /><br />Extradition is a mixed process; it is neither purely legal, nor political. It is usually initiated by judicial institutions and communicated through political channels, but is also subject to political exercise of legal concept of sovereignty.&nbsp; Based on long-standing legal traditions, the States have always been strongly opposed to extraditing their own nationals, to the extent that it is sanctified by their national respective constitutions.&nbsp;<br /><br />Extradition requests of a legal basis are reliant on the presence of international conventions, whether they are international, regional, or bilateral treaties or a specific agreement between the two jurisdictions to extradite a specific subject. Such conventions are extremely important, in particular due to the consequences of globalization and the ease at which individuals can travel nowadays. It is worth noting that the United Arab Emirates signed international conventions such as the UN Convention Against Corruption on the 10th of August 2005 (ratified on the 22nd of February 2006), but also regional and bilateral treaties of extraditions.&nbsp;<br /><br />Under international law principles, there is no obligation for one country to surrender a &ldquo;wanted&rdquo; individual to another country. On that basis, and in light of the importance of cooperation in fighting international crimes , it has been necessary to build up agreements / international conventions. It is relevant to mention however that when treaties are in place, extradition does not necessarily take place.<br /><br /><strong>An alternative ground for extradition: &ldquo;international courtesy&rdquo;<br /><br /></strong>As indicated above, in the absence of a treaty, initially there is no legal obligation on the jurisdiction receiving the extradition request to oblige. It is however noted that in some incidents the country applying for extradition invokes the concept of &ldquo;international courtesy&rdquo; promising to extend the same treatment to the country receiving the application should the latter elect to cooperate. Needless to say international courtesy is the historical origin of extradition as the process we know today.<br /><br />Recently - in June 2011 - a British national has been extradited from Thailand to the UAE to face criminal charges of embezzling substantial amounts from an Emirati Government-owned company. The British national was turned over to the UAE authorities after the Thai Criminal Court agreed to extradite him to the UAE, even though there is no formal treaty between the UAE and Thailand.<br /><br /><strong>UAE Law:<br /></strong><br />In the course of our daily practice, we are usually invited to advise and opine on the issue of Extradition and how it is carried out in the UAE. It is worth mentioning that the UAE legal system does not treat extradition as a public action but rather as a judicial order subject to review by superior Courts and is generally governed by:</p>\r\n<ul>\r\n<li>Article 38 of the UAE Constitution: &ldquo;Extradition of citizens and of political refugees is prohibited.&rdquo;</li>\r\n<li>Article 121 of the UAE Penal Code, Federal Law No. 3 of 1987.&nbsp;</li>\r\n<li>Article 132(1) of the UAE Penal Code, Federal Law No. 3 of 1987.</li>\r\n<li>Article 304(1) of the Criminal Procedures Code, Federal No. 35.</li>\r\n<li>Articles 23 to 29 of the Residency Law, Federal Law No. 17 of 1972.</li>\r\n<li>Articles 79 to 92 of the Executive Regulations of Residency Law, Federal Law No. 6 of 1973.</li>\r\n</ul>\r\n<p><strong>Process of extradition:&nbsp;</strong>In all extradition proceedings, the process of extradition takes place through diplomatic channels:</p>\r\n<ul>\r\n<li>The requesting party (the Attorney General) sends the request to the Ministry of Justice (of the requesting party).</li>\r\n<li>Following this, the Ministry of Justice sends the request to the Ministry of Foreign Affairs (of the requesting party), who then transfers it to the Embassy of the requesting party in the capital of the country receiving the request.</li>\r\n<li>Then, the Embassy communicates the request to the Ministry of Foreign Affairs of the requested party, who then transfers this request to the Ministry of Justice (of the requesting party).</li>\r\n</ul>\r\n<p><strong>Enforcement of the extradition request:<br /><br /></strong>The enforcement of the extradition will occur as per the below listed points:<br /><br />1.&nbsp;Arrest of the wanted subject: when a requesting party seeks to extradite a fugitive, in many cases, the fugitive in question flees the country to another in hopes of evading his prosecution and punishment. One option for the requesting party to &lsquo;retrieve&rsquo; the wanted individual can be facilitated by alerting Interpol , whose primary objective would be to facilitate international police cooperation by using tools to prevent or regulate movements of suspected or indicted individuals. One of such tools used by Interpol includes the use of colored notices of which there are 7 types, each one indicating different types of requests. For instances, if there is a request for an individual&rsquo;s extradition, the requesting party may alert Interpol, who would in turn, issue a Red Notice alert to prevent that individual from travelling. It is worth noting that both the Interpol Red Wanted Persons Notice and the European Arrest Warrant have the same purpose i.e. to alert police that the individual for whom the European Arrest Warrant or the Red Wanted Person Notice has been issued is wanted for a specific crime, by a specific country and most importantly that a judge from that specific country has signed an arrest warrant (Interpol would arrest the individual in the country he is in and surrender him to the local Prosecutor first). This process would help requesting parties to recuperate fugitives, particularly when a fugitive is a holder of dual nationality, and leaves the requesting country to another by way of his second nationality.&nbsp;<br /><br />2.&nbsp;Interview of the wanted subject by the Prosecutor;<br /><br />3.&nbsp;Either immediate deportation (e.g. in incidents of Terrorism, Drug and/or Human Trafficking. Money Laundry, Transnational Organized Crime) or the Prosecutor will incarcerate the wanted individual pending receipt of the copy of the case file from the requesting jurisdiction and a final decision on extradition following that.&nbsp;<br /><br />4.&nbsp;In some jurisdictions (e.g. U.K) the Prosecutor upon receiving a copy of the case file from the requesting jurisdiction will examine the case and provided that it satisfies the English Prima Facie test of evidence he/she will initiate an extradition Public Action against the wanted individual before a specialized extradition Court which will decide on the extradition issue.<br /><br /><strong>Available defences:<br /><br /></strong>The available defences include the defences of dual criminality, political crimes, human rights concerns, conflicts of jurisdictions but also diplomatic protection.<br /><br />Dual criminality: an individual will only be extradited if his or her actions constitute an offence in both, the requesting and the requested states.</p>\r\n<ul>\r\n<li>Political crime: is defined under international law as the incrimination of peaceful opposition and criticizing the politics of the political regime requesting the extradition.&nbsp;</li>\r\n<li>If there are discrepancies in the views of two jurisdictions on human rights and unusual or cruel punishment, and there is a risk of such a violation in the requesting jurisdiction, this would frustrate the extradition request, even if there are treaties governing the process between the two jurisdictions.</li>\r\n<li>Conflicts of jurisdictions: The defence of conflicts of jurisdictions will be applicable when two jurisdictions believe they are competent to make a certain decision on a particular case. If there is a conflict of jurisdictions, extradition cannot occur.</li>\r\n<li>Diplomatic Protection: there are sometimes complications to the extradition process, in particular when the individual in question holds dual nationality. Due to effective nationality, there are a lot of difficulties to effective diplomatic protection of individuals. In the Nottebohm case , the International Court of Justice regarded nationality as &ldquo;a legal bond having as its basis a social fact of attachment, a genuine connection of existence and sentiments, together with the existence of reciprocal rights and duties. It may be upon whom it is conferred, either directly by the law or as a result of an act of the authorities, is in fact more closely connected with the population of the state conferring nationality than with that of any other state&rdquo;. Deriving from the Nottebohm case, it was held that diplomatic protection from a state to an individual can only provide security if there is &ldquo;a sufficient bond of attachment&rdquo; between an individual and the state from which he seeks diplomatic protection. Furthermore, even if the individual gains diplomatic protection, he may still risk prosecution in the country where he is residing. In today&rsquo;s circumstances, one could state that it would be difficult to demonstrate effective nationality following the Nottebohm&rsquo;s case considerations. However, those principles are still useful in particular in cases of dual or multiple nationalities.</li>\r\n<li>Diplomatic protection is the oldest of all available defenses and a historical origin of famous incidents for intervention in the domestic affairs of another state as well as the outbreak of hostilities between two countries. For example: the British and French army invaded Egypt and then took over North Africa on the grounds of Diplomatic Protection of European nationals living in Arab Territories. Nowadays, Diplomatic Protection takes the form of political and legal support rather than military guardianship which is now called Humanitarian Intervention.</li>\r\n</ul>\r\n<p><strong>Conclusion:<br /><br /></strong>Extradition is an intermingled matter. Although this process is simplified by the presence of conventions between two or more jurisdictions, the main task of reconciling two or more jurisdictions takes a lot more than finding a binding treaty. Extradition is a fast developing field of law, and this can be illustrated in an increasing amount of countries taking steps to simplify the resolution of extradition matters by the merging of regulations to form binding treaties. This is demonstrated for example by the recent treaty on extradition signed between the UAE and Australia in 2007 and between the UAE and Pakistan in 2010 but also by proposal made by countries such as Kuwait, which in September 2011, proposed at the 15th meeting of the Justice Undersecretaries of the Gulf Cooperation Council States endorsing the agreement for extradition of criminals among the Members States of the Council.&nbsp;<br />Extradition&rsquo;s fast development needs to be maintained in parallel to the increasing challenges of globalization in the modern world.</p>'),
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(81600, 4452, 'content', '<p><strong>Introduction</strong><br /><br />The topics that I have been asked to cover are privacy, data protection, spam, consumer protection and cloud computing. The common thread between these topics is the need to balance the benefits of living in the information age with the expectation of privacy.&nbsp; On the one hand, the information age brings with it many benefits (including greater efficiency and convenience with regard to gathering, storing and using data). On the other hand, expectations with regard to protection from arbitrary interference with privacy are generally considered a well-established social and legal norm &ndash; including in this region.&nbsp;<br /><br /><strong>Privacy&nbsp;</strong><br /><br />Generally speaking, the position in most of the GCC countries is that the privacy of an individual is protected under general provisions of laws not specifically focused on the issue of privacy.&nbsp; By way of example, the UAE Penal Code makes it an offence to publish, through any means, news, pictures or comments pertaining to the secrets of people\'s private or familial lives. It also makes it an offence for anyone who is, by reason of profession, craft, circumstance or art, entrusted with a secret, to disclose the secret, or use it for his or her own benefit, or that of another, unless such disclosure or use is permitted by law or by the consent of the person to whom the secret pertains.<br /><br />The key point that I wish to illustrate by these examples is that the these privacy related provisions have not been drafted with the information age in mind. To provide some context, we have recently relied on provisions such as this to advise on a corporate client&rsquo;s proposed transfer of employee data to an off-shore data storage facility and another client&rsquo;s proposed use of customer data for purposes other than those for which it was originally gathered. Would a company&rsquo;s use of personal information (such as employee information or customer information) for fairly mundane business purposes (such as off-shore data storage or targeted marketing campaigns) fall within prohibited uses of &lsquo;secret&rsquo; information under these penal provisions?<br /><br />Other laws restrict the use of personal data in certain circumstances. By way of example, the UAE Medical Liability Law (Federal Law No. 10 of 2008) prohibits a doctor from disclosing the secrets of the patient that the doctor becomes aware of in the course of practice, either if the patient trusted him with the secret or if the doctor became aware of the secret in the course of practice.<br /><br />We recently conducted a review of the situation in other GCC countries and essentially confirmed that privacy is protected in these other countries in much the same way as in the UAE. Laws designed primarily to protect privacy do not typically exist as laws in their own right. Provisions relating to protection of privacy may be found in the context of other laws, including respective penal codes and laws relating to specific matters such as regulation of conduct of medical practitioners, credit disclosure and unfair business practices.<br /><br /><strong>Data protection</strong><br /><br />Both the Dubai International Financial Centre and the Qatar Financial Centre have their own data protection specific laws or regulations. These legal provisions are generally consistent with data protection laws from other developed jurisdictions (specifically, the EU Data Protection Directive 95/46/EC and the UK Data Protection Act 1998). They apply to specific types of personal information that can relate to identifiable individuals, and set out obligations requiring that personal data be processed fairly, lawfully, securely and for a specified and legitimate purpose. They also contain restrictions on data transfer from within the respective Financial Centres to places outside those Financial Centres. The most significant point to note about the respective data protection provisions of these Financial Centres is that they are applicable only to activities within those Financial Centres &ndash; or transfers from those Financial Centres to places outside the Financial Centres.&nbsp;<br /><br />In contrast, Oman and Qatar both have laws relating to e-Commerce which contain provisions relevant to data protection. Oman&rsquo;s Electronic Transactions Law (Royal Decree 69/2008) and Qatar&rsquo;s Electronic Commerce and Transactions Law (Law No. 16 of 2010) are both based largely on the UN Model Laws relating to e-commerce and electronic signatures - but the laws as enacted in both countries go beyond these to include specific provisions relating to data protection.&nbsp;&nbsp;&nbsp;<br />Specific data protection regimes appear to be common in respect of telecommunications service providers. By way of example, Qatar&rsquo;s Telecommunications Law (No. 34 of 2006) requires telecommunications service providers to operate their telecommunications networks and related systems with due regard for the privacy rights of their customers, and requires telecommunications service providers to be responsible to protect any customer data in their custody and to refrain from collecting, using, retaining or publishing any customer information unless with the customer&rsquo;s consent or as permitted by law. Additionally, service providers must ensure that all the information submitted is accurate, complete and valid for use (and correct or remove data upon the customer&rsquo;s request).&nbsp;<br /><br />Similar provisions (although with varying degree of detail) apply to telecommunications service providers licensed by the telecommunications regulatory authorities in other GCC countries. The UAE&rsquo;s Telecommunications Regulatory Authority has issued the Privacy of Consumer Information Policy.&nbsp; Oman&rsquo;s Telecommunications Regulatory Authority has issued Resolution No. 113/2009 issuing Regulations on Protection of the Confidentiality and Privacy of Beneficiary Data.&nbsp;&nbsp; Thus, telecommunications service providers should be aware that special data protection regimes may apply to their activities, even if there may be no data protection laws of general application.<br /><br /><strong>Consumer protection and spam&nbsp;</strong><br /><br />The next topic ties in with the issue of privacy and data protection in the sense that personal contact details, such as mobile numbers and email addresses, may be disclosed by customers in the context of procuring goods and services, and then used subsequently for electronic marketing purposes. Many people find this type of marketing to be invasive of their privacy, and prefer to receive it only if they have &lsquo;opted-in&rsquo;.<br /><br />In some countries in the region there are general prohibitions on this type of activity. By way of example, the consumer protection provisions of Qatar&rsquo;s Electronic Commerce Law restricts the ability of e-commerce service providers (not necessarily telecommunications providers) to be involved in providing unsolicited marketing communications, and requires consumers to be able to opt-out from the receipt of such communications.&nbsp;<br /><br />In July 2010, the UAE Telecommunications Regulatory issued a specific policy on unsolicited marketing communications. Under this policy, licensed telecommunications providers in the UAE are required to minimize spam and take all reasonable steps to ensure that spam is not being sent over their networks. If a licensee (ie. a telecommunications provider) fails to take all practical steps to prevent spam &lsquo;with a UAE link&rsquo; (which includes spam originating both inside and outside the UAE) from being sent over the licensee&rsquo;s network, then the regulator can take action against the licensee. The policy also prohibits licensees from being involved in &lsquo;address harvesting&rsquo;, and it requires them to implement &lsquo;opt-in&rsquo; consent processes for all electronic marketing provided to customers. Additionally, by way of an annex to the policy, the UAE TRA has provided similar restrictions specifically in respect of SMS spam sent via mobile phones.&nbsp;<br /><br /><strong>Cloud computing</strong><br /><br />The term &ldquo;cloud computing&rdquo; describes a broad range of remote access computing services, generally involving situations in which users have access to applications and data storage services on demand and delivered over an external network. This basically involves the use of software and/or data storage space provided by someone else &ndash; allowing for savings on things such as licensing software or buying data storage hardware.<br /><br />Some of the key privacy and data protection considerations in a cloud computing environment are:</p>\r\n<ul>\r\n<li>Data security &ndash; The cloud user will have its own data security and access management policies.&nbsp; The cloud provider&rsquo;s policies should, at a minimum, be compliant with the cloud user&rsquo;s policies.</li>\r\n<li>Data location &ndash; It is necessary to consider the impact of the various laws governing privacy and data protection on the collection and transfer of data to the cloud provider, and the movement of that data across different jurisdictions as part of the provision of the cloud service.&nbsp;</li>\r\n<li>Data retention obligations &ndash; Different jurisdictions have different commercial record retention obligations. If data storage obligations are outsourced to a cloud provider in a different country, it will be necessary to ensure that, at a minimum, the cloud provider complies with document retention policies applicable to the user of cloud services.