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(94056, 5108, 'content', 'March 2015\r\n\r\n<hr />\r\n\r\nPrior to the issuance of the Margin Trading Rules, margin trading was only mentioned as a regulated activity under Law No. 8 of 2012 (the “QFMA Law”) among other activities listed in the definition of ‘financial services’.\r\n\r\nThe margin trading process for customers of a QFMA licensed financial services company is spelt out in detail under the Margin Trading Rules covering the opening of the account up to registering of shares with the Qatar Central Securities Depository (the “QCSD”) as well as registering increases thereof on the customer’s accounts opened by the financial services firm managing the account for the customer.\r\n\r\n<strong>Restrictions</strong>\r\n\r\nMargin trading account holders may not subscribe to initial public offerings through their margin trading accounts.  They can only trade in listed securities.  Margin trading customers may only have one margin trading account with one QFMA licensed financial services company.\r\n\r\n<strong>Collateral</strong>\r\n\r\nAccording to Article 11 of the Margin Trading Rules, the marginable securities and purchased securities by margin trading and cash balances of the customer in the margin trading accounts are permitted collateral against margin trading financing.  Financial services companies may not take other forms of collateral for margin trading except after obtaining the QFMA approval or in exceptional cases i.e. continuous decline in the market value of the purchased securities or suspension of trading of the purchased securities for more than 7 working days.\r\n\r\nA financial services company has priority rights, to recover its debt from customers, over the securities purchased by margin trading by virtue of Article 14 of the Margin Trading Rules.\r\n\r\nAccording to Article 439 of the Commercial Code No. 27 of 2006 (the “Commercial Code”), lending against securities is considered a loan against a pledge and such pledge must be recorded (on the securities itself for physical securities or in the QCSD for listed securities).  Although a pledge of securities may not be necessary for the purposes of the Commercial Code as implied by the Margin Trading Rules, there are no restrictions in the Margin Trading Rules on the customer to sell or assign those securities or take financing from other lenders against those securities.  Therefore, a pledge of the securities deposited in the margin trading account would be a prudent approach once enabling machinery is tested.\r\n\r\n<strong>Licensing</strong>\r\n\r\nThe QFMA requires a financial services company to hold a licence to execute sale and purchase orders of securities.  Other licensing requirements for margin trading activities are set out in Article 3 of the rules including minimum capital (to be decided by the QFMA), a bank guarantee (with a value to be determined by the QFMA) and no material breach of capital adequacy requirements in the year preceding the license application.\r\n\r\nThe licensing application must be supported by audited and unaudited financial statements, a report on margin trading data processing system applied by the financial services company and a margin trading account opening form and agreement.\r\n\r\nA margin trading agreement must include material information including responsibilities and rights of the parties, trading risks, the right of the financial services company to sell the securities in case of decline in the maintenance margin, collateral, voting rights, the right to dividends or interest, fees and commissions, agreed initial and maintenance margin and interest applied by the financial services company on the financing (not to exceed the lending rate declared by the Qatar Central Bank).  The QFMA approval is issued in 90 days.\r\n\r\n<strong>Practical Issues</strong>\r\n\r\nThe Qatar Exchange (“QE”), being the financial market in Qatar and the implementation arm of the QFMA, is in the process of issuing a new rulebook which will include the exchange specific operational guidelines on margin trading.  The exchange is conducting extensive discussions with the QFMA and the primary brokers and banks in the market to facilitate the issuance of the new rules of the QE on margin trading.  No brokers or other financial companies have been licenced to date to carry out margin trading.  The implementation of the Margin Trading Rules by the QE has not been tested.  Obtaining the licence of the QFMA to carry out margin trading activities would require working closely with the QE and applications would help shape the QE rules on margin trading.\r\n\r\n<em>This article first appeared in IFLR Magazine (International Briefings Qatar) February 2015.</em>'),
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(94060, 5108, 'content_description', 'The Qatar Financial Markets Authority (the “QFMA”) has issued rules on margin trading on 10 September 2014 (the “Margin Trading Rules”).  '),
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(94062, 5108, 'pageSummary', 'The Qatar Financial Markets Authority (the “QFMA”) has issued rules on margin trading on 10 September 2014 (the “Margin Trading Rules”).'),
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(94079, 5109, 'content', 'March 2015\r\n\r\n<hr />\r\n\r\nSignificant bonus payouts to senior executives had become commonplace amongst financial institutions. Said practices raised concerns both in terms of the  transparency of banks’ policies and as to the sustainability of the financial sector as a whole.  In order to address said weaknesses and achieve greater transparency the Central Bank of Bahrain (the “CBB”) has released mandatory remuneration rules for licensed financial institutions (applies equally to listed licensed financial institutions) in Bahrain (the “New Regulation”) under Module HC-5 of Volume 1 and 2 of the CBB Rulebook. Under the New Regulation financial institutions are expected to disclose remuneration practices, capital adequacy and undergo internal evaluation to align compensation with risk management. The New Regulation came into effect on 1 July 2014.\r\n\r\nIt is hoped that the New Regulation will introduce tighter controls and monitoring mechanisms relating to compensation practices, whilst taking into account an institution’s overall strategy and risk measurements. The New Regulation is aimed at enhancing confidence and building a robust system in Bahrain that brings financial institutions on par with international standards as set by the Basel Committee on Banking Supervision.\r\n\r\nThis article provides an overview of the New Regulation and analyzes some of the practical implications that its implementation may have on financial institutions.\r\n\r\n<strong>Scope of the New Regulation</strong>\r\n\r\nThe New Regulation applies to Approved Persons  and Material Risk Takers  receiving  an annual remuneration amount exceeding One Hundred Thousand Bahraini Dinars (BD 100,000) (approximately US$265,000).  In  calculating  remuneration  all types of compensation and  benefits are included, for example, salary, education, transport and housing allowances,  and health insurance.\r\n\r\n<strong>Governance </strong>\r\n\r\nUnder the New Regulation,  remuneration policies require the approval of  the licensee’s shareholders, and  a remuneration committee formed by and consisting of the board of directors and the CBB.\r\n\r\ni. Remuneration Committee\r\n\r\nThe New Regulation entrusts the board of directors (through the remuneration committee) responsibility for oversight of remuneration systems for all Approved Persons and Material Risk Takers by:\r\n<ul>\r\n 	<li>approving the remuneration amount, policy and distribution of total variable remuneration; and</li>\r\n 	<li>monitoring and reviewing the remuneration policy and ensuring that effective controls such as back testing and stress testing of the remuneration policy are introduced.</li>\r\n</ul>\r\nii. CBB and shareholders’ oversight\r\n\r\nFurther, all incentive plans for Approved Persons and Material Risk Takers must be approved by the shareholders.  Said plans are then subject to CBB approval and must be submitted to the CBB within three (3) months of the end of the financial year.  Moreover, annual reports detailing the total amounts of remuneration as well as assessing compliance with the overall policies shall be submitted to the CBB. This requisite approval is meant to provide additional stakeholder scrutiny and regulatory control.\r\n\r\n<strong>Remuneration Policies </strong>\r\n\r\nIn introducing the New Regulation the CBB directed financial institutions in the Kingdom of Bahrain on certain key matters which include: (i) the alignment of remuneration with risks (ii) fixed and variable remuneration (iii) bonus pool (iv) board remuneration (v) deferral of variable pay (vi) shared incentive plans.\r\n\r\ni. Compensation and risk alignment:\r\n\r\nRemuneration must be adjusted to take into account all tangible and intangible risks such as reputation, liquidity and cost of capital. Furthermore, the combination of forms of remuneration awarded should vary depending on the employee’s role and should be consistent with said risk alignment. As such, two employees generating the same profit yet engaging in different levels of risks should not be treated in a similar manner.\r\n\r\nii. Fixed and variable remuneration\r\n\r\nLicensed financial institutions are obliged to put in place policies relating to the forms of remuneration and provide a rationale of said policies to the CBB.\r\n\r\nThe CBB requires that a significant portion of the overall remuneration is weighted towards fixed remuneration for the following roles: risk management, internal audit, operation, financial controls, internal Shari’a review/audit and Money Laundering Regulatory officer. Whilst a significant portion of remuneration is weighted towards variable remuneration for board directors and executive management as said roles generally entail higher risk taking. However, such allocations may prove challenging in practice given that some roles entail an overlap of decision making such that the differences in roles are not as clear-cut.\r\n\r\niii. Bonus pool\r\n\r\nThe New Regulation tightens the control on bonus payments by ensuring that institutions take into account the overall business performance and shareholders’ return. Accordingly, certain payments may be clawed back in cases of poor performance. Licensed financial institutions are required to reflect said concept in the employee’s contract of employment and must ensure the aggregate amount of any bonuses does not compromise the institution’s financial stability.\r\n\r\nThe New Regulation also introduced  the concept of deferred bonus whereby at least forty percent (40%) of the variable remuneration must be payable under deferral arrangements over a period of at least three (3) years. Moreover, for the CEO, his deputies and the other five (5) most highly paid business line employees, at least sixty percent (60%) of the variable remuneration must be payable under deferral arrangements over a period of at least three (3) years. Furthermore, at least fifty percent (50%) of the variable remuneration (including both the deferred and unoffered portions of the variable remuneration) must be awarded by way of shares where appropriate.\r\n\r\nThe only instance where deferred remuneration can be paid out before the end of the period is in case of the death of an employee. Whilst  this concept has been introduced as a mechanism to maintain long term performance measures, the introduction of deferral bonuses carries with it some challenging practical implications. For instance, what will the position be if an employee with deferred payments resigns?\r\n\r\nThe implementation of the deferral system will require a proper consideration of the overall legal position in Bahrain in relation to payments and incentives including a review of other related laws such as the Labour Law No. 36 of 2012. Further, the CBB should develop guidelines for the implementation of the deferral system so as to ensure that employees are not deprived of their legal and due entitlements. Setting aside any practical limitations, it is questionable whether the introduction of deferred bonus is the best practice to adopt especially in light of the market recovery.  The standard of remuneration according to the New Regulation expects the employees to be retained and motivated, and the introduction of deferred bonus risks may well prove de-motivating to some employees.\r\n\r\niv. Board remunerations\r\n\r\nNotwithstanding shareholders’ approval, the board remuneration should be capped at five percent (5%) of the  financial institution’s profit after all deductions as required by the Commercial Companies  Law (2001) Regulation are made.\r\n\r\nv. Share incentive plans\r\n\r\nAll share incentive plans are subject to shareholders’ approval and are now subject to a minimum share retention policy of six (6) months from the time the shares are awarded, unless the financial institution states otherwise. Where fixed or variable remuneration include common shares, the financial institution must limit the shares awarded to an annual aggregate limit of ten percent (10%) of its’ total outstanding issued shares.\r\n\r\n<strong>Practical Implications</strong>\r\n\r\nIt is without doubt that the introduction of the New Regulation imposes burdensome obligations on financial institutions in terms of disclosure and reporting. Financial institutions in Bahrain are now obliged to undergo extensive assessments to ensure that their operations are compliant with the New Regulation. Furthermore, banks and other licensees must now provide a detailed report explaining the rationale of the remuneration policies to the board of directors, shareholders and the CBB. Said reports should disclose practices and policies in relation to, but not limited to, the remuneration structure, form of review of such structures, risk adjustment measures and performance assessment. Additionally, institutions must review all employment contracts in relation to Approved Person and Material Risk Takers.\r\n\r\nThe CBB appear to be taking the lead in the region with the implementation of the New Regulations and are aligning themselves with international best practices. However, the Bahrain economy is still at a recovery stage and there is a risk that the New Regulations will put potential licensees off from opening in Bahrain, and that there may be a “brain drain” of those personnel from Bahrain who are directly impacted by the New Regulation.\r\n\r\nNonetheless, the New Regulation aspires to provide financial stability through full engagement of all stakeholders when it comes to remuneration policies. The shift of control and duty to oversee compensation has significantly been moved away from executive management through the establishment of the board remuneration committee and the requirement of shareholder approval. This is meant to decentralize and balance decisions in relation to the manner in which short and long term profits are managed. The involvement of stakeholders should ensure that short term profits are reinvested instead of being paid out as remuneration, consequently benefiting both the financial institution and the employees.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nIt is imperative that CBB Licensees carefully evaluate their compensation policy as many of the changes brought by the New Regulation are long term in nature and need to be carefully evaluated. The process of implementing the changes required by the New Regulation will be onerous on financial institutions; nevertheless, the long term financial benefits in terms of financial stability should be worthwhile for the financial sector in the Kingdom of Bahrain, and should raise financial institutions’ policies and operations to international standards.\r\n\r\n<address class=\"MsoNormal\">[1] Approved Persons include risk management, internal audit, operations, financial controls, head of internal Shari\'a review, compliance functions personnel and Money Laundering Regulatory officer.</address><address class=\"MsoNormal\">[2] Material Risk Takers include heads of significant business lines such as fixed income, foreign exchange, commodities, securitization, sales areas, investment banking, commercial banking, equities, structure finance, lending, trading areas</address>'),
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(94083, 5109, 'content_description', 'It is widely believed that one of the contributing factors to the global financial crisis during  2008 was the unfettered and inflated remuneration schemes adopted by many of the leading global financial institutions.   '),
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(94085, 5109, 'pageSummary', 'It is widely believed that one of the contributing factors to the global financial crisis during 2008 was the unfettered and inflated remuneration schemes adopted by many of the leading global financial institutions.'),
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(94094, 5110, 'content', 'March 2015\r\n\r\n<hr />\r\n\r\nMany Islamic financial institutions and investment companies in Kuwait have used and continue to use Shariah compliant financing methods including murabaha, bay bithamanajil, ijarah, musharaka and istisna. The previously mentioned instruments ensure that those seeking alternatives to conventional financing have an opportunity to use these Shariah compliant methods, allowing them to avoid exposure to riba (interest). As many already know, any form of riba is prohibited under the principles of Islamic Shariah.\r\n\r\nMore recently, customers now have the opportunity, using the global commodity markets, to open direct investment deposits (“DI Deposit”) with Shariah compliant banks. When completing a DI Deposit,  the following procedures are followed:\r\n<ul>\r\n 	<li>The customer informs the bank of the customer’s specific investment objectives and appoints the bank as an agent to purchase commodities on the customer’s behalf for the value of his or her investment amount (i.e. thedeposit).</li>\r\n 	<li>The bank will thereafter complete a spot purchase of the commodities, paying a broker by debiting the customer’s account and thereafter confirming the transaction to the client with legal title of the commodities being transferred to the customer. The entire transaction is executed through preapproved forms specifying the type of commodities, the date of purchase and a deferred payment date.</li>\r\n 	<li>The deferred payment date will correspond to the investment term as agreed between the parties and the deferred price will exceed the total purchase price by a specific profit margin to be paid to the Shariah compliant bank.</li>\r\n 	<li>Under the Shariah compliant DI Deposit, the bank will undertake all aspects of the commodity transaction on behalf of the customer through the execution of various sale contracts.</li>\r\n</ul>\r\nUnfortunately, there have been instances where DI Deposit agreements do not provide proper instructions on prepayment methods for its customers. The direct investment must outline how prepayment should be distributed in the event the customer or the bank wants to terminate the underlying arrangement.\r\n\r\nSome direct investment agreements include language identifying the rights and responsibilities of the parties in the event of prepayment.  Nonetheless, the best method to employ in early prepayment is by having the executing customer fill out a prepayment request form with the bank responding with an offer and acceptance form. The prepayment request form must outline the transaction date, the description of commodities, the total price paid and the deferred payment date. The latter form should also reference the original direct deposit agreement and the current request to make payment of the total price on an earlier date subject to a discounted price, while factoring in early payment, and calculate a reduction in the profit amount owed to the Bank. The offer and acceptance form must also provide specific details to identify the underlying transaction.\r\n\r\nWhile Sharia compliant direct deposits can be attractive form of investment, potential investors should seek legal advice prior to undertaking any commitments so as to ensure, amongst other things, they have adequate prepayment options.\r\n<div></div>'),
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(94098, 5110, 'content_description', 'Use of Islamic Instruments to provide individuals substitute forms of financing has surged over the past decade. '),
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(94100, 5110, 'pageSummary', 'Use of Islamic Instruments to provide individuals substitute forms of financing has surged over the past decade.'),
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(94117, 5111, 'content', 'March 2015\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">However, mandatory law may also be applicable.  In Jordan, the parties’ freedom to contract is a well recognised and enforced concept.  However, this article considers the extent to which certain mandatory law provisions self apply into the contract.</p>\r\n<p class=\"MsoNormal\">We consider the most important provisions of mandatory law in the context of construction contracts and those matters that should be borne in mind when negotiating future construction contract with either Jordanian Law as the governing law and/or which are relating to projects in Jordan.</p>\r\n<strong>Contract Interest Rates</strong>:\r\n<p class=\"MsoNormal\">Construction contracts always provide for the application of an interest rate in respect of delayed payments, and these are usually set at a high figure to act as a deterrent for any defaulting party.</p>\r\n<p class=\"MsoNormal\">Jordanian courts generally recognize and uphold parties’ agreement regarding the imposition of an interest rate to accrue on payments in the event of a default in payment subject to article 167 of the Jordanian Civil Procedures Law No 24 of 1988, (“<strong>CP Law</strong>”) which caps such interest rates at 9%.</p>\r\n<p class=\"MsoListParagraphCxSpFirst\">Generally, an interest rate on defaulting payments which is higher than 9% will not be enforceable (unless the party is a Bank) and the Court will consider it contrary to ‘Public Order and Morals’, which may cause difficulties for any arbitration award which is trying to be enforced. This is discussed further below.</p>\r\n<strong>Liquidated Damages</strong>:\r\n<p class=\"MsoNormal\">Liquidated damages (also referred to as liquidated and ascertained damages) are an amount of pre-determined damages which the parties designate and set in a contract for the injured party to collect as compensation upon a specific breach by the other party. In other words, liquidated damages are an agreed rate or amount which becomes payable by a party in the event of a breach by that party of the contract.</p>\r\n<p class=\"MsoNormal\">The rate should be a genuine pre-estimate and not a form of penalty to deter breach. There is no ‘penalty’ damages concept for contract damages under Jordanian Law. Courts generally award damages which reflect the extent of loss suffered by the injured party, on a compensation for actual damage suffered, rather than punitive basis.</p>\r\n<p class=\"MsoNormal\">Despite the use of liquidated damages clauses which seek to quantify the ‘loss’ incurred’, under Jordanian Law. Courts generally award damages that reflect the extent of the actual loss suffered by the injured party rather than on a punitive basis.</p>\r\n<p class=\"MsoNormal\">Accordingly, when seeking to enforce a liquidated damages clause which provides for excessive penalties or fines, the same may not be enforced by Jordanian Courts.  In brief, the Courts will consider such clauses as being contrary to ‘Public Order and Morals’.</p>\r\n<p class=\"MsoNormal\">In addition article 364 of the Jordanian Civil Code No 43 of 1976 (“<strong>Civil Code</strong>”), gives a right to either party to apply to the Court to decrease or increase contractually agreed damages, to be that damage actually incurred and proven.</p>\r\n<p class=\"MsoNormal\">Contractual liability determined by the Court only covers proven actual loss.  Under Jordanian Law, contractual damages will not be due if the debtor is able to establish that the creditor did not suffer any damage, notwithstanding a an agreement for penalties in case of default.</p>\r\n<p class=\"MsoNormal\">Importantly the amount of damages may be reduced if the debtor has established that the assessment was excessive.  Where the debtor proves that part of the original obligation has been performed; any agreed damages may be found to be void.</p>\r\n<p class=\"MsoNormal\">Generally, when seeking to determine actual losses suffered, the Court may, in addition to examining the admitted evidence supporting such claims, seek the assistance of experts. As stated, contractual liability determined by the Court only covers evidenced actual loss [excluding any tortious liability].</p>\r\n<strong>3.    </strong><strong>Limitation of Liability:</strong>\r\n<p class=\"MsoNormal\">Construction projects are often a web of interconnected contracts with different parties which may indirectly affect each other’s ability to uphold their contractual obligations. To provide a higher degree of commercial and legal certainty, parties will generally seek to by limiting the scope of what each respective party can claim for by including a broad limitation of liability clause.</p>\r\n<p class=\"MsoNormal\">It is permissible under the Civil Code for parties to contractually agree to exclude or limit liability.  However, parties’ freedom to limit said liability does not extend to liability arising from acts of fraud or gross negligence, acts of tort, or any act or omission which fall under the scope of criminal law.</p>\r\n<p class=\"MsoNormal\">Further, the court, may award loss of profits damages where such damages are caused by a tortious act.</p>\r\n<strong>4.    </strong><strong>Warranty Period/ Decennial Liability</strong>\r\n<p class=\"MsoNormal\">Under Article 788 of the Jordanian Civil Code, the architect/engineer who designed a structure and the contractor who built it, are jointly liable to the employer for any complete or partial collapse and for every defect which threatens the strength and safety of the structure, for a period of ten years from the date of taking over the works, (“<strong>Decennial Liability</strong>”).</p>\r\n<p class=\"MsoNormal\">This mandatory and cannot be excluded by contract but the 10 year period can be longer if agreed.</p>\r\n<p class=\"MsoNormal\">Additionally, Decennial Liability applies even if the defect or collapse results from a defect inherent in the land itself, and even if the employer has given its consent to the defective construction.</p>\r\n<p class=\"MsoNormal\">There is a 1 year limitation period under Article 791 of the Civil Code for bringing a claim for damages, which runs from the date of the occurrence of the collapse or discovery of the defect or collapse.</p>\r\n<p class=\"MsoNormal\">The Civil Code does not define when defects should have been discovered, so ‘discovery’ in this context may be construed as actual discovery.</p>\r\n<p class=\"MsoNormal\">This time is in addition to the 10 year period so for instance, where the defect/collapse occurs on the eve of the 10 year period, the Employer. If so would still have 1 year following such an event to bring a claim. Accordingly, it may be said that the contractor and designer can still be liable for decennial liability of 11 years post-delivery.</p>\r\n<p class=\"MsoNormal\">The architects liability is limited by Article 789 of the Civil Code, where the architect/engineer has prepared the designs only and was not assigned to supervise the execution, to responsibility for the defects in the design, or which result from the design, rather than the defects which results from the method of execution of the design.</p>\r\n<p class=\"MsoNormal\">Similarly where a contractor who works on a construct only basis under the supervision of an architect or under the supervision of the employer (who has appointed himself in lieu of the architect/engineer), the contractor shall only be liable for defects in the execution and not for the defects in design.</p>\r\n<strong>5.    </strong><strong>Enforcement of Foreign Arbitral Awards:</strong>\r\n<p class=\"MsoNormal\">Arbitration is often the default or go to means of dispute resolution in construction or infrastructure projects. Arbitration arguably grants more practicable benefits than litigation for projects of this nature, most important of which is time efficiency and speed.</p>\r\n<p class=\"MsoNormal\">For the purposes of foreign arbitration, foreign arbitral awards are granted the same treatment as foreign judicial awards. Jordan is a signatory to the 1958 New York Convention which was ratified in 1979. The enforcement of foreign awards in Jordan is governed by The Enforcement of Foreign Awards Law No.8 of 1952 (“<strong>Enforcement Law</strong>”), subject to fulfilling certain conditions.</p>\r\n<p class=\"MsoNormal\">In that regard, the Enforcement Law defines a ‘foreign award’ as “<em>any award issued by a court outside of the Hashemite Kingdom of Jordan (including Religious courts) relating to civil proceeding and which provides for the payment of monies or in-kind assets or liquidation of accounts and which includes decisions of arbitrators in arbitral proceedings if the award has become, by virtue of the laws of the country which issued the award, enforceable as an award issued by the courts in the aforementioned country”.</em></p>\r\n<p class=\"MsoNormal\">The main condition for the enforcement of a foreign arbitral award in Jordan is the issuance of an exequatur order by virtue of a judicial decision in the country where arbitration was held. However the Jordanian courts may deny the enforcement of a foreign award granted under such exequatur in the following limited cases:</p>\r\n<p class=\"MsoNormal\">1. The court which issued the foreign award did not have jurisdiction to issue it:</p>\r\n<p class=\"MsoListParagraphCxSpMiddle\">In the sense that the court which issued the foreign award should have the competence to do so, including having both the geographic and specific jurisdiction to determine the case. Further, decisions issued by administrative bodies are not enforceable.</p>\r\n<p class=\"MsoListParagraphCxSpMiddle\">In accordance with Article 7 of the Enforcement Law, the award is not enforceable in Jordan in the following circumstances:</p>\r\n<p class=\"MsoListParagraphCxSpMiddle\">(a) if the defendant did not have his place of business, or was not resident in an area under the jurisdiction of the court; or</p>\r\n<p class=\"MsoListParagraphCxSpLast\">(b) if the defendant did not attend the court by his own choice, and has not acknowledged its jurisdiction.</p>\r\n<p class=\"MsoListParagraphCxSpFirst\">2. The award should be final, binding and enforceable in the country which issued it:</p>\r\n<p class=\"MsoListParagraphCxSpMiddle\">For a decision to be considered final, binding and enforceable, it must not be open to challenge (on whatever grounds and for whatever reason) in the country which issued the decision. Please note that the burden of proof that the foreign award is not binding and enforceable lies with the defendant. If the defendant is able to prove the decision does not satisfy the above conditions, the award is not enforceable. Further, if the award is contested in the country which issued it, the claim to enforce the award before the Jordanian courts is stayed pending the outcome of that appeal or objection in that other jurisdiction.</p>\r\n3. The Defendant must be notified:\r\n<p class=\"MsoListParagraphCxSpMiddle\">Provided that the issuing court had the jurisdiction to hear the case, Jordanian laws further provide conditions as regards notifying the defendant; Article 7 of the Enforcement Law provides that the Jordanian Court can refuse to enforce the award if the defendant was not served notice to attend the court which issued the said ruling, and he did not appear before the said court, despite the fact that he has his place of business, or is resident in an area under the jurisdiction of the said court. What is crucial here is not whether or not he attended, but rather whether or not he was properly notified, and as such, could have attended the hearing.</p>\r\n<p class=\"MsoListParagraphCxSpMiddle\">4. Reciprocity:</p>\r\n<p class=\"MsoListParagraphCxSpMiddle\">In accordance with the principle of reciprocity of treatment, a Jordanian court may refuse to hear a claim to enforce a foreign award, if the award was issued in a country which does not allow the enforcement of Jordanian awards.</p>\r\n5. Legality:\r\n<p class=\"MsoListParagraphCxSpMiddle\">The award must not have been obtained fraudulently.</p>\r\n6. Public Order and Morals:\r\n<p class=\"MsoListParagraphCxSpLast\">The award should not go against the public order and morals of Jordan. This is a wide ambit, under which the Court retains discretion for the nullification of awards.</p>\r\nIn light of the above, contractors and employers alike should take the necessary due diligence steps to ensure that their contract and the terms agreed to therein, do not contradict mandatory law, for the purposes of contractual certainty.'),
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(94140, 5112, 'content', 'March 2015\r\n\r\n<hr />\r\n\r\n<strong>Intellectual Property Protection Committee</strong>\r\n\r\nA new Intellectual Property Protection Committee (the “IPPC”) has been recently established at the Kuwait Trademark Office (the “TMO”) which is now the competent authority to receive all complaints related to trademark infringement. The IPPC has amongst its members the Commercial Control Department (“CCD”),  which carries out the raids against the suspected shops, and the Criminal Evidence Department (the “CED”) which prepares and issues expertise reports on whether confiscated goods are counterfeit or not.\r\n\r\nThe procedures for filing complaints before the IPPC have simplified matters procedurally. Complaints used to be filed before the Undersecretary Commercial Control at the Ministry of Commerce and Industry (the “MOCI”), and it took a long time for the complaints to reach the competent CCD.  The previous procedures involved formal letters exchanged by the several departments. The procedure now is now more streamlined, with the complaint being filed with the IPPC. Once filed, the IPPC will immediately liaise with the relevant CCD department and provide guidance on how to proceed with the complaint. It is also possible for the plaintiff to follow up with the relevant CCD department directly without having to wait for official correspondence between the different authorities and departments. The committee members also coordinate with each other in several ways including creating a group on the “Whatsapp” application through which they plan to secure fast and effective coordinated actions.\r\n\r\nThe requirements for filing a complaint before the IPPC are simple  and only the following documents must be enclosed along with the complaint itself:\r\n<ul>\r\n 	<li>Copies of TM registration certificates;</li>\r\n 	<li>One sample of the counterfeit products and the receipt of purchase;</li>\r\n 	<li>The address of the infringer;</li>\r\n 	<li>One sample of genuine products; and</li>\r\n 	<li>Power of Attorney</li>\r\n</ul>\r\nFurther, for expensive products, the IPPC is considering excusing the plaintiffs from providing samples of the genuine product.  However, one sample of such products will have to be submitted at a later stage to the CED so that they may compile their expert report.\r\n\r\nThe new measures are an indication of the TMO and associated governmental agencies giving importance to the fight against counterfeiting, and it is expected that these measures will evolve in the near future to increase effectiveness and efficiencies and deter counterfeiters.  The current procedures are much improved from the previous procedures, which involved complicated steps.  In the older procedures, the initial step was filing the complaint before theMOCI notwithstanding that its  only function was to accept the complaint and send the file to the competent CCD through formal and lengthy procedures and then receive the file back from the CCD to arrange to send it to the Public Prosecutor.  With the current procedures, the process is much faster as the complaint is now filed before the IPPC, in which the CCD is a member.  After the filing of the complaint, the CCD is able to begin its work with regards to the complaint almost immediately.'),
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(94173, 5115, 'content', 'April 2015\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">Or can you simply manage your trademarks through entrusting the agent quoting the lowest professional fee? Can you really justify appointing a solid but somewhat expensive attorney, if you know what classes are relevant, and how to choose your mark? In order to answer these questions, you will probably need to survey the functions of the Trademarks Offices in the Middle East region and understand whether one can read the trends of the Examining Officers or the Registrars and accordingly anticipate what is registrable and what is questionable. How can you read such trends with ever-changing staff at these UAE Trademarks Offices? How can you read trends from the Kuwaiti Trademarks Office that does not provide the service of a trademark search? Or from the KSA Office whose examination decisions vary drastically between examiners sitting next to each other in the same office.</p>\r\n<p class=\"MsoNormal\">When you analyse the functions of the trademark offices, one could paint a terrible picture and question whether it is worthy or even safe to protect trademark rights in the region. We would not go that far, as the economies of the Middle East and growth percentages make very clear the importance of protecting your brands in the region. However, we have to acknowledge that consistency and trend setting are difficult to read in the Middle East.  A lot of time, effort and recording of (often contradicting) decisions is required to challenge and prevail against a decision by the TMO to reject or challenge an application,</p>\r\n<p class=\"MsoNormal\">Perhaps the UAE, with its TMOs being relatively progressive in the Middle East, can be studied as an example supporting the argument that, in choosing a lawyer, trademark owners should consider the qualifications and experience of a trademark attorney and not merely make a decision based on the professional fees. There is no question that, if you need an effective trademark attorney in the UAE, you certainly need an effective one throughout the Middle East. The number of unusual decisions issued by the UAE TMO in relation to trademark prosecution in recent years was alarming to both trademark attorneys and trademark owners. Several communications have been made through industry associations as well as through trademark practitioners in relation to the decisions made by the TMO that neither consistent with the Trademarks Law nor with the usual practice adopted by the TMO, not to mention best practices of Trademark Offices on an international level. Some of these decisions related to expediting the revenue generated from trademark applications, while others related to expediting the prosecution process at the expense of quality and others related to decisions that contradicted logical timeframes that can be managed by trademark owners.</p>\r\n<p class=\"MsoNormal\">Some examples of these decisions include:</p>\r\n\r\n<ul>\r\n 	<li>In 2009, the Trademarks Section, for a temporary period, obliged all trademark applicants to pay the registration fee of USD1,300 per application prior to becoming due, which meant that trademark applicants and attorneys were required to deposit huge amounts many months earlier than the usual projected date, otherwise their applications would be deemed abandoned. This practice was inconsistent with the Implementing Regulations and with the applicable practice at the Trademark Office. It resulted in exerting pressure on trademark attorneys to advance huge amounts on behalf of their clients, which in many cases was impossible due to the UAE having arguably the highest registration fees in the world. It also strained the relationship between the trademark attorneys and their clients as it reflected a wrong perception of mismanagement of the file. As the UAE and KSA TMOs are among the world’s most expensive in terms of fees, a trademark attorney with weak cash flow would not have been able to meet the deadlines and payments dictated by the TMO and would therefore not have been able to keep its client’s pending applications alive.</li>\r\n</ul>\r\n<ul>\r\n 	<li>The Circular dated 19 May 2014 issued under Administrative Decision No. 3 of 2014, whereby the TMO communicated to all trademark attorneys its decision to:</li>\r\n</ul>\r\n<ol>\r\n 	<li>\r\n<ul>\r\n 	<li>Cancel the issuance of preliminary technical examinations;</li>\r\n 	<li>Cancel any-time extensions offered by the examination department, to restrict the decisions of the  examination departments to either acceptance, rejection or acceptance by way of stipulation; an</li>\r\n 	<li>Issue decisions to reject applications that contravene the list of products and services mentioned in the NICE Classification for goods and services.</li>\r\n</ul>\r\n</li>\r\n</ol>\r\n<p class=\"MsoNormal\">Cancelling preliminary technical examinations means that rectification of minor changes or clarifications raised by the Trademarks Section is no longer an option. This would inevitably increase the number of rejection decisions and consequently increase the number of objection cases, adding yet more files to the backlog. A simple issue such as submitting a renewed trade license, which could have been resolved through a technical examination report, has now become a serious matter and can be subject to a rejection decision. One could rationalise the Ministry’s direction to relieve their staff from paperwork and reduce time spent on examinations, however the end result is that it still leads to more work for other departments within the Trademarks Section (those dealing with rejections). Appealing rejection decisions requires the trademark attorney to have kept Court judgments in relation to trademarks, in order to bring a convincing appeal to reverse the TMO decision.</p>\r\n\r\n<ul>\r\n 	<li>Finally, the Power of Attorney was required to be submitted at the time of filing an opposition, which is burdensome and without justification. Opposition actions are raised in reaction to publications in the Trademark Journal. From the date of publication, interested parties are given 30 days to consider filing an opposition, and now the Ministry stipulated that the PoA is to be submitted within that same period. If you consider that a three week period is required to execute a PoA outside the UAE if all documents are in place, and that a further week is required for the notification process of conflicting trademarks, which requires the parties to be present and research of the Trademarks Journal, then there is no wonder that many interested parties were deprived of the chance to file their oppositions in time due to the tight time frame and unnecessary formality. This in turn means that a lot of would-be oppositions turn into cancellation cases that must be raised as a Civil case before the Court of First Instance. In this case your trademark attorney must be an appropriately-qualified law office/lawyer to be able to initiate the cancellation case.</li>\r\n</ul>\r\n<p class=\"MsoNormal\">Managing your trademark portfolio in the Middle East requires a switched-on and experienced attorney, who maintains records and examples ready to be presented to challenge a TMO decision, has sufficient financial strength to address unusual changes in the process, and is able to bring about legal actions to reverse TMO decisions.</p>'),
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(94192, 5116, 'content', 'April 2015\r\n\r\n<hr />\r\n\r\nNot only does Dubai have the infrastructure, services and people to support commercial success, it is universally recognised as offering one of the most business-friendly environments in the world. It is also the region’s transport and logistics hub, a key factor in the decision of multinational companies to establish themselves in the emirate.\r\n\r\n<strong>Setting up in Dubai</strong>\r\n\r\nDubai is one of seven emirates in the United Arab Emirates (UAE). In terms of setting up corporate entities, Dubai’s multi-jurisdictional nature offers a multiplicity of options. Dubai has built a position as a major commercial, industrial and trading hub in the region, and in order to maintain that position, particular attention has been paid to easing the process of setting up companies. Depending on business objectives and the preferred shareholding structure, foreign investors have the option of setting up either in mainland Dubai, or in one of numerous industry-specific free zones.\r\n\r\n<strong>Mainland Dubai</strong>\r\n\r\nDubai’s Department of Economic Development (DED) is the department in charge of licensing and registration of corporate entities in mainland Dubai. The DED’s licensing and registration procedure is streamlined to offer ease of registration based on specific business activities of the corporate entity. The Commercial Companies Law (CCL) is the federal law that regulates all entities set up in the UAE mainland, and governs corporate entities set up in mainland Dubai.\r\n\r\n<strong>Limited liability companies</strong>\r\n\r\nIn the UAE mainland, the main limitation in setting up a limited liability company (LLC) for foreign investors is the foreign ownership restrictions. When setting up a LLC, the CCL prescribes that at least 51% of shares must be registered under a UAE national (natural or legal person). In practice, there are professional service providers (PSPs) acting as nominee shareholders, holding the 51% of shares for, and on behalf of, the foreign investor. Commonly, where such PSPs are used and the foreign investor is vested with 100% beneficial interest in the LLC, the LLC’s memorandum of association will typically be drafted in such a way as to confer all authorities and powers to operate and manage the LLC on the foreign investor, including for example the appointment powers of the board of directors, the general manager and other officers.\r\n\r\nAnother safeguard that can be provided to the foreign investor is contractual. Frequently, the foreign investor and the PSP enter into contracts generally referred to as side agreements, which facilitate a contractual relationship between the parties that safeguards the foreign investor to the maximum extent possible by law. A major advantage of having an LLC in mainland Dubai is that within mainland Dubai there are no territorial restrictions on the business activity or on the premises of the office, and there is no minimum capital requirement. It is important to note that there is a tax regime in place, but it is not in effect, and that there is a 5% customs duty on all imports.\r\n\r\n<strong>Branch of a foreign company</strong>\r\n\r\nSetting up a branch of a foreign company in mainland Dubai is another option available. A branch does not have an independent legal personality, being in the legal sense an extension of its parent company. A branch can undertake all activities of its parent with the exception of trading in the UAE mainland.\r\n\r\nWhen setting up a branch, one needs to appoint what is known as a local service agent (LSA), which has to be a UAE national (natural or legal person). Unlike the foreign ownership restriction for LLCs, the LSA requirement is purely procedural. The LSA has no role, interest or right in the business, or the assets of the branch. Typically, the LSA’s role is to liaise with government offices to open the labour and immigration files for branch employees’ visas. Normally, the LSA is paid an annual fee for providing such services.\r\n\r\n<strong>The free zones</strong>\r\n\r\nFree zones act as a one-stop shop to facilitate the establishment of corporate entities and aiming to satisfy all their needs, from licensing and registration to labour and immigration, providing a business-friendly environment as well as access to required services. Across the UAE there are designated territorial areas that are considered distinct legal jurisdictions from the UAE government, allowing free zone jurisdictions to regulate, license and register corporate entities independently. Dubai boasts more than 30 free zone jurisdictions. <strong> </strong>\r\n\r\nThe key advantage to foreign investors is that free zones generally offer the option of 100% foreign ownership of entities without the need of a UAE national acting as an agent or otherwise. Additionally, free zone laws generally prescribe a guaranteed tax-free period of 50 years, customs duties do not apply where the imported goods are for the use of the company, and there are no restrictions on repatriation of capital and profits.\r\n\r\nThe main restriction for a free zone entity is that it cannot conduct trading activity outside of the territorial limits of the free zone without appointing a Dubai mainland based commercial agent, and upon entry of goods into mainland Dubai, a customs duty will be applied.\r\n\r\n<strong>Offshore companies</strong><em> </em>\r\n\r\nSelect free zones, for example Jebel Ali Free Zone (JAFZ), offer the option of setting up offshore companies. Offshore companies are not regarded as operational entities, acting merely as holding companies. JAFZ offshore companies can only own property in designated areas in the UAE. A key advantage of offshore companies is that they are quick to set up, there are no limitations on foreign ownership and there is no minimum share capital requirement. A key limitation of offshore companies is that they cannot sponsor any employees.\r\n\r\n<em>First published in China Business Law Journal March 2015.</em>\r\n<p class=\"MsoNormal\"></p>\r\n<p class=\"MsoNormal\"></p>'),
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(94198, 5116, 'pageSummary', 'Dubai is a city with a diverse and vibrant culture. With an economy historically built on the oil industry, Dubai’s main revenues come from tourism, trade, avaiation, real estate and financial services.'),
(94199, 5116, '_pageSummary', 'field_59e59b307dec8'),
(94200, 5116, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-11/april-8/setting-up-in-dubai.html'),
(94201, 5116, '_currentURL', 'field_59d35123ab1e7'),
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(94204, 5116, 'lawUpdateArticleWriters', '1'),
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(94206, 5116, 'lawUpdateArticlePractices_0_lawUpdateArticlePractice', '542'),
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(94208, 5116, 'lawUpdateArticlePractices', '1'),
(94209, 5116, '_lawUpdateArticlePractices', 'