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(93141, 5060, 'content', 'December 2014 - January 2015\r\n\r\n<hr />\r\n\r\nAdditionally, this article sets out an overview of the media and advertising laws and regulations in Kuwait that are applicable to the publishing and distribution of a magazine, as well as some of the legal provisions that might make one think twice before carrying out the same.\r\n\r\nThe Kuwait Constitution (“Constitution”) guarantees freedom of expression, within the limits of the law.  Article 36 of the Constitution states that, “[f]reedom of opinion and scientific research shall be guaranteed.  Every person shall have the right to express and propagate his opinion verbally, in writing or otherwise, in accordance with the conditions and procedures specified by law.”  Article 37 makes further guarantees for the press, in part stating that “[f]reedom of the press, printing and publishing shall be guaranteed in accordance with the conditions and manner specified by law.”\r\n\r\nNotwithstanding the above, freedom of press, printing and publishing in Kuwait is heavily regulated through its main regulation Law No. 3 of 2006 Regarding Publications and Publishing (“Publications Law”).\r\n\r\nThe Publications Law sets forth certain provisions related to prints, as well as the conditions required for the application for a special printing and publication license (“Special License”) in order to establish a print house or to utilize it, to open a shop for selling or renting prints, publishing and distribution or translation or an office for advertisements and publicity or an art production establishment. The Publications Law further details the conditions that must be satisfied by the license applicant whether he is an individual or a wholly owned Kuwaiti entity.  It is important to note that, as a pre-requisite to obtaining the Special License, the publishing company must first be established and licensed with the Ministry of Commerce and Industry with the business activity of a publishing company.\r\n\r\nAt the outset, an applicant for the Special License must satisfy certain qualifications, including, but not limited to, that the applicant must (i) be a Kuwaiti national with full eligibility, (ii) have good conduct and reputation (no criminal background involving dishonour), (iii) have the requisite educational background and (iv) be the owner or utilize a suitable location for the activity.\r\n\r\nIf the license applicant is an entity, then all of the founders or partners must be Kuwaiti nationals (must be wholly owned Kuwaiti company).  Also, the person who shall be in charge of managing the activity of the Kuwaiti entity must also satisfy the aforementioned conditions related to individuals.\r\n\r\nIf the preconditions outlined above are met, than the following procedures/requirements must be complied with in order to obtain the Special License:\r\n<ul>\r\n 	<li>Prepare and submit a request letter (on the company’s letterhead) addressed to the undersecretary of the Ministry of Information (“MOI”) (“Application Letter”). The Application Letter must include related information about the magazine.</li>\r\n 	<li>Fully complete an additional application form (“Application Form”) for approval to publish the magazine. The Application Form must also be enclosed with additional documentation related to the magazine and the license applicant.</li>\r\n 	<li>Upon submitting the Application Letter and the Application Form along with all of the additional documents, the MOI will issue its preliminary approval and ask the license applicant to submit further documentation, including, but not limited to (i) a letter in which the chief editor is appointed (the chief editor and his/her deputies must meet certain qualifications for approval), (ii) the contract between the license applicant and the printing house and (iii) certification that the license applicant has deposited the amount of KD 25,000 as a monetary guarantee OR an unconditional bank guarantee to the name of the MOI.</li>\r\n 	<li>Upon approval for the Special License, it should also be noted that the Publications Law requires that the typographer submit a written notification to the MOI before assuming printing of any print and to indicate his/her name and address. It is permissible to print, circulate and publish any non-periodic print provided that the names of the typographer, the publisher and the author are stated. The Publications Law also requires that two copies of the print shall be submitted at both the MOI and at the Kuwait National Library before making circulation or publishing the magazine.</li>\r\n</ul>\r\nIt should be noted that the aforementioned requirements for obtaining the Special License also apply to the mere distribution (whether for profit or for free).  In case of importing and distributing the magazine into Kuwait, similar to the requirements for obtaining the Special License discussed above, the importer and distributor of a foreign magazine (a magazine printed outside of Kuwait) must be through a wholly owned Kuwaiti entity its primary company objectives being for the distribution of magazines. Notwithstanding this, the procedure for obtaining prior approval to import magazines is generally less stringent than printing and publishing a magazine in Kuwait.\r\n\r\nPublisher and distributors should make themselves aware of the matters prohibited from being published in any print along with the penalties as covered under the Publishing Law.  Most notably, Article 19 of the Publications Law prohibits meddling in matters related to God, the Holy Quran, the prophets, the noble companions, or wives of the Prophet or persons of the family of the Prophet, by meddling, disdaining, mocking, or criticizing in any means of expression that are stipulated under Article No 29 of the Law No. 31 for the Year 1970 on Amendments of Some of the Provisions of the Penal Law No 16 for the Year 1960. Article 20 of the Publications Law stipulates that no meddling may be made to the person of the Emir of Kuwait by criticism, and that no statement shall be attributed to him, except by a special written permission issued from the Emiri Diwan. Special attention should be made to the further prohibitions related to content for alcohol, cosmetics, weight loss or weight gain medication (unless previously approved by the Ministry of Health), cigarettes, gambling, sexual products and the spread of any pornography or the like in Kuwait, and sexual services.\r\n\r\nThe Publications Law, as well as the Kuwait Penal Code, makes it an offence, with a wide range of various types of punishments and penalties, to publish or distribute content contrary to public morals and good conduct. For instance, penalties can include investigation by the MOI, criminal charges by the Public Prosecution, jail terms, death, fines, bans, penalties imposed on the chief editor or the article writer, or the cancelation of the Special License.'),
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(93158, 5061, 'content', 'December 2014 - January 2015\r\n\r\n<hr />\r\n\r\nThe law regulates the process for commercial registrations at the Ministry of Economy and Commerce (the ‘Ministry’) for persons (whether individuals or juristic) to allow them to carry out commercial activities in Qatar.\r\n\r\nThe registration of companies in Qatar is of great importance. With the exception of particular partnership companies, to acquire an independent legal personality all companies regulated under the Commercial Companies Law must be registered at the commercial registry.\r\n\r\nThe company’s information included in the commercial register functions as a declaration from the Ministry that such information is correct and valid for third parties to rely upon. Therefore, the law provides that any change that affects the company’s activities, changing managers, directors, authorised signatories or shareholders will require a further amendment to the commercial registration. Furthermore, any court decision issued in respect of the company’s status or ability to perform obligations, including, court decisions on termination of managers or invalidity or dissolution of the company’s board of directors (as recently added), should also be notified to the competent authority at the Ministry.\r\n\r\nThe Commercial Registration Law has now been amended by virtue of Law No. 20 of 2014.  The recent amendments introduced a more time-efficient system in terms of accepting or rejecting the applicant’s application and the process of appealing to the Ministry of Economy directly in the event of rejection (under the previous law applications had to be heard by the courts). It further provides for higher penalties in the event of non-compliance with the Commercial Registration Law.\r\n\r\n<strong>Significant amendments under the new Law</strong>\r\n\r\n<strong>a. Application and registration process </strong>\r\n\r\nUnder the new Law, the Commercial Registration Department at the Ministry is required to respond to the applicant’s request for registration on the same day the applicant submits the application, provided it is supported with all relevant documents (which include, among other things, a copy of the  trade name’s approval by the Ministry, a letter from the bank confirming that the minimum capital for the company as required under the Commercial Companies Law has been properly deposited, the articles of association’s approvals and authentication).  The applicant should also pay a registration fee which is determined by the company’s scope of activity.\r\n\r\nIn the event the Ministry rejects the application or does not approve it on the same day, it should provide a reason for its decision. The Law empowers the Minister of Economy and Commerce (as opposed to the competent court before the Law was amended) to accept or reject an appeal of the Ministry’s decision within a period of 15 days following the appeal date. The Minister’s decision in this respect is final.\r\n\r\n<strong>b. Validity of the commercial registration</strong>\r\n\r\nBefore the recent amendment to the Law, a commercial registration could be obtained for a period of between one year and five years. However, under the new Law, a commercial registration can only be valid for one year renewable thirty days before the expiration date noted on the commercial registration. The Ministry has the right to delete a person’s registration if the renewal process is not completed within a 90 day period from the date the relevant person is notified of the requirement to renew the commercial registration. Re-registration is permitted at the discretion of the Ministry, and only after the registration fees have been paid from the date the commercial registration should have been renewed or on its expiry.\r\n\r\n<strong>c.  Branches</strong>\r\n\r\nThe Law, as amended, requires branches incorporated in Qatar to (i) hold the exact name of the principal company without any modification; and (ii) ensure the commercial activities mentioned on the branch’s commercial registration are the same as those activities listed in the incorporation documents of the principal company. The Law further provides that branches are not to be considered as separate legal entities from the principal company.  Operators of branches will have a grace period of six months from the date the Law becomes effective to comply with the Law.\r\n\r\nIt should be noted that Article 3 of Law No. 13 of 2000 (‘Foreign Investment Law’) permits a foreign company to open a branch office in Qatar if the company is awarded a specific contract or project that contributes to the public interest.\r\n\r\n<strong>d. Other amendments under the Law</strong>\r\n\r\nSince the original issuance of this Law in 2005, the Law required every person registered in the commercial registration to write, in Arabic, its commercial name and registration number on the commercial premise and on all commercial correspondence and documents used by that person (Article 6). The amendment to the Law has increased the financial penalty for breaching Article 6 from QAR 10,000 to QAR 50,000. However, unlike the 2005 Law, the amendment does not provide for criminal penalties for breaching the requirement.\r\n\r\nAmendments have also been made to the penalties applicable to a person (i) operating a commercial premise without being registered in the Commercial Registration, (ii) misusing or allowing others to misuse the commercial registration, or (iii) providing the Ministry with false or wrong documents in order to be registered and obtain a commercial registration. Penalties for such breaches can amount to a fine of up to QAR 200,000 and/or six months imprisonment. In addition to these penalties, the competent court may issue an order to suspend the company’s activities for a period not to exceed one year, or to close the business premise or to deregister the company.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThis law appears to have been designed to expedite the registration and renewal procedures in response to demands from the business community. It achieves this in a number of ways, including removing the need to go to court to appeal a decision on registration. Now such applications are heard by the Minister of Economy and Commerce, which will be a more efficient process as the Minister must decide the application within 15 days of receiving it.\r\n\r\nThis Law will become effective on the date it is published in the Official Gazette. Once it is, the persons (individuals and companies) registered in the commercial registration before the date on which the law becomes effective, will have a period of six months to comply with this Law, unless such period is extended by a Ministerial decision. The Ministry of Economy and Commerce will be responsible to ensure the law is implemented in terms of compliance with the Law by both the Ministry and registered persons, to the extent applicable to each.'),
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(93164, 5061, 'pageSummary', 'This article identifies imminent changes to the Qatar Commercial Registration Law No. 25 of 2005.'),
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(93168, 5061, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Seem Maleh'),
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(93177, 5062, 'content', 'December 2014 - January 2015\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">The issues flowing from late completion are: (i) what was the cause; (ii) who was responsible; and (iii) what compensation is due (if any).</p>\r\n<p class=\"MsoNormal\">When pursuing delay claims proof will be needed to demonstrate that:</p>\r\n\r\n<ul>\r\n 	<li>the event actually took place;</li>\r\n 	<li>the event is catered for within the contract;</li>\r\n 	<li>the relevant notices have been issued;</li>\r\n 	<li>the event had a delaying effect on the completion date;<a href=\"#_ftn1\">[1]</a> and</li>\r\n 	<li>a loss was suffered as a result of this delay.</li>\r\n</ul>\r\n<p class=\"MsoNormal\">The above go to demonstrating what is colloquially known as ‘cause and effect’. This article seeks to explain the importance of an as-built programme when trying to resolve delay claims.</p>\r\n<p class=\"MsoNormal\"><strong>What is an as-built programme?</strong></p>\r\n<p class=\"MsoNormal\">A simple definition of an as-built programme may be stated as: “<em>a record of when the various project works were actually undertaken</em>.”<a href=\"#_ftn2\">[2]</a>  A fuller definition may be stated as: ‘… <em>the final [programme] to be completed.  It will evolve through the course of the project as activities are started, progressed and completed as the work is executed.  The last update should complete the as-built [programme] as a high-density record of the sequence in which the works were actually constructed, the resources actually used and the productivity actually achieved</em>.’<a href=\"#_ftn3\">[3]</a></p>\r\n<p class=\"MsoNormal\">The as-built programme will be used to identify the periods and activities that suffered delay during progress and to assist in establishing a project’s critical path.</p>\r\n<p class=\"MsoNormal\">Notwithstanding the parties may be in dispute, which often means they are unable or unwilling to agree upon pretty much anything, the as-built programme should not really be a contentious document because it should be based on agreed facts and constructed from contemporaneous records which were generated (either directly or indirectly) to monitor progress.</p>\r\n<p class=\"MsoNormal\">Whilst they will generally be used for showing the actual progress of work, other useful information can be incorporated into as-built programmes, e.g. milestone dates, important EIs (Engineer’s Instructions), delay notices, delivery and removal of specialist plant/equipment delivery, suspension notices.</p>\r\n<p class=\"MsoNormal\">Ordinarily they are presented in a bar-chart format, but they can be modified to show other important information, e.g. labour resources, volume of work executed.</p>\r\n<p class=\"MsoNormal\"><strong>How is the as-built programme constructed?</strong></p>\r\n<p class=\"MsoNormal\">In its simplest form, an as-built programme may be constructed by a party in-putting start and finish dates to a planned programme which is stored within some type of project management software.</p>\r\n<p class=\"MsoNormal\">Often, the primary source document used to construct an as-built programme will be a contractor’s monthly progress reports and the updated programmes attached thereto.</p>\r\n<p class=\"MsoNormal\">However, it is crucial that this in-putted data is cross-checked with contemporaneous progress records (both primary and secondary). Those experienced with delay claims will know that it is not unknown for some contractors to overstate their progress in monthly progress reports or monthly valuations.</p>\r\n<p class=\"MsoNormal\">The documents used for cross-referencing should be logged into an electronic document management system which has a suitable OCR facility to allow the lawyers and experts to have easy search access to them at a later date in case aspects of the as-built are contested by the other party and also to assist in the preparation of witness statements.</p>\r\n<p class=\"MsoNormal\">It will certainly give a lawyer peace of mind if he or she knows that all the activities on the as-built programme have been verified in terms of start, actual progress in physical terms (or, at least, in percentage terms (constant or intermittent)) and finish dates by contemporaneous records).</p>\r\n<p class=\"MsoNormal\">If the as-built programme is not cross-checked against contemporaneous records then it may not be truly accurate. This will mean that the subsequent research and assessment of delays may be found to be of little use, and this may only come to light either following a review by the other party’s delay expert, or worse still, during cross examination by opposing counsel at an evidentiary hearing, and after the client has incurred significant costs.</p>\r\n<p class=\"MsoNormal\">Much has been written on what types of documents can be used to construct an as-built programme in the context of construction, oil and gas and MEP type projects; suffice to say, an as-built programme that has been properly cross-checked will have a better chance of standing the test of scrutiny by an another delay expert and/or opposing counsel.</p>\r\n<p class=\"MsoNormal\">If adequate documents simply do not exist (which is not uncommon) then this is one area where witness evidence will become crucial. From a lawyer’s perspective, having the delay expert rely as much as possible on contemporaneous documents, as opposed to witness evidence and/or his own subjectivity, reduces the risk of his as-built programme and subsequent delay analysis being undermined.</p>\r\n<p class=\"MsoNormal\">The level of detail that an as-built programme should go to can be problematic. Bigger projects can be expected to have activities that run to tens of thousands and often have different works going on in isolation from one another.<a href=\"#_ftn4\">[4]</a> Ordinarily, the approved baseline programme will probably be used as the basis of constructing an as-built programme. If further levels of detail of individual work activities are required, and the records exist to support such a further detailed analysis, then this can be done once the principal periods of delay have been identified.</p>\r\n<p class=\"MsoNormal\">When constructing an as-built programme careful consideration will need to be given to how the works were actually sequenced and carried out and their timings. In a planned programme activities will often be shown with finish to start logic links, however, life on a construction project is rarely so simple, so the as-built programme will have to carefully consider the actual sequence of activities, e.g. should the start date for concrete work be taken from when the rebar fixing was started or when the formwork was erected; should the finish date for concrete work be when the concrete was poured or the striking of the formwork or when the concrete cured?  What if certain areas of concrete work (e.g. part of a slab) were left to be completed until a later date?  What if the works were carried out intermittently?</p>\r\n<p class=\"MsoNormal\">Whilst it is not usual for an as-built programme to contain the logic links of the activities (hence, it will not usually depict the critical path in itself), the delay expert will use the as-built programme to introduce these logic links so that the critical path; hence, critical delaying events, can be established. This is where the delay expert comes into his own in terms of his knowledge and experience of hard and soft logic of construction sequencing.  Moreover, construction managers who were actually involved with the project and particular work activities will become an invaluable source of evidence in this respect.</p>\r\n<p class=\"MsoNormal\"><strong>Why is the as-built programme important?</strong></p>\r\n<p class=\"MsoNormal\">An as-built programme is important because it depicts what actually happened on site, providing details of individual work activity start and finish dates.  It allows the reader to quickly ascertain when the main delays occurred and to what activities compared to the originally planned programme, which will lead to a more detailed and thorough investigation of what caused these particular delays.</p>\r\n<p class=\"MsoNormal\">However, an as-built programme will not give the causes of, or reasons for, delay or identify why the progress of the works varied from the original intent depicted in the approved baseline programme (if there ever was one).</p>\r\n<p class=\"MsoNormal\">An as-built programme avoids a theoretical delay analysis carried out in the vacuum of reality.  Those familiar with dealing with delay claims will be aware that it is crucial to establish how the actual progress was delayed and not the planned progress.</p>\r\n<p class=\"MsoNormal\">Once the critical causes of delay have been identified the delay expert will then take instruction from its lawyers as to whether these critical delays are excusable. Similarly, quantum experts will take instruction on whether such critical delays are compensable.<a href=\"#_ftn5\">[5]</a></p>\r\n<p class=\"MsoNormal\">Whilst it is common practice to engage delay experts to prove or rebut delay claims, one should not forget that whether a delay occurred is a matter of fact.<a href=\"#_ftn6\">[6]</a>  Whether an event (again a fact) impacted the completion date depends on whether the event affected an activity on the critical path.</p>\r\n<p class=\"MsoNormal\"><strong>Conclusion</strong></p>\r\n<p class=\"MsoNormal\">It is imperative that the delay expert considers the factual matrix as a whole when constructing the as-built programme and carrying out any subsequent delay analysis. It is no use simply relying on what the client says what happened if the contemporaneous documents do not accord with this view.  Similarly, relying on someone else’s as-built programme as the basis of a delay analysis is an extremely high risk strategy and one which most lawyers and delay experts would frown upon. Witness statements should be used to explain the meaning and intent of certain documents (and the phrases contained therein) and plug the gaps of missing documents/information, but they should be carefully drafted so as not to contain inconsistencies with contemporaneous records (indeed, this is what opposing counsel will be hoping to exploit during cross examination).</p>\r\n\r\n<div>\r\n\r\n&nbsp;\r\n\r\n<hr size=\"1\" />\r\n\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[1]</a> Depending on the wording of the contract, it may be that the contractor need only show that the event would likely affect the completion date (which leads to a prospective, as opposed to retrospective, delay analysis).</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[2]</a> Linnet C., Lowsley S. ‘<em>About Time – Delay Analysis in Construction’</em>, RICS Books, 2006, p.55</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[3]</a> Pickavance K., <em>Delay and Disruption in Construction Contracts</em>, Sweet &amp; Maxwell, 4<sup>th</sup> Ed., 2010, para.7-058</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[4]</a> In some of the bigger projects it may be necessary to separate individual work sections and treat their as-built progress in isolation so as not to over complicate matters.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[5]</a> The interpretation of a contract is a matter of law and experts who opine on the law may find themselves in for some awkward questions during their cross-examination.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[6]</a> If the contract refers to a “likely” delay then whether the Works will be critically delayed becomes more subjective and leads to a prospective/theoretical delay analysis.</p>\r\n\r\n</div>\r\n</div>'),
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(93200, 5063, 'content', 'December 2014 - January 2015\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">Located adjacent to Dubai’s Business Bay area, with an envisioned acreage of over 25 million square feet, d3 is poised to attract leaders in the art, fashion and design industry, with a view  to attracting international fashion and design brands and to develop Dubai into a regional hub for the sector.</p>\r\n<p class=\"MsoNormal\">According to Arabian Business newspaper, “d3’s mantra is to be the beating heart of the Middle East’s design scene, a creative community where local designers rub shoulders with global brands. The idea is to nurture local talent in hope that the next global brand will come out of Dubai”.</p>\r\n<p class=\"MsoNormal\">There are currently ten buildings under construction in d3. They are expected to be ready for handing over to occupants by early 2015.Although construction of d3 is yet to be completed, d3 is already accepting numerous applications for registering corporate entities and is already issuing licences.Importantly entities licensed prior to the completion of construction of d3, will be permitted to operate from offices located anywhere in Dubai, until such time construction of d3 facilities is completed and the physical launch of d3 takes place.</p>\r\n<p class=\"MsoNormal\"><strong>Costs to set up in d3:</strong></p>\r\n<p class=\"MsoNormal\">Setting up costs for a Free Zone Limited Liability Company (<strong>”FZ – LLC<a href=\"#_ftn1\">[1]</a>”</strong>) or a branch in the d3 are tabulated below</p>\r\n\r\n<table class=\"MsoTableGrid\" border=\"0\" cellspacing=\"0\" cellpadding=\"0\">\r\n<tbody>\r\n<tr>\r\n<td valign=\"top\" width=\"105\">\r\n<p class=\"MsoNormal\"><strong>Description :</strong></p>\r\n</td>\r\n<td valign=\"top\" width=\"356\">\r\n<p class=\"MsoNormal\"><strong>Fees (in AED):</strong></p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"105\">\r\n<p class=\"MsoNormal\">License Fee:</p>\r\n</td>\r\n<td valign=\"top\" width=\"356\">\r\n<p class=\"MsoNormal\">AED 15,000</p>\r\n<p class=\"MsoNormal\"></p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"105\">\r\n<p class=\"MsoNormal\">Registration:</p>\r\n</td>\r\n<td valign=\"top\" width=\"356\">\r\n<p class=\"MsoNormal\">AED 3,510</p>\r\n<p class=\"MsoNormal\"></p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"105\">\r\n<p class=\"MsoNormal\">Minimum share capital for FZ – LLC:</p>\r\n<p class=\"MsoNormal\"></p>\r\n</td>\r\n<td valign=\"top\" width=\"356\">\r\n<p class=\"MsoNormal\">AED 50,000 - AED 100,000</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"105\">\r\n<p class=\"MsoNormal\">Office space categories:</p>\r\n</td>\r\n<td valign=\"top\" width=\"356\">\r\n<p class=\"MsoNormal\">Courtyard View AED 110 per sqft; Standard View AED 130 per sqft; and Burj View AED 165 per sqft.<a href=\"#_ftn2\">[2]</a></p>\r\n<p class=\"MsoNormal\"></p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"105\">\r\n<p class=\"MsoNormal\">Office deposit:</p>\r\n</td>\r\n<td valign=\"top\" width=\"356\">\r\n<p class=\"MsoNormal\">Equal to three months’ rent, which will be adjusted to the rental of the office, once d3 is ready.</p>\r\n</td>\r\n</tr>\r\n</tbody>\r\n</table>\r\n<p class=\"MsoNormal\"><strong>Migration of Registration:</strong></p>\r\n<p class=\"MsoNormal\">As an incentive to set up in d3, its rules permit the migration into d3 of companies set up in free zones administered by TECOM (Dubai Technology and Media Free Zone) or the DIFC (Dubai International Financial Centre).</p>\r\n<p class=\"MsoNormal\"><strong><em>Dual licensing regime:</em></strong></p>\r\n<p class=\"MsoNormal\">Entities set up in d3 can apply for two licenses enabling them to operate within d3 as well as in the Dubai mainland. Where two licenses are obtained, compliance with the usual licensing and registration requirements for mainland entities will continue to apply (such as obtaining an Ejari certificate, the 5% annual rent payment, having a local service agent (for branches of foreign companies, or 51% UAE ownership for limited liabilities companies in the mainland)).</p>\r\n<p class=\"MsoNormal\"><strong>Food and beverage licenses:</strong></p>\r\n<p class=\"MsoNormal\">d3, on a case by case basis, may permit 100% foreign ownership of restaurant businesses and, similarly to the DIFC, select venues may be awarded with alcohol licences (subject to approval of the relevant government authorities).</p>\r\n<p class=\"MsoNormal\"><strong>Dubai Design and Fashion Council</strong></p>\r\n<p class=\"MsoNormal\">Following the announcement of d3, the Ruler of Dubai issued Decree No. 23 of 2013 establishing the Dubai Design and Fashion Council (“DFC”). Established under the auspices of the Dubai Technology and Media Free Zone Authority (“DTMFZA”), the DFC’s objectives include fostering small and medium sized business growth in the industry, the spurring of job growth within the industry, increasing the sector GDP contribution, the promotion of both regional and UAE design products as well as providing supplementary art, fashion and design tourism. The DFC’s mandate also encompasses the planning and execution of fashion and design industry related events. Pursuant to this decree all government institutions are required to provide full support to the DFC insofar as the provision of data, statistics, research materials, and other information that DFC requires for the performance of its duties. The DFC is another step by the Government of Dubai to increase Dubai’s talent pool and diversify its economy by rendering the fashion and design industry the full support of the government.</p>\r\n<p class=\"MsoNormal\"><strong>Economic considerations:</strong></p>\r\n<p class=\"MsoNormal\">The series of developments in Dubai’s Fashion and Design industry is not entirely coincidental<a href=\"#_ftn3\">[3]</a>:</p>\r\n<p class=\"MsoListParagraphCxSpFirst\">-        Dubai’s retail sector, second only to London’s, is host to more than half of the brands across the globe.</p>\r\n<p class=\"MsoListParagraphCxSpMiddle\">-        The GCC luxury, fashion and interior sector is estimated to have topped AED 54 billion during 2013 with the UAE accounting for AED 23 billion.</p>\r\n<p class=\"MsoListParagraphCxSpLast\">-        The growth of tourism, wide ranging and fast paced construction and infrastructure projects and the EXPO 2020 will spur growth in the sector.</p>\r\n<p class=\"MsoNormal\"><strong><em>Future expectations:</em></strong></p>\r\n<p class=\"MsoNormal\">With the establishment of the DFC and d3’s highly anticipated physical launch within the first half of 2015, the Dubai government has demonstrated its desire to turn Dubai into a hub for fashion and business expectations in the fashion, art and design industries are high.</p>\r\n\r\n<div>\r\n\r\n&nbsp;\r\n\r\n<hr size=\"1\" />\r\n\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[1]</a> An FZ-LLC can be owned by one or more than one shareholder.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[2]</a> This price includes the service charge but excludes DEWA &amp; chiller (a/c) charges which you will have to pay for separately.</p>\r\n\r\n</div>\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[3]</a> http://www.dubaidesigndistrict.com/dubai.php</p>\r\n\r\n</div>\r\n</div>'),
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(92861, 5046, 'content', 'December 2014 - January 2015\r\n\r\n<hr />\r\n\r\nThere are some aspects of the law relating to the arrest of vessels that do not apply to other property, due to some of the distinctive characteristics of ships and maritime law.\r\n\r\n<strong>What are the procedures for arresting a vessel?</strong>\r\n\r\nThe Kuwaiti Maritime Trade Law no. 28 of 1980 and the Kuwaiti Civil &amp; Commercial Pleadings Law no. 38 of 1980 provide the procedures for the precautionary arrest and release of vessels in Kuwait, as follows:-\r\n\r\n<strong>1. The required conditions to arrest a vessel:</strong>\r\n\r\nThe Kuwait Maritime Trade Law requires the existence of certain particular debts to arrest a vessel, which are stipulated in Articles 73, 74 &amp; 75. Precautionary arrest may be made on the ship by an order of the judge pro tempore of the Court of First Instance, and this arrest shall only be made for fulfilment of a marine debt.\r\n\r\nMarine debt means the allegation of a right originating from one of the following reasons:\r\n<ol>\r\n 	<li>Damages caused by the vessel due to collision or other reasons.</li>\r\n 	<li>Loss of lives or physical injuries caused by the vessel or arising from the utilization thereof.</li>\r\n 	<li>Expenses of salvage.</li>\r\n 	<li>Contracts of utilization or charter of the vessel under charter party or else.</li>\r\n 	<li>Contracts concerning the transportation of goods under charter party, bill of lading or else.</li>\r\n 	<li>Shortage or damage of goods and luggage transported by the vessel.</li>\r\n 	<li>Common losses.</li>\r\n 	<li>Tugging of the ship.</li>\r\n 	<li>Pilotage.</li>\r\n 	<li>Supply of products or appliances required for the utilization of the vessel or maintenance of the supplied items.</li>\r\n 	<li>Building, repair or outfitting the vessel and expenses of its existence in the docks.</li>\r\n 	<li>Remunerations of the shipmaster, officers and the crew members.</li>\r\n 	<li>Amounts spent by the shipmaster, shippers, charterers or agents to the account of the vessel or its owner’s account.</li>\r\n 	<li>Dispute in respect of property of the vessel.</li>\r\n 	<li>Dispute in respect of the common property of a vessel, possession, utilization thereof; or of the rights of common proprietors in the amounts resulting from the utilization of the vessel.</li>\r\n 	<li>Marine mortgage.</li>\r\n</ol>\r\nAnyone who qualifies by any of the above, save for the last three (see below) shall have the right to arrest the vessel that is subject to the debt, or any other vessel owned by the debtor (sister ships) if such vessel was owned by him at the time the debt was incurred.\r\n\r\nHowever, arrest may not be made on a vessel other than the vessel subject to the debt, if the debt is one of those provided for in the last three items of the above marine debts. Furthermore, if the debtor who charters the vessel undertakes the marine management thereof, and is solely responsible for a marine debt relating thereto, the creditor may arrest this vessel or any other vessel owned by the charterer; and arrest may not be made on any other vessel owned by the owner by virtue of this marine debt.\r\n\r\n<strong>2. The procedures to arrest a vessel in Kuwait:</strong>\r\n\r\nAccording to the Kuwaiti Civil &amp; Commercial Pleadings Law, the arrest of a vessel should be done by applying to the competent court, presenting two copies of an application including (i) the names of the claimant, defendant and any third party and their domiciles and (ii) relevant documentary evidence sufficient to support a prima facie claim giving rise to a right to arrest. The application should be based on one of the following:-\r\n<ol>\r\n 	<li>An official or ordinary document showing the unconditional debt due to the claimant;</li>\r\n 	<li>Any other written evidence declaring the debt; or</li>\r\n 	<li>An official document such as a judgment.</li>\r\n</ol>\r\nThe judge shall issue his order in writing on one copy of the application on the day following its submission at the latest. The judge is not required to mention the reasons for the decision.\r\n\r\nThe clerks department shall deliver the second copy of the application to the applicant. The order issued in respect of an application shall be considered as nonexistent if it is not submitted for execution within thirty days from the date of its issuance, although such nullity shall not preclude the issuance of a new order.\r\n\r\nA copy of the arrest order shall be delivered to the Master of the vessel as well as the official authorities in the port and to the registration office after the court ensures that the vessel is owned by the debtor.\r\n\r\nThe applicant must, within eight days from the date of the imposition of the arrest, bring a claim before the competent court for the confirmation of his right and the validity of the arrest, in cases in which the applicant fails to file the case within the time limit, the arrest shall be considered as nonexistent.\r\n\r\nThe complaint shall be performed in accordance with the usual procedures of bringing a case and may be brought in pursuance of the original case according to the procedures adopted in bringing the contingent claims. The complaint must be justified, otherwise it shall be void.\r\n\r\nAn applicant whose claim is rejected by the order, and a person against whom the order is issued, have the right to lodge a grievance with the competent court. The grievance shall be judged either by confirmation, amendment or cancellation of the order, and this judgment shall be subject of appeal, in accordance with the approved methods of appeals of judgments.\r\n\r\nThe litigant, against whom the order is issued, instead of complaining to the competent court, shall have the right to challenge this order to the same Judge, and this shall not be precluded by the original case being before the court.\r\n\r\nAlso it should be noted that there is no specific timeframe for the proceedings taken to arrest a vessel, and the court’s decision may be issued on the same day or within the next three days if all the necessary documents for the arrest are available.\r\n\r\nFinally, we should mention that there is no need for security to be posted with the application for arrest.\r\n\r\nThis Article was intended to provide you with a brief overview of the procedures of the precautionary arresting of vessels in Kuwait. In our next article, we will discuss the mechanism for releasing a vessel from arrest.'),
