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(94598, 5136, 'pageSummary', 'In a speech at the Sharm el-Sheikh Egypt Economic Development Conference (“EEDC”), Christine Lagarde, the Managing Director of the International Monetary Fund, said of Egypt'),
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(94611, 5137, 'content', 'April 2015\r\n\r\n<hr />\r\n\r\nIn the legal arena, although Egypt was always the source of legislation in the wider Arab world, today the UAE experience has a lot to share with Egypt, particularly when it comes to timely delivery of mega projects.\r\n\r\n<strong>The Challenges </strong>\r\n\r\nWhen Al Tamimi, along with other firms in the community, was supporting the creation of the Dubai international Financial Centre (“DIFC”) initiative, no one could have imagined the rapid growth and success the DIFC would achieve in such a short time.  The DIFC is one Dubai’s key initiatives in its ambition of becoming a business hub in the Middle East. The DIFC is one example of similar initiatives that can be fostered in Egypt in line with the new capital project that has already commenced.\r\n\r\nThe challenges Egypt faces are somewhat different from the UAE. Its bureaucracy needs to be firmly restructured and all corruption rooted out. The admirable new approach adopted by the Egyptian government focuses on the rule of law and working with all stakeholders on an equal footing, and this is starting to attract investors’ appetites. In addition, the Egyptian government has taken solid steps to resolve investor disputes, and this has also been instrumental for Egypt’s attempts to regain investor confidence.\r\n\r\nEgypt will also have to take macro social and economic reform decisions in the long run as well, such as reducing subsidies on fuel products.\r\n\r\nEgypt is rich in manpower, talent and resources. Throughout history It has led the Middle East out of many crises.  The UAE has established the model of leadership and for management of a modern state, with an excellent track record for preserving resources and attracting investment. The two countries have worked together with other friends and allies and will no doubt be an excellent recipe for progress and security for the region. However, Egypt has just come out of a revolution and needs to organise their ways and work in an unprecedented fashion. They need firm decisions and leadership, which Egypt seems to be committing to.\r\n\r\n<strong>Key to Economic Development  </strong>\r\n\r\nWhat needs to be done in Egypt for economic development is no secret and has already been touched upon.  Egypt needs to restore the rule of law and engage in as many mega projects as possible whilst adopting creative financing solutions. One example to highlight is the Egyptian government’s interest in reviving the dormant Public Private Partnership law and amending it to allow for more contractual flexibility with investors as a non-conventional financing mechanism.\r\n\r\nThe Sharm el-Sheikh conference has been a useful initial step to launch several projects. The most challenging aspect in this regard, however, is the bureaucracy, which the Egyptian officials acknowledge is a real problem. If the bureaucracy is not changed and government officers do not act at the same pace and with the positivity the government is fostering, this could be detrimental for the future of influx investments into Egypt. With reforming steps on the regulatory side supported by the leadership the Egypt top officials are delivering, it is expected that bureaucracy will have to respond positively.\r\n\r\nRegulatory wise the Egyptian government should treat investment as being in “isolation”.   In other words, investment enabling laws and regulatory bodies implementing such laws must be kept in isolation from the long-standing bureaucracy using different qualified individuals who are up to the standards of investors’ expectations.\r\n\r\n<strong>Opportunities for the UAE and the region</strong>\r\n\r\nThe Egyptian opportunities for the UAE are massive as well. UAE investors will have greater access to a huge market, with endless investment opportunities throughout Egypt. Not to mention with Egypt’s initiatives to restore relations with Africa, Egypt can also be a gateway to the rest of Africa for UAE and GCC investors.  Moreover, its geographical location will revive investors not only from the GCC, but worldwide.\r\n\r\nHaving said that, we envisage many opportunities for Egypt to benefit from what the UAE has achieved as one of the leading business hubs worldwide.  A few concrete examples are quality of government services; free and special economic zones; developing logistics services; and creative legal treatment permitting fresh financing options.\r\n\r\n<strong>Al Tamimi’s Role </strong>\r\n\r\nAl Tamimi has vast expertise in these areas and a long track record with the UAE and regional governments, developers and investors from across the globe as to how to facilitate expedited implementation of mega projects successfully. Drafting regulations, agreements and negotiating the same with all constituencies while in parallel assisting in resolving disputes involving investors is part of the experience Al Tamimi can use to support Egypt’s initiatives. Al Tamimi already has a number of leading Egyptian lawyers within the firm in various offices, all of which will no doubt contribute to the development of the new office.\r\n\r\nTherefore I am proud to launch the operation of our new venture in Egypt with our Egyptian partners, which I believe will be an intrinsic part of Egypt’s development plans. We will put in all resources needed to share our experiences with a country that is dear to the hearts of all UAE citizens, including myself.\r\n\r\nIn closing I find no better words to confirm my belief that being part of Egypt’s future is not an option, than to quote His Highness Sheikh Mohammed Bin Rashid Al Maktoum’s words from Sharm el-Sheikh:\r\n\r\n<em><strong>“What we invest in Egypt today is for the stability of the region”. </strong></em>\r\n\r\n&nbsp;'),
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(94644, 5140, 'content', 'May 2015\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">It is the advertiser’s duty to make the advertisement convincing and appealing to consumers. However, advertisers also need to be aware of the legal issues associated with advertising and marketing in the region, It is wise to always consult a lawyer before you proceed with development of the advertising content to ensure that you and your brand are on the right path.</p>\r\n<p class=\"MsoNormal\">Generally, advertisements must comply with the relevant advertising standards and consumer protection legislation in each jurisdiction in which they are published.</p>\r\n<p class=\"MsoNormal\">The United Arab Emirates has its own rules and regulations specific to advertisements.  Advertisements are not regulated by a single regulation; they are regulated by numerous laws such as the Printing and Publication law, National Media council regulations and Cybercrime law and laws governing consumer protection and commercial activities particularly in relation to anti-competitive practices and illegal monopolies.</p>\r\n<p class=\"MsoNormal\">Additionally, in this region, advertisements should be sensitive to the cultural expectations and tolerances of the target audience in addition to the legal framework governing the dissemination of advertising content.  Producers and advertisers will always focus on what they want to convey to the people throughout the content of the advert – they will want to deliver their idea in a creative way to attract attention. It is important to remember that, whilst advertisers have freedom to be creative, there are limits imposed by these laws and local culture.</p>\r\n<p class=\"MsoNormal\">All companies that develop or deliver advertising to the public need to be aware of these laws. To assist them in this, we have developed a set of Questions and Answers that all advertisers should ask themselves before creating an advertisement.  These provide a simple pathway to highlight some of key issues that can arise.</p>\r\n<p class=\"MsoNormal\"><strong>Could your advertisement content offend someone indirectly?  Could the content be offensive to a particular culture?  </strong></p>\r\n<p class=\"MsoNormal\">The answer can be complex and is particularly subjective.  Advertising may be offensive to one section of the community but not another – for example, an advertisement may be offensive to a particular culture or religion. It is important to balance the value of the message against the risk of causing offence.</p>\r\n<p class=\"MsoNormal\"><strong>Is the message in any way ambiguous or misleading?</strong></p>\r\n<p class=\"MsoNormal\">Advertising also runs a high risk of being considered as having misleading content. Consumers’ perspectives on the advertisements should not be disregarded – this is not always a matter that can be determined by a review of the laws and regulations.  Past consumer behavior should also be considered. It is also important to note that the authorities are highly discretionary as to whether the advertisement has violated the law and is considered either offensive or misleading. Therefore, in the United Arab Emirates in particular, advertisements should be sensitive to the cultural expectations and tolerances of the target audience within the context of the legal framework governing the dissemination of advertising content.</p>\r\n<p class=\"MsoNormal\"><strong>Do you need the appropriate consent/ right from the copyright owner of any of the content?</strong></p>\r\n<p class=\"MsoNormal\">Generally speaking, producers and advertisers must always bear in mind that, unless they developed and produced every element of the campaign themselves, they may be infringing another person’s copyright by using music, images or clips without a proper licence.  It is important to note that it is standard practice for a rights owner to substantially increase the licence fee if there is an infringement – it is always more cost effective in the long run to licence the rights appropriately at the beginning of the process.</p>\r\n<p class=\"MsoNormal\"><strong>Do I need to worry about my campaign if it is just on-line?  Could the Cybercrime law relate to advertising?</strong></p>\r\n<p class=\"MsoNormal\">On-line campaigns must still comply with all the laws that relate to advertising.  In addition the Cybercrime law may become relevant if there was a criminal aspect in broadcasting an advert. For example, gambling is prohibited in the UAE and, under the cybercrime laws, the advertising of gambling on-line would lead to severe penalties. When it comes to publication in any media it is important to take a ‘helicopter’ view and be aware of all potential pitfalls including potential criminal implications.</p>\r\n<p class=\"MsoNormal\"><strong>Sanctions for violating the advertisement laws and regulations</strong></p>\r\n<p class=\"MsoNormal\">Companies spend so much time and expense on their advertisement to support the promotion of their  brand.  Financial penalties and potentially adverse PR will certainly undermine these efforts and thus advertisers should avoid unconsciously violating regulations. Failure to do so may mean spending money and creative effort on an advertisement which could be banned from media outlets.</p>\r\n<p class=\"MsoNormal\">As an example of the range of sanctions that are available in the case of a violation of the regulations, the National Media Council has the right to require any of the following actions from the advertiser in question:</p>\r\n\r\n<ul>\r\n 	<li>warning;</li>\r\n 	<li>suspension of the advertisement and apology;</li>\r\n 	<li>the removal of the damage resulted from the violation;</li>\r\n 	<li>apply to close down the establishment or shop;</li>\r\n 	<li>suspension of the licenses of the media outlet for the period deemed appropriate by the Council; and/or</li>\r\n 	<li>cancellation of the license granted to the media outlet.</li>\r\n</ul>\r\n<p class=\"MsoNormal\">In conclusion, all content that is available to the general public must be rigorously vetted in order to ensure that it is compliant with the law, the regulations and as the principles and standards of within the wider community.  Anything less will be potentially crippling to the advertiser and could lead to damage to the brand’s reputation in the marketplace.</p>\r\n<p class=\"MsoNormal\">Al Tamimi &amp; Company’s <em>Technology, Media &amp; Telecommunications</em> team regularly advises on content issues, and issues relating to advertising and marketing. For further information, please Ahlam Al Tamimi (<a href=\"mailto:a.altamimi@tamimi.com\">a.altamimi@tamimi.com</a>).</p>'),
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(94663, 5141, 'content', 'May 2015\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">The investments involved in developing such apps are minimal. Is it worth protecting your mobile apps if getting protection takes longer than producing the app itself? The present article will explain the key tools that can be used to protect Apps from those looking to copy them and will highlight why protecting your mobile application through these tools is worth-while:</p>\r\n<p class=\"MsoNormal\"><strong>Patents</strong></p>\r\n<p class=\"MsoNormal\">Whether mobile applications are patentable is a question that has been debated for some time. Mobile applications are nothing but software running on a mobile hardware and interacting with various servers. Each country has different criteria for examining patent applications based on computer implemented inventions or software based inventions. There is no one answer as to whether a mobile application is patentable in a particular country or not.</p>\r\n<p class=\"MsoNormal\">However, in general, mobile applications and the technology behind mobile applications can often be the subject of patents. By way of example, when the virtual keyboard was first introduced in mobile phones, this was a patentable subject-matter. There may be various front end elements of mobile applications which can be novel, inventive and may be out of the excluded subject-matter of patenting. Also, the way a mobile application communicates with a server or another mobile device may be patentable.</p>\r\n<p class=\"MsoNormal\"><strong>Trademarks</strong></p>\r\n<p class=\"MsoNormal\">For marketing or other usage purposes, a mobile application can have a name or a creative device (logo) or a combination of the two, enabling the mobile application to be identified by the consumer. It is important to mention that a trademark gains strength and distinctiveness through its usage, and with more usage it becomes more vulnerable to duplication.</p>\r\n<p class=\"MsoNormal\">A mobile application is first promoted online and then downloaded by the user on to a mobile and then continuously used by the user through their mobile.  During the promotion phase, the name of the mobile application is used more than the logo; and during the download process, the mobile application is mentioned with both name and logo. Once the mobile application is downloaded on to a user’s device it appears more as an icon, which is nothing more than a logo. Hence, the name and logo becomes equally important and needs to be protected by a trademark. It is suggested that one must seek protection for the “name” and “logo” individually. Expert advise is needed to identify the apps usage and marketing pattern to determine a specific trademark protection strategy.</p>\r\n<p class=\"MsoNormal\"><strong>Copyright</strong></p>\r\n<p class=\"MsoNormal\">Another important form of protection for mobile applications is copyright. Copyright allows protection for creators of original work of authorship for literary and artistic work. Computer codes and presentation of various mobile screens during the working of a mobile application are considered as literary work and artistic work respectively. Other aspects of a mobile application which can be considered artistic are movable images, music, sound, video recordings, etc. of the mobile application interface.</p>\r\n<p class=\"MsoNormal\">Generally, a copyright is automatically effective after creation and there is no necessity to file for copyright protection. However protecting various copyrightable aspects of your mobile application would be an essential step when quick preliminary injunction is required. To get a preliminary injunction from a court of law, it is required to establish a prima facie case of infringement. And, to establish a prima facie case, a copyright registration works as an effective tool for the copyright owner to show that it holds the copyright. For various mobile applications, there is a chance that the owner of the application may lose a significant sum of money and business if a preliminary injunction is not received at the earliest.</p>\r\n<p class=\"MsoNormal\">Whether to file a single copyright for various subject matters like the user interface, images, layout of the application, the screenshots of the application, or just one copyright for all,  varies from case to case, and requires an expert’s opinion.</p>\r\n<p class=\"MsoNormal\">Mobile applications are part of a fast moving technology, and these applications can be developed at a very quick pace. Mobile technology may be constantly changing but protecting these applications remains very beneficial for the business in the long run. In some cases, the mobile application is just a part of the business, whereas in other cases the business itself is the mobile application (for example, Uber and Whatsapp). A suitable Intellectual Property Protection strategy is needed for each app in order to enjoy maximum benefits from the mobile application without worrying about competitors who may duplicate the mobile application technology.</p>\r\n\r\n<div>\r\n<div>\r\n<div class=\"msocomtxt\">\r\n<p class=\"MsoCommentText\"></p>\r\n\r\n</div>\r\n</div>\r\n</div>'),
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(94681, 5141, '_yoast_wpseo_metadesc', 'Mobile Applications enable many businesses to be contacted with greater ease and at any time the customer wants.'),
(94682, 5142, 'content', 'May 2015\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">The proposed Law on Bankruptcy (the “Draft Law”) is currently being reviewed by the Department of Legal Opinions &amp; Legislation of the State of Kuwait.</p>\r\n<p class=\"MsoNormal\">In certain jurisdictions, the bankruptcy process is one in which a debtor may have the option to obtain economic relief from the burden of debt so that it may continue its business, such as the case under the US legal system. On the other hand, certain other jurisdictions emphasize the protection of creditors and emphasize liquidation rather than the restructuring of the debtor entity.  The current bankruptcy regime in Kuwait falls under the latter category.</p>\r\n<p class=\"MsoNormal\">The current bankruptcy regime in Kuwait is governed by Articles 555 to 800 of the Kuwait Law of Commerce (No. 68 of 1980) (the “Current Law”).  Under the Current Law, bankruptcy proceedings begin when the debtor, a creditor, the court or the public prosecutor initiate proceedings in the Kuwaiti courts with a petition.  When a debtor is adjudged bankrupt, it can no longer manage or dispose of its assets</p>\r\n<p class=\"MsoNormal\">With a push from the business community as well as legislators, Kuwait is now considering bankruptcy and insolvency legislation that will give debt stricken and failing businesses the opportunity to rehabilitate themselves under court protection, rather than be liquidated and shutdown.  Similar to Chapter 11 of the Bankruptcy Code in the US, the Draft Law will allow Kuwaiti businesses the opportunity to continue their business activities and pay their debts to creditors through a court approved reorganization plan.</p>\r\n<p class=\"MsoNormal\"><strong>THE NEW DRAFT LAW</strong></p>\r\n<p class=\"MsoNormal\">The Draft Law applies to both legal persons (companies) and individuals. It does not however apply to the following:</p>\r\n\r\n<ul>\r\n 	<li>Insurance Companies;</li>\r\n 	<li>Banks governed by the Central Bank of Kuwait;</li>\r\n 	<li>Institutions, departments or governmental bodies; and</li>\r\n 	<li>Companies partially or fully owned by the State of Kuwait that do not engage in commercial activities.</li>\r\n</ul>\r\n<p class=\"MsoNormal\">Under the Draft Law, a debtor may utilize the processes available for restructuring if it stops meeting its debt obligations or it is not able to cover its liabilities.  The procedures will begin in the same manner as the Old Law, however, under the Draft Law, as mentioned above, a debtor may restructure its liabilities and the Bankruptcy Court will supervise a plan for the restructuring of the debtor’s liabilities.</p>\r\n<p class=\"MsoNormal\">One of the key characteristics of the Draft Law is that it also allows the Court to appoint a foreign expert to supervise the restructuring process. This provision of the Draft Law allows the Court to involve foreign experts in matters that are too complex for the Court.</p>\r\n<p class=\"MsoNormal\">It should be noted that in order for a debtor to benefit from the restructuring promoted by the  Draft Law, the debtor should, among other things,  act in good faith, cooperate with the receiver and disclose all information in regards to its assets, liabilities and financial transactions. It is important to note however, that the Court has the discretion to order the liquidation of the debtor’s assets. Any distribution of the debtor’s assets will be subject to the Court’s approval under a distribution plan.</p>\r\n<p class=\"MsoNormal\"><strong>CONCLUSION</strong></p>\r\n<p class=\"MsoNormal\">The Draft Law will go a long way in reforming the current bankruptcy and insolvency regime in Kuwait. If passed, Kuwait may become the first GCC country to have a bankruptcy and insolvency regime that facilitates the rehabilitation of debt stricken businesses rather than their forced liquidation. The protection afforded by the Draft Law will also enable entrepreneurs and local businessmen to grow their businesses, as they will be less fearful of taking on debt.</p>\r\n<p class=\"MsoNormal\">Critical to the success of the Draft Law will be the inclusion of judges and experts who can facilitate complex restructuring and insolvencies of businesses. Allowing for the inclusion of foreign experts under the Draft Law will help this objective. In order for the Draft Law to be successful, the Kuwait Government must make it easier to do business in Kuwait and lessen the bureaucratic hurdles that businesses face.  There is a strong need in Kuwait for a legal and regulatory environment that allows for the efficient and speedy collateralization of assets, including movable objects such as machinery.</p>'),
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(94701, 5143, 'content', 'May 2015\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">That is no longer the case, and QFC licensed entities now serve a wide array of businesses.</p>\r\n<p class=\"MsoNormal\">The permitted activities that can be undertaken in or from the QFC are prescribed by Qatari Law No. 7 of 2005, as amended (the QFC Law) and are termed “Permitted Activities”, which include regulated and non-regulated activities.</p>\r\n<p class=\"MsoNormal\">The QFC Law provides six permitted non-regulated activities, the first being “The business of providing professional services, <em>including but not limited to</em> provision of audit, accounting, legal, tax or consultancy services”.</p>\r\n<p class=\"MsoNormal\">In order to help promote the non-regulated side of businesses and following a review of professional services in 2014, the Board of the QFC Authority approved 17 additional activities which it considered could fall within the realm of professional services, namely:</p>\r\n<p class=\"MsoNormal\">• information technology consultancy activities</p>\r\n<p class=\"MsoNormal\">• advertising agencies</p>\r\n<p class=\"MsoNormal\">• architectural activities</p>\r\n<p class=\"MsoNormal\">• engineering design activities for industrial process and production</p>\r\n<p class=\"MsoNormal\">• engineering related scientific and technical consulting activities</p>\r\n<p class=\"MsoNormal\">• media representation services</p>\r\n<p class=\"MsoNormal\">• translation and interpretation activities</p>\r\n<p class=\"MsoNormal\">• urban planning and landscape architectural activities</p>\r\n<p class=\"MsoNormal\">• accreditation</p>\r\n<p class=\"MsoNormal\">• logistics planning and consulting</p>\r\n<p class=\"MsoNormal\">• project management</p>\r\n<p class=\"MsoNormal\">• marketing and brand management</p>\r\n<p class=\"MsoNormal\">• specialised design activities</p>\r\n<p class=\"MsoNormal\">• event management services</p>\r\n<p class=\"MsoNormal\">• estate planning and will writing</p>\r\n<p class=\"MsoNormal\">• activities of patent and copyright agents</p>\r\n<p class=\"MsoNormal\">• other legal activities (not elsewhere classified).</p>\r\n<p class=\"MsoNormal\">Accordingly, professional services as a permitted activity are not limited to audit, accounting, legal, tax or consultancy services but can extend much wider. This means that any business which provides “qualified business-to-business services” can fall within this category and is therefore permissible. By way of example, services such as advisory/consulting, human resources consultancy, corporate secretariat, compliance and risk management, public relations, third party administration, and other business-to-business services could potentially be permissible professional activities.</p>\r\n<p class=\"MsoNormal\">This list of approved additional professional services is not intended, in any way, to be limiting or exhaustive, but rather to serve as examples of the types of the professional services that the QFC will consider to fall within its interpretation of the professional services category and therefore permissible activities. However, the QFC has indicated that business activities where the firm will be directly involved in any construction, manufacturing, import/sale of goods or any labour intensive services are not considered as professional services within the non-regulated activities, and are therefore not permissible.</p>\r\n<p class=\"MsoNormal\">The permissibility of the activity can be considered by the QFC on an informal basis and upon approach by any interested business. The QFC simply needs to have an understanding of the business.  At this high level, the QFC Authority will determine if the activity is permissible or not.</p>\r\n<p class=\"MsoNormal\">However conducting, or proposing to conduct, what is considered a permitted (professional services) activity is not sufficient in itself to establish a business in the QFC. There are two key formal stages which any applicant (of a non-regulated activity) must comply with in order to be established in the QFC: (1) Strategic Fit; and (2) Licensing and CRO incorporation/registration.</p>\r\n<p class=\"MsoNormal\">At the first stage (Strategic Fit Assessment), the QFC Authority must consider (upon submission by the applicant of an application) whether the proposed professional service business has “Strategic Fit”.  The Strategic Fit Committee of the QFC Authority makes an evaluation of the “Strategic Fit” based upon four categories of criteria.  There is no definitive list of qualifying criteria that must be met, but rather the application (together with its business case) is assessed and evaluated by the Strategic Fit Committee as a whole.  Part of this evaluation will look at the extent to which the business “adds value to the State of Qatar”.</p>\r\n<p class=\"MsoNormal\">The QFC Authority may consider any of the licensing criteria set out in Schedule 5 of the QFC Authority Rules of 2014, as well as any other criteria, which in its sole discretion it considers relevant, in order to further the QFC Authority\'s objectives as set out in Article 5 of the QFC Law (being to establish, develop and promote the QFC as a leading location for international finance and business with a legal and regulatory structure that complies with international best practice).</p>\r\n<p class=\"MsoNormal\">So simply carrying out an activity which the QFC Authority deems “permissible” is not sufficient.  The proposed business must also meet the “Strategic Fit” criteria and based on the legislation, it would appear that the QFC Authority has been given fairly wide discretion in determining the Strategic Fit criteria and qualifying requirements.</p>\r\n<p class=\"MsoNormal\">The second stage simply involves the licensing by the QFC Authority and incorporation or registration by the Companies Registration Office (CRO).</p>\r\n<p class=\"MsoNormal\">With this widening of approach, the QFC Authority has indicated that it has already licensed firms within its approved list of 17 additional activities and is looking to continually extend the scope of current professional services being considered and approved.</p>\r\n<p class=\"MsoNormal\"><em>This article first appeared in the May edition of IFLR Magazine.</em></p>'),
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(94716, 5144, 'content', 'May 2015\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">Despite the exceptional security issues faced by the Kurdistan Region in Iraq, the number of local and international Non-Governmental Organizations (NGOs) that operate in the area continues to increase to cover the needs of tens of thousands of refugees coming from all parts of Iraq and neighbouring Syria. Unlike some of the NGOs, the government of the area has little experience in the field of humanitarian relief and how to support displaced people.</p>\r\n<p class=\"MsoNormal\">Article 39 of the Iraqi Constitution Provides for the freedom of establishment of any association, organization or political party, and the freedom to join the same is guaranteed based on specific laws to be issued in this regard.  Accordingly, the Kurdistan Non-Governmental Organizations Law No. 1 of 2011 (The “NGO Law”) has been enacted by the National Assembly of the Kurdistan Region of Iraq to regulate the legal framework for these organizations in the Region.</p>\r\n<p class=\"MsoNormal\">The NGO Law gives the right to registered NGOs in the Region to open branches inside and outside Kurdistan and Iraq.  The constitutional documents of the NGOs will determine the conditions and age of membership, voting and nominating rights, and can authorize any individuals to represent the organization before the courts, and official and unofficial bodies.  The NGO Law stipulated that the NGO’s objectives shall be compatible with the principles of democracy and international human rights agreements, and to be clear and public. In addition, the NGOs can assess the role of the Regional governmental institutions, access information, organize civil activities (gatherings, demonstrations, conferences, etc…), and publish reports, information, and opinion polls.</p>\r\n<p class=\"MsoNormal\"><strong>Registration Types and Procedures</strong></p>\r\n<p class=\"MsoNormal\">Local Kurdish NGOs</p>\r\n<p class=\"MsoNormal\">For Local Kurdish NGOs the founding members, who must be at least three individuals, must submit a written request to the Region’s NGO department, signed by all of them and attached with the organization’s constitutional document which shall include the following information:</p>\r\n\r\n<ul>\r\n 	<li>Name of the NGO, its purposes and objectives</li>\r\n 	<li>Name, title, gender, nationality, age, profession, level of academic achievement, and address of the founding members.</li>\r\n 	<li>The NGO’s organizational structure and how it is to practice its activities</li>\r\n</ul>\r\n<p class=\"MsoNormal\">Iraqi NGOs</p>\r\n<p class=\"MsoNormal\">Iraqi NGOs registered by the federal government in mainland Iraq shall automatically be considered registered in the Kurdistan Region. However, to legally operate there they should provide the Region’s NGO department with the following information in both Arabic and English:</p>\r\n\r\n<ul>\r\n 	<li>Name of the NGO, and its representative in the Region.</li>\r\n 	<li>Address and telephone number of the NGO’s headquarter in mainland Iraq.</li>\r\n 	<li>Working plan for the activities that the NGO intends to practice in the Region.</li>\r\n 	<li>Certified copies of the NGO registration documents in mainland Iraq.</li>\r\n</ul>\r\n<p class=\"MsoNormal\">Foreign NGOs:</p>\r\n<p class=\"MsoNormal\">The registration of foreign NGOs in Kurdistan requires submitting the following information to the Region’s NGO department in the Kurdish language:</p>\r\n\r\n<ul>\r\n 	<li>NGO’s name.</li>\r\n 	<li>Address and telephone number of the NGO’s headquarter in Iraq and in the parent company.</li>\r\n 	<li>Objectives and activities that the NGO intends to achieve in the Region.</li>\r\n 	<li>Certified copy of the NGO’s constitutional documents.</li>\r\n 	<li>Certified confirmation letter proving that the organization is registered as an NGO in it native country.</li>\r\n</ul>\r\n<p class=\"MsoNormal\">The Kurdistan Region’s NGO department will then respond to the registration application, for any type of the above NGO types, within 30 days from the application submission date.  In case of non-fulfilment of any legal conditions contained in the application for registration in accordance with this law, the Region’s NGO department will return the application to the NGO within 15 days from the application submission date for the purpose of completing any missing requirements. However, in case of failure to respond to the application within the 30 days mentioned above, the NGO is to be considered registered and a registration certificate has to be issued upon request.  Such approved registration should be published in a daily newspaper in the Region.</p>\r\n<p class=\"MsoNormal\">If the registration application is rejected, the Region’s NGO department shall send an official letter to the NGO stating the reasons for the rejection. The NGO has the right to appeal the rejection decision before the Administrative Court of Kurdistan Region within 30 days from the date of receiving the rejection decision, and the latter is to issue its decision within 15 days.</p>\r\n<p class=\"MsoNormal\"><strong>NGO’s Revenues </strong></p>\r\n<p class=\"MsoNormal\">The NGO Law identifies several sources of financially support for NGOs in the Region, such as the financial assistance provided by the NGO members; donations; gifts; grants from individuals, private sector, and other foreign or local entities; income from the NGO’s investments and activities; the NGO’s share of the annual Region’s budget; and any other grants provided by the Kurdistan Region Government (KRG).</p>\r\n<p class=\"MsoNormal\">The NGOs are to manage their funds through an annual budget according to the adopted accounting system in the Region, including opening bank accounts in any of the Iraqi or international licensed banks there, and submitting annual financial reports to the Region’s NGO department to be audited by the Supreme Audit Bureau in the Region.  All the NGO’s revenues, properties, and funds shall be exempted from taxes and customs duties.</p>\r\n<p class=\"MsoNormal\"><strong>Merger and Networks of NGOs</strong></p>\r\n<p class=\"MsoNormal\">The NGO Law allows two or more NGOs to merge and form one NGO in accordance with the constitutional documents of each of them, and the provision of this law. All the moveable and immovable property shall devolve to the newly established NGO. In addition, any two or more registered NGOs have the right to establish a network among them. This network is eligible to be legally registered according to the NGO Law, and acquire a legal personality independent from the legal personality of its founding NGOs, and any two or more networks of NGOs may join together and establish a network of NGOs includes Kurdish, Iraqi, and foreign NGOs. Any natural or legal person can be a member of a network of NGOs.</p>\r\n<p class=\"MsoNormal\"><strong>Conclusion       </strong></p>\r\n<p class=\"MsoNormal\">The NGO Law has been enacted to facilitate NGO operations in the Kurdistan Region of Iraq due to the positive contribution of such organizations in the development of democratic and civic life. It will enable NGO’s to work better with the Region’s institutions and offer greater support through the implementation of joint projects.</p>'),
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(94731, 5145, 'content', 'May 2015\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">Over the past decade, the Emirates have become a booming tourist destination. Dubai International Airport is now officially the world’s busiest airport, welcoming over 70 million passengers in 2014. Many of these passengers come to the UAE for medical treatment, or require treatment while visiting the Emirates.  This pressure on the industry will only increase over time as Dubai seeks to actively attract 500,000 medical tourists per year by 2020, according to the Government’s medical tourism strategy announced last year. This would allow the Emirate to equal medical tourism destinations such as the US and Singapore. To help accommodate this influx, the Dubai Health Strategy 2013 – 2025 aims to build three new major hospitals, add forty new healthcare centres, and host fifty international medical conferences, but the strain on the healthcare sector will still be significant, especially in rural areas of the UAE.</p>\r\n<p class=\"MsoNormal\">Telemedicine, the use of digital technologies to provide healthcare services from a remote location, could be a solution for the increasing demand being placed on the healthcare sector.  By expanding the reach of UAE physicians, telemedicine would help relieve the shortage of quality healthcare practitioners, as well as reduce costs and give patients greater access to general and specialist care through a variety of digital mediums.</p>\r\n<p class=\"MsoNormal\">Imagine if an elderly woman, in a remote part of the UAE, could access her qualified specialist physician located in Dubai, through video conferencing from her mobile phone, avoiding the excessive travel time and cost which might otherwise have been a deterrent to her seeking proper medical treatment prior to an emergency situation.  Or, consider a pregnant woman’s emergency delivery at a hospital not equipped to handle her birth complications, but which uses video conferencing and medical imaging sharing software to communicate with a specialist hospital to assist in the successful delivery of the infant.</p>\r\n<p class=\"MsoNormal\">Increasing advances in technology and the availability of 4G mobile networks has resulted in growing global channels for telemedicine to be utilised, therefore widening the patient groups that could benefit from it. Yet, in the UAE, telemedicine is still very much in its infancy.</p>\r\n<p class=\"MsoNormal\">The Abu Dhabi Health Authority currently has regulations setting minimum standards for telemedicine. However, the Dubai Health Authority only addresses teleradiology, not telemedicine, in their regulatory standards. Across the entire UAE, information security and medical liability remain a real and perceived barrier to complete adoption and integration of telemedicine.</p>\r\n<p class=\"MsoNormal\">An entire generation of computer savvy criminals have turned hacking electronic data into a highly lucrative pursuit. As a result, information security of healthcare data has emerged as one of the biggest concerns in digital health. Additionally, medical liability of doctors working across borders through digital health tools are concerns of both providers and patients.  Yet, none of these legal issues are insurmountable.</p>\r\n<p class=\"MsoNormal\">Although the UAE has no consolidated information security law, there are elements of legislation at the federal level, and a few more specific laws in Dubai and Abu Dhabi, which generally govern data standards and information security in the UAE.  Last year, Abu Dhabi established a Data Standards Panel of governmental and industry representatives tasked with reviewing and recommending changes to electronic data exchange standards.  This progression shows promise for the ongoing development of more robust standards and guidance on information security and data protection in the UAE.</p>\r\n<p class=\"MsoNormal\">Telemedicine medical liability issues can be complex, impacting both the patient’s rights and protections, as well as the physician’s.  For example, if a patient located in X country is misdiagnosed by a physician using telemedicine out of Y country, how does the patient file a medical liability claim against the foreign provider.  The courts in X jurisdiction would not have the authority to impose penalties against the foreign provider.  In Abu Dhabi, for clinical and medical services provided through telemedicine, the regulations place liability on the originating locally licensed healthcare facility.  However, untested grey areas still exist across the Emirates.  Legal risk exposure can be reduced by proper development and implementation of facility telemedicine policies and guidelines, including continual training and licensing requirements, and proactive monitoring of staff performance.</p>\r\n<p class=\"MsoNormal\">Advances in telemedicine and digital health in the region will be determined by regulators developing efficient policies, enabling appropriate data protection and information security laws, and ensuring that the legal and regulatory constraints do not impede innovation. Collaboration between regulators, the private sector, and healthcare professionals is key to the proper implementation of telemedicine, improving healthcare for citizens in the UAE, and reducing the increasing strain on the industry.</p>\r\n<p class=\"MsoNormal\">Particularly in this ‘Year of Innovation’, the UAE should champion innovative technology through enabling regulations and well targeted campaigns to raise awareness about digital health technologies, particularly telemedicine, and the ways this technology could increase and bridge the gap in access to healthcare services across the UAE.</p>\r\n<p class=\"MsoNormal\"><em>First published in Gulf News on 10 May 2015.</em></p>\r\n&nbsp;'),
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(93258, 5065, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Lada Shelkovnikova'),
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(93256, 5065, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-11/december-january-2/branded-residences-and-rental-pool-arrangements-in-dubai.html'),
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(93252, 5065, 'content_description', 'Investment into branded residences with rental pool arrangements is becoming an increasingly popular investment vehicle in Dubai. '),
(93253, 5065, '_content_description', 'field_59b641c07f473'),
(93254, 5065, 'pageSummary', 'Investment into branded residences with rental pool arrangements is becoming an increasingly popular investment vehicle in Dubai.'),
(101689, 5526, '_content', 'field_59b649b5c8b2b'),
(101690, 5526, 'lawUpdateArticleMonth', '5506'),
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(101692, 5526, 'content_description', 'Advertising and marketing are one of the main pillars from which companies and institutions derive their profits, reputation, and success. The Egyptian government seeks to balance such activities with the protection of consumers from false or misleading advertising. This is of particular importance in the pharmaceutical industry. Consequently, the Egyptian government has prioritised stronger regulations for the pharmaceutical industry. '),
(101693, 5526, '_content_description', 'field_59b641c07f473'),
(101694, 5526, 'pageSummary', 'Advertising and marketing are one of the main pillars from which companies and institutions derive their profits, reputation, and success. The Egyptian government seeks to balance such activities with the protection of consumers from false or misleading advertising. This is of particular importance in the pharmaceutical industry. Consequently, the Egyptian government has prioritised stronger regulations for the pharmaceutical industry.'),
(101695, 5526, '_pageSummary', 'field_59e59b307dec8'),
(101696, 5526, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-14/november-7/practical-conditions-for-the-advertisement-of-non-prescription-pharmaceutical-products-in-egypt.html'),
(101697, 5526, '_currentURL', 'field_59d35123ab1e7'),