</li>\r\n</ul>\r\n<p>Corporate users of cloud services may place responsibility for direct control of critical data and applications in the hands of third parties.&nbsp; If there is an outage or a security breach, the user could be exposed to claims from its own customers (and potential reputation damage) even though the fault was on the part of the cloud provider.&nbsp; Similarly, failure on the part of the cloud provider (eg. with regard to compliance in respect of data privacy) could lead to regulatory non-compliance on the part of the cloud user. Cloud users should conduct thorough due diligence of the provider they are considering and in particular focus on the privacy and security levels of the services to be offered.&nbsp;<br /><br />Al Tamimi &amp; Company&rsquo;s Technology, Media &amp; Telecommunications team regularly advises on data protection matters in the Middle East. For further information, please contact David Yates (<a href=\"mailto:d.yates@tamimi.com\">d.yates@tamimi.com</a>) or Nick O&rsquo;Connell (<a href=\"mailto:n.oconnell@tamimi.com\">n.oconnell@tamimi.com</a>).</p>'),
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(82133, 4481, 'content', '<p>Being mindful of the time frame stipulated by the Insurance Regulator (United Arab Emirates Insurance Authority) as the ultimate deadline for insurance companies to comply with the above mentioned law, I thought that the topic of this article warranted prompt attention.<br /><br />Pursuant to the Federal Law No. 6 of 2007 concerning Establishment of The Insurance Authority and Organization of its Operations, insurance companies that were established and existed before the issuance of said law; which are carrying out the activities of life insurance and funds accumulation operations together with the property and liability insurances; shall reconcile their position so as not to carry out a combination of these two types of insurance activities, as the said law&nbsp; prohibits an insurance company from practicing both types of insurance activities.<br /><br />Article 25(1) of the said law states that:<br /><br />1.&nbsp;The company shall not carry out life assurance and funds accumulation operations together with the operations of properties and life liability insurances.</p>\r\n<p>2.&nbsp;The existing companies engaged in the two types of insurance as provided for in Para (1) of the Article herein shall adjust their situations within five years as from date of enforcing the law herein. However, the said period may be extended by resolution of the Cabinet.</p>\r\n<p>3.&nbsp;The existing companies engaged in the two types of insurance as provided for in Para (1) of the law herein upon enforcing the provisions of the law herein shall abide by the directives issued by the Board organizing the operations of each of these two types of insurances.&rdquo;<br /><br />Article 25(2) provides a five year grace period (from the date the statute entered into force) for all existing insurance companies to comply with the then new formal requirements of &ldquo;permissible&rdquo; activities.<br /><br />As the said law entered into force on 28 August 2007, the five year grace period expires on 28 August 2012.<br /><br />For those who have already initiated steps in order to comply and those who have yet to commence the process of compliance, if any assistance is required, Al Tamimi &amp; Company have the expertise and are happy to provide sound and practical assistance towards full regulatory compliance before the fast approaching dead</p>'),
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(82137, 4481, 'content_description', 'Being mindful of the time frame stipulated by the Insurance Regulator (United Arab Emirates Insurance Authority) as the ultimate deadline for insurance companies to comply with the above mentioned law, I thought that the topic of this article warranted prompt attention.'),
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(82139, 4481, 'pageSummary', 'Being mindful of the time frame stipulated by the Insurance Regulator (United Arab Emirates Insurance Authority) as the ultimate deadline for insurance companies to comply with the above mentioned law, I thought that the topic of this article warranted prompt attention.'),
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(82155, 4481, '_yoast_wpseo_metadesc', 'Being mindful of the time frame stipulated by the Insurance Regulator (United Arab Emirates Insurance Authority) as the ultimate deadline for insurance companies to comply with the above mentioned law, I thought that the topic of this article warranted prompt attention.'),
(82156, 4482, 'content', '<p>1.&nbsp;Iraqi public companies;<br />2.&nbsp;Iraqi joint stock and joint venture companies; and<br />3.&nbsp;Foreign insurance companies or subsidiaries registered in Iraq.<br /><br />Issuance of a license to conduct insurance services<br /><br />According to the law, granting a license to conduct insurance services requires the following:<br /><br />1.&nbsp;A copy of the insurer\'s Memorandum of Association and its rules of procedure;<br />2.&nbsp;Type of insurance<br /><br />a.&nbsp;Life insurance - this includes all the insurance which involves human life (or the danger related to human life), temporary insurance as well as postponed insurance;<br />b.&nbsp;Personal injury insurance - this includes the payment of fixed amounts on a regular basis to ensure the insured is covered due an external accident occurs causing the death or disability of the aforementioned; and<br />c.&nbsp;Health insurance - this includes providing specific benefits due to the disability of the insured caused by retaining a particular disease.&nbsp; Further, the Law provides that this shall include the expenses of operations needed because of retaining this disease.<br /><br />3.&nbsp;Branches of insurance<br /><br />There are several branches of insurance available for the use of the public.&nbsp; These include the following:<br />a.&nbsp;Maritime and aviation insurance (maritime and aviation transports both locally and internationally).&nbsp; This includes the mode of transportation as well as money and goods transported, such as the transportation fees as well as ship and plane bodies;<br />b.&nbsp;Insurance against fires;<br />c.&nbsp;Car insurance;<br />d.&nbsp;Engineering insurance - this includes damage to civil engineering projects during implementation, as well as any damages incurred by the machinery and equipment.<br />e.&nbsp;Agricultural insurance;<br />f.&nbsp;Insurance against accidents - this includes the insurance of any accidents not mentioned in the insurance against theft, insurance against fires and any other types of insurancee. <br /><br />It is required that the applying branch of the foreign company should not apply to perform a type of insurance different to that exercised by the parent company; and<br /><br />4.&nbsp;Estimated amount of capital paid.<br /><br /><strong>Conclusion</strong><br /><br />There is room for expansion in the insurance industry in Iraq and within the framework and guidelines provided for by the aforementioned Law.</p>'),
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(82160, 4482, 'content_description', 'By implementing the Insurance Regulation Law no. 10 of 2005 (the \"Law\"), the Iraqi government has given the following entities the right to conduct insurance services:'),
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(82162, 4482, 'pageSummary', 'By implementing the Insurance Regulation Law no. 10 of 2005 (the \"Law\"), the Iraqi government has given the following entities the right to conduct insurance services:'),
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(82174, 4482, '_yoast_wpseo_metadesc', 'By implementing the Insurance Regulation Law no. 10 of 2005 (the \"Law\"), the Iraqi government has given the following entities the right to conduct insurance services:'),
(82175, 4483, 'content', '<p>The amendments were made to certain articles under Chapter 8 which deals with the following sections: (i) Types of Investment; (ii) Requirements of Investment Fund Incorporation; (iii) Articles of Association of the Fund; (iv) the Issuance Memorandum; (v) Investment Funds Incorporated outside Kuwait; (vi) the Obligations of Investment Fund Manager; (vii) Rules of Investment; (viii) Financial Statements; (ix) CMA power to Request Information; and (x) Cancelation of License (the &ldquo;Amendments&rdquo;).<br /><br />The Resolution also added two more articles under Chapter 8 which deals with Investment Fund Advisor and the Safekeeping of Investment Fund Assets.<br /><br />Under the Types of Investment section, Article 294 was amended by adding the following Paragraph to the 2 forms of the Investment Fund.<br /><br />The investment fund and according to the nature of its activity, must take one of the following forms:<br /><br />A) Securities Investment Fund.<br />B) Real Estate Investment Fund.<br />C) Cash Fund.<br />D) Debt Instruments Fund.<br />E) Private Ownership Fund.<br />F) Holding Fund<br />Or any other type &ndash; approved by the CMA.<br /><br />Article 295 of the Types of Investment, was amended by adding the following exception to the payment of units&rsquo; value upon subscription, by allowing for the Real Estate Investment Funds and the Private Ownership Funds to pay the subscription value in installments as per the articles of association of the Fund. The amendment sets the minimum investment fund capital to be not less than KD 5 million or its equivalent in other currencies.<br /><br />Under the Requirements of Investment Fund Incorporation section, a paragraph was added to Article 300, stating that the fund manager&rsquo;s participation ratio in the fund should not be less than 5% of the fund capital, and is not allowed to dispose of the subscribed ratio so long the fund is existent. Further, the certificates for this ratio shall be kept with the Fund Trustee.<br />Moreover, Article 301 under the Requirements of Investment Fund Incorporation, added that after a lapse of 3 months from the issue date of the license and the minimum limit of the fund&rsquo;s capital is not covered, then the fund manager is allowed to request from the CMA for similar period and, the CMA shall study the request and finalize it within ten (10) working days.<br /><br />For the Articles of Association of the Fund section, Article 306 has been amended by adding the following information to the necessary information that shall help the investors on taking a sound and well-studies decision for the proposed investment:<br /><br />1- Form and type of the Fund.<br />2- Name and address of the Fund manager.<br />3- Investment Controller and Fund Trustee.<br />4- The Fund period.<br />5- The Fund capital and its way of payment.<br />6- A statement stating that the Fund Manager is licensed by the CMA.<br /><br />Under the Issuance Memorandum section, Article 308 has been amended by adding to the necessary information of the Issuance Memorandum to include the short description of not only the Fund Controller but also a short description on the Fund Manager and the Trustee, as per the form approved by the CMA.<br /><br />Article 311, under the Investment Funds Incorporated outside Kuwait section, has been amended to allow to the CMA to cancel the marketing permission for an Investment Fund established outside of the State of Kuwait, in addition to the case when the Fund Manager or Investment Controller breaches any of provisions in the Law No. (7/2010) and this bylaw, or provides the CMA with an incorrect, inaccurate or misleading information. Such cancellation of the marketing permission includes the breach stated above made by the Trustee as well.<br /><br />Under the Article 312 of the Obligations of Investment Fund Manager section, the said Article has been amended to include in clause 6, that the Investment Fund Manager shall ensure the existence of a system sufficient for settlement of the dealings entered in the accounting system with the cash and securities accounts opened in the Investment Fund name with the Trustee.<br /><br />Article 346 of the Investment Rules section has been amended where the Investment Fund must invest a minimum of 75% of the net value of its assets &ndash; in realization of its basic investment objectives, instead of investing of 75% of the Investment Fund Capital as it was prior to the amendments.<br /><br />Article 347 of the Investment Rules section has been amended to allow the CMA to lay down the investment rules for each type of the funds &ndash; under a decision &ndash; issued from the Board of Commissioners of the CMA.<br /><br />Under Article 350 of the Financial Statements section, the Investment Fund Manager must submit to the CMA the audited statements of the financial year within a maximum period of thirty (30) working days from the end of the financial year of the Fund. Prior to the amendments, it was 30 days without specifying working days.<br /><br />Under Article 356 of the CMA power to Request Information section, the capacity of the Trustee was added to the Fund Manager and the Investment Controller that must provide all of the information, documents and details which are required by the CMA.<br /><br />Under Article 360 of the Cancelation of License section, the amendments made to the CMA must notify, in addition to the Fund Manager and/or Investment Controller, the CMA must also notify the Trustee, in writing, that it intends to cancel the license of Fund and the reasons justifying the same. The Fund Manager or Investment Controller and/or the Trustee, shall also submit undertakings within fifteen (15) days as of the date of notice &ndash; acceptable to the CMA, for avoidance of cancellation of the Fund&rsquo;s license.<br /><br />In addition to the Amendments stated above, the Resolution added two more Articles; one Article was added to Articles 320 of the Investment Fund Advisor as follows:<br /><br />The Investment Controller must abide by the following matters:<br /><br />To make sure the Fund&rsquo;s assets are invested and managed as per the provisions of law No. (7/2010) and its bylaws ,decisions and instructions of the CMA regulatory thereof and further, are invested within limits of the methods and policies specified in the Articles of Association of the Fund, decisions and instructions of the Fund&rsquo;s Board of Directors.<br /><br />The Investment Controller should inform the CMA and the Board of Directors of the Fund of any violations occurring by the Fund Manager.<br /><br />Moreover, the Investment Controller shall evaluate shares or investment units in the method and on the schedule times fixed in the Fund&rsquo;s Articles of Association.<br /><br />Another Article was added to Article 339 of the Safekeeping of Investment Fund Assets section as follows:<br /><br />The Trustee must abide by the following matters:</p>\r\n<ul>\r\n<li>To keep the Fund&rsquo;s money and assets in accounts -separate and independent from its accounts or accounts of third parties and must be under the watch of a key person.</li>\r\n<li>To receive, keep and deposit the cash profits and any other distributions arising from the Fund activity.</li>\r\n<li>To inform the Fund Manager of any offers or rights caused by the Fund&rsquo;s assets and send any notices he receives within the period prescribed for it.</li>\r\n<li>To execute the Fund Manager&rsquo;s instructions relating to the scope of work of the Trustee.</li>\r\n</ul>\r\n<p>In our opinion, the Amendments above were essential, particularly the changes made to Article 347 of the Rules of Investment, by allowing the Investment Fund to invest in more than 10% of their net value of investment fund assets in the field of securities.</p>'),
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(82094, 4478, 'content', '<p><strong>Summary<br /><br /></strong>The Insurance company (the Appellant) sought recourse against the Respondent (an oil company) for the value of compensation paid by it to the insured on the basis that the cause of the damage to the Respondent&rsquo;s property (and its neighbours) was caused by things under the Respondent&rsquo;s control.&nbsp; In this case, the Insurance Company&rsquo;s claim was rejected by the Federal Court of First Instance. The decision was confirmed by the Federal Court of Appeal and the Federal Supreme Court.&nbsp;<br /><br />The Court of First Instance argued that if the cause is unknown and the investigation reports can not confirm the cause, liability of the custodian of the thing will be avoided only if he proves that the occurrence of the damage occurred through a cause that could not have been prevented (Article 316 of the Civil Code).<br /><br /><strong>Article 316 provides that:</strong><br /><br />&ldquo;Any person who has things under his control which require special care in order to prevent their causing harm, or mechanical equipment, shall be liable for any harm done by such things or equipment, save to the extent that harm could not have been averted.&nbsp; The above is without prejudice to any special provisions laid down in this regard.&rdquo;<br /><br />It was considered appropriate to expressly exclude damage that could not have been averted because the law imposes an obligation only in respect of what can be done. In this case, the Court of First Instance recognised that the fire started in the area of the oil company&rsquo;s premises (its warehouse) but the source of that fire was unknown. The oil company&rsquo;s warehouse and storage of oil can not be considered a &lsquo;thing,&rsquo; the custodianship of which justifies the requirement of any special care.&nbsp; The court believed that the oil, in its natural state, did not impose a danger and confirmed that the causal connection between the harm suffered by the Appellant&rsquo;s insured and the thing in the custodianship of the defendant, could not be established.<br /><br />In addition, a finding of fact as to the causal connection between the default and the harm, or a finding that there was no such action, and the assessment of the elements of harm giving rise to compensation, are matters of fact within the independent discretion of the trial court and should not be raised before the Supreme Court.<br /><br /><strong>Court of First Instance</strong><br /><br />The Court of First Instance dismissed the Appellent&rsquo;s case and found the Respondent not liable for damages (as one liable for things) under Article 316 of the Civil Code and not liable in tort under Article 282 of the Civil Code because there was no proof of its fault or its liability under Article 283 of the Civil Code as a direct actor as there was no element of deliberateness or wrongdoing in order for it to give rise to liability.<br /><br /><strong>Court of Appeal</strong><br /><br />The Court of Appeal confirmed the Court of First Instance&rsquo;s decision and dismissed the appeal.<br /><br /><strong>Supreme Court</strong><br /><br />The Supreme Court confirmed the Court of Appeal&rsquo;s decision.&nbsp; The effect of Article 316 of the Civil Code is that if damage is caused, and it arises out of a thing the custodianship of which requires special care to prevent it from doing damage, and the aggrieved party demonstrates that there is a causal connection between the harm suffered by him and the thing in the custodianship of the defendant, then the liability of the latter will be made out, not on the basis of presumed fault on his part, but on the basis of the rule that the burden accompanies the benefit.&nbsp; In this case, it was not established that the oil company&rsquo;s warehouse played a positive part in the causing of the damage.&nbsp; In addition, as mentioned in the summary above, a finding of fact as to the causal connection between the default and the harm, or a finding that there was no such action, and the assessment of the elements of harm giving rise to compensation, are matters of fact within the independent discretion of the trial court and should not be raised before the Supreme Court. Accordingly, the Supreme Court dismissed the case.</p>'),
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(82104, 4478, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Zafer Oghli'),
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(82035, 4475, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Fiona Campbell'),
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(82048, 4476, 'content', '<p>The following judgment rendered by the court of first instance of Dubai gives us an insight to this modern legal approach and its reasoning and justifications.<br /><br /><strong>BACKGROUND<br /></strong><br />The case concerned a businessman that owned a credit facility company which had an agreement with a well known Bank to act as its agent abroad to grant credit facilities. Such bank is a joint stock company incorporated in the Emirate of Dubai in which the government contributes with 30% of its capital.<br /><br />That previously mentioned businessman conspired with others to defraud the bank by establishing a number of companies and forging false documents and invoices of bogus transactions to present them to the bank as though they were genuine operations requiring finance.<br /><br />Moreover, the offenders conspired with two employees of the bank to assist their conspiracy by facilitating the execution of the fraudulent transactions. Those employees illegally exploited their positions as manager and deputy manager of the financial department at the bank to approve such transactions and leverage the credit limit.<br /><br />Accordingly, the offenders presented the fraudulent transactions to the financial department of the bank attached with the forged documents to support their validity in an attempt to intentionally deceive the bank to produce funds; along with the aid of the conspiring employees of the bank to approve such false transactions and pass them before other departments of the bank without verification according to the principles of their jobs which expects them to investigate the validity of transactions requiring finance and thoroughly review its documents. In other words, they were required to ask for documents approving the receipt and acceptance of the goods by the purchaser and the relevant bill of ladings. Alternately, the conspiring employees made recommendations and annotations that would give confidence to such false transactions and facilitated the approval of the documents although they were fully aware that the transactions were false.<br /><br />Finally, the criminal conspiracy led to the unlawful seizure of USD 501 Million (equivalent to AED 1,841,000,000) from the defrauded bank resulting in substantial loss to such bank and its interests. Subsequently, the offenders were accused of committing the crimes of facilitating the fraudulent embezzlement, intentional infliction of damage of public funds and generating profits.<br /><br />Accordingly, the offenders were found guilty and were convicted and sentenced by the competent court to imprisonment for a period of 10 years, also to jointly pay the unlawfully embezzled funds and to restitute the same amount. In addition, all the convicts shall not be able to serve in public positions and shall jointly pay the damaged bank temporary indemnity for its losses.<br /><br /><strong>THE COURT&rsquo;S APPROACH</strong><br /><br />The court settled its ruling on Article 5 of the Emirati Federal Penal Law that sets out the legal definition of public employees according to Emirati Penal Law and emphasizes in its last paragraph that even though some employees are not expressly mentioned in Article 5 as public employees, they shall be legally considered to be entrusted with a public service whenever they undertake work related to any public service through proper assignment to such position which is given by competent authority designated by established laws and regulations to give such assignments in relation to that assigned position.<br /><br />Moreover, the court acknowledged that funds owned, in whole or in part, to public utility institutions and associations are deemed public funds. However, this distinct legal status attributed to funds or employees affords stricter punishments to criminal offences committed against those funds or by those employees due to their relatively high national significance and to ensure that governmental bodies perform their desired roles effectively and efficiently. To that end, the court decided that the contribution of the government to the capital of the defrauded bank renders the bank a public utility body and the private employees of such are entrusted with public services.<br /><br />Al Tamimi &amp; Company on behalf of the claimant of civil damages argued that by virtue of the bank&rsquo;s shareholdings, its employees are considered to be entrusted with public service and thus addressees of Article 5 the Federal Penal Law. Hence, we requested the application of such article before the court, while the defense attorneys assured the absence of grounds for its application. At last, the court issued its abovementioned judgment asserting that the governmental contribution to capital share of private entities attributes a public quality upon its funds and employees.<br /><br />Furthermore, the court applied another decisive and significant article of the Federal Penal Law which is Article 230 that illustrates that in certain crimes, the offender shall be punished by restitution and also by a fine equivalent to the fruits of the committed criminal offence. Consequently, the court ordered the convicts to jointly restitute the fraudulently seized funds to the defrauded bank as compensation for the damages inflicted by their unlawful actions, and also to pay the same amount as fines to the treasury of the state.<br /><br /><strong>OUTCOME</strong><br /><br />Although the employees of private entities comply with the Emirati Labor Law that governs their work and business in relation to their day to day civil, commercial and employment rights and obligations, it ought to be noted that the contribution of the government in the capital share of any of those private entities confers a public quality on its funds and employees from a corporate criminal perspective. In other words, the employees of private entities are most likely to be criminally prosecuted as entrusted with public funds and services whenever they are employed by a private entity with governmental contribution.<br /><br />The previous court approach illustrates the measures dictated by Emirati law to protect its financial system and the available safeguards for investment in order to ultimately create and sustain a sound environment for whoever is willing to invest with no leniency for any probable offences.<br /><br />In that sense the Penal code addresses a wide range of unlawful procurements of assets whether related to the public or private sectors, although it is noted that the law affords a higher level of protection to public offences to deter offenders from committing offences against such public funds due to its significance and to give investors tempting incentives to invest their monies in a safe atmosphere.<br /><br />Finally, the Emirati legal system addresses anticorruption and anti-money laundering crimes. Also, it criminalizes a wide range of white collar crimes, including among others, corporate fraud, bribery, embezzlement, breach of trust and forgery.</p>'),
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(82054, 4476, 'pageSummary', 'The legal status of a great threshold of private employees in the UAE has changed dramatically when courts started declaring such employees as entrusted with public services according to certain conditions.'),
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(82075, 4477, 'content', '<p><strong>Facts of the case:</strong><br /><br />The Claimant in this case brought court proceedings against the Defendant, seeking an order from the Court requiring the Defendant to pay the sum of AED 6,620,000 plus the legal interest accrued as of 6/4/1996 until payment is made in full.<br /><br />The parties had entered into contracts, pursuant to which the Defendant was required to pay the Claimant commission in respect of services provided by the Claimant.<br /><br />Further, the Claimant argued that the Defendant had terminated the last contract without justification, causing the Claimant to incur financial and moral losses estimated at AED 500, 000.<br /><br />The Defendant argued that the Court did not have jurisdiction due to the existence of an arbitration clause. The Claimant filed a precautionary application requesting that the case be transferred to arbitration and that it is supervised by the court.<br /><br />The lower court issued a judgment confirming that it did not have jurisdiction due to the existence of the arbitration clause and accordingly, the Claimant&rsquo;s objection on jurisdictional points was dismissed.<br /><br />The Claimant appealed this judgment; however, the Court of Appeal issued a judgment confirming the lower court&rsquo;s judgment.<br /><br /><strong>The Claimant appealed to the Court of Cassation.<br /><br /></strong>The Claimant&rsquo;s appeal to the Court of Cassation was based on five grounds, all of which, save for the fourth ground, were based on the premise that the lower court incorrectly applied the law and the discovery of evidence was unsound.&nbsp;<br /><br />The evidence submitted to the courts included correspondence between the parties in respect of the appointment of an arbitrator. The Defendant had replied to a letter sent by the Claimant concerning the arbitration which stated that there was no reason to refer the matter to arbitration. The lower courts did not treat this as a waiver of the arbitration clause.<br /><br />Further, the Claimant argued that the arbitration clause was null and void because it did not specify the seat of arbitration, competent court, and its subject matter as per the provisions of Article 203(3) of the Civil Procedure Code. The Claimant also argued that the rules set out in India&rsquo;s Arbitration Act of 1940 or the Rules of the International Chamber of Commerce (ICC) could not remedy these defects.<br /><br /><strong>Decision:</strong><br /><br /><strong>The Claimant&rsquo;s appeal was dismissed on the basis that:<br /><br /></strong>1.&nbsp;It was necessary for the courts to establish that the option to arbitrate had been waived. This is a matter of fact that is decided solely by the trial court when such court interprets the said agreements based on the intention of the contracting parties. Such interpretation shall be made in accordance with the explicit meaning of the terms and expressions provided therein and the decision of the trial court shall be issued in light of reasonable findings.<br /><br />2.&nbsp;The trial court has the power to determine the implicit waiver of the arbitration clause without being scrutinized by the higher courts provided there is no ambiguity with respect to the interpretation of the contract provisions. It was established that the Defendant replied to the notice (which was served by the Claimant and which concerned the appointment of an arbitrator pursuant to the terms and conditions of the agreements made): &ldquo;Our client denies in particular the claim made by your client of dues totalling AED 6.12 million, any portion thereof or any other amount &hellip; Therefore, there is no reason to referr the matter to arbitration as suggested by you.&rdquo; It was held that this did not constitute a waiver of the right to arbitrate, the statement that: &ldquo;there is no reason to refer the matter to arbitration&rdquo; did not constitute a waiver of arbitration. Upon review of the letter, the Court determined that the Defendant instead meant that there was no legal basis for the amount claimed by the Claimant because the Claimant had failed to perform its duties under the agreements. Accordingly, the letter meant that the Defendant rejected the amounts requested but not waived his right to arbitration. This is a reasonable conclusion based on the documents and the explicit meaning of the terms and expressions included in the Defendant&rsquo;s letter.<br /><br />3.&nbsp;There is nothing in the Civil Procedure Code which invalidates an arbitration agreement if the seat of arbitration is not agreed upon, as this can be established during the legal proceedings. Challenging the appealed judgment in light of the reasons referred to is therefore baseless.<br /><br />4.&nbsp;The Claimant argued that the three agreements between the parties were entered into outside of the UAE and that the agreements stipulated that in circumstances of dispute, matters should be referred to arbitration by virtue of the Rules of the International Chamber of Commerce (ICC) or India&rsquo;s Arbitration Act of 1940. However, the Court of Cassation held that Article 204 of the Civil Procedure Code, relating to the Court&rsquo;s ability to appoint arbitrators still applied. Further, Article 98 of the Civil Procedure Code also applied (providing that a party may amend its claim after a case has been filed). The Claimant\'s application to appoint arbitrators was not filed in accordance with normal procedures rather it was contained in the Claimant&rsquo;s closing memo before the Court of First Instance. Accordingly, the appeal was denied.</p>'),
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(82014, 4474, 'content_description', 'Abu Dhabi Law No. (20) of 2006 (the “Landlord and Tenant Law”) as amended by Laws No. (6) of 2009 and No. (4) of 2010 (“Law No. (4)”) and Executive Council Resolutions No. (56) of 2010 and No. (25) of 2011 (“Resolution No. (25)”) regulates most landlord and tenant relationships in the Emirate of Abu Dhabi except those relating to:'),
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(82016, 4474, 'pageSummary', 'Abu Dhabi Law No. (20) of 2006 (the “Landlord and Tenant Law”) as amended by Laws No. (6) of 2009 and No. (4) of 2010 (“Law No. (4)”) and Executive Council Resolutions No. (56) of 2010 and No. (25) of 2011 (“Resolution No. (25)”) regulates most landlord and tenant relationships in the Emirate of Abu Dhabi except those relating to:'),
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(82024, 4474, '_yoast_wpseo_metadesc', 'Abu Dhabi Law No. (20) of 2006 (the “Landlord and Tenant Law”) as amended by Laws No. (6) of 2009 and No. (4) of 2010 (“Law No. (4)”) and Executive Council Resolutions No. (56) of 2010 and No. (25) of 2011 (“Resolution No. (25)”) regulates most landlord and tenant relationships in the Emirate of Abu Dhabi except those relating to:');