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(92876, 5047, 'content', 'December 2014 - January 2015\r\n\r\n<hr />\r\n\r\nThe subsidiaries involved face insolvency following the uncovering a $125m fraud in Singapore and a $150m risk management loss.\r\n\r\nThis news has created turmoil in the bunkering market and has sent shockwaves through the bunker supply chain affecting physical suppliers and shipowners as a single bunker supply might involve numerous traders and one physical supplier holding an invoice issued to OW. An imminent second wave is expected as numerous suppliers will either cut their credit terms to a minimum or demand cash payment or a bank guarantee and numerous shipowners will face the risk of ship arrest for unpaid bunkers.\r\n\r\nThe creditors of OW are targeting either the fuel stored in the ships’ tanks or the ships supplied with fuel. On one hand, the bunker supplied to the ships represents one of their hopes of getting paid as most standard terms and conditions of bunker traders stipulate that the title in the bunker remains with the seller/supplier (creditor) until he is paid the full price of the bunker. On the other hand, ships are considered the common security in the maritime industry for unpaid bunker invoices.\r\n\r\nOW Bunker has a presence in the UAE and is registered with the Dubai Multi Commodities Centre free zone (“OW DMCC”).\r\n\r\nSince November 2014, Al Tamimi &amp; Company has been approached by numerous players in the bunker industry in relation to the impact of the OW collapse, especially following the aggressive attempt of the creditors of OW DMCC to divert payments from the insolvent entity in order not to get caught in the body of creditors that will come into existence following the commencement of the liquidation proceedings of OW DMCC. In fact, the creditors of OW DMCC, namely the physical suppliers, are seeking payment of the outstanding amounts directly from the shipowners and are threatening to arrest their ships if they fail to make payment, which is putting the shipowners in a dilemma when faced with such request. In addition, other creditors are seeking to convince the shipowners to remit the price of the supplied bunkers directly to them by producing an assignment of rights from OW DMCC to them in relation to the supply.\r\n\r\nAgainst this complicated background and from a legal perspective, the following two legal issues need to be addressed:\r\n\r\n<strong>1. Can an unpaid physical supplier take legal action against vessels they supplied bunkers to through OW DMCC?</strong>\r\n\r\nIn principle, the level of exposure faced by shipowners or charterers who purchased bunkers through OW DMCC depends on the jurisdiction in which the arrest application will be submitted.\r\n\r\nIn some jurisdictions, the unpaid physical supplier that stemmed bunker through OW DMCC would not be able to arrest the ship due to the lack of contractual relationship between the shipowner and the physical supplier. The physical supplier has a contract with OW DMCC and the shipowner has a contract with OW DMCC which means that both of them have a claim against OW DMCC. However, a potential recourse may be possible if the physical supplier can prove that OW DMCC was acting purely as an agent/broker for the owner of a vessel. In this case, the courts would have to determine whether the ownership of the bunkers had passed on to the shipowner based on who has the authority to give the consent for it to be consumed.\r\n\r\nThe UAE Court of Appeal has recently (Appeal No. 399/2014) held that a sale and purchase contract of bunkers is implied between the shipowner and the physical supplier despite the completion of the deal through a trader. The Court of Appeal founded the judgment on the general principles of contract law relating to the formation of contracts and the fundamental maritime rule relating to the agency relationship between the shipowner and the master. In other words, the Court of Appeal underlined that since the master represents the shipowner and binds him in relation to the obligations emerging from the contracts entered by him within the limits of his lawful powers, the mere signature of the master on the bunker delivery receipt evidencing the supply of the bunker to the ship will create a contract between the physical supplier and the shipowner.\r\n\r\nIn addition, the physical supplier may be able to rely on the agency/brokerage provisions in the UAE Commercial Code to prove that the contract of bunker supply was concluded between the shipowner and himself and not between OW DMCC and the shipowner. In this context, the physical supplier will argue that OW DMCC was the broker for the supply and that he was representing him in the deal, specifically that the profit of OW DMCC constitutes the margin that will be added to the original price of the supplied bunker which is equivalent to the commission to which a broker is entitled. However, one must note that this argument was not tested in court in the UAE.\r\n\r\nAgainst this background, it can be seen that there is a risk of ship arrest in the UAE.\r\n\r\n<strong>2. Will an assignment from OW DMCC to the physical supplier entitle the latter to claim directly the price of the unpaid bunker from the shipowner? </strong>\r\n\r\nThe insolvency regime in the UAE provides for liquidations, bankruptcies and re-organisations which are governed by various laws (the Companies Law, the Commercial Code, the Civil Code and the Civil Procedures Code). The regulations (including the annulment of the insolvent’s acts) of each of these regimes differs from the other. In this context it must be noted that the legislation is largely untested in the UAE as there has yet to be major corporate insolvency volume.\r\n\r\nIn addition to the above-mentioned legal framework, we need to consider the DMCC Company Regulations No. 1/03 of 2003 since OW DMCC is registered in Dubai with the DMCC. Regulation 81.1 of the DMCC Regulations stipulates that the winding up of a company shall be made in accordance with the DMCC Regulations as if the company was a limited liability company formed pursuant thereto and may either be a summary winding up or by its creditors or by the Court under the UAE Commercial Code. OW DMCC has been recently placed into a creditors’ winding up process under Regulation 81.1.2.1 of the DMCC Regulations.\r\n\r\nPursuant to the above mentioned Regulation, a company may be wound up if the shareholders resolve so by resolution. Following the passing of such a resolution and within a period of fourteen days, the company must give notice of the resolution by advertisement in a newspaper prescribed by the Legal Registrar of the DMCC.  In addition, the company shall call for a meeting of its creditors. The company and the creditors at their respective meetings may nominate a person to be liquidator for the purpose of the winding up. Within fourteen days after his appointment, the liquidator must give notice of his appointment to the legal registrar at DMCC and to the creditors (Regulation 81.1.2.1.5 of the DMCC Regulations). In addition, the creditors may appoint a liquidation committee consisting of not more than five persons to represent them and liaise with the appointed liquidator (Regulation 81.1.2.1.6 of the DMCC Regulations).\r\n\r\nAt the date of writing, the liquidation process of OW DMCC has reached the stage of the appointment of three liquidators and a liquidation committee.\r\n\r\nStarting from the commencement of the winding up process in Dubai, OW DMCC ceased to carry on its business but maintains its corporate state and capacity until it is totally dissolved. In addition, the creditors of OW DMCC may not lodge any action against OW DMCC except by leave of the court. Therefore, the unpaid physical suppliers of OW DMCC are left with the assignment of rights that was provided to them by OW DMCC prior to its liquidation, entitling them to collect the price of the supplied bunkers directly from the shipowners/charterers.\r\n\r\nThe legal issues that arise relate to the validity of this assignment of rights in the UAE and its enforceability.\r\n\r\nThe UAE laws are not fully developed in relation to the assignment of rights. The UAE Civil Code only regulates the assignment of debts/obligations and is silent on the procedural aspects of an assignment of rights. Against this background, guidance on the validity of an assignment of rights must be taken from the UAE case law.\r\n\r\nThe UAE courts have defined the assignment of rights as an agreement between the creditor (assignor) and another party to whom the creditor transfers his rights (assignee) as against the debtor. The Courts have held that an assignment in that respect is a contract between the assignor and the assignee, which must satisfy all of the necessary elements including consent, subject matter and cause.\r\n\r\nThe Dubai Court of Cassation has held that for an assignment of a right to be valid and perfected, it must be notified to the debtor (who is a third party to the assignment of rights) and must relate to an ascertained and identifiable (in type and quantity) assigned right. In this context it should be noted that where the assigned right consists of a sum of money, certainty in the subject matter of the assignment lies not only upon the relevant contract (under which such right is being assigned) being identifiable, but also for that sum of money to be fixed at the time of perfecting the assignment.\r\n\r\nTherefore, and in order for the assignment of rights given by OW DMCC to its physical supplier to be perfected in the UAE, the exact amount must be inserted in the assignment which is not the case in most of the assignments that we have reviewed.\r\n\r\nHowever, and even if the assignment of rights is valid and perfected in the UAE, this assignment may be annulled by the creditors/liquidator at a later stage, which puts the shipowner at a great risk of being compelled to settle the same invoice a second time by the liquidator. Pursuant to Article 396 of the Civil Code, the creditor has the right to request from the court the declaration of any of his debtor’s dispositions ineffective against him, provided that the debtor’s obligations (whether due or deferred) exceed or are equal to his assets.\r\n\r\nWith the above in mind, and taking into consideration the chain of supply of the purchased bunker, shipowners may wish to refrain from paying physical suppliers directly without the intervention of OW DMCC, even if the latter has provided the physical supplier with an assignment of rights in relation to the supply.'),
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(100441, 5462, 'pageSummary', 'We published the first part of the guide to Hotel Operations in the Middle East in the May 2016 edition of Law Update (No 289), where we explored the regulatory framework of the hotel industry in Bahrain, Egypt, Iraq and Jordan. This second part will cover Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates. The guide provides hotel operators, owners and investors with a straitghtforward overview of the different regulations governing the hospitality sector across the Middle East region.'),
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(100439, 5462, 'content_description', 'We published the first part of the guide to Hotel Operations in the Middle East in the May 2016 edition of Law Update (No 289), where we explored the regulatory framework of the hotel industry in Bahrain, Egypt, Iraq and Jordan. This second part will cover Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates. The guide provides hotel operators, owners and investors with a straitghtforward overview of the different regulations governing the hospitality sector across the Middle East region.\r\n'),
(100416, 5461, 'content', 'September 2016\r\n\r\n<hr />\r\n<p class=\"p1\"><strong>Jordan</strong></p>\r\n<p class=\"p1\"><span class=\"s1\">Patent priority rights are granted to those from states that are a party to the Paris Convention for the Protection of Industrial Property. A claim for patent priority is required to be filed within twelve months of the first filing patent application. The examination results for the filed patents in Jordan are subject to European and/or USA patent regulations. Therefore, the issuance of approval will come from the relevant authorities in those states. </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> Once approved a notification of the patent is published in the Official Gazette in Jordan. A party wishing to oppose the patent then has the right to challenge the patent within three months. The challenge can be taken to the High Court of Justice. Law No. 32 of 1999 on Patents in Jordan states the patent shall be put into force 30 days after its publication in the official Gazette of Jordan, assuming no challenge is made. </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> Once the patent is put into force, it is effectively protected for a period of 20 years from the day it was filed with no option to extend protection once the time has elapsed. Within the 20 year period, annual fees are due on the day that the application for the patent was initially filed. If the fees are not paid within six months of their respective annual due date, the rights to the patent are subject to expiration or cancelation.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> Jordan is not a member of the Patent Cooperation Treaty (PCT), although they are a member of the World Intellectual Property Organization (WIPO), as of June 1972. As a non-member, Jordan nationals do not have the option of filing with the PCT Receiving Office for international protection or for international publication of their patents within the 148 PCT contracting states. This is a disadvantage because patents are territorially limited unless the PCT patent application is filed and accepted. There is no telling whether or not Jordan will eventually become a member, however, becoming a member of the PCT would no doubt be a milestone </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> Between 2000 and 2014, Jordan’s top patent filings were pharmaceuticals, making up approximately 30% of patent applications in the Top Fields of Technology category. In 2014, the overwhelming majority of patent grants were given to non-residents, reflecting the fact that the majority of patent applications received in that year came from non-residents in Jordan.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> According to the WIPO Statistics Database, between 2000 and 2014, there is a visible positive correlation between economic growth in Jordan, an increase in GDP, and an increase in patent filings. </span></p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>Iran</strong> </span></p>\r\n<p class=\"p1\"><span class=\"s1\">Patent filing in Iran is done through email with multiple documents required in addition to the patent application. The patent application requires a power of attorney and an Iranian Consulate approval to legalize the applicant to file, and an English and an Arabic copy of the priority document granted by the Patent Office in Iran.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> A priority claim to a patent application can be made within one year of the patent application date. </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> Patents are officially granted within 24 months following the patent application date, with the condition that there is no opposition to the acceptance or the approval of the patent. </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> The owner is expected to pay an annual fee due on the patent application date every year, for the 20 year patent protection time period. The annual fee is payable within six months of the respective due date with a 100% penalty fee. </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> Iran became a member of the PCT on 4 October 2013. It is therefore to file patents through the PCT international application system. </span></p>\r\n<p class=\"p2\"><span class=\"s1\"> </span></p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>Egypt </strong></span></p>\r\n<p class=\"p1\"><span class=\"s1\">Once a patent application is filed and published in the Official Gazette there is a strict two-month period for any challenges to be brought. Any opposition to the patent is taken to the competent committee.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> The fees made to the Patent office regarding the registration of the patent application are only effective and payable once the two month opposition period has elapsed and all rejections to the approval of the patent have been dismissed.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> After the patent application filing date, within an approximately three year time period, the patent is officially granted. There is an annual fee that is required to be paid on the patent application filing date. The annual fee is payable within one year of the respective due date without a late payment fine or penalty.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> The patent protection period is 20 years subsequent to the patent application filing date. The protection period is conditional based on the payment of the annual fee and the working of patents. The owner of the patent is expected to work the patent within four years of the application filing date or within three years of the granting of the patent. </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> If the annual payments are not settled by their due date, during the protection period, a compulsory license will be granted by the government for other parties to produce the invention for a two-year time period. Once the two-year compulsory license time period has elapsed, the patent may be subjected to dismissal or cancelation depending on the details of that exact case. </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> As of 6 September 2003, Egypt has been a member of the PCT and therefore there is the option of filing in the international application system as well. </span></p>\r\n<p class=\"p2\"><span class=\"s1\"> </span></p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>Conclusion</strong></span></p>\r\n<p class=\"p1\"><span class=\"s1\">Jordan, Iran and Egypt are three emerging countries when it comes to patent filings. They are some of the top countries which have shown significant development between 2000-2014. Their governments’ efforts to encourage and protect the rights of intellectual property is making a difference. Infringement on patent rights, in all three countries, are subject to prosecution according to the Civil Law.</span></p>'),
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(100435, 5462, 'content', 'September 2016\r\n\r\n<hr />\r\n<p class=\"p1\">The guide has been compiled on the basis of information provided as at the date of its publication, and therefore may be subject to amendments from time to time. Please note that this guide is intended to provide a high-level overview of current laws, regulations and procedures. Separate legal advice on matters specific to the hotel property and the regulatory framework under which it operates should always be sought, including undertaking enquiries with the relevant Ministries and Authorities having jurisdiction over the property as necessary. If, based on the above, you require any further information, please do not hesitate to contact our Hospitality team at hospitality@tamimi.com.</p>\r\n\r\n<table class=\"t1\" cellspacing=\"0\" cellpadding=\"0\">\r\n<tbody>\r\n<tr>\r\n<td class=\"td1\" valign=\"middle\">\r\n<p class=\"p1\"><span class=\"s1\"><strong> </strong></span></p>\r\n</td>\r\n<td class=\"td1\" valign=\"middle\">\r\n<p class=\"p2\"><span class=\"s2\"><strong> </strong></span></p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>Kuwait</strong></span></p>\r\n<p class=\"p4\"><span class=\"s3\"> </span></p>\r\n</td>\r\n<td class=\"td1\" valign=\"middle\">\r\n<p class=\"p3\"><span class=\"s2\"><strong>Oman</strong></span></p>\r\n</td>\r\n<td class=\"td1\" valign=\"middle\">\r\n<p class=\"p3\"><span class=\"s2\"><strong>Qatar</strong></span></p>\r\n</td>\r\n<td class=\"td1\" valign=\"middle\">\r\n<p class=\"p3\"><span class=\"s2\"><strong>KSA</strong></span></p>\r\n</td>\r\n<td class=\"td1\" valign=\"middle\">\r\n<p class=\"p3\"><span class=\"s2\"><strong>UAE</strong></span></p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td2\" valign=\"middle\">\r\n<p class=\"p5\"><span class=\"s4\"><strong> </strong></span></p>\r\n<p class=\"p6\"><span class=\"s4\"><strong>HOTEL OPERATOR RELATED</strong></span></p>\r\n<p class=\"p4\"><span class=\"s3\"> </span></p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td3\" valign=\"middle\">\r\n<p class=\"p7\"><span class=\"s4\"><strong>Is the Operator required under the local legal requirements to establish a Special Purpose Vehicle (“SPV”), i.e. a branch company, a representative office or a permanent establishment in order to provide Hotel Management Services?</strong></span></p>\r\n</td>\r\n<td class=\"td3\" valign=\"middle\">\r\n<p class=\"p8\">Pursuant to Commercial Law No. 68 of 1980 (the “Commercial Law”), the Operator is required to incorporate an SPV in Kuwait. The Operator cannot provide services without setting up a company or through a Kuwaiti agent.</p>\r\n</td>\r\n<td class=\"td3\" valign=\"middle\">\r\n<p class=\"p8\">Under Foreign Capital Investment Law promulgated by Sultani Decree No. 102/94 dated 16 October 1994, the Operator is required to incorporate an SPV in order to undertake commercial business in Oman.</p>\r\n</td>\r\n<td class=\"td3\" valign=\"middle\">\r\n<p class=\"p8\">Pursuant to the Foreign Capital Investment Law (No. 13 of 2000), the Proxy Law (No. 25 of 2004) and the Qatari Commercial Register Law (No. 25 of 2005), the Operator is required to incorporate an SPV in Qatar and to be registered in the Commercial Registry of the Ministry of Economy and Commerce.</p>\r\n</td>\r\n<td class=\"td3\" valign=\"middle\">\r\n<p class=\"p8\">Any foreign (non GCC) entity or individual carrying out business in KSA is required to obtain a foreign investment licence (“SAGIA licence”) from the Saudi Arabian General Investment Authority (“SAGIA”) through an SPV.</p>\r\n</td>\r\n<td class=\"td3\" valign=\"middle\">\r\n<p class=\"p8\">The Operator does not need to incorporate an SPV. The Operator manages the Hotel based on the Hotel Management Agreement with the Owner holding the Hotel licence and sponsoring the Hotel employees.</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p7\"><span class=\"s4\"><strong>Is a local partner/sponsor required?</strong></span></p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">If the business is in the form of a Kuwaiti commercial entity, a Kuwaiti partner is required and the Operator will be limited to owning 49% of shares in the SPV.</p>\r\n<p class=\"p8\">Alternatively, if the business is not in the form of a Kuwaiti commercial entity, the Operator may only do business in Kuwait through the use of a Kuwaiti agent.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Pursuant to the Foreign Capital Investment Law, an Omani national must hold at least 30% of shares in the SPV.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">The Operator must adhere with the capital requirements, as established by the Foreign Capital Investment Law, which restricts foreign investors to owning a maximum of 49% of any company. Failure to do so may result in criminal offences.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">The Operator is exempt from a local partner requirement and is entitled to own 100% of the entity.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Where the Operator incorporates an SPV in the UAE, if the Operator is not a GCC national or an entity wholy owned by GCC nationals, a local partner is required and the Operator will be limited to owning 49% of shares in the SPV.</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p7\"><span class=\"s4\"><strong>May the Operator be able to establish within a ‘free zone’ where 100% foreign ownership of the legal establishment is permitted?</strong></span></p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">The Kuwait government had previously established a Kuwait Free Trade Zone which has since stopped issuing new licences for establishment of new entities.</p>\r\n<p class=\"p8\">The Foreign Direct Investment Law No. 116 of 2013 (“FDI Law”) allows foreigners, under certain conditions, to directly own up to 100% of a commercial entity in Kuwait and benefit from tax holidays and customs exemptions.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">An SPV is not entitled to have 100% foreign ownership in Oman. However, the effect of the Foreign Capital Investment Law can be minimised by granting a different allocation of profit to the shareholders of the SPV.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">An exemption to the 49% limit may be obtained by investing in certain economic sectors, which sectors include tourism.</p>\r\n<p class=\"p8\">An international Operator may also be eligible to set up a Qatar Financial Center licensed entity with 100% foreign ownership in order to provide qualified business services.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">The Operator who is granted a SAGIA licence is allowed to own 100% of the service entity.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">In certain circumstances and for certain activities, the SPV may establish within a Free Zone where 100% foreign ownership of the legal establishment is allowed. If the Operator incorporates an SPV in the UAE within a free zone, it is allowed to open a Representative Office outside the free zone with 100% foreign ownership for marketing purposes.</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p7\"><span class=\"s4\"><strong>What is the most common form of legal entity used by an Operator in the Territory and how long does it usually take to set up such legal entity?</strong></span></p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">A Limited Liability Company (“LLC”), usually referred to as WLL, is the most common form of legal entity used in Kuwait.</p>\r\n<p class=\"p8\">3 to 4 months are approximately required to register the LLC.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">An LLC is the most common form of legal entity used in Oman.</p>\r\n<p class=\"p8\">1 to 2 weeks from the date of submitting the required documents to the Ministry of Commerce are approximately required to register the LLC.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">An LLC is the most common form of legal entity used in Qatar.</p>\r\n<p class=\"p8\">4 to 8 weeks from the time an agreement is reached with a suitable Qatari partner are approximately required to register the LLC.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">An LLC is the most common form of legal entity used in KSA.</p>\r\n<p class=\"p8\">4 to 6 months are approximately required to register the LLC subject to SAGIA requirements.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">An LLC is the most common form of legal entity used in the UAE.</p>\r\n<p class=\"p8\">4 to 6 weeks are approximately required to register the LLC.</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p7\"><span class=\"s4\"><strong>What would the typical licensed activity be for the Operator?</strong></span></p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Operating and managing a Hotel</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Hotel management</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Operating and managing a Hotel</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Services</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Hotel management services</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p7\"><span class=\"s4\"><strong>Are there any requirements in terms of minimum capital applicable to the Operator?</strong></span></p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">The minimum capital requirement applicable to an SPV is KD 1000 (plus KD 50,000 as bank guarantee) subject to the conditions of the Ministry of Commerce.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">The minimum capital requirement applicable to an SPV as an LLC is OMR 150,000.</p>\r\n<p class=\"p8\">However, the Foreign Capital Investment Law will be reviewed and this floor may be dropped or removed for different sectors.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">There are no minimum share capital requirements for an LLC under the new Commercial Companies Law 2014.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">The minimum capital requirement applicable to an SPV is SAR 500,000 for a service entity.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">There are no minimum share capital requirements for an SPV.</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p7\"><span class=\"s4\"><strong>Are any licences/permits required for the Operator to undertake the business of managing hotels in the country where the Hotel is located?</strong></span></p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">A licence from the Kuwait Direct Investment Promotion Authority is required for the Operator where it owns 100% of a legal entity in Kuwait.</p>\r\n<p class=\"p8\">A licence from the Kuwaiti Ministry of Commerce is required if the Operator is undertaking hotel business through a Kuwaiti partner who holds 51% of the company.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">A tourism licence issued by the Ministry of Tourism is required for the Operator. It is obtained pursuant to the Ministry of Commerce and Industry commercial registration.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Pursuant to Article 2 of Law No. 6 of 2012 Regulating Tourism, it is prohibited to establish or operate a Hotel without obtaining a relevant licence from the Qatar Tourism Authority in accordance with the laws and the executive regulations.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p9\">No specific licences or permits are required for the Operator to undertake the business of managing hotels in KSA.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">If the Operator incorporates an SPV, the approval of the Tourism Department is required and a manager holding a university degree in the hospitality sector and having at least 5 years’ experience must be appointed.</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p7\"><span class=\"s4\"><strong>Is the Operator subject to withholding tax in respect of its services provided in the country where it has not incorporated a legal establishment there?</strong></span></p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">No withholding tax is imposed on hotel services provided by the Operator.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">The Operator is subject to withholding tax imposed on hotel services provided at the rate of 10% on management fees and royalties.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">The Operator is subject to withholding tax imposed on hotel services provided at the rate of 5% on royalties and technical service fees and 7% on the cost of all other services.</p>\r\n<p class=\"p8\">In the absence of any government ownership of the Qatari entities, grossing up clauses are perfectly acceptable under Qatar law.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">The Operator is subject to withholding tax imposed on hotel services provided at the rate of 15% on royalties (unless the rate is reduced under a tax treaty) and 5% on technical service fees (unless the rate is reduced under a tax treaty).</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">No withholding tax is imposed on hotel services provided by the Operator.</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td5\" valign=\"middle\">\r\n<p class=\"p7\"><span class=\"s4\"><strong>Are there any currency restrictions on transfer of funds by the Operator outside of the country?</strong></span></p>\r\n</td>\r\n<td class=\"td5\" valign=\"middle\">\r\n<p class=\"p8\">There are no currency restrictions on transfer of funds by the Operator outside of Kuwait.</p>\r\n</td>\r\n<td class=\"td5\" valign=\"middle\">\r\n<p class=\"p8\">There are no currency restrictions on transfer of funds by the Operator outside of Oman.</p>\r\n</td>\r\n<td class=\"td5\" valign=\"middle\">\r\n<p class=\"p8\">There are no currency restrictions on transfer of funds by the Operator outside of Qatar.</p>\r\n</td>\r\n<td class=\"td5\" valign=\"middle\">\r\n<p class=\"p8\">There are no currency restrictions on transfer of funds by the Operator outside of KSA.</p>\r\n</td>\r\n<td class=\"td5\" valign=\"middle\">\r\n<p class=\"p8\">There are no currency restrictions on transfer of funds by the Operator outside of the UAE.</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td2\" valign=\"middle\">\r\n<p class=\"p5\"><span class=\"s4\"><strong> </strong></span></p>\r\n<p class=\"p6\"><span class=\"s4\"><strong>HOTEL OPERATION RELATED</strong></span></p>\r\n<p class=\"p4\"><span class=\"s3\"> </span></p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td3\" valign=\"middle\">\r\n<p class=\"p7\"><span class=\"s4\"><strong>Who is the tourism classification authority in the Territory?</strong></span></p>\r\n</td>\r\n<td class=\"td3\" valign=\"middle\">\r\n<p class=\"p8\">The Ministry of Commerce and Industry. The government has recently called for establishing a Kuwait Tourism Authority, but no authority has been established so far.</p>\r\n</td>\r\n<td class=\"td3\" valign=\"middle\">\r\n<p class=\"p8\">The Ministry of Tourism</p>\r\n</td>\r\n<td class=\"td3\" valign=\"middle\">\r\n<p class=\"p8\">The Qatar Tourism Authority</p>\r\n</td>\r\n<td class=\"td3\" valign=\"middle\">\r\n<p class=\"p8\">The Commission for Tourism and National Heritage (which was formally recognised as the Commission for Tourism and Antiquities)</p>\r\n</td>\r\n<td class=\"td3\" valign=\"middle\">\r\n<p class=\"p8\">Each Emirate has a Tourism Authority which regulates the Hotels and Serviced Apartments classifications:</p>\r\n<p class=\"p8\">Abu Dhabi Tourism and Culture Authority;</p>\r\n<p class=\"p8\">Dubai Department of Tourism and Commerce Marketing;</p>\r\n<p class=\"p8\">Sharjah Commerce &amp; Tourism Development Authority;</p>\r\n<p class=\"p8\">Ajman Tourism Development Department;</p>\r\n<p class=\"p8\">Ras Al Khaimah Tourism Development Authority;</p>\r\n<p class=\"p8\">Fujairah Tourism and Antiquities Authority;</p>\r\n<p class=\"p8\">Umm Al Quwain – National Council of Tourism &amp; Antiquities.</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p7\"><span class=\"s4\"><strong>What are the various classifications applicable to Hotels and Serviced Apartments (stars, grades, categories)?</strong></span></p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Stars and grades are based on international classification and must be in accordance with the regulations of the Kuwaiti Ministry of Commerce.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Stars and grades are 3 stars upward based on international classification.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Qatar Tourism Authority only publishes minimum building requirements criteria which are based on the minimum criteria of the hotel &amp; tourist apartment classification system. Such criteria must be met by developers or investors in order to receive a hotel licence/ classification for the desired category.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">The current classification in place is divided into two categories: general classification and special classification. While the special classification regulates hotels in Makkah and Madina only, the general classification targets hotels in all other cities in KSA.</p>\r\n<p class=\"p8\">Both classifications are based on stars system (2-5 stars).</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">The classification for hotels is from 1 to 5 stars, but some Emirates have additional classifications such as Beach Resort, Guest House, etc.</p>\r\n<p class=\"p8\">Serviced Apartments are usually either Standard or Deluxe.</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p7\"><span class=\"s4\"><strong>What other government departments are involved in the licensing of the hotel industry within the country?</strong></span></p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Kuwait Chamber of Commerce and Industry;</p>\r\n<p class=\"p8\">Ministry of Labour and Social Affairs;</p>\r\n<p class=\"p8\">Ministry of Interior.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Ministry of Housing;</p>\r\n<p class=\"p8\">Ministry of Commerce and Industry.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Ministry of Municipality and Environment;</p>\r\n<p class=\"p8\">Department of Civil Defence;</p>\r\n<p class=\"p8\">Ministry of Health;</p>\r\n<p class=\"p8\">Ministry of Economy and Commerce;</p>\r\n<p class=\"p8\">Qatar Distribution Company.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Commission for Tourism and National Heritage;</p>\r\n<p class=\"p8\">Ministry of Commerce and Industry;</p>\r\n<p class=\"p8\">Ministry of Interior;</p>\r\n<p class=\"p8\">Ministry of Labour;</p>\r\n<p class=\"p8\">Passport Office;</p>\r\n<p class=\"p8\">General Office of Social Affairs;</p>\r\n<p class=\"p8\">Civil Defence.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Municipality;</p>\r\n<p class=\"p8\">Police;</p>\r\n<p class=\"p8\">Civil Defence.</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p7\"><span class=\"s4\"><strong>What permits/licences must the Owner obtain for operation of the Hotel? Can these be held in an individual’s name or must it be a corporate entity?</strong></span></p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">The Owner must be a corporate entity and obtain a licence (for the activity of operating and managing of hotels) in the name of the entity.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">The Owner must obtain:</p>\r\n<p class=\"p8\">• Commercial registration (registration from Ministry of Commerce and Industry); and</p>\r\n<p class=\"p8\">• Tourism licence.</p>\r\n<p class=\"p8\">The licences can be held in an individual’s name but are usually held in the name of a corporate vehicle.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">The Owner must obtain a hotel business licence from the Qatar Tourism Authority.</p>\r\n<p class=\"p8\">In addition, the Owner will generally apply for licences from the following relevant public authorities:</p>\r\n<p class=\"p8\">• Ministry of Municipality and Environment: Commercial Permit;</p>\r\n<p class=\"p8\">• Department of Civil Defence: Fire Safety Permit;</p>\r\n<p class=\"p8\">• Ministry of Health: Health Permit;</p>\r\n<p class=\"p8\">• Ministry of Economy and Commerce: Commercial registration/ licence;</p>\r\n<p class=\"p8\">• Qatar Distribution Company: Liquor Licence;</p>\r\n<p class=\"p8\">• Qatar Tourism Authority: Hotel Establishment Activities Practice Licence.</p>\r\n<p class=\"p8\">The licences can be held in an individual’s name or a corporate entity.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">The Owner must obtain a Commercial Registration Certificate from the Ministry of Commerce &amp; Industry in the name of the entity or the individual who owns the Hotel.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">The Owner must obtain a Hotel licence which is restricted to entities either owned by individuals or corporate bodies.</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p7\"><span class=\"s4\"><strong>Must the permits/licences be obtained prior to opening of the Hotel?</strong></span></p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Yes</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Yes</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Yes</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Yes</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Yes</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p7\"><span class=\"s4\"><strong>Is there a mandatory requirement to register the Hotel Management Agreement (and ancillary agreements) in the Territory?</strong></span></p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">There is no mandatory requirement to register the Hotel Management Agreement in particular. However, registration occurs by either registering the trademark related to the corporate entity doing the business in Kuwait (whether through direct or indirect investment) or by the registration of the foreign entity by the Kuwaiti local agent.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Yes, the Hotel Management Agreement must be registered with the Ministry of Tourism and such registration is mandatory. Responsibility lies with the Owner.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">There is no mandatory requirement to register the Hotel Management Agreement in Qatar.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">There is no mandatory requirement to register the Hotel Management Agreement in KSA.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">There is no mandatory requirement to register the Hotel Management Agreement in the UAE; however, the Operator being the owner of the trade name/ brand will need to provide a Non Objection Certificate to the Owner to use the trade name of the Operator for the Hotel.</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p7\"><span class=\"s4\"><strong>May the Hotel Management Agreement be subject to merger clearance under any competition and anti-trust legislation that may exist within the Territory?</strong></span></p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Restrictive agreements and practices are regulated by the Commercial Law.</p>\r\n<p class=\"p8\">The Competition Law (No. 10 of 2007) further regulates competition. Mergers and acquisitions which lead to an increase in the direct or indirect control of a particular market representing more than 35% of the relevant market are subject to the review of the Authority.</p>\r\n<p class=\"p8\">Violators of the competition Law may be fined KD 100,000 or the amount of the illegally acquired gain, whichever is greater.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">No merger clearance is required before signing a Hotel Management Agreement. However, if an Operator in Oman acquires or merges with another Operator in the Territory which results in more than 35% of market share, the Public Authority for Consumer Protection will need to approve the merger.</p>\r\n<p class=\"p8\">Sanctions are applicable if the Hotel Management Agreement aims at restricting competition in Oman or creating a dominant position (more than 35% of market shares).</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">A merger clearance may be required subject to the particular nature of a transaction.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">KSA adopted a Competition Law which came into force on 31 December 2004. Certain transactions would be subject to merger clearance, depending on the nature of the other interests of the Operator in KSA, e.g. if the Operator owns a chain of hotels which enables it to have a dominant position.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">No merger clearance under competition and anti-trust legislation applies to the Hotel Management Agreement.</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p7\"><span class=\"s4\"><strong>Can the Parties include an arbitration clause in the Hotel Management Agreement to settle disputes arising from the Agreement?</strong></span></p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Yes, parties may agree to include an arbitration clause to settle disputes arising from the Hotel Management Agreement.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Yes, parties may agree to include an arbitration clause to settle disputes arising from the Hotel Management Agreement.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Yes, parties may agree to include an arbitration clause to settle disputes arising from the Hotel Management Agreement.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Yes, parties may agree to include an arbitration clause to settle disputes arising from the Hotel Management Agreement.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Yes, parties may agree to include an arbitration clause to settle disputes arising from the Hotel Management Agreement.</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p7\"><span class=\"s4\"><strong>What arbitration institutes exist in the Territory?</strong></span></p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">The main arbitration body in Kuwait is the Kuwait Commercial Arbitration Centre. In addition, specialised bodies with expertise in particular areas, such as the Kuwait Stock Exchange and the Kuwaiti Society of Engineers, have established their own arbitration rules and committees.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">There are no existing Arbitration institutes in Oman, but the government authorities are in the process of establishing an Arbitration Centre.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">• Qatar International Center for Conciliation and Arbitration; and</p>\r\n<p class=\"p8\">• the Qatar International Court and Dispute Resolution Centre.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Chamber of Commerce and Industry</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">• Dubai International Arbitration Centre;</p>\r\n<p class=\"p8\">• Dubai International Financial Centre</p>\r\n<p class=\"p8\">• London Court of International Arbitration;</p>\r\n<p class=\"p8\">• The Abu Dhabi Commercial, Conciliation and Arbitration Centre;</p>\r\n<p class=\"p8\">• The International Islamic Centre for Reconciliation and Commercial Arbitration.</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p7\"><span class=\"s4\"><strong>Would a foreign arbitral award rendered in connection with the Hotel Management Agreement be recognized and enforced by the local courts of the Territory without consideration of the merits of the case, or do the local courts have the power to reopen the matter?</strong></span></p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Kuwait is a party to the NY Convention on the Recognition and Enforcement of Foreign Arbitral Awards.</p>\r\n<p class=\"p8\">If a foreign award is rendered in a NY Convention member state, the courts of Kuwait will recognise and enforce it.</p>\r\n<p class=\"p8\">Awards issued in non-signatory countries are subject to reciprocity.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Oman is a party to the NY Convention on the Recognition and Enforcement of Foreign Arbitral Awards.</p>\r\n<p class=\"p8\">If a foreign award is rendered in a NY Convention member state, the courts of Oman will recognise and enforce it.</p>\r\n<p class=\"p8\">If the award is from a country which is not a party to the NY Convention, the courts of Oman will recognise the judgment if:</p>\r\n<p class=\"p8\">• the country in which the award is issued recognises Omani law and would enforce Omani law in its jurisdiction;</p>\r\n<p class=\"p8\">• the award does not offend Omani law, public order or Shari’ah; and</p>\r\n<p class=\"p8\">the award is final and not appealable.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Qatar is a party to the NY Convention on the Recognition and Enforcement of Foreign Arbitral Awards.</p>\r\n<p class=\"p9\">Qatari courts will only recognise and give effect to foreign arbitral awards in accordance with the Convention’s principles subject to the conditions of Article 380 of the Code of the Civil and Commercial Procedures (eg. if the award does not contradict a judgment or order previously issued by a Qatari Court and does not violate public order or morality in Qatar).</p>\r\n<p class=\"p8\">Qatar has recently prepared a new law on arbitration based on the UNCITRAL Model Law. This law will likely abolish the current arbitration provisions referred to in articles 190 to 210 of the Code of the Civil and Commercial procedures.</p>\r\n<p class=\"p11\"><span class=\"s3\"> </span></p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">KSA is a party to the NY Convention on the Recognition and Enforcement of Foreign Arbitral Awards.</p>\r\n<p class=\"p8\">However, the Saudi courts have the power to reopen the matter and any foreign award that is not compliant with Shari’ah principles will not be enforceable in KSA.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">The UAE is a party to the NY Convention on the Recognition and Enforcement of Foreign Arbitral Awards.</p>\r\n<p class=\"p8\">If a foreign award is rendered in a NY Convention member state, the UAE courts will recognise and enforce it.</p>\r\n<p class=\"p8\">If the awarding country is not a party to the NY convention, the UAE courts should (arguably) still enforce it as the UAE did not make any reservations to the NY Convention. In practice the UAE Courts will likley wish to see that the awarding country reciprocates enforcement. The UAE has also entered into a number of regional conventions and bilateral treaties regarding the enforcement of awards.</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p7\"><span class=\"s4\"><strong>Are there any restrictions on arbitration proceedings applying to government entities?</strong></span></p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">The arbitration councils have exclusive jurisdiction over disputes arising between governmental agencies, or between them and state-owned companies, and may hear disputes referred by individuals and corporate entities relating to claims against the Kuwaiti government and its ministries and other divisions, or wholly state-owned companies.</p>\r\n<p class=\"p11\"><span class=\"s3\"> </span></p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">There are no restrictions on arbitration proceedings applying to government entities.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">There are no restrictions on arbitration proceedings applying to government entities.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Contracts with government entities are subject to Saudi Law and the Saudi Courts and cannot be referred to arbitration. The government must own 100% of the shares of the company to qualify it as a government entity in KSA.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">There are restrictions in respect of disputes against government entities. A party must obtain permission from the Ruler’s Court in order to enforce an award against a government entity. However, there could be state immunity that prevents the award from being enforced.</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p12\"><span class=\"s1\"><strong> </strong></span></p>\r\n<p class=\"p7\"><span class=\"s4\"><strong>Are there any restrictions on employment of foreign staff (ie. any roles reserved specifically for national employees), or a policy of nationalisation?</strong></span></p>\r\n<p class=\"p13\"><span class=\"s3\"> </span></p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Yes, the private sector is obliged to employ a certain percentage of Kuwait nationals, the requirement varies from 1% to 70% depending on the business sector.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Yes, within the tourism sector (restaurants and hotels), the percentage of Omanisation to be met is at least 30%.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Yes, there is a policy of nationalisation in Qatar. Priority for employment is to be given to national employees and non-Qataris are employed in case of need.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Yes, there is a policy of nationalisation in KSA. Since 2005, the target rate has been set at 75% for the private sector, however in most sectors the actual rates are still much lower.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Emiratisation laws exist in the UAE but they are not regularly applied in the hospitality sector.</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p7\"><span class=\"s4\"><strong>What work permits and visas are required for non-national employees?</strong></span></p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">To work in Kuwait, an expatriate other than GCC citizens must obtain a valid entry visa. There are two main types of visa:</p>\r\n<p class=\"p8\">• Business Visa, generally issued to travel to Kuwait for a limited time and have a validity of 30 days;</p>\r\n<p class=\"p8\">• Work permits, issued for the purpose of employment in Kuwait.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Sponsored visa, resident card and registration with the Ministry of Manpower are required.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Any foreigner wishing to enter or reside in Qatar to work or practice a trade must be sponsored by a Qatari national or a registered legal entity.</p>\r\n<p class=\"p8\">Additionally, the foreigner must be employed by his sponsor and should obtain a work permit and residence permit in order to work and reside in Qatar.</p>\r\n<p class=\"p8\">Foreigners who wish to enter Qatar on business for a short period may be granted a business visa (without being employed by a sponsor).</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">A work permit and residency are required for all expat employees.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">A work permit and a Residency Visa under the sponsorship of the Hotel Establishment (i.e. the Owner) are required.</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p7\"><span class=\"s4\"><strong>Do Hotel staff generally belong to a trade union within the Country?</strong></span></p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Yes, the Kuwait Trade Union Federation by-law covers all workers in Kuwait, and it is a third party in the International Labor Organization (ILO).</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p9\">No</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p9\">No</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p9\">No</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p9\">No</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p7\"><span class=\"s4\"><strong>Is the Hotel obliged to provide a local rate for the room applicable to nationals paying in local currency, with a different (usually higher) US$ rate for non-nationals?</strong></span></p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p9\">No</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p9\">No</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p9\">No</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p9\">No</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p9\">No</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p7\"><span class=\"s4\"><strong>Is it possible to obtain an alcohol licence for the sale and supply of alcohol at the Hotel? Who applies for this licence, and what is the authorizing entity? Are there any restrictions on the grant of the licence?</strong></span></p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">No, all alcoholic beverages are denied entry into Kuwait.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Yes, an alcohol licence may be obtained. The Owner must apply to the Royal Oman Police and restrictions exist, e.g. if the Hotel is close to a mosque or in a built-up residential area.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">With regard to ‘liquor licensing’ none of the procedures have any basis in law. The law bans alcohol, but Qatar Airways and its subsidiaries (including Qatar Duty Free and the Qatar Distribution Centre) have been allowed to sell alcohol or authorise the purchase of alcohol by 5 star hotels. Therefore, the Qatar Distribution Centre (“QDC”) sets it own parameters for authorising sales to hotels.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p9\">No, all alcohol beverages are denied entry into KSA.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Yes, an alcohol licence may be obtained. The alcohol licence depends on the Emirate, on the location of the Hotel and on its classification.</p>\r\n<p class=\"p8\">The Owner must apply for the licence and the manager of the Hotel must sign an undertaking that he will not misuse the licence and that he will commit to trade alcohol within the provided quota.</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p7\"><span class=\"s4\"><strong>Are there any specific registrations applicable to Hotels within the country ie. segregation of male/female swimming/leisure facilities, female only floors etc.?</strong></span></p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Yes, there are segregation rules in Kuwait, such as separate prayer rooms, restaurants, beaches and facilities for women only such as gyms, swimming pools and social clubs.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">There are no specific registrations applicable to hotels in Oman.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Yes, specific enquiries would have to be made with the Qatar Tourism Authority.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Yes, there is strict segregation e.g. male and female leisure facilities, restaurants must have a family and a separate single male section, etc.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">There are no specific registrations applicable to hotels in the UAE.</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p7\"><span class=\"s4\"><strong>Can Operator employees be seconded to the Owner’s employment under a local employment contract in respect of providing services from the Hotel?</strong></span></p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Yes, a secondment agreement may be entered into between the Operator and the Owner.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p9\">Yes, a secondment agreement may be entered into between the Operator and the Owner provided that:</p>\r\n<p class=\"p9\">• the Owner sponsors such employees; and</p>\r\n<p class=\"p9\">• consent to employment has been obtained upfront from the Ministry of Manpower.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p9\">No, pursuant to Article 15 of the Sponsorship Law, all natural or juristic persons are prohibited from employing expatriates that are not under their sponsorship.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p9\">Yes, a secondment agreement may be entered into between the Operator and the Owner.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p9\">Yes, the employees may be seconded based on the Hotel Management Agreement; however, their residency visa and work permit shall be issued by the Owner at all times.</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p7\"><span class=\"s4\"><strong>Are guests subject to payment of any tax/service charge/tourism fee upon reservation of a room in the Hotel?</strong></span></p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">No taxes/service charges/tourism fees are applicable to the reservation of a room in a Hotel.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Guests are subject to a total of 17% tax rate, including:</p>\r\n<p class=\"p8\">• 5% municipality fee;</p>\r\n<p class=\"p8\">• 4% tourism fee;</p>\r\n<p class=\"p8\">• 8% service charge.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">• A service tax of 10% is charged on food purchased in restaurants.</p>\r\n<p class=\"p8\">• Hotels also impose a 10% service charge per night on room rates.</p>\r\n<p class=\"p8\">• Government levies a tax of 5% on hotels and restaurants.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">No taxes/service charges/tourism fees are applicable to the reservation of a room in a Hotel.</p>\r\n</td>\r\n<td class=\"td4\" valign=\"middle\">\r\n<p class=\"p8\">Yes, a service charge, a tourism dirham tax or a municipality fee must be paid depending on each Emirate.</p>\r\n<p class=\"p8\">• Charges per room per night vary from AED 7 to AED 20 depending on each Emirate and on the type of accomodation.</p>\r\n<p class=\"p8\">• Hotels levy a service charge of 10 to 15 % per night on room rates.</p>\r\n<p class=\"p8\">• Municipal taxes of 10% are imposed on hotel services.</p>\r\n</td>\r\n</tr>\r\n</tbody>\r\n</table>'),
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(100401, 5460, 'content', 'September 2016\r\n\r\n<hr />\r\n<p class=\"p1\">The internet data centre and cloud computing industry in the Middle East has huge potential. Media reports identify Aliyun, AWS, Cisco, EMC, Equinix, Hewlett Packard, Huawei and Virtustream as just some of the international players interested in the Middle East market. In this context, it comes as no surprise that Saudi Arabia’s Communications and Information Technology Commission (“CITC”) has recently invited public submissions in response to its proposed regulation of cloud computing.</p>\r\n<p class=\"p1\"> CITC is the authority charged with the regulation of the information and communications technology sector in Saudi Arabia. CITC seeks to create a favourable environment for cloud computing services, and it is currently reviewing the existing regulatory framework to determine whether cloud-specific regulations are appropriate. In late July 2016, CITC invited feedback from interested parties on its proposed approach to the regulation of cloud computing in Saudi Arabia.</p>\r\n<p class=\"p1\">‘Cloud Services’ can be understood as ICT services involving the processing of user content via a scalable pool of physical or virtual resources (such as servers, operating systems and applications). Cloud services are cost effective, because the provision of infrastructure and other resources can be centralised via specialist cloud service providers, allowing multiple users to benefit without having to duplicate the resources used to deliver the services. Internet data centres can be understood as the physical premises from which cloud services are made available to users via computer networks.</p>\r\n<p class=\"p1\">Referring to Saudi Arabia’s recently issued Vision 2030 objectives, CITC notes that the development of a strong cloud services industry in Saudi Arabia is a key part of creating a developed digital infrastructure, which is integral to today’s advanced industrial activities.</p>\r\n<p class=\"p1\">In considering whether the current regulatory framework adequately provides for the development of a modern internet data centre and cloud computing industry, CITC has identified that there is currently no single cloud-specific law or regulation in Saudi Arabia. CITC identified a variety of laws and regulations with potential to impact on cloud computing in the Kingdom, including the Telecommunications Act (which vests regulatory power for the ICT sector in CITC, and which addresses issues such as lawful and unlawful interception), the Telecommunications Bylaw (which addresses licensing requirements for communications service providers and aspects of network security), the Electronic Transactions Law and the Anti-Cyber Crimes Law. Significantly, where government sector clients are likely to be big users of cloud services, CITC has also referenced Council of Ministers decision No. 81 of 1430H (2009), which requires government entities to host their websites on government networks or through providers with local hosting infrastructure and who are licensed by CITC.</p>\r\n<p class=\"p1\">Having reviewed the current regulatory landscape, and having undertaken a bench-marking exercise against other jurisdictions, CITC has concluded that it would be beneficial for users of cloud services, and for the development of the cloud industry in Saudi Arabia, to develop a cloud-specific regulatory regime. The objectives of this approach, as expressed in CITC’s public consultation document, include:</p>\r\n\r\n<ul>\r\n 	<li>Providing clarity and regulatory certainty on the rights and obligations of the providers and users of cloud computing services.</li>\r\n 	<li>Establishing a clear regulatory basis to manage potential security risks connected with the use of cloud services.</li>\r\n 	<li>Encouraging improved quality of cloud services.</li>\r\n 	<li>Encouraging investment in a local cloud industry.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p5\">Importantly, CITC has noted that the nature of cloud computing is such that services and business models are likely to be continually changing. As a result, it is important for a regulatory framework to be flexible - and in some way ‘future proof’. CITC has proposed a general regulatory framework that defines general rules and regulations applicable to cloud computing in Saudi Arabia, and an approach to licensing that sets out the different cases in which cloud service providers need to obtain a licence, whilst contemplating more detailed guidelines, codes of conduct and model clauses that CITC may issue to enhance the regulatory framework.</p>\r\n<p class=\"p1\">CITC is proposing a regulatory framework that applies to cloud computing services provided within Saudi Arabia, regardless of the location of the servers or the internet data centres from which the cloud services are provided or the jurisdiction from which the cloud service provider operates. Aspects of the proposed regulations will apply to cloud computing services provided from infrastructure located in Saudi Arabia, even if the user is based outside Saudi Arabia.</p>\r\n<p class=\"p1\">As for the licensing regime itself, CITC appreciates that not all cloud service offerings are the same. It is therefore proposing a multi-tiered approach to reflect different types of market players in the cloud space. Variables that it has taken into account when determining the licence options include: the extent of a cloud service provider’s commercial presence in Saudi Arabia, the extent to which the cloud service provider has direct dealings with consumers, the extent of information security requirements that might apply to the subject data, and whether or not the cloud service provider has control over critical infrastructure in Saudi Arabia.</p>\r\n<p class=\"p1\">The proposed regulations also touch on information security and data protection obligations, including in respect of requirements to classify data for information security purposes, obligations to permit users’ the right to access, verify and/or delete their user data, and obligations to report instances of security breaches and data breaches.</p>\r\n<p class=\"p1\">The proposed regulations include proposals regarding the liabilities and obligations of the parties if unlawful content (including content that infringes intellectual property rights) is processed via a licensed cloud service. Specifically, CITC’s view is that cloud service providers should not be responsible for actively monitoring user content in order to detect and remove or restrict illegal content - but they should be obliged to remove such content or render it inaccessible in Saudi Arabia if directed to do so by the CITC (or some other relevant authority), and otherwise to notify the relevant authorities if they become aware of illegal content.</p>\r\n<p class=\"p1\">Consumer protection is also considered, and the proposed regulations address issues such as minimum contractual terms, whether it is appropriate for certain types of liabilities to be limited or excluded, and the extent and nature of any customer support that cloud services providers should be required to provide.</p>\r\n<p class=\"p1\">This note is a very high level summary of some of the key issues raised in the public consultation document. The deadline for feedback on the twenty questions that CITC has specified in the public consultation document is 18 September 2016.</p>\r\n<p class=\"p1\">The full document is available here, on the CITC website: <a href=\"http://www.citc.gov.sa/en/mediacenter/pressreleases/Pages/20160724001.aspx\" target=\"_blank\" rel=\"noopener\">http://www.citc.gov.sa/en/mediacenter/pressreleases/Pages/20160724001.aspx</a></p>\r\n<p class=\"p6\">Al-Tamimi &amp; Company’s <em>Technology, Media &amp; Telecommunications</em> team regularly advises on issues relating to cloud computing, internet data centres, lawful interception, and data protection related issues. For further information please contact Nick O’Connell (n.oconnell@tamimi.com) or Andrew Fawcett (a.fawcett@tamimi.com).</p>'),
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(100384, 5459, 'content', 'September 2016\r\n\r\n<hr />\r\n<p class=\"p1\">A VPN is a private network that extends across a public network or the internet, enabling users to send and receive data across shared or public networks as if their devices were directly connected. Anecdotally, VPNs appear to be widely used in the UAE, both by consumers wanting to access content unavailable locally (eg. e-commerce or media websites focusing on specific foreign markets), and commercial enterprises wanting to directly link international offices for improved security and cost management.</p>\r\n<p class=\"p1\"><span class=\"s1\"> Many residents of the UAE, and businesses operating in the UAE, were concerned by recent changes to Federal Law No. 5 of 2012 on Combatting Information Technology Crimes (known locally as the “Cyber Crimes Law”). Specifically, Federal Law No. 12 of 2016 amending the Cyber Crimes Law was reported as criminalising the use of VPNs in the UAE. This would have a significant impact on businesses relying on VPNs. However, it appears now that the media largely overstated the effect of these changes. </span></p>\r\n<p class=\"p1\">Federal Law No. 12 of 2016 amending the Cyber Crimes Law was issued last month and has only recently been gazetted and come in to effect.</p>\r\n<p class=\"p1\">Article 1 of Federal Law No. 12 of 2016 amending the Cyber Crimes Law provides for replacing the text of Article 9 of the Cyber Crimes Law as follows:</p>\r\n<p class=\"p2\"><em>A punishment of temporary imprisonment and a fine of not less than AED 500,000 and not more than AED 2,000,000, or either of these two penalties, shall be imposed on whoever uses a fraudulent computer network protocol address by using a false address or a third-party address or by any other means for the purpose of committing a crime or preventing its discovery.</em></p>\r\n<p class=\"p1\">The corresponding provision in the Cyber Crimes Law as issued in 2012 read as follows:</p>\r\n<p class=\"p2\"><em>Any person that circumvents the protocol address of the internet by using a delusive address or an address belonging to others or by any other means for the purpose of committing a crime or preventing its discovery shall be punished by imprisonment and a fine not less than (AED 150.000) and not exceeding (AED 500.000) or by any of these punishments.</em></p>\r\n<p class=\"p1\">The primary change is actually just an increase of the applicable fines (from the previous AED150,000 - AED500,000 range to the new AED500,000 - AED2,000,000 range). The change does not make using a VPN on its own illegal. To be illegal, there is still the requirement of using a fraudulent IP address for the purpose of committing a crime or preventing its discovery (which was already the case under Article 9 of the original Cyber Crimes Law).</p>\r\n<p class=\"p1\"><span class=\"s1\"> Accordingly, if the VPN is being used for legitimate purposes, the use of the VPN itself would not constitute a crime. </span></p>\r\n<p class=\"p1\">Only recently the Telecommunications Regulatory Authority issued a media release clarifying that there is no regulation that prevents VPN used by companies, institutions and banks to gain access to internal networks via the internet. But using it for the purpose of manipulating internet protocols with the intent to commit any fraud or crime is punishable by law.</p>\r\n<p class=\"p1\"><span class=\"s1\"> The over-arching query that remains relates to exactly what is likely to be considered a crime for the purposes of this provision. In practical terms, a broad spectrum of offences could be captured by the prohibition on the use of a VPN to mask the commission of an offence. It is our expectation that the authorities are more interested in the likes of preventing access to nefarious content likely to damage the community (eg. recruitment videos for terrorist groups) than preventing otherwise law-abiding citizens from accessing foreign TV series that are not yet available in the UAE (eg. the latest series of Game of Thrones).</span></p>\r\n<p class=\"p4\">Al Tamimi &amp; Company’s <em>Technology, Media &amp; Telecommunications</em> team regularly advises on issues relating to local telecommunications regulations and media content related issues. For further information, please contact Andrew Fawcett (a.fawcett@tamimi.com) or Sana Saleem (s.saleem@tamimi.com).</p>'),
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(226198, 8182, 'content', '<p dir=\"LTR\" align=\"LEFT\"><img class=\" wp-image-8236 alignleft\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_04_Image_0003.jpg\" alt=\"\" width=\"440\" height=\"376\" />In the UAE, commercial agents are granted numerous statutory rights under the Commercial Agency Law (Federal Law No. 18 of 1981, as amended).</p>\r\n<p dir=\"LTR\" align=\"LEFT\">These rights are designed to protect an agent who may devote considerable effort and costs to build a profitable market for products or services.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In many cases in the UAE, a terminated agent may use the Commercial Agency Law to prevent a foreign principal from registering a replacement agent unless the original agent is paid what is due under the original commercial agency agreement.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In two recent cases, Federal Supreme Court Case 811 of 2017 and Federal Supreme Court Case 814 of 2017 both dated 27 March 2018, the agent’s performance was poor and it was clear that he was in breach of a commercial agency agreement. As a result, he was terminated and the commercial agency struck off the Ministry of Economy’s register. The Federal Supreme Court found that the agent was unable to prove that the termination was unjustified and was not entitled to receive compensation from the principal. The agent was also unable to preclude the principals from registering a replacement agent.</p>\r\n\r\n<h3 dir=\"LTR\" align=\"LEFT\">Background</h3>\r\n<p dir=\"LTR\" align=\"LEFT\">In the early 1980s, two principals (the \"Principals\") appointed an agent (the \"Original Agent\"), to represent them in the UAE. The Original Agent agreed to distribute, sell, and provide services on behalf of the two Principals in relation to three brands, two for Principal 1 and the third for Principal 2.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In 2004, problems arose when the Original Agent failed to pay for shipments within the timeframe agreed (30-90 days). As a result, the Principals obtained guarantees from the Original Agent and sent regular reminders to pay on time. The Principals continued to send shipments (because of the guarantees) and warned the Original Agent that he would be in breach of their commercial agency agreement if he continued to default. If he continued to be in default, the Principals would terminate the agreement.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The Original Agent defaulted under the agreement and a letter of termination was sent to him. The letter included a notice period for the Original Agent to improve and comply with the payment terms agreed upon and to settle all outstanding payments, failing which the agreement would be terminated. The parties attempted but failed to resolve their issues amicably and the Original Agent continued to breach the payment terms.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">According to the Commercial Agency Law, the Minister of Economy is permitted to cancel a commercial agency arrangement if material reasons exist to terminate. The Minister at the time cancelled the commercial agency arrangement based on the letter of termination. Three letters were sent (one for each brand) and the Principals encashed the guarantees in lieu of the outstanding invoices.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The Original Agent filed three administrative cases (two against Principal 1 and one against Principal 2) seeking a declaration that the Minister’s decision was null and void and asking for reinstatement as the agent in the Commercial Agency Register maintained by the Ministry of Economy. The agent argued that, according to Article 14 of the UAE Commercial Agency Law, a meeting should have been called first within 60 days of the letter of termination to address the Principals’ reasons for its request to deregister and to give the Original Agent an opportunity to respond to those reasons. However, the Ministry failed to call such meeting within the 60 day timeframe and the Original Agent argued that the requirements under the law were therefore not met.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The Court of First Instance rejected the Original Agent’s claim and held that the Ministry’s duty was satisfied because of the communications exchanged between the parties. The Original Agent appealed the decision to the Court of Appeal, where he argued that the Court of First Instance was incorrect. He argued that calling a meeting was merely a formality but it existed to protect the rights of the agent. The Principals appealed to the Supreme Court. The Supreme Court upheld the Court of Appeal decision.</p>\r\n\r\n<h3 dir=\"LTR\" align=\"LEFT\">New agents</h3>\r\n<p dir=\"LTR\" align=\"LEFT\">After the Ministry struck the Original Agent from the Commercial Agency Register, the Principals appointed new agents (the \"New Agents\"). Principal 1 appointed two agents for the emirate of Sharjah and the Northern Emirates and a second for the emirate of Abu Dhabi. Principal 2 appointed an agent for the whole of the UAE. Both New Agents were registered in the Commercial Agency Register.</p>\r\n\r\n<h3 dir=\"LTR\" align=\"LEFT\">Court of First Instance judgment on the Original Agent’s request to cancel the registration of the New Agents</h3>\r\n<p dir=\"LTR\" align=\"LEFT\">The Original Agent filed an action to declare the Minister’s decision null and void and also to cancel the registrations of the New Agents. His request was rejected by the Court of First Instance.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">One of the remedies sought by the Original Agent in addition to the request to nullify the Ministry’s decision was the request to be reinstated in the Commercial Agency Register. However, the Court refused this on the basis that the New Agents had already been registered. The Court of First Instance did not issue a decision to cancel the new agency and the Original Agent then filed an appeal.</p>\r\n\r\n<h3 dir=\"LTR\" align=\"LEFT\">Court of Appeal</h3>\r\n<p dir=\"LTR\" align=\"LEFT\">The Original Agent appealed to the Court of Appeal. The Court of Appeal ruled in favour of the Original Agent and declared the Minister’s decision null and void.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">However, the Court of Appeal refused to issue a decision on the deregistration of the New Agents on the basis that this issue was not addressed by the Court of First Instance at the time of issuing its judgment. The Court further ruled that, as this issue was overlooked by the Court of First Instance, the Original Agent could not appeal the Court of First Instance’s decision. He must therefore go back to the Court of First Instance to seek a remedy.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The Original Agent appealed to the Supreme Court, who requested that the matter be referred to three experts (one for each brand). All three experts said that the Original Agent was in breach of his obligations and not entitled to any compensation.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Although the Original Agent won a judgment in its favour, the New Agents were still registered in the Commercial Agency Register. The Original Agent asked the Execution Court to enforce the Court of Appeal judgment and requested to be reinstated as agent, reiterating that the Minister’s decision was declared invalid and therefore the effect of its decision should also be declared null and void. This request was rejected.</p>\r\n\r\n<h3 dir=\"LTR\" align=\"LEFT\">Compensation claims by the Original Agent: Part 1</h3>\r\n<p dir=\"LTR\" align=\"LEFT\">The Original Agent filed three claims (one for each brand) against the Principals. The total claim amount was approximately AED 600 million (representing loss of earnings and expenses).</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The Court of First Instance referred the cases to a panel of experts. The new panel of experts (like the previous panel) concluded that the Original Agent was in breach of the agreements and caused substantial loss to the Principals. The three experts reported that the breaches had been brought to the attention of the Original Agent to no avail. Therefore, they were not entitled to compensation. The Court of First Instance dismissed the three claims and the Original Agent appealed to the Court of Appeal. The Court of Appeal upheld the Court of First Instance judgment. The Original Agent again went to the Supreme Court and the Supreme Court rejected his appeal.</p>\r\n\r\n<h3 dir=\"LTR\" align=\"LEFT\"><img class=\"alignright wp-image-8237\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_05_Image_0001.jpg\" alt=\"\" width=\"304\" height=\"846\" />Compensation claims by the Original Agent: Part 2</h3>\r\n<p dir=\"LTR\" align=\"LEFT\">In 2014, the Original Agent filed three new lawsuits. In the new cases, he claimed approximately a total of AED 5 billion. The Original Agent also included the Ministry, the New Agents and the Principals as defendants to the action.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The Principals raised many defences including res judicata (as this new case was similar to the previous case already decided) and limitation on the grounds the claim was time-barred because the termination was in 2005 and the new claim was filed in 2014. In addition, the Principals also argued that the case should be rejected because of the Original Agent’s breach of his agreement and the fact that there is no standing to sue (there is no relationship between the New Agents and the Original Agent).</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The Court of First Instance accepted the New Agents’ defences and rejected the case against the Ministry. The Original Agent appealed to the Court of Appeal. The Court of Appeal rejected the Original Agent’s appeal.</p>\r\n\r\n<h3 dir=\"LTR\" align=\"LEFT\">Supreme Court of Cassation (final time)</h3>\r\n<p dir=\"LTR\" align=\"LEFT\">The Original Agent appealed to the Supreme Court for the second time. The Supreme Court dismissed the appeal and upheld the Court of Appeal judgment based on the grounds set out in the Court of Appeal decision.</p>\r\n\r\n<h3 dir=\"LTR\" align=\"LEFT\">Summary of case</h3>\r\n<p dir=\"LTR\" align=\"LEFT\">In summary, the Court of Appeal in all matters filed by the Original Agent referred the matter to a panel of experts.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">All three panels confirmed that the Original Agent had committed many breaches such as non-payment of invoices, poor management of the business, lack of customer service and therefore the agent was not entitled to any compensation.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Accordingly, the Federal Supreme Court issued its judgment.</p>\r\n\r\n<ol>\r\n 	<li dir=\"LTR\">It rejected the appeal of the Original Agent and upheld the Court of First Instance judgment in its entirety.</li>\r\n 	<li dir=\"LTR\">It held that the cases should have been filed as a tort claim as it was a request for compensation for a wrongful act because of the alleged wrongful termination.</li>\r\n 	<li dir=\"LTR\">The Original Agent did not substantiate his claims and provide proof of damages allegedly suffered as a result of the agency being struck off the Commercial Agency Register.</li>\r\n 	<li dir=\"LTR\">The New Agents’ involvement in the dispute had no legal basis. The New Agents were not a party to the dispute nor was there any evidence of any damage caused by the New Agents’ appointment.</li>\r\n 	<li dir=\"LTR\">As confirmed by the panel of experts, the Original Agent had breached the terms of the agency agreement by failing to make timely payments to the Principals and did not report declining sales until the business incurred a major loss.</li>\r\n 	<li dir=\"LTR\">The Court of First Instance was correct in dismissing the action against the Principals.</li>\r\n</ol>\r\n<h3 dir=\"LTR\" align=\"LEFT\">Comments</h3>\r\n<p dir=\"LTR\" align=\"LEFT\">The outcome of the case was excellent for the Principals.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The decision confirms that notwithstanding the protections afforded to agents, agents who choose not to perform as expected will not benefit from the protections provided under the Commercial Agency Law.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">This case also demonstrates the importance of substantiating any claims against a non-performing agent to justify termination.</p>'),