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(101701, 5526, '_lawUpdateArticleWriters', 'field_59da2a866b064'),
(101702, 5526, '_yoast_wpseo_metadesc', 'The Egyptian government seeks to balance such activities with the protection of consumers from false or misleading advertising. This is of particular importance in the pharmaceutical industry.'),
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(101703, 5527, 'content', 'November 2016\r\n\r\n<hr />\r\n<p class=\"p1\"><strong>Key issues arising under the new law</strong></p>\r\n<p class=\"p2\">The key provisions of the new law require that all Omani companies which have been granted licences to conduct pharmaceutical activities must now restructure to include an Omani pharmacist into their shareholder structure. The consequence of this legislative requirement is that existing foreign owned Omani pharmacies may need to either reduce the equity held by the non-Gulf Corporation Council (‘GCC’) national shareholder or their current Omani sponsor. Applications to open new pharmacies must comply with this rule immediately, whereas existing pharmacies have a short period of time to comply.</p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>Other notable issues</strong></span></p>\r\n<p class=\"p2\">Other areas covered by the law, which will affect the larger pharmacy chains in Oman, are as follows:</p>\r\n\r\n<ul>\r\n 	<li>Pharmacist licence: medicines may only be dispensed by a licensed pharmacist, which is a person holding a bachelors degree from a recognised university. Licences are granted for up to two years and are capable of being renewed;</li>\r\n 	<li>Multiple pharmacies: owners of a branded pharmacy are not permitted to hold ownership interests in other brands of pharmacy chains. This is likely to improve consumer choice and maintain price competition;</li>\r\n 	<li>Pharmacy licence: licences are now granted for a period of two years. Previously, licences were available for up to five years;</li>\r\n 	<li>Number of branches: draft regulations are being considered by the Ministry of Health which will have the effect of limiting the number of branches capable of being operated and managed by each pharmacy brand. The regulations are currently being discussed by the legislative bodies;</li>\r\n 	<li>Sharing funds: agreements made between pharmacists and physicians in relation to sharing funds from prescription drug charges are prohibited. This may assist with reducing unethical practices in the profession; and</li>\r\n 	<li>Omanisation: the Ministry of Health has kept open the possibility of Omanising the pharmaceutical sector over the next 10 years.</li>\r\n</ul>\r\n<p class=\"p2\"><strong>Impact</strong></p>\r\n<p class=\"p2\">The law is likely to have a greater effect on businesses that hold doctors’ practices, hospitals, and pharmacies under one Omani company. In this situation, a new company should be created to hold the pharmaceutical business separately from the other businesses. It will be necessary to move existing pharmacy branch registrations over to the new company. This will delay new pharmacy registrations but the process of transferring branches can usually be carried out in a short period of time, minimising the delay.</p>\r\n<p class=\"p1\"><span class=\"s3\"> Businesses can also benefit from new Ministry of Commerce practice that no longer requires investors to produce physical evidence of the availability of the start up share capital in an Omani bank account. While the capital will eventually need to be deposited into the new company, the new practice means the capital obligation is spread out over the first financial year.</span></p>'),
(101704, 5527, '_content', 'field_59b649b5c8b2b'),
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(101707, 5527, 'content_description', 'The Government of Oman, through Royal Decree 35 of 2015, recently passed legislation which will affect foreign investor owners of pharmacies in Oman. The new Royal Decree repeals Royal Decree 41 of 1996, which had until recently governed the pharmaceutical profession and licensing regime. '),
(101708, 5527, '_content_description', 'field_59b641c07f473'),
(101709, 5527, 'pageSummary', 'The Government of Oman, through Royal Decree 35 of 2015, recently passed legislation which will affect foreign investor owners of pharmacies in Oman. The new Royal Decree repeals Royal Decree 41 of 1996, which had until recently governed the pharmaceutical profession and licensing regime.'),
(101710, 5527, '_pageSummary', 'field_59e59b307dec8'),
(101711, 5527, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-14/november-7/pharmacy-practice-in-oman.html'),
(101712, 5527, '_currentURL', 'field_59d35123ab1e7'),
(101713, 5527, 'lawUpdateArticleWriters_0_lawUpdateArticleWriter', '597'),
(101714, 5527, '_lawUpdateArticleWriters_0_lawUpdateArticleWriter', 'field_59da2ac06b065'),
(101715, 5527, 'lawUpdateArticleWriters', '1'),
(101716, 5527, '_lawUpdateArticleWriters', 'field_59da2a866b064'),
(101717, 5527, '_yoast_wpseo_metadesc', 'The existing foreign-owned Omani pharmacies may need to either reduce the equity held by the non-Gulf Corporation Council (‘GCC’) national shareholder or their current Omani sponsor. what else?'),
(101718, 5528, 'content', 'November 2016\r\n\r\n<hr />\r\n<p class=\"p1\">Despite the absence of formal regulations, the Pharmacy and Drug Control Department at the Ministry of Public Health (the ‘Drug Control Department’) has in place an approval process for the importation and sale of certain cosmetic products. Since there are no clear guidelines for the classification and registration of these products, the Drug Control Department makes its decision on a case-by-case basis, based on the category of the product, its function, and composition. Whilst there is no regulation to support such classification procedures, the Qatar Customs Authority will usually not permit the importation of cosmetic products without the Drug Control Department’s approval.</p>\r\n<p class=\"p2\"><strong>Products are considered to be ‘cosmetics’</strong></p>\r\n<p class=\"p2\">The Drug Control Department considers some products that are intended to be used or applied to the human body as cosmetic. While an official list is not available, products classified as cosmetics requiring registration with the Drug Control Department include: non-medicated shampoos; soaps; sanitary products; contact lens solutions; perfumes; non-medicated skin moisturisers; nail polishes; makeup; and toothpaste.</p>\r\n<p class=\"p2\"><strong>The process for registration of cosmetics</strong></p>\r\n<p class=\"p2\">The Drug Control Department has put in place an application process that requires the completion of a form which, in part, requires: the identification of the country of origin of the product; list of ingredients; instructions on how the product should be used and stored; details of any side effects or warnings; and a sample of each product to be imported.</p>\r\n<p class=\"p1\"><span class=\"s1\"> Following the submission of the application form, a committee at the Drug Control Department (the ‘Committee’) will determine whether the product falls under a particular classification, or does not require registration, and issue a report reflecting the same. Depending on the classification and the ingredients of the products, additional approvals or laboratory tests may be required. The Committee does not usually perform laboratory tests on the samples provided by the applicant; however, it may request the same if it suspects that the products may contain certain ingredients that are not permitted in Qatar (e.g. pork derivatives). </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> A foreign company can register and sell their cosmetic products in Qatar by importation through a local agent who is registered and entitled under the laws of Qatar to import such products, or directly by establishing a legal presence in the country. </span></p>\r\n<p class=\"p2\"><strong>Non-compliance </strong></p>\r\n<p class=\"p2\">Since there are no specific laws or regulations organising the importation and distribution of cosmetic products in Qatar, there are also no specific penalties prescribed for non-compliance. However, as indicated above, in order for the products to clear customs, the importer will have to provide the Customs Authority with a copy of an approval by the Drug Control Department permitting the concerned products to be imported into the country. In some cases (e.g. shampoos), the product is required to be accompanied by a certificate of compliance from an accredited laboratory showing the product’s conformity to the relevant Gulf Standardisation Organisation standards.</p>\r\n<p class=\"p1\"><span class=\"s1\"> In addition to the Drug Control Department’s role in approving and classifying cosmetic products, the Drug Control Department, with the Consumer Protection Department, also regulate the display of products in the market to ensure compliance with the applicable regulations relating to, among other things, labelling requirements and that no changes to the product’s details were made since the approval of the Drug Control Department was obtained. Ministry of Public Health officials, from time to time, investigate non-compliance issues (especially where a complaint is made or there is a general concern) by entering into shops or distributors’ facilities and collecting random samples to be tested. If non-compliance is found, the products may be withdrawn from the market. </span></p>\r\n<p class=\"p2\"><strong>Conclusion</strong></p>\r\n<p class=\"p2\">The Ministry of Public Health is considering regulating the importation of cosmetics more comprehensively. However, whilst such regulations are not in place, the regulatory requirements and process for cosmetics importation and sale in Qatar will be subject to the Drug Control Department’s discretion. Importers and suppliers will need to make enquiries with the Drug Control Department on a case by case basis to ensure that all requirements are met and that there will be no problems when products attempt to clear customs.</p>'),
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(101666, 5525, '_content', 'field_59b649b5c8b2b'),
(101667, 5525, 'lawUpdateArticleMonth', '5506'),
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(101669, 5525, 'content_description', 'The National Health Regulatory Authority in Bahrain (‘NHRA’) was established in accordance with Federal Law No. 38 of 2009 and was granted the role of regulating healthcare in Bahrain. This was considered an important step towards achieving the goals of the Bahrain Government’s Economic Vision 2030. '),
(101670, 5525, '_content_description', 'field_59b641c07f473'),
(101671, 5525, 'pageSummary', 'The National Health Regulatory Authority in Bahrain (‘NHRA’) was established in accordance with Federal Law No. 38 of 2009 and was granted the role of regulating healthcare in Bahrain. This was considered an important step towards achieving the goals of the Bahrain Government’s Economic Vision 2030.'),
(101672, 5525, '_pageSummary', 'field_59e59b307dec8'),
(101673, 5525, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-14/november-7/update-on-the-classification-of-pharmaceutical-products-in-bahrain.html'),
(101674, 5525, '_currentURL', 'field_59d35123ab1e7'),
(101675, 5525, 'lawUpdateArticleWriters_0_lawUpdateArticleWriter', '607'),
(101676, 5525, '_lawUpdateArticleWriters_0_lawUpdateArticleWriter', 'field_59da2ac06b065'),
(101677, 5525, 'lawUpdateArticleWriters', '1'),
(101678, 5525, '_lawUpdateArticleWriters', 'field_59da2a866b064'),
(101679, 5525, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Diana Al Adel'),
(101680, 5525, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(101681, 5525, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'd.aladel@tamimi.com'),
(101682, 5525, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'field_59e59afcd15de'),
(101683, 5525, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', 'Manama, Bahrain'),
(101684, 5525, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', 'field_59e59b05d15df'),
(101685, 5525, 'lawUpdateArticleNoWriters', '1'),
(101686, 5525, '_lawUpdateArticleNoWriters', 'field_59e59aaed15dc'),
(101687, 5525, '_yoast_wpseo_metadesc', 'The National Health Regulatory Authority in Bahrain (‘NHRA’) was established in accordance with Federal Law No. 38 of 2009 and was granted the role of regulating healthcare in Bahrain. This was considered an important step towards achieving the goals of the Bahrain Government’s Economic Vision 2030.'),
(101688, 5526, 'content', 'November 2016\r\n\r\n<hr />\r\n<p class=\"p1\">In 2016, several laws and decrees have been issued regarding the regulation of pharmaceutical related products and activities. However, to date, there is limited legislative text governing the advertisement of non-prescription pharmaceutical products. Existing laws do not cover all parameters and the implementation of the rules are left to practice and interpretation of the competent authority.</p>\r\n<p class=\"p1\"><span class=\"s1\">Advertising of non-prescription pharmaceuticals is generally regulated the Ministry of Health and Population (‘Ministry’). The competent administration within the Ministry is the Central Administration for Pharmaceutical Affairs (‘CAPA’), which regulates the advertisement of pharmaceutical products and grants approvals for promotional activities related to non-prescription pharmaceuticals. In addition, CAPA undertakes assessment and monitoring activities for human and veterinary medicines, food supplements, insecticides, medical devices, and cosmetics to evaluate their compliance with the applicable standards in order to ensure safe, effective, affordable, and secure access to the consumer.</span></p>\r\n<p class=\"p1\">The marketing and advertisement of medical products and supplies are regulated under numerous pieces of legislation in Egypt. The most notable legislation of which is the Pharmacy Law No. 127 of 1955) (the ‘Pharmacy Law’), and its executive decrees.</p>\r\n<p class=\"p2\"><strong>I- The Technical Committee’s approval: a crucial prior condition </strong></p>\r\n<p class=\"p2\">The Pharmacy Law prohibits any advertisement of prescription pharmaceutical products (excluding authorised vaccines). However, a non-prescription pharmaceutical product is excluded from such prohibition if it has a valid marketing authorisation licence (registration licence) granted by CAPA. The advertisement of non-prescription pharmaceuticals must comply with article 63 of the Pharmacy Law, which states:</p>\r\n<p class=\"p4\"><em>The data mentioned on the pharmaceutical products’ cards and any bulletin or advertisement distributed therefore shall be consistent with the material these products actually contain as well as their remedial characteristics. These data shall not contain any phrases that contradict with the public morals or mislead the public. The approval of the Technical Committee for Medicines Supervision on the text of such data, bulletins or advertisements must be obtained prior to their publication. (emphasis added)</em></p>\r\n<p class=\"p1\">On the basis of the aforementioned article, numerous ministerial decrees regulating the registration and advertising of pharmaceutical products have been issued, the most important and significant of which is Decree No. 76 of 2000 regulating the Advertisement of Drugs Pharmaceutical Products and Dietary Supplements (the ‘Decree’). The Decree confirms that pharmaceutical companies wishing to advertise any non-prescription pharmaceuticals, whether in newspapers, magazines, or any other advertising medium, must obtain the approval of the Technical Committee at the Ministry in advance of publication. The Technical Committee proceeded to issue Decree No. 106, dated 20 November 2008, as one of the complementary decrees implementing article 63 of the Pharmacy Law. This decree stipulates that:</p>\r\n<p class=\"p4\"><em>A company may not publish or issue any advertising materials for any products without the approval of the Central Administration for Pharmaceutical Affairs, and all data submitted shall be in conformity with the certified data of the product’s registration as reflected in the Administration’s records.</em></p>\r\n<p class=\"p5\">Accordingly, the approval of CAPA to proceed with the advertisement must be secured before undertaking the advertisement.</p>\r\n<p class=\"p1\"><span class=\"s3\">The Decree further provides for the applicable penalties in the event of breach of its provisions. Under such provisions, if a breach of the Decree occurs, a written notice will be sent by CAPA and addressed to the breaching entity ordering the ceasing of the advertisement or rectifying of the falsified data. Penalties for such breach may include the withdrawal of the product from the market and the cancellation of its registration. Such withdrawn products may not be re-registered prior to the lapse of at least one year from the date of cancellation of the registration.</span></p>\r\n<p class=\"p2\"><strong>II- Scientific Office requirements: additional prerequisite</strong></p>\r\n<p class=\"p2\">The aforementioned article 63 of the Pharmacy Law stipulates that obtaining the Technical Committee’s approval is the sole prerequisite to lawfully advertise non-prescription pharmaceuticals. However, in practice, the Technical Committee only provides advertisement permits to pharmaceutical companies having or contracting with a Scientific Office (as defined herein), despite there being no legal basis for this restriction.</p>\r\n<p class=\"p1\">Scientific offices are regulated in accordance with Decree No. 429 of 1976, issued by the Ministry. The main objective of a scientific office (‘Scientific Office’) is to market pharmaceutical products, medical supplies, and pharmaceutical chemicals. Each Scientific Office must obtain a licence from the Ministry. A Scientific Office may keep product samples but is not permitted to sell pharmaceutical products directly. A Scientific Office is required to preserve pharmaceutical samples in accordance with the technical specifications provided in the Pharmacy Law and its executive decrees, hold registered samples as sealed by CAPA, provide CAPA with a monthly report on its distribution of samples, and release samples only to persons authorised to be granted samples according to the Pharmacy Law.</p>\r\n<p class=\"p2\"><strong>III- Rules governing the advertisement of a pharmaceutical product</strong></p>\r\n<p class=\"p2\">CAPA has outlined a set of general guidelines for the advertising of pharmaceutical products. For example, CAPA requires promotional materials to comply with the locally accepted customary practices, ethical rules, and religious directions, and that such materials should not be misleading or unrealistic. Most importantly, CAPA declares that promotional materials must represent a ‘fair balance’ between claims regarding the efficacy of the product and its safety so that healthcare professionals and consumers receive complete and accurate information in order to properly evaluate the appropriateness of the product for a particular patient’s care.</p>\r\n<p class=\"p2\"><strong>Conclusion</strong></p>\r\n<p class=\"p2\">Pharmaceutical promotion may lead to misinformed treatment choices that may damage public health and increase health care costs. Egyptian authorities continue to exert their endless efforts to strictly regulate and supervise the diverse parameters of the Egyptian pharmaceutical market. Consequently, those wishing to advertise pharmaceutical products should take a careful look at the applicable regulations and ensure full compliance with the same.</p>'),
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(101646, 5524, 'content_description', 'Whilst the economy in the UAE (and GCC) continues to weather the storm of low oil prices and an uncertain geo-political climate, certain sectors, in particular healthcare, continue to forge ahead with heightened activity, growth and expansion. '),
(101647, 5524, '_content_description', 'field_59b641c07f473'),
(101648, 5524, 'pageSummary', 'Whilst the economy in the UAE (and GCC) continues to weather the storm of low oil prices and an uncertain geo-political climate, certain sectors, in particular healthcare, continue to forge ahead with heightened activity, growth and expansion.'),
(101649, 5524, '_pageSummary', 'field_59e59b307dec8'),
(101650, 5524, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-14/november-7/uae-healthcare-sector-employee-transfers.html'),
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(158588, 5532, '_lawUpdateArticlePractices', 'field_59dc7918de021'),
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(101662, 5524, 'lawUpdateArticleNoWriters', ''),
(101663, 5524, '_lawUpdateArticleNoWriters', 'field_59e59aaed15dc'),
(101664, 5524, '_yoast_wpseo_metadesc', 'Whilst the economy in the UAE (and GCC) continues to weather the storm of low oil prices and an uncertain geo-political climate, certain sectors, in particular healthcare, continue to forge ahead with heightened activity, growth and expansion.'),
(101665, 5525, 'content', 'November 2016\r\n\r\n<hr />\r\n<p class=\"p1\">NHRA’s scope includes regulating healthcare professionals, facilities, equipment, and pharmaceutical products, in addition to setting related guidelines in line with international standards.</p>\r\n<p class=\"p1\"><span class=\"s1\"> According to Decree No. 9 of 2016 in relation to Classifying Pharmaceutical Products and Health Products (‘Decree 9 of 2016’), a pharmaceutical product is classified as either a health product or a medicine, based on the Pharmaceutical Product Classification Guideline annexed to the decree (‘PPC Guidelines’). Health products include: herbal products; products containing vitamins; products containing minerals; and other products that contain specific substances such as amino acids, charcoal lipids such as omega 3 and certain antiseptics (‘Health Products’). </span></p>\r\n<p class=\"p1\">The PPC Guidelines attempt to provide clear definitions for what are considered Medicines (as defined herein) and Health Products, in addition to providing detailed information to be used as a basis for pharmaceutical products classification.</p>\r\n<p class=\"p1\"><span class=\"s2\"> The basis used by NHRA for classification, as explained by the PPC Guidelines, includes a number of factors, mainly: the composition of a product; medical claims made in relation to a product; its concentration; its method of consumption; and the potential for any medical interference (e.g. adverse interactions with other medicines). </span></p>\r\n<p class=\"p2\"><span class=\"s3\"><strong>Composition</strong></span></p>\r\n<p class=\"p3\">The PPC Guidelines provides a list of more than one hundred substances and preparation techniques of such substances, which cannot be included in an herbal product. Any product containing any of these substances, or which uses certain preparation techniques, will be classified as a medicine (‘Medicine’). Some examples of herbal products considered to be a Medicine are: Aconitum napellus L, Berberis aristata and Ginkgo biloba L. Products may also be classified as Health Products if they include substances produced by or obtained from bees (including royal jelly, bee pollen and propolis), natural enzyme products, crude or refined coal tars, and certain antiseptics.</p>\r\n<p class=\"p3\"><strong>Concentration</strong></p>\r\n<p class=\"p3\">Whether vitamins and mineral-containing products will be classified as a Health Product or Medicine depends on the concentration amount of the vitamins and minerals in the given product.</p>\r\n<p class=\"p1\">The PPC Guidelines provides a table for lower and upper concentration limits for vitamins and minerals.</p>\r\n<p class=\"p4\"><strong>Method of Consumption and Medical Interference</strong></p>\r\n<p class=\"p3\">Generally, pharmaceutical products which state any of the following characteristics are classified as a Medicines and cannot be classified as a Health Product: ‘be sterile’, ‘be administered by injection’, ‘be subject to a medical prescription’, and ‘necessitate the intervention of a licensed healthcare professional’.</p>\r\n<p class=\"p3\"><strong>Medical claims</strong></p>\r\n<p class=\"p3\">The classification methodology for Health Products described above will only apply if no medical claims are made in association with the product, as the inclusion of a medical claim would likely cause the product to be classified as a Medicine.</p>\r\n<p class=\"p1\"><span class=\"s2\"> The PPC Guidelines provides examples of words or phrases, either used together or on their own that could be considered as making medical claims in relation to a product and whether they are considered as medicinal/medical. These include: ‘alleviates’, ‘avoids’, ‘boosts immune system’, ‘burns fat’, ‘calms’, ‘can benefit those who suffer from’, ‘clears’, ‘clinical trials evidence suggests’, ‘clinical trials suggest’, ’clinically proven to’, ‘combats’, ‘controls’, ‘counteracts’, ‘cures’, ‘eliminates’, ‘fights’, ‘maintains a normal . . . e.g. water balance, mood, etc.’, ‘helps’, ‘lowers cholesterol’, ‘protects against’, and ‘strengthens the immune system’. </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> The foregoing is not exhaustive and each statement or the use of certain words in combination or on their own needs to be considered carefully in its context and in relation to the product. The use of limited generic terms are less likely to be considered as making medical claims although it is recommended that the use of any of the mentioned terms of phrases are considered carefully or are avoided in relation to Health Products. </span></p>\r\n<p class=\"p1\"><span class=\"s2\"> There is, however, an exception for medical claims or indications that are made in relation to products classified as Health Products (not Medicines), if such claims or indications are suitable for self-diagnosis and self-treatment, do not require the intervention of a licensed healthcare professional, and if these claims are consistent with supporting evidence regarding the safety and traditional use of those products. </span></p>\r\n<p class=\"p4\"><strong>Other Considerations</strong></p>\r\n<p class=\"p3\">When classifying a new product, NHRA takes into consideration previous classifications to ensure that closely related products will be similarly classified.</p>\r\n<p class=\"p1\">If any product contains a substance with a known pharmacological affect, it will be classified as a Medicine by NHRA, irrespective of the presence or absence of any claims contained in the product packaging or literature.</p>\r\n<p class=\"p1\">Any product containing two or more regulated components that are physically, chemically, or otherwise combined or mixed and produced as a single product will be regulated in accordance with the highest regulatory standards, e.g. a product containing both a steroid and herbal substance would be regulated as a Medicine and not as a Health Product.</p>\r\n<p class=\"p3\"><span class=\"s3\"><strong>Official Fees</strong></span></p>\r\n<p class=\"p1\">A new decree was published in the official gazette of 18 August 2016 under Law No. 17 of 2016, introducing new official fees for licences granted by NHRA.</p>\r\n<p class=\"p1\">The decree also confirmed that the licence renewal must be submitted at least one month before the expiration of the licence.</p>\r\n<p class=\"p1\">In relation to the point of sale of certain products, all products requiring a prescription can only be sold in pharmacies. The classification of a product as a Medicine or a Health Product as well as its composition, concentration, and medical use will determine if a prescription is needed for that product. Another function of NHRA is to determine the prices of Medicines and provide a formal list of such prices. NHRA does not, however, determine the prices of Health Products.</p>\r\n<p class=\"p3\"><strong>Summary</strong></p>\r\n<p class=\"p3\">Decree 9 of 2016 has helped to clarify the classification of Health Products and Medicines in Bahrain and attempts to bring these into line with international standards. The classification and registration regime implemented by NHRA has made matters clearer for importers and manufacturers but challenges will no doubt arise in relation to new products that enter the Bahrain market. It is suggested that before the sale or importation of any Health Products or Medicines in Bahrain, clear regulatory advice is obtained.</p>'),
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(101623, 5523, 'content_description', 'Dubai and the other Emirates of the UAE have witnessed a population surge and it is not surprising to see that the UAE is one of the international leaders in population growth. What is particularly striking is that the country’s population back in 1971 was approximately 300,000 people and that by the end of 2012, the number of residents in Dubai surpassed 2 million, which is in line with an overall population growth rate of 5 - 8 per cent per year. '),
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(101625, 5523, 'pageSummary', 'Dubai and the other Emirates of the UAE have witnessed a population surge and it is not surprising to see that the UAE is one of the international leaders in population growth. What is particularly striking is that the country’s population back in 1971 was approximately 300,000 people and that by the end of 2012, the number of residents in Dubai surpassed 2 million, which is in line with an overall population growth rate of 5 - 8 per cent per year. '),
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(101627, 5523, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-14/november-7/investing-in-dubais-healthcare-sector-through-a-clinicpolyclinic.html'),
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(101629, 5523, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Mamoon Ashraf'),
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(101633, 5523, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', 'Dubai, UAE'),
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(101641, 5523, '_yoast_wpseo_metadesc', 'Al Tamimi & Company provides a brief insight on how an investor that intends to invest in the healthcare segment can do so by establishing a medical clinic/polyclinic in Dubai.'),
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(101642, 5524, 'content', 'November 2016\r\n\r\n<hr />\r\n<p class=\"p1\">This is not entirely surprising, given that the sector itself is a very much consumption-led industry and is thriving elsewhere with Sanofi’s agreement to a 22.8 billion-euro ($25.1 billion) asset swap with Germany’s Boehringer Ingelheim GmbH being an obvious example.</p>\r\n<p class=\"p1\">Notable UAE activity in the sector includes Mediclinic International combining with Al Noor Hospitals Group, to create an enlarged Mediclinic group – the third largest international hospital provider outside the United States; American Hospital Dubai’s collaboration with the Mayo Clinic Care Network; and the NMC and Dr. Michael Fakih IVF merger.</p>\r\n<p class=\"p1\">This recent spate of activity lends further credence to the rising buoyancy of the overall healthcare sector in the UAE. Against this backdrop, key employment considerations can arise in the context of employee transfers between healthcare providers which this article considers in further detail.</p>\r\n<p class=\"p1\">For illustrative purposes, we use the example of Company A being in the process of reorganising its business with the result that its healthcare divisional arm will be acquired by another pharma company, Company B. As a result of the reorganisation, it is proposed that Company A’s employees will be transferred to Company B, who has agreed as part of the sale to offer employment to Company A’s employees. In the context of this business asset sale arrangement between the two UAE companies, we consider the framework relating to the transfer of employees, their benefits and overall status.</p>\r\n<p class=\"p2\"><strong>Legal framework</strong></p>\r\n<p class=\"p2\">By way of background, unlike other foreign jurisdictions there are no transfer (automatic or otherwise) regulations in the UAE by which employees can seamlessly migrate from one entity to another.</p>\r\n<p class=\"p1\">Accordingly, on any business asset transfer, the employment with the first employer (in this case, Company A) is treated as having been terminated and the transferring employees will require to enter into new employment contracts with the second employer (in this case, Company B). There will also need to be a cancellation of the residency visa and employment permit with Company A and an application for new visas and permits with Company B. This may be done by way of a transfer of sponsorship and payment of a fee, depending upon where the two entities are based.</p>\r\n<p class=\"p1\">On termination of employment, an employee is entitled to an end of service gratuity payment, provided that they have worked for their employer for at least one year. This is calculated with reference to length of service, and an employee receives 21 calendar days’ basic pay (based on the last basic salary payment an employee receives prior to termination of employment) for each year of service, for the first five years of service, and 30 calendar days’ basic pay for each year of service thereafter. Any incomplete year is calculated on a pro-rated basis. The maximum payment an employee can receive is a payment equivalent to two years’ salary.</p>\r\n<p class=\"p1\"><span class=\"s2\"> Therefore, from a legal perspective, on the transfer of employment from one entity to another, the employees will be entitled to be paid for their gratuity accrued to date. However, as noted above, gratuity is based on length of service and therefore there are various disadvantages to an employee who is paid their gratuity on leaving Company A rather than rolling that service over to Company B.</span></p>\r\n<p class=\"p1\">In the light of this, some companies agree with their employees that they will not receive their gratuity at the point of transfer, but instead the liability will be rolled over into their new contract, so that although the employee does not receive an immediate payment, their continuity of service is intact. This can only be done with the co-operation of the employee. In practice, though, as the arrangement is advantageous to the employee, consent is usually readily obtained.</p>\r\n<p class=\"p1\">Where gratuity is to be rolled over, a tri-party agreement is entered into, between the two employing entities and the employee, confirming the agreed arrangements.</p>\r\n<p class=\"p1\">Under the UAE Labour Law, an employee is entitled to notice, which is at least 30 days in the case of an unlimited term contract, or such longer period as may be stated in the employment contract. As notice cannot be waived or reduced, appropriate notice should be given to an employee of the termination of their employment (with an explanation of the transfer to the second entity) in plenty of time prior to the transfer, so that notice is correctly given. Alternatively a waiver of notice could be agreed with the employee, although strictly in the event that an employee is unhappy with the agreement and complained to the UAE Courts, the agreement to waive notice would be void. However, in practice, as with gratuity, the transferring employees are unlikely to complain about the notice if they know that they are being offered employment with the new employer on the same or similar terms.</p>\r\n<p class=\"p1\">Finally, in addition to notice, an employee is also entitled to be paid for accrued but untaken benefits as at the termination date with Company A, such as accrued annual leave. The two entities could consider allowing the annual leave to roll into the new employment (although again, the entities may want to come to an agreement on cost), or alternatively, the employees should be paid in lieu for the accrued benefits upon termination of employment with Company A. Furthermore, the issue of any loans or advances that are owed by any transferring employees to Company A and how these will be dealt with would need to be considered.</p>\r\n<p class=\"p1\">Other considerations include the possibility of labour bans being applied on employees (although this has been increasingly liberalised), and the extent to which the transferring employee is a national of a country facing difficulties in securing UAE residency visas.</p>\r\n<p class=\"p2\"><strong>Concluding remarks</strong></p>\r\n<p class=\"p2\">It is important for both the purchaser and the seller to be aware of the specific issues and matters which arise in respect of the transfer of employees in the context of a business asset sale, ensuring that, prior to the transfer, all relevant documentation is prepared and ready to issue to the transferring employees (for example, tri-party agreements), visa cancellation/transfer arrangements have been made and appropriate internal discussions have been undertaken with the “transferring” employees in order that expectations are managed effectively and the process has been transparently communicated.</p>'),
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(84214, 4592, 'content', '<p><span>The claim involved a dispute between our clients and another Iraqi party under a supply contract subject to foreign arbitration valued at over 400 Million USD. According to Article 25(1) of the Iraqi Civil Code No 40 of 1951 (the \"Civil Code\"), contractual obligations shall be governed by the law of the state wherein lies the domicile of the contracting parties if they have a common domicile; otherwise, the law of the state within which the contracts were concluded will be applied unless the contracting parties agree otherwise or where it would be revealed from the circumstances that another law was intended to be applied.</span><br /><br /><span>In our abovementioned case, the Iraqi counterparty sought to refer the matter to Arbitration, to no avail. Furthermore, and notwithstanding the above, the counterparty filed the claim before the Iraqi courts claiming it had jurisdiction to hear the same. This is as Iraqi jurisprudence had previously been unclear as to the limits of Iraqi courts\' jurisdiction in relation to contracts subject to foreign arbitration; the courts at times finding they have jurisdiction to hear the claim on account of the place for executing the contract notwithstanding agreement to the contrary. However, and in accordance with the abovementioned Article 25(1) of the Civil Code, the Court of Cassation finally affirmed our argument that Iraqi courts do not have jurisdiction to hear such claims.</span><br /><br /><span>Additionally, it is important to note that in previous cases, the Iraqi courts used to go with the provision of Article 253 of the Civil Procedures Code No. 83 for the year 1969, which states that a dispute may not be heard by the court if the same was subject to an arbitration agreement between the parties. Furthermore, the Article goes on to state that if one of the parties resorted to the court and the other party did not object to that, then the suit may be heard and the arbitration clause shall be deemed as null and void. If, however, there was an objection by the other party, the court shall then decide to postpone he suit until an arbitral award is issued. In our case, the courts set a new precedent in that the courts decided that it had no jurisdiction to see this case as a result of both parties seeking arbitration before the counterpart sought the Iraqi courts.</span></p>'),
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(84220, 4592, 'pageSummary', 'Al Tamimi Iraq office has successfully obtained a ruling in our clients\' favor relating to the issue of jurisdiction of Iraqi courts. '),
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(84229, 4593, 'content', '<p>Along with this exists an underlying frustration of lenders at the inability to take security over such companies which, more often than not, represent a substantial value and source of income within any customer group.<br /><br />There are various issues under UAE law surrounding the pledging of shares in limited liability companies, including the lack of an official register on which to record such security.&nbsp; Although today the debate (or more correctly, the certainty around such debate) has not progressed much further, there are new developments which have prompted this article and a need to revisit the issue.&nbsp;&nbsp;&nbsp;<br />&nbsp;<br /><strong>II.&nbsp;Companies in the UAE<br /><br /></strong>In order to understand the debate, it is first important to understand the types of companies in the UAE and their corporate structure.&nbsp; Law No. 8 of 1984 (&ldquo;Commercial Companies Law&rdquo;) defines the structure of various corporate entities and the elements that comprise each.&nbsp; Among these the public joint stock company, private joint stock company and the limited liability company are the key targets for share security.&nbsp;<br /><br />Joint stock companies issue shares that are easily valued, tradeable, and may be maintained by a bailee in the event they are provided as security, and it is common practice in the market to register pledges over shares of such companies that are centrally deposited.&nbsp; The central depository in such circumstances acts as the bailee on behalf of the pledgor.<br /><br />A limited liability company on the other hand is much more of a private entity between limited partners.&nbsp; A limited liability company requires a minimum of two partners and a private partners&rsquo; registry is maintained where the percentage of allocation of ownership is listed, typically referred to as quotas. Such quotas are similar to shares, however they are not actually issued as certificates of ownership, therefore, restricting the ability to perfect a possessory pledge. While it is not uncommon for the memorandum of association of limited liability companies to refer to &ldquo;shares&rdquo; and the &ldquo;shareholding&rdquo; of owners, from a technical perspective these companies have partners with an interest or quotas in the company.<br /><br /><strong>III.&nbsp;What are the requirements for a pledge?</strong><br /><br />When pledging shares of a company, the possessory pledge is the one that is the most relevant in such situations.&nbsp; Therefore, it is important to understand what is a possessory pledge.&nbsp; A possessory pledge is a conditional pledge and assumes that the pledged asset is in the possession of the pledgee or a third party.&nbsp; In accordance with Article 1449 of Law No.&nbsp; 5 of 1985 (the &ldquo;Civil Transactions Law&rdquo;), the possessory pledge is comprised of two important elements, requiring that the assets subject to the pledge must be capable of: (i) delivery at the time the pledge is made, and (ii) sale by public auction.&nbsp;<br /><br />Pledges are a common form of security in the UAE to secure various liabilities and obligations, typically associated with a bank debt.&nbsp; The section below will provide a more general understanding of pledges with respect to the pledging of shares and further explain the difficulties that have been faced with such security in relation to limited liability companies.<br /><br />The Commercial Companies Law outlines the necessary requirements to obtain a possessory pledge over shares of a joint stock company.&nbsp; Article 164 of the Commercial Companies Law, notes that: shares may be pledged by providing a pledge in accordance with specific requirements as further noted in Article 162 of the Commercial Companies Law.&nbsp; Such requirements include: annotating the share ledger of the company with reference to the pledge, marking the pledge on the share and although, not a formal requirement under the Commercial Companies Law, the execution of a share pledge agreement, which outlines (i) the liabilities, (ii) the conditions to release the security, (iii) voting rights, (iv) dividend rights, and (v) all other matters pertaining to the terms of the agreement is advised.&nbsp; Additionally, it is important to note that in accordance with the Commercial Companies Law all rights related to the pledge of such shares will be deemed pledged unless otherwise agreed between the parties (i.e. dividends and voting rights).<br /><br />Listed shares of a public joint stock company may be pledged in accordance with Article (26) of the Ministerial Resolution No. 2 for the year 2001 concerning trading, clearing, settlement, transfer of ownership and custody of shares, which allows for shares to be pledged by clearly marking the shares on the shareholders&rsquo; registry maintained by the clearing department.&nbsp; In this instance, the clearing department is acting as the bailee of the shares pledged and securing the pledge on behalf of the pledgor.<br /><br />Similarly, when pledging shares of a private joint stock company, in accordance with Article 216 of the Commercial Companies Law, the shares of the private joint stock company are earmarked with the pledge and the shareholders&rsquo; registry is maintained with licensed ledger custodian ensuring the protection of the pledge.<br /><br />There are no similar provisions for pledging of shares/quotas in limited liability companies.<br /><br /><strong>IV.&nbsp;Difficulties with the limited liability company</strong></p>\r\n<p>One of the distinguishing features between the limited liability company and both the joint stock companies is that there is no issuance of shares (or share certificates) of a limited liability company.&nbsp; As previously noted, a limited liability company has quotas.&nbsp;<br /><br />Under Article 228 of the Commercial Companies Law the company shall retain a special register for partners which shall include the detailed information relating to the quota of each partner including any transactions with respect to each quota.&nbsp; The registry of the partners is maintained in the memorandum of association of the company in addition to a separate register maintained by the company &ndash; there is no independent register or third party to maintain it.&nbsp; If a partner purports to grant a pledge over his quota, there is no formal mechanism to mark the quota as required in order to perfect a possessory pledge.&nbsp;<br /><br />While the Commercial Companies Law lists the requirements for the assignment of a quota, there is no further mention of particular requirements for pledging quotas of a limited liability company.&nbsp;<br /><br /><strong>IV.&nbsp;What changed?<br /><br /></strong>Recently, the Dubai Economic Department (&ldquo;DED&rdquo;) has allowed, on a case by case basis, the filing of pledges over quotas in limited liability companies.&nbsp; While there are no written regulations, of which we are aware, which stipulate the procedure and requirements to file, or the effect of such filing, this development has opened up new possibilities for lenders and has renewed the long standing debate of the ability of perfecting such a security.&nbsp;<br /><br />At present we understand the DED, when accepting the pledges for filing, is requiring that such pledges are duly notarized. While we are aware of such filings occurring in practice, such practice has not to our knowledge been formally adopted nor is it clear as to the legal effect or the policy of the DED on the maintenance and scope of the &lsquo;security register&rsquo;.&nbsp; It is further unclear, what restrictions, if any, the DED will impose on filing pledges with respect to ensuring the maintenance of UAE national ownership. Lastly, there is also the possibility that notaries will object to the pledge on the grounds of Article 17 of the Commercial Companies Law (as discussed below).<br /><br /><strong>V.&nbsp;Is it enforceable?<br /><br /></strong>As with any security the focus is on enforceability. Unfortunately, due to the issues outlined in this article and the underlying corporate structure of limited liability companies, the question of enforceability remains uncertain.<br /><br />However, in terms of enforcement it is worth mentioning Article 17 of the Commercial Companies Law which provides for a restriction on creditors to recover their debt from a partner&rsquo;s quota in a company&rsquo;s capital, rather it is only the dividends/profit of the company which is available.&nbsp; However the article does go on to provide that if shares represent a partner&rsquo;s interest, a creditor may request the sale of those shares.<br /><br />While the distinction between the capital of the company and a partners share is not entirely clear for enforcement purposes, including its application to limited liability companies, Article 17 can have implications when applying to court for an attachment against a partner&rsquo;s quota in a limited liability company.&nbsp; The court is likely to reject such an application due to two reasons. The first is Article 17 and the second is that such an application does not meet the attachment requirements under the UAE Civil Procedures Law No. 11 of 1992 under which the attachment application must clearly identify the nature of the assets to be attached. Such an approach was taken by the Dubai Court of Cassation in 2005 although, unfortunately, the judgment did not include substantive legal analysis. However, it could be argued that an attachment application is likely to be accepted by the court if such an application is filed against the dividends/profit of the partner (and not the partner&rsquo;s quota in itself).&nbsp; Although the profit is unknown, Article 290 of the Civil Procedures Law No. 11 of 1992 allows attachment against profits of shares or quotas. The aforementioned Article should be applied in conjunction with Article 157 of the same law which provides for the concept of garnishment under which a creditor may attach the assets of its debtor in the hand of a third party.<br /><br />One must also consider the many other issues with enforcement &ndash; priority between competing security, and the problems which are inherent with any private company including valuations, nominee arrangements, pre-emptive rights, management and the value/marketability of quota in a limited liability company (especially if it is anything less than 100%).<br /><br /><strong>VII.&nbsp;So is there any benefit for a lender?<br /><br /></strong>Notwithstanding the issues highlighted in this article, which will remain the subject of debate until formal procedures are adopted or legal precedent exists, to the extent a lender is able to file a pledge with the DED, such filing may have some value. If nothing else, and assuming the DED follows the role of a normal security register (ie to restrict future dealings), the pledge can act as a registered negative pledge preventing any disposition of the quotas being registered at the DED.&nbsp;<br /><br /><strong>VI.&nbsp;Conclusion<br /><br /></strong>This new filing procedure is untested on many levels, and the underlying issues surrounding the legal ability to pledge quotas and enforcement remains.&nbsp; It clearly does not offer the certainty or value a pledge over listed shares offers to lenders. Notwithstanding this lenders may see value in having at least, in theory, an element of control over the quotas through the filing and to a certain extent it may fall within the category of &lsquo;better to have than not to have&rsquo;.<br /><br />Contributions from Ahmed Hamad and Ahmad Al Awamleh</p>'),
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(84258, 4594, 'content', '<p>Although the banking industry has had its challenges in recent years, Al Tamimi  maintains a thriving Banking &amp; Finance practice which has strengthened over  the past few years. We serve local, regional and international clients and  service a strong demand for the sophisticated services that we provide in tandem  with extensive local knowledge and experience.&nbsp; As such, our Banking &amp;  Finance practice has excellent market penetration and advises a majority of the  local and international banks and companies on their finance operations and  activities across the GCC. <br /><br />Our 30 lawyer Banking &amp; Finance practice  across our offices combines individuals with a true understanding of regional  practices and those who have extensive international experience. The practice is  truly full service, with our expertise ranging from regulation and licensing of  financial institutions, product development, transactional finance, funds, debt  capital markets, project finance and debt recovery. We also help banks be banks  with our day to day support on local law banking issues.<br /><br />The success of  our regional practice is reflected in our appointment on a number of the most  high profile transactions in the region.&nbsp;Below we provide a recent snapshot of  the deals our department has been working  on:<br /><strong><br /><br />UAE:<br /></strong></p>\r\n<ul>\r\n<li>Acted for GGICO on the successful AED3 billion restructuring of its  financial debts, which included a banking group of 27 lenders both conventional  and Islamic.</li>\r\n<li>Acting for an Abu Dhabi hospital and medical group on a syndicated Islamic  facility for a AED 500 million dividend recapitalization, which included the  structuring and implementation of various onshore and offshore companies and  nominee arrangements to off security to the financiers.</li>\r\n<li>Advising an Abu Dhabi bank on a AED 920 million Islamic facility (revolving  commodity Murabaha) provided to a group of four Abu Dhabi based companies to  finance the acquisition of maritime assets in the greater Middle East.&nbsp; The deal  involved our Dubai, Abu Dhabi and Jordan offices and required structuring of  security in favour of the bank in multiple jurisdictions in the Middle East  including in Egypt and Jordan.</li>\r\n<li>Acting for an Abu Dhabi bank with respect to a AED 490 million &ndash; Islamic  facility (Ijara and Istisna) provided to re-finance a conventional facility and  to part fund the completion of a real estate project in Dhabi.</li>\r\n<li>Acted for a Dubai bank on the AED705 million financing of a mall expansion  project in Dubai.</li>\r\n</ul>\r\n<p><strong>Jordan</strong></p>\r\n<ul>\r\n<li>Advising on the acquisition of a Renowned Credit Technology Services Company  including advising on financing and the security arrangements.&nbsp; The financing of  the deal was structured as a revolving credit facility; as well as the question  of validity of an upstream guarantee in Jordan.</li>\r\n<li>Advising on the Restructuring of a Facilities Agreement involving the  drafting and reviewing a restructuring facilities agreement provided to a major  cement corporation, and advising on the best options to structure the same.&nbsp; It  was also important to ensure enforcement of the restructuring facility in  various jurisdictions, including Bahrain, Cayman Islands and Jordan.</li>\r\n</ul>\r\n<p><strong>Iraq</strong></p>\r\n<ul>\r\n<li>Advising in relation to the first merger of two Public Listed Banks in  Iraq.&nbsp; This involved comprehensive legal due diligence in relation to banks, as  well as structuring and implementation of the merger together with coordination  between numerous authorities, including the Iraqi Central Bank, the Iraqi  Securities Commission, the Iraqi Stock Exchange, and the Companies Control  Department.</li>\r\n<li>Advising in respect of an Assignment of Guarantee issued by Iraqi Ministry  of Finance.</li>\r\n<li>Advising on reviewing and advising on a facilities arrangement and other  documentation, including issuing a legal opinion regarding the capacity,  authority, due execution and enforceability to an entity incorporated in Iraq  which is entering into a loan agreement with the client.</li>\r\n</ul>\r\n<p><strong>KSA</strong></p>\r\n<ul>\r\n<li>Advising through our Dubai and Riyadh offices the lender on a SAR 120  million Murabaha Financing being provided by for the development of a housing  complex in Riyadh, including dealing with the new Escrow regulations in  KSA.</li>\r\n<li>Advising a US based global corporation on cross border payments and  compliance with international money laundering and anti trust regulations.</li>\r\n<li>Advising a US based multi national company on the purchase, assignment  agreements and enforceability procedures on loan documentation of a vessel which  will be flagged in Singapore but working in Saudi waters.&nbsp;&nbsp;</li>\r\n<li>Advising a large Swiss based bank on credit facility arrangements, including  lending and security transactions, for Saudi domiciled persons and  entities.&nbsp;</li>\r\n</ul>\r\n<p><strong>Kuwait</strong></p>\r\n<ul>\r\n<li>Rasameel Structure Finance Company KSCC on a Shariah compliant consumer  retail program, the first of its kind in the region.&nbsp; This deal involves the  instalment for Credit Facilities, and acting as the Sub-Wakeel, in accordance  with the terms and conditions of the Master Sub-Wakala Agreement entered into  between the Company and the Wakeel.</li>\r\n<li>National Bank of Kuwait as the arrangers on behalf of the creditors. This  involved a 3 tranche debt restructuring transaction involving a Kuwaiti Dinar  conventional tranche (4 Kuwait based banks), Islamic Financing tranche (2  regional Islamic banks) and Bondholder tranche.&nbsp; Al Tamimi &amp; Company  completed the entire structure and documentation.</li>\r\n<li>Kuwait Finance House and AREF Investment Company on a Restructuring of Al  Wazzan Holding Group debt, whereby Al Wazzan was in default and posed risk to  the creditors.&nbsp; The deal consisted of multiple agreements including Murabaha and  Investment Agency Agreements with securitization and guarantees by Al Wazzan,  its sister companies and subsidiaries in order to finalize the deal.</li>\r\n</ul>\r\n<p><strong>Qatar</strong></p>\r\n<ul>\r\n<li>Qatar Energy City Holding Company on a QAR275 million term loan facility to  Energy City Development Company.&nbsp; Financing is secured by pledges over shares,  corporate guarantees and assignment of receivables and property rights in the  new city development of Lusail, Qatar.</li>\r\n<li>Qatar Development Bank and International Finance Corporation on Structuring  the Legal Content of the SMEs Online toolkit with Qatar Development Bank and  International Finance Corporation. The Toolkit provides a platform for small and  medium sized businesses to set up and develop their business. The content  includes information on getting credit Qatar, Financing the operations and  projects, employing personnel, tax aspects, getting registered and so on.&nbsp;</li>\r\n<li>Ahli United Bank on Amendment and Restatement of USD 47 Million term loan  facility to a Qatari group of companies.</li>\r\n<li>Advising a bank with regards to LMA type facility documentation and related  security interest to a major construction company in Qatar.</li>\r\n</ul>\r\n<p><strong>Key Contacts:<br /></strong><br /><strong>Husam Hourani</strong> <br />Managing Partner <br />Head of Banking &amp; Finance <br /><a href=\"mailto:h.hourani@tamimi.com\">h.hourani@tamimi.com</a></p>\r\n<p><strong>Lynette Brown</strong> <br />Partner <br />UAE<br /><a href=\"mailto:l.brown@tamimi.com\">l.brown@tamimi.com</a></p>\r\n<p><strong>Jody Glenn Waugh</strong><br />Partner <br />UAE<br /><a href=\"mailto:J.waugh@tamimi.com\">J.waugh@tamimi.com</a></p>\r\n<p><strong>Khaled Saqqaf</strong><br />Partner<br />Head of Jordan &amp; Iraq  offices<br /><a href=\"mailto:k.saqqaf@tamimi.com\">k.saqqaf@tamimi.com</a></p>\r\n<p><strong>Glenn Lovell</strong><br />Partner <br />KSA<br /><a href=\"mailto:g.lovell@tamimi.com\">g.lovell@tamimi.com</a></p>\r\n<p><strong>Alex Saleh</strong> <br />Partner<br />Head of Kuwait office<br /><a href=\"mailto:Alex.saleh@tamimi.com\">Alex.saleh@tamimi.com</a></p>\r\n<p><strong>Sami Fakhoury</strong><br />Partner<br />Qatar<br /><a href=\"mailto:s.fakhoury@tamimi.com\">s.fakhoury@tamimi.com</a></p>'),
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(84273, 4595, 'content', '<p>The department provides a full range of legal services to the insurance  industry, which includes structuring options available to allow companies to  operate in the UAE market or the Dubai International Financial Centre (&ldquo;DIFC&rdquo;),  joint venture claims and compliance advice.&nbsp; We pride ourselves on the claims  handling capability of the firm and we currently assist a number of insurers,  reinsurers, brokers and underwriters with regard to claims and advice on all  aspects of the Middle Eastern insurance industry. We act for some of the leading  regional and international institutions in the industry, including international  banks, insurers, reinsurers, brokers and intermediaries.</p>\r\n<p>Whether as court advocates or legal consultants, our specialist lawyers  have a wealth of exposure in handling the most complex disputes as they  regularly arise.&nbsp;&nbsp; We also provide alternative dispute resolution solutions and  aggressive litigation in the courts when necessary. Within and outside of the  UAE and the middle east, our lawyers have been involved in numerous mediated,  arbitrated and litigated disputes on behalf of (re)insurers/underwriters and  brokers, including some of the largest insurers and reinsurers in the  world.&nbsp;</p>\r\n<p>The firm has in-depth knowledge and extensive local and worldwide  contacts in the insurance industry since many of our lawyers have served as  in-house counsel for multinational insurance companies abroad. The firm handles  the requirements of insurance companies, brokers, underwriters and  intermediaries. We are regularly called upon to advise clients upon policies  covering every conceivable kind of risk including life, health, directors and  officers, professional liability, corporate liability, financial institutions,  electronic and computer crime, banker&rsquo;s blanket bond, public liability, product  liability, property, construction risks and employment.</p>\r\n<p>We have assisted several clients set up Insurance companies in the UAE,  as a public Shareholding Company, Foreign Branch and in the DIFC. We have  obtained for clients, two of the most recent licenses granted by the UAE  Insurance Authority and are currently involved in numerous applications in the  DIFC. We have also been at the forefront of the use of joint venture  relationships and reinsurance to assist foreign insurers in obtaining new  business in the region.</p>\r\n<p>No matter what the insurance issue, our Insurance team are sure to be  able to provide the guidance and assistance needed.</p>\r\n<p><strong>Key Contacts<br /></strong><strong></strong></p>\r\n<p><strong>Yazan Saoudi&nbsp;</strong></p>\r\n<p>Partner <br />Head of Transport &amp;  Insurance <br /><a href=\"mailto:y.saoudi@tamimi.com\">y.saoudi@tamimi.com</a></p>'),
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(84288, 4596, 'content', 'October 2012\r\n\r\n<hr />\r\n\r\nelectronic transactions such as emails are bestowed probative force provided that they can be traced to the sender’s sent items and provided that the email in question refers to the fact that it may be used relied on as evidence.\r\n\r\nThis case which supports previous Court of Cassation rulings serves as an important reminder that parties need to be wary of the contents of email correspondence which can in itself provide evidence of binding agreements between parties. The fact that parties have not physically signed an agreement is not necessarily relevant as emails can be used as conclusive evidence to support what was agreed between parties.\r\n\r\n<strong>Facts of the Case:</strong>\r\n\r\nThe Claimant in the case was a company specializing in providing marketing and public relations services. The Respondent Company was a real-estate developer.\r\n\r\nThe Claimant and the Respondent entered into an agreement on 20/11/2006 pursuant to which the Claimant agreed to provide public relations and marketing services in relation to the marketing of a  Real Estate Project owned by the Respondent. The Claimant had subcontracted some of this work to third parties and sought to include in its invoices to the Respondent the sums relating to this subcontracted work.\r\n\r\nThe amount of approximately AED 1.3M accrued and fell due and payable to the Claimant, of which the Respondent only paid AED 803,476.47. The Claimant filed an action before the Dubai Court of First Instance seeking a court order to compel the Respondent to settle the remaining sum which fell due.\r\n\r\nThe Court of First Instance appointed an expert and after having reviewed the expert’s report, held that the case should be dismissed. The expert’s report highlighted the fact that the Claimant had failed to provide the Respondent with details of invoices submitted by third parties to the Claimant. Further the report held that such third party invoices had not been authorized by the Respondent. The Court of First Instance agreed with this finding.\r\n\r\nThe Claimant appealed to the Court of Appeal which upheld the lower court’s judgment, consequently the Claimant appealed to the Court of Cassation.\r\n\r\nThe Claimant’s argument before the Court of Cassation was two fold:\r\n\r\n1- The agreement between the parties did not require that the Claimant produce evidence of third party invoices or that such invoices be authorized by the Respondent; and\r\n\r\n2- The Court of First Instance erred in its reasoning and when relying in its judgment on the expert’s report due to the fact that the expert’s report had disregarded crucial evidence submitted by the Claimant which constituted an email from the Respondent to the Claimant dated 31 March 2007 which attached a letter in which the Respondent acknowledged the debt due to the Claimant. This evidence was disregarded as the Claimant was unable to produce the original documents and was only able to produce photocopies.\r\n\r\n<strong>The Court of Cassation held:\r\n</strong>\r\n1- The Court of Cassation held that the Claimant’s first argument was groundless. Provided that the Court of First Instance was assured that the court-appointed expert had examined all relevant evidence, it was entitled to rely on the findings of the expert’s report.\r\n\r\nFurther, when investigating the relationship between the parties, the Court has the discretion to look beyond the literal wording of an agreement between the parties and to examine the intention of the parties in accordance with article 265 (2) of the UAE Civil Code. In this respect the Court held that the Claimant had previously supplied the Respondent with copies of third party invoices which included details of the work which had been executed. The Claimant had also provided the Respondent with evidence that it had paid such third parties. Accordingly, it was a matter of custom in the parties’ dealings that the Claimant would provide the Respondent with such information and therefore, the Respondent was entitled to request such information in relation to this case.\r\n\r\n2- As for the Claimant’s second argument, the court held that it was well established in the case law of the Court of Cassation that in accordance with Article 3 of the Federal Law no. 1 of 2006 relating to Electronic Transactions &amp; E-Commerce that email evidence could be relied upon. Moreover, according to Articles 2 and 4 of the aforementioned law, electronic records, documents and signatures in connection with electronic transactions and commerce have probative force provided that the details of such information are available for inspection in the electronic system of the sender and that the email refers to the means of inspection thereof.\r\n\r\nArticle 10 of the same law provides that emails or electronic signatures shall be acceptable as evidence before the Courts even if such email or signature is not original or in its original form, provided that such email or signature is the best evidence reasonably expected to be provided by the person relying on such evidence.\r\n\r\nIn light of the above, the Court of Cassation held that the lower courts had failed to take into consideration all the available evidence when rendering their judgments as the Courts had failed to take into account the email dated 31 March 2007 and accordingly the Court of Cassation overturned the previous judgments and referred the matter back to the Court of First Instance for further review.'),
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(84317, 4597, 'content', 'October 2012\r\n\r\n<hr />\r\n\r\nIn our September issue, we published “Companies and Corporate Governance - Overview”, in which we overviewed the corporate governance as a framework in the United Arab Emirates, discussed its mandatory application to public joint stock companies and touched briefly on its legal framework and components. Set out below is an analysis on the practical application of the corporate governance rules in the UAE public joint stock companies.\r\n\r\n<strong>PART ONE – BOARD MEMBERSHIP CRITERIA</strong>\r\n\r\nThe board of directors is the competent body for managing a public joint stock company and, is accountable to shareholders and regulators for the performance of the company and for breaches of the applicable laws, regulations and/or internal regulations. The corporate governance principles mandated pursuant to the ministerial decree no. 518 of 2009 (“Decree”) set out restrictions, rules and guidelines designed to ensure best managerial practices, to avoid conflicts of interest and to protect shareholders’ and stakeholders’ interests in the company.\r\n\r\nAccording to Article 95 of law no. 8 of 1984 concerning the Commercial Companies Law (“Companies Law”), the board is constituted of a number of members not less than three and not more than fifteen as determined by the articles of association of the company .\r\n\r\nIn addition, the Decree further provides that the majority of the board members must be non-executive members and, at least one third of the board members must be independent.\r\n\r\n<strong>What are “independent” and “non-executive” directors?</strong>\r\n\r\nTo answer this question, we have to first; categorize board membership into two main categories according to the nature of the appointee. Generally speaking, a board member could be either; (i) a natural person, or (ii) a corporate entity. By law, a corporate entity could be appointed as a board member provided that it is represented on the board by a natural person who is the representative of the entity.\r\n\r\nThe board membership criteria stipulated under the Decree will therefore be addressed according to these categories.\r\n\r\n<strong>Natural persons</strong>\r\n\r\nBoard members, whether natural persons or corporate entities, are classified into three sub-categories:\r\n\r\n<strong>1. Executive members:</strong>\r\n\r\nExecutive members are members responsible for the daily management of the company and, are the delegates of the board to take certain decisions determined in their assignment. They must be full time members and fully dedicated for the assigned managerial duty and may be granted a fixed salary for managerial tasks apart from the annual remuneration of the board.\r\nAny board member who is granted a fixed salary aside from the annual board remuneration determined by the general assembly will be considered an executive member. Other expenses, allowances and salaries granted to the board member as a result of a board member being appointed as a member of the board’s committees will not be considered as a fixed remuneration that would fall into executive members’ remuneration.\r\n\r\n<strong>2. Non-Executive Board Members:\r\n</strong>\r\nAs stipulated under the Decree, the majority of the board members must be non-executive members, who have adequate experience to protect the interests of the company and, to bring a diversified vision to the board and the process of decision making. The non-executive board member should be able to devote the time necessary for undertaking duties and responsibilities of their membership, and membership of the board does not constitute a conflict of interest with any other positions they hold.\r\n\r\nUnder the Decree, the roles of the chairman and the managing director should not be exercised by the same individual to avoid the potential conflict of interest between the duties of the chairman, being a non-executive member and the managing director or the manager of the company as a part of the executive team of the company.\r\n\r\nIt is worth a noting that the Decree did not address the position of the vice chairman, who replaces the chairman upon his absence, and whether the vice chairman should be elected from the executive or the non-executive members. However, applying the merits of the Decree, we would argue and recommend that the role of vice chairman must be elected from the non-executive members to maintain the same criteria applicable on the chairman being his replacement.\r\n\r\n<strong>3. Independent Board Members</strong>\r\n\r\nAs mentioned earlier, the board is constituted of at least one third of independent members. The independency criterion is related to the nature of the relationship between the board member, the company and its related parties.\r\n\r\nA board member will not be considered independent if, the member himself, his spouse or any first degree relatives have served as a member of the executive management of the company during the last two years, or has had any a relationship that resulted in financial dealings with the company, its parent company, sister company, or allied company, within the previous two years, in an amount exceeding 5% of the paid up capital of the company, or the amount AED 5 million whichever is lesser.\r\n\r\n<strong>Board members lose their independence if they:</strong>\r\n<ul>\r\n 	<li>Have been an employee of any related party to the company during the last two years;</li>\r\n 	<li>Are directly related to a company that performs consulting business or provides consulting services to the company or any of its related party;</li>\r\n 	<li>Enter into personal service contracts with the company or any of its related parties, or the executive management of the company;</li>\r\n 	<li>Are directly related to not-for-profit organization that receives a material financing or aid from the company.</li>\r\n 	<li>Are related to, or being an employee of, any external auditor or former external auditor of the company or any of its related parties; and</li>\r\n 	<li>Own by themselves or by any of their children a share in the company’s capital that exceeds 10% of the capital of the company.</li>\r\n</ul>\r\n<strong>What Happen if Independent Board Members Cease to be Independent?</strong>\r\n\r\nIf, any independent board members lose their independence, they are required to notify the company of the event giving rise to the loss of independence immediately. The matter should be referred to the board of directors by a permanent committee of the board named the Nomination and Remuneration Committee, which in return notifies the relevant director to clarify the incident that resulted in the loss of independence. The director must reply to the board of directors within 15 days from the date of notification. The board shall decide whether the director in question is independent or not in its next meeting after the director’s response, or immediately upon the lapse of the 15 days period if, no response is received from such director.\r\n\r\nIf loss of independent status of that director does not cause the number of independent members to fall below the mandatory minimum, the director could maintain their board membership.\r\n\r\nHowever, if loss of independent status reduces the board’s number of independent members below the minimum level, the board must appoint a replacement member. The appointment should be referred to the next general assembly meeting for replacement.\r\n\r\n<strong>Corporate persons:</strong>\r\n\r\nThe Decree is silent in relation to membership of corporate entities in the board of directors and, thus, makes no distinction between the provisions applicable on natural persons. Therefore, the same principles apply to corporate entities, which are directors, with respect to the executive and non-executive criterions.\r\n\r\n<strong>In the Law Update November issue:</strong>\r\n\r\nCompanies and Corporate Governance – In-Depth Analysis\r\n“Part Two –Board of Directors – Nomination and Election”'),
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(84350, 4600, 'content', '<p>The DED is the responsible government body for issuing all licenses for corporate entities or individuals who desire to carry out business in the mainland of Dubai, the territory in Dubai that falls outside the Dubai free zones.<br /><br />In an effort to facilitate doing business in Dubai, DED has been updating its rules and regulations to act as a one window service center for all licenses in the mainland which will ultimately facilitate the licensing procedures for investors.&nbsp;&nbsp;<br /><br />In fact, the DED provides remarkable and fast services compared to most of the free zones, even those which have a very well organized and friendly environment, without being excessively restrictive.&nbsp;&nbsp;&nbsp;&nbsp;<br /><br />In 2011 a new law has been issued to clear the way for entities (a free zone company or a free zone establishment) operating in free zones to open branches in Dubai.&nbsp;<br /><br />This article aims to shed light on doing business in the mainland in Dubai through an entity registered in one of the free zones in the UAE. There has been some confusion since the issuance of the Law No. 13 of 2011 which was issued by His Highness Shaikh Mohammad Bin Rashid Al Maktoum, Vice-President and Prime Minister of the UAE and Ruler of Dubai to regulate the economic activities for licenses to be issued by the DED. Some, inaccurately, thought that the law no. 13 of 2011 permitted free zone entities to do its business outside the free zone without the need to obtaining appropriate license from the DED. This is not entirely true as we will explain below.<br /><br /><strong>Opening a branch with the DED through a free zone entity</strong><br /><br />Most of the free zones in Dubai, if not all, do not permit a company registered with such free zone to do business outside the free zone in the mainland of Dubai unless such company obtains appropriate license from the local authority i.e. the DED.&nbsp;<br /><br />Moreover, according to the law no. 13 of 2011 the DED is the only responsible authority for issuing licenses outside the free zones. The said law states that no one is permitted to conduct economic activities in Dubai outside the free zones except through a corporate entity licensed by the DED. Anyone who violates the provisions of this law can be fined up to AED 100,000.&nbsp;<br />The common legal forms for free zone entities to conduct business in Dubai are civil work company, limited liability company or branch.&nbsp;<br /><br />The civil work company&nbsp; can be established to carry on professional activities and it can be owned 100% by non UAE individuals or foreign corporate bodies including entities registered in the free zones provided that the activities of the corporate bodies matches with the activities of the civil work company. A UAE local service agent will need to be appointed in the civil work company.<br /><br />In the case of a limited liability company&nbsp; a UAE national (or a company owned 100% by UAE nationals) must legally hold at least 51% of that limited liability company.&nbsp;<br />While in the case of a branch , the branch will be wholly owned by the free zone entity and it will have the same trade name as of its parent. Again a UAE local service agent will need to be appointed however, the branch will be exempted by the Ministry of Economy from appointing a local service agent if the free zone entity is owned 51% or more by UAE nationals.<br /><br />The local service agent does not have any civil responsibility or financial obligations related to the business of the branch.&nbsp; The local service agent\'s obligation is to ensure the branch is able to continue its business in Dubai but he shall not have any legal interest in the management, business, profits or assets of the branch.&nbsp;<br />&nbsp;<br /><strong>Activities that can be conducted by a free zone entity&rsquo;s branch&nbsp;</strong><br /><br />Although the Law No. 13 of 2011 is silent in terms of the activities that can be conducted by a branch in Dubai, in practice there are some limitations in this respect. The branch will also need to register itself with the Ministry of Economy and the Ministry of Economy has certain restrictions with regard to the activities that can be conducted in the UAE main land by a branch of a free zone company. For example, the Ministry of Economy will not allow a branch of a free zone company to conduct the activity of trading, commercial agencies, labor supply services or restaurants.<br /><br />For the purposes of registering a branch office of a free zone company both DED and the Ministry of Economy are involved.<br /><br />While the requirements of the DED for registering a branch seems to be less problematic. The requirements of the Ministry of economy to register a branch from a free zone entity include the following:</p>\r\n<ol>\r\n<li>Initial approval certificate and trade name certificate as issued by the DED.&nbsp;</li>\r\n<li>Copy of the corporate documents of the free zone entity including duly notarized resolution calling for opening the branch and power of attorney in favour of the branch&rsquo;s general manager.</li>\r\n<li>Copy of the passport for the general manager and the local service agent or copy of the license in case the local service agent is a corporate body.&nbsp;</li>\r\n<li>Local service agent agreement duly notarized at the notary public.</li>\r\n<li>Payment of AED 15,000 as the Ministry of Economy fees.</li>\r\n<li>Bank guarantee of AED 50,000 in favour of the Ministry of Economy.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</li>\r\n</ol>\r\n<p><strong>Conclusion:</strong><br /><br />To conclude, although the Law No. 13 clears the way for setting up branch office of free zone companies in the UAE mainland, there continue to be restrictions in context of the activities that such branches can conduct in the UAE, for example, activities such as trading, commercial agencies, labour supply services and restaurants cannot be conducted by branch office (in the UAE mainland) of a free zone company.</p>'),
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(84369, 4601, 'content', '<p>In addition to that, the judgment considers the issues related to the interruption of time limitation of cargo claims.<br /><br /><strong>Court of first Instance<br /><br /></strong>The Plaintiff filed a court case before Abu Dhabi Court of First Instance against the Carrier (First Defendant) and the two ship agents (Second and Third Defendants) asking the appointment of an expert to assess the damages sustained by him as a result of the late de-stuffing of the Cargo at the Discharging Port for the purpose of delivery. The alleged damages comprise of containers demurrage and storage fees, fright surcharges and loss of profit due to market prices fall down in addition to cost and interest.&nbsp;&nbsp;&nbsp;<br /><br />The Plaintiff is a receiver of four consignment of Cargo shipped in containers on board the carrier&rsquo;s vessels from China to Zayed port (Discharging Port) under four bills of lading as full container load (FCL). The bills of lading were issued marked as such and the agreed terms of shipment were containers yard (CY) / container freight station (CFS).<br /><br />The Plaintiff argued that he contracted with the First Defendant to ship the Cargo from China to the Discharging Port in four consignments as aforementioned in order to be delivered after de-stuffing. After the Containers were discharged, the Plaintiff repeatedly asked the Defendants to deliver the Cargo in accordance with the contract but they did not comply until February 2009 which caused the above claimed damages.<br /><br />The expert concluded that the First Defendant is liable to compensate the Plaintiff for the loss of profit and demurrage paid to the First Defendant.<br /><br />After the expert submitted his report to the court, the Plaintiff amended his claim and asked the court to order the First Defendant together with the Second and Third Defendants to jointly pay the Plaintiff the compensation amount quantified by the expert in his report.<br /><br />The First Defendant argued before the court that based on Article 484 of the Civil Transaction Law No. 5 of 1985 as amended (CTL) the claim is time barred because of the lapse of one year from the cargo delivery date without the Plaintiff taking any judicial procedures to clearly claim the alleged damages. He further argued that filing a case for the appointment of expert is not considered to be a judicial procedure for the purpose of claiming specific amount and that it is merely an action to verify a situation which may not interrupt the one year time bar.&nbsp;&nbsp;<br /><br />The court of first Instance found that the case is time barred because the main claim for damages was filed before the court after the lapse of one year and two months of the date of cargo delivery. The court pointed out that despite the fact that the claim for the appointment of an expert was filed before the elapse of time bar, such action does not interrupt the time bar because it does not fall within the meaning of the judicial procedures that interrupt the time bar as drawn by Article 484 of the CTL. Accordingly the case was dismissed.&nbsp;<br /><br />It should be noted that the court considered the date of amending the case of appointing an expert in order to include the demand for awarding damages as the date on which the main claim for damages was filed (judicial procedures for the purpose of claiming specific amount). Nevertheless, the case of appointing an expert was filed before the elapse of the time bar.<br /><br /><strong>Court of appeal&nbsp;&nbsp;</strong>&nbsp;<br /><br />The Plaintiff filed an appeal before Abu Dhabi Court of Appeal against the same Defendants on the following basis:</p>\r\n<p>1. The court of first instance judgment had wrongfully applied the law as follows:-</p>\r\n<ul>\r\n<li>The Plaintiff complied with the route drawn by the law by first resorting to the Conciliation Committees of the Court of First Instance before the lapse of the time bar pursuant to Federal Law No. 26 of 1999 in relation to Conciliation Committees as amended.&nbsp; This procedure must be followed whether the case is an appointment of expert or main claim of specific amount of money (Substantive Claim). Therefore, the time bar was interrupted.&nbsp;</li>\r\n<li>Filing the appointment of expert case during the time limitation of one year is considered to be a judicial procedure for the purpose of interrupting the time bar. On the other hand the appointment of expert case is treated by the court as Substantive Claim since the court examines the case and all documents produced to the court.</li>\r\n<li>Recording the case with the court is considered as an interrupting procedure of the time bar.</li>\r\n</ul>\r\n<p><br />2. The judgment was not issued on the basis of enough reasoning.</p>\r\n<p>The court issued a preliminary judgment appointing another expert to examine the claim and the documents and to visit the Discharging Port authorities in order to find out whether the Defendants were late in delivering the Cargo and the exact quantum of damages sustained by the Plaintiff.<br /><br />When the case was handed over to the expert the First Defendant raised the following points:</p>\r\n<ol>\r\n<li>The Discharging Port was facing congestion problem and the Port could not immediately de-stuff the containers.</li>\r\n<li>Number of containers arrived the Discharging Port on board one of the vessels owned by the First Defendant were discharged at the CY and they were de-stuffed at the CFS.&nbsp; Although, cargoes were not cleared by the Plaintiff in spite of repeated requests to do so which added to the already existing space problem at the port.</li>\r\n<li>When the rest of the containers arrived on board another vessel owned by the First Defendant, the port authorities alternatively advised that consignee provide an undertaking to the port to clear the cargo within 4 days of de-stuffing. In such case, once the undertaking is given, the Port will immediately shift the containers from the CY to the CFS in order to de-stuff them.</li>\r\n<li>At the same time the Defendants asked the Plaintiff to surrender the original bills of lading and collect the delivery orders. Neither did the Plaintiff give the undertaking nor did he surrender the bills of lading. The Plaintiff insisted that he will not surrender the bills of lading nor give the letter of undertaking and emphasized that the cargo must be de-stuffed and stored at the CFS as they are allowed storage tolerance of specific number of days, which they wanted to use. The Defendants explained to him that this would be&nbsp; impossible in the current circumstances.&nbsp;&nbsp;</li>\r\n<li>After a few months the Plaintiff finally gave the undertaking to the port and surrendered the original bills of lading. Consequently, the rest of the containers were de-stuffed by the port within the next few days.</li>\r\n<li>As a result of the Plaintiff&rsquo;s non-cooperative behavior demurrage charges were imposed on the containers and de-stuffing of the containers was delayed. Although, the First Defendant offered a considerable discount on the demurrage.</li>\r\n</ol>\r\n<p>&nbsp;<br />In this regard it is worth noting that in the normal circumstances in container operations where there is no congestion, the responsibilities of various parties involved are:<br /><br /><br /></p>\r\n<p>1.&nbsp;The Carrier is responsible to transport the cargo from the port of loading to the port of discharge.<br /><br /><br /></p>\r\n<p>2.&nbsp;The Carrier&rsquo;s agents are responsible at the port of discharge to:</p>\r\n<ul>\r\n<li>Declare the containers as CFS to the port.</li>\r\n<li>Issue the delivery order to the consignee against presentation of the original bills of lading.&nbsp;</li>\r\n</ul>\r\n<p>3.&nbsp; Port&rsquo;s responsibility is to:</p>\r\n<ul>\r\n<li>Shift the containers to the CFS.</li>\r\n<li>Arrange de-stuffing of the containers.</li>\r\n<li>Arrange delivery of the cargo to the consignee in partial or in full against processed&nbsp;customs document.</li>\r\n</ul>\r\n<p>3.&nbsp;Consignee&rsquo;s responsibility is to:</p>\r\n<ul>\r\n<li>Surrender the original Bills of lading to the Carrier&rsquo;s agent &amp; collect delivery order from him.</li>\r\n<li>Process the customs document (Bill of Entry) at the customs office and then approach the port with the processed documents for cargo delivery partially or in total.</li>\r\n</ul>\r\n<p>The Expert submitted his report to the court concluding that the First Defendant did not perform his obligation in the proper manner by delaying the cargo delivery. Accordingly, the Defendants were liable to compensate the Plaintiff for the surcharges imposed on all the receivers in the GCC countries ports including the Plaintiff for congestion problems in addition to demurrage and the storage fees. Concerning the loss of profit incurred due to the late delivery, the expert found that this a commercial risk which must be undertaken and expected by the traders.&nbsp;&nbsp;<br /><br /><strong>The court of appeal found that the delay was caused by:</strong></p>\r\n<ul>\r\n<li>The congestion at the Discharging Port;</li>\r\n<li>The wrongful act on part of the Plaintiff by not taking delivery of the cargo de-stuffed from the first number of containers discharged and by not surrendering the bills of lading and providing the letter of undertaking as requested.</li>\r\n</ul>\r\n<p>The court concluded that, had the Plaintiff taken delivery of the First Number of containers he would have had his full containers gradually de-stuffed and cargo received in a short period of time. Concerning the storage fees, the bills of lading clearly state that the receiver is responsible for storage and handling fees and thus the Defendants may not be held responsible for the same.<br /><br /><strong>Accordingly, the court of appeal held that:</strong></p>\r\n<ul>\r\n<li>The Case was not time barred because the case was filed before the Conciliation Committee during the prescribed time limitation period (1 year from the delivery date).</li>\r\n<li>The Defendants are not responsible for the delay and the damages claimed and thus the case is dismissed.</li>\r\n</ul>\r\n<p>The case was further appealed to the Cassation Court of Abu Dhabi which in turn upheld the Court of Appeal judgment.</p>'),
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(84375, 4601, 'pageSummary', 'This case is relates to the claim for damages in relation to the delivery of Cargo shipped in containers from Chinese ports to Zayed Port via Sea passage.  '),
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(84384, 4602, 'content', '<p>A board of directors of a public company is composed of 3 to 15 board members and is appointed for a period of not more than 3 years. Article 96 of the Commercial Companies Law (&ldquo;the Companies Law&rdquo;) states that appointment of board of directors is made by the annual general assembly of the company.<br /><br />The board of directors&rsquo; mandate expires at least once every three years and the annual general assembly of the company must then reelect and appoint a board of directors to succeed the board with the expired mandate.&nbsp;<br /><br />Upon the lapse of the mandate of the board of directors, the meeting agenda of the annual general assembly following the expiry of the mandate of the board of directors must include as an item of business electing the board of directors.<br /><br />Further, when the board must be elected not only does the meeting agenda of the annual general assembly change but the timings and procedures of holding the meeting will change.<br />Under articles 119 and 123 of the Companies Law, the invitation for an annual general assembly meeting which does not provide for election of the board would be published at least 21 days prior to the meeting date. However, and as stated earlier above, when nominating and electing the board of directors the timings and procedures are different. These differences are highlighted below.&nbsp;<br /><br /><strong>Nomination of the Board of Directors</strong><br /><br />Before inviting the annual general assembly meeting, a nomination process for the members of the board of directors must be initiated. Article 12 (5) of ministerial decree no. 518 of 2009, (&ldquo;the Decree&rdquo;) states:<br /><br />&ldquo;A company shall open nomination to membership of the board of directors by announcement in two daily newspapers, of which at least one newspaper is issued in Arabic. Such announcement shall clarify that the company will publish names of the candidates along with their relevant details at the sign board in the company, on its website or by any other means acceptable to the Authority at least two weeks of the in advance of the general assembly meeting and provide the Authority with a list of names of the candidates. The nomination to the membership of the board shall be kept opened for at least one month from the date of the announcement and any shareholder that meets nomination criteria pursuant to the Law and the company\'s articles of association may stand for election to the membership of the board of directors by virtue of an application filed together with his/her biography and information on the capacity in which he/she is willing to stand for election&rdquo;.<br /><br />According to the Decree, the process of electing the members of the board of directors is split into two separate parts namely nomination and election.<br /><br /><strong>Nomination</strong><br /><br />The nomination process applying to members of the board of directors must be initiated ahead of the general assembly meeting is set out below:</p>\r\n<ul>\r\n<li>Announcing the opening of the nomination process for the board of directors&rsquo; membership in daily newspapers, one of which is published in the Arabic language.</li>\r\n</ul>\r\n<p>&minus; The nomination process should be open for a period of not less than one month;</p>\r\n<p>&minus; The company must obtain the Securities and Commodities Authority (&ldquo;SCA&rdquo;) approval of the text of the announcement to be published in respect of opening the nomination process; and<br /><br />&minus; Any shareholder complying with the conditions for nomination under with Companies Law and the Articles of Association of the company may apply for the board membership by submitting an application enclosing a brief resume.</p>\r\n<ul>\r\n<li>Once the period of nomination is closed, the company must publish the names of the candidates on its website or announcement board not less than two weeks before the date of the annual general assembly.</li>\r\n<li>The published list of candidates must be communicated to the SCA and the financial market on which the company&rsquo;s securities are listed;</li>\r\n</ul>\r\n<p><br /><strong>Election</strong><br /><br />Whilst the process of nomination is in progress, the company may take the necessary steps to hold the general assembly meeting. The company may proceed with publishing the meeting invitation on the third week from opening the nomination process so that once the nomination process is complete the list can be published not less than two weeks before the date set for holding the annual general assembly meeting.<br /><br />The agenda of the annual general assembly meeting at which the board is to be elected must incorporate a specific item concerning the election of the board.&nbsp;<br />According to article 96 of the Companies Law, the election of the board of directors shall be by secret ballot. Article 12 (2)C of the Decree mandates &ldquo;cumulative voting&rdquo; for the election of board members.&nbsp;<br /><br />In defining &ldquo;cumulative voting&rdquo;, the Decree provides &ldquo;each shareholder shall have a number of votes that is equal to the number of shares he/she holds, to be applied towards voting for only one nominee to the membership of the board of directors or distributed to selected nominees; provided, however, that the number of votes given to selected nominees should not exceed the number of held votes&rdquo;<br /><br />In practice, each shareholder is given a voting card including names of the candidates to the board membership. Each shareholder is requested to cast the votes attaching to his shares for the candidate(s) of his preference, provided that the number of votes he grants to candidate(s) does not exceed the number of shares the voting shareholder holds or represents at the annual general assembly.&nbsp;<br /><br />A shareholder cannot cast his votes for a number of candidates exceeding the number required to fill the board; for example, if the board is to be constituted of 12 members and there are 20 candidates, each shareholder shall be required to choose not more than 12 members amongst whom the shareholder distribute his votes.&nbsp;<br /><br />Following completion of the voting process by the shareholder, the candidates shall be arranged in descending order according to the votes cast by shareholders. Selection of successful candidates is not purely according to the votes cast by the shareholders but is driven in part by legal requirement impose by Article 3 (2) of the Decree that at least one-third of the board shall constitute independent board members.<br /><br />In the Law Update December issue:<br />Companies and Corporate Governance &ndash; In-Depth Analysis&nbsp;<br />&ldquo;Part Three &ndash;Board of Directors &ndash; Board Committees&rdquo;</p>'),
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(84388, 4602, 'content_description', 'Following our previous articles on Companies and Corporate Governance, we set out in this article a detailed analysis for the process for nomination and election of the board of directors of a public joint stock company.\r\n'),
(84389, 4602, '_content_description', 'field_59b641c07f473'),
(84390, 4602, 'pageSummary', 'Following our previous articles on Companies and Corporate Governance, we set out in this article a detailed analysis for the process for nomination and election of the board of directors of a public joint stock company.\r\n'),
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(84403, 4603, 'content', '<p>Historically, NASDAQ Dubai Listing Rules and NASDAQ Dubai Business Rules formed the legal basis for listing and trading in securities on the Exchange.&nbsp; They set out listing eligibility criteria, prospectus requirements, prescribed membership requirements and application processes, generally governed trading activities, amongst other things.<br /><br />Since then, the legal regime of NASDAQ Dubai has undergone&nbsp; amendment as a result of the&nbsp; official list of securities of NASDAQ Dubai (&ldquo;List&rdquo;) having ceased to fall under the Exchange&rsquo;s control, and now its maintenance and supervision becoming the responsibility of the Dubai Financial Services Authority (&ldquo;DFSA&rdquo;).<br /><br />Under the existing regime, a two-stage admission process applies to issuers who want to have their securities admitted to trading on the Exchange, i.e. admission to the List by the DFSA and admission to trading by the Exchange.<br /><br /><strong>Admission Requirements<br /><br /></strong>For securities to be eligible for Admission by NASDAQ Dubai, an issuer must:<br /><br />(a)&nbsp;comply with all applicable requirements of the DFSA (including prospectus requirements, where applicable);&nbsp;<br /><br />(b)&nbsp;comply with the requirements of any other relevant regulator and any other stock exchange or trading platform on which it has securities admitted to trading;&nbsp;<br /><br />(c)&nbsp;satisfy the eligibility criteria set out under the ADSI, e.g. have at least 250 bona fide shareholders, each holding equity securities of the issuer with value of at least USD 2,000 or maintain a sufficient price formatting through the appointment of a market maker;&nbsp;<br /><br />(d)&nbsp;trade the whole class of securities to which the securities belong (as applicable);&nbsp;<br /><br />(e)&nbsp;provide holders of the securities with secure methods of recording ownership and registering changes in ownership; and&nbsp;<br /><br />(f)&nbsp;enter into such undertakings and abide by such conditions as may be required by NASDAQ Dubai and the DFSA.&nbsp;<br /><br />An issuer must ensure that all information provided to NASDAQ Dubai regarding the Admission application is in all respects complete, accurate and not misleading.&nbsp;<br /><br /><strong>Admission Process<br /><br /></strong>An issuer applying for Admission needs to submit an application pack the Exchange that shall consist of, amongst other documents, the application form, prospectus, constitutional documents and corporate approvals of the issuer.&nbsp;<br /><br />Upon review of the Admission application pack, NASDAQ Dubai will either admit the securities to trading by way of a letter or refuse to do so.<br /><br /><strong>Approval:<br /><br /></strong>Should the admission application be approved:</p>\r\n<ol>\r\n<li>.&nbsp;upon consultation with the issuer and the DFSA, the Exchange will set the admissions trading date;</li>\r\n<li>the issuer will be required to submit to the Exchange a declaration form confirming certain matters concerning the securities (e.g. the number of security holders to whom the securities have been issued);</li>\r\n<li>NASDAQ Dubai will publish its approval of the admission by way of on-line notice one (1) business day prior to admission;</li>\r\n<li>the securities will be admitted to trading; and</li>\r\n<li>on the admission day, the issuer will make a publication of the prospectus as well as any other document the Exchange deems necessary to be disclosed to the public.&nbsp;<br />Rejection:</li>\r\n</ol>\r\n<p>The application for Admission will be rejected by NASDAQ Dubai if the Exchange considers that:</p>\r\n<ol>\r\n<li>admission of the securities is likely to be detrimental to the interests of investors on NASDAQ Dubai;</li>\r\n<li>an issuer does not or will not comply with ADSI or any special condition imposed by NASDAQ Dubai; or</li>\r\n<li>trading of an issuer&rsquo;s securities may be detrimental to its orderly operation or reputation.</li>\r\n</ol>\r\n<p>In such case, the issuer may appeal the said decision to the Appeals Committee within 10 days of the service of the decision by the Exchange.&nbsp; A notice of the appeal shall also be filed with the Exchange.<br /><br />The notice of appeal must set out the name of the appellant, the decision appealed against, the grounds of appeal, the principal matters relied upon and attaching copies of any documents relied upon.<br /><br />The Appeals Committee will set the date of the hearing, giving at least fourteen (14) days notice to the appellant and the Exchange.<br /><br />Upon hearing, the Appeals Committee will issue its decision, i.e. uphold, dismiss or vary the decision of NASDAQ Dubai.&nbsp;<br /><br /><strong>Conclusion:<br /><br /></strong>Despite the challenging economic climate globally, GCC economies have continued to show a healthy growth in recent years.<br /><br />Whereas for local and regional businesses listing of their securities on NASDAQ Dubai may be a venue to access non-GCC capital, for non-GCC companies a key benefit of NASDAQ Dubai listing is access to a larger base of regional institutional and retail investors.</p>'),
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(84418, 4604, 'content', '<p><span>Notarization of the pledge contract must be a condition to the payment of the debt to the Creditor.</span><br /><br /><span>It is recommended that the pledge contract is notarized by the Kuwaiti Notary Public. Notarization of the contract is not required for the validity of the pledge, but to have the Notary Public&rsquo;s stamp of the &ldquo;writ of execution&rdquo; in favor of the creditor on the contract. This writ of execution would enable the creditor to deposit the pledge contract with the Execution Department at the Ministry of Justice for enforcement of its rights under the contract directly without a prior judgment. This would be required for enforcement of any other rights.&nbsp; The notarization of the contract would also enable the pledgee to prove that the date of the contract of the same would be certified by the Notary Public.</span><br /><br /><span>In order to notarize the pledge contract, minimal governmental fees would be applicable (e.g. KD 2 stamp for the first page of the pledge contract and KD 1 stamp for each page thereafter) for the copy of the pledge contract stamped with the writ of execution.</span><br /><br /><span>The Notary Public can only notarize documents in Arabic. In order to have the pledge contract notarized, the same must be in Arabic.&nbsp; The Notary Public does not notarize documents made in dual languages (e.g. Arabic and English).&nbsp;</span><br /><br /><span>For notarization purposes, the pledge contract must be printed by the Notary Public in Arabic on the creditor&rsquo;s letterhead (if the creditor is a company) or on the Ministry of Justice green franked papers in the event the creditor is an individual. To accelerate issues, pledgees usually provide an electronic file to the Notary Public containing the draft pledge contract.</span><br /><br /><span>Moreover, the Notary Public, when reviewing the Pledge contract and prior notarizing the same, requires certain constitutional documents from the contracting parties (creditor and debtor) to verify the capacity and the standing of the both parties. Such documents shall be (i) copies of the Articles and Memorandum of Association, (ii) copy of valid trade license, (iii) copy of authorized signatory certificate and (iv)&nbsp; copy of the signatories&rsquo; representing the creditor and debtor civil IDs.</span><br /><span>&nbsp;</span><br /><strong>B)&nbsp;Date proofing/stamping an assignment agreement<br /><br /></strong><span>Kuwaiti law allows two contracting parties to assign rights. Generally, the date stamping of an assignment agreement is needed to indicate priority if the assignor had assigned his rights in the underlying contract to more than one party.</span><br /><br /><span>In the event that the creditor/assignee executes an assignment agreement; and the underlying agreement does not contain a non-assignment clause, the underlying debtor does not need to execute the assignment agreement. To alleviate this risk of priority and establish beyond a reasonable doubt the date of assignment and corresponding priority rights, the assignee will need to walk the original assignment agreement (drafted in Arabic) along with copy of the same into the Department of Date Stamping &ndash; Ministry of Justice, which an authenticator from this Department stamps the official date on the assignment agreement. In order to date stamp the assignment agreement, minimal governmental fees would be applicable (e.g. KD 2 stamp). The date stamping is generally obtained in one day.</span><br /><br /><span>Moreover, prior to an assignment being effective, it must be properly served on the debtor under the underlying agreement. Please note that service is made by a special clerk from the Execution Department at the Ministry of Justice and not through private parties following the date-stamping of the assignment into the Execution Department of the Kuwait Courts. The Execution Department will then serve the assignment along with a notice to the debtor. Upon said service, the assignment becomes effective against the debtor.</span><br /><br /><span>In the event that two or more assignees are disputing their priority rights in the assignment, then the assignment which contains the earlier official date stamp issued by the Ministry of Justice will take priority.</span></p>'),
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(84437, 4605, 'content', '<p>By using LOL clauses, the contracting parties seek to limit their overall loss exposure to a fixed (pre-agreed) amount.&nbsp; LOL clauses can provide certainty and assist the parties in managing and allocating risk when entering into new transactions.&nbsp; The key is in ensuring that the LOL clause is enforceable under UAE law.&nbsp;<br /><br /><strong>Civil liability&nbsp;<br /><br /></strong>Civil liability under UAE law is either a matter of contract or tort.&nbsp; A tort is a civil wrong that is not contract based.&nbsp; For example, negligence is a type of tort based liability.&nbsp; Unlike tort based liability, contractual liability can be excluded or limited, subject to certain exceptions.&nbsp; The rationale behind permitting the limitation of contractual liability is that the source of this liability is the contracting parties&rsquo; consent, i.e. the contracting parties create contractual liability by entering into a contract.&nbsp; Thus, contracting parties are free to agree on certain limits to their liability.&nbsp; At least in theory.&nbsp; Under UAE law, however, LOL clauses will not always be upheld by the Courts (or Arbitral Tribunal, as the case may be) and are subject to exceptions.&nbsp; The exceptions may be consensual or statutory.<br /><br /><strong>Consensual exceptions<br /><br /></strong>As contractual liability is formed by contracting parties entering into contracts, the contracting parties may agree on a liability cap.&nbsp; If the contacting parties agree to exclude certain claims from this liability cap, such agreement would be enforceable.&nbsp; An example would be where the parties agree that a LOL clause will not apply to claims arising out of breach of confidentiality obligations or the infringement of intellectual property rights.&nbsp; In such circumstances, a breach of confidentiality claim, for example, would not be within the agreed cap and there would be no limitation on the liability of the party at fault.<br /><br /><strong>Statutory exceptions<br /><br /></strong>Statutory exceptions to the limitation of contractual liability can be found in numerous UAE laws, including for example, those laws codified in the Law of Civil Transactions (the Civil Code), environmental laws and employment laws.&nbsp; For present purpose we will only consider the exceptions expressed in the Civil Code.<br /><br /><strong>Tort based liability<br /><br /></strong>There are important differences in the tests in establishing liability in contract and tort.&nbsp; For contractual liability to apply there must be:&nbsp;</p>\r\n<ul>\r\n<li>a breach of contract by one of the parties;</li>\r\n<li>loss sustained by the other party; and</li>\r\n<li>a causal link between the breach and the loss&nbsp;</li>\r\n</ul>\r\n<p>For tort based liability (or a &ldquo;harmful acts&rdquo; using the terminology of the Civil Code) to be established, there must be:&nbsp;&nbsp;</p>\r\n<ul>\r\n<li>a breach of a duty/obligation imposed by law;</li>\r\n<li>loss sustained by a party; and</li>\r\n<li>causation between the breach and the loss&nbsp;&nbsp;&nbsp;</li>\r\n</ul>\r\n<p>The tests are similar.&nbsp; However, and as already noted, the key distinction between contract and tort based liability is that tort based liability cannot be excluded or limited.&nbsp; Article 296 of the Civil Code provides that &ldquo;any agreement purporting to provide exemption from liability for a harmful act shall be void.&rdquo;<br /><br />Although Article 296 only refers to the exemption of liability, it is beyond doubt that this rule also applies to the limitation of tort based liability.<br /><br />The inability under UAE law to limit tort based liability is particularly significant given that the scope of tort based liability is broader than contractual liability in the sense that tort based liability may give rise to both foreseeable and unforeseeable damages, whereas contractual liability does not expose a party to unforeseeable or consequential damages.&nbsp;<br /><br />The other significant difference between the contract and tort based liability is that contractual claims will be time-barred within 15 years (or within 10 years in respect of claims arising out of commercial transactions), whereas tort based claims will be time-barred within 3 years from the discovery of damage.&nbsp;<br />&nbsp;&nbsp;<br />As a general rule, a tort based claim cannot be invoked where there is a contractual relationship between the concerned parties.&nbsp; The exception would be in cases of fraud and gross breach of duty.&nbsp; Fraud or gross breach of duty amounts to a breach of legal duty which triggers the application of tort based liability, notwithstanding the existence of a contract.<br /><br /><strong>Decennial liability<br /><br /></strong>Article 880 of the Civil Code (based on our Arabic translation of the text), provides:<br /><br />&ldquo;The Engineer and the Contractor are jointly and severally liable for a period of ten years for the total or partial demolition of constructions or other permanent works erected by them, even if such destruction is due to a defect in the ground itself, and even if the Employer authorised the erection of the defective construction, unless, in this case the constructions were intended by the parties to last for less than ten years.<br /><br />The warranty imposed by the preceding paragraph extends to defects or collapse which are arising out of a defect in the ground or that the employer consented to the construction of the defective buildings.<br /><br />The period of ten years runs from the date of delivery of the works&rdquo;.<br /><br />On the basis of Article 880, both the contractor and engineer are jointly liable for a period of 10 years to compensate the employer for any total or partial collapse of the works.&nbsp; The scope of decennial liability includes (i) total collapse of the works; (ii) partial collapse of the works; and (iii) any defect which threatens the stability or safety of the work.<br /><br />In respect of the engineer&rsquo;s decennial liability, there is a distinction between where the engineer:</p>\r\n<ul>\r\n<li>produces the design and supervise the works, in which case he shall be liable for both structural defects and design defects; and</li>\r\n<li>produces the design (without supervising the works), in which case he shall be liable for design defects only as provided for in Article 881 of the Civil Code.</li>\r\n</ul>\r\n<p>Decennial liability under Article 880 is essentially strict, no fault liability.&nbsp; In other words, the employer will not have to establish fault but only that the circumstance giving rise to liability under 880 has occurred.<br /><br />Equally, the contractor and the engineer may not deny their liability under Article 880 on the basis that they committed no fault. Rather, they can only deny their liability on the basis of force majeure, the employer&rsquo;s fault or a third party&rsquo;s fault.&nbsp;<br /><br />Decennial liability is mandatory in the sense that the contracting parties cannot opt-out of Article 880.&nbsp; In this regard, Article 882 of the Civil Code provides;<br /><br />&ldquo;Any agreement tending to exclude or limit the decennial liability of the engineer and the contractor shall be void&rdquo;.&nbsp;&nbsp;<br /><br />The duration of decennial liability, 10 years, cannot be reduced but can be extended by agreement.&nbsp; The liability commences from the date of final delivery (not provisional delivery) of the works.&nbsp; Under Article 883 of the Civil Code, any claim for decennial liability must be brought within 3 years from the date of the collapse or the date of the discovery of the defect, as the case may be.<br /><br />There is limited guidance offered by the UAE Courts (to the extent any decisions might offer persuasive authority) on what type of defects fall within the scope of Article 880.&nbsp; The Federal Supreme Court has described the requirements as follows:&nbsp;<br /><br />&ldquo;Likewise, the liability of the contractor and the engineer supervising the construction of the building is restricted to any total or partial collapse, or any defects that may appear that threaten the soundness and stability of the building.&nbsp; This liability does not extend to every defect that may be discovered in the building, unless such defect threatens the soundness and stability of the building&rdquo;.<br /><br />On the latter point, only decennial liability claims would not be subject to a liability cap. Accordingly, LOL clauses should apply to claims related to defects that do not threaten the safety and stability of the building (i.e. non decennial liability claims).&nbsp;<br /><br /><strong>Adjustment of pre-agreed limit<br /><br /></strong>Article 390 of the Civil Code provides that:&nbsp;</p>\r\n<p>&ldquo;(1) &nbsp;The contracting parties may fix in advance the amount of compensation either in the contract or in a subsequent agreement, subject to the provisions of the law.</p>\r\n<p>(2) &nbsp;The judge may in all cases, upon the request of either of the parties, vary such agreement so as to make the compensation equal to the loss, and any agreement to the contrary shall be void&rdquo;.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;<br /><br />An LOL clause may be construed as an agreement to fix in advance the value of compensation.<br /><br />Article 390(2) gives the court the ultimate right, upon the request of one of the parties, to increase or decrease the amount of pre-agreed compensation in order to reflect the actual loss suffered by the other party.&nbsp; The UAE courts have certainly reduced the amount of pre-agreed compensation on the basis on Article 390(2).&nbsp; The situation is less clear when it comes to increasing the pre-agreed compensation i.e. removing the limitation.<br /><br />The official commentary on the Civil Code, issued by the UAE Ministry of Justice, provides (concerning Article 390):<br /><br />&ldquo;If the compensation is due and the same is equal to the loss sustained, then the liquidated damages agreement in question shall be upheld. However, if the due compensation is not equal to the loss sustained, the judge shall have the right, upon the request of one of the parties, to increase or decrease the amount of such compensation in order to reflect the loss. This is in line with the Shari&rsquo;ah principles under which compensation shall be equal to actual loss suffered&rdquo;.<br /><br />In principle, at least, the UAE Courts remains empowered to increase the limit of liability on the basis on Article 390(2).&nbsp;&nbsp;<br /><br /><strong>Conclusion<br /><br /></strong>LOL clauses in construction contracts in most cases will be enforced by UAE Courts (or Arbitral Tribunals applying UAE law).&nbsp; However, it is clear under UAE law that certain claims will not be subject to these clauses.&nbsp; It is obviously critical that contracting entities understand what liabilities can and cannot be limited in a contract and the circumstances in which a limit of liability clause may be unenforceable.</p>'),
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(93239, 5064, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Saad Al Doseri'),
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(93248, 5065, 'content', 'December 2014 - January 2015\r\n\r\n<hr />\r\n\r\nThis investment option has a number of advantages when compared to a traditional lease, in particular the fact that the investment is fully managed. However, a rental pool arrangement is not a simple contractual arrangement. Indeed the concept of a managed and serviced apartment, or branded residence, incorporates different, and sometimes even conflicting, interests of its stakeholders being: the branded Operator, the Developer, and the Residence Owner.\r\n\r\nWhile negotiating a rental pool arrangement, the Developer and the Operator usually require a fixed term and on occasions may state that remaining in the “rental pool” is mandatory for the Residence Owner. A mandatory rental pool gives rise to issues for both the Owner and the Operator, as under the law any Owner may, where circumstances justify the same, be entitled to withdraw its unit from the rental pool and actually reside in the unit. Conversely, if an Owner cannot rent out its unit to a third party, it may be held captive within the rental pool and obliged to accept the terms the Operator offers.\r\n\r\nIn view of such risks, the Operator may want to restrict the Developer from selling all the units in the development, and indeed may require the Developer to remain the owner of a particular number of units as a guaranteed source for the Operator’s business in future, regardless of the rental pool. In certain cases the branded residences sit alongside a Hotel component owned by the Developer, which is also a guaranteed source for the Operator’s business.\r\n\r\nIn this article we consider in more detail how the interests of all stakeholders can best be aligned. We do this in the context of the following, common rental pool schemes:\r\n<ul>\r\n 	<li>the development consists of a hotel component and branded fully furnished units for sale with a “mandatory” rental pool. The branded residences will be managed by the Operator as serviced apartments (“<em>Hotel + Serviced Apartments</em>”); or</li>\r\n 	<li>the development consists of  branded fully furnished units, part of which will be sold to private investors with a “mandatory” rental pool, another part will form a guaranteed number of units for the Operator’s management regardless of the rental pool. Sold branded residences will be managed by the Operator as serviced apartments to the extent and as long as these are kept in the rental pool (“<em>Serviced Apartments</em>”).</li>\r\n</ul>\r\n<strong>Alignment of interests</strong>\r\n\r\nIn order to create a suitable contractual structure it is important to first analyze in detail the interests of each stakeholder in the rental pool, and then to align them on an equitable and transparent basis.\r\n\r\nIn the table below we set out the relevant interests and steps that can be taken to align the stakeholder’s interest.\r\n<table class=\"MsoTableGrid\" border=\"1\" cellspacing=\"0\" cellpadding=\"0\">\r\n<tbody>\r\n<tr>\r\n<td valign=\"top\" width=\"176\"><strong><em>Operator’s interests and concerns</em></strong></td>\r\n<td valign=\"top\" width=\"135\"><strong><em>Residence Owners’ interests and concerns </em></strong></td>\r\n<td valign=\"top\" width=\"171\"><strong><em>Developer’s interests and concerns</em></strong></td>\r\n<td valign=\"top\" width=\"243\"><strong><em>Measures to be taken to accommodate all parties’ concerns  </em></strong></td>\r\n</tr>\r\n<tr>\r\n<td colspan=\"4\" valign=\"top\" width=\"725\"><strong><em> </em></strong> <strong><em>Aspect No.1: Preservation of the Operator’s right to operate and manage the property</em></strong></td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"176\">The Operator is willing to operate and manage the Serviced Apartments (forming part of the rental pool) to the maximum extent possible in order to increase the overall revenue stream and, consequently, its remuneration.</td>\r\n<td valign=\"top\" width=\"135\">The Residence Owners wish, on the one hand, to invest in a promising project with a reputed Operator, and on the other hand, to ensure the transparency of cost allocation and profit distribution.</td>\r\n<td valign=\"top\" width=\"171\">The Developer is willing to sell the branded residences on its preferred terms to the maximum extent possible, for which reason accommodation and balancing of both Operator’s and Residence Owners’ concerns is the Developer’s priority.</td>\r\n<td valign=\"top\" width=\"243\">The Operator’s right to operate and manage is ensured via: -        Management Agreement signed with the Developer/Hotel Owner; -        constitutional documents under JOP laws<a href=\"#_ftn1\">[1]</a> – the Jointly Owned Property Declaration. Also it is important to ensure transparency in relations with the Residence Owners. For this purpose acknowledgement of the Operator as the branded operator of the Serviced Apartments (to the extent and as long as the residence unit is kept in the rental pool) should be clearly stated in the lease agreement to be signed with each Residence Owner (“Lease-Back Agreement”). The transparency of cost allocation and profit distribution is ensured throughout the rental pool documentation, as stipulated below. Such overall transparency will strengthen the parties’ relations and will leave less room for possible misunderstandings and disputes.</td>\r\n</tr>\r\n<tr>\r\n<td colspan=\"4\" valign=\"top\" width=\"725\"><strong> </strong> <strong><em>Aspect No.2: Multiple participants to the rental pool structure</em></strong></td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"176\">The Operator is not willing to deal with numerous Residence Owners. Indeed the Operator is willing to deal directly and exclusively with the Developer (including, in terms of funding of working capital, the guarantees of Operator’s indemnification and protection of brand etc)</td>\r\n<td valign=\"top\" width=\"135\">The Residence Owners will be acting through an Owners’ Association as per the JOP laws. To the extent and as long as the residential unit is kept in the rental pool, the power to vote at the General Assembly of the Owners’ Association will be delegated to the Developer/Hotel Owner acting as a tenant under the Lease-Back Agreement. However, the Residence Owners should be at all times able to withdraw the unit from the rental pool if treated unfairly. In this respect the clear contractual regulation of the parties’ rights and obligations is the key to success.</td>\r\n<td valign=\"top\" width=\"171\">The Developer is willing to accommodate the Operator’s concerns.</td>\r\n<td valign=\"top\" width=\"243\">In order to comply with the JOP laws and accommodate the parties’ concerns, the Developer (or its wholly owned subsidiary) will be acting as intermediary between the Residence Owners, Owners’ Association and the Operator. In legal terms this can be achieved through the following contractual structure: -        the Developer/Hotel Owner will be a tenant of the branded residences kept in the rental pool, and will be voting on behalf of the Residence Owner at the General Assembly of the Owners’ Association;  -        the Developer/Hotel Owner or a related entity will be appointed as the Owners’ Association manager to manage the day-to-day aspects related to common areas of the branded residences sold to the Residence Owners; -        the Developer/Hotel Owner or a related entity will be appointed as the facility manager to maintain the common areas of the branded residences sold to the Residence Owners; -        the above agreements allow the Developer to subcontract such services to the Operator; -        all the above arrangements are clearly defined in the Management Agreement signed between the Developer/Hotel Owner and the Operator.</td>\r\n</tr>\r\n<tr>\r\n<td colspan=\"4\" valign=\"top\" width=\"725\"><strong><em> </em></strong> <strong><em>Aspect No.3:  Preservation of branded residences in the rental pool</em></strong></td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"176\">The Operator is willing to operate and manage the Serviced Apartments (forming part of the rental pool) to the maximum extent possible in order to increase the overall revenue stream and, consequently, its remuneration.</td>\r\n<td valign=\"top\" width=\"135\">The Residence Owner may wish to withdraw its unit from the rental pool and actually reside in the development</td>\r\n<td valign=\"top\" width=\"171\">The Developer has to create such rental pool structure, which will incentivize the Residence Owners to keep the branded residences in the rental pool.</td>\r\n<td valign=\"top\" width=\"243\">The following measures can incentivize the Residence Owners to keep the branded residences in the rental pool: -        transparent and equitable allocation of cost and expenses attributable to the Serviced Apartments and profit distribution process (as specified below); -        transparent budgeting process (as specified below); -        notification procedure in case of unilateral termination of Lease-Back Agreement by the Residence Owner (at least 6 months prior notice, but in any case effective from the 1<sup>st</sup> January of the ensuing year to ensure continuity of budgeting processes, cost allocation and profit distribution between the Residence Owners). -        Termination fee (liquidated damages amount) that shall be payable by the Residence Owner to the Developer as a tenant (to be transferred to the Operator in full amount as compensation of its loss of source of business) in case of withdrawal of the branded residence from the rental pool.</td>\r\n</tr>\r\n<tr>\r\n<td colspan=\"4\" valign=\"top\" width=\"725\"><strong><em> </em></strong> <strong><em>Aspect No.4: Control over shared facilities (spa, gym, pool etc)</em></strong><strong> </strong></td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"176\">The Operator is willing to maintain control over the shared facilities and enjoy peaceful possession and management of same in accordance with its brand standards. The Operator wishes to have exclusive power to define the level of services, prices and tariffs for using same by the guests of the Hotel and Serviced Apartments kept in a rental pool.</td>\r\n<td valign=\"top\" width=\"135\">The Residence Owners wish to have the right to avail of the shared facilities where they reside in their own branded residence for any period during calendar year as prescribed in the Lease-Back Agreement (usually up to 1 month) and in case they decide to withdraw their respective branded residences from the rental pool.</td>\r\n<td valign=\"top\" width=\"171\">The Developer has to create such rental pool structure, which will exclude the shared facilities from the Owners’ Association’s exclusive authority.</td>\r\n<td valign=\"top\" width=\"243\">Provided the same is clearly disclosed to the Residence Owners before they purchase their units, such shared facilities may be placed in the title or under the control of the Developer/Hotel Owner yet the facilities may also be available for use by the Residence Owners and the costs apportioned fairly though an easement or building management statement. Such “Common Elements” as they are termed, would be overseen by a group composed of a duly appointed representative of the Owners’ Association and the Developer/Hotel Owner.   It is important to distinguish between “Common Areas” which are controlled by the Owners’ Association and Common Elements which are in the title of the Developer/Hotel Owner and may have different rights and obligations attached.</td>\r\n</tr>\r\n<tr>\r\n<td colspan=\"4\" valign=\"top\" width=\"725\"><strong><em> </em></strong> <strong><em>Aspect No.5:  Sharing the cost of management and maintenance of the Serviced Apartments</em></strong></td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"176\">The Operator wishes to ensure that the Serviced Apartments are managed in compliance with its brand standards, and for which purpose respective costs and expenses are borne by the Residence Owners and the Developer.   After sale of the branded residences to the Residence Owners and putting them back into the rental pool, the Residence Owners shall share the operating and non-operating expenses attributable to the Serviced Apartments (including marketing, salaries of staff, replacement and repair of FF&amp;E, minor repairs and capital repairs etc).    In case the branded residence is withdrawn from the rental pool, then the Residence Owner shall share the cost of maintenance of shared facilities and common areas of the branded residences sold to the Residence Owners.</td>\r\n<td valign=\"top\" width=\"135\">The Residence Owners wish to see a transparent and equitable cost allocation.</td>\r\n<td valign=\"top\" width=\"171\">The Developer has to create such rental pool structure, which will be transparent and equitable in order to obtain RERA approval and to incentivize the investors to buy the branded residences and further keep them in the rental pool to the maximum extent possible.</td>\r\n<td valign=\"top\" width=\"243\">Allocation of operating and non-operating expenses of the Serviced Apartments (either in a form of fixed % or as % of cost apportioned pro rata to the sq.f. of each unit) shall be regulated in the Lease-Back Agreement and shall apply to the extent and as long as respective branded residence is kept by the Residence Owner in the rental pool. In addition, the Residence Owner’s obligation to share the cost of maintenance of shared facilities and common areas after withdrawal of the branded residence from the rental pool, will be regulated via the Unit Sale and Purchase Agreement, Facility Management Agreement and Building Management Statement. Each Residence Owner will be obliged to share such cost pro rata to the aggregate area of its respective unit, regardless of actual usage of shared facilities.</td>\r\n</tr>\r\n<tr>\r\n<td colspan=\"4\" valign=\"top\" width=\"725\"><strong><em> </em></strong> <strong><em>Aspect No.6:  Protection of Brand</em></strong></td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"176\">The Operator wishes to ensure that: -        its brand is fully protected from competitors; -        the Developer and the Residence Owners comply with its brand standards.</td>\r\n<td valign=\"top\" width=\"135\">The Residence Owners wish to avail of the Operator’s brand as it is one of the key prerequisites for success of the project and return on their respective investments.</td>\r\n<td valign=\"top\" width=\"171\">The Developer is willing to accommodate both parties’ concerns.</td>\r\n<td valign=\"top\" width=\"243\">As long as the branded residences are kept in the rental pool the Operator’s brand is protected to the maximum extent possible based on the Management Agreement signed with the Developer.    In order to ensure protection of the Operator’s brand in case of withdrawal of the branded residence from the rental pool, the Unit Sale and Purchase Agreement, Facility Management Agreement and Building Management Statement shall provide for the following restrictions: -        the Residence Owner is restricted from appointing an operator for management of the branded residence, which is the Operator’s competitor; -        the Residence Owner is restricted from creating competition to the Operator and thus, may not rent out the branded residence to a third party for a period of less than 1 year; -        the Residence Owner undertakes not to interfere with the Operator’s management of the rest of the Serviced Apartments and shall not in any way compromise the Operator’s brand standards.</td>\r\n</tr>\r\n<tr>\r\n<td colspan=\"4\" valign=\"top\" width=\"725\"><strong><em> </em></strong> <strong><em>Aspect No.6:  Operator’s remuneration and distribution of profit</em></strong><strong> </strong></td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"176\">The Operator wishes to ensure that it receives its remuneration on the same terms and conditions as provided in the Management Agreement signed with the Developer/Hotel Owner.</td>\r\n<td valign=\"top\" width=\"135\">Since the Residence Owners wish to avail of the Operator’s brand, they agree to pay the Operator the requested remuneration, provided, however, that the Operator maintains transparent budgeting and spending policy.</td>\r\n<td valign=\"top\" width=\"171\">The Developer is willing to accommodate both parties’ concerns.</td>\r\n<td valign=\"top\" width=\"243\">Transparency of budgeting, cost allocation and profit distribution will be regulated in the Lease-Back Agreement.   As such, the Residence Owners will be entitled to the net operating profit after deduction of all cost and expenses attributable to the Serviced Apartments, as well as deduction of Operator’s fees, less service charges for maintenance of common areas. In such a way the Operator ensures that it is getting its remuneration from the operating account before respective net profit is remitted to each Residence Owner.</td>\r\n</tr>\r\n</tbody>\r\n</table>\r\nAs one may see from the above, the rental pool arrangement is a complex structure involving different stakeholders with different and sometimes conflicting interests. In order to ensure the success of the project and protection for all participants, it is highly important to establish and disclose an effective rental pool structure with very detailed allocation of rights, obligations and remedies.\r\n<div>\r\n\r\n&nbsp;\r\n\r\n<hr size=\"1\" />\r\n\r\n<div><a href=\"#_ftnref\">[1]</a> Dubai law No.27 of 2007 “On Ownership of Jointly Owned Properties in the Emirate of Dubai” and respective RERA’s “Directions” to the JOP law</div>\r\n</div>'),
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(100668, 5473, 'content', 'September 2016\r\n\r\n<hr />\r\n<p class=\"p1\">Article 240 of the Kuwaiti Penal Law provides:</p>\r\n<p class=\"p2\"><em><span class=\"s1\">“A punishment of no more than three years of imprisonment and or a fine not exceeding 3,000 Kuwaiti Dinar shall be applied to whoever appropriates assets for himself, or dissipates assets for his benefit, or intentionally damages assets while he possesses the assets owned by another, on trust, loan, lease, mortgage, proxy or any other contract obliging him to preserve the asset and return it or use it in a specific manner for the benefit of the owner or anyone else, and to account for the said usage, or based on a legal provision or court ruling requiring him to do so.</span></em></p>\r\n<p class=\"p3\"><em><span class=\"s1\">The asset mentioned in the preceding paragraph includes any instrument establishing a right or discharging its owner of said right.”</span></em></p>\r\n<p class=\"p4\"><span class=\"s1\">According to Article 240 of the Kuwait Penal Law, a person is guilty of breach of trust if he dishonestly appropriates assets belonging to another, which he holds on trust, with the intention of permanently depriving the other of ownership. In this regard, the trustee receives the asset with the owner’s consent and for a specific purpose other than appropriating the asset. As such, the trustee would be in breach of his obligation if he involves himself in a conflict of interest situation by appropriating the asset of the owner held on trust or gaining any benefits from said asset as opposed to what was contemplated by the owner.</span></p>\r\n<p class=\"p1\"><span class=\"s1\">Based on Article 240, the crime of breach of trust can be established upon satisfying the following elements:</span></p>\r\n\r\n<ul>\r\n 	<li>Having assets that belong to another.</li>\r\n 	<li>Possessing the asset based on one of the contracts mentioned in the article.</li>\r\n 	<li>Appropriation of asset belonging to another.</li>\r\n 	<li>The intention to permanently deprive.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p7\"><span class=\"s2\"><strong> </strong></span></p>\r\n<p class=\"p1\"><span class=\"s1\"><em>Asset belongs to another:</em></span></p>\r\n<p class=\"p1\"><span class=\"s1\">It is necessary to decide whether something falls within the definition of “asset”, which includes money, moveable properties and anything with a monetary value. Article 240 makes it clear that “asset” includes documents establishing rights for its owner or discharging him from obligation. Further, the proceeds of business can fall within the definition of “asset” as it is capable of being stolen.</span></p>\r\n<p class=\"p8\"><span class=\"s1\"> </span></p>\r\n<p class=\"p1\"><span class=\"s1\"><em>Possessing the asset based on one of the contracts mentioned in Article 240:</em></span></p>\r\n<p class=\"p1\"><span class=\"s1\">Article 240 sets out the methods by which the assets must come into the possession of the trustee, as follows:-</span></p>\r\n\r\n<ul>\r\n 	<li>Trust contract, which requires the trustee to hold the assets owned by another, to act according the instructions mentioned in the trust deed and to return the asset to the owner.</li>\r\n 	<li>Loan contract, which requires the trustee to use the assets for a specified timeframe and then return the assets to the owner.</li>\r\n 	<li>Lease, which requires the trustee/lessee to keep the leased assets intact and return them to the owner without any damage, deduction or severance of any fixtures attached to the assets.</li>\r\n 	<li>Proxy, which is an arrangement with the owner by which an individual acts on the owner’s behalf within the scope of the powers and authorities conferred on him by the owner.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p4\"><span class=\"s1\">It should be noted that Article 240 provides that the trust relationship can be created by any other contracts or arrangements requiring one person to posses the asset owned by another and return the said asset to its owner, or use the said asset in a specified manner for the benefit of its owner or any other person and keep account for said usage.</span></p>\r\n<p class=\"p1\"><span class=\"s1\">Article 240 provides that the trust relationship can be created not only by contract but legal provision or court order requiring one person to possess the asset owned by another person. For example, a company’s liquidator who is appointed for the purpose of collecting in all of the assets of the company and settling all claims against the company before putting the company into dissolution.</span></p>\r\n<p class=\"p1\"><span class=\"s1\">Further, Article 240 covers the situation where the trustee has been instructed by the owner to collect monies and to account to the owner for those monies less a commission or other reward. Accordingly, if the trustee sells the owner’s goods on his behalf, the trustee may be in a fiduciary relationship with the owner in respect of the proceeds of sale.</span></p>\r\n<p class=\"p1\"><span class=\"s1\">Article 240 provides that where assets are held on trust, the persons to whom they belong would have a right to enforce the trust. Where a person receives assets from, or on account of, another, and is under an obligation to the other to retain and deal with those assets or their proceeds in a particular agreed way, the assets or proceeds shall be regarded as belonging to the other. The obligation of the trustee must be clear that he is bound to retain and deal with the asset in a particular way for the interest and benefit of the owner or any other specified person. As such, Article 240 will be satisfied where the trustee, having received money or other assets from the owner, or on account of the owner, has an obligation to the owner to preserve a fund representing the money or assets, which fund is to be maintained except so far as it may or must be dealt with “in a particular way” - that is, in the manner required by the agreement with the owner, or by transfer to the owner or at his direction.</span></p>\r\n<p class=\"p8\"><span class=\"s1\"> </span></p>\r\n<p class=\"p1\"><span class=\"s1\"><em>The intention to permanently appropriate asset belonging to another:</em></span></p>\r\n<p class=\"p1\"><span class=\"s1\">Article 240 creates trust relationship that requires the trustee to be bound to act for the benefit of another - the owner or any other person specified by the owner. In such a case, the trustee cannot allow any personal interest to conflict with his/her duty to the owner. This is because the trustee is also a fiduciary who is under an obligation to place his/her duty to another ahead of his/her own personal interest as the essential feature of the trust relationship is the vulnerability of the owner in the hands of the trustee who can damage or harm the interests of the owner.</span></p>\r\n<p class=\"p1\">In order to establish criminal liability, the appropriation of assets by the trustee must be without the consent of the owner for this element of the crime to be satisfied. An intention to appropriate the asset as distinct from merely assuming its possession is insufficient. Therefore, if the intention of the trustee was to deprive the true owner of possession for a limited time, breach of trust within the wording of Article 240 is not made out. This view was adopted by the Kuwaiti Cassation Court in the Appeal number 19 of 1992 dated 8 June 1992.</p>\r\n<p class=\"p1\"><span class=\"s1\">Based on the above, the individual would be in breach of his obligation as trustee where he/she appropriates anything forming part of the asset or dealing with it in breach of the confidence reposed in him/her. For instance, a bank teller holds the funds of customers based on trust which requires him/her to preserve the said funds. Where said teller transfers the funds to his/her bank account in circumstances of dishonesty, he/she would be in breach of trust.</span></p>\r\n<p class=\"p8\"><span class=\"s1\"> </span></p>\r\n<p class=\"p9\"><span class=\"s2\"><strong>Conclusion</strong></span></p>\r\n<p class=\"p1\">Article 240 requires the holder of assets to act for the benefit of the owner in any contract upon which a relationship of trust exists. The trustee should not allow any personal interest to conflict with the duty owed to the owner, or assume permanent entitlement to own the assets. Such an act, coupled with the requisite intention, would amount to breach of trust. In other words, the trustee is under an obligation to place the duty owed duty to the owner ahead of his own personal interest.</p>'),
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(100644, 5471, '_yoast_wpseo_metadesc', 'On 16 June 2016, Jordan decided to move forward in Economical-Judicial reform. On that date, the Integrity and Anti-Corruption Commission (“IACC”) came into force by Law No. 13 of 2016 (“IACC Law”).'),
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(100645, 5472, 'content', 'September 2016\r\n\r\n<hr />\r\n<p class=\"p1\">The IAACA was officially established following a meeting held at the UN offices in Vienna, Austria in April 2006. In Vienna, Mr. Feng, the first Secretary-General of the IAACA, along with leaders of anti-corruption authorities from several countries such as the United States, United Kingdom, Argentina, South Korea, Namibia, Pakistan and several others, drafted the statutes of the IAACA. The IAACA officially announced its establishment on 22 October 2006 in the Chinese capital of Beijing, at its first annual conference and general meeting. The IAACA was based in Beijing, China until the recent hand-over to Qatar and it has heldannual meetings and numerous other meetings in order to combat corruption.</p>\r\n<p class=\"p1\">As stated above, the IAACA was established to implement UNCAC as effectively as possible and to fight against all types of corruption in general. In order to assist with this, the IAACA set up a special task force following its fourth annual conference in Macau, China in 2010. The task force has more frequent meetings in order to work as efficiently as possible and has a work plan that it follows, which was devised with the help of the Corrupt Practices Investigation Bureau (CPIB) of Singapore.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>From China to Qatar</strong></span></p>\r\n<p class=\"p2\">Recently, on 11 May 2016, Dr. Ali Bin Fetais Al-Marri, the Attorney-General of the State of Qatar, was unanimously elected as the new president of the IAACA by the General Assembly of the UN, replacing the former president, Professor Cao Jianming of China. In practical terms, moving the organization’s headquarters means that its work and meetings will now be held in Qatar. Before his election as president, Mr. Al-Marri was already a member of the IAACA. Born in Qatar in 1965, he has an MA in Public Law from Rennes University in France and a PhD in International Law from the Sorbonne University. A very well-known and respected professional in his field, Mr. Al-Marri has vast experience of the law. He started off working for the Emiri Diwan (HH Emir’s office) as a legal researcher in 1996. Following that, he taught International Law at Qatar University. By 1998, he had worked his way up to the Head of the Legal Department at the Emiri Diwan and eventually was appointed as Attorney-General of Qatar. Al-Marri has held numerous prestigious positions throughout his career so far, including:</p>\r\n\r\n<ul>\r\n 	<li>Member, UN International Law Commission</li>\r\n 	<li>Head of the Qatar Committee</li>\r\n 	<li>Represented Qatar before the International Court of Justice (Qatar vs. Bahrain)</li>\r\n 	<li>President of the Committee preparing the Constitution of the Public Prosecution and its competences</li>\r\n 	<li>President and Vice-President of the World Summit (WSII) of Prosecutors-General, Chief Prosecutors and Attorneys-General</li>\r\n 	<li>Member, International Association of Prosecutors</li>\r\n 	<li>PhD commission member, Sorbonne University</li>\r\n 	<li>President, 6th World Forum Against Corruption</li>\r\n 	<li>President, Arab Conference of Attorneys-General, head of prosecutions and prosecutors</li>\r\n 	<li>UN Special Advocate against Corruption</li>\r\n</ul>\r\n<p class=\"p6\">Amongst its peers, Qatar has an excellent Anti-Corruption record. In an annual index released by Transparency International, Qatar was ranked 22nd in transparency out of 167 countries. The previous headquarters of the IAACA, China, ranks 83rd out of 167 countries.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Qatar’s anti-corruption initiatives</strong></span></p>\r\n<p class=\"p1\">Last year, Qatar launched a new domestic initiative aimed at weeding out graft by encouraging residents to report financial corruption in government organizations, including bribes and embezzlement of public funds. This is in addition to the existing provision in the Qatar Penal Code that criminalises the failure by a person to report a crime or intended crime, about which he has knowledge.</p>\r\n<p class=\"p1\"><span class=\"s2\">The country’s police force and judiciary have also shown a willingness to crack down on corruption, such as running a sting operation in 2014 that led to the arrest of two senior employees of a well-known company, on charges of soliciting a bribe.</span></p>\r\n<p class=\"p1\"><span class=\"s2\">Following the call of United Nations Secretary-General Ban Ki-moon to fight against corruption and to achieve all the Millennium Development goals in early December 2011, the Rule of Law and Anti- Corruption Centre was launched in Qatar the following day on 11 December 2011. Attending the launch of the centre, Secretary Ki-moon described the opening of the centre in Qatar – the first in the Middle East – as a “step forward in a collective journey of implementing the UN’s effort against corruption.” </span></p>\r\n<p class=\"p1\"><span class=\"s2\">Furthermore, in Qatar’s fight against corruption, Qatar hosted the Thirteenth United Nations Congress on Crime Prevention and Criminal Justice in April 2015. The theme and agenda of the conference had already been determined by the UN General Assembly (resolution 67/184) as “Integrating crime prevention and criminal justice into the wider United Nations agenda to address social and economic challenges and to promote the rule of law at the national and international levels, and public participation”. On the agenda was the following:</span></p>\r\n\r\n<ul>\r\n 	<li>Successes and challenges in implementing comprehensive crime prevention and criminal justice policies and strategies to promote the rule of law nationally and internationally and to support sustainable development</li>\r\n 	<li>International cooperation, including regionally, to combat transnational organized crime</li>\r\n 	<li>Comprehensive and balanced approaches to prevent and adequately respond to new and emerging forms of transnational crime</li>\r\n 	<li>National approaches to public participation in strengthening crime prevention and criminal justice</li>\r\n 	<li>Simultaneously to this congress, the Youth Congress was held, where selected students in Doha, Qatar were chosen to attend and help to come up with solutions to tackle the issues at hand.</li>\r\n</ul>\r\n<p class=\"p1\">In late 2015, the Arab Convention Against Corruption conference was held in Cairo, Egypt. Qatar is a proud member and strong supporter of the convention, as stated by officials. His Excellency the Chairman of the Administrative Control and Transparency Authority, Saad bin Ibrahim Al-Mahmoud said that the State of Qatar is fully behind all Arab and International efforts that enhance the rule of law and fight corruption, according to the Qatar News Agency. Furthermore Qatar called upon fellow Arab countries to work together – for those who have not yet joined conventions on eliminating corruption and enhancing transparency to do so.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Conclusion</strong></span></p>\r\n<p class=\"p1\"><span class=\"s2\">Qatar’s in-depth involvement with the IAACA and the efforts it has made to improve its legal and administrative systems in tackling corruption have surely contributed to it now being the president of the IAACA. The IAACA view Qatar in a positive light and have recognised its achievements to eliminate corruption. Now that the headquarters of IAACA will be in Doha, it is very likely that Qatar will experience further growth, including foreign direct investment, at an even faster pace, as the rest of the world sees that Qatar is serious about reducing corruption in this already highly-ranked state.</span></p>'),
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(100626, 5471, 'pageSummary', 'On 16 June 2016, Jordan decided to move forward in Economical-Judicial reform. On that date, the Integrity and Anti-Corruption Commission (“IACC”) came into force by Law No. 13 of 2016 (“IACC Law”). Two Authorities were merged into one, with the cancelling of the Bureau of Ombudsman Law No. 11 of 2008 and the Anti-Corruption Law No. 62 of 2006. The legislator argued the need to develop this law to establish the principles of justice and accountability and good performance in the public interest, and to ensure adherence to the principles of national integrity, and to fight corruption in its all forms and means, and to activate all values and behavioural norms in the public administration.'),
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(100607, 5470, 'content_description', 'In the five or so years following the Arab Spring, a number of countries in the Middle East have been through many changes, which have pushed their leaders to attempt to gain the trust of their people, control corruption and improve the econoamic environment. The recent drop in oil prices has further complicated matters. In this article, we look at the perceived levels of corruption in Egypt and highlight some recent developments in the Egyptian government’s fight against corruption.'),
(100608, 5470, '_content_description', 'field_59b641c07f473'),
(100609, 5470, 'pageSummary', 'In the five or so years following the Arab Spring, a number of countries in the Middle East have been through many changes, which have pushed their leaders to attempt to gain the trust of their people, control corruption and improve the econoamic environment. The recent drop in oil prices has further complicated matters. In this article, we look at the perceived levels of corruption in Egypt and highlight some recent developments in the Egyptian government’s fight against corruption.'),
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(100611, 5470, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-14/september-6/public-sector-corruption-in-egypt-recent-developments-at-a-glance.html'),
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(100619, 5470, '_yoast_wpseo_metadesc', 'Al Tamimi & Company looks at the perceived levels of corruption in Egypt and highlight some recent developments in the Egyptian government’s fight against corruption.'),
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(212319, 5457, '_edit_lock', '1525505553:1'),
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(100620, 5471, 'content', 'September 2016\r\n\r\n<hr />\r\n<p class=\"p1\">The present changes are to achieve long-term targets for consolidating national integrity in the values of official institutions, activating the governance and transparency of laws, providing equal opportunity in national institutions, and improving the management and supervision of public funds. The IACC Law has been issued to cover the faults of other previous laws. First, it is constructed to focus on the national public integrity to achieve the national public interest. Second, is to prevent suspicious acts and practices, and to control acts of corruption. Third, is to achieve the enforcement of the law, as this law has provisions for the investigation and prosecution of any corrupt act.</p>\r\n<p class=\"p1\"><span class=\"s1\">Under Article 4(j), this new Committee can prosecute anyone who commits any of the acts of corruption under the new law. The IACC receives complaints from those affected and investigates and collects evidence relating to any financial and managerial corruption.</span></p>\r\n<p class=\"p2\"><span class=\"s1\">Article 16(a) of the IACC Law sets out the acts of corruption that can be prosecuted by the IACC as follows:</span></p>\r\n\r\n<ul>\r\n 	<li>Crimes against job duties and crimes against Public Confidence and Trust in the Penal Code.</li>\r\n 	<li>Economic crimes in the sense defined in the law of Economic Crimes.</li>\r\n 	<li>Failure to declare or disclose investments, property or benefits that would lead to a conflict of interest if the applicable laws and regulations require such declaration or disclosure.</li>\r\n 	<li>All other acts or omissions that prejudice public funds.</li>\r\n 	<li>Abuse of power contrary to the provisions of law.</li>\r\n 	<li>An act by the public administrator relating to nepotism in favouring friends and relatives.</li>\r\n 	<li>The use of the information available ex-officio for their own benefits.</li>\r\n 	<li>Corruption offences relating to international conventions ratified by the Kingdom.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p5\"><span class=\"s1\">Moreover, this new law has excluded some crimes from its jurisdiction. Article 16(b) provides that the Commission does not have jurisdiction in the following:</span></p>\r\n\r\n<ul>\r\n 	<li>Disputes and complaints between individuals.</li>\r\n 	<li>Complaints within the jurisdiction of any other supervisory official body.</li>\r\n 	<li>Any disputes that are already filed before courts.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p5\"><span class=\"s1\">Article 17 creates a Prosecution Department in the judicial body to be specialised in all case referred to it from IACC. This department has well-trained prosecutors who are familiar with white collar crimes. Article 18 gives the right to the head of the IACC to seek assistance and support from any official - such as Judicial Officers, officials from other ministries, and police officers - to facilitate the commission work and investigation.</span></p>\r\n<p class=\"p1\"><span class=\"s1\">Article 23 legislates the punishments for corrupt acts committed in violation of Article 16. It states that, without prejudice to any other harsher punishment stated in other laws, anyone who is convicted of any of the corrupt acts in Article 16 will face imprisonment for not less than four months, or a fine of not less than 500 Jordanian Dinars and not more than 5,000 Jordanian Dinars.</span></p>\r\n<p class=\"p1\"><span class=\"s1\">Article 24 provides a Legal Witnesses Programme, to help witnesses and informants to submit any information that they might have to the Commission. The Commission shall provide protection for the witnesses in their places of residence, keep witnesses’ identities anonymous, and use modern technology in the process of giving their testimony. In special cases where danger exists, the Commission could offer housing for the witnesses if needed. </span></p>\r\n<p class=\"p1\"><span class=\"s1\">Article 29 states that cases regarding the collection of the proceeds derived from corruption cannot be dropped or withdraw, cannot be stopped from prosecution and cannot be exempted from punishment. Moreover, Article 30 allowed the Committee to set up a ‘Reconciliations Account’ at the Central Bank, which is allocated to save money and the benefits derived from acts of corruption, which have been recovered or seized, until such amounts are delivering to their rightful owners.</span></p>\r\n<p class=\"p1\"><span class=\"s1\">This law was issued to achieve transparency in the public sector, and to establish a centralised unit that could have control over those white collar crimes which could challenge the improvements and the reforms adopted by the government. It should also motivate foreign investors to take into consideration that Jordan is an attractive hub for future enterprises in the Middle East, since Jordan is located in the heart of the Middle East, and could be considered as a safe area compared with some of its neighbouring countries.</span></p>'),
(100621, 5471, '_content', 'field_59b649b5c8b2b'),
(100603, 5470, 'content', 'September 2016\r\n\r\n<hr />\r\n<p class=\"p1\"><strong>The perception of corruption</strong></p>\r\n<p class=\"p1\"><span class=\"s1\">Based on the Transparency International Global Corruption Barometer 2016 (“Survey”), 61% of the citizens in the Middle East and North Africa perceived an increase in corruption during 2015.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> However, the Transparency International Corruption Perceptions Index (“CPI”) 2015 has assessed 168 countries in order to measure the perceived levels of public sector corruption worldwide. Accordingly, Egypt’s score is 36 on a scale of 0 (perceived as highly corrupt) to 100 (perceived as very clean) which determines Egypt’s ranking as 88th out of 168 countries.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> Corruption in the public sector takes several forms. According to the Survey, 50% of the Egyptian public service users paid bribes during 2015 in order to have a service carried out although they were legally entitled to receive the service (e.g. health services). Payments for this type of corruption are often known as facilitation payments or grease payments.</span></p>\r\n<p class=\"p2\"><span class=\"s1\"> </span></p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>Recent developments</strong></span></p>\r\n<p class=\"p1\"><span class=\"s1\">The following points shed some light on recent developments that demonstrate Egypt’s appetite to reach a zero tolerance policy regarding corruption.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"><em>Conviction of former Agriculture Minister</em></span></p>\r\n<p class=\"p1\"><span class=\"s1\">Grand corruption may exist in Egypt in the form of abuse of power and bribery at the level of high governmental officials abusing their positions in order to grant permits or to secure contracts with governmental entities. As an example of this, the former Agriculture Minister, Salah Helal, was arrested in September 2015 on corruption charges which were followed by the resignation of the entire Council of Ministers. In April 2016, Mr. Helal was sentenced to ten years’ imprisonment and a fine of EGP1 million (approximately US$112,630).</span></p>\r\n<p class=\"p1\"><span class=\"s1\"><em>New Civil Service Law</em></span></p>\r\n<p class=\"p1\"><span class=\"s1\">Nepotism or “wasta” is a manifest type of grand corruption in Egypt. It is a type of favouritism based on acquaintances and familiar relationships whereby a public official exploits his or her power in providing recruitment in the public sector or a benefit in favour of a family member or friend. Accordingly, Law No. 18 of 2015 concerning the Civil Service was introduced by Presidential Decree, with the aim of fighting corruption and laxity in the public sector by, for example, determining promotion based on employees’ qualification rather than seniority, setting an age of 50 for retirement, extending the probation period for newly hired employees, introducing the right to terminate unqualified employees upon notice and proposing a new structure for wages. However, the Egyptian Parliament rejected this new law in January 2016. A new draft has been adopted by the Parliament and is currently under review.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"><em>New Anti-Corruption Chief Appointed at the Central Auditing Organisation</em></span></p>\r\n<p class=\"p1\"><span class=\"s1\">The Central Auditing Organisation (“CAO”) is one of the principal anti-corruption authorities in Egypt. The CAO was established pursuant to Law No.129 of 1964 as an independent authority under the auspices of the President. The CAO Law was subject to many amendments throughout the years. Pursuant to the latest amendment of 2015, the President is empowered to dismiss the head of the CAO in certain prescribed circumstances. The role of the CAO is to oversee the funds of the state and the public sector and to collaborate with the Parliament to implement its auditing role.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> The CAO has seen many developments during the past year. In 2015, Hisham Geneina, the former Head of the CAO, publicly announced that the level of government corruption reached EGP600 billion (approximately $76 billion) between 2012 and 2015. Subsequently, the President constituted a fact-finding inter-ministerial committee headed by the chief of the Administrative Control Authority in order to investigate Geneina’s allegations.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> The fact-finding committee issued a report that refuted Geneina’s claims and can be summarised in the following five points:</span></p>\r\n\r\n<ul>\r\n 	<li>Geneina’s claims are misleading and significantly overestimate the extent of corruption.</li>\r\n 	<li>The claims are fabricated since they included events occurring ten years ago and which were announced as if they took place during 2015.</li>\r\n 	<li>They intentionally omitted the decisions and investigations that were conducted by the public and administrative prosecution with respect to certain proven incidents.</li>\r\n 	<li>They turned positive aspects into negative ones through misusing figures and policies.</li>\r\n 	<li>They abused the use of the term “corruption” due to generalisation and the confusion between facts and procedures.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p1\"><span class=\"s1\">Consequently, in March 2016 Geneina was dismissed by a Presidential Decree and prosecuted for perpetrating the offence of spreading false information and disturbing social peace. Further, the Parliament approved the President’s decision to appoint Hesham Badawy as the new Head of the CAO. Badawy was the State Security Prosecutor-General from 2005 to 2012 and was then appointed as the Head of the Cairo Appeal Court. </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> On 28 July 2016, Geneina was given a one year suspended prison sentence. However, the judgement was challenged and it will be subject to the Misdemeanour Court of Appeal’s review in September 2016. </span></p>\r\n<p class=\"p2\"><span class=\"s1\"> </span><em>Reconciliation: Egypt turns over a New Leaf </em></p>\r\n<p class=\"p1\"><span class=\"s1\">In 2015, newly-enacted laws now offer an opportunity for reconciliation with businessmen accused of corruption. Law No. 16 of 2015 amending the Criminal Procedures Code and Law No. 97 of 2015 amending the Illicit Gain Law stipulates that whoever (or his family or heirs) is charged with making an illicit gain or embezzlement of public funds is entitled to request reconciliation during the investigations conducted by the Illicit Gains Authority. Reconciliation entails the return of the amounts illicitly obtained and a fine of the same amount. The reconciliation decision shall be final and irrevocable. Moreover, the criminal action shall be terminated upon the completion of reconciliation.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> These laws have encouraged fugitive businessmen to request reconciliation. Indeed, many cases have been settled through reconciliation and other requests are still under review. The most recent reconciliation was finalised in August 2016, with Hussein Salem a tycoon during Mubarak’s regime. Salem was accused of making illicit gains, embezzlement and corruption. He was sentenced in <em>absentia</em> with respect to some accusations and was acquitted of others. The Head of the Illicit Gain Authority has announced in a press conference that reconciliation was finalised with Salem, who forfeited 75% of his wealth, equal to EGP5,341,850.50 (approximately US$601,668).</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> It is worth mentioning that reconciliation with the victim or the relevant public entity as a ground for extinction of criminal action is a well-established trend under Egyptian law and the number of criminal offences affected by this procedure has grown throughout the last two decades. By way of example, Article 18bis of Law No. 174 of 1998 amending the Criminal Procedures Code offered reconciliation for contraventions and misdemeanours. The recent laws referred to above merely extended the reconciliation regime to certain felonies related to corruption and public funds. Here, the Egyptian legislator appears to have been influenced by the plea bargain regime without implementing it.</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=\"p2\">In a nutshell, although corruption remains a major challenge in Egypt, it appears to be regressing and the government is certainly making serious efforts to reduce it. Our view is supported by the recent developments highlighted above and the recent CPI rankings, which show Egypt improving in the rankings each year.</p>'),
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(100602, 5469, '_yoast_wpseo_metadesc', 'Al Tamimi & Company considers an interesting example of a case that our Financial Crime team handled, which highlights that financial institutions are especially vulnerable to attacks from cyber criminals, and asks what can be done to minimise the risk of a cyber attack.'),
(212332, 5464, '_yoast_wpseo_metadesc', 'The slowdown in the UAE economy has resulted in a corresponding slowdown in loan growth for the UAE banks and some debt delinquencies, especially in the SME market, and that has lead in some cases to a drop in bank profits as a result of increased bad debt provisions.'),
(100585, 5469, '_content', 'field_59b649b5c8b2b'),
(100586, 5469, 'lawUpdateArticleMonth', '5452'),
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(100588, 5469, 'content_description', 'Criminals will generally not commit armed robbery at a branch of a bank these days, when they can hack into emails and access bank accounts from the relative comfort, safety and anonymity of their computer. Law enforcement agencies and consultancy companies around the world report that incidents of cybercrime are on the rise. Although statistics are not readily available, there is no reason to think that the UAE is an exception to this trend and this is borne out by our own experience of acting for clients in such matters.\r\n\r\n'),
(100589, 5469, '_content_description', 'field_59b641c07f473'),
(100590, 5469, 'pageSummary', 'Criminals will generally not commit armed robbery at a branch of a bank these days, when they can hack into emails and access bank accounts from the relative comfort, safety and anonymity of their computer. Law enforcement agencies and consultancy companies around the world report that incidents of cybercrime are on the rise. Although statistics are not readily available, there is no reason to think that the UAE is an exception to this trend and this is borne out by our own experience of acting for clients in such matters.'),
(100591, 5469, '_pageSummary', 'field_59e59b307dec8'),
(100592, 5469, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-14/september-6/the-fight-against-cybercrime.html'),
(100593, 5469, '_currentURL', 'field_59d35123ab1e7'),
(100594, 5469, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Andrew Hudson'),
(100595, 5469, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(100596, 5469, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'a.hudson@tamimi.com'),
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(100584, 5469, 'content', 'September 2016\r\n\r\n<hr />\r\n<p class=\"p1\">This article considers an interesting example of a case that our Financial Crime team handled, which highlights that financial institutions are especially vulnerable to attacks from cyber criminals, and asks what can be done to minimise the risk of a cyber attack.</p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>Background</strong></span></p>\r\n<p class=\"p1\"><span class=\"s1\">Our client is a global bank. An employee in the bank’s Dubai branch (in the interests of anonymity for our client, we will refer to the culprit as “TC“) was able to commit acts amounting to cybercrime despite the bank’s security procedures. The discovery of the employee’s acts led the bank to file a criminal complaint with the Public Prosecutor in Dubai and the initiation of criminal court proceedings against TC, resulting in his conviction.</span></p>\r\n<p class=\"p1\">TC accessed confidential client information through the bank’s information system. Although he could legitimately access the system, he had no work-related purpose to access the information relating to these particular clients. He searched for high net worth individuals, including apparently famous footballers, and used his personal iPhone to take pictures of the data on the screen. The information that he copied included names, internal customer numbers, personal telephone numbers, email addresses and total assets of each client under management. He then offered this information to third parties on the ‘Dark Web’ to use for illegal means such as fraud, in return for payment. Dark Web is a term used to describe a portion of the Internet that is accessible only by using networking software that makes it difficult to trace the users, and which allows anonymous online activity, for both legitimate and illegitimate purposes.</p>\r\n<p class=\"p1\"><span class=\"s1\"> As is common among major financial institutions, the bank gathers and shares intelligence from the Dark Web. Intelligence gatherers acting on behalf of the bank saw the information that TC had copied being discussed and offered for sale in a Dark Web marketplace called AlphaBay. The internal investigations and compliance team at the bank was able to use the bank’s internal audit logs to determine the identity of the employee who had searched for these customers. They traced the searches to TC’s unique user ID in the Dubai branch. Several interviews were conducted with TC, during which, and faced with the evidence against him, he admitted that he had accessed the bank’s information system beyond his authority and then offered the copied information for sale to third parties who he knew intended to use it for fraudulent purposes.</span></p>\r\n<p class=\"p1\">The bank duly reported the incident to the relevant authorities in the various jurisdictions in which it is regulated. This included a report to the UAE Central Bank, which instructed the bank to file a complaint with the Dubai Police.</p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>Criminal complaint</strong></span></p>\r\n<p class=\"p1\">The role of Al Tamimi’s Financial Crime Team was to draft and file the criminal complaint on behalf of the bank. We relied on Article 379 of UAE Federal Law No. 3 of 1987 as amended (“Penal Code”) and Article 2 of UAE Federal Law No. 5 of 2012 (“Cybercrime Law”).</p>\r\n<p class=\"p1\">Under Article 379 of the Penal Code, where a person is entrusted with confidential information due to his employment or other circumstances and he discloses or uses that information for his or another’s advantage, he will be guilty of an offence and subject to a penalty of imprisonment for at least one year and a fine of at least AED20,000.</p>\r\n<p class=\"p1\"><span class=\"s1\"> Article 2(1) of the Cybercrime Law provides that, if a person enters any electronic system without permission or exceeds his authorised limits, he will be sentenced to imprisonment and a fine of between AED100,000 and AED300,000. The penalty is increased if, whilst accessing the system, the person deletes, discloses, damages, changes, copies or publishes any information in or from the system. In such aggravating circumstances, the punishment will be imprisonment for at least six months and a fine of between AED150,000 and AED750,000. The offence is further aggravated if the subject matter of these actions was personal information, with the punishment being elevated to imprisonment for at least one year and a fine of between AED250,000 and AED1,000,000. Additionally, per Article 42 of the Cybercrime Law, if a non-UAE citizen commits any offence under the Cybercrime Law, the court must impose an order for the person to be deported after the punishment has been completed.</span></p>\r\n<p class=\"p4\"><span class=\"s2\"><strong> </strong></span></p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>Judgment</strong></span></p>\r\n<p class=\"p1\"><span class=\"s1\">The public prosecution and the court were convinced with the evidence provided and the criminal complaint drafted by Al Tamimi &amp; Co. The evidence in this case illustrated that TC had exceeded his authority when he used the bank’s information system to copy and disclose personal information with the intent to receive money in return for the provision of such information. TC was indicted and, at the first Court hearing, sentenced to imprisonment for one year along with a fine of AED500,000, which will be followed by deportation. He immediately appealed this decision and the matter is currently ongoing.</span></p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>The fight against cyber crime</strong></span></p>\r\n<p class=\"p1\">Cybercrime is a real phenomenon with very real consequences. In this case, the bank was able to prevent the frauds that inevitably would have been committed by the eventual recipients of the confidential information that TC copied and disclosed. However, this was due to the sighting of the information by intelligence gatherers infiltrating the Dark Web on behalf of the bank and this information could easily have been missed. It is likely that the bank would then have faced claims from its customers as well as potentially suffering from negative publicity, on top of regulatory enforcement action.</p>\r\n<p class=\"p1\">In a world where the number of of cyber attacks is increasing and, due to the sophistication of organised criminal gangs and the rapid evolution of technological tools, a 100% security record is unachievable, what can financial institutions and others do to minimise the risk that they will be the next victim of cybercrime?</p>\r\n<p class=\"p1\"><em>Take the threat seriously</em></p>\r\n<p class=\"p1\">Cybercrime should be a boardroom issue. The board should be engaged in the issue and sufficient resources should be allocated for a dedicated team to strategise and implement programmes that are relevant for the activities and profile of the business and its exposure. Continuous investment in and development of defence systems should be encouraged and these systems should be tested to ensure that they stand up to the latest known technical threats.</p>\r\n<p class=\"p1\"><em>KYE - Know your employee</em></p>\r\n<p class=\"p1\"><span class=\"s1\">Anyone familiar with anti-money laundering processes is well-aware of the term ‘Know Your Customer’ (KYC) as part of the risk-based approach to doing business and preventing money laundering. As the major source of cyber compromises are reportedly insiders or former staff members, it is suggested that a new term should become just as familiar to boards, compliance officers and IT staff. The concept of ‘Know Your Employee’ (KYE) would require businesses to undertake a risk assessment of their workforce in the context of cyber security.</span></p>\r\n<p class=\"p1\"><em>Train your staff</em></p>\r\n<p class=\"p1\"><span class=\"s1\">Although employees may be cited as the weak link in a company’s data system, it is certainly not always the case that employees are knowingly involved in violations of information security. It is important that adequate and ongoing training is given to relevant members of the workforce, so that they can consciously and defensively act in the best interests of the business.</span></p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>What can government do?</strong></span></p>\r\n<p class=\"p1\"><em>Respond</em></p>\r\n<p class=\"p1\">The relevant authorities must be capable, technically and financially, of responding to reports of cybercrime. They should then use these capabilities to respond effectively, so as to deter cybercriminals from operating in the jurisdiction. If there is evidence of the authorities acting, cybercriminals may well look elsewhere for a lower risk option.</p>\r\n<p class=\"p1\"><em>Share Information</em></p>\r\n<p class=\"p1\">Given the global nature of cybercrime, it is vital that governments share information with each other, which also means obtaining information from the private sector. In doing so, it should be made clear that no civil or criminal action will result against information providers, if done in accordance with established criteria and standards.</p>'),
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(100565, 5468, 'content_description', 'With reference to the legislation in the UAE and the judgments of the Court of Cassation in the Emirate of Dubai, a company may be defined as a contract by which two or more persons contribute a share of money or work to an economic project, the profit or loss of which they share. The interests of bona fide creditors and investors - who are dealing with the company in the belief that it is a genuine company, that the information contained in the company’s records is true and accurate, and who have either advanced credit to or invested their money in it as a result – must be protected. This article considers a provision of the UAE Federal Law No. 2 of 2015 concerning Commercial Companies (“Companies Law”), which aims to provide such protection and punish those who violate its terms.'),
(100566, 5468, '_content_description', 'field_59b641c07f473'),
(100567, 5468, 'pageSummary', 'With reference to the legislation in the UAE and the judgments of the Court of Cassation in the Emirate of Dubai, a company may be defined as a contract by which two or more persons contribute a share of money or work to an economic project, the profit or loss of which they share. The interests of bona fide creditors and investors - who are dealing with the company in the belief that it is a genuine company, that the information contained in the company’s records is true and accurate, and who have either advanced credit to or invested their money in it as a result – must be protected. This article considers a provision of the UAE Federal Law No. 2 of 2015 concerning Commercial Companies (“Companies Law”), which aims to provide such protection and punish those who violate its terms.'),
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(214233, 5468, 'lawUpdateArticleNoWriters_1_lawUpdateAuthorName', 'Ahmed Abdulshafe'),
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(100575, 5468, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Sharif Jamous'),
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(100546, 5467, 'content_description', 'Financial crime is a distressing experience for its victims, even if those victims happen to be government entities or large financial institutions.'),
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(100548, 5467, 'pageSummary', 'Financial crime is a distressing experience for its victims, even if those victims happen to be government entities or large financial institutions.'),
(100549, 5467, '_pageSummary', 'field_59e59b307dec8'),
(100550, 5467, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-14/september-6/dubai-laws-to-assist-victims-of-financial-fraud.html'),
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(100560, 5467, '_yoast_wpseo_metadesc', 'Financial crime is a distressing experience for its victims, even if those victims happen to be government entities or large financial institutions.'),
(100561, 5468, 'content', 'September 2016\r\n\r\n<hr />\r\n<p class=\"p1\"><strong>The crime of providing false information</strong></p>\r\n<p class=\"p1\"><span class=\"s1\">Article 361 of the Companies Law criminalises the provision of false information and states:</span></p>\r\n<p class=\"p4\"><span class=\"s1\">“<em>A penalty of imprisonment ranging from 6 months to 3 years &amp; or a fine between AED200,000 and AED1,000,000 shall apply for deliberately inserting in the memorandum or articles of association of a Company or in a share or bond prospectus or in any other Company documents, any information that is false or contrary to this Law. The penalty shall also apply for knowingly signing or circulating such documents despite those facts.</em>”</span></p>\r\n<p class=\"p1\"><span class=\"s1\">Article 361 is an intentional crime. This means that the offence requires the presence of premeditation. If the act was done by mistake, or in ignorance, the perpetrator will not then be criminally liable. Given the seriousness of the offence, and that it is considered to be against public order, reconciliation between the offender and an adversely-affected party is not possible for this offence.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> By reference to two judgments issued by Dubai Court of Cassation, there are two essential rules to note in relation to Article 361:</span></p>\r\n\r\n<ul>\r\n 	<li>It is only possible to prove that a contract relating to the conditions in a company’s articles of association is a sham, by the submission of written (not oral) evidence (Dubai Court of Cassation Dated 27-01-2009: Civil Cassation No. 2008/212 and No. 2008/226).</li>\r\n 	<li>The ‘conclusive oath’ cannot be taken to prove the contrary of information contained in the company’s articles of association (Dubai Court of Cassation Dated 31-10-1999: Cassation No. 1999/149 and No. 1999/153).</li>\r\n</ul>\r\n<p class=\"p1\"><span class=\"s1\">For a company with limited liability, at foundation, all shares - whether in cash or in kind - must be paid in full and cash shares must be deposited in a bank in the UAE. As a result of a false statement relating to the actual shareholding of the partners to an LLC, the company itself would be void (Dubai Court of Cassation Dated 13-04-2010: Commercial Cassation No. 2010/46 and No. 2010/48). If false information is given that does not go so far as resulting in the company becoming void, the company itself may bear criminal liability for statements made on its behalf or for its account, in accordance with the corporate criminal liability provision of the Federal Penal Code (Article 65).</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> The scope of Article 361 is not limited to what is stated in the articles or records of a limited liability company, but extends to include joint-stock companies and partnerships limited by shares. As the capital formation of these two types of companies are by way of an invitation to subscribe and the issuing of stock, the aim of imposing such obligations and punishments regarding the accuracy of the information in the prospectus, is to protect the audience of subscribers. If the prospectus contains false information, the individuals who inserted the false information will be criminally liable and, again, the company may also bear corporate criminal liability under Article 65 of the UAE Federal Penal Code. As the legal form of the establishment of joint stock companies is based on the prospectus, the will of the subscriber should be free of any defect or disadvantages, such as an error or fraud.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> The main goals of Article 361, beyond criminalising the act of providing false information, are to ensure the accurate evaluation of these companies and their shares, and to make sure that the company’s capital is real to protect the shareholders (in cash). It also aims to prevent the shareholders (in kind) from getting more than is owed to them or from taking false profits, as well as to prevent shareholders from getting a number of shares in the company that is not greater than their shares in kind in the capital. This protects the interests of creditors, because maintaining the capital of the company means protecting creditors’ security.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> Where the members of the board of directors or some of them sign a prospectus regarding increasing the share capital, the prospectus will be accompanied by a report issued by an auditor, in order to check the validity of the information contained therein and its conformity with the provisions of the law. If the information contained in the prospectus was incorrect, the managing director or the chairman of the board directors will be criminally responsible. The auditor may also bear criminal responsibility, in case the information contained in the report was incorrect, because confirming the accuracy of such information is at the core of his duties.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> It is not necessary that all the information contained in the prospectus is incorrect. It will suffice if the false information is considered sufficient to diminish the reliability of the prospectus, so that if all the information is correct except for one statement against the law, it may be enough to complete the commission of the crime.</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\">The act of providing false information in company documents creates an unsafe environment for creditors and investors, and undermines public confidence in the economy. It is, therefore, a serious criminal offence that could lead to imprisonment for anyone who deliberately undertakes such an act, and financial penalties against companies for whose account such acts are undertaken. By criminalising the provision of false information in company documents, the law aims to provide a stable environment for commercial transactions - where creditors and investors are comfortable to act upon the information presented to them - and to foster an economy in which the public can have real confidence.</span></p>'),
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(100522, 5466, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-14/september-6/reasonable-ignorance-of-the-law-may-be-an-excuse.html'),
(100523, 5466, '_currentURL', 'field_59d35123ab1e7'),
(100524, 5466, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Andrew Hudson'),
(100525, 5466, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(100526, 5466, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'a.hudson@tamimi.com'),
(100527, 5466, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'field_59e59afcd15de'),
(100528, 5466, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', 'Dubai, UAE'),
(100529, 5466, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', 'field_59e59b05d15df'),
(100530, 5466, 'lawUpdateArticleNoWriters_1_lawUpdateAuthorName', 'Sharif Jamous'),
(100531, 5466, '_lawUpdateArticleNoWriters_1_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(100532, 5466, 'lawUpdateArticleNoWriters_1_lawUpdateAuthorEmail', 's.jamous@tamimi.com'),
(100533, 5466, '_lawUpdateArticleNoWriters_1_lawUpdateAuthorEmail', 'field_59e59afcd15de'),
(100534, 5466, 'lawUpdateArticleNoWriters_1_lawUpdateAuthorLocation', 'Dubai, UAE'),
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(100542, 5467, 'content', 'September 2016\r\n\r\n<hr />\r\n<p class=\"p1\">Whilst the State can seek to bring the perpetrators to justice, for the victims, punishment of those convicted of crime is only one element of their quest for justice. The other element is a desire to be restored to the position they were in prior to the commission of the offence. The path to restitution is a long and often difficult one. The perpetrators of financial crime, especially those who have sufficient experience of the financial sector will have taken safeguards to not only avoid detection, but in the event of detection to prevent the State from discovering where the criminal proceeds have been hidden.</p>\r\n<p class=\"p1\">Unlike the common law jurisdictions such as the UK, civil law jurisdictions including the UAE allow the victims of crime to participate directly in criminal proceedings and seek compensation for the loss or damage they have suffered. Article 22 of the Federal Law No.35 of 1992 as amended (“Criminal Procedures Code”), states that “<em>those how have suffered a direct loss as a consequence of the crime are entitled to file a civil claim against the Accused, during the evidence gathering, the investigation stages, or at any stage before the criminal court prior to the completion of closing submissions…</em>”</p>\r\n<p class=\"p1\">In theory, the criminal court order the convicted offender to fully compensate the victim for the loss and damages caused by the accused. In practice, the criminal courts on conviction and sentence transfers the civil claim to the civil courts in accordance with article 26 of the Criminal Procedures Code. However, the fact of the conviction allows the civil court to assume liability and the only remaining issue for the civil court to decide is the quantum of damages. This task of the civil court is often a formality and the civil proceedings are often much less time consuming and costly. More often than not the criminal court would have also decided the value of the offence and the loss caused to the victim, therefore the primary task for the civil courts will be an endorsement judgment of that amount and enforcement.</p>\r\n<p class=\"p1\"><span class=\"s1\"> The biggest challenge facing the victims of financial crimes such as government entities and companies that suffer loss as a result of fraud, is not obtaining a conviction. The Prosecution departments across the UAE have significant and world class capability of brining the offenders to justice. The challenge for the victims is often in enforcement of their judgments and obtaining restitution. </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> By its very nature financial crime is committed by those who seek to unjustly enrich themselves. Those who do commit fraud rarely decide to voluntarily return the proceeds of their crime. In the vast majority of cases the proceeds of any fraud would have long disappeared by the time the crime is discovered. Therefore by the time of enforcement, even if the offender had not spent the proceeds, he would have ensured that they have been hidden through a maze of companies and overseas jurisdictions. </span></p>\r\n<p class=\"p1\">The challenge of asset-tracing and restitution is one from which every Legal system suffers to a greater or lesser extent including the UAE. What made matters more challenging in the UAE was that up to 2009, with the exception of crimes involving public funds victims of fraud seeking restitution had no option other than to resort to the Civil Procedures Code. That law had its own limitation which is illustrated below.</p>\r\n<p class=\"p1\">As is often the case, the only real option facing a bank or corporation that successfully obtains a conviction and civil judgment against one of its expatriate employees for embezzling millions of dollars to an unknown foreign jurisdiction with no intention of paying it back, was to seek to imprison him under the enforcement procedures set out in Articles 324 to 330 of the Civil Procedures Code. Therefore, the stark choice for them was either to imprison the fraudster for a further period of time under Article 324, or to ban him from travel under Article 329. Both those provisions have their shortcomings. Imprisonment under Article 324 is limited to a maximum of 3 years. Even then, if the convicted fraudster is resident in the UAE, he cannot be imprisoned for more than 6 months at any given time, and must be released for a period of 90 days before commencing his second period of 6 months. In case of a fraudster who has the benefit of few million dollars kept in a foreign jurisdiction, 6 months at any given time in prisons whose conditions are often far better than their homes in their countries of origin is not a sufficient a deterrent to make them cooperate by returning the stolen funds. Nor is a travel ban in circumstances where the fraudsters have ready access to funds to survive for a sufficient period likely to result in the return of the proceeds of crime, before the civil claimant gives up hope and the convicted criminal’s pursuit.</p>\r\n<p class=\"p1\">In any fight against crime the biggest weapon is the deterrent effect of sentences following conviction, and the certain knowledge that crime does not pay. The former is primarily a concern of the law enforcement agencies, and the courts, who will take action and impose penalties commensurate to the seriousness of the offence and in conformity with the prevailing circumstances of the society and culture. Therefore, what may seem to be lenient sentence from an Anglo Saxon point of view may not be so from a Continental European point of view and so on. The latter issue of ensuring that crime does not pay is ultimately the concern of the victim of crime. Whilst punishment is an important factor to a victim of a fraud, their ultimate aim in the attainment of justice is the restitution of what was taken from them. With the limitation of the enforcement procedures under the Civil Procedures Code in mind, His Highness the Ruler of Dubai issued Dubai Law No. 37 of 2009 to deter those who commit frauds from refusing to return proceeds of their crimes. In a positive departure from previous criminal legislation that differentiated between public and private funds, the restitution provisions of this law abolished the distinctions, and provides for real deterrent for those who commit fraud and refuse to return the proceeds of their crimes.</p>\r\n<p class=\"p1\">In provisions very similar to those found in the UK, the law imposes heavy periods of imprisonment for those who are convicted of offences from which they receive financial gain, yet refuse to pay back the proceeds of their crimes. However, Law No. 37 is far simpler than the UK provisions, and can be considered superior to them in that it has the advantage of allowing those victims directly affected by fraud to seek restitution of the proceeds of crime. Unlike the UK, where the legislation is concerned primarily with confiscation of the proceeds of crime to the benefit of the State with no proceeds being given to the victim who actually suffered the loss, the UAE Federal Laws and Dubai Law No. 37 are primarily concerned with restorative justice to the real victims of fraud. It is scant consolation for any victim of fraud that a justice system of a State that uses very coercive methods to force fraudsters into giving up their ill-gotten gains, does so for the benefit of the State which suffered no loss and not the party that has had its money stolen.</p>\r\n<p class=\"p1\"><span class=\"s1\"> With the passing of Law No. 37 in Dubai, for the first time the principle of restorative justice was transformed from a purely civil action, and connects it directly to the criminal justice system. It represents a very progressive and logical continuation to Article 22 of the Criminal Procedures Code, and it is compatible with all the international standards of human rights. Law No. 37 does not transform what was a criminal liability into a civil debt. Therefore, in cases where the offender is facing extradition to the UAE from those countries which have signed and ratified the International Covenant on Civil and Political Rights, the wanted person cannot challenge the extradition on the basis of Article 11 of the Covenant which prohibits the imprisonment of a civil debtor. The law makes it clear that imprisonment is on the basis of a failure to comply with an obligation to return the proceeds of crime, which has time and again been found not to be a breach of human rights.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> Law No. 37 relates directly to illegitimate funds, and public funds, and gives clear definitions of what are illegitimate funds, and what are public funds in Article 1.</span></p>\r\n<p class=\"p1\">Article 2 then expressly states that in the event that a final judgment is rendered proving that a person has obtained illegitimate funds as defined in Article 1, and fails to pay the money back for any reason, the enforcement Judge must, upon the request of the debtor (i.e. civil claimant/victim), order the imprisonment of the debtor (fraudster) for:</p>\r\n\r\n<ul>\r\n 	<li>A period of five years in the event that the illegitimate funds obtained are not less than AED500,000 and not more than AED1,000,000.</li>\r\n 	<li>A period of 10 years in the event that the illegitimate funds obtained are more than AED1,000,000 and not more than AED5,000,000.</li>\r\n 	<li>A period of 15 years in the event that the illegitimate funds obtained are more than AED5,000,000 and not more than AED10,000,000.</li>\r\n 	<li>A period of 20 years in the event that the illegitimate funds obtained exceed AED10,000,000.</li>\r\n</ul>\r\n<p class=\"p1\">In a progressive step which removes the distinction between public and private entities that have been defrauded, the Law in Article 3 then specifically states that the periods of imprisonment applicable in Article 2 are also applicable if the funds are deemed to be public funds.</p>\r\n<p class=\"p1\">Article 4 makes it clear that the sentence for failure to pay back the money stolen is in addition to the sentence imposed for the commission of the offence which had given rise to the illegitimate funds.</p>\r\n<p class=\"p1\">In most cases of fraud, a very big calculus to the fraudster is the potential gain against the risk of punishment in the event of apprehension. Law No. 37, in the Emirate of Dubai at least, is a very big deterrent in the fight against financial crime. A fraudster is less likely to embark on his criminality if he knows from the outset that in the event of conviction he faces the choice of up to 20 years in prison or the return of the money stolen.</p>'),
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(100514, 5466, 'content', 'September 2016\r\n\r\n<hr />\r\n<p class=\"p1\"><span class=\"s1\">A well-known legal principle declares that ‘<em>ignorance of the law excuses no one</em>’. This maxim is used by legal systems throughout the world to impose constructive knowledge of the laws of the land upon those to whom such laws apply. Although exceptions have historically been made - for example by the Canadian courts in respect of hunters who were ignorant of a change of law that was made during the hunting season when they were hunting in the wilderness and, therefore, incommunicado - this generally means that a person cannot escape liability for violating a law on the basis that the content of that law was in fact unknown to that person.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> In the United Arab Emirates, the principle is codified in Article 42 of Federal Law No. 3 of 1987 (as amended) (“Penal Code”), which provides that ‘<em>Ignorance of the provisions of this law excuses no man.</em>’</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> In cases other than those to which strict liability applies, the absence of a requisite state of mind, or intention, will often mean that a person will not in fact be culpable for an act that is prohibited by law, due to the requirement for a certain <em>mens rea</em> or ‘guilty mind’. However, where a person does intend to do the act that is criminalised by law, and so long as all the required elements are fulfilled, criminal intention may be proven by implication and a conviction should follow.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> In a case before the Abu Dhabi Cassation Court in May 2016, the Court appears to have decided a case based on whether a person, who was unaware of legal requirements imposed upon him as a person subject to the jurisdiction of UAE law, could be guilty of an offence in circumstances where his lack of awareness was due to the failure by the State to properly have performed its duties under the law, rather than on the basis of whether the person held an intention to violate the law.</span></p>\r\n<p class=\"p2\"><span class=\"s2\"><strong>Background</strong></span></p>\r\n<p class=\"p1\"><span class=\"s1\">A Pakistani man, who was returning from holiday to Abu Dhabi airport in the summer of 2015, carried AED246,000 in cash with him into the UAE. He was stopped with the cash, which he had not declared to Customs, and was prosecuted for his failure to make the required declaration.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> The Court of First Instance convicted the man of an offence under the UAE’s anti-money laundering law - Federal Law No. 4 of 2002 (as amended) (“AML Law”) – and issued a sentence of imprisonment for one year and deportation.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> The man appealed to the Court of Appeal, which upheld the conviction. He then took his case to the Court of Cassation, which overturned the lower Courts’ decisions.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> Article 6 of the AML Law states:</span></p>\r\n<p class=\"p4\"><em>In pursuance of the procedures of disclosure adopted by the Central Bank, whoever enters into or exits from the State shall disclose all currencies, tradable financial instruments, high-value stones and precious metals.</em></p>\r\n<p class=\"p1\"><span class=\"s1\">In 2011, in accordance with its duty under this provision, the UAE Central Bank increased the limit on the amount of undeclared cash that travellers can bring into the UAE from AED40,000 to AED100,000 (or the equivalent in other currencies), by issuing a Regulation on 9 January 2011. The Regulation was published in Federal Gazette No. 518 on 28 February 2011 to come into effect 6 months thereafter (1 September 2011) (“Declaration Regulations”).</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> The appellant in this case was, therefore, carrying more than the amount above which declaration is required and he should have declared to Customs officers the fact that he was carrying an additional AED146,000 above the AED100,000.</span></p>\r\n<p class=\"p3\"><span class=\"s1\"> </span></p>\r\n<p class=\"p2\"><span class=\"s2\"><strong>Court of Cassation</strong></span></p>\r\n<p class=\"p1\"><span class=\"s1\">The appellant told the Court of Cassation that he did not know he was breaking the law. His legal representative argued that there was no intention to commit a crime and his client was ignorant about the disclosure rules.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> The Court of Cassation referred in its decision to three elements of the Declaration Regulations, which imposed the following requirements on the Federal Customs Authority (there are 9 in total):</span></p>\r\n\r\n<ul>\r\n 	<li>There should be enough signs, in a sufficient number of languages, at airports, seaports and land border crossings, which show the value above which cash must be declared.</li>\r\n 	<li>The Customs staff should have enough disclosure forms to be provided to arriving and departing passengers who want to disclose the money they are carrying.</li>\r\n 	<li>In case there is no disclosure and the authorities catch a passenger who has sums of money which are more than the allowable limit, the relevant customs officer should make enquiries regarding the reasons behind not disclosing the same.</li>\r\n</ul>\r\n<p class=\"p1\">The Court of Cassation found, with reference to the above reasons, that the Federal Customs Authority had not followed the procedures required of it by the Declaration Regulations and the case was referred back to the court of appeal for the matter to be determined by a different panel.</p>\r\n<p class=\"p3\"><span class=\"s1\"> </span></p>\r\n<p class=\"p2\"><span class=\"s2\"><strong>Comment</strong></span></p>\r\n<p class=\"p1\">The Declaration Regulations make it clear that ‘<em>bringing to the UAE cash amounts... of [a] value exceeding [AED100,000] is not prohibited, the purpose, rather, is to register details of such amounts, to make use of such information in case of receipt of reports / international requests for assistance claiming that funds have been obtained from unlawful sources, or the traveller concerned is conducting money laundering, terrorist financing or other crimes.</em>’</p>\r\n<p class=\"p1\"><span class=\"s1\"> The criminality alleged in this case, therefore, was not the fact that the appellant brought a certain amount of cash into the UAE. Rather, it was his failure to declare the amount in excess of AED100,000. The Court of Cassation appears to have addressed the question of whether such failure was reasonable in the circumstances.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> At least two points arise out of the Article 42 principle that ignorance excuses no man:</span></p>\r\n\r\n<ul>\r\n 	<li>The prosecution in this case was founded upon the AML Law, which does not contain any similar principle imposing knowledge of its provisions on the public:</li>\r\n 	<li>Although it is arguable that this legal principle could be applied to any criminal offence, the fact that it is specifically mentioned in the Penal Code at least provides an argument in cases based on other legislation in which the principle is not mentioned, that it should be limited to offences contained in the Penal Code.</li>\r\n 	<li>The well-known doctrine that ignorance of the law is no defence, upon which Article 42 is based, presumes that the law in question has been properly promulgated:</li>\r\n 	<li>Whilst it cannot reasonably be argued that the AML Law has not been properly promulgated, the ignorance in this case related to the Regulations that the Central Bank was required to issue in accordance with Article 6 of the AML Law.</li>\r\n 	<li>Although those Regulations have been promulgated through the Federal Gazette, the specific requirements imposed upon the Federal Customs Authority were found by the Court not to have been sufficiently adopted, whether in the time specified (prior to September 2011) or at all.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p7\"><span class=\"s1\">Further, the full text of the requirement from the Declaration Regulations that was third in the list highlighted by the Court of Cassation is as follows:</span></p>\r\n<p class=\"p4\"><span class=\"s1\"><em>In case no declaration was made and cash amounts... their value exceeding the said ceiling were discovered, the customs officer in charge should inquire about the reasons for not declaring. If the said officer found the reasons unconvincing he should seize and transfer the amount... to the Attorney-General to initiate legal proceedings against the concerned person as per provisions of Article 18 of [the AML Law].</em></span></p>\r\n<p class=\"p1\"><span class=\"s1\">Article 18 of the AML Law criminalises intentionally refraining from disclosing information that it is necessary to disclose, in violation of Article 6.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> The reference to the third point of the Court of Cassation’s reasoning (the requirement of Customs officials to make enquiries of the reasons for a failure to declare excess cash) suggests that such enquiry might not have been made on this occasion and that it cannot, therefore, have been established that the appellant ‘intentionally’ refrained from making the required disclosure.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> In this case, it appears that the appellant’s ignorance of the Regulations was found to be reasonable, even though they had been properly promulgated, as the Federal Customs Authority had not taken the steps that were envisaged by the Central Bank as being reasonable to make travellers aware of their duty, namely (i) to place signs with the effect of notifying persons that they are required to declare excess amounts of cash; (ii) to enquire of the reasons for non-disclosure, and (iii) to offer to travellers the forms for making disclosure.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> The reasoning of the Court of Cassation does not appear to address the appellant’s legal representative’s argument that the appellant did not intend to commit the offence. If accepted, this would also have resulted in acquittal.</span></p>\r\n<p class=\"p3\"><span class=\"s1\"> </span></p>\r\n<p class=\"p2\"><span class=\"s2\"><strong>Conclusion</strong></span></p>\r\n<p class=\"p1\"><span class=\"s1\">It appears, from this Court of Cassation decision, that the principle that ignorance of the law excuses no man is not to be strictly applied in the UAE and is in fact subject to a test of reasonableness. That is a demonstrably fair approach, especially in circumstances such as the current case, where an organ of the State was found by the Court to have failed to properly implement provisions that another organ of the State had decided were reasonable and necessary to apply.</span></p>'),
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(100495, 5465, 'content', 'September 2016\r\n\r\n<hr />\r\n<p class=\"p1\"><span class=\"s1\"><strong>The Kimberley Process</strong></span></p>\r\n<p class=\"p3\">The United Nations (“UN”) states that conflict diamonds especially emerge from regions that are controlled by rebel forces who are opposing internationally recognised governments. In the 1990s, African countries were facing severe conflicts due to the blood diamond trade, thereby bringing awareness to the diamond industry, governments, the UN and several non-governmental organizations (“NGO”) that there must be a system to protect the legitimate diamond supply from conflict diamonds, in order to eliminate the funding of further conflicts. African diamond-producing states met, to discuss what could be done to achieve this protection, in 2000 in Kimberley, South Africa and the Kimberley Process Certification Scheme (“Kimberley Process”) eventually came into operation in 2003 with the aim of increasing transparency and oversight in the diamond industry.</p>\r\n<p class=\"p3\">The Kimberley Process is comprised of governments, businesses, NGOs and public individuals (more than 80 countries are participating) with the initiative to prevent situations where governments are threatened by rebellious groups gaining access to weapons from the sale of conflict diamonds. Participating countries are required to enforce the Kimberley Process by codifying it in their national legislation.</p>\r\n<p class=\"p3\">Under the Kimberley Process, there is a scheme for the satisfaction of diamonds and a specified method by which diamonds are purchased. Every shipment of rough diamonds that crosses an international border must be transported with a government-validated Kimberley Process Certificate in a tamper-resistant container and exported only to another Kimberley Process participant country. Failure to comply with the procedures can lead to criminal sanctions along with the confiscation or rejection of the shipment. It is important to note that synthetic diamonds do not require a certificate; certificates are only required when trading rough and semi-polished diamonds.</p>\r\n<p class=\"p3\">The main goal of the Kimberley Process is to eliminate illegal mining along with the trafficking of illegally-mined diamonds, but there are several human rights issues connected to illegal mining which the Kimberley Process also aims to reduce.</p>\r\n<p class=\"p1\"><span class=\"s1\"><strong>Corruption </strong></span></p>\r\n<p class=\"p3\">Any abuse of power that leads to personal gain is considered corruption. Corruption can exist at all levels within a nation: within the government, public officials, private companies, and individuals. Before the implementation of the Kimberley Process, too often diamond buyers were well aware of the illegal origin of the stones, but they would still purchase them – usually at a lower price than the market rate, allowing their own business to prosper. Furthermore, agents assisting with the importation and exportation of diamonds were also receiving kickbacks from the eventual profits of the blood diamonds they helped smuggle and sell abroad. However, such corrupt acts allowed rebellious groups to continue to grow, innocent people to die and the governments to weaken.</p>\r\n<p class=\"p3\"><span class=\"s2\"> Whilst the UAE law (for example, the Federal Penal Code) deals with the consequences of corruption, the aim of the Kimberley Process is to reduce corrupt practices in the first place. This requires the effective implementation of the Kimberley Process. The process embodies the concept of self-regulation but, unfortunately, the diamond industry faces difficulty in policing itself. In order for the procedure to operate optimally, it requires the participant states to have effective control systems at every stage. Although the scheme creates barriers for conflict diamonds to reach the legitimate diamond market, there are still weaknesses within the process which have allowed 1% of the diamonds in the market to be conflict diamonds. </span></p>\r\n<p class=\"p3\">Firstly, the certification process itself creates vulnerability. The procedure does not actually require individual diamonds to be identified or traced back to the mine that they originated from; rather the shipment must have a certificate. This allows the possibility for blood diamonds to slip into the legitimate diamond trade since governments can sometimes give certification, knowingly or unknowingly, to diamonds with unknown origins. Several forms of corruption can occur during this stage of the process, such as bribery and fraud. For example, when Brazil performed an internal review of its diamond exportation in 2006, it discovered that 49 of the 147 Kimberley Process certificates the government had issued since the implementation of the scheme were actually fraudulent. This illustrates a universal challenge in reducing corruption: governmentally-issued documents have the possibility of being forged or being obtained through illicit means, such as bribery.</p>\r\n<p class=\"p3\">Moreover, the importing country’s customs are responsible to ensure that a shipment’s contents actually match the certificate provided and bribery can exist at this stage of the process as well, in the form of facilitation payments or kickbacks.</p>\r\n<p class=\"p3\"><span class=\"s2\"> Illicit trade of diamonds can also be used in the assistance of money laundering or for terrorist financing.</span></p>\r\n<p class=\"p3\">There is still a need to improve the process and it requires governmental involvement including further oversight of the diamond industry and conducting regular investigations to ensure compliance by the diamond companies and the public authorities.</p>\r\n<p class=\"p3\">Lastly, in order to obtain the desired reform it would be beneficial to publish the statistical data that is compiled by the group to reveal the exact issues or challenges within each country, so that each country can focus on its weaknesses to improve their systems.</p>\r\n<p class=\"p1\"><span class=\"s1\"><strong>2016: the United Arab Emirates Chairs the Kimberley Process</strong></span></p>\r\n<p class=\"p2\">The Kimberley Process participants and observers meet once a year to analyse the statistics they have gathered, discuss the implementation of the scheme in the participant countries, discuss any technical issues and evaluate the applications from countries wishing to join.</p>\r\n<p class=\"p3\">This year, the United Arab Emirates is chairing the group and it is the first Arab nation to do so. The UAE was also the first Arab country to implement the Kimberley Process Certification Scheme and is the only GCC country which requires compliance with the scheme. Therefore, rough diamond trade cannot be carried out between UAE and other GCC countries. Lebanon and Israel are the only other participating countries within the Middle East and North Africa region. The scheme was implemented in the UAE by the Ministry of Economy in 2003 under Federal Law No. 13 of 2004 regarding the Supervision of Import/Export and Transit of Rough Diamonds.</p>\r\n<p class=\"p3\">It is also important to note that the Dubai Multi Commodities Centre free trade zone (“DMCC”) is the only place of import and export for rough diamonds within the UAE.</p>\r\n\r\n<table class=\"t1\" border=\"0\" cellspacing=\"0\" cellpadding=\"0\"><caption> </caption>\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>Volume (cts)</strong></span></p>\r\n</td>\r\n<td class=\"td1\" valign=\"middle\">\r\n<p class=\"p2\"><span class=\"s2\"><strong>Value (USD)</strong></span></p>\r\n</td>\r\n<td class=\"td1\" valign=\"middle\">\r\n<p class=\"p2\"><span class=\"s2\"><strong>USD/ct</strong></span></p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td2\" valign=\"middle\">\r\n<p class=\"p3\">Production:</p>\r\n</td>\r\n<td class=\"td2\" valign=\"middle\">\r\n<p class=\"p3\">0.00</p>\r\n</td>\r\n<td class=\"td2\" valign=\"middle\">\r\n<p class=\"p3\">$0.00</p>\r\n</td>\r\n<td class=\"td2\" valign=\"middle\">\r\n<p class=\"p3\">$0.00</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td3\" valign=\"middle\">\r\n<p class=\"p3\">Import:</p>\r\n</td>\r\n<td class=\"td3\" valign=\"middle\">\r\n<p class=\"p3\">62,028,811.45</p>\r\n</td>\r\n<td class=\"td3\" valign=\"middle\">\r\n<p class=\"p3\">$5,441,576,991.82</p>\r\n</td>\r\n<td class=\"td3\" valign=\"middle\">\r\n<p class=\"p3\">$87.73</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td3\" valign=\"middle\">\r\n<p class=\"p3\">Export:</p>\r\n</td>\r\n<td class=\"td3\" valign=\"middle\">\r\n<p class=\"p3\">63,581,801.10</p>\r\n</td>\r\n<td class=\"td3\" valign=\"middle\">\r\n<p class=\"p3\">$7,555,431,888.11</p>\r\n</td>\r\n<td class=\"td3\" valign=\"middle\">\r\n<p class=\"p3\">$118.83</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td3\" valign=\"middle\">\r\n<p class=\"p1\"><span class=\"s1\"><strong> </strong></span></p>\r\n</td>\r\n<td class=\"td3\" valign=\"middle\">\r\n<p class=\"p4\">KPC Counts</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td3\" valign=\"middle\">\r\n<p class=\"p3\">Import:</p>\r\n</td>\r\n<td class=\"td3\" valign=\"middle\">\r\n<p class=\"p1\"><span class=\"s1\"><strong> </strong></span></p>\r\n</td>\r\n<td class=\"td3\" valign=\"middle\">\r\n<p class=\"p3\">4,702</p>\r\n</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td3\" valign=\"middle\">\r\n<p class=\"p3\">Export</p>\r\n</td>\r\n<td class=\"td3\" valign=\"middle\">\r\n<p class=\"p1\"><span class=\"s1\"><strong> </strong></span></p>\r\n</td>\r\n<td class=\"td3\" valign=\"middle\">\r\n<p class=\"p3\">7,859</p>\r\n</td>\r\n</tr>\r\n</tbody>\r\n</table>\r\n<p class=\"p3\">At the UAE’s first meeting as the host, on 24 May 2016, Ahmed Bin Sulayem, the Executive Chairman of the DMCC and the current Kimberley Process Chair, stated in particular that the following two tasks needed to be addressed:</p>\r\n\r\n<ul>\r\n 	<li>To overcome the challenges that the industry is currently facing in order to strengthen the Kimberley Process;</li>\r\n 	<li>To ensure that the process is effective enough to overcome challenges in the future.</li>\r\n</ul>\r\n<p class=\"p3\">His Excellency Sultan Bin Saeed Al Mansouri, the UAE Minister of Economy, said that diamonds are one of the highest contributors to the UAE’s GDP and the UAE’s economic growth and diversification in the recent years has made the UAE among the top global diamond trading hubs. He also mentioned that the reason the UAE was able to build strong partnerships with the Kimberley Process is because they both aim to enable trade in a secure and beneficial environment.</p>\r\n<p class=\"p3\"><span class=\"s2\"> One of the most critical issues in the industry is diamond valuation and the UAE Chair hosted a ‘KP Chair Special Forum’ on rough diamond valuation, on 23 May 2016, before the inter-sessional meeting.</span></p>\r\n<p class=\"p3\">Where a diamond is sold below its market price, it causes the government a loss because it will receive less tax revenue from the sale of that diamond and such under-pricing activities are facing severe criticism. Ahmed Bin Sulayem announced that the Organisation for Economic Cooperation and Development (“OECD”) will be collaborating with the Kimberley Process with regard to rough diamond valuation, to create a universally recognised pricing method for rough diamonds. This specific initiative will be advantageous for those countries that rely on diamond exportation for their income, enabling them to sell diamonds at a more valuable price than they currently do.</p>\r\n<p class=\"p3\">The Chair aims to develop further mechanisms that will regulate the diamond industry by government-led efforts and industry-led due diligence in conjunction with the Kimberley Process regulations. Ahmed Bin Sulayem also intends to enhance financial transparency, supply chain traceability, cross-border trade and data collection in order to improve the diamond industry. Transparent and uniform pricing systems along with a more regulated industry would further combat the different forms of corruption that currently exist when trading rough diamonds.</p>\r\n<p class=\"p1\"><span class=\"s1\"><strong>Conclusion</strong></span></p>\r\n<p class=\"p3\">After the implementation of the Kimberley Process, trading blood diamonds has become more difficult due to the requirements. However, corruption can still exist within the diamond industry. Self-regulation is not enough to eliminate corruption in this industry and, therefore, there must be a more regular and a stricter review of the enforcement of the process. Ahmed Bin Sulayem, as the Kimberley Process Chair of 2016, has laid out many objectives regarding the regulation of the industry that he aims to initiate while the UAE is the Chair.</p>\r\n<p class=\"p3\"><span class=\"s2\"> In a Mid-term report, published in August 2016, Mr. Bin Sulayem set out the work and initiatives that have been carried out during the first half of his tenure as the Kimberley Process Chair. These include:</span></p>\r\n\r\n<ul>\r\n 	<li><strong>Venezuela</strong> - The re-admission of Venezuela to the Kimberley Process.</li>\r\n 	<li><strong>Central African Republic</strong> – Mr. Bin Sulayem made a visit to Central African Republic, to expedite the country’s reintegration into the diamond market.</li>\r\n 	<li><strong>A Valuation Seminar</strong> – The report states that Mr. Bin Sulayem believes efforts should be made to improve the conditions and benefits for Africa’s diamond producing countries. One idea to help benefit African nations is to increase awareness and education on valuation and value of rough diamonds.</li>\r\n 	<li><strong>Developing online presence</strong> – Mr. Bin Sulayem’s office has developed a strategy to revamp the Kimberley Process website. The report states that this is to further promote the Kimberley Process to a broader, more discerning audience and that industry professionals will benefit from continual updates, while the public will be able to see first-hand what the Kimberley Process is doing and how effective it is in applying its principles.</li>\r\n 	<li><strong>Blockchain Technology</strong> – With a view to combating potential fraudulent activity and to enhance security measures, Mr. Bin Sulayem has propsed the implementation of Blockchain technology. Research conducted by Mr. Bin Sulayem’s office in collaboration with the UAE Kimberley Process office has discovered that Blockchain technology could be immensely important to the future of the Kimberley Process, by helping to eradicate false Kimberley Process certificates and significantly reducing the impact of human error in data uploads.</li>\r\n 	<li><strong>Africa Initiative</strong> – In the belief that the Kimberley Process has a role to play in the improvement of the prosperity and livelihood of miners and all people in African diamond producing countries, Mr. Bin Sulayem has made a commitment to keep a hands-on presence in diamond producing nations to help facilitate Kimberley Process compliance, the fulfilment of Kimberley Process mandates and to give Africa a voice.</li>\r\n 	<li><strong>Media and PR</strong> – A strategy of enhancing the reputation of the Kimberley Process and raising regional and global awareness of the organisation has seen a 462% increase in published articles compared with the four previous Chairmanships combined. The report also states that Mr. Bin Sulayem’s office will initiate new social media strategies, engaging with platforms such as Facebook, Twitter and LinkedIn.</li>\r\n</ul>\r\n<p class=\"p3\">We congratulate Mr. Bin Sulayem on these achievements, which demonstrate the willingness of the UAE to lead the way in improving the diamond industry for the benefit of all concerned, and we will continue to closely monitor and report developments on this interesting and important topic. This is not only about the diamond trade and improving the situation of the participant countries, but it is also another example of the UAE engaging in the fight against corruption in every arena.</p>'),
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(92895, 5048, 'content', 'December 2014 - January 2015\r\n\r\n<hr />\r\n\r\nThis is because the trade name and trademarks systems in the UAE have for many years allowed for conflicting names to co-exist. This is not peculiar to the UAE, but generally can be said of many countries in the Arab world. The hotel name conflict was one of many other conflicts whether in the same country or amongst different countries, such as:\r\n<ul>\r\n 	<li>The trade name BARCLAYS REAL ESTATE in Dubai vs the trademark BARCLAYS BANK</li>\r\n 	<li>The trade name PARIS GALLERY in Qatar vs the trademark PARIS GALLERY</li>\r\n</ul>\r\nThe problem arises because trade names are only acquired on establishing a physical business presence, whereas trademarks can be registered by a trademark owner with no address or presence in the country. Without having a proper crosscheck of the two databases, a conflict between a trademark registration and a trade name registration can easily occur. In fact, it is much more difficult to challenge a conflicting trade name registration based on trademark rights, than to challenge trademarks. A trademark is monitored by reviewing the periodical trademark publications in Gazettes and newspapers, which are published and enter into an “Opposition Period” allowing anyone with legal interest to oppose the published trademark application before it matures to registration. The opposition is usually an administrative procedure and lodged with the Trademarks Office and decided by its administration. Even after registration, a procedure known as a “Cancellation Action” may be raised to cancel a trademark registration on the basis of it being confusing similarity with a prior owned trademark.\r\n\r\nTrade names however are challenged only by way of a trade name deletion case through the court. The risk with trade name cancellation cases is that courts almost always assess the ownership based on the date of registration in the country where the dispute arose. That is, if the trade name owner in Qatar existed prior to the registration of the mark in Qatar, then regardless of whether the trademark owner had a well known trademark existing in many other countries for prior years, the court may rule in favor of the trade name owner. Despite the normal course of action for trade name cancelations requiring a law suit, there have been many successful examples of trade name changes by administrative route particularly in the UAE, whether for free zones and on shore trade licenses. After all, it is administrative decisions or procedures which cause these conflicts to exist.\r\n\r\nThe Abu Dhabi Government recently issued a new Regulation for Trade Names titled “Administrative Decision No 7 for the Year 2014 Regulating Trade Names in the Emirate of Abu Dhabi” (hereinafter “Decision”). Abu Dhabi is an Emirate (state) in the United Arab Emirates, which is a federal union with both federal and local (Emirate) legislation. This Decision, which is a local piece of legislation, applies to those setting up in Abu Dhabi and using trade names to identify their businesses. This Law regulates which trade names can or cannot be registered in Abu Dhabi, in a similar fashion to provisions on the prohibitions and restrictions regulating registration of trademarks under the Federal Trademarks Law. The Decision addresses the ever existing conflicts between trademarks and trade names in the country, which is a continuous weakness in the protection system since the two databases are never cross checked on trademark or trade name clearances and hence result in conflicts. For a long period of time, trademark owners suffered from their marks being registered and used as trade names, only that trade names are not published with no opportunity to oppose them prior to registration. However, this new Decision specifically prohibits registration of trade names that are identical or confusingly similar to a locally or internationally registered trademark. This is to say that both well known marks and locally registered trademarks will prevent registration of a similar trade name unless authorization of the trademark owner is given. This Decision will therefore eliminate the conflicts between future applications for trade names and existing trademarks.\r\n\r\nThe above mentioned regulation is a good example for others to adopt for curbing trade name/trademark conflicts and will inevitably strengthen the trademark protection system in the country.'),
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(92914, 5049, 'content', 'December 2014 - January 2015\r\n\r\n<hr />\r\n\r\n<strong>Starting Strong - setting in place a strategic brand management</strong>\r\n\r\nA brand is the crux of an organization’s identity and may consist of trademarks, whether composed of a word, symbol, a design or some combination of these. A trademark plays a pivotal role in customers purchasing decisions as it conveys a message to consumers about both the source and quality of the products and services with which they are used. It is arguably one of the most valuable assets of a business as it helps maximize and fortify the position of the business in the marketplace. A well strategized and distinctive trademark can be a powerful tool in getting recognized by consumers, hence increasing the purchasing power and ultimately maximizing a company’s value. The iconic depiction of the bitten apple to represent Apple is a great example of instant consumer recognition and one that fosters that coveted customer loyalty all businesses aim to achieve.\r\n\r\nThe Middle East is home to a vast array of franchise businesses; it welcomes and adopts an increasing number of global brands. The mindset in the region is always set in obtaining these global brands to blend into the region. However the Middle East region is not short of talented businesses and innovative ideas, and as such we have started recently to see young local brands becoming successful locally. In this article we will discuss how the law can help develop locally grown brands and develop them into leading global brands. Emirates Airlines is possibly the best example of a UAE brand crossing over to achieve global recognition, recently raising their global profile further by sponsoring the 2014 World Cup and having their brand shown during the presentation of the trophy.\r\n\r\nThe present article discusses the legal issues that need to be considered when attempting to transform a local brand into an international one.\r\n\r\n<strong>Creating the brand</strong>\r\n\r\nChoosing a brand that well defines the intended goods/services and one which will be unique and distinctive is a challenging task. Some brand owners choose a name which is a coined term while others would prefer to implement a distinctive logo or associate their brand with a distinctive color. Here are three issues to be aware of:\r\n\r\nSelection stage: the early inception stages of brand selection usually involve the collaboration of the company’s marketing and business people to come up with a brand that identifies their company. Consult early on with legal personnel to make sure the chosen brand is suitable and available in order to avoid having to repeat this creation process again with the associated waste of time and resources.\r\n\r\nPropose more than one trademark: you need to be prepared that your brand of choice may not be legally available. Always have contingency brands in place which can be ranked by order of preference.\r\n\r\nConduct Trademark clearance. Before deciding and investing on a potential brand, necessary due diligence is required to verify that an identical or confusingly similar name is not used/associated with a third party, and that it does not infringe on someone else’s rights. Trademark searches are highly recommended as these provide insights as to third party registrations and projected use in the market. Some companies may argue their budget is too tight to spend on clearances which may turn out not to be necessary. We tend to disagree: this is money well spent as it will avoid additional rebranding costs after the brand is launched if it turns out the brand is too close to someone else’s.\r\n\r\n<strong>Adequately record the date of first use of the brand</strong>\r\n\r\nThe first date of use is a very important piece of information that can help your company if it is ever challenged with a conflicting trademark. Document the date of first use and keep original copies and have them as official as you can.\r\n\r\n<strong>Protecting the brand</strong>\r\n\r\nOnce the brand has been chosen and cleared, adequate protection of the brand through registration of the trademark as well as any other intellectual property rights is required.\r\n\r\n<strong>Maintaining brand integrity</strong>\r\n\r\nIn addition to ensuring effective trademark protection, maintaining brand uniformity is key to ensure consistent growth. It is often advised that once a brand is chosen it should be maintained. Again, Emirates Airlines is a good example of this -   the consistency, continuity and uniformity of the airlines distinctive red color and unique scripture of the Emirates name are considered key to the brand’s success.\r\n\r\n<strong>Develop branding guidelines</strong>\r\n\r\nA company should have clear branding guidelines to identify which types of mark are aligned with the overall business and marketing strategy of the company, and to ensure consistency of use of the brand that would maintain its integrity.\r\n\r\n<strong>Licensing the brand</strong>\r\n\r\nIn order to gain greater market share, brand owners may decide to license their intellectual property. In doing so brand owners need to establish strictly defined procedures as to use of the licensed intellectual property rights. A big part of this step is setting up clear limits on what can and cannot be done with the brand and establishing from the outset of the parties business relationship what is allowed and not allowed. The guidelines should include quality control provisions in order to maintain brand uniformity, and address how the trademarks and designs can be used and displayed, how they are to be placed on any packaging, and more importantly on what products/services the brand can be used in association with.\r\n\r\nOnce the above mentioned stages have been implemented and the brand has acquired considerable goodwill and fame in the local region, brand owners may consider launching the brand in the global market. In the second part of this article we will discuss the legal requirements and challenges faced with such initiatives.'),
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(92941, 5050, 'content', 'December 2014 - January 2015\r\n\r\n<hr />\r\n\r\n<strong>Think long term and create a global trademark strategy</strong>\r\n\r\nWith the internet and social media, information is transferred in seconds all around the world, and it is providing businesses with wide distribution channels for their products and services on a global scale. This makes it crucial for brand owners to think global at the very early stages of creating their brands and it is now a must to develop a strategy to develop and manage their brands globally. We now focus on the major legal aspects a brand owner needs to take into consideration when putting in place a global trademark strategy.\r\n\r\n<strong>Protecting the mark globally</strong>\r\n\r\nThe first step in developing a global brand is to consider the protection of the brand as a trademark globally. Many brand owners fail to expand in new markets for the simple reason that the trademark was not registered in that specific market and a competitor got there first. In such cases, the brand owner will have to give up that market; select a new brand specifically for that market; or enter into a legal battle to acquire the trademark, all of which are financially burdensome on the brand owner. This could have been avoided if the right strategy had been set in place from the early stages, as we now explain:\r\n<ul>\r\n 	<li>Overcome territoriality of trademarks. It is important to understand that trademark protection is territorial; this means that a trademark is protected within the territory it was registered within. A brand owner cannot secure an international registration through a single filing, but will need to file separate trademark applications in each country. This is with the exception of the European Union, in which an applicant can cover several European countries in one application called a ‘Community trademark application’.</li>\r\n 	<li>Selection of countries: Taking into consideration the territorial protection of trademarks, a brand owner should consider, as a second step, which jurisdictions to protect the trademark in. Protecting the trademark in each and every country in one go can be very expensive. The selection needs to be made on the basis of the anticipated for growth in that jurisdiction. It is also worth considering jurisdictions where counterfeiting is prevalent. Even if the company is a start up, the selection of the jurisdictions in which the trademark will be protected should be on the basis of which countries the brand is likely to do well in. For example if a UAE local company is launching a new product in the UAE market, it should look to protect its trademark in the remaining GCC jurisdictions, as they share close proximity geographically, and are similar in culture, language…etc. In other words, a successful brand in one of these jurisdictions would likely be successful in the others and so would be the first jurisdictions into which the brand is introduced after its country of origin. On the flip side, it would be dangerous to neglect protection in the other GCC jurisdictions if a competitor succeeds in registering the same brand first. Protection of the trademark in every country in one go can be very expensive; therefore it is recommended that a list of countries be made in which protection will be sought, and they are then priorities so that registration can take place in stages and within a specific time frame. Budgeting for trademark protection is a must when creating a brand.</li>\r\n 	<li>Trademark clearances: Once the countries have been decided, the process for the protection and registration of the trademark can start with carrying out clearances to determine the availability and registrability of the mark. It is often almost impossible to get one mark cleared in all the desired countries; hence the brand owner may need to have other alternatives.</li>\r\n</ul>\r\n<strong>Filing for trademark/Priority dates</strong>\r\n\r\nOnce the mark is cleared, filing of the trademark should follow immediately so as to make use of the Paris Convention priority. The Paris Convention has provided for the possibility of claiming priority from the date of first filing in another contracting party if the application is filed within 6 months.\r\n\r\n<strong>Consider registering the local language version of the trademark</strong>\r\n\r\nOnce a brand is successful it could become a target for third parties to ride on this success by adopting a trademark that is the translation of another brand. To prevent others from taking this advantage, it is recommended to also consider the registration of the translation and transliteration of the trademark.\r\n\r\n<strong>Domain names</strong>\r\n\r\nLocal brands in the Middle East often fall short in registering their Intellectual Property rights and even in case of registration often limit their scope to trademark filings. Considerable thought also needs to be provided to brand derivatives such as social media tags and domain suffixes for the brand name and even catchphrases associated to the brand.\r\n\r\nFrom the very beginning of the business, brand owners need to create and maintain a solid strategy that protects the brand. As part of this step, consideration should be provided not only to the trademarks and logos, but also domain names, designs, patents and possibly associated rights which can be extended to copyrights.\r\n\r\nDomain names are important for the web presence of the business and hence the global presence of the trademark. It is important to consider what top-level domain and country code level domains need to be registered. When considering the country-code domain name, local legal advice should be obtained as usually there will be certain requirements for the registration under the local domain name, such as the necessity of a local presence (a local company).\r\n\r\nWhen taking brand names global, companies must not only register the trademarks around the world but also register the domain names. For example, iTunes is a trademarked brand name; it is also a domain name. So is iPod and Apple and iMac, Apple had to pursue legal means to get access to itunes.co.uk\r\n\r\n<strong>Consider the ownership of the trademark</strong>\r\n\r\nThe ownership of the trademark is another issue that should be considered when setting the global strategy for the trademarks. It needs to be decided who will own the trademark globally; this is specifically applicable when the brand owner is a group of companies with different subsidiaries and affiliated companies. Usually it is preferable to have all the trademarks registered in the name of the group/mother company, or to create a specific entity for the purpose of owning the trademark and commercializing the same globally. Furthermore, some jurisdictions do not allow the registration of trademarks under the name of individuals, and so ensuring the owner requirements allow for global coverage is important.\r\n\r\n<strong>Use social media</strong>\r\n\r\nThe role of social media in today’s market place is undeniable and can be extremely effective in reaching a broader base of consumers and in effectively disseminating information about products and services of the business.\r\n\r\n<strong>Licensing the brand</strong>\r\n\r\nLicensing or franchising the brand and brand concept will help increase the brand recognition in other countries, as it will result in the presence of the products or services in other countries. However, it is important to keep in place strict quality control provisions with the licenses or franchisees, in order to keep the brand integrity and develop the value of the brand.\r\n\r\n<strong>Vigilance in enforcement</strong>\r\n\r\nYou need to be vigilant in maintaining your brand reputation in every market in which you sell. After applying for the protection of trademarks, establishing a program for enforcing the trademarks will be necessary to maintain brand integrity and to preserve the distinctiveness of the trademark in the market. Enforcement programs include watch services for trademarks which ensure the brand owner is aware of trademarks being applied for and will be able to prevent any identical or confusingly similar mark from being registered.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nWhen you start plans for brand conception, have a long term vision as both local and global trademark strategies complement each other. It is best to think ahead of time when it comes to expansion and to consider the legal issues you may face, as these plans may be halted if competitors are already jumping to your intended global market ahead of you. If you start strong, your company will ensure a seamless and smooth transition into global recognition.'),
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(92962, 5051, 'content', 'December 2014 - January 2015\r\n\r\n<hr />\r\n\r\nArticles 880 – 883 of the UAE Civil Code contain the key provisions.\r\n\r\nArticle 880 (1) provides that a contractor and a supervising architect (which where the context permits, can mean the supervising engineer) are jointly liable to compensate the employer for a period of ten years from the date of delivery of the work, if the building suffers (a) total, or (b) partial collapse, or (c) there is a defect that threatens the stability and safety of the building. Parties may not agree to a shorter period as this is a mandatory obligation.\r\n\r\nArticle 880 (2) provides that the remedy to the employer is compensation, which obligation arises despite the defect or collapse arising out of a defect in the land, or that the employer consented to the erection of buildings or installations that have proved to be defective.\r\n\r\nArticle 880(3) provides that the liability commences on delivery of the work, usually taken to be the issue of the Taking Over Certificate.  The starting date can however be contentious and evidence should be sought as to the date of delivery or deemed delivery.\r\n\r\nArticle 881 makes a distinction between where the architect  both produces the design and supervises the works (in which case he shall be liable for both structural defects and design defects) and where  he produces the design, without supervising the works (in which case he shall be liable for design defects only).\r\n\r\nArticle 882 makes it clear that it is not possible for a supervising architect or contractor to contract out of decennial liability or to limit his liability.  This is a strict liability matter and no proof of negligence is needed.  They can instead only deny liability on the basis of force majeure, or they can seek to show that the failure is due to an external cause, perhaps due to the actions of the employer or a third party in relation to the building, after handover.\r\n\r\nFinally, Article 883 provides that no claim for such liability shall be heard after the expiration of three years from the occurrence of the collapse or the discovery of the defect.  This is counter to the general limitation period in the UAE of 15 years.\r\n\r\nThis no fault concept of decennial liability for supervising architects and contractors can be contrasted with the position in many common law jurisdictions where liability will in general only apply to architects and contractors if they have failed to perform their professional obligations in accordance with standards of professional skill and care.\r\n\r\n<strong>What additional guidance about decennial liability has been provided by the courts in recent years?</strong>\r\n\r\nIn Dubai Court of Cassation 150/2007, it was underlined that “the liability to pay the said indemnity will remain notwithstanding that the defect or collapse arises out of a fault in the ground itself, or if the employer has consented to the erection of faulty installations. The effect of that is that is that the contractor or the engineer will be liable to pay an indemnity by way of contractual liability towards the employer and it is not open to any third party who has no contractual relationship with either of them to rely on such liability.”  Thus, for example, adjoining building owners who suffer loss as a consequence of an event that gives rise to decennial liability will be left to pursue a tort claim direct against the owner and most likely also against the contractor and architect/engineer.\r\n\r\nIn a decision of the Abu Dhabi Court of Cassation 293/Judicial Year 3, the court referred to Articles 880 and 882 of the Civil code and then proceeded to make it clear that the risk of liability only comes into effect after delivery.  If a fault develops during construction, the decennial liability provisions will be of no effect. Further, even with a defect that arises after delivery, “liability does not extend to every defect that may be discovered in the building, unless such defect threaten the soundness and stability of the building.”\r\n\r\nThe decision of the Abu Dhabi Court of Cassation 721/Judicial Year 3 casts some light on the compensation that flows from such liability: “The liability of the contractor and the engineer who has supervised the construction of the building is restricted to a total or partial collapse in the building or to any defects that come to light that threaten the solidity and stability of the building.  Under the provisions of articles 282, 291 and 293 of the Civil Code, any harm done to a third party requires that the doer make good that harm.  Harm is in all cases to be assessed in accordance with the damage sustained by the aggrieved party, together with loss of earnings, on condition that that is a result of the harmful act.  Compensation may also be awarded for loss of opportunity of the building owner to exploit the land and have the benefit of it by reason of non-performance by the contractor without justification, of his obligation arising out of the muqawala contract made between them or by reason of his defective performance whereby it becomes impossible to make use of the building.  This is one of the elements of damage for which compensation must be awarded in favour of the building owner.”\r\n\r\nIt should finally be pointed out that decennial liability does not apply to subcontractors.  The main contractor takes responsibility for the actions of its subcontractors, so the contractor would be well advised to require an indemnity from the subcontractors in respect of any liability that it incurs.  Clause 5.2 of the 1999 FIDIC standard form permits a contractor to refuse to employ a nominated subcontractor if the latter does not agree to indemnify the Contractor “against and from all obligations and liabilities arising under or in connection with the Contract and from the consequences of any failure by the Subcontractor to perform these obligations or to fulfil these liabilities.'),
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(92983, 5052, 'content', 'December 2014 - January 2015\r\n\r\nThis is particularly so in the Middle East, where the civil codes of many countries in the region typically provide for the joint and several liability of the architect and contractor in respect of a total or partial collapse of a building or fixed works, for a period of ten years, even if the collapse is due to a defect in the land itself.\r\n\r\n<strong>The risk</strong>\r\n\r\nMany projects are designed and contracted without adequate site and subsoil or seabed investigations. While this may be suitable for some types of contract it is not suitable for all, as without being aware of all the potential risks no proper pricing of the work or final design is possible.\r\n\r\nAs an owner, if the contract is a construct only, you would want complete investigation to reduce the risk of time and cost blow outs.\r\n\r\nUnforeseen or undetected physical conditions may necessitate change to the means and methods of construction and, in extreme cases, redesign of the structure. Often it is the case that contractors rely on the faulty geological information provided by the employer without undertaking a thorough investigation of their own - resulting in claims and delays. This is the situation that has emerged with the the high-speed railway linking Hong Kong with Guangzhou which is currently facing a delay of up to 2 years, partly due to unforeseen geology beneath an urban area of Hong Kong.  The additional cost related to this delay is expected to run into tens of millions of dirhams.\r\n\r\nThis risk issue can be recast as “who bears the additional cost should the physical conditions at the site turn out to be something other than anticipated?”.\r\n\r\nIt is usual that the best outcome will most often be achieved where the party best placed to manage a risk takes responsibility for it.  However this is often overlooked where the employer needs certainty of price and completion date, in which case the contractor may be paid a price to take on that risk.\r\n\r\n<strong>Is local law relevant?</strong>\r\n\r\nLocal law always needs to be considered when negotiating and drafting ground condition provisions.  Although each country in the Middle East has its own laws, the key considerations in most of them  are that:\r\n<ul>\r\n 	<li>parties have complete freedom to determine what contractual provision is made for unforeseen physical conditions;</li>\r\n 	<li>parties must act in accordance with their agreement (and in a manner which is consistent with the requirements of good faith) so careful thought must be given to drafting to ensure that all eventualities are covered;</li>\r\n 	<li>provisions which conflict with a mandatory provision of law are unenforceable, such as any risk transfer intended to limit the contractor or engineer’s decennial liability;</li>\r\n 	<li>carefully drafted disclaimers (such as in connection with an error or omission in a geotechnical report) will generally be enforced by the courts, provided that any misrepresentation (in the sense of incomplete or inaccurate information) is not gross or fraudulent;</li>\r\n 	<li>ignoring decennial liability, many laws, such as that in the UAE, do not explicitly provide for how the risk for ground conditions is to be allocated if the contract is silent.  A court may decid  to cancel all or part of a contract and return the parties to the position that they were in before the contract was made.</li>\r\n</ul>\r\nAny clause which relates to the risk and consequences of  unforeseen ground conditions, including rights to extensions of time, change orders,  force majeure, indemnities and insurance,  needs to be considered in detail.\r\n\r\n<strong>Risk in standard form contracts </strong>\r\n\r\nThe FIDIC Red Book (Conditions of Contract for Construction) allocates risk to the employer for physical conditions which were not reasonably foreseeable by an experienced contractor by the date for submission of the tender.\r\n\r\nThe main shortcoming of this clause, from the employer’s perspective, is that it diminishes the incentive on the contractor to fully investigate and account for the ill-effects of all possible ground conditions.\r\n\r\nWhether or not a physical condition is foreseeable will depend on the specific circumstances in each case and is often highly contentious and thus costly.  While not every dispute can be avoided through adequate negotiation and drafting, issues can be narrowed greatly through clear and concise drafting.\r\n\r\nIf there are reports and investigations that the contractor relies on, and others which are provided but are not relied on, then the contract should make this clear.  All relevant reports and investigations should be referenced in the contract unless one party has accepted all risk.\r\n\r\nThe FIDIC Yellow Book (Plant and Design-Build Contract) contains more or less the same risk sharing provision as that in FIDIC Red Book.  On the face of it the Yellow Book is equally unattractive to employers.\r\n\r\nIn stark contrast, the FIDIC Silver Book (Conditions of Contract for EPC/Turnkey Projects) makes it the contractor’s responsibility to obtain all necessary information in connection with physical conditions, and disclaims the employer’s liability for the accuracy, sufficiency and completeness of information he makes available to the contractor.\r\n\r\nHowever, the Silver Book is based on the idea that the contractor will be given adequate opportunity to carry out its own site investigations.\r\n\r\nIn practice FIDIC contracts are frequently amended to change the allocation of risk between the parties.\r\n\r\nWhen amending any standard form contract, care must be taken to ensure that any knock-on effects of changes to the physical conditions on other provisions (e.g. clauses dealing with variations and extensions of time) are fully considered and addressed to avoid ambiguities and discrepancies in the contract.\r\n\r\n<strong>Final note</strong>\r\n\r\nDisputes concerning unforeseen grounds conditions are hotly contested and expensive; therefore the allocation of risk in the contract needs to be carefully considered and balanced so that it is appropriate to the specifics of the project.  It is also essential that the risk be clearly defined, including those documents relied on and those that are not.  Such provisions backed by warranties, indemnities or releases should reduce the scope for later argument.\r\n\r\nIt is important that, prior to executing a contract, each party:\r\n<ul>\r\n 	<li>consider the type of contract best suited to the project;</li>\r\n 	<li>consider the contractor’s entitlements to cost and time of changes necessitated by unforeseen physical conditions;</li>\r\n 	<li>to the extent possible, carry out its independent testing and sampling of the ground (both surface and sub-soil conditions);</li>\r\n 	<li>consider the effect of local law upon the enforceability of provisions allocating liability to the contractor for information provided by the employer; and</li>\r\n 	<li>check any amendments to the contract to ensure that the contractually agreed risk allocation is adequately reflected.</li>\r\n</ul>\r\nIf you need any assistance our construction and infrastructure team can help you properly document your project’s contractual conditions.'),
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(93006, 5053, 'content', 'December 2014 - January 2015\r\n\r\n<hr />\r\n\r\nThe UAE Civil Code provides for the different types of real property rights that exist in the UAE, save for long term leases which are found in other laws as described below. Each real property right is distinct and gives the holder of such right a set of specified powers including a direct right over property. Freehold is the most superior right which is perpetual in nature, whereas the others (i.e. musataha, usufruct and use and residence rights) are more restrictive in nature.\r\n\r\nThis article will discuss the key features of the various real property right options available in Dubai.\r\n\r\n<strong>Key Features Of Real Property Rights</strong>\r\n\r\n<em>Freehold</em>\r\n\r\nFreehold title of property is the most superior form of real property right and allows its owner to enjoy and occupy the land or property in perpetuity, and is evidenced by a title deed issued by the Dubai Land Department.\r\n\r\n‘Law No. 7 of 2006 concerning Real Property Registration in the Emirate of Dubai’, read with the UAE Civil Code, permits UAE and GCC nationals to own freehold property interests (as well as leases up to 99 years, usufruct and musataha) in any part of Dubai. The same right is also available to companies owned by UAE and GCC Nationals as well as public joint stock companies in Dubai.\r\n\r\nForeign nationals are permitted to own freehold property in “designated areas” approved by the Ruler of Dubai from time to time. Presently, there are over 24 designated areas approved for foreign ownership.\r\n\r\n<strong>Usufruct Rights</strong>\r\n\r\nArticle 1333 of the Civil Code defines Usufruct as a “property right in favour of the usufructuary to use property of another and to exploit it provided that it remains in its original condition”. Thus, an owner of a building, unit or plot is eligible to enter into a usufruct agreement with a tenant permitting the tenant to use the leased property provided such property remains in its original condition subject to fair wear and tear.\r\n\r\nThe key rights and obligations of the usufructuary have been laid down in Articles 1337 to 1348 of the Civil Code. Most of the rights are standard to lease agreements (including right of enjoyment during the lease period, regular maintenance responsibility upon usufructuary and major works to be performed by the land owner etc), and the parties are permitted to vary certain provisions laid down in the Civil Code provided it is not against public policy.\r\n\r\nTermination of usufruct is dealt with in Article 1344 of the Civil Code. A usufruct typically terminates upon expiry of 50 years unless agreed otherwise between the parties. Destruction of the leased property or waiver by the usufructuary or termination by court order due to misuse are some of the other grounds of termination. In the event that the usufructuary buys the leased property, thereby becoming the freehold owner, the usufruct ceases.\r\n\r\n<strong>Musataha Rights</strong>\r\n\r\nArticle 1353 defines musataha as “a right in rem conferring upon the owner thereof the right to build a building or to plant on the land of another.” Thus, musataha is very similar to usufruct but grants an additional development right to the musataha holder.\r\n\r\nThe musataha holder can obtain financing against his musataha right by virtue of Article 1355 of the Civil Code.\r\n\r\nThe maximum term of a musataha is 50 years. Unless otherwise agreed, either party has the right to terminate the musataha by two years prior notice in accordance with Article 1356 of the Civil Code.\r\n\r\nArticle 1357 of the Civil Code permits the musataha holder to assign or transfer his musataha right along with any improvements (such as a building built over the leased land) to a third party.\r\n\r\nTermination of the musataha occurs upon expiry of the musataha period as agreed between the parties. Similar to usufruct, if the musataha holder buys the leased property, the musataha will terminate. Unless agreed otherwise, payment default by the musataha holder for a period of two years is also considered a ground for termination.\r\n\r\n<strong>Use &amp; Residence Rights</strong>\r\n\r\nArticle 1352 of the Civil Code provides for “Use &amp; Residence” rights and states that the rules of usufruct would apply to such rights. This terminology is not commonly used and we are not aware of registration of any Use &amp; Residence rights with Dubai Land Department. In our opinion, a Use and Residence right is similar to a long term lease since it relates to use and residence. Whilst the Civil Code does not expressly mention long term leases, references to long leases are made in Dubai Law No. 7 of 2006, whereby a foreign national is permitted to acquire a lease of property located in a designated area for a maximum period of 99 years. Such long leases must be registered in the Real Property Register as a property right.\r\n\r\n<strong>Short Term Lease Vis-A-Vis Long Term Lease</strong>\r\n\r\n<em>Short term lease</em>\r\n\r\nUAE and GCC and foreign nationals are permitted to enter into short term leases not exceeding 10 years in all areas of Dubai. Such leases create a right “in personam” and must be registered with RERA pursuant to ‘Dubai Law No. 26 of 2007 regulating the relationship between landlords and tenants in the Emirate of Dubai’ (“Tenancy Laws”).\r\n\r\nEither the landlord or the tenant can register the short term lease with RERA upon payment of fees of approximately AED 200. The applicable laws are silent regarding the validity of an unregistered short term lease, however if not registered then various problems may arise relating to renewal of residency visa, obtaining a utilities account from DEWA, filing a case at the Rental Dispute Settlement Centre, or serving a notice through Notary Public to the other contracting party.\r\n\r\n<em>Long term lease</em>\r\n\r\nDubai Administrative Resolution No. 134 of 2013 defines a long term lease as a lease for a term of more than 10 years and up to 99 years.\r\n\r\nUAE and GCC Nationals, and companies wholly owned by them, can enter into long term leases of properties located in all areas of Dubai. However, foreign nationals are only permitted to enter into a long term lease of all properties located in “designated areas” of Dubai as determined by the Ruler of Dubai.\r\n\r\nLong leases cannot exceed 99 years and must be registered in the Real Property Register in the Dubai Land Department pursuant to the requirements of Article 9 of Dubai Law No. 7 of 2006.\r\n\r\nIt is important to note that the Tenancy Laws are not applicable over long term leases and the Rental Dispute Settlement Centre does not have jurisdiction over long term lease disputes.\r\n\r\n<strong>Obtaining Mortgage</strong>\r\n\r\n‘Dubai Law No. 14 of 2008 concerning mortgages in the Emirate of Dubai’ (“Mortgage Law”) permits a borrower to obtain mortgage finance from a UAE Central Bank registered bank to  purchase of property registered with the Dubai Land Department. Article 21 of the Mortgage Law allows a musataha holder to mortgage the building or plants during the term of the musataha without having the right to mortgage the land that is to be developed unless otherwise agreed between the parties supported by Article 1356 of the Civil Code. Similarly, Article 22 of the Mortgage Law allows the holder of usufruct or long term lease for a period between 10 and 99 years to mortgage his real property interest during the term of the agreement.\r\n\r\nThe mortgage must be registered to be enforceable which entails payment of registration fees of 0.25% of the loan amount to Dubai Land Department.\r\n\r\n<strong>Fees </strong>\r\n\r\nThe Dubai Land Department charges the following fees for registration of the various property rights as prescribed by Dubai Executive Council Resolution 30 of 2013:\r\n<ul>\r\n 	<li>Freehold – 4% of the total value of the sale contract</li>\r\n 	<li>Long leases – 4% of the total rent value</li>\r\n 	<li>Usufruct agreements – 2% of the property value</li>\r\n 	<li>Musataha agreements – 1% of the total musataha value</li>\r\n</ul>\r\nFrom a practical point of view, there appears to be some amount of confusion with regards to application of registration fees to the corresponding real property right and our advice is that the investor should discuss the payment of applicable fees prior to registration with the Land Department.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nUsufruct, musataha and long term lease are all regarded as real property rights in Dubai and must be registered in the Real Property Register at the Dubai Land Department in accordance with the laws. Based on recent property transactions, we note a trend whereby the investors increasingly prefer to enter into usufruct and musataha arrangement owing to its unique features.\r\n\r\nIn the event of a dispute, Dubai courts have jurisdiction to decide over all property disputes in Dubai except for short term leases which come under the jurisdiction of the Rental Dispute Settlement Centre.'),
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(93021, 5054, 'content', 'December 2014 - January 2015\r\n\r\n<hr />\r\n\r\nThe UAE has now passed a new anti-money laundering law. Federal Law No.9 of 2014 (Amending Certain Provisions of Federal Law No. (4) of 2002 Concerning the Combating of Money Laundering Crimes) (the “New AML Law”) was passed by the UAE Federal National Council on 30 April 2013 and was gazetted and came into force on 30 October 2014. We summarised the amendments to be introduced by this law when it was in draft form in our May 2014 edition of Law Update. The purpose of this article is to highlight the main amendments in the New AML Law that require the attention of financial institutions in the UAE and to remind such institutions of their key obligations under this law.\r\n\r\n<strong>1. Scope of Money Laundering Crime</strong>\r\n\r\nOne major development of the New AML Law is that the scope of money laundering crime is significantly expanded. This is accomplished through the following ways:\r\n<ul>\r\n 	<li>clarifying the definition of “fund”: “property” (equivalent to the term “fund” under the New AML Law) was defined as “assets of every kind, material or immaterial, moveable or immoveable, and the legal documents or instruments evidencing title to those assets or any rights related thereto” under the previous law. The New AML Law clarified that definition by stating that assets include national currency and foreign currency and documents and instruments may be in electronic or digital form which provides clearer guidance to all stakeholders;</li>\r\n 	<li>expanding the scope of source of funds: the previous law provided a list of certain crimes and confined the crime of money laundering to dealings with funds derived from such crimes. The New AML Law expands the scope of money laundering by removing the restrictive list under the previous law and providing that dealing in the proceeds of any offence or misdemeanor (with no restrictions) may be classified as a money laundering crime;</li>\r\n 	<li>expanding the scope of money laundering activities: the New AML Law added four activities that can be considered money laundering crime, i.e. saving, investing, exchanging or managing any proceeds with the intention to conceal or disguise its illicit origin; and</li>\r\n 	<li>expanding the scope of jurisdiction: the New AML Law expands its scope of jurisdiction beyond anti money laundering to combating terrorism financing crimes which include financing of terrorism and terrorism organizations.</li>\r\n</ul>\r\nFinancial institutions in the UAE would need to examine and update their internal anti-money laundering policies and procedures to ensure the same apply to the expanded scope of money laundering crime.\r\n\r\n<strong>2. Supervision of Financial Institutions</strong>\r\n\r\nThe New AML Law specifically provides that the UAE Central Bank shall supervise financial institutions in relation to their compliance with the New AML Law and any regulations and resolutions issued thereunder. The New AML Law further sets out the authorities of the Central Bank which include issuing directives, guidelines, and resolutions in respect of imposing certain administrative sanctions on financial institutions.\r\n\r\nThe New AML Law also takes into consideration the transferring of regulatory responsibilities of certain financial services (i.e. financial consultation and financial analysis services) from the Central Bank to Securities and Commodities Authority (“SCA”) by amending the definition of “financial institutions” as “any bank, finance company, money-exchange establishment, financial and cash broker or any other financial institution licensed by the Central Bank or the Authority (SCA), whether publicly or privately owned”. The New AML Law also allows the Central Bank to delegate certain regulatory powers under the law to SCA.\r\n\r\n<strong>3. Administrative Sanctions</strong>\r\n\r\nUnlike the previous law, the New AML Law has specified the administrative sanctions that the relevant supervising authority may impose on an entity which has committed a money laundering crime. In respect of financial institutions, the Central Bank (or SCA, if so delegated by the Central Bank) may issue resolutions to impose certain administrative sanctions on financial institutions in breach of the provisions of AML laws, which range from warnings, fines and restricting the powers of senior management (including directors and managers) to appointing temporary observers, suspending activity for less than one month and cancelling the institution’s license. This poses bigger challenges to financial institutions as the New AML Law gives the Central Bank more extensive administrative powers than the Federal Law No. 10 of 1980 (the Central Bank Law) and makes the Central Bank more powerful when investigating money laundering offences committed by financial institutions.\r\n\r\n<strong>4. Harsher Criminal Punishments</strong>\r\n\r\nIn addition to the administrative sanctions introduced above, financial institutions are also subject to criminal punishment (fines) for committing a money laundering crime. Chairmen, directors, managers and employees of financial institutions may be personally subject to criminal punishment (imprisonment and/or fine) for failing to inform the Financial Information Unit in the Central Bank of any offence that occurrs within their respective institution. While the New AML Law holds the same position as the previous law in this regard, it substantially raises the severity of criminal punishment that can be imposed.\r\n\r\n<strong>5. Exemption</strong>\r\n\r\nTo encourage reporting of money laundering crimes and whistle-blowing, the New AML Law, in addition to the general exemption given to, among others, financial institutions and their directors, employees and authorized representatives (the same position as under the previous law), requires the relevant authorities to provide protection for witnesses or the accused in offences of Money Laundering, Financing of Terrorism and/or Financing of Unlawful Organizations. The Attorney General or the competent court shall request such protection whenever it is required or there are fears for the lives of the witness or accused. This will give the witness (i.e. employees of a financial institution) and the accused more comfort when reporting money laundering crimes to the relevant authorities.\r\n\r\n<strong>6. Conclusions</strong>\r\n\r\nWith the New AML Law now in force, and in light of UAE’s commitment to combating money laundering and the financing of terrorism and terrorist organizations, all financial institutions in the UAE should review and amend their internal anti-money laundering policies and procedures to reflect the major amendments in the New AML Law. They should also revise employee training manuals and courses to update such materials for the New AML Law, provide training to relevant employees and directors on the New AML Law and re-emphasise the importance of applying anti-money laundering and anti-terrorism financing procedures. Employees should be reminded of the need for diligence when conducting KYC and other anti-money laundering and anti-terrorism financing investigations.\r\n\r\n<em>Postscript: Just prior to deadline, the UAE Cabinet issued implementing regulations to the New AML Law. These impose further compliance obligations on financial institutions and took effect on 5 November 2014.</em>\r\n\r\n<em>For queries relating to Banking and Regulatory issues, please contact Alex Peng Shi or Mark Brown. For all criminal matters, please contact Khalid Al Hamrani Partner, (k.hamrani@tamimi.com) or Ibtissem Lassoued, Partner (i.lassoued@tamimi.com) of our Financial Crime department.</em>'),
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(93044, 5055, 'content', 'December 2014 - January 2015\r\n\r\n<hr />\r\n\r\nA client or, in the case of an in house lawyer colleague (who for the purposes of this article will also be considered a client), asks you to prepare a document and then your heart sinks as he says “oh and it has to be dated” and gives a date which has already passed.  Is it legal to comply with the request or must it always be refused outright? Alternatively, is there a way of legally trying to achieve the required objective?\r\n\r\nIf the document is putting in place something which “should have been done” but hasn’t been, usually for tax or similar reasons, then the position is straightforward. For example, if a seller had sold his house in December then the seller could have taken advantage of certain tax benefits. However, he only realizes this in January and so wishes to backdate the document to December. The event did not happen during the time period required for the benefit so an attempt is being made to pretend that it did. This is a fraud on the tax authorities, a criminal offence and is likely to get the lawyer who prepared the document disciplined by his regulator and possibly also charged as a co-conspirator. For obvious reasons, any request to backdate a document for these reasons should be flatly turned down.\r\n\r\nHowever, an explanation often given by the person wanting to backdate the document is that the document is merely meant to reflect an oral agreement that has already been made and that this is just a way of documenting it.  In theory, this would appear on the face of it to be a reasonable request, as it is just a private arrangement between two parties. The argument is obviously not valid if the transaction is one which is required by law to be in writing such as a transfer of land. This is not an agreement that could have been made orally. However, even if it is an agreement that could have been made orally the lawyer preparing the agreement has no way of knowing whether that is actually the case and that the agreement to be fully documented by him is the one that was reached at the earlier date. He also has no way of knowing whether the backdating will be scrutinized by a regulatory authority or even a Court. For example, will the document be provided in support of the party’s tax position giving the impression that a signed legal contact was in place before it was?\r\n\r\nThe difficult question for a lawyer to answer is to what extent does he have to enquire into the veracity of his client’s statement that the document “is just recording an earlier agreement”? Does he need to check to see whether that was actually the case or can he take an ostrich-like position and put his head in the sand and not ask any questions? Is there an obligation on the lawyer to make at least reasonable endeavour’s to confirm that he is being told the truth? Unfortunately, there is no simple or straight forward answer to this and it comes down to  how comfortable the lawyer will be defending his position in agreeing to backdate the document if his judgment was wrong and the authorities challenge the document, possibly in a criminal complaint against the client. What confirmation of the earlier agreement did the client or the company for which the client (and lawyer) works provide? Is the client a longstanding one who has always acted properly in the past? How well does the lawyer know the client? These are questions he will probably be asked by the judge or regulator if things go wrong and to which he will need convincing answers.\r\n\r\nThere are some ways in which the lawyer can give himself some protection in agreeing to such a request but they are not foolproof. For example, if one wishes to backdate a document for the purposes of recording an earlier oral agreement, it should nevertheless still be drafted in such a way so as to avoid giving the incorrect impression that it was actually signed on the date stated. The best way to achieve this is to state openly in the document that it is recording an earlier oral agreement made on, and so is with effect from, a particular date and then date it the actual date it was signed. The position is then clear to all who subsequently look at the document.  Another way is to state at the beginning of the document that it is made “as of” the required date.  However, the actual date of signature should nevertheless be set out in the attestation clause at the end to avoid any claims that the document was intentionally misleading. Needless to say, even these methods of “backdating” a document should not be used when there was no earlier agreement and the document is just an attempt to give a false impression that something occurred on an earlier date than it did. Because even putting “as of” a certain date will not protect the lawyer from implication in a criminal act if the purpose of the backdating is actually to defraud or mislead the taxman, any regulatory authority or even any other individual and the lawyer knew or should have known that this was the case.\r\n\r\nSo as can be seen, the issue of backdating can be a contentious one. It is not straight forward and can give problems to any lawyer that agrees to backdate a document, even if he makes it clear on the document that it is backdated, as he must be careful to make sure that he knows why the document is being backdated and that it is being done for a legitimate reason. Therefore, if in doubt it is best to say “no” or to take external legal advice if appropriate.'),
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(93063, 5056, 'content', 'December 2014 - January 2015\r\n\r\n<hr />\r\n\r\nBut the supply of the wireless spectrum is relatively constrained. The result is a potential shortage of spectrum capacity.\r\n\r\nGCC countries are well placed to avert a spectrum crisis as long as mobile network operators and the regulators continue to make efforts to improve spectrum availability and efficiency.\r\n\r\n<strong>What exactly is wireless spectrum? </strong>\r\n\r\nAll wireless communication signals travel via the radio frequency spectrum. TV broadcasts, radio stations, GPS devices, mobile phones, smartphones and tablets all use invisible airwaves to transmit bits of data.\r\n\r\nThe easiest way to understand how spectrum is used is to look at a radio. When you tune your radio to a station at FM 103.8, you are tuning into the station that is broadcasting at 103.8 megahertz. If you want to a listen to a different station, you tune the radio to another frequency like FM 104.4, where another radio station is transmitting over that particular frequency. Different stations cannot transmit over the same radio frequency spectrum at the same time in the same area - if they did, they would cause interference with each another.\r\n\r\nAs wireless signals only transmit over a certain distance, you probably will not be able to tune in a radio station you like that broadcasts out of, for example, Dubai when you are in Doha.\r\n\r\nMobile devices work in much the same way. Mobile telecommunications network operators cannot transmit wireless signals over the same frequencies in the same markets at the same time.\r\n\r\nEach country has a government authority that controls who can use what spectrum in that country. That authority grants companies licenses to use the spectrum.\r\n\r\nFor mobile phones, spectrum has generally been allocated between 700 MHz and 2.6 GHz frequency range. Most of the spectrum in this range has already been allocated for use. This means if a mobile network operator wants to add more spectrum to boost the capacity for its services, it may well be disappointed. Currently there is not much more unlicensed spectrum that can be used.\r\n\r\n<strong>The Predicted Shortage</strong>\r\n\r\nSmartphones and tablets have been driving a huge increase in demand for spectrum capacity in recent years.  We are now looking at our phones rather than talking on them and that consumes more bandwidth. The average smartphone is responsible for 35 times more traffic than an ordinary cellphone. The average tablet user takes up over 120 times more bandwith.\r\n\r\nThe dwindling availability of a finite resource that cannot be seen or touched threatens to possibly disrupt the mobile lifestyle that the people in GCC countries have embraced.\r\n\r\nBecause the airwaves on which wireless data travels are nearing capacity around the world,  industry analysts  have predicted  that users in major cities in other regions will be subject to  wireless “rush hours”  which will be  characterized  by two to three times as many failed  attempts to connect, and three to four times  as many instances  of dropped or frozen calls or frozen web browsing.\r\n\r\nIn particular it was predicted that in 2014 the US alone would suffer a spectrum deficit of 275 MHz, about 50 percent of the currently allocated capacity of 574 MHz.\r\n\r\n<strong>Mobile Data Traffic Growth Rate Decelerating</strong>\r\n\r\nDespite predictions that some countries should have exhausted their wireless data capacity by now, this has not actually happened yet.  Why not?\r\n\r\nThe reason appears to be that although the demand for wireless spectrum capacity globally is still growing very quickly, it is doing so at a decelerating rate.\r\n\r\nThe Middle East and Africa had the highest growth in mobile data traffic of 107 percent in 2013.  Clearly continued growth at that rate would quickly lead to shortage of allocated spectrum resources.\r\n\r\nHowever current predictions are that, while the Middle East and Africa will continue to have the strongest mobile data traffic growth of any region in the world over the next three years, the growth rate will slow to  the rate of 70 per cent.\r\n\r\nAlthough a growth rate of 70 percent is still exceptionally fast, the compounded effect of the deceleration in traffic growth means that there is significant reduction in the overall increase in consumption of data.\r\n\r\n<strong>How to Meet Demand</strong>\r\n\r\nEven if we recognize that past estimates for the growth in wireless data use have been overstated, the risk remains that the amount of spectrum currently allocated to wireless data in the GCC region could, at some point in the not too distant future,  be inadequate to meet demand\r\n\r\nTo meet this demand, action needs to be taken by network operators and regulators to both find additional spectrum and find ways to use it more efficiently.\r\n\r\nFortunately, both can be done. Here are a number of possible actions that can be taken:\r\n\r\n<strong>1.  Reallocation of spectrum</strong>\r\n\r\nThis is the course favored by mobile network operators and, to a considerable extent, regulators.\r\n\r\nThe best example is the “Digital Dividend’ reallocation from broadcasting to mobile.  The digital dividend refers to the spectrum which will be released in the process of digital television transition. When television broadcasters switch from analog platforms to digital only platforms, the part of the radio frequency spectrum that had been used for broadcasting will be freed up because digital television needs less spectrum than analog television.\r\n\r\nThe UAE Telecommunications Regulatory Authority (“TRA”) was among the first regulators in the region to propose an allocation for mobile operators in the 700MHz band. In May 2012, the UAE TRA announced plans to vacate sub-1GHz (694–862MHz band) spectrum to allow some parts of it to be used by mobile operators by June 2015. This was covered in the TRA’s ‘Terrestrial Digital TV Switchover’ plan.\r\n\r\nOman, Kuwait and Saudi Arabia have similar plans to completely move to digital TV broadcasting, and consequently free up spectrum for mobile operators.\r\n\r\n<strong>2.  LTE deployment</strong>\r\n\r\nThe mobile network operators promote Long Tern Evolution (“LTE”) as being faster than existing technologies. In general it is, but its real importance is that it uses its spectrum far more efficiently than 3G technologies. LTE is almost 16 times better than 3G at moving a bit of data over a hertz of spectrum.\r\n\r\nEvery single carrier in the GCC now has at least one LTE network.\r\n\r\nLTE subscriptions in the Middle East increased by 174% to 3 million for the year preceding the second quarter of 2014 according to an Ovum metrics report released in September 2014. With a 20% population penetration for LTE in the first quarter of 2014, Kuwait is one of the top 10 most penetrated markets globally.\r\n\r\nCurrently in the GCC, most LTE deployments are in the 1800 MHz bands and above. The sub-1 GHz frequencies (ideal for urban and rural LTE deployments) are still awaiting reallocation after Digital Dividend transition. The one exception is in Qatar, where Vodafone and Ooredoo, have launched LTE on the 800 MHz.\r\n\r\n<strong>3.  WiFi Offload</strong>\r\n\r\nWiFi Offload is a technique used by moble network operators to basically reduce usage of their cellular networks by having you use your home or free local WiFi hotspots for your smartphone’s data connection.  An Infonetics Research global mobile spectrum report released in March 2014 said that some mobile operators reported that up to 75% of mobile device data traffic is actually on WiFi.\r\n\r\n<strong>4.  Spectrum sharing</strong>\r\n\r\nIt has been argued that there is plenty of wireless spectrum available to meet the demand for wireless services, but the problem may be that too much of it is in the wrong hands.\r\n\r\nIn a 2011 report from analysts at Citigroup, it was said that in the US the operators that controlled the greatest amount of unused spectrum were either under-captialized or unwilling to build out networks to use that spectrum. By contrast, operators who were in the best position to build out these networks, were already using a significant amount of their spectrum holdings to offer existing wireless services.  In total US operators had licenses for about 538 MHz of wireless spectrum in 2011. Only about 192 MHz of that spectrum was actually being used.  Most of the unused spectrum at that time was owned by three companies that were only second tier carriers in the US.  Since 2011 one of those companies has been taken over by Sprint and another has filed for bankruptcy.\r\n\r\nThe spectrum sharing concept is based on a lease model where licensees are encouraged to lease part their spectrum to competitors temporarily on commercial terms.\r\n\r\nRegulators should be encouraging spectrum sharing to focus on usage of allocated spectrum.   Licensees should be subject to build-out requirements, anti-hoarding mandates, technology mandates and increased use of spectrum sharing.\r\n\r\nIn the US the Federal government is trying to have the military share its unused spectrum allocations. This may be an option in the GCC region.\r\n\r\n<strong>5.  White spaces</strong>\r\n\r\n‘White space’ is defined as the unused frequencies allocated to broadcasting services that are left unused in particular areas of a country.   The white space frequencies vary by region but generally lie in chunks of useful spectrum between 470Mhz to 698Mhz. The size of the frequency gaps, and their precise frequency varies too – meaning that there is no single white space frequency that can be used around a country. Cognitive or agile mobile phones and tablets could use the free spectrum by knowing which frequencies are available, at what power levels, and at which time of day in a particular location. Unfortunately, white space is most available in rural areas and scarce in crowded cities where it is really needed.\r\n\r\n<strong>6.  Small cells</strong>\r\n\r\nWireless operators can add capacity without obtaining more spectrum by adding more cell sites.  Additional cell sites in spectrum constrained areas allow the same spectrum to be used by even more consumers, subject to some well understood design considerations. By 2016, market research by Huawei (a leading ICT solutions provider to network operators in the  GCC region) has predicted that small cells could serve up to 25% of all mobile traffic.\r\n\r\n<strong>7.  Smart antennas</strong>\r\n\r\nOne of the best ways to increase the capacity of a radio network is to focus on improving the ability of the radio to listen via its antenna. Although antennas play a key role in any radio communication, they have tended to receive very little engineering attention as a percentage of the overall work that goes into a piece of mobile network equipment. Building and deploying better antennas is one way to drastically increase the overall efficiency of a network.\r\n\r\nSmart antennas send better targeted transmissions by pointing their beams towards individual devices when they are connected rather than simply broadcasting a response in all directions as is done with an omni-directional antenna.\r\n\r\n<strong>Outlook</strong>\r\n\r\nThere is no single cure when facing a spectrum shortage. However the spectrum “crisis” is a challenge that the region can overcome with a combination of sound regulatory policy, effective network planning and good technology. Most or all of the above described actions are going to be needed in combination to meet the fast growing demand for the GCC region’s finite spectrum resources.'),
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(93078, 5057, 'content', 'December 2014 - January 2015\r\n\r\n<hr />\r\n\r\nPPP involves a contract between a public sector authority and a private party, in which the private party provides a public service or project and assumes substantial financial, technical and operational risk in the project, while the public sector ensures fair competition, transparency and, in some cases, a guaranteed rate of return. PPP is a facilitating process that allows the government to initiate a project that has public sector defined goals and well-stated performance indicators to be monitored accordingly, whereas the private sector funds and operates the project based on a set of contractual agreements. PPPs help make the most of scarce public funding and introduce private-sector technology and innovation to provide better-quality public services through improved operational efficiency.  PPPs also allow for the better allocation of risk between public and private entities, taking into account their capacity to manage those risks.\r\n\r\nUntil recently, Jordan had not implemented a single piece of legislation dealing specifically with concessions or incorporating the legal framework for PPP. However, Regulation No 80 of 2008 for Implementing Privatization Transactions (“Privatization Regulation”) issued in pursuance of Article 20 of the Privatization Law Number 25 of 2000 although not dealing specifically and exclusively with PPP, did provide for various mechanisms by which privatization may occur. Additionally, sector-specific laws allow for privatization of certain projects under a relevant sector. For example, the Water Authority Law No 18 of 1988, Public Electricity Law No 64 of 2002 and the Telecommunication Law No 13 of 1995 deal with PPP with respect to the water, electricity and telecommunication sectors respectively.\r\n\r\nIn contrast, the Public-Private Partnership Law No 31 of 2014 (“PPP Law”) aims to encourage the participation of the private sector in the Kingdom’s economic development and provide a legislative environment for joint projects between the two sectors. The PPP Law focuses on identifying infrastructure sectors open to private participation, designating the agencies responsible for approving private projects or contracts, clarifying rules regarding contract amendments and termination, ensuring competitive bidding and other procurement related provisions and defining the availability of dispute settlement, namely international arbitration. The PPP Law also aims to rehabilitate, construct, operate and maintain the public infrastructure, as well as encouraging the private sector to invest with the government and extending funding for feasible public projects.\r\n\r\nFor said purposes, the PPP Law provides for the establishment of a new Association Council between the Public and Private Sectors (“Council”) to evaluate and approve contracts entered into with the private sector. The Council is responsible for developing policies of joint projects between the private and public sector, identifying priority activities and sectors, taking decisions regarding proposed partnership projects and submitting them to the Council of Ministers for approval, granting approval of a tender bid for a PPP project and awarding the same, approval of the draft PPP contract, adoption of the standard project cycle stage, looking into disputes arising between contracting parties and entities from the private sector, discussing the necessary draft regulations needed to implement and enforce the provisions of this law. The PPP Law also establishes the Partnership Unit Between the Public and Private Sectors (“Unit”), which essentially registers PPP projects, stipulates the correct process of procurement, reviews the due diligence reports, reviews the contracts being negotiated, provides technical support during the execution stage and facilitates and records the progress of the PPP projects.\r\n\r\nImportantly, the PPP Law further sets out the tendering and bidding process applicable to PPPs, as well as the conditions relating to the management of such projects. Pursuant to Article 4 of the PPP Law, PPP projects may be established in any economic field, with the exception of certain fields as may be determined by the Council of Ministers upon the recommendation of the Council.\r\n\r\nIn this regard, Article 11 of the PPP Law stipulates that private sector entities may approach a governmental entity directly and propose a project, but that does not ensure it will be awarded such project. Rather, a set of conditions need to be met in order for such a proposal to be considered; including, inter alia, that it has to be in line with the contracting party’s priorities and that it must not contradict the Government’s development plan.\r\n\r\nA proposed PPP project shall be referred to the Unit to submit its formal proposal, and the contracting party, after registering such proposal at the Unit, shall conduct a feasibility study and carry out a due diligence report.  The Council shall approve or reject the award, taking into consideration the report and recommendations of the Unit.\r\n\r\nIt is important to note that Article 21 of the PPP Law prohibits a member of the Council, the Unit, an employee at the concerned Ministry, a consultant or any technical or advisory committee member, from working on a PPP project directly or indirectly. Said ban extends to their spouses, children and relatives to the second degree. This was implemented to avoid bias and corruption during the bidding and tendering processes. It should also be noted that, pursuant to Article 13, no PPP contract shall exceed 35 years.\r\n\r\nThe PPP Law was essentially implemented to codify the method of PPP project procurement, the way tenders are to be issued, the process of submitting and accepting bids and the rules and regulations of PPP projects. PPPs are one way to assist in providing for increased competitiveness, efficiency and productivity. In some cases, PPPs can bring great benefit by leveraging the management capacity, innovation and expertise of the private sector, but at other times a traditional public sector approach could be more appropriate. Clearly, legislation is an important element; whereas the old law was limited to traditional concessions and the Build Operate Transfer form of PPP, the new PPP Law, through a competitive tendering process, seeks to attract the best technical and financial partners to implement PPP projects in all sectors of the economy for the purposes mentioned.'),
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(93082, 5057, 'content_description', 'A public–private partnership (“PPP”), sometimes referred to as P3, is a government service or private business venture which is funded and operated through a partnership of the government and one or more private sector companies. '),
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(93093, 5058, 'content', 'December 2014 - January 2015\r\n\r\n<hr />\r\n\r\nHowever, to date, there have not been any significant enforcement actions taken by the UAE Ministry of Economy (the relevant authority tasked with administering the competition law) nor any major UAE court cases enforcing the provisions of the competition law.\r\n\r\nOne of the reasons for this is that the law contemplates a number of procedures being detailed in further executive regulations which, until recently, had not been issued.  However, the UAE’s Federal Cabinet of Ministers (Cabinet) has now issued executive regulations which took effect on 27 October 2014.  These regulations deal with procedures relating to (i) seeking exemptions from rules relating to restrictive agreements and abuse of dominant position, (ii) pre-merger approvals where the aggregate relevant market share of the parties involved exceeds a certain percentage, and (iii) complaints being made by any “concerned person” to the Competition Department of the UAE Ministry of Economy (Department).\r\n\r\nIn general terms, applications for exemptions or pre-merger approvals will be submitted to the Department together with certain specified accompanying information/documentation and the Department shall then make a recommendation to the UAE Minister of Economy. The Minister shall either approve, conditionally approve or reject the application within a maximum of 135 days from the date that the concerned parties have been notified of the Minister’s receipt of the application.  Complaints, again which must be accompanied by specified information/documentation, are made to the Department which will either determine that there are sufficient grounds for further investigation or reject the complaint.  If the complaint is accepted for further investigation, the Department will notify all parties involved, allow them to make submissions in respect of the matters raised, seek further information if required and then issue a report and recommendation to the Minister. The Minister shall issue a resolution regarding the matter within 30 days of receiving the report from the Department.\r\n\r\nWhile the issuance of the regulations should be seen as a positive step, they do raise a number of further issues and it remains to be seen how they will be implemented in practice.  By way of example, one of the documents required to be submitted as part of any pre-merger approval is the “draft contract” relating to the merger.  It is unclear whether this allows parties to enter into a legally binding sale agreement that is conditional on approval being granted.  Further, while the regulations allow a party to require that information and documents that are submitted to the Department remain confidential there is also an obligation on that party to produce a non-confidential summary of such information/documents that is sufficient to indicate the content of confidential data.  It is unclear as to what level of detail such a summary will require.\r\n\r\nFinally, another major gap that still remains with regard to the UAE competition law is that there are certain matters that are referred to in the law as being the subject of separate specific resolutions to be issued by the Cabinet.  One such matter is the relevant percentage market share threshold that will trigger the requirement for pre-merger approval.  To date these resolutions have not been issued and until they are, and until further guidance is received from the Department/UAE Courts on how certain concepts referred to in the law will be interpreted (for example, what constitutes the “relevant market” for goods), the impact of the competition law on economic activity within the UAE remains unclear.'),
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(93112, 5059, 'content', 'December 2014 - January 2015\r\n\r\n<hr />\r\n\r\nOne of the most important is the Law 62 of 2014 (the new Commercial Anti-Fraud Law), which was enacted and published on 9 October 2014 with immediate effect (the “New Law”). The new law establishes further grounds to trademark owners to file a complaint before the Bahraini authorities to pursue and impose sanctions against traders and entities that supply counterfeit products, including foodstuffs, basic and luxury products, medical products, cosmetics and other commodities.\r\n\r\nThe New Law provides a broad definition of a counterfeit product any original product which has been changed or been tampered in some way which has resulted in it losing some of its material or in-kind value; whether this was by addition, deduction or change in the commodity itself, its nature, type, properties, form, elements, measure, scale, power, caliber and/or its origin or its source. For example, this would cover a situation where a legitimate product (such as an unmarked leather wallet) is then tampered with to create a counterfeit product (such as by placing a well known logo on it).\r\n\r\nThe New Law also criminalizes the attempt to commit fraud by giving false information about the type, origin or source. Interestingly, the sanctions of the New Law are substantial, and in addition to other types of fraud can be used to pursue infringers of intellectual property rights. However, this does not prejudice the use of any more severe punishment stipulated in other laws, such as trademarks or penal codes in Bahrain. This reflects the legislator’s intent to impose high penalties against those that commit fraud, including counterfeiting traders and for the penalties to comprise both imprisonment and fines. In regards to imprisonment, sentences are capped differently depending on the consequences of violation (ranging from 3, 5 to 10 years). As far fines, these have different levels and they range from 3,000 Bahraini Dinars (approximately USD 8,000) to 20,000 Bahraini Dinars (approximately USD 54,000) or the equivalent of the value of the commodity in question, whichever is greater.\r\n\r\nThe Ministry of Industry and Commerce will be responsible for the implementation of the New Law. The relevant Ministry’s officers are authorised according to the New Law to accept complaints, enter premises, inspect records and confiscate the products. We expect that the local authorities in Bahrain will issue further implementing regulations, statutes and resolutions to aid with the execution of the New Law during the course of this year. We expect that these resolutions will give more clarity on the implementation of this law and establish the legal mechanism to pursue the application of it.'),
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