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(100350, 5457, 'content', '<p class=\"p1\">2016 kicked off with three new Ministerial Decrees which formed part of the UAE Labour Law reform (see our January 2016 Law Update). Shortly afterwards, the previously named Ministry of Labour was given a make-over and renamed the Ministry of Emiratisation and Human Resources (the ‘Ministry’).</p>\r\n<p class=\"p1\"><span class=\"s1\"> In the past few months alone, the Ministry has issued six new Decrees. While these Decrees have been issued, until such time as they are published in the UAE official gazette (issued monthly), there could still be changes to them and/or they may not subsequently come into force. At the time this Article went to print, the August gazette had not been issued.   </span></p>\r\n<p class=\"p1\">Key themes amongst the recent legislation seem to be a drive to increase the employment of UAE Nationals in the private sector in line with Emiratisation and greater protection for low income workers. Given the recent activity, we thought it timely to set out a summary of these recent developments.</p>\r\n<p class=\"p2\"></p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>Housing for Low Income Workers </strong></span></p>\r\n<p class=\"p1\">Ministerial Resolution Concerning the Commitment of Establishments to Provide Accommodation to their Workers (Resolution No. 591 of 2016) requires employers (with 50 or more employees) to provide accommodation for employees whose total monthly earnings are less than AED2,000. Employers who do have employees who earn under this threshold should look to provide accommodation or alternatively to increase the salaries of those employees.</p>\r\n<p class=\"p1\"><span class=\"s1\"> <em>Status</em> – The Resolution is available on the Ministry’s website and was formally published in the June official gazette. The Resolution itself confirms it will come into force on 1 September 2016 but that the requirement to provide the accommodation will come into force six months after the Resolution was issued i.e. 31 December 2016. </span></p>\r\n<p class=\"p2\"></p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>UAE Data Entry Clerks</strong></span></p>\r\n<p class=\"p1\">Ministerial Resolution Concerning Data Entry Clerks (Resolution No. 710 of 2016) imposes a requirement for any companies with 1,000 or more employees to register with Tas’heel (the Ministry’s online service) details of at least two UAE Nationals in data entry related positions.</p>\r\n<p class=\"p1\">Essentially, the Resolution introduces a requirement for employers to create and have in place two dedicated data entry roles which must be filled by UAE Nationals.</p>\r\n<p class=\"p1\"><em>Status</em> – the Resolution was formally published in the July official gazette and the requirement to have UAE national data entry clearks will come into force from 1 January 2017.</p>\r\n<p class=\"p3\"></p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>UAE National Health and Safety Officers in the Construction Industry </strong></span></p>\r\n<p class=\"p1\">Ministerial Resolution Concerning Occupational Health and Safety Officers at the Constructions and Industrial Sector (Resolution No. 711 of 2016) requires construction companies with 500 or more employees to appoint a UAE national as a Health and Safety Officer.</p>\r\n<p class=\"p1\"><span class=\"s1\"> <em>Status</em> – the Resolution has been published on the Ministry’s website but has not yet been published in the official gazette. On the assumption that it is gazetted this year, the requirement will come into effect on 1 January 2017. </span></p>\r\n<p class=\"p2\"></p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>Work Permits for Students </strong></span></p>\r\n<p class=\"p1\">Ministerial Resolution Concerning the Employment and Training of Students (Resolution No. 713 of 2016) introduces a new short-term work permit for students.</p>\r\n<p class=\"p1\"><span class=\"s1\"> The new work permit will be issued for a duration of three months and will enable students between the ages of 12 -18 years, who are residents in the UAE and under the sponsorship of a guardian/parent to work for no more than six hours a day. Students are however banned from working in certain sectors such as mining, petroleum refineries, bars etc.</span></p>\r\n<p class=\"p1\">The introduction of this short-term work permit is a welcome one as employers who have wanted to offer internships or similar work placement opportunities to the younger generation of workers found themselves restricted by the lack of a work permit for such purpose.</p>\r\n<p class=\"p1\"><em>Status</em> - the Resolution has been published on the Ministry’s website but has not yet been formally gazetted. Once gazetted, employers will be able to start applying for this type of work permit.</p>\r\n<p class=\"p2\"></p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>Penalties for Late Payment </strong></span></p>\r\n<p class=\"p1\">Ministerial Decree Concerning the Protection of Wages (Decree No. 739 of 2016) stipulates that as of 1 October 2016, all companies employing 100 or more staff must pay their employees within 10 days of the payment due date registered in the government monitored Wage Protection System (“WPS”). In practice, however, a company will not face any repercussions until the 16th day of non-payment and penalties will vary depending on how many days the salary has been overdue.</p>\r\n<p class=\"p1\">Where salary is 16 days overdue, the Ministry will stop issuing new work permits to the company on the 16th day and the company will therefore be unable to hire new employees. If the company pays the salary within 29 days of the due date, the ban on new work permits will be lifted. However, if the salary remains overdue on day 30, the Ministry will send this case to the judicial authority, which may decide to:</p>\r\n\r\n<ul>\r\n 	<li>downgrade the company category to a level which requires higher bank guarantees; or</li>\r\n 	<li>temporarily stop the employer from registering any new companies.</li>\r\n</ul>\r\n<p class=\"p6\">The company category (as determined by the Ministry) determines the amount of bank guarantee the company needs to provide in respect of each new employee it hires. Lower category companies pay higher bank guarantees.</p>\r\n<p class=\"p1\">Furthermore, during any period where salary remains unpaid, the company will not be able to hire any new employees.</p>\r\n<p class=\"p1\">In the event salary remains unpaid for 60 days, the Ministry will issue fines of AED 5,000 per unpaid employee up to a maximum of AED 50,000. Where the salaries have been outstanding for over 60 days, even once the employer pays the salary the ban on new work permits will remain in place for a further 60 days from the date the salaries are then paid.</p>\r\n<p class=\"p1\">Although the Decree predominately applies to employers with 100 or more employees, if a smaller employer repeatedly fails to pay salary in a timely manner (more than once in a year) the above sanctions can also be applied to employers with under 100 employees.</p>\r\n<p class=\"p1\"><em>Status</em> – the Decree has been published and is available on the Ministry’s website. However, it has not yet been formally gazetted. It will come into force on publication in the official gazette.</p>\r\n<p class=\"p2\"></p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>In the News – Maternity Rights</strong></span></p>\r\n<p class=\"p1\"><span class=\"s1\">It has been reported in the press that a new national committee has been set up to review maternity rights in the UAE. The review is intended to implement the Government’s ‘Gender Balance Index’ which aims to ensure men and women in the UAE are on a level playing field. </span></p>\r\n<p class=\"p1\">At present, it is unknown whether the law will extend the amount of statutory maternity leave (currently just 45 calendar days) or if it will look to offer mothers greater protection or more rights in relation to their maternity leave and subsequent return in the workplace. However, rest assured we will provide readers with updates as and when they are available.</p>'),
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(100339, 5456, 'pageSummary', 'In the UAE, each Emirate has its own set of tenancy laws which govern the landlord and tenant relationship for use of the leased premises for a fixed term in return for payment of rent. With considerable socio-economic growth over the years in the rental market in UAE, each Emirate has improved upon its tenancy laws to better regulate the relationship between parties. '),
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(100333, 5456, 'content', '<p class=\"p1\">This article sets out a high level overview of the key registration requirements for short term lease agreements in the Emirate of Dubai, Abu Dhabi and Sharjah, as well as repercussions of non registration.</p>\r\n<p class=\"p1\">Next month, we shall focus on the short term lease requirements in the Emirates of Ras Al Khaimah, Umm Al Quwain, Ajman and Fujairah.</p>\r\n<p class=\"p1\">It is mandatory to register a short-term lease in Dubai, Abu Dhabi and Sharjah. There are consequences for not registering a short-term lease which differ from an Emirate to another. Our real estate lawyers based in Dubai, Abu Dhabi and Sharjah offices offer specialised local advice and drafting services on tenancy matters.</p>\r\n\r\n<table class=\"t1\" cellspacing=\"0\" cellpadding=\"0\">\r\n<tbody>\r\n<tr>\r\n<td class=\"td1\" valign=\"middle\">\r\n<p class=\"p1\"><span class=\"s1\"><strong>No.</strong></span></p>\r\n</td>\r\n<td class=\"td1\" valign=\"middle\">\r\n<p class=\"p1\"><span class=\"s1\"><strong>Description</strong></span></p>\r\n</td>\r\n<td class=\"td1\" valign=\"middle\">\r\n<p class=\"p1\"><span class=\"s1\"><strong>Dubai</strong></span></p>\r\n</td>\r\n<td class=\"td1\" valign=\"middle\">\r\n<p class=\"p1\"><span class=\"s1\"><strong>Abu Dhabi</strong></span></p>\r\n</td>\r\n<td class=\"td1\" valign=\"middle\">\r\n<p class=\"p1\"><span class=\"s1\"><strong>Sharjah</strong></span></p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td2\" valign=\"middle\">\r\n<p class=\"p2\">1.</p>\r\n</td>\r\n<td class=\"td2\" valign=\"middle\">\r\n<p class=\"p2\">Applicable Tenancy Laws</p>\r\n</td>\r\n<td class=\"td2\" valign=\"middle\">\r\n<p class=\"p3\">Dubai Law governing the landlord and tenant relationship in the Emirate of Dubai (Law No. 26 of 2007 as amended by Law No. 33 of 2008);</p>\r\n<p class=\"p3\">Amiri Decree No. 43 of 2013 determining the increase in the real estate rentals in Dubai.</p>\r\n</td>\r\n<td class=\"td2\" valign=\"middle\">\r\n<p class=\"p4\"></p>\r\n<p class=\"p2\">Abu Dhabi Law concerning the lease of spaces and the regulation of the tenancy relationship between landlords and tenants in the Emirate of Abu Dhabi (Law No. 20 of 2006 amended by Law No. 6 of 2009 and Law No. 4 of 2010);</p>\r\n<p class=\"p2\">The Chairman of the Executive Council Resolutions Nos. 1 of 2008, No. 33 of 2009, No. 4 of 2011, No. 32 of 2012, No. 13 of 2016 and No. 14 of 2016;</p>\r\n<p class=\"p2\">Executive Council Resolutions Nos. 16 of 2008, No. 56 of 2010, and No. 25 of 2011.</p>\r\n<p class=\"p5\"><span class=\"s2\"><strong> </strong></span></p>\r\n</td>\r\n<td class=\"td2\" valign=\"middle\">\r\n<p class=\"p2\">Sharjah Law regarding the Landlord and Tenant Relationship in Sharjah (Law No. 2 of 2007);</p>\r\n<p class=\"p2\">Executive Council Resolution</p>\r\n<p class=\"p2\">No. 6 of 2013,</p>\r\n<p class=\"p2\">No. 2 of 2010,</p>\r\n<p class=\"p2\">No. 26 of 2007,</p>\r\n<p class=\"p2\">No. 15 of 2007.</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td1\" valign=\"middle\">\r\n<p class=\"p2\">2.</p>\r\n</td>\r\n<td class=\"td1\" valign=\"middle\">\r\n<p class=\"p2\">Dispute Resolution Authority</p>\r\n</td>\r\n<td class=\"td1\" valign=\"middle\">\r\n<p class=\"p2\">The Rental Dispute Settlement Centre</p>\r\n</td>\r\n<td class=\"td1\" valign=\"middle\">\r\n<p class=\"p4\"></p>\r\n<p class=\"p2\">Rent Disputes Settlement Committee</p>\r\n<p class=\"p2\">Appeal Committee</p>\r\n<p class=\"p5\"><span class=\"s2\"><strong> </strong></span></p>\r\n</td>\r\n<td class=\"td1\" valign=\"middle\">\r\n<p class=\"p2\">Rent Dispute Resolution Centre</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td2\" valign=\"middle\">\r\n<p class=\"p2\">3.</p>\r\n</td>\r\n<td class=\"td2\" valign=\"middle\">\r\n<p class=\"p2\">Leases that can be registered</p>\r\n</td>\r\n<td class=\"td2\" valign=\"middle\">\r\n<p class=\"p2\">All short terms leases must be less than 10 years in tenure.</p>\r\n</td>\r\n<td class=\"td2\" valign=\"middle\">\r\n<p class=\"p4\"></p>\r\n<p class=\"p2\">All short term leases not exceeding 4 years in tenure.</p>\r\n<p class=\"p5\"><span class=\"s2\"><strong> </strong></span></p>\r\n</td>\r\n<td class=\"td2\" valign=\"middle\">\r\n<p class=\"p2\">All short term lease agreements not exceeding 5 years in tenure.</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td1\" valign=\"middle\">\r\n<p class=\"p2\">4.</p>\r\n</td>\r\n<td class=\"td1\" valign=\"middle\">\r\n<p class=\"p2\">Registration Fees</p>\r\n</td>\r\n<td class=\"td1\" valign=\"middle\">\r\n<p class=\"p2\">AED 215 is payable as Ejari registration fee for all tenancy contracts (commercial and residential)</p>\r\n</td>\r\n<td class=\"td1\" valign=\"middle\">\r\n<p class=\"p4\"></p>\r\n<p class=\"p2\">AED 100 for the registration of a lease agreement with Tawtheeq.</p>\r\n<p class=\"p2\">Additional fees shall be payable for registering the data of property units on Tawtheeq, opening a Tawtheeq account, obtaining login details, etc.</p>\r\n<p class=\"p5\"><span class=\"s2\"><strong> </strong></span></p>\r\n</td>\r\n<td class=\"td1\" valign=\"middle\">\r\n<p class=\"p2\">4% of the annual rent for residential contracts;</p>\r\n<p class=\"p2\">5% of the annual rent for commercial contracts;</p>\r\n<p class=\"p2\">3% of the annual rent in case of investment contracts.</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td2\" valign=\"middle\">\r\n<p class=\"p2\">5.</p>\r\n</td>\r\n<td class=\"td2\" valign=\"middle\">\r\n<p class=\"p4\"></p>\r\n<p class=\"p2\">Fees to obtain the standard contract documentation</p>\r\n<p class=\"p5\"><span class=\"s2\"><strong> </strong></span></p>\r\n</td>\r\n<td class=\"td2\" valign=\"middle\">\r\n<p class=\"p2\">There is no standard contract documentation.</p>\r\n</td>\r\n<td class=\"td2\" valign=\"middle\">\r\n<p class=\"p2\">AED 50</p>\r\n</td>\r\n<td class=\"td2\" valign=\"middle\">\r\n<p class=\"p2\">AED 50</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td1\" valign=\"middle\">\r\n<p class=\"p2\">6.</p>\r\n</td>\r\n<td class=\"td1\" valign=\"middle\">\r\n<p class=\"p2\">Where to register?</p>\r\n</td>\r\n<td class=\"td1\" valign=\"middle\">\r\n<p class=\"p2\">RERA (Real Estate Regulation Agency)</p>\r\n</td>\r\n<td class=\"td1\" valign=\"middle\">\r\n<p class=\"p2\">Tawtheeq at Abu Dhabi Municipality</p>\r\n</td>\r\n<td class=\"td1\" valign=\"middle\">\r\n<p class=\"p4\"></p>\r\n<p class=\"p2\">Sharjah Municipality (for registration until 1 September 2016);</p>\r\n<p class=\"p2\">All registrations from 1 September 2016 will be completed online through an electronic system.</p>\r\n<p class=\"p5\"><span class=\"s2\"><strong> </strong></span></p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td2\" valign=\"middle\">\r\n<p class=\"p2\">7.</p>\r\n</td>\r\n<td class=\"td2\" valign=\"middle\">\r\n<p class=\"p2\">Effects of non registration</p>\r\n</td>\r\n<td class=\"td2\" valign=\"middle\">\r\n<p class=\"p2\">Whilst there are no penalties for non registration, the tenant is likely to face practical problems for example when renewing trade licenses, visa sponsorships and utility connections.</p>\r\n</td>\r\n<td class=\"td2\" valign=\"middle\">\r\n<p class=\"p2\">An unregistered lease may not be recognised by Abu Dhabi government authorities as it has not been registered with Tawtheeq. Article 4 paragraph 2 of Abu Dhabi the Chairman of the Executive Council Resolution No. 4 of 2011 provides that any transaction, which requires a lease contract will not be accepted and will be suspended if the lease contract is not registered with Tawtheeq.</p>\r\n</td>\r\n<td class=\"td2\" valign=\"middle\">\r\n<p class=\"p4\"></p>\r\n<p class=\"p2\">Article 3 of Law No. 2 of 2007 states that if the party obligated to register the lease fails to do so with the specified time frame, the other has the right to request an execution judge to force the party to fulfil its obligation. Secondly, non registration of lease contracts will attract a fine equal to three times the registration fee upon the party who was obligated to register it. Lastly, the Sharjah Municipality or government departments or institutes may not refer to an unregistered lease contract in any dispute or transaction or to provide a service.</p>\r\n<p class=\"p5\"><span class=\"s2\"><strong> </strong></span></p>\r\n</td>\r\n</tr>\r\n</tbody>\r\n</table>\r\n&nbsp;'),
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(92568, 5029, 'content', 'November 2014\r\n\r\n<hr />\r\n\r\n<strong>The Use of Trust Receipts</strong>\r\n\r\nTrust receipts assist importers in refinancing their payment obligations upon the maturity of a letter of credit (“LC”). Following payment of the purchase price by the LC issuing bank (or after an agreed period), the importer is required to reimburse the issuing bank. Until such time as the importer reimburses the LC issuing bank, the documents of title relating to the goods imported (e.g. bills of lading) are retained by the bank and this will prevent the importer from on-selling the goods. Law No 27 of 2006 (the “Commercial Code”) states that the LC issuing bank has a lien over the bills of lading until such time as the importer (being the LC issuing bank’s customer) reimburses the LC issuing bank for payments made towards purchase of the goods that have been imported.\r\n\r\nThe key issue here is one of cash flow management for the importer. The importer will prefer to first sell the goods imported before settling its payment obligations to the LC issuing bank. The trust receipt arrangement allows the LC issuing bank to release the documents of title relating to the imported goods to the importer while retaining its ownership interest in the said goods.\r\n\r\n<strong>Trust Receipts Generally</strong>\r\n\r\nThe trust receipt arrangement provides the bank with a form of quasi-security by virtue of the bills of lading relating to the imported goods being made to the order of the bank. The bank releases the bills of lading to the importer and permits the importer to sell the goods on the condition that the proceeds of sale are used to repay the bank.\r\n\r\nThe following are the typical steps in a trust receipt transaction:\r\n<ul>\r\n 	<li>The LC issuing bank (the “Bank”) issues an LC to the exporter at the request of the importer (i.e. the customer of the Bank (the “Customer”)).</li>\r\n 	<li>The exporter will provide shipping documents including a bill of lading to the order of the Bank to comply with the terms of the LC.</li>\r\n 	<li>Once the complying documents under the LC are provided to the Bank, the Bank makes payment to the exporter and the Customer is required to reimburse the Bank for the payments made to the exporter (the “LC Reimbursement Amount”).</li>\r\n 	<li>At this stage, the LC Reimbursement Amount will be treated as a short-term loan from the Bank to the Customer.</li>\r\n 	<li>The bills of lading will be released to the Customer after the Customer signs a Trust Receipt.</li>\r\n</ul>\r\nUnder the trust receipt, the bank is the owner of the goods and the Customer undertakes to deal with the goods represented by the bills of lading as the agent of the Bank. The proceeds of the sale of such goods are to be deposited by the Customer with the Bank and used to repay the LC Reimbursement Amount. The trust receipt ensures that the Bank retains its title in the goods while releasing the right to deal in the goods to the Customer.\r\n\r\n<strong>Trust Receipts under Qatar Law</strong>\r\n\r\nTrust receipts are not defined under the laws of Qatar, however they are used in Qatar as a method of import financing.\r\n\r\nAt the outset it is pertinent to consider the status of a bill of lading under Law No 15 of 1980 (the “Maritime Code”). Under Article 146 of the Maritime Code a bill of lading can be negotiated by endorsement (unless the bill of lading restricts negotiation). The holder of a bill of lading is entitled to take possession of the goods represented by the bill of lading. Further, Article 970 of the Civil Code (Law No 22 of 2004) states that possession of a moveable object or a negotiable instrument representing the movable object creates a presumption of ownership.\r\n\r\nUnder trust receipt arrangements, the bill of lading is either endorsed to the Bank or made to the order of the Bank. Therefore, there is a presumption of ownership of the goods (underlying the bill of lading) in favour of the Bank. The Bank can then deal with the goods by appointing the Customer as its agent to sell the goods on its behalf.\r\n\r\nUnder the trust receipt, the relationship of the Customer and the Bank is one of principal and agent. Article 716 of the Civil Code defines an agency as a contract by which an agent undertakes to perform a legal action for the principal. The agent should not exceed the limits of the scope of the agency unless it is impossible to obtain the consent of the principal for the overreaching of the scope (Article 722).\r\n\r\nArticle 362 of the Penal Code states that with respect to breach of trust “a penalty of not more than three years in prison and a fine of not more than ten thousand Riyals [USD 2,800] shall apply to a person who misappropriates, uses, or misuses amounts of money, bonds or any other movable properties to harm the holders or the possessors whenever delivered under a contract of trust, rent, mortgage or a proxy”.\r\n\r\nThe Qatari Court of Cassation, in judgment No. 70 of 2005, also confirmed that there are five types of “trust” or “Amana” contracts in light of Article 362 of the Penal Code. These are:\r\n<ol>\r\n 	<li>Trust;</li>\r\n 	<li>Lease;</li>\r\n 	<li>Use without consideration “E’ara”’</li>\r\n 	<li>Pledge; and</li>\r\n 	<li>Agency.</li>\r\n</ol>\r\nTherefore, the breach of any of the trust receipt arrangements (being a form of agency) would constitute a breach of trust which is subject to a penalty under Article 362 of the Penal Code.\r\n\r\n<strong>Re-Characterization Risk</strong>\r\n\r\nUnder other GCC laws (such as the UAE Commercial Code) there is a clear reference to the trust receipt structure described above. However, in Qatar while there is a legal basis to establish the trust receipt arrangement, there are no specific provisions in the Commercial Code governing the same. There is therefore a risk that a Qatari court may treat the trust receipt arrangement as a simple loan and security arrangement and not accept the presumption of ownership in favour of the Bank.\r\n\r\nTo counter this, in addition to endorsement of the bill of lading in favour of the Bank, the rights under the sale contract or invoice relating to ownership of the goods should also be transferred to the Bank. The court may then construe this as a security under Article 234 of the Commercial Code where possession of the goods has been transferred to the Bank as security such that the ownership of the goods is vested in the Bank and not the Customer.\r\n\r\n<strong>Tracing and Comparison with position in the UAE</strong>\r\n\r\nFrom the Bank’s perspective, if the Customer fails to deposit the sale proceeds from the goods with the Bank, the Bank will want recourse to such proceeds. The Commercial Code in Qatar does not have a specific provision that gives the Bank recourse to the proceeds of sale. The position in other GCC states is different. In the UAE the situation is covered by Article 439(5) of the UAE Commercial Transactions Law (UAE Law No 18 of 1993), which states that the Bank will have recourse to the goods as well as the proceeds of sale of the goods under a trust receipt arrangement. In Qatar, the Bank will rely upon the rules of agency to have such recourse. That said, there are some inherent practical difficulties with this arrangement as the control over the goods will ultimately remain with the Customer.\r\n\r\n<strong>Conclusion </strong>\r\n\r\nAlthough Qatar does not have a specific law addressing the use of trust receipts, their use remains common and is likely to remain so. Nonetheless, it would give users of trust receipts more confidence and clarify a number of issues if Qatar adopted the legislative measures taken in other GCC states, in particular the UAE.'),
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(92589, 5030, 'content', 'November 2014\r\n\r\n<hr />\r\n\r\n<strong>An Overview</strong>\r\n\r\nThe Foreign Account Tax Compliance Act (“FATCA”) is a United States (“US”) federal law with global reach aimed at curbing offshore tax evasion by US persons. FATCA draws its roots from Chapter 4 of the US Internal Revenue Code, enacted by the Hiring Incentives to Restore Employment Act 2010. The legislation aims to obtain information in connection with offshore accounts and investments directly or beneficially owned by US persons either by voluntary disclosure of accounts by such persons or by disclosure to the Internal Revenue Service (“IRS”) by the foreign financial institutions (“FFIs”) holding such accounts/investments. Failure of the FFIs to disclose or comply with the reporting requirements laid down under FATCA may lead to the IRS imposing a 30 percent withholding charge on the FFIs’ source investment income and proceeds from sale generated within the US. The criteria to apply such withholding tax is wide and may be charged by the IRS against any financial instrument/assets including bank accounts, trading in money market institutions, bills, certificates of deposit, derivatives, transferable securities, commodity futures trading, individual and collective portfolio management and other financial assets, interest, dividends and rents having their source in the US.\r\n\r\nWhilst to some this might look as an attempt by the US to collect tax from foreign entities through the proposed withholding regime, FATCA’s primary focus is to detect, deter, and discourage offshore tax abuses through increased transparency, enhanced reporting, and strong sanctions. To date, more than 80 nations, including China and Russia, have taken steps to enable their financial institutions to comply with FATCA.\r\n\r\n<strong>Inter-governmental Agreements </strong>\r\n\r\nThe obligations imposed by the FATCA regime do not take into account domestic laws (for example, data protection rules and confidentiality issues) which prohibit the sharing of the information sought by the IRS. As a result, even if an FFI is willing to share information, it may be in violation of local laws and be exposed to regulatory sanctions and potential lawsuits in the jurisdiction they operate. In light of the global reach of the FATCA regime and to manage the potential conflict with domestic laws, the US Treasury proposed the creation of an intergovernmental framework to enable compliance and reporting via intergovernmental agreements (“IGAs”). The IGAs have been modeled in two forms: Model 1 and Model 2. The two forms are primarily distinguished from each other on the basis of the reciprocity and reporting requirements. Model 1A requires a reciprocal relationship between the US and the partner jurisdiction under which FFIs in that partner jurisdiction would be required to report to their respective regulators which would in turn report to the IRS and vice versa. Model 1B does not require a reciprocal relationship between the US and the partner jurisdiction. Model 2 on the other hand requires FFIs intending to comply with FATCA requirements to directly report to the IRS in accordance with the requirements of FATCA.\r\n\r\nWith a commitment to strengthening financial stability and supporting banks and financial institutions by reducing the burden of compliance with FATCA for individual FFIs, many partner jurisdictions have commenced or completed IGA negotiation with the US. The United Arab Emirates (“UAE”) and the US reached an agreement in substance in May 2014 to include the UAE on the list of jurisdictions to be treated as having an IGA in effect. The UAE has agreed to adopt Model 1B. The result of this decision is that FFIs within the UAE have to comply with the requirements of the IGA with effect from 1 July 2014. At present, the final form of the IGA has yet to be concluded but it is understood this should happen before the end of 2014.\r\n\r\n<strong>Obligations under the Model 1B IGA (“UAE IGA”)</strong>\r\n\r\nRequirements under the UAE IGA can be divided into the following categories:\r\n\r\na. Classification Requirements: In order to meet the requirements under FATCA, an FFI within the UAE will inter alia need to:\r\n<ol>\r\n 	<li>Determine whether it is an entity within the scope of FATCA. If an FFI is within the scope of FATCA, the FFI will have to register as an FFI under the applicable category on the FATCA registration system hosted on the website of the IRS by 31 December 2014.</li>\r\n 	<li>Identify the products and services it offers which fall within the purview of FATCA.</li>\r\n 	<li>Obtain such information regarding each of its account holders (individuals/entities) and counterparties as is necessary to determine which accounts have affiliation to the US. As a first step, FFIs must identify and document account holders (new and existing) with US indicia. US indicia for individuals includes such factors as US citizenship (passport or green card holder) or US residency, US place of birth and, for entities, factors such as incorporation in the US, establishment in the US for tax purposes and a US tax identification number.</li>\r\n 	<li>Obtain relevant self certification of status for account holders as to its US tax status (or documentary evidence, if permitted) and waivers, if required.</li>\r\n</ol>\r\nb. Reporting Requirements: Once information on account holders is collected, the FFIs will need to make necessary disclosures and share information with their regulator to enable the transfer of such information to the IRS. For instance, onshore banks in the UAE would need to liaise with the UAE Central Bank, collective investment funds would liaise with the UAE’s Securities and Commodities Authority and entities incorporated within the DIFC and regulated by the Dubai Financial Services Authority (“DFSA”) would need to liaise with the DFSA. Such disclosures are to be made on an annual basis and are to commence in 2015. Account holder information to be provided to the IRS inter alia includes:\r\n<ul>\r\n 	<li>the name, address and taxpayer identification number or social security number of each US affiliated account holder;</li>\r\n 	<li>the account number of such person or entity;</li>\r\n 	<li>the account balance or value;</li>\r\n 	<li>other information regarding income and transactions.</li>\r\n</ul>\r\nc. Withholding Requirements:  FFIs in the UAE will benefit from the UAE IGA between the UAE and the US since FATCA’s withholding requirements will not apply to such FFIs provided they are in compliance with the UAE IGA. As a penalty for non-compliance of the requirements under the FATCA, FFIs would be required to withhold 30 percent from US source payments made to non-participating/non-complying financial institutions or non-complying account holders. Other compliant partner jurisdictions’ FFIs, which act as intermediaries with respect to withholdable payments, are required to provide information to the paying entity about applicable payments for withholding and reporting purposes.\r\n\r\n<strong>Impact of FATCA</strong>\r\n\r\nWith the large number of US tax obligors living in or otherwise having financial accounts in the UAE, FATCA compliance is important to both UAE financial institutions and to US individuals and entities holding accounts with such institutions. All customers of FFIs within the UAE should be aware that they are likely to be asked if they have any US indicia and to make declarations in respect of the existence of such indicia. US persons should expect greater due diligence requirements from FFIs when opening accounts and a more rigorous on-boarding process. FFIs have the largest burden of having to first determine if FATCA applies to them and then ensure their systems are capable of collecting the necessary information. Additionally, FFIs must be aware of their counterparties’ FATCA compliance and ensure their terms and conditions do not inhibit compliance with FATCA. This includes having in place mechanisms for monitoring account balances and changes in status of accounts and account holders to stay in line with FATCA. Finally, FFIs within the UAE must be mindful of the relevant time frames in order to avoid being in contravention of FATCA requirements and exposing itself to any form of withholding charge.'),
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(92610, 5031, 'content', 'November 2014\r\n\r\n<hr />\r\n\r\nSome governments have provided assistance to private providers, primarily by engaging them to manage public facilities and reimbursing them for treating government-funded or insured patients. Generous cash incentives and a guaranteed supply of patients have been offered to top-rated international teaching hospitals, the aim of which is to ensure that reputable and well recognised provider brands will create competition and raise standards of care throughout the region.\r\n\r\nCompetition in the healthcare market must be properly regulated to ensure that public or insurer funds are appropriately spent and that the opportunity for corrupt practices is extinguished. It is impractical, for example, to guarantee a certain volume of patients for all private providers, as such guarantees are costly and reduce the incentive for providers to raise their quality and compete for patients. Since most private providers compete with public facilities to attract patients, governments must create a fair system in which both public and private healthcare providers issue claims and receive appropriate reimbursement for their services.\r\n\r\n<strong>Incentive payments for healthcare services</strong>\r\n\r\nIt is reported that a practice has evolved across the region in which, following reimbursement by an insurer to a laboratory or diagnostic imaging center, the service provider pays a percentage of its fee back to the hospital or clinic requesting the service.  Such payments are typically described as a referral fee, or commission fee, or ‘kickback’.\r\n\r\nThe practice of paying kickbacks is incompatible with the laws of most established international jurisdictions. For example in the United States, federal anti-kickback laws and the ‘Stark’ laws have curtailed the practice of commission payments and self-referral, where the referring physician is found to be referring patients to another facility in which that physician has a personal financial interest. In the UK, the government is consulting with the healthcare sector with a view to introducing the ‘NHS National Tariff Payment System’ which will regulate how hospitals and providers are paid. Private providers must sign-up for the scheme, agree to be regulated, and provide undertakings.\r\n\r\nIn the UAE, the Emirates of Abu Dhabi and Dubai have introduced mandatory insurance schemes to fund healthcare services (Abu Dhabi Law No.23 of 2005 and Dubai Health Insurance Law No.11 of 2013, respectively). Reimbursement controls are in place. In Abu Dhabi, the Health Authority-Abu Dhabi (HAAD) has introduced a policy on health insurance fraud and abuse which states that kickbacks are to be regarded as health insurance fraud.  In addition, HAAD has introduced a standard provider contract requiring all contracts between insurers and providers to meet minimum standard terms and conditions.  It is a condition of such contracts that reimbursement of healthcare fees are made in accordance with a mandatory tariff, which dictates the price paid for basic services. Together these measures should stop the practice of insurance payments being used to pay commissions or kickbacks between providers.\r\n\r\nIn an attempt to curb such practices, HAAD issued Circular (DG 16/14) on 1 May 2014 relating to ‘Kickbacks in Medical Laboratory Services’ requiring compliance with mandatory local insurance laws, and Federal Law No. 10 of 2008 concerning Medical Liability, and prohibiting the payment of “commissions and financial incentives or making illegal profits” when referring patients for medical tests. This was quickly followed by a local insurer requiring that providers sign an ‘Anti-Incentives Undertaking Letter’ that they will ensure strict compliance with the contractual requirements of the contract together with an undertaking that no volume incentives or commissions are being paid for ordering services. Violation of the undertaking will constitute a material breach of the contract in respect of which the insurer will take any necessary legal action, including termination of the contract and reporting of the facility to HAAD. If this approach is successful, other healthcare insurers across the region are likely to require providers in their locality to give similar undertakings.\r\n\r\nEfforts to curb kickback payments are likely to have the most significant impact on the smaller secondary care private providers, such as those providing medical laboratory services or specialist diagnostic imaging centers, which generate much of their revenue from the larger hospitals or clinics proving primary care services and rely on receiving a certain volume of business from those primary providers. One way of securing referrals is to pay kickbacks, so if this practice is no longer permitted providers will need to compete for business by being more creative, and offering commercially attractive reasons for using their services, developing closer business relationships with primary care providers, and entering into service contracts securing exclusivity of referrals.\r\n\r\n<strong>Incentive payments in the pharmaceutical sector</strong>\r\n\r\nThe pharmaceutical industry has recently come under scrutiny once again for the practice of offering bribes. GlaxoSmithKline was recently fined $489 million for corruption in China and is now looking into allegations of corruption in the United Arab Emirates.\r\n\r\nNew entrants to the GCC pharmaceutical market should familiarise themselves with high-level policy initiatives currently under discussion at the Council of Ministers of Health at the GCC which will control the prices and discounts which may be offered on medicines. A mechanism to standardise medicine prices in member countries of the GCC is expected to be implemented in stages over the next four years, and which will be aimed at reducing and maintaining uniform prices of medicines and profit margins.\r\n\r\nThe UAE was one of the first GCC countries to introduce price controls for medicines.  Article 64 of Federal Law No. 4 of 1983 concerning the Profession of Pharmacy and Pharmaceutical Institutions, prescribes controls over the price of medicines and pharmaceutical preparations, and regulates the payment process between all parts of the payment chain, from distributor through to patient. Ministerial Resolution No. 834 of 2008 clarified how to calculate drug prices, and Ministerial Resolution No. 171 of 2011 regulates the profit margins of distributors and pharmacies, and prohibits the offer of bonuses or discounts other than in accordance with the fixed margins. All commissions, incentives or any offer of a financial benefit are subject to these regulations, which are strictly enforced.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThe region’s population is expected to exceed 50 million by 2020, which will increase consumption of healthcare services. The GCC healthcare market is expected to grow at the rate of 12% per annum to meet the demand, with outpatient markets expected to account for 79% of overall market-share.  The demand for healthcare services will create scope for increased insurance penetration, and in order that costs remain affordable, extinguishing corrupt claims and reimbursement practices will become a priority. The GCC countries are tackling the regional issue of corruption, having all become signatories to the United Nations Convention against Corruption (UNCAC).\r\n\r\nIn the UAE, Federal Decree No. 8 of 2006 implements UNCAC, and a new federal anti-corruption law aimed at curbing misappropriation of public money is currently awaiting implementation. Bribery is governed by Federal Law No. 3 of 1987 (the Penal Code), and in Dubai, local laws have been introduced governing the recovery of public and private monies obtained illegally. The combination of regional pressure, coupled with local law and health policy, has created a barrier to corrupt practices in general, and the practice of paying kickbacks specifically, and requires that providers act in accordance with sound legal and ethical principles when competing for their share of the healthcare market.\r\n\r\n&nbsp;'),
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(92625, 5032, 'content', 'November 2014\r\n\r\n<hr />\r\n\r\nOver the past year, beIN Sports has been the subject of significant press attention as a result of repeated ‘black outs’ in its coverage of English Premier League football matches due to online piracy of its live transmissions. This article gives an overview of illegal sports streaming and also highlights some of the key issues faced by broadcasters in the Middle East in their battle against piracy.\r\n\r\n<strong>beIN Sports example</strong>\r\n\r\nbeIN Sports, the Qatar-based channel group, has exclusive live rights to English Premier League matches across multiple countries within the MENA region. The network is the subject of ongoing press attention because over the course of the last year it has blocked a number of games to which it has the live rights. This has resulted in complaints from disgruntled fans who have paid subscriptions to access channels in good faith, in the expectation that certain matches will be made available.\r\n\r\nReportedly, the key issue behind beIN Sports blocking such matches is that broadcasts were being illegally re-broadcast into other territories, such as the UK, where beIN Sports does not hold the rights. The Saturday 3pm English Premier League games are particularly popular for illegal re-distribution because Sky and BT in the UK are restricted from broadcasting those matches domestically (a historical decision taken to preserve ground attendance at lower league fixtures).\r\n\r\n<strong>The scale of the problem</strong>\r\n\r\nThe beIN Sports case is merely one example of a much broader problem. A large number of popular peer-to-peer and unicast website services enable users to view pirated streams of live sports, including football, for free. To give a sense of the scale of the problem, it has been reported that the English Premier League has detected and removed more than 45,000 illegal internet streams of its matches during the 2013 - 2014 football season. Following a recent arrest in the UK, it was estimated that the series of offending sites contributed to a loss across the relevant subscription services of more than £10 million.\r\n\r\nThe film and music industries experience similar problems with illegal file downloads. However, unlike downloading, when you stream the information is essentially broken down into packets of data that are then sent across the internet and reassembled on receipt. This means that live streams play near-instantly. Illegal streaming of sports therefore significantly undermines the economic value of broadcasting rights in the live coverage. If live coverage is available via the internet for free, then the rights holder will not be able to generate as much revenue from selling the live broadcast rights on an exclusive basis.\r\n\r\nArguably the effect of such economic loss is not just felt by the rights holder and licensees. The football industry is a good example of where revenue generated from the sale of broadcast rights is, in part, put back into the clubs.\r\n\r\nWith the wide availability of fast internet connections in the Middle East and a multi-cultural population with varied sports interests, these sites are popular. It is unfortunate that the disruption to beIN Sport’s football coverage (as a result of illegal viewing overseas) is reportedly driving usage of such sites by consumers in the region in order to access those matches that are deliberately not being shown.\r\n\r\n<strong>Broader television piracy issues in the Middle East</strong>\r\n\r\nWhilst illegal file sharing of premium movies, television series and sports content remains a serious problem in the region, broadcasters tend to be focused on the fight against satellite piracy. In particular, broadcasters are clamping down on (i) pirate satellite channels (airing premium content without licences from the content owners) and (ii) the importation of set-top boxes and other hardware components from overseas, which can be utilised to give customers access to hundreds of legitimate channels at a lower price point than the incumbent offerings. It has been reported that in excess of one million set-top boxes capable of allowing illegal access to pay TV channels are imported into the GCC every year.\r\n\r\nAlthough copyright legislation exists across the region, illegitimate services seek to exploit the difficulties of enforcement in particular jurisdictions. UAE copyright law, for example, states that a “broadcast authority” has the “Right to cease any communication of its records or programmes to the public in any manner, without [its] authorisation”. The provision goes on to clarify that “Recording, copying, reproducing, renting out, broadcasting or re-broadcasting or presenting the same to the public in any medium shall be deemed as illegal exploitation”. A “broadcast authority” means any authority which “carries out any radio audio, visual or audio-visual transmission”. This therefore gives UAE broadcasters a degree of legislative protection. However, in practice it can be very difficult to identify the companies that are responsible for infringing the broadcasters’ rights. Infringing entities may hide behind shell companies and broadcast into the UAE from other jurisdictions or via the internet.\r\n\r\nThe cost and difficulty of taking legal action (which is a common theme across many jurisdictions) is leading stakeholders to consider other options. For instance, when it comes to addressing online piracy (whether through illegal streaming or downloading), some governments are working directly with the ISPs to restrict access to offending sites. Another option is to target advertisers and agencies in an attempt to cut a key source of funding for such websites. For example, the City of London specialist intellectual property unit has created a list of illegal websites which advertisers and agencies can reference to ensure their clients’ brands do not appear on those sites. The police and other regulatory authorities have a key role to play when it comes to enforcement in the context of satellite piracy.\r\n\r\nOther options include pay-TV companies making value-for-money services more easily available. Increasingly we are seeing regional broadcasters buying the rights to make premium television series available on or shortly after the date the shows are broadcast in their countries of origin and video-on-demand offerings are ever improving. Another tack is to invest in monitoring systems, improved encryption and set-top box technology.\r\n\r\nEducation of consumers is also key. It is important for consumers to understand that ultimately, piracy affects consumers because it damages the industries that create the content they enjoy. The case in point of beIN Sports is evidence of piracy having a direct negative effect on fans.\r\n\r\nRachael Hammond (r.hammond@tamimi.com) is an Associate in the Technology, Media and Telecommunications team and a member of Al Tamimi &amp; Company’s dedicated Sports Law practice. Rachael regularly provides commercial and regulatory advice to clients on broadcast and digital media related issues.'),
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(92644, 5033, 'content', 'November 2014\r\n\r\n<hr />\r\n\r\nIt is timely that the Health Authority - Abu Dhabi has recently introduced regulations to define minimum standards for telemedicine as a means to provide healthcare services to patients in the Emirate of Abu Dhabi.\r\n\r\n<strong>What is Telemedicine?</strong>\r\n\r\nThe term “Telemedicine” generally refers to the use of information and communications technology to transfer medical information from one site to another to improve a patient’s clinical health status.\r\n\r\nRemote diagnosis and consultation through the application of telecommunications is not a new phenomenon. For example, back in the 1930s pioneers living in remote areas of Australia used two-way radios to communicate with the Royal Flying Doctor Service.\r\n\r\nHowever advances in technology together with the growing availability of broadband on ultra fast fiber and 4G mobile networks means that right now telemedicine is rapidly evolving  to cover a variety of applications using voice, video or image data.\r\n\r\nPatient consultations via video conferencing, transmission of medical images, remote patient monitoring, e-health patient portals and continuing medical education are all now part of telemedicine.\r\n\r\nAlthough most medical specialities lend themselves, at least in part, to having evaluations performed using telemedicine, specialities that require less direct patient contact, such radiology or pathology, have  to date tended to be the best candidates for telemedicine.\r\n\r\nNow mobile telemedicine is posed for significant innovation.  While there are already many consumer focused telemedicine apps available, with big brands like Apple and Samsung making significant pushes into the area, telemedicine could soon become a mainstream proposition.\r\n\r\nApple recently unveiled its new Health app for health and fitness data and a cloud-based information platform known as “HealthKit” that can integrate data from across different providers and which is open to developers.  HealthKit has been included by Apple in iOS8 the iPhone’s new operating system that has just been released in conjunction with the iPhone 6.\r\n\r\nApple has also announced “partnerships” with a number of large healthcare institutions for developing consumer facing healthcare apps.  These partners include Epic Systems, one of the largest suppliers of electronic medical record systems in the United States.\r\n\r\nSamsung has unveiled a new hardware reference design called Simband for developers building devices or applications that leverage data captured through wrist‒worn sensors (either Samsung’s or other manufacturers). The Simband connects to Samsung’s new, open source SAMI platform, which uses a mix of hardware and a cloud backend for sensor data. Samsung hopes its new software platform will bring together data from various sources to provide more helpful health data analysis\r\n\r\n<strong>Benefits</strong>\r\n\r\nThe principle benefits of telemedicine include:\r\n<ul>\r\n 	<li>Improved access  – Telemedicine allows patients living in remote areas to receive clinical care from doctors or specialists at a distance. Similarly, it allows the specialists and health facilities to expand their reach beyond their physical premises.</li>\r\n 	<li>Convenience – Rather than have to visit a doctor’s surgery for a consult, patients can do so from the comfort of their own home without exposing them to other sickly patients.  This reduces travel time and stress for the patient and possible transmission of infectious illnesses.</li>\r\n 	<li>Cost Efficiencies – Telemedicine can reduce the cost of healthcare and increase efficiency by better management of chronic diseases, sharing of professional staffing, reduced travel and fewer or shorter hospital stays.</li>\r\n</ul>\r\nBy contrast, one of the main disadvantages with telemedicine is the perceived risk that personal health information may be compromised by transmission and offsite storage.\r\n\r\nRegulators around the world have sought to set standards that balance enhancing the portability of personal health information for the better integration of health services, while at the same time improving accountability to protect the confidentiality of that shared information.\r\n\r\nFor example, in the US the Health Insurance Portability and Accountability Act 1996 sets out privacy and security standards for the use and distribution of health care information. The privacy rules regulate the use and disclosure of personal health information, while the security rules impose administrative, physical and technical security safeguards for electronic personal health information.\r\n\r\n<strong>HAAD Telemedicine Regulations for the Emirate of Abu Dhabi</strong>\r\n\r\nConsistent with the Abu Dhabi Economic Vision 2030 to develop a robust, world-class healthcare sector in the Emirate, in recent months the Health Authority - Abu Dhabi (“HAAD”) has introduced regulations to define minimum standards for telemedicine as a means to provide healthcare services to patients in the Emirate of Abu Dhabi.\r\n\r\nThe HAAD Service Standards for Tele-counseling in the Emirate of Abu Dhabi, which came into effect on 25 November 2013 (“Tele-counseling Standard”), defines minimum standards for the use of tele-counseling and aims ensure the integrity of physician – to - physician counseling conducted via telemedicine interfaces.\r\n\r\nThe HAAD Standards for Tele-consultation in the Emirate of Abu Dhabi, which came into effect on 20 March 2013 (“Tele-consultation Standard”), defines minimum standards for the use of tele-consultation and aims to ensure the quality and safety of physician – to – patient telemedicine services.\r\n\r\nImportant features of the Tele-consultation Standard are, amongst other things:\r\n<ul>\r\n 	<li>It defines the services that may be offered through tele-consultation services.  Invasive clinical interventions are excluded.</li>\r\n 	<li>Outlines the principles of patient consent that have to be upheld.</li>\r\n 	<li>Requires that healthcare facilities wishing to provide tele-consultation services must  be a HAAD licensed healthcare facility specifically licensed to provide  tele-consultation  or an existing HAAD licensed facility that is authorized  by HAAD to provide tele-consultation.</li>\r\n 	<li>HAAD regulates healthcare professional’s use of tele-consultation under the existing professionals licensing requirements (i.e. no tele-medicine licence will be required or issued for healthcare professionals wishing to provide tele-consultation services).</li>\r\n</ul>\r\n<strong>Key features of the Tele-counseling Standard are:</strong>\r\n<ul>\r\n 	<li>It is the responsibility of the originating HAAD licensed healthcare facility/provider/professional to ensure that tele-counseling services are only sought from providers authorised by HAAD (where the provider is located in Abu Dhabi) or licensed by the relevant country regulator where the professionals/providers are located outside of Abu Dhabi.  The primary responsibility for the clinical and medical healthcare with the HAAD licensed local facility, where the local facility raises the tele-counseling request.</li>\r\n 	<li>The local facility that uses tele-counseling must have policies and procedures  that govern the use of tele-counseling.</li>\r\n 	<li>It outlines the requirements for the arrangements (i.e. written agreements, memoranda of understanding and contracts) between HAAD licensed healthcare providers and tele-counseling service providers.</li>\r\n 	<li>Under each of the Tele-counseling Standard and the Tele-consultation Standard the HAAD licensed healthcare professionals and providers using telemedicine to provide services have the broad duty to develop and implement clinical and quality governance systems to protect the privacy concerns of the patient and the confidentiality and security of their medical information and records at the relevant healthcare provider’s site and during transmission.  In particular, confidentiality, privacy and security of health data and records must comply with the requirements prescribed by the following other HAAD regulations:</li>\r\n</ul>\r\n<ol>\r\n 	<li>The data management policy in the  HAAD Healthcare Regulator Policy Manual;</li>\r\n 	<li>HAAD Medical Record/Health Information Retention and Disposal Policy; and</li>\r\n 	<li>The HAAD Data Standards.</li>\r\n</ol>\r\nUnder the Tele-counseling Standard and the Tele-consultation Standard the healthcare facilities and the healthcare providers respectively have to ensure that the telemedicine services meet certain technical standards, including:\r\n<ul>\r\n 	<li>The equipment and devices is appropriate to support the telemedicine services.</li>\r\n 	<li>The equipment and devices are compatible with that of the distant site used to access the telemedicine services.</li>\r\n 	<li>Having appropriate systems in place to ensure sufficient availability of the network for critical connectivity.</li>\r\n</ul>\r\n<strong>Teleradiology Services in Dubai</strong>\r\n\r\nSince 2012 the Dubai Health Authority (“DHA”) has regulated the use of the specific telemedicine service of “teleradiology” in Dubai under the DHA Diagnostic Imaging Services Regulation. “Teleradiology” is defined in the DHA regulation as the transmission of diagnostic images and related data from one location to another for the purposes of interpretation or consultation.\r\n\r\nAmongst other things, the DHA’s teleradiology standards have express requirements as to the personnel at the transmitting site and the receiving site.  The transmitting site should comprise of at least one full time radiologist, one radiographer and a system manager with informatics certification, whereas the receiving site should employ a radiologist licensed in the country the service is provided.\r\n\r\n<strong>Need help?</strong>\r\n\r\nTelemedicine is emerging as a significant service delivery mechanism for healthcare in the 21st century.  Telemedicine’s growing potential also raises a number of legal, clinical and technical questions for regulators. HAAD has recently responded by setting minimum standards for telemedicine as a means to provide healthcare services to patients in the Emirate of Abu Dhabi.  The DHA has regulated the use of the specific telemedicine service of teleradiology in Dubai since 2012.'),
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(92659, 5034, 'content', 'November 2014\r\n\r\n<hr />\r\n\r\nA novation needs to be properly documented and, if possible, the employer’s initial agreement with the consultant and the contractor should require them to enter into a novation agreement if the employer later so elects.\r\n\r\n<strong>How does it work?</strong>\r\n\r\nA design consultant novation occurs when a consultancy agreement signed between an employer and consultant for initial design services, is replaced with a new contract on (usually) the same terms, under which the contractor engages the consultant as if the contractor had originally contracted with the consultant. A novation agreement documents this relationship change between the parties.\r\n\r\nIn a design and build procurement, it is common for an employer to appoint a consultant to prepare a design brief or concept design and then break ties with the consultant, and transfer the design and responsibility for the design to the main contractor by novation. The main contractor will be best placed to develop the design and the buildability of the design will become a natural consequence of this risk transfer.\r\n\r\nNovation of a design consultant is often a desirable strategy for an employer, given that:\r\n<ol>\r\n 	<li>the employer has control of the early design and choice in the design consultant;</li>\r\n 	<li>the contractor will assume a single point of contractual responsibility for construction as well as design; and</li>\r\n 	<li>the transfer to the contractor of the responsibility for the design should promote a more buildable design, without undesirable document discrepancy risk being retained by the employer.</li>\r\n</ol>\r\nAt the same time, the contractor will have the comfort that as the novation assumes that the contractor and consultant had entered into the novated consultancy agreement before any design had commenced, the contractor would have recourse against the consultant if it turned out that the consultant had made any errors in the design prepared before its engagement with the contractor.\r\n\r\n<strong>Documenting the novation</strong>\r\n\r\nIn an ideal world the form of the novation agreement, including the agreement of the consultant (and the contractor) to any novation at the employer’s discretion, will be included as an appendix to the initial agreement which appoints the consultant and the construction contract which appoints the contractor.\r\n\r\nArticles 381 to 386 of the Qatari Civil Code deal with novation and require express approval of the parties prior to a novation taking effect. Thus, the consent of all parties is required to effect a novation of the design consultant in the scenario discussed above. The novation agreement achieves this purpose. A clause inserted in the original consultancy agreement and construction contract that requires the consultant and contractor to enter into a novation agreement, if the employer decides to pursue the novation option, will go a long way to facilitating any novation to occur in the smoothest manner possible.\r\n\r\nIf an employer does not obtain agreement to a potential novation from the consultant and contractor as part of their original agreements with the employer, there is no pre-agreement by these parties to the novation at a later stage. Ensuring that parties are ‘on board’ with the possibility of such a novation when they are originally engaged, will minimise the hardship that is likely to be encountered if the employer attempts to force a novation.\r\n\r\nThe drafting of the novation agreement should ensure that:\r\n<ol>\r\n 	<li>care is taken to avoid creating unnecessary conflicts of interest between the parties;</li>\r\n 	<li>separate lists of services that the consultant will perform for the employer and the contractor are incorporated; and</li>\r\n 	<li>the contractor and the employer are granted a suitable warranty by the consultant for any losses arising out of services performed pre-novation.</li>\r\n</ol>\r\nFor an employer seeking to prepare and enter into a novation agreement, it is critical that the agreement is drafted in clear terms, as omitting obligations on the consultant or the contractor may defeat the point of the employer’s intended transfer of obligations. It is also important that the novation agreement imposes only specific acceptable obligations and liabilities on the consultant and the contractor, without seeking to impose illogical duties on these parties. A clear and simple agreement will give the employer the best chance of having the agreement signed by the parties, if that is what the employer wants once the project is up and running. This article first appeared in Qatar Construction News October edition.\r\n<div></div>'),
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(92682, 5035, 'content', 'November 2014\r\n\r\n<hr />\r\n\r\nAt the beginning of April 2014, and according to Article 27 of the Electronic Signature &amp; Electronic Transactions Law No. 78 of 2012, which stated that the electronic transfers of money should be regulated by a regulation that to be suggested by the Central Bank of Iraq (CBI), the Iraqi Council of Ministers issued Regulation No. 3 of 2014 regarding the Electronic Payment Services of Money (The “Regulation”).  This Regulation covers all the electronic payment activities including issuing the electronic payment tools, managing the deposits and cash withdrawals through ATMs and selling points, implementing of electronic payment processes (payable and receivable) that their money be guaranteed by the credit of the services user or by any means of digital communications or information technology, and implementing of electronic payment processes in accordance with the overall settlement system or the clearing mechanism system.\r\n\r\nThe provider of the electronic payment services (The “Provider”):\r\n\r\nThe Provider of such services should be licensed by the CBI.  The license is valid for 5 years, and can be renewal based on a written request submitted by the Provider to the CBI within 90 days before the license expiry date.  The Provider should be a legal entity, has the technical and organisational skills to operate the required mechanism, taking all measures to secure and protect the electronic transactions, ensures that the CBI can enter into the used system at any time for the supervision and control purposes, and has submitted an economic feasibility study to the CBI in this regard.  The Provider is able to appoint an agent/s and authorise him to provide the electronic payment services.  The Provider should submit to the CBI all the agent information including name, address, the internal control mechanisms used by the agent, description to the provided services by the agent, and any additional information considered necessary by the CBI.  The agent name will be recorded in a record that can be seen by the public at the CBI, and the Provider is obliged to inform the CBI with any changes related to the agent to be amended in the above mentioned record.  Article 16 of the Regulation listed the Provider obligations as following:\r\n<ol>\r\n 	<li>Implementing the settlement processes through the immediate overall settlement system.</li>\r\n 	<li>Providing interoperable systems according to the technical standards set by the CBI.</li>\r\n 	<li>Providing the CBI with the required measures and procedures according to the Money Anti-Laundry Laws.</li>\r\n 	<li>Providing appropriate measures to protect the security and confidentiality of information from any intrusion and to protect customers’ records and information based on the laws and international best practices, which shall be reviewed periodically.</li>\r\n 	<li>Determining the procedures that regulate the agents’ work and the selling points.</li>\r\n 	<li>Operating a payment system which is able to contribute to the effective and stable performance in the financial system, in line with the best international practices and standards related to the electronic payment systems, including the infrastructure principles of the financial market issued by the Bank for International Settlements.</li>\r\n 	<li>Providing electronic payment services which comply with the standards and instructions issued by the CBI.</li>\r\n 	<li>Adopting appropriate regulatory measures in order to reduce the risk of loss or lack of related funds or assets.</li>\r\n 	<li>Sending the electronic payment accounts data to the CBI separately from the consolidated balance sheet attached with it, in case that the Provider provides other activities than the electronic payment services.</li>\r\n 	<li>Providing the CBI with the required data and information related to the provided electronic payment services, and the compliance to the conditions imposed by the CBI.</li>\r\n 	<li>Determining the appropriate means which enable the CBI to directly enter into the used electronic system by the Provider for the supervision and control purposes.</li>\r\n 	<li>Preparing database to the customers.</li>\r\n</ol>\r\nIn addition to the above obligations, and if the Provider providing the electronic payment services through the mobile phone, he is obliged to:\r\n<ul>\r\n 	<li>Sign written agreements with mobile operators, and provide the CBI with copies of the same.</li>\r\n 	<li>The payment process to be inside Iraq, and by national currency.</li>\r\n 	<li>Settlement of accounts through the immediate overall settlement system, or doing the same through a guarantor bank in the absence of a settlement bank account.</li>\r\n</ul>\r\n<strong> How to do the electronic payment process? And what is the service contract in such process?   </strong>\r\n\r\nAccording to the Regulation, the electronic payment process can be done when the Provider informs the customer (in advance) by the maximum time to proceed with the payment process, in addition to provide the payee with the other necessary information such as the Identification Number, payer information, the paid amount (in the currency that used in electronic payment account where the amount deposited), exchange rate adopted by the Provider, Provider fees, and the amount entitlement date.\r\n\r\nThe electronic payment command considered as delivered to the Provider at the time when the latter received the payment directly or indirectly from the payer, and if the delivery time was in a day which is not within the Provider’s working days, so the command considered delivered to the Provider as the first command in the next working day.  In case that the Provider refused to proceed with the electronic payment process, he shall inform the customer with the reasons for rejection, and the corrective measures for the mistakes that led to the rejection.  The customer cannot withdraw the electronic payment command after the same delivered to the Provider.  The Provider fees should be deducted from the customer as soon as the money transfer process completed unless there is an agreement between the payer and the Provider that the latter fees can be deducted from the transferred amount before recording the same in the payee account provided that the total amount and the fees amount should both be clearly mentioned in the information provided to the payer.\r\n\r\nThe contracts of the electronic payment services are divided to “continuous service contracts” (contracts that organising continuous payment services to customers) and “single service contracts” (contracts that organising the use of the electronic payment service once).  Continuous service contracts should include the following:\r\n<ol>\r\n 	<li>The Provider name.</li>\r\n 	<li>The address and contact details of the Provider’s headquarter (main office), or the agent in case that the service done thorough a Provider’s agent.</li>\r\n 	<li>The Provider’s official information including the CBI license number and date.</li>\r\n 	<li>Description of the key features of the electronic payment service that is going to be served.</li>\r\n 	<li>The Provider fees.</li>\r\n 	<li>The information that to be provided by the customer.</li>\r\n 	<li>Information about protection measures and correction mechanisms in the event of an error.</li>\r\n 	<li>The contract duration.</li>\r\n 	<li>The maximum duration to implement the electronic payment services.</li>\r\n 	<li>Calculating methods of the interest, and the possible changes in the same</li>\r\n 	<li>Means of communication, which have been agreed upon between the parties, for the purpose of delivering the information or notices.</li>\r\n 	<li>Guarantees for any improper use of the service.</li>\r\n</ol>\r\nSingle service contracts should include the following:\r\n<ol>\r\n 	<li>Information about the payer, payee, paid amount, date, and time, and all should be recorded in the electronic payment special form.</li>\r\n 	<li>The maximum period of time to complete the process.</li>\r\n 	<li>The Provider fees.</li>\r\n 	<li>The exchange rate adopted by the Provider.</li>\r\n</ol>\r\nThe customer rights:\r\n\r\nThe customer has the right to know all of his rights and obligations. The Provider shall inform the customer in this regard, including placing a bulletin board at the entrance of the Provider’s workplace.  The customer has the right to be financially compensated in the case of delayed money transfers for the agreed period, and in the case of loss or lack of his money as a result of negligence or mismanagement.'),
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(92697, 5036, 'content', 'November 2014\r\n\r\n<hr />\r\n\r\n<strong>Introduction</strong>\r\n\r\nOne of the lesser known facts about Jordan is its highly developed microfinance market, which competes with other similar markets on an international scale. Microfinance is a relatively recent concept invented in the 1970s, that refers to the provision of banking services to financially underprivileged people by providing small loans, otherwise known as microcredit. Jordan has several active microfinance institutions (“MFIs”) operating within the country, and it has been said that the microfinance market is nearing saturation despite having penetrated Jordan only within the last two decades, a testament to its enormous popularity and demand. This financial instrument is also reputed to economically empower women, the majority of subscribers, with one statistic suggesting they constitute 75% of the market. Given its success it is no surprise that the Jordanian government is keen on developing the regulatory infrastructure further. This article will discuss two salient points in light of such developments: first, the new proposed legislation seeking to support and enhance the microfinance market and second, the issue of the prohibition of MFIs accepting deposits.\r\n\r\n<strong>The Current Situation</strong>\r\n\r\nCurrently there is no legal requirement to have a governmental licence in order to generally lend money, and, provided certain basic requirements are met, any permissible legal entity may engage in lending. Except for the fact that one must be a fully-regulated bank in order to accept deposits, the regulatory environment is relatively relaxed in this area, with several regulatory bodies used to govern the lending entities depending on the legal structure such entities  assume.  Accordingly, the nature of the legislation regulating this market is somewhat ad hoc and dispersed. The majority of MFIs are non-profit organisations and are regulated by the Ministry of Social Development, whilst profit-seeking MFIs are governed by the Companies Control Department at the Ministry of Industry and Trade. Furthermore, where the entity is a commercial bank, the Central Bank of Jordan (“CBJ”) itself steps in to oversee its microlending activities. The Ministry of Planning and International Cooperation (“MOPIC”) plays an important role in supporting the industry and requests MFIs to report certain indicators on a quarterly basis; however, MOPIC is not formally responsible for any kind of supervisory or regulatory activities. Thus, the problem with the current regime becomes apparent when trying to standardise all microfinancing activities under a consistent regulatory framework. There is no streamlined process for handling company registrations or treating tax, and financial reporting standards are not always adhered to by all MFIs. This is exacerbated by the fact that the market is fragmented by the various authoritative bodies which MFIs must report to according to their differing goals.\r\n\r\nIt is in light of the above issues that a proposed new bill, the Microfinance for Companies Regulation of 2014 (the “Regulation”), has been prepared. Once enacted, the Regulation will be the first legislation introduced into Jordan which directly and specifically governs microfinancing activities, and will hopefully bring all such activities within the ambit of a unified regulatory framework, spearheaded by the CBJ.\r\n\r\n<strong>The Proposed Legislation</strong>\r\n\r\nThe first major change in the new Regulation involves regulating the activity of lending from an MFI perspective. An an example, Article 3 of the Regulation specifies that no one is permitted to practise the activity of microfinancing unless licensed by the CBJ, and all companies engaged in such an activity must have the phrase ‘microfinance’ included in their trade name. As mentioned, it was previously the case that after having met some basic conditions, any permissible legal entity could lend money without needing to be licensed.\r\n\r\nThe new proposed legislation maintains the prohibition of MFIs taking deposits from its clients, pursuant to Article 10(b), in sharp contrast to several other microfinance markets which allow MFIs to accept deposits. This raises a serious question as to how commercial MFIs fund their operations and generate profit, or how non-governmental organisations (“NGOs”) survive without being able to use deposits to give out credit. As a result, the overwhelming majority of MFIs in Jordan currently depend on foreign subsidies, either in the form of direct loans or credit lines extended to MFIs, from a variety of donor agencies including the World Bank and USAID. Such funds are channelled through the CBJ itself. It seems that this will continue until a defined period when the CBJ feels that MFIs are meeting its required benchmarks. To a limited extent there is some equity funding being provided by local banks and international microfinance investment vehicles.\r\n\r\nAlthough it is still prohibited to accept deposits, the Regulation permits MFIs to engage in a range of other activities which were previously left undefined. Article 10 of the Regulation specifies that all MFIs will be allowed to conduct the following:\r\n<ol>\r\n 	<li>Grant loans;</li>\r\n 	<li>Provide finance in accordance with the Islamic Sharia, i.e. without interest (with further additional rules outlined in the Regulation);</li>\r\n 	<li>Act as an insurance agent;</li>\r\n 	<li>Act as an agent for mobile-payment services; and</li>\r\n 	<li>Any other activity the CBJ approves of.</li>\r\n</ol>\r\nThe Regulation also specifies which types of companies are allowed to practise the above activities, and they must be either a limited liability company, a private shareholding company or a branch of a foreign company which is already providing microfinance services (subject to the requirements of the CBJ). The minimum start-up capital for any MFI company is at least 2 million JOD, and Article 4 clarifies that such a company may choose to be either a profit-making or a non profit-making entity.\r\n\r\nAll companies seeking a licence to provide microfinancing services must submit the following documents and information to the CBJ:\r\n<ol>\r\n 	<li>Name of the company, memorandum and articles of association, address and number of branches;</li>\r\n 	<li>Founders’ names and nationality and the nature of their work, start-up capital amount, and proof of their financial solvency;</li>\r\n 	<li>Authorised share capital;</li>\r\n 	<li>Organisational structure and an undertaking signed by the founders to abide by the specific conditions and criteria set out in this Regulation which concern senior management;</li>\r\n 	<li>Estimated budgets for the first three years;</li>\r\n 	<li>Audited financial statements signed by a chartered accountant for every legal founder for the past 2 years, if available;</li>\r\n 	<li>Details of the activities and services of the company; and</li>\r\n 	<li>Any other condition, demand or document the CBJ may request or stipulate.</li>\r\n</ol>\r\nIf successful, the applying candidate will be granted a non-transferable licence of unlimited duration.\r\n\r\n<strong>The Need for MFIs to Accept Deposits</strong>\r\n\r\nIt is imperative that as the next milestone the CBJ focuses on adapting the Regulation to allow MFIs to accept deposits. This will ensure that all MFIs are provided with a vital source of stable income and facilitate the process of making them independently subsisting entities. It should also stimulate even greater interest in the microfinance market, by offering a variety of previously-unavailable products to potential customers. Thus, the enactment of the above Regulation is a conscientious step sure to be welcomed by all practitioners of the microfinancing industry. The next step should be the CBJ granting permission for MFIs to accept and, therefore, make use of deposits.'),
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(92722, 5037, 'content', 'November 2014\r\n\r\n<hr />\r\n\r\nA sector that has remained largely immune to economic fluctuation in Dubai has been the health sector, which, given the government of Dubai’s objective to make the Emirate a preferred destination for medical tourism, continues to experience robust growth. Concurrent with this growth, activities supporting the healthcare sector have been on the rise. One such supporting activity is providing consultancy services to the health sector.\r\n\r\nUnder the Department of Economic Development’s classification list, this activity is codified as 851909 and described as health planning and consultancies. Under this activity, corporate entities can provide consultation and feasibility studies to health facilities, including hospitals and clinics, to determine requirements of medical equipment and supplies, technical staff qualification, as well as providing suggestions on health facility engineering layout and setting up health quality assurance program to promote the service level of these health facilities.\r\n\r\nThis article discusses certain regulatory considerations being faced by investors wishing to provide Health Planning Consultancies in Dubai.\r\n\r\nIn mainland Dubai, the activity of Health Planning Consultancies can be licensed, but under the current policy of Department of Economic Development, issuance of such licence is restricted to sole establishments, civil partnership companies and branches of foreign companies set up under Federal Law No. 8 of 1984 Concerning Commercial Companies. A limited liability company, which is generally the preferred form of corporate entity, cannot currently be licensed to conduct the activity of Health Planning Consultancies.\r\n\r\nThis restriction poses a challenge for an investor who wishes to conduct the activity of Health Planning Consultancies in the UAE through a limited liability company. To add to this complexity, none of the free zones, other than Dubai Healthcare City, license an activity as wide as activity number 851909. Therefore, as the current regulatory practices stand, there are no other options available for a prospective investor who wishes to provide the services under Health Planning Consultancies. Practical considerations such as lack of office space or preference for another free zone can make provision of Health Planning Consultancies through a limited liability company virtually impossible.\r\n\r\nRecently, a party approached Dubai Silicon Oasis, a free zone in Dubai, with a proposal to allow the licensing of Health Planning Consultancies as described as activity number 851909. Dubai Silicon Oasis agreed to license this activity, subject to an approval from the Dubai Health Authority. Given the nature of the activity of Health Planning Consultancies, the premise of the proposal was that an approval from Dubai Health Authority would not be required, as under this activity a corporate entity does not provide any medical or health services.\r\n\r\nDubai Silicon Oasis and the Dubai Health Authority, initially showed reluctance, however, in successive deliberations, both Dubai Silicon Oasis and Dubai Health Authority accepted the view that no such approval from the Dubai Health Authority would be required for setting up a free zone limited liability company in Dubai with Silicon Oasis to conduct the activity of health planning and consultancies.\r\n\r\nBased on this, a corporate entity can now be set up in the free zone of Dubai Silicon Oasis as a free zone limited liability company with the licensed activity of Health Planning Consultancies, without the approval of the Dubai Health Authority. The advantages of setting up in Dubai Silicon Oasis are as follows:\r\n<ol>\r\n 	<li>The activity of health planning and consultancies can now be licensed;</li>\r\n 	<li>Permitted 100% ownership of the free zone company by a foreign investor;</li>\r\n 	<li>Dubai Silicon Oasis is relatively inexpensive compared to other free zones in Dubai; and</li>\r\n 	<li>Dubai Silicon Oasis, like other free zones in the United Arab Emirates, provides certain benefits to the investors, including:</li>\r\n 	<li>No requirement for a UAE national sponsor / partner;</li>\r\n</ol>\r\n<ul>\r\n 	<li>No imposition of corporate tax;</li>\r\n 	<li>Import / export duties exemptions;</li>\r\n 	<li>No restriction on repatriation of capital or profits.</li>\r\n</ul>\r\n&nbsp;\r\n\r\nTo ensure that the free zone company in Dubai Silicon Oasis can be set up for the activity of health planning consultancies and expand into mainland Dubai (so that it can bid for government projects, etc.), the free zone company will be able to set up a branch office in mainland Dubai. In this regard, discussions with the Department of Economic Development have confirmed that it will have no objection to licensing such a branch as long as a no-objection letter from Dubai Silicon Oasis is obtained. A benefit of this structure is that it will facilitate setting up branches and subsidiaries in mainland Dubai and outside of the UAE, subject to the laws of the local jurisdiction.\r\n\r\nThis structure should support the objective of Dubai government to make the Emirate a destination of choice for health related services by facilitating experts providing health related services and services supporting the health sector to set up a limited liability company in Dubai which is 100% owned by foreign investors.'),
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(92737, 5038, 'content', 'November 2014\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">Cloud computing in all its various forms is now the ideal model for a wide range of sectors (including government entities) in view of what it offers in terms of improved data security features, reduced operating costs, reliability, infrastructure, high levels of responsiveness to user needs in addition to its flexible financial model. Regardless of where the data is held (i.e. whether on site, within the jurisdiction, or elsewhere in the world), data security and privacy remains the biggest challenges in earning public confidence in cloud computing. For these reasons, many countries have taken steps to introduce rules and legislation to help secure the private data of their citizens. The International Organization for Standardization (ISO) has issued ISO 27018, the first-ever standard for cloud data protection. The key features of ISO 27018 are presented below.</p>\r\n<p class=\"Default\"><strong>The new standard, ISO 27018, will strengthen data privacy by adding key protections for sensitive customer information stored in the cloud. </strong>Published in July 2014 by the International Organization for Standardization, ISO 2708 sets forth guidelines for cloud service providers concerning Personally Identifiable Information (“PII”). The standard was developed in consultation with contributors from 14 countries and 5 international organizations.<strong> </strong></p>\r\n<p class=\"Default\"><strong>Modernizing Security &amp; Privacy in the Cloud </strong></p>\r\n<p class=\"Default\">Before ISO 27018, there wasn\'t a robust, internationally-recognized benchmark for protecting cloud stored PII. The well-established ISO/IEC 27001:2005 standard provides a flexible system for identifying overall information security risks and choosing controls to address them. As an addendum to ISO 27001, ISO 27018 provides specificity to cloud service providers for assessment of risks and implementation of state-of-the-art controls for protection of PII stored in the cloud.<strong> </strong></p>\r\n<p class=\"Default\"><strong>Key Elements of ISO 27018 and the Benefit to Customers </strong></p>\r\n<p class=\"Default\">Cloud service providers adopting the new standard must operate under a stronger, industry-wide framework of key principles:</p>\r\n<p class=\"Default\">• <strong>Consent</strong>: As part of ISO 27018, cloud providers must not use the data they receive for purposes of their own advertising and marketing unless expressly instructed to do so by the customer. Moreover, it must be possible for a customer to use the service without submitting to such use of its personal data for advertising or marketing.</p>\r\n<p class=\"Default\">• <strong>Transparency</strong>: Cloud providers must inform customers where their data resides and make clear commitments about how that data is handled.</p>\r\n<p class=\"Default\">• <strong>Accountability</strong>: The standard asserts that any breach of information security should trigger a review by the service provider to determine if there was any loss, disclosure, or alteration of PII.</p>\r\n<p class=\"Default\">• <strong>Communication</strong>: In case of a breach, cloud providers should notify customers and regulators, and keep clear records about the incident and the response to it.</p>\r\n<p class=\"Default\">• <strong>Independent Audit</strong>: A successful third-party audit (from one of the big fours) of a cloud service’s compliance with 27018 documents the service’s conformance with the standard, and can then be relied upon by the customer to support their own regulatory obligations.</p>\r\n<p class=\"Default\">• <strong>Control</strong>: Customers have explicit control of how their information is used.</p>\r\n<p class=\"Default\"><strong>Streamlined Standard </strong></p>\r\n<p class=\"MsoNormal\">ISO 27018 standard creates a more streamlined system for adhering to regulations set by data protection authorities around the world. Since the standard incorporates the input of multiple regional regulators, embracing the standard will help demonstrate adherence to the requirements of any individual Data Protection Authority’s requirements. The ISO 27018 standard brings a degree of uniformity to the industry, and adds needed protections to improve PII security and compliance in an increasingly cloud-based information environment.</p>\r\n<p class=\"MsoNormal\"><strong>Summary</strong></p>\r\n<p class=\"MsoNormal\">ISO 27018 specifies guidelines based on other international standards (such as EU standards) for cloud data protection. This should enhance overall confidence in cloud computing adoption worldwide. ISO 27018 manages to address the numerous challenges of data protection in the cloud while achieving the intricate balance between a user’s fundamental rights and the requirements to deliver services in a cloud computing model based on transparency (i.e. location of the data, methods of deletion as well as data sovereignty).</p>\r\n<p class=\"MsoNormal\">ISO 27018 is already generating positive feedback as some cloud service providers have already commenced the requisite steps for adopting these new standards and are expected to get certified very soon.  We anticipate an increasing number of cloud service providers to follow in their footsteps.</p>'),
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(92762, 5041, 'content', 'December 2014 - January 2015\r\n\r\n<hr />\r\n\r\nThe courts have highlighted this attribute in holding that arbitrators are not bound to follow all the procedural rules applicable to judges apart from the basic rules of affording the parties a fair opportunity to present evidence and arguments in their cases and compliance with certain mandatory rules and public policy.\r\n\r\nDespite the great strides that have been made and continue to be made over the last two decades in the region to accommodate international arbitration, in terms of the regional courts’ support of the flexibility of arbitrations the wheels of progress continue to turn slowly. This is due in part to a lack of modern legislation that can keep pace with the latest changes in international arbitration systems, and to the hindrance posed by judicial systems which sometime issue rulings on matters of international arbitration that often raise more questions than they resolve.\r\n\r\nIn this article we will examine two contentious issues that currently arise in arbitrations conducted in the UAE and that are subject to the UAE Civil Procedure Law.  One of those issues is the place where the tribunal signs an arbitral award and the consequences of failing to sign a domestic arbitral award in the UAE, and the other relates to the failure to sign all the pages of an arbitration award. <strong> </strong>\r\n\r\n<strong>1. Place of Signature of Domestic Arbitral Awards: </strong>\r\n\r\nArticle 212(4) of the Federal Civil Procedure Law states:\r\n\r\n<em>“The arbitral award shall be issued in the UAE; otherwise the rules pertaining to foreign arbitral awards shall apply.”</em>\r\n\r\nThe objective of the law is clear: to make a distinction between the rules which apply to domestic awards and those which apply to foreign awards, particularly at the stage of executing the award. While Article 212 affords parties the freedom to agree on the procedure to be followed by the arbitrator, the prospect of a court applying a different set of rules simply because of where the Tribunal signed the award at the end of the process can cause concern.\r\n\r\nWhat if an arbitrator or arbitral tribunal or any of its members signed a domestic arbitral award outside the UAE? Given the lack of explicit precedent on this point, there are two possibilities:\r\n\r\n<strong>First Possibility: An Invalid Arbitral Award</strong>\r\n\r\nIt can be argued that signing an award outside of the UAE in circumstances where the parties have agreed to the UAE being the legal seat, will invalidate the award. This is because by signing the award outside of the UAE the tribunal has essentially moved the legal place outside of the UAE, in contravention of the parties’ agreement. The parties wanted a UAE award, but now they have a foreign award.\r\n\r\nThis is not just a theoretical problem. The legal place of the arbitration is also the only jurisdiction that can annul the award. By agreeing to the UAE as the seat, the parties are agreeing to the UAE Courts having the power to annul the award. This will be frustrated if the award is signed outside of the jurisdiction because the UAE courts may no longer treat the award as a domestic award, and would refuse any application to annul. The result is an award which cannot be annulled in any jurisdiction.\r\n\r\n<strong>Second Possibility: A Valid Domestic Arbitral Award Signed Outside the Jurisdiction</strong>\r\n\r\nIt can be argued that the agreement between the parties should take precedence, so that even if the award was signed outside of the UAE, it should still be considered a domestic award under UAE, notwithstanding article 212(4). Furthermore, the law only applies if the award is ‘issued’ abroad, it does not use the word ‘signed’, so it can be argued that where it is signed is immaterial.\r\n\r\n<strong>Third Possibility: A foreign award</strong>\r\n\r\nArticle 212(4) states that if an award is signed outside of the UAE, ‘the rules pertaining to foreign arbitral awards shall apply’. The recognition and enforcement of foreign arbitral awards in the UAE is governed by the New York Convention, whose rules are arguably easier to comply with than those that apply to domestic arbitral awards.\r\n\r\nThis third possibility would seem to be the most likely result given the way article 212(4) is drafted. Even though it would result it in the New York Convention being applied (which in some ways is preferable), the advice remains that in order to avoid any risks parties should ensure that domestic awards are signed in the UAE, even if that means the arbitrator or chairman must travel to specifically for this purpose.\r\n\r\n<strong>2. The Signing of Arbitral Awards by Arbitrators</strong>\r\n\r\nArticle 212(5) of the Federal Civil Procedure Law states:\r\n\r\n<em>“The arbitral award shall be made by a majority and shall be given in writing along with any dissenting opinion and shall, in particular, include a copy of the arbitration agreement, a summary of the arguments and documents presented by the parties, the grounds and context of the award, the date and place of issue of the award and the signatures of the arbitrators. Should one or more arbitrators refuse to sign the award, this must be noted in the award; the award shall be valid if signed by a majority of the arbitrators.”</em>\r\n\r\nA procedural issue that often arises in connection with this provision is whether arbitrators must sign all pages or only the last page of the arbitral award for it to be valid.\r\n\r\nAlthough Article 212(5) is generally worded and prescribes no specific rules as to the form or place of signatures on arbitral awards and, moreover, there is no requirement under the rules of arbitration institutions in the UAE  that all pages of an arbitral award be signed, varied views have been propounded on the matter by the UAE Courts of Cassation. The Dubai Court of Cassation has held, in Commercial Appeal No.156/2009 (dated 27 October 2009) that an arbitrator’s signature does not have to be on all the pages of the award as long as it appears on the page that contains the decision and part of the reasoning:\r\n\r\n<em>“It is well settled in line with Article 212(5) of the Civil Procedures Law that one of the essential requirements of an arbitral award is the signature, on the award, of the arbitrators who considered the arbitration matter given that, from a legal point of view, such signature is the only evidence of the existence of such award, without which it cannot be attributed to the arbitrators. An arbitral award covers both the reasoning and decision of the award. Therefore, the arbitrators should sign both the reasoning and decision of the award, failing which the award is invalid. However, an exception to the above rule is when the reasoning of the award, or parts thereof, is continued on the page where the decision and the signatures of the arbitrators appear in which case the signature shall be deemed to cover the reasoning of the award, thereby fulfilling the legislator’s objective of requiring the arbitrators’ signatures on the arbitral award. On the other hand, if the reasoning of the award appears on pages separate from the page on which the decision appears, all pages of the award, including the last page where the decision appears, should be signed by the arbitrators who issued the award; otherwise the award is invalid as a matter of public policy and may be contested as such for the first time before this Court.”</em>\r\n\r\nThe Abu Dhabi Court of Cassation however only requires arbitrators to sign the last page, irrespective of whether it contains the decision and part of the reasoning or only the decision.  In Abu Dhabi Court of Cassation, Commercial Appeal No. 834/2010 (dated 30 December 2010, it was held that:\r\n\r\n<em>“It is well settled and held by the Court of Cassation, that according to Article 212 of the Civil Procedures Law, an arbitrator is not bound by civil procedure followed in court cases and must follow the procedures set out in the part dealing with arbitration and any specific procedures that are agreed upon by the parties. The arbitrator must also respect rights of due process by allowing each side to present his requests and arguments, prove his claims, refute the other side’s claims, and bring proceedings against adversaries. The test for setting aside an arbitral award for breach of the rules of civil procedure is deviation from the basic rules of litigation procedure that uphold the principle of equality of arms, including the fundamental right to adversarial proceedings, and contravention of the procedure agreed upon by the parties in this regard. These procedures do not include a requirement to sign all pages of the arbitral award for the rules of civil procedure themselves only require the signature of the head of the circuit on the last page of the award and Article 131  of the Civil Procedure Law is devoid of any requirement that all pages have to be signed.”     </em>\r\n\r\n<strong>Conclusion</strong>\r\n\r\nWith different viewpoints existing on the issue of signing arbitral awards and the place of signature in relation to domestic arbitration, several considerations need to be taken into account to avoid arbitral awards being set aside for the procedural reasons described earlier, regardless of whether the arbitration in question is institutional or ad hoc. At the end of this brief analysis we recommend the following:\r\n<ul>\r\n 	<li>Parties should ensure that domestic arbitral awards are signed in the UAE to avoid having them set aside for being signed outside the jurisdiction;</li>\r\n 	<li>All pages of an arbitral award should be signed to safeguard against unexpected and inconsistent court rulings requiring signature on all pages or on pages where the reasoning or part of it appears.</li>\r\n</ul>'),
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(92781, 5042, 'content', 'December 2014 - January 2015\r\n\r\n<hr />\r\n\r\nThe Jordan Football Association (“JFA”) is the official body governing football in Jordan, and consists of various committees that oversee all football tournaments and activities. Each committee has a specific function, which ensures the smooth running of all football related affairs. One such committee is the Jordan Football Association Disciplinary Committee (the “Disciplinary Committee”).\r\n\r\n<strong>The Disciplinary Committee</strong>\r\n\r\nAs its name suggests, the Disciplinary Committee is an independent quasi-judicial tribunal, composed of a body of officials responsible for regulating Jordanian football on the playing field, and investigating complaints referred to it in particular. The President and Vice-President must both be lawyers and the committee must also include experts specialized in football. All officials in the Disciplinary Committee work pro bono, and with a great deal of passion. In my role and capacity as President of the Disciplinary Committee, I have seen first-hand the incredible results of the Disciplinary Committee’s efforts, and how this has transformed not just the local teams, but the nature of Jordanian football into one of the most professionally regulated sports in the Middle East.\r\n\r\nAs an illustration of this point, I will provide the following example. The Disciplinary Committee relies on the Pubic Instructions for the 2015 Season (the “Instructions”), which is modelled after FIFA’s own regulations, in order to guide committee officials in every area relevant to their task. In the heat of the moment, if a player were to breach ethical conduct and act in an unsportsmanlike manner by swearing or spitting at his rival opponent, the Disciplinary Committee official would turn to the Instructions to administer the appropriate penalties. It should be mentioned, however, that the Disciplinary Committee bases its decision on the referee’s reports, after having thoroughly scrutinized them.  Furthermore, the penalties do not only concern offending other players; almost anyone, be it the club itself, the referee, club officials, the game audience, and so on may be subjected to penalties.\r\n\r\nIt is thus in such a manner that the Disciplinary Committee helped form the bedrock of Jordanian professionalism.\r\n\r\n<strong>CAS – Court of Arbitration for Sport</strong>\r\n\r\nAlthough the work undertaken by the Disciplinary Committee was an important and formative milestone in establishing professionalism in Jordanian football, it is clear that the journey is not over yet and there is still a long way to go. The next phase involves creating an official body specialized in dealing with all forms of judicial disputes related to football, which will essentially be an arbitration court modelled after the Court of Arbitration for Sport (“CAS”). Whilst the headquarters of CAS are located in Switzerland, its courts are located in New York, Sydney, Lausanne, and more recently Abu Dhabi, with temporary courts set up in current Olympic host cities.\r\n\r\nCAS is an institution independent of any sports organization, which provides for services in order to facilitate the settlement of sports-related disputes through arbitration or mediation by means of procedural rules adapted to the specific needs of the sports world. The kinds of disputes and conflicts referred to CAS are wide-ranging and not simply restricted to disciplinary problems: they include sponsorship disputes, the eligibility of a particular athlete in accordance with a sport’s constitution, as well as the resolution of disagreements concerning competition results. It should be noted that we are currently in the process of researching CAS, and looking into the possibility of using it as a foundation for establishing a similar court in Jordan. Such a task is not inconceivable, given that we have a joint committee already set up between the members of the JFA and the Olympic Committee.\r\n\r\nThe advantages of establishing such a court for Jordan would be numerous, including the above-mentioned wide range of issues that such a court would hear, given that the Disciplinary Committee cannot hear or investigate this broad range of conflicts. Unlike a traditional civil court, CAS acquires its jurisdiction in a particular case only through the mutual consent of the parties involved. This procedure, known as arbitration, is designed to create a resolution binding on all parties (there are very limited rights of appeal permitted from a CAS arbitration). The chief advantage of an arbitration conducted by the CAS is its expertise in sports-related disciplines (there are more than 300 arbitrators from 87 countries qualified to hear CAS disputes); a typical civil judge will not likely possess such sports-specific knowledge. CAS arbitration is also generally a much more expeditious proceeding, with the cases heard and determined within a few months, at a lower legal cost to the participants. If Jordan was to follow the above model, first starting with football, it would certainly be establishing a pioneering effort in creating the first specific sports court in the Levant region, alongside Abu Dhabi which has already set up its own CAS, the first of its kind in the Gulf. Abu Dhabi is also the second chamber for CAS outside of Switzerland. The UAE is further considering the establishment of another ‘Emirates Sports Arbitration Centre’. Other countries are sure to follow in such footsteps, progressively expanding the range of sports that are dealt with.\r\n\r\n<strong>Specific Features of CAS</strong>\r\n\r\nHaving given a preliminary outline of CAS, and a possible idea of what Jordan could potentially be pursuing in the near future, it is worth briefly investigating the nature of such an arbitration court. Although the subject matter of sports is as far away as anything from what a traditional corporate lawyer might conceive, the procedural and substantive characteristics of CAS very much resemble the arbitration courts as we know them. A good example of one such salient feature is the fact that, like the majority of arbitration cases, the CAS proceedings are confidential and the parties, arbitrators and CAS staff are obliged not to disclose any information connected with the dispute. Similarly, the parties are free to agree on the law applicable to the merits of the dispute. Failing such agreement, Swiss law will apply.\r\n\r\nThe procedure itself is quite straightforward. Once the arbitration request or statement of appeal is filed, the respondent submits a reply to the CAS. After any additional exchange of statements of case, the parties are summoned to a hearing to be heard, produce evidence and argue their case. The parties may choose to appear alone, or they may be represented or assisted at CAS hearings by a person of their choice, not necessarily a lawyer. The final award is communicated to the parties some weeks later, unless it is pronounced the same day (under the appeals procedure). The overall process might last somewhere between 6 – 12 months, depending on the complexity of the case and whether any appeals are submitted or not, and as mentioned in the previous section, the award pronounced by CAS is final and binding on the parties from the moment it is communicated. As can be seen, the reasonable level of flexibility offered by the CAS system, and its resemblance to norms and principles already well established within international arbitration law, is what makes it such a popular and commercially-attractive alternative to the normal litigation route.\r\n\r\n<em>Kais Zayadin is an Associate in the Banking &amp; Finance practice in the firm’s Jordan office and a member of Al Tamimi &amp; Company’s dedicated Sports Law practice.  Kais has experience in drafting various types of sports related sponsorship agreements and has recently reviewed the contract of the Head Coach of the Jordanian National A team on behalf of the Jordanian Football Federation.  Kais is currently Head of the Disciplinary Committee at the Jordanian Football Federation, as well as more recently, Head of the Disciplinary Committee at the West Asia Football Federation (Women).  Additionally, he is a member of the Committee tasked with the establishment of a sports arbitral court in Jordan.</em>'),
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(92796, 5043, 'content', 'December 2014 - January 2015\r\n\r\n<hr />\r\n\r\nMajor companies and public officials, it seemed, were all within the reach of the prosecutor in a major drive by the Sultanate to eradicate what is seen as an ill of any developed society.  There is a strong suggestion that more prosecutions are forthcoming.\r\n\r\nIn this article we look at what is meant by bribery, the standards imposed by the international community on countries like Oman and how private sector companies can protect themselves in this area of their business.\r\n\r\n<strong>What is bribery?</strong>\r\n\r\nThe concept of a bribe is generally well understood.  In its basic form, bribery involves a payment made to a person in a position of authority to entice that person to behave in a way which will place the payer in a favourable position.\r\n\r\nHigh profile cases involving senior officials of private companies in Oman paying bribes of between OMR200,000 to OMR400,000 (approximately USD520,000 to USD1.03 million) to public officials are well covered in the media but it is the fines and jail terms which have attracted heightened attention.  Fines imposed have been around the OMR1 million (USD2.59 million) mark, with jail terms ranging from 3 to 23 years.  These are aggressive signs on the part of the Courts that corruption will not be tolerated in any form and will be punished severely.  While it may appear from the above figures that only substantial improper payments are likely to attract punishment, there is no minimum amount to classify a corrupt payment as a bribe.\r\n\r\nThe law on bribery and corruption in Oman rests with the Penal Code, which was drawn up in 1394 AH (1974 AD).  Bribery is covered by Chapter II, Book II of the Penal Code but deals only with the bribery of public officials.  Although the relevant Penal Code provisions focus on the crime from the perspective of the party being bribed, the person bribing a public official can be held criminally liable under the accomplice provisions in the Penal Code. The sentencing options for bribery under the Penal Code include imprisonment from three months to ten years, a fine equivalent to the amount of the bribe and dismissal from public office. Attempted bribery attracts imprisonment for a period of between one month and two years.\r\n\r\n<strong>The United Nations Convention against Corruption</strong>\r\n\r\nIn January 2014, Oman joined over 120 other countries by acceding to the United Nations Convention Against Corruption (“UNCAC”). UNCAC gives the following definitions of private and public sector bribery:\r\n\r\n“The promise, offering or giving, directly or indirectly, of an undue advantage to any person who directs or works, in any capacity, for a private sector entity, for the person…in order that he or she, in breach of his or her duties, act or refrain from acting.”\r\n\r\n“The promise, offering or giving, to a public official, directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties.”\r\n\r\nUsing an agent to make the payment is also outlawed by the words “directly or indirectly” and it is therefore important for businesses that make use of agents to ensure that those agents are not involved in corrupt practices.\r\n\r\nAs with the Penal Code, there is no requirement under UNCAC for the bribe to be above a specific monetary level - a bribe is a bribe. It is the nature and consequences of corruption that are being targeted and countries that accede to UNCAC are required to criminalise such practices.\r\n\r\n<strong>What has Oman committed to do under UNCAC?</strong>\r\n\r\nUNCAC imposes obligations, on those countries that have ratified it, to take measures to prevent corruption involving the private and public sectors and to provide effective and proportionate penalties for failure to comply with those measures.  Oman must ensure that private enterprises have sufficient internal auditing controls to assist in “preventing and detecting” acts of corruption and that the accounts and financial statements of such private enterprises are subject to appropriate auditing and certification procedures.\r\n\r\nOther than through the recent criminal prosecutions, it is not clear how this obligation has been communicated to the private sector community in Oman.  Given the length of time since the bribery provisions in the Penal Code were enacted and the relatively recent requirements under UNCAC’s uncompromising stance on corruption, legislative changes in Oman on bribery and corruption are likely, particularly to criminalise corporate bribery.\r\n\r\n<strong>What are the obligations of a private sector business?</strong>\r\n\r\nBest practice, in addition to the threat of prosecution for acting as an accomplice in the bribery of a public official, requires businesses operating in Oman to have proportionate systems and processes in place to prevent and detect corruption.  Certain industry sectors are clearly more prone to bribery and corruption and may be exposed to any or all of the following:\r\n\r\ninflating the true cost of a contract value on an infrastructure project, with a portion of such contract value being diverted away from the project;\r\n\r\npayments made to “grease the wheels” (often referred to as facilitation payments);\r\n\r\npayments made to “level the playing field” in a competitive situation; and\r\n\r\na requirement to pay a certain sum to obtain the benefit of a contractual right e.g. an extension of time for delays not caused by that party or simply, upon achieving a contractual milestone.\r\n\r\nWhile any of the above may be commonplace or necessary in certain sectors or parts of the world, UNCAC imposes an obligation on Oman to eradicate these practices.  Businesses in these sectors are likely to encounter a dilemma of being uncompetitive if they want to prioritise compliance with the law.  Non-compliance however is likely to result in severe criminal sanctions coupled with catastrophic reputational damage.\r\n\r\n<strong>How can I minimise the risk to my business?</strong>\r\n\r\nAs part of any risk assessment for a private sector entity, it would be advisable to adopt proportionate systems and processes.  Proportionality is by reference to the size of the business, the sector and the countries in which it conducts business.\r\n\r\n<strong>Anti-bribery and corruption policy</strong>\r\n\r\nBusinesses should consider committing to a written anti-bribery and corruption policy.  Commitment to anti-corruption and bribery must start from board level and all employees should be required to adhere to it with appropriate disciplinary procedures for those who do not.  The policy does not need to be long but must convey the message that the board of directors does not tolerate bribery in any form.\r\n\r\n<strong>Ethics and compliance manager</strong>\r\n\r\nA senior executive, with direct access to the board, should be appointed to oversee compliance with the policy.  This person would be responsible for educating employees and senior members on the business’s obligations under local and relevant international laws.\r\n\r\n<strong>Compliance programmes</strong>\r\n\r\nA business may consider adopting policies on giving gifts and corporate hospitality.  Where such practice is not commonplace the policy could simply state that the practices are only acceptable with written permission from the board of directors.\r\n\r\n<strong>Due diligence on third parties and general risk assessment</strong>\r\n\r\nSufficient due diligence should be carried out on all counterparties, business partners, agents and suppliers to assess their likely risk to the business.  Due diligence could involve reinforcing existing “know your client” procedures, the use of third party research and intelligence services, obtaining references and requesting the counterparty’s anti-bribery policy.\r\n\r\n<strong>Risk assessment</strong>\r\n\r\nCertain countries are notorious for their relaxed approach to preventing corruption.  Enhanced procedures should be in place if a business conducts activities in those countries.  Certain types of high risk transactions, for example relating to public procurement, should be covered by appropriate procedures.\r\n\r\n<strong>Financial and accounting procedures</strong>\r\n\r\nBusinesses should have systems in place to ensure the maintenance of fair and accurate books, records and accounts to ensure that they cannot be used for the purpose of bribery or hiding bribery.  Accounts must be transparent and entries accurate.\r\n\r\n<strong>Reporting procedure and transparency</strong>\r\n\r\nBusinesses may wish to encourage the following:\r\n<ul>\r\n 	<li>reporting incidents of bribery;</li>\r\n 	<li>recording corporate hospitality and promotional expenditure;</li>\r\n 	<li>recording payments made to third parties; and</li>\r\n 	<li>management of all suspected incidents of bribery, including internal investigations and public disclosure.</li>\r\n</ul>\r\n<strong>Legal documentation with counterparties</strong>\r\n\r\nContracts with third parties should be capable of being stress tested.  For example, the proportionality of services rendered against fees paid, destination of fees paid and whether anti-corruption covenants were sought (especially from partners to a joint venture).  Termination should be an option if corruption is discovered.\r\n\r\n<strong>The future</strong>\r\n\r\nThe business community, governmental and non-governmental organisations have all worked together to bring anti-corruption measures into sharp focus and highlight the problems that corruption causes. UNCAC requires countries like Oman to reinforce legislation and implement measures to ensure that corruption is completely eradicated from society.  This is likely to lead to even more aggressive action by prosecutors around the world; the risk of criminal prosecution is likely to remain high for businesses which do not take action to mitigate this risk.'),
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(92823, 5044, 'content', 'December 2014 - January 2015\r\n\r\n<hr />\r\n\r\nThe evolution of social media and communication has had a tremendous effect on all professions and industries, creating better performance, access to the market and better communication.  Productivity, efficiency and earnings have improved across the board. For the legal profession it has allowed law firms to perform better, to build a virtual library, to communicate with clients faster and deliver agreements and advices within an exceptional timeframe. The use of the internet, electronic communication and mobile phones have made communication between lawyers and clients easier, allowing lawyers to be available 18 hours a day and facilitating the delivery of documents to clients within seconds. Communication between courts, arbitrators and clerks has reached an unprecedented stage with electronic filing becoming the standard.\r\n\r\nMost of the changes relate to the tools used or the services provided. Law firms still operate in the same way, just with less faxes, more emails, and fewer physical libraries. All these changes seem to be the tip of the iceberg. The growth that companies such as Google, Apple, Samsung and Microsoft are experiencing keeps the momentum of change going, with more and more aspects of life become virtual and mobile handsets and tablets becoming more important than laptops and desktops. Voice recognition, dictation and video-conferencing will soon be dominating the style of doing business in the future and lawyers and law firms need to adapt to this quickly.\r\n\r\nSimply having an account on Twitter, Linkedin, Youtube, Facebook and Instagram is not good enough and will not provide the presence in social media that law firms are seeking. Ask the new generation and you will realise that these tools need to be the vehicle for communicating with clients, the industry and public. These tools need to be the everyday lifestyle of the new generation lawyers in providing services, communicating with the clients and marketing. To crystallize the idea just look around and see who were the big players in e-commerce, media and the internet ten years ago. Who are the players today? If they are the same it is because they have invested in technology, innovation, media and fast communication through mobile phones and technology. The same is likely to apply to the entire business community whether you are delivering packages, a retailer or providing legal services. If you don’t have the technology at least be part of it and adapt to it.\r\n\r\nQuality legal advice will always be needed, and the expertise of the professional will always count. However there are a number of good lawyers and what will matter in the future is how the expert reaches out to his clients and the style in which he will communicate with them. This not only matters for better service and faster communication, but because future generations will want to use more modern methods of communication. It could be in the style of holding a conference meeting, accepting payments via mobile or arranging for notarization of documents electronically. The biggest challenge that lawyers and other professionals will face is not only adapting but in keeping up. Those who will succeed and become leaders are those who will embrace and change and totally integrate into the system. It is therefore important to make technology, e-commerce, media and mobile communication part of your culture and daily activity blended with a lot of innovation to become one of the players, rather than someone who would like to be trained to play.\r\n\r\nLaw firms need to change, adjust and to benchmark their practice to other industries and the culture and habits of the younger generation. Today mobile and social media may be considered to be the fun game of the young generation but in the very near future it will be the habit of the future generation and the culture of the business environment. It is not surprising that major IT companies are investing billions of dollars in acquiring other IT companies who may not be the core of their business, as they are realising that it is the future to be able to not only provide IT service, but also to penetrate social media and mobile services. Law firms and lawyers need to be able to engage themselves with social media and communications at an early stage and be prepared to be part of this future. If they do not they risk losing clients. Services need to be provided at the push of a button without compromising on the quality, as one cannot be traded for the other.'),
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(92317, 5017, 'content', 'November 2014\r\n\r\n<hr />\r\n\r\nTo the casual observer, such formalities may seem minor and insignificant, but they may have a serious impact on the enforceability of the contract.\r\n\r\nThis article discusses a recent judgment highlighting the importance of the parties’ signature to an arbitral agreement and the problems that may occur where the contract seeks to incorporate terms by reference to a separate document which has not been signed.\r\n\r\nCASE FACTS\r\n\r\nThe Claimant entered into a Sale and Purchase Agreement (“SPA”) with the Defendant to purchase a residential unit that was to be handed over in December 2012.\r\n\r\nThe SPA was composed of two parts: the first part was referred to as the “Signed Particulars” and the second part was referred to as “Standard Terms and Conditions”. The first part was signed by the parties, whereas the second part - which included the arbitration clause – was not signed.\r\n\r\nIn early 2012, the Claimant initiated proceedings against the Defendant before the Abu Dhabi Court of First Instance. The Claimant sought a refund on the basis that the Defendant had not commenced construction and would inevitably fail to deliver the unit by the end of the year.\r\n\r\nCOURT OF FIRST INSTANCE\r\n\r\nThe Defendant objected to the Court’s jurisdiction and requested that the dispute be referred to arbitration. The Defendant argued that:\r\n<ol>\r\n 	<li>In the first part of the SPA – that was signed by the parties – there is a clause stating that the Claimant has read and received the full Standard Terms and Conditions, which formed an integral part of the entire agreement. The arbitration clause had therefore been incorporated by reference.</li>\r\n 	<li>No objection was made by the Claimant nor did it deny the Defendant’s argument that there was an existing arbitration clause. In fact, the Claimant submitted a closing statement requesting the appointment of a sole arbitrator in line with the provisions of the SPA (although this was submitted after the Court had closed the hearing).</li>\r\n</ol>\r\nThe Court however did not accept this. The Court found that the second part of the SPA had no binding effect because it had not been signed, and consequently there was no proof that the parties had agreed to refer any disputes to arbitration.\r\n\r\nThe Defendant appealed the preliminary judgment to the Court of Appeal. However the Court of Appeal also rejected the Defendant’s arguments and upheld the judgment issued by the Court of First Instance. The Court of Appeal elaborated more in its reasoning as to why the arbitration clause was not valid. It further explained the effect of not having a document signed by the parties:\r\n\r\n1. Invalidity of the arbitration clause for lack of signatures, in line with article 203 of the CPL\r\n\r\nThe Court of Appeal found that:\r\n<ul>\r\n 	<li>Article 203 of the UAE Civil Procedure Law requires the arbitration agreement to be in writing, which includes a requirement that it be signed.</li>\r\n 	<li>There was no proof that the parties agreed to arbitration. Any acknowledgment made by the Claimant to the second part of the SPA was made with regards to a document that has no binding effect and so the acknowledgment has no effect as well. The rationale behind this view was the lack of signatures in the second part of the SPA.</li>\r\n</ul>\r\nIt is worth mentioning that a similar judgment was issued by the Dubai Cassation Court in February 2014, with the slight difference being that the second part of the SPA had been initialled by the parties. In that case the Court did not deem this as sufficient proof, stating that  full signatures of the parties are needed, and not only initials (please refer to Al Tamimi’s Law Update issue of July/August 2014 – Article by Mohammad Al Muhtaseb and Marwa Al Mahdy).\r\n\r\n2. The second part of the SPA  is not binding for lack of signature, in line with article 11 of the Federal Evidence Law\r\n\r\nThe Court of Appeal stated in its judgment that:\r\n\r\n<em>“…as it is a mutual agreement between the parties, it should have been signed… signature is its only condition to serve as full proof to evidence the agreement and make it binding... In this regard, article 11 of the Evidence Law states that a customary document shall be considered to originate from the person signing it provided he does not explicitly deny any handwriting, signature, seal or fingerprint pertaining to him.”</em>\r\n\r\nAlthough the judgment is not clear, the above quote suggests the Court found support for its decision from Article 11 of the Evidence Law . The second part had not been signed, and so cannot be said to originate from the Claimant, as per Article 11 of the Evidence Law.\r\n\r\nWe believe that the underlying issue is not the signature per se, but rather a question of evidence. The key issue is whether the parties agreed to the content of the second part or not, irrespective of having the document signed. There are other means to prove that that a party consented to an agreement. For example, an electronic signature would serve as a sufficient proof as per the UAE Electronic Transactions and Commerce Law. Another example is where the other party simply decides to acknowledge the truth before the court that he has previously agreed to the content of that agreement.\r\n\r\nThere are rulings in other cases that have upheld arbitration clauses incorporated by reference (please see Al Tamimi’s Law Update issue of June 2013 – Article by Ahmad Ghoneim and Omar Khodeir). For example, in Abu Dhabi Court of Cassation case 462/2002, the Court held that:\r\n\r\n<em>“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…” </em>\r\n\r\nCuriously, when the merits of the case were decided by the Court of Cassation it was held that  the Defendant had a right to extend the handover date for a period of 18 months as stated in the second part of the SPA  - the section which the Court had earlier found had no binding effect for lack of signatures.\r\n\r\nCONCLUSION\r\n\r\nWhilst the courts have previously held that in certain circumstances arbitration agreements can be incorporated by reference, in light of this recent case parties would be well advised to nonetheless sign the page containing the arbitration agreement in full to avoid any doubt that it has been agreed.'),
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(92336, 5018, 'content', 'November 2014\r\n\r\n<hr />\r\n\r\n<strong>Introduction </strong>\r\n\r\nThis article is a review of a recent UAE court judgement where a lawsuit that was brought by a customer (“Plaintiff”), against a company that develops and operates the trade mark of a well known restaurant in the Middle East including the UAE (“First Defendant”). The company that owns the trade mark was also a party to the proceedings which is located in USA (“Second Defendant”), where the Plaintiff was served food contaminated with bugs and insects by the First Defendant. The judgment of the Court of First Instance was issued in favour of the First and Second Defendants (together “Defendants”). Al Tamimi &amp; Company represented the Second Defendant in these proceedings.\r\n\r\n<strong>Background</strong>\r\n\r\nIn 2009 the Second Defendant granted a license to the First Defendant to develop and operate its restaurants in the Middle East including the UAE, pursuant to a Master License Agreement.\r\n\r\nOn 10 June, 2013, the Plaintiff and his colleague visited one of the First Defendant’s restaurants to have their lunch. They ordered several food items from the menu, one of which contained lettuce and while eating the food, they found bugs and insects in the lettuce. The Plaintiff quickly filed a complaint to Dubai Municipality claiming that the restaurant served them with contaminated food. The Food Control Department of Dubai Municipality inspected the restaurant and issued a report, which confirmed that the lettuce contained bugs and insects due to not washing the same properly.\r\n\r\n<strong>The Nature of the Claim </strong>\r\n\r\nThe Plaintiff brought an action before Dubai Court of First Instance against the Defendants seeking damages in the sum of AED 250,000. The Plaintiff claimed that he suffered serious moral damages as well as diarrhoea and vomiting due to eating food contaminated with bugs and insects at the First Defendant’s restaurant (which is controlled and supervised by the Second Defendant). The Plaintiff claimed that the First Defendant is subordinate to the Second Defendant.\r\n\r\nThe Plaintiff provided the Court with copies of four photos that show the insects and bugs are in the food and a copy of an email that was sent by Dubai Municipality thanking the Plaintiff for filing his complaint to Dubai Municipality regarding the contaminated food.\r\n\r\nThe Plaintiff based his claim in tort and relied on the following Articles of the Civil Transactions Law:\r\n\r\nArticle 282 which provides:\r\n\r\n<em>“Any harm done to another shall render the actor, even though not a person of discretion, liable to make good the harm.”</em>\r\n\r\nArticle 292 which provides:\r\n\r\n<em>“In all cases the compensation shall be assessed on the basis of the amount of harm suffered by the victim, together with loss of profit, provided that that is a natural result of the harmful act”. </em>\r\n\r\nHowever, the Plaintiff relies on Article 313(b) to include the Second Defendant into the claim. This article provides:\r\n\r\n“(a) No person shall be liable for the act of another person, but nevertheless the judge may, upon the application of an injured party and in the event that in his opinion there is justification for taking that course, render any of the following persons liable as the case may be to satisfy any amount awarded against a person who has caused the harm:\r\n\r\n(b) any person who has actual control, by way of supervision and direction, over a person who has caused the damage, notwithstanding that he may not have had a free choice, if the act causing harm was committed by a person subordinate to him in or by reason of the execution of his duty.”\r\n\r\nThe Plaintiff asked the Court to bind the Defendants to jointly pay the sum of AED 250,000 for monetary and moral damages that he suffered due to eating contaminated food. In addition, the Plaintiff claimed interest on the claimed amount at a rate of 12% from the date of claim until a full payment is made, as well as all legal expenses and fees.\r\n\r\nThe Arguments of the Defendants:\r\n\r\nThe Second Defendant argued that since it does not operate in Dubai and it had granted a license to the First Defendant to develop and operate its trade mark restaurants in the Middle East including the UAE, the Second Defendant has no legal capacity to be sued in this claim. Moreover, the Second Defendant does not control or supervise the First Defendant and, the First Defendant is not subordinate to the Second Defendant. Furthermore, the Plaintiff did not submit any evidence proving that the First Defendant is controlled and supervised by the Second Defendant. Therefore, Article 313(b) of the Civil Procedures Law does not have any applicability in this case, so it should be dismissed for lack of legal personality against the Second Defendant. It is worth mentioning that the First Defendant confirmed to the Court that it has been using the trade mark of the Second Defendant.\r\n\r\nThe Defendants denied all the supporting documents that were submitted by the Plaintiff to the Court, on the basis that they were photocopies and not the originals and such documents do not have evidential value according to Article 45 of the Civil Procedures Law.\r\n\r\nThe Defendants argued substantively that, since the Plaintiff based his claim in tort and not a contractual relationship, he should prove to the Court that the Defendants committed a harmful act resulting in damages to him. However, the Plaintiff did not submit to the Court any evidence proving that he suffered any damages, diarrhoea and/or vomiting due to the food he ate at the restaurant. Furthermore, even if the Plaintiff submits to the Court evidence to prove that there were insects in the food, such evidence does not prove any harmful act committed by the Defendants. Also such evidence does not prove that the Plaintiff suffered damage. Therefore, the Defendants argued that the case should be dismissed for lack of evidence.\r\n\r\n<strong>The Court of First Instance </strong>\r\n\r\nThe Court of First Instance found that the Second Defendant has no capacity to be sued in this case, as the Plaintiff did not provide the Court with any evidence to prove that the First Defendant is the representative or agent of the Second Defendant. Therefore, the Court dismissed the case against the Second Defendant.\r\n\r\nAlso the Court ruled that according to Article 1 of the Civil Procedures Law and the legal precedents, the Plaintiff should prove his claim. However, the Plaintiff did not submit to the Court any evidence that proves that the food he ate at the First Defendant’s restaurant caused him to suffer damage. Also, all the documents that were submitted by the Plaintiff were photocopies and the Defendants denied them, thereby they have no weight of evidence.\r\n\r\nAccordingly, the Court decided to dismiss the case for lack of evidence.\r\n\r\n<strong>Comment</strong>\r\n\r\nIt can be said that even if a restaurant serves its customers contaminated food with bugs and insects, the restaurant will not be liable to compensate the customers for serving such food, unless the customer proves to the Court that they suffered from damages.\r\n\r\nIt is worth mentioning that the Plaintiff has filed an appeal to challenge the Court of First Instance’s judgement.'),
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(92359, 5019, 'content', 'November 2014\r\n\r\n<hr />\r\n\r\nIn the UAE, victims of medical malpractice can pursue complaints against healthcare professionals and hospitals in three different ways:\r\n<ol>\r\n 	<li>Filing a medical complaint at the appropriate healthcare authority.</li>\r\n 	<li>Filing a civil case before the UAE court.</li>\r\n 	<li>Filing a criminal complaint before the police or public prosecution.</li>\r\n</ol>\r\nThese options can be pursued at the same time or sequentially, although proceedings before the criminal court will usually stay any civil case. Whichever option is chosen expert medical evidence will be needed, but filing a criminal complaint is the only option which is driven not by the victim, but by the state (i.e. the state prosecutor, who is responsible for deciding whether charges are laid). The purpose of this article is to provide an overview of the options available to victims, with a particular focus on the special role expert medical evidence has in criminal prosecutions.\r\n\r\nCOMPLAINTS BEFORE THE HEALTHCARE AUTHORITIES\r\n\r\nThe Dubai Health Authority, the Dubai Healthcare City Authority and Abu Dhabi Health Authority (the “Healthcare Authorities”) are the health regulators responsible for reviewing medical complaints against healthcare providers and medical practioners in Dubai and Abu Dhabi. The Dubai Health Authority deals with medical complaints against healthcare providers and medical practioners in the public and private sectors in Dubai, whilst the Dubai Healthcare City Authority is responsible for investigating medical complaints against healthcare professionals and hospitals within the healthcare city only. The Abu Dhabi Health Authority investigates medical complaints against healthcare providers and professionals in the Emirate of Abu Dhabi.\r\n\r\nMedical complaints before the Healthcare Authorities can be filed by patients, their families or someone acting on behalf of the patient (provided that the patient’s consent is obtained). The Healthcare Authorities will investigate the complaint and determine whether or not a healthcare professional committed any medical errors. The objective of the Healthcare Authorities’ investigation of medical complaints is to ensure patients receive the best quality of healthcare and deter physicians from committing the same medical errors in the care and treatment of patients.\r\n\r\nThe Healthcare Authorities will investigate complaints and assess whether or not the appropriate medical professional standards were met. If a physician is found to be negligent, the Healthcare Authorities are empowered to take the following disciplinary actions:\r\n<ol>\r\n 	<li>Reprimand the healthcare professional or institution.</li>\r\n 	<li>Impose further training for the physician and supervision by another licensed healthcare professional.</li>\r\n 	<li>Suspend the physician and hospital’s license (temporarily or permanently depending on the nature of the medical error/s).</li>\r\n 	<li>Fine the healthcare institution.</li>\r\n</ol>\r\nTHE HIGHER COMMITTEE FOR MEDICAL LIABILITY\r\n\r\nThe Higher Committee for Medical Liability, located at the Ministry of Health in Dubai is the supreme committee of medical experts in the UAE (the “Supreme Committee”). It was established under Cabinet Resolution No. 6 of 2012 to provide its technical opinion in medical malpractice cases. The Committee members indentified in the Resolution are consultant physicians from different medical specialties.\r\n<p class=\"MsoNormal\">The Supreme Committee is responsible for investigating medical malpractice cases upon the request of the public prosecutor and the UAE courts (the “Judicial Authorities”), or the health authorities.</p>\r\nHealthcare professionals and institutions that are subjected to legal proceedings for malpractice also have the right to request the Higher Committee to review and investigate medical claims filed by patients, provided that the permission of the court or public prosecution is obtained.\r\n\r\nCIVIL CLAIMS\r\n\r\nPatients approach the civil courts to claim monetary compensation against healthcare providers and professionals for material, moral and psychological damages. There are no precedents on the figures awarded by the courts in medical malpractice claims. The amounts vary from case to case and in the discretion of the judge, who assesses the level of damages suffered by a patient following a review of the evidence, which usually includes an expert medical report.\r\n\r\nCRIMINAL CASES\r\n\r\nUnlike the common practice in the West, doctors in the UAE can be subjected to criminal liability and convictions for professional negligence under the UAE Penal Code (Federal Law No. 3 of 1987).  This can result in a prison sentence of at least one year and/or a financial penalty not exceeding AED 10,000 depending on the extent of harm suffered by a patient. If the injury results in permanent disability a prison sentence of two years may be applied (see articles 342 and 343 of UAE Penal Code). If there are aggravating circumstances (such as the involvement of alcohol or narcotics) the maximum available prison term increases to five years.\r\n\r\nThe fines imposed by the criminal court are payable to the UAE government. They are not compensation for the victim, nor do they indicate the level of compensation to be afforded to the victim in any civil claim.\r\n\r\nLIABILITY OF HEALTHCARE PROFESSIONALS\r\n\r\nThe duty of a doctor under the UAE Medical Liability Law (Federal Law No. 10 of 2008) is not to achieve an end result (i.e. to cure or to guarantee a successful operation) but to use the degree of care and skill that is expected of the average qualified practitioner taking into account the customary standards of the profession and accepted scientific principles.\r\n\r\nThe Medical Liability Law (article 14) provides other instances where doctors will not be held liable for medical negligence:\r\n<ol>\r\n 	<li>If the damage was sustained due to the action of the patient (i.e. refusing to receive treatment, failing to follow the medical instructions provided by persons supervising the patient’s treatment or due to an external cause).</li>\r\n 	<li>If the physician followed a certain medical method which, although not the generally accepted method, a method which followed recognized medical principles.</li>\r\n 	<li>If the medical side effects and complications are known in the medical practice.</li>\r\n</ol>\r\nIn addition, article 53 of the Penal Code also provides that there is no crime if the act is committed in accordance with the scientific principles generally accepted and applied in licensed medical practice, provided they are performed with consent of the patient or in emergency cases.\r\n\r\nMEDICAL EXPERT EVIDENCE\r\n\r\nThe Judicial Authorities in the UAE rely heavily on medical expert evidence when assessing whether or not a patient is a victim of medical malpractice. Cases are normally referred to the Healthcare Authorities in the UAE or the Supreme Committee to determine whether or not a doctor committed medical errors in a surgical procedure, diagnosis or treatment of a patient and the causal link between the error and damage suffered due to the actions or inactions of a healthcare professional.\r\n\r\nPatient medical records are often of paramount importance because they detail the medical history of the patient and the care provided. It is essential and necessary for all healthcare institutions and professionals to document patients’ medical records (particularly consent forms for surgical procedures as this has been a common issue in most cases), not least because they will assist in defending medical malpractice claims before the Judicial Authorities. The Judicial Authorities have dismissed several malpractice claims for lack of evidence even though patients have supported their complaints with investigation reports from the Healthcare Authorities.\r\n\r\nEXPERT EVIDENCE IN PRACTICE\r\n\r\nAl Tamimi &amp; Company recently represented a healthcare professional in a case which demonstrates the importance of expert medical evidence and how they are used in criminal cases.\r\n\r\n<strong>Background</strong>\r\n\r\nThe patient visited a physician specializing in infectious diseases in October 2010 with minor cold symptoms. During this visit, the physician’s examination of the patient’s chest revealed mild wheezing only. No fever was present and the patient did not report any symptoms.\r\n\r\nThe patient’s temperature, heartbeat, blood pressure and all other vital signs were normal and stable.  The physician therefore prescribed medication to treat the patient’s cold symptoms.\r\n\r\nAbout 12 hours after the visit, the patient’s condition significantly deteriorated with increasing respiratory symptoms. She was admitted to the emergency department of the hospital where the physician was employed, and diagnosed with pneumonia following medical tests carried out in the emergency department.\r\n\r\nThe patient was subsequently admitted to the Intensive Care Unit (“ICU”) of the hospital and was treated by the medical staff in the ICU for one month. The patient was discharged from the hospital in November 2010 at her own request since she was recovering.\r\n\r\n<strong>Medical Complaint Before Health Authority</strong>\r\n\r\nA year following the patient’s discharge from the hospital, a medical complaint was filed before a health authority in Dubai (the \'\'Regulator\")  against the hospital and the treating physician for conducting a poor assessment of the patient’s condition in October 2010. The Regulator found the physician negligent for failing to perform an appropriate assessment of the patient’s clinical condition.\r\n\r\nThe physician filed an appeal against the decision issued by the Regulator and pleaded that the assessment of the patient’s condition at the time was appropriate and in accordance with international medical standards. The Regulator nonetheless sustained its previous decision against the physician.\r\n\r\n<strong>Criminal Complaint</strong>\r\n\r\nThe patient subsequently filed a criminal complaint before the Dubai police against the physician for professional negligence and the police transferred the case to the public prosecutor.\r\n\r\nSince the case contained technical aspects that require expert assessment, the Prosecutor decided to refer the case to a committee of specialised doctors (\"Panel of medical experts\").\r\n\r\nThe Panel reviewed the case and also found the physician negligent for failing to appropriately diagnose the patient’s condition.\r\n\r\n<strong>Defence Before the Public Prosecutor</strong>\r\n\r\nThe physician, represented by Al Tamimi &amp; Company filed a defence before the prosecutor supported by an opinion from an independent medical specialist which explained that pneumonia cannot be predicted as it can progress rapidly, and could not have been diagnosed at the time of patient’s visit. Evidence of the patient’s condition at the time of the visit and subsequently was set out in her medical file which was also attached to the defence memorandum.\r\n\r\nThe physician argued that the findings of negligence from both the Regulator and the Panel of medical experts with respect to the physician’s assessment of the patient’s condition were false and provided no clarification on the necessity or mandatory obligation on the physician to perform additional examinations and tests. The patient did not have a fever, any chest pains or any abnormality in her vital signs which required the physician to carry out additional tests or refer the patient for x-ray. The earlier admission to the hospital was unlikely to change the course of the illness or affect the eventual outcome due to the aggressive nature of the infection.\r\n\r\nIn addition, the findings of negligence on the part of the physician did not indicate how the physician’s management affected the outcome, which further demonstrated that the outcome of both the Regulator and Panel\'s investigations were not substantiated by any credible evidence.\r\n\r\n<strong>The Higher Committee</strong>\r\n\r\nThe physician requested that the matter be referred to the Higher Committee for Medical Liability to review the case and determine whether any medical negligence was committed by the physician. The Prosecution accordingly transferred the case to the Higher Committee.\r\n\r\nThe Higher Committee investigated the case and found that the patient did not suffer from any respiratory distress or fever at the time of the visit, and the physician gave the appropriate treatment according to the patient’s existing symptoms. The Higher Committee concluded that the physician treated the patient in accordance with generally recognized medical norms with no default or negligence.\r\n\r\nThe Prosecution rendered a decision based on the Higher Committee’s findings and dismissed the case for lack of evidence.\r\n\r\nCONCLUSION\r\n\r\nThe use of medical expert evidence is usually fundamental in the conduct of medical negligence claims in the UAE. Healthcare professionals and institutions will not necessarily be held liable for malpractice even if there are reports from Healthcare Authorities or medical specialists that prove the contrary, provided that the healthcare professional can demonstrate that he performed his duties in accordance with acceptable medical principles.'),
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(92382, 5020, 'content', 'November 2014\r\n\r\n<hr />\r\n\r\n<strong>Introduction</strong>\r\n\r\nBribery is bad for legitimate business, tarnishing the names of companies that are known to be associated with it. Such reputational damage is an additional consideration to the legal consequences of permitting or failing to prevent corrupt practices, whether corporately or by rogue representatives acting against the company’s policies and procedures. Bribery also creates problems for governments that are trying to tackle corruption and to encourage foreign investment, as a level playing field is obviously desirable for the honest majority.\r\n\r\nIn addition to international legal provisions to combat corruption (for example, the United Nations Convention Against Corruption) that lead to domestic anti-bribery legislation, the international business community also recognises the need to do away with corruption, as opposed to well-intended and legitimate marketing practices. This has resulted in, for example, the recent publication by the International Chamber of Commerce (“ICC”), in June 2014, of Guidelines on Gifts and Hospitality, which make reference to various international legislative provisions.\r\n\r\nThe United Arab Emirates (“UAE”), along with most of the international community, is keen to minimise instances of bribery, to bring perpetrators to justice and to deter others from employing corrupt methods of doing business.\r\n\r\nThis article sets out brief summaries of the UAE and UK anti-bribery provisions and then underscores the importance, to persons and businesses in the UAE, of conducting themselves in compliance with the UK Bribery Act 2010 (“UKBA”)  in addition to the relevant UAE anti-bribery provisions.\r\n\r\n<strong>UAE Anti-Bribery Provisions</strong>\r\n\r\nA detailed analysis of the UAE anti-bribery provisions is beyond the scope of this article. In brief, however, bribery is primarily  criminalised and prohibited in the UAE by the UAE Federal Law no. 3 of 1987 as amended (“Penal Code”).\r\n\r\nThe Penal Code specifically prohibits passive bribery (receiving or requesting a bribe) in both the public and private sectors and active bribery (giving or offering a bribe) in the public sector. However, active bribery in the private sector is not specifically prohibited. A person who gives or offers a bribe to a person in the private sector would need to be prosecuted as an accomplice to the recipient of the offer or bribe.\r\n\r\n<strong>Summary of the United Kingdom Bribery Act</strong>\r\n\r\nThe UKBA came into force on 1 July 2011, replacing several legislative provisions that dealt with corruption and had been in place from as early as 1889. Offences under the UKBA are:\r\n<ol>\r\n 	<li>Bribing a person (active bribery) (s.1);</li>\r\n 	<li>Being bribed (passive bribery) (s.2);</li>\r\n 	<li>Bribing a foreign public official (s.6); and</li>\r\n 	<li>Failing to prevent bribery by associated persons (applicable to commercial organisations) (s.7).</li>\r\n</ol>\r\nThe first three offences are punishable by a maximum sentence of 10 years’ imprisonment, an unlimited fine, or both. The offence of failure to prevent bribery is punishable by an unlimited fine.\r\n\r\n<strong>Applicability of the UKBA outside the UK</strong>\r\n\r\nSection 12 of the UKBA details the provisions of the act that relate to territorial application. The UKBA expressly provides jurisdiction for criminal proceedings to be taken in the UK for the four offences listed above, although there is a distinction between the first three (‘personal’) offences and the fourth (‘corporate’) offence in this regard.\r\n\r\nIn respect of the first three offences, the effect of s.12 of the UKBA is that the offence is deemed to have taken place in the UK (and to therefore be subject to UK jurisdiction) if:\r\n<ol>\r\n 	<li>any act or omission which forms part of the offence took place in the UK; or</li>\r\n 	<li>a person acts or omits to act outside the UK in a way that would form part of an offence if performed in the UK and that person has a close connection to the UK.</li>\r\n</ol>\r\nAn exhaustive list of ways in which a person may have a close connection to the UK is set out in s.12(4). The person must have been, at the time of the act or omission, one of the following:\r\n<ol>\r\n 	<li>a British citizen,</li>\r\n 	<li>a British overseas territories citizen,</li>\r\n 	<li>a British National (Overseas),</li>\r\n 	<li>a British Overseas citizen,</li>\r\n 	<li>a person who under the British Nationality Act 1981 was a British subject,</li>\r\n 	<li>a British protected person within the meaning of that Act,</li>\r\n 	<li>an individual ordinarily resident in the UK,</li>\r\n 	<li>a body incorporated under the law of any part of the UK,</li>\r\n 	<li>a Scottish partnership.</li>\r\n</ol>\r\nIn respect of the fourth offence listed above (failure by a corporate body to prevent bribery), s.12(5) states that it does not matter whether the acts or omissions which form part of the offence took place in the UK or elsewhere. The company is subject to the UKBA if it is incorporated in the UK or, if not, if it carries on business in the UK. For the company to be guilty of failing to prevent bribery committed by a person, that person must have committed (i) bribery of a person or (ii) bribery of a foreign public official (but need not be actually prosecuted for either offence). In either case, the bribery may have taken place inside or outside the UK. Where it took place outside the UK, there is no need for the person committing bribery to have a close connection with the UK.\r\n\r\n<strong>Guidance on the UK Bribery Act</strong>\r\n\r\n<em><strong>Facilitation Payments</strong></em>\r\n\r\nUAE businesses may be particularly interested in the area of facilitation payments. Unlike the FCPA (in certain circumstances), the UKBA does not permit facilitation payments, which are unofficial payments made to public officials in order to secure or expedite the performance of a routine or necessary action. They are sometimes referred to as ‘speed’ or ‘grease’ payments. The payer of the facilitation payment usually already has a legal or other entitlement to the relevant action.\r\n\r\nIn an open letter dated 6 December 2012, the Director of the Serious Fraud Office (“SFO”) made it clear that the UK Government and the SFO are committed to stamping out bribery and upholding the rule of law, that facilitation payments are not permitted under the UKBA (and were not permitted under the previous UK anti-bribery laws), and encouraged UK individuals or companies who are asked to make a facilitation payment in the course of business overseas to report such requests to the local embassy, high commission or consulate.\r\n\r\n<em><strong>Hospitality and promotional expenditure</strong></em>\r\n\r\nThe joint prosecution guidance to the UKBA, published by the Director of the SFO and the Director of Public Prosecutions (“DPP”) in March 2011, makes it clear that hospitality or promotional expenditure which is reasonable, proportionate and made in good faith is an established and important part of doing business and the UKBA does not seek to penalise such activity.\r\n\r\nIn the right (or wrong) circumstances, however, hospitality and promotional expenditure could form the basis of the offences of bribing another person or bribing a foreign official and could be a bribe for the purposes of the failure to prevent bribery offence. Each case will depend on the facts, all of which will need to be considered by the prosecutor before making a decision to prosecute.\r\n\r\n<em><strong>Failure of commercial organisations to prevent bribery – Defence of Adequate Procedures</strong></em>\r\n\r\nA commercial organisation will have a defence to a charge under s.7 if it can show that it had adequate procedures in place to prevent persons associated with it from bribing. The standard of proof required is the balance of probabilities i.e. “is it more likely than not that the procedures were adequate?” This will be a matter for the courts to decide on a case by case basis and will be a factor to be considered by the prosecutor in deciding whether to prosecute. Prosecutors must also, when considering whether the procedures put in place are adequate, take into account the 43-page guidance document published by the Ministry of Justice on procedures that commercial organisations can put in place to prevent bribery by persons associated with them.\r\n\r\n<em><strong>Examples related to the UAE</strong></em>\r\n\r\nThere are recent examples (July and October 2014) of investigations by the UK SFO into allegations of corrupt practices conducted in the UAE by employees or representatives of UK entities. These investigations are in relatively early stages and, although their outcome cannot be predicted, they serve as a reminder that commercial operations in the UAE will not escape the attention of the UK authorities when there is reason to investigate.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nFrom a legal perspective, persons in the UAE could be liable to prosecution under the UKBA in the UK if they (i) have the required connection to the UK (for example, by being a UK citizen, a UK-incorporated company, a company carrying on business in the UK or if they travel to the UK and commit a relevant act while there) or (ii) if they engage in a conspiracy with a person who is in the UK, to commit bribery, even if they have no connection to the UK.\r\n\r\nOf course, quite apart from the threat of prosecution under the UKBA is the distinct possibility of action by the UAE authorities under the anti-bribery provisions of the Penal Code (or other applicable legislation).\r\n\r\nIn the end, however, good business practice should be about making the right ethical decisions, not merely complying with the law for fear of prosecution. Compliance with the UKBA (and any other anti-corruption legislation) ought really to be taken by companies as an opportunity to focus on honing their due diligence to ensure the honest and profitable conduct of business, in an international market where high standards of anti-corruption practice are increasingly the desirable norm.'),
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(92405, 5021, 'content', 'November 2014\r\n\r\n<hr />\r\n\r\nWe consider how far the UAE employment system not only protects but also advances the interests of employers within the Healthcare sector, whilst also recognising some limitations inherent in the current sponsorship system.  The intention to develop the UAE as a hub of medical tourism adds an extra dimension to this complex area.\r\n\r\n<strong>Restriction of activities during employment</strong>\r\n\r\nAn employer within the Healthcare sector can comfortably rely upon the UAE employment and immigration framework to guarantee that its staff will be dedicated to providing their services to that single employer. Unlike other legal systems which may recognise an individual’s freedom to contract with more than one “employer”, the employment framework within the UAE requires that an employee shall work only for the sponsoring entity.\r\n\r\nThe nature of the employment relationship in the UAE is essentially “static”. As addressed in a previous edition (Law Update February 2014), the UAE immigration process strictly controls the manner in which individuals can perform their “work” on a daily basis.\r\n\r\nAn individual must be directly engaged (i.e. “employed”) by a locally licensed and registered employing entity in order to work lawfully in the UAE. There is no recognised concept of self-employment or other atypical working status, which may be commonplace in other jurisdictions. As a general principle, a non-national seeking to live and work in the UAE must either enter into a Ministry of Labour (“MOL”) standard form contract (where employment is onshore) or a similar standard contract provided by the  applicable free zone. This applies equally to those employed in the Healthcare sector.\r\n\r\nFor example, as a general principle, a Hospital-Based Specialist working for hospital X in the Dubai Healthcare City (“DHCC”) free zone may not work for other entities. There may be a possibility for permission to be granted to work for another entity within that free zone and we are aware of such practices within DHCC. However, this would be subject to various conditions, not least the existing sponsor confirming that it did not object to such a situation and the arrangement would have to be carefully managed in order to preserve the employer’s business interests (i.e. its ability to provide specialist services to its patients).\r\n\r\nThe limitation on mobility of employees has some undoubted advantages for private sector hospitals/clinics in terms of ensuring that their Hospital-Based Specialists are restricted to only providing services to them and not to other employers. That preservation of a stable trained workforce within the single licensed entity is a key factor for any business, but particularly one which relies upon the consumer perception of high quality patient care.\r\n\r\n<strong>Restricting activities post-employment via restrictive covenants</strong>\r\n\r\nAn employer’s ability to protect its business interests during employment is largely uncomplicated. However, the position is less straightforward after termination of employment.\r\n\r\nIn addition to the restrictions which arise during employment in the UAE, an employer may also choose to impose contractual restraints upon its employees as a means of regulating their activities following termination of employment. Given the basic nature of both the MOL contract and standard form free zone contracts, most employers will include post termination restrictions within separate supplementary employment contracts or on a stand alone basis. Typical covenants include restrictions against competition, solicitation and dealing with customers/clients and the solicitation and employment of staff of the former employer.\r\n\r\n<strong>Legal Position</strong>\r\n\r\nArticle 127 of Federal Law No. 8 of 1980 (as amended) (the “Labour Law”) expressly states that where an employee performs a role which allows him to become acquainted with confidential information, the employer may require the employee to agree to a contractual provision preventing him from working with a competing business after termination.\r\n\r\nWhilst the Labour Law is silent as to the circumstances in which a restriction will be regarded as valid, guidance is provided in Articles 909 and 910 of the Civil Code. A non-competition provision must be reasonable. It must therefore be limited in its scope; specifically its duration, area/geographical scope and relevance to the ex-employer’s business interests. The former employer relying upon the covenant must demonstrate that any restrictions are reasonably necessary to protect a legitimate business interest (for example, a client connection or confidential information) and that the restrictions are not being used simply to prevent legitimate competition.\r\n\r\nWhilst a covenant may be regarded as “reasonable” when applying the standards referred to in the Civil Code (above), that only takes matters so far. That alone does not necessarily provide an employer with a meaningful remedy in the absence of clear consequential financial harm arising from the breach of the covenant.\r\n\r\n<strong>Effective enforcement of a restrictive covenant</strong>\r\n\r\nBy contrast with a number of other jurisdictions, the UAE (with the exception of the Dubai International Financial Centre) does not recognise the concept of an injunction to actually prevent the financial harm, but insists upon clear evidence of such harm which may then lead to an award of damages (provided that the other tests as to reasonableness etc have been satisfied). This alone does not provide a significant deterrent to a former employee intent on breaching his covenants and (for example) seeking to divert customers (or clinic patients) from the previous employer.\r\n\r\nTo mitigate the unavailability of injunctive relief, the commonly adopted approach is to bolster the restrictive covenants by including a “liquidated damages” clause in the supplemental contract of employment. This is a separate contractual undertaking between the employer and employee and the onus is on the former employee to demonstrate that the sums sought are not a genuine pre-estimate of loss suffered by the employer. This is important because it runs contrary to the more usual scenario where a party claiming damages has to prove actual loss.\r\n\r\n<strong>Relevance to the Healthcare sector</strong>\r\n\r\nGiven that post-termination restrictions must be focused on the protection of a legitimate business interest, it follows that non-competition covenants must be used carefully and target only those employees who are genuinely a potential risk to the business. A Hospital-Based Specialist in a patient-facing role who has a developed relationship with patients (including knowledge of sensitive patient information) is a key “asset” of the business. Providing at least some degree of deterrent against competition is likely to be an important consideration for the employing hospital.\r\n\r\nIt should be noted that the misuse of confidential information (such as patient records) to compete at a different establishment would potentially be susceptible to criminal sanction.\r\n\r\nHowever, the positive assistance in restricting employees’ activities to their immediate sponsoring entity also imposes certain practical restraints on the employer which may be more than a mere operational inconvenience. For an employer operating more than one site, potentially in different Emirates, the current constraint upon employee mobility does not readily facilitate free movement of employees between sites. The new unified approach to licensing (below) may be the first step towards recognising the practical benefits of greater mobility within the Healthcare sector.\r\n\r\n<strong>Unified Licensing</strong>\r\n\r\nIn line with its intention to become a hub of high quality medical care and a centre of medical tourism, on 12 October 2014, a new licensing regime for Healthcare professionals came into effect in the UAE.\r\n\r\nThis has introduced a pragmatic approach to licensing of healthcare professionals within the UAE.  The agreement between respective licensing bodies, the Ministry of Health (covering the northern Emirates), Dubai Health Authority (DHA) and the Health Authority of Abu Dhabi (HAAD) introduces a consistent approach to licensing. The new arrangement provides a single recognised licensing process as opposed to a process applied on an Emirate specific basis.\r\n\r\nDHA Director-General Essa Al Maidoor stated recently that, “The agreement paves way for medical professionals to work across the UAE and is important as it unifies as well as streamlines the professional medical licensure process.”\r\n\r\nAt first sight that might seem to open the door to a relaxation of the process for working between Emirates and also between facilities. However, at this stage, the unified approach to licensing appears to be more focused on streamlining the recognition of qualifications within the UAE rather than wholesale relaxation of employment and immigration framework within the Healthcare Sector.\r\n\r\nThe cooperation between Emirates to recognise respective licensing does not alter the fundamentally static nature of the employment relationship. Licensing (for example, via DNA or HAAD) is entirely separate from immigration and/or Labour Law requirements. The employee can still only work for the employer who provides sponsorship at the stated place of business subject to the exceptions mentioned above. As such, an employee who is licensed in Dubai may indeed have his registration recognised in Abu Dhabi or elsewhere; however, that does not thereby permit him to actively work for an entity other than his immediate sponsor.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nIt remains to be seen how far the aim to development the UAE as a centre for medical tourism ultimately also leads to a greater freedom for medical professionals to be transferred more readily between facilities, whilst preserving the employer’s commercial interests. At this stage, the employer continues to benefit from certain restrictions upon the activities of its workforce, but is constrained by established sponsoring formalities from fully exploiting the rapidly developing marketplace.\r\n\r\nA Senior Associate in the Employment Department, John has experience of advising healthcare providers in the UK and UAE on all aspects of the employment relationship. His experience includes dealing with cases before professional conduct bodies in the medical and other regulated sectors. John is also a Judicial Officer for the UAE Rugby Federation.'),
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(92424, 5022, 'content', 'November 2014\r\n\r\n<hr />\r\n\r\nOne significant concern arising from recent events is which parties may be held liable for damages, injuries and casualties that may result from such accidents. More specifically, a considerable concern has arisen as to whether a manager of a place of business or retail outlet may bear liability for the consequences arising from accidents occurring on the premises of the business or retail outlet, which liability could include imprisonment, fines and/or the imposition of travel bans.\r\n\r\nIn determining the possible liability of a manager, several factors must be considered including the nature of the accident that has occurred, the type of company involved (shareholding company, limited liability company, partnership, etc.) and whether or not the manager’s name is listed on the company’s commercial registration (“CR”). While the liability of managers should be determined on a case-by-case basis and would be dependent on the structure of the company as well as factors related to the accident or incident such as the damage, injuries and/or casualties caused, some general considerations apply in all cases. Broadly speaking, two types of liabilities affecting the manager may arise from an accident or incident occurring in connection with a business or retail outlet: civil liability and criminal liability. The focus in this article is on the possibility or extent of criminal liability faced by the manager of a business or retail outlet arising from an accident that has occurred in connection with or on the premises of the business or retail outlet.\r\n\r\nA manager may feel insulated from criminal liability with regard to acts or omissions made on behalf of the company and undertaken in his or her capacity as manager. However, this assumption is not entirely correct. In accordance with the Qatar Law No. 11 of 2004 (“Qatar Penal Code”), managers may face criminal liability if their acts on behalf of the company would lead to consequences that would be considered criminal under the penal law. A manager may also face criminal liability for committing a private act that violates other laws in Qatar and results in the imposition of criminal penalties. Some relevant examples of laws under which criminal liability managers may arise include:\r\n\r\n<strong>Commercial and Industrial Outlets Law (No. 3 of 1975)</strong>\r\n\r\nUnder Article 17, managers/supervisors are held jointly liable with the employer for breaching the law. Article 20 goes on to provide that the manager/supervisor may be punished by imprisonment and fined for such violation.\r\n\r\n<strong>Consumer Protection Law (Law No. 8 of 2008)</strong>\r\n\r\nArticle 18 provides, “Without prejudice to any more severe sanctions provided for under any other law, the person who violates any of the provisions stipulated in the Articles of Chapter Three of the present law shall be sentenced to imprisonment for a period not exceeding two years and fined a sum . . . or sanctioned with one of the aforesaid sanctions.”\r\n\r\n<strong>Usage of Cameras and Security Surveillance Equipment Law (Law No. 9 of 2011)</strong>\r\n\r\nIn accordance with Article 2, “Owners of the facilities and those responsible for the management, must install cameras and monitor security equipment which is operated around the clock, from a control room”.   Article 11 further states, “. . .each person who violates the provisions of Articles 2, 3(1), 4(2), 5 and 6 of this law, shall be punished by imprisonment for a term not exceeding more than one year and a fine of not more than 10,000 Riyals, or either of these penalties.”\r\n\r\n<strong>Civil Defense Law (Law No. 13 of 1997)</strong>\r\n\r\nArticle 14 stipulates, “Persons in charge at the Public Utilities and Vital establishments, along with the owners of properties and owners of commercial and industrial activities shall carry out the measures of Civil Defense which are determined by the Directorate of Civil Defense on the respective expense and on the dates defined by the directorate.”  Article 20 further provides, “Whoever violates any of the provisions of this Law or the Resolutions issued in execution thereof, shall be punished by imprisonment for a period not exceeding three years and shall be fined … or shall be punished by either of these two punishments”.\r\n\r\nWith respect to corporate criminal liability, Article 37 of the Qatar Penal Code, is the general “catch-all” provision giving rise to the criminal liability of commercial entities. Under Article 37, with the exception of Ministries, governmental bodies, organisations and institutions, a Company is liable for the crimes committed by its representatives, managers and agents acting on its behalf. Therefore, the company will also be subject to the imposition of fines and other appropriate sub-penalties under the law. If the original penalty for the crime as determined by law differs from the imposition of fines, then the penalty will be limited to a fine not exceeding 500,000 Riyals.  However, Article 37 goes on to provide, “This does not prevent punishment of the perpetrator by the penalty decided by law.”  Under this general provision, managers may potentially be found criminally liable in addition to the company.\r\n\r\nNo clear standards or parameters establish when Article 37 will be applicable. In addition, no definition of “managers” has been provided in the said law. However, amongst other considerations, a manager would likely be implicated if his or her name appears on the company’s CR as an authorised signatory of the company. Managers may take certain steps to potentially mitigate the risk of liability:\r\n<ol>\r\n 	<li>The employment contract of the manager must precisely list the manager’s responsibilities and extent of liability.</li>\r\n 	<li>The listing of the manager’s name on the CR must be seriously considered as such listing may lead to the imposition of criminal liability, which could include the imposition of a travel ban on the manager in the event of an accident.</li>\r\n 	<li>Where an accident has occurred, a manager should consider contacting the company’s legal department or a lawyer prior to giving any statements or other evidence to public authorities.</li>\r\n 	<li>Ignorance of the law is not a defence. Managers must take all steps necessary to understand and adhere to the applicable laws.</li>\r\n</ol>\r\nWhile this list provides some general guidelines, the criminal liability of a manager in a given situation can be comprehensively determined only on a case-by-case basis after consideration of all relevant factors. Accordingly, obtaining advice from legal professionals is highly recommended following, or ideally before, the occurrence of an accident.'),
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(92447, 5023, 'content', 'November 2014\r\n\r\n<hr />\r\n<p class=\"MsoNormal\"><strong>DHA and HAAD</strong><strong> </strong></p>\r\n<p class=\"MsoNormal\">While hospitals and healthcare centres outside free zones are governed by different authorities in Dubai and Abu Dhabi (the Dubai Health Authority (“<strong>DHA</strong>”) and the Health Authority–Abu Dhabi (“<strong>HAAD</strong>”) respectively), the regulations in relation to the location and building type for a hospital or healthcare centre are quite similar in both Emirates.</p>\r\n<p class=\"MsoNormal\">By way of background, the difference between a hospital and a healthcare centre, in both Dubai and Abu Dhabi, is determined on the services that will be provided.  Generally, if inpatient services are provided, the operator must apply for a hospital licence; if not, then the operator must apply for a licence in their specialist area or areas.</p>\r\n<p class=\"MsoNormal\"><strong>DUBAI</strong></p>\r\n<p class=\"MsoNormal\">The DHA Regulations stipulate the types of buildings that must be used for hospitals and healthcare centres, and lay down the location for these buildings.</p>\r\n<p class=\"MsoNormal\"><strong><em>Hospitals</em></strong></p>\r\n<p class=\"MsoNormal\">The DHA Regulations specifically provide that a hospital must be located in an independent, standalone building, located on a main road with easy and convenient access for people using both public and private transport. As part of the licencing process the DHA will consider the plans for the premises and will also inspect the premises. If the premises do not meet the criteria set out in the DHA Regulations then the licence to operate will not be granted. A healthcare operator that is licensed as a hospital cannot use a villa for its premises regardless of whether the villa has been designated for commercial use. In practice the DHA will expect the building to have been created specifically for the purpose of being a hospital.</p>\r\n<p class=\"MsoNormal\"><strong><em>Healthcare Centres</em></strong></p>\r\n<p class=\"MsoNormal\">Unlike a hospital, a healthcare centre can have its premises at either an independent facility (such as a villa if it has been designated for commercial use), or in a mixed-use commercial building.</p>\r\n<p class=\"MsoNormal\"><strong>ABU DHABI</strong></p>\r\n<p class=\"MsoNormal\">Guidelines issued by HAAD (the “<strong>HAAD Guidelines</strong>”) provide detailed information as to how different healthcare facilities are to be licenced. The HAAD Guidelines also provide information as to how the hospital or healthcare centre should be designed and fitted-out. When applying to HAAD for a healthcare licence part of the application process involves an examination by HAAD inspectors of the plans and drawings for the hospital or healthcare centre. The HAAD inspectors will assess the building and consider the fit-out design. Finally the HAAD inspectors will inspect the premises to ensure that the premises meets all the standards set out in the HAAD Guidelines.</p>\r\n<p class=\"MsoNormal\"><strong><em>Hospitals</em></strong></p>\r\n<p class=\"MsoNormal\">Similarly to the position in Dubai, a hospital in Abu Dhabi must have its premises in an independent building.  Previously in Abu Dhabi it was possible for a hospital to be located in a mixed-use building. Frequently such mixed-use buildings contained residential apartments or commercial offices in addition to hospitals. HAAD has now prohibited this.</p>\r\n<p class=\"MsoNormal\"><strong><em>Healthcare Centres</em></strong></p>\r\n<p class=\"MsoNormal\">Similar to the position in Dubai, a healthcare centre may use a villa as its premises, provided the villa has been granted permission to be converted from a residential villa to a villa allocated for commercial use. For such conversion to commercial use, it is necessary to obtain approval from the relevant local Municipality (there are three operating in Abu Dhabi: Abu Dhabi Municipality, Al Ain Municipality and the Western Region Municipality (the “<strong>Municipalities</strong>”)). Following the implementation in Abu Dhabi of Administrative Resolution No.32 of 2011 (which deals with privacy protection in residential areas), the Municipalities generally do not allow conversion of residential villas to commercial uses.  Exceptions are however sometimes permitted if the villa is to be used as a healthcare centre, rehabilitation centre for those with special needs, or a care centre for the elderly.</p>\r\n<p class=\"MsoNormal\"><strong>NAMING A HEALTHCARE COMPANY</strong></p>\r\n<p class=\"MsoNormal\">HAAD will not allow a company with the word ‘hospital’ in its name to apply to use a villa as its premises, irrespective of the fact that the company will not be using the premises as a hospital. This may mean that before applying a company may need to change its name. As the Department of Economic Development in both Abu Dhabi and Dubai have regulations in place which state that the name of the company should reflect the activity it is undertaking, it would be prudent for companies is Dubai to consider this as well.</p>\r\n<p class=\"MsoNormal\"><strong>CONCLUSION</strong></p>\r\n<p class=\"MsoNormal\">In both Dubai and Abu Dhabi, if a healthcare company wishes to establish a hospital, it must ensure that its premises are in an independent building. A healthcare centre however can be located in either an independent building or a villa; however, if a villa is to be used it must be converted from residential to commercial use.</p>'),
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(92463, 5024, 'content', 'November 2014\r\n\r\n<hr />\r\n\r\n<strong>Introduction</strong>\r\n\r\nBahrain recently enacted a long awaited and much debated new real estate development law, the Real Estate Development Law No. 28 of 2014 (the “New Law”). It is widely hoped that the New Law will help to strengthen the real estate sector and promote investor confidence in a market which has recently suffered with the indefinite stalling of several major development projects such as the Marina West project. The sudden stalling of such projects in the middle of the development cycle may be partially attributable to an insufficient legal and regulatory framework which left both developers and buyers exposed when funds simply ran out and development stopped.\r\n\r\nThis article analyses the implications of the New Law for developers and its significance in protecting buyers. The New Law attempts to regulate the activities of developers which were generally seen to be a major contributing factor to the lack of confidence in Bahrain’s real estate sector and which often left buyers with no money, real estate or investment returns.\r\n\r\n<strong>Scope of application</strong>\r\n\r\nThe New Law defines “Real Estate Development Project” in Article 1(5) as any work or real estate development project in any nature (infrastructure or construction) for any purpose (commercial, residential, industrial or public) whatever finance method adopted (sale of off-plan units, Musataha, etc.) by any legal entity. This definition widens the scope of the New Law’s application to arguably include most development projects in Bahrain. In practical terms the wide definition may protect buyers by encouraging them to invest in all types of real estate development which would most likely fall within the parameters of the New Law. “Developers” are defined as any legal person licensed to practice Real Estate Development Projects such as construction or off-plan unit sales.\r\n\r\nMoreover, the New Law is applied retrospectively to all Real Estate Development Projects that commenced before its enactment.  Furthermore, although the New Law came into effect on 7 August 2014, developers of existing projects have a six-month period within which to comply with it, i.e.: until 7 February 2015.\r\n\r\n<strong>New concepts introduced</strong>\r\n\r\nThe New Law introduces several concepts to regulate the market and protect buyers throughout the life cycle of a development, and provides for the establishment of a regulatory authority to regulate both Developers and buyers (the “Concerned Authority” or “Authority”). The “Concerned Authority” has not yet been nominated, but is expected to be established by Royal Decree pursuant to the enactment of the New Law’s implementing regulations.\r\n\r\nOne such concept guards buyers’ interests by regulating the sale of off-plan units - a sales method which gained significant popularity across the region during the real estate boom years - whereby units may be sold before their completion (Article 1(9)). Buyers who traditionally bought off-plan from Developers exposed themselves to the risk of unregistered sale transactions - often paying a percentage of the total cost of the unit upfront - without actually gaining any legal title to or interest in the unit. The sale of units off-plan has, for the first time been introduced as  a legal concept in Bahrain to address this issue.\r\n\r\nThe New Law prohibits any attempted sales off-plan without prior authorisation and licensing. A real estate record to register all off-plan sales (an “Off-Plan Register”) shall be established and maintained by the Survey and Land Registration Bureau ‘SLRB’. Under Article 11, the Off-Plan Register shall contain the following information:\r\n<ol>\r\n 	<li>the real estate Development Licence;</li>\r\n 	<li>the units which the Development Licence relates to;</li>\r\n 	<li>the units’ sale agreements and all disposals affecting them;</li>\r\n 	<li>details of any entry which is required to be included in the SLRB Property newsletter by Law; and</li>\r\n 	<li>any other information which may be determined by a resolution from the SLRB.</li>\r\n</ol>\r\nIt is the Developer’s responsibility to provide the SLRB with the above information. Significantly, any sale agreement which has not been submitted to the SLRB in accordance with the above will be deemed null and void.\r\n\r\nUnder the New Law, Developers must obtain a Development License from the Concerned Authority before commencing a project and submit details of the relevant units in the Off-Plan Register including prior to undertaking any promotional or marketing activities in relation to the project either inside or outside Bahrain. This provision protects buyers from misleading or fraudulent advertisements and ensures that publications in the media represent credible Real Estate Development Projects.\r\n\r\nArticle 6 of the New Law introduces a further significant concept in requiring Developers to open an escrow account (the “Escrow Account”) to hold any buyers’ contributions and all other related development funds with a Bank or financial institution licensed by the CBB (the “Escrow Bank”). The purpose of the Escrow Account is to manage the financial, administrative and legal aspects of the Development. The Developer shall provide the Concerned Authority a copy of its escrow agreement with the Escrow Bank. The Escrow Bank must provide the Concerned Authority with financial statements related to the Development, and the Authority may request further information or appoint an auditor to assist it if required.\r\n\r\nFurther, to ensure greater protection for buyers in case of a Developer’s bankruptcy or insolvency, the New Law ring-fences buyers’ deposits in the Escrow Account from the funds of creditors or other depositors. Buyers’ deposits cannot be the subject of any freezing orders under the New Law (Article 7). The Escrow Bank is entitled to maintain 5% of the value of the Development which may only be released a year after buyers receive their properties. This measure is intended to act as a guarantee and provides a window for buyers to file any complaints or take actions against Developers, as well as ensuring the continued availability of funds.\r\n\r\nThe New Law (Article 26) establishes a committee to resolve any Real Estate Development Project disputes (“Real Estate Development Disputes Committee”). The Real Estate Development Disputes Committee shall be made up of two High Court judges and an expert in real estate affairs (who shall be nominated by the Minister), and is empowered to adjudge on all disputes arising from or related to Real Estate Development Projects. Under Article 28, an aggrieved party may appeal a decision of the Committee to the High Civil Court within 15 days of the date the judgment is made, The establishment of this Disputes Committee is an attempt to shift the responsibility from the courts to a specialised panel of experts with the specific knowledge of the real estate sector in the hope that this will result in disputes being resolved faster and more consistently.\r\n\r\n<strong>The main obligations imposed on Developers</strong>\r\n\r\nDevelopers can no longer start work on a development project unless they hold a licence from the Authority (the “Licence”). The granting of the Licence is subject to the Developer submitting the completed master plan to the Authority together with a list of documents as mentioned in Article 4(A) establishing that it has:\r\n<ul>\r\n 	<li>either ownership of the Development or a right to develop it by way of approval from the title owner;</li>\r\n 	<li>approval of the master plan and building permits;</li>\r\n 	<li>a draft of the template sale agreement drafted in accordance with the provisions of the New Law;</li>\r\n 	<li>written confirmation from a consultant engineer providing an estimate value of the Development must be approved by the Committee of Professional Engineering Practice in Bahrain (COEPP);</li>\r\n 	<li>written confirmation from the Development’s escrow agent that a deposit of 20% of the Development’s estimated value has been made in the Escrow Account (the value of the land may be included in the calculation of the deposit);</li>\r\n 	<li>an undertaking from both the Developer and sub-developer that development works will commence within the time stated in the building permit;</li>\r\n 	<li>an undertaking from the Developer to maintain ownership of the common areas;</li>\r\n 	<li>if reclamation of land is relevant - the prior approval to reclaim the area on which the proposed Development will be built; and</li>\r\n 	<li>other requirements as may be stipulated by the implementing regulations so as to verify the requisite experience of both the Developer and sub-developer.</li>\r\n</ul>\r\nTo ensure effective monitoring of Developers’ activities and their compliance, the Licence granted by the Authority shall not exceed three years, and the form of the legal entity of Developers may not be altered unless and until the Real Estate Development Project is complete (Article 9).\r\n\r\nAdditionally, Developers are prohibited from varying the Real Estate Development Project except in cases of emergency and only with the prior approval of the Authority. If the Developer is late in handing over units beyond the period agreed in the contract without reasonable justification, the contract may be voidable after ninety days from the date that the delay commenced. Thus, the New Law provides buyers with a period to get their properties back on time and aims to prevent any unnecessary delays. For Developers, the New Law encourages them to have a structured well-organised plan for completion that was seen to be lacking in the previous unregulated regime. Furthermore, to ensure certainty in completion, the Authority may order specific performance from Developers to complete projects if they suspend work either temporarily or permanently. To ensure the highest standard  if work from Developers, the New Law (Article 19) requires them to undertake maintenance services for the Real Estate Development Projects for two consecutive years after the completion date.\r\n\r\nThe New Law seeks to create a balance between all concerned parties by granting Developers reciprocal termination rights in relation to terminating a sale contract in cases where buyers do not perform their obligations. Article 17 (a) stipulates that in the event a buyer breaches his obligations without justifiable cause, the Developer may serve a notice on the buyer giving him ninety days within which to rectify the position. In the event that upon the lapse of the notice period, the buyer remains in breach, the Developer may then apply to the Disputes Committee to terminate the sale agreement, after which it may sell the unit to another buyer. Upon termination of the sale agreement, without prejudice to the Developer’s right to claim compensation for any damages suffered, the Developer may retain up to 10% of the purchase price of the unit and refund the remainder of what may have been paid to the buyer.\r\n\r\n<strong>The consequences of breaches in the New Law</strong>\r\n\r\nHeavy penalties are imposed on Developers depending on the type of breach. They may be subject to a custodial sentence of one year or a fine not exceeding BD 10,000 or both for selling off-plan units without a Licence or delaying handing over completed units beyond the period agreed in the contract. Other offences under the New Law are punishable by a custodial sentence of one to five years, and a fine of BD 10,000 to BD 30,000 for providing false information to the Authority. The New Law addresses the entire lifecycle of Real Estate Development Projects from beginning to end. It outlines the consequences of not executing work within six months of the date of the Licence and extends criminal liability (including vicarious liability) to all legal entities that may be defined as Developers.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nBefore we may asses the practical impact that the New Law has on the Kingdom’s development projects specifically, and the real estate sector generally, there are a number of related laws and regulations that need to be implemented (including the Implementing Regulations) and the Concerned Authority will need to be established to act as the sector’s regulator.\r\n\r\nMany have criticised the New Law as inadequate in addressing the issue of existing stalled projects. Whilst this may be so, the Cabinet has recently approved a draft law on the settlement of stalled real estate development projects, which aims to address the issue. Despite any criticism or ambiguities surrounding this legislation, the New Law must be considered as an important and positive step towards delineating the interests and responsibilities of both developers and buyers. As a response to the demand for a structured and regulated real estate sector in the Kingdom of Bahrain, the New Law introduces the framework for a sophisticated regulated regime which seeks to balance the interests of all concerned parties and attract further investment in the Kingdom’s real estate development projects.\r\n<div></div>'),
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(92478, 5025, 'content', 'November 2014\r\n\r\n<hr />\r\n\r\nIn 1971, when the country was founded, few people would have believed that the UAE would look the way it now does. Oil had only just begun contributing to the UAE economy, which had previously been dependent on fishing and the pearl industry. At this time the UAE had hardly any economic strength, however it did have determination and strong leadership. Since then, the UAE has emerged as the most stable and secure country in the Middle Eastern region, attracting foreign investment and human talent.\r\n\r\nThe UAE government has long recognized the importance of investing and having a firm strategy for improving its citizen’s welfare through education, healthcare, security and training.  This, together with the UAE leadership’s determination to make the UAE an active member of the international community, has enabled the UAE to enjoy prosperity, growth and friendly relationships with almost the entire world.\r\n\r\nA simple review of the progress of the UAE over the past 43 years, including the huge investment currently taking place, shows how much attention the UAE has given to improving the quality of life in the country, and the fact that the government recognises the need to constantly improve and progress public services to create a better UAE. The UAE has made tremendous efforts in establishing and investing in schools, hospitals, transport, training of the judicial system, separation of powers, training across public and private sectors, and zero tolerance on corruption, crime, and terrorism. This has not only improved the quality of life in the UAE and created a new well-educated, well-trained generation, but it has also made the UAE one of the safest and most desirable countries to live in amongst the region and internationally. Most importantly perhaps, the trust and stability that the UAE has within its government and leadership provides the local and international community with confidence in the country’s long-term future and its ability to deliver on its ever more ambitious plans. The UAE’s current leadership provides a wonderful formula for future growth.\r\n\r\nThe UAE has succeeded where unfortunately others have failed, in investing in the creation and the existence of a well-rounded and functioning human society. It has done this by recognizing that it is important to invest in the basics to establish the fundamentals of any society. Having recognized the importance of investing in its people from day one, the UAE has consistently and gradually increased investment throughout its 43 years, creating the UAE we know today.  These principles are not new or alien to other peoples. They are principles that contributed to the success and growth of old or modern societies, and formed a fundamental part of the Islamic religion. However wherever in the world you look, it is recognised that security, education, health, training, rule of law, are needs of any society. Fortunately the UAE, through its inspired leaders, has been able to implement these principles and achieve more than anyone could have imagined 43 years ago. The determination of the current government will allow the UAE to continue advancing and leading the region for many more years to come.\r\n<div></div>'),
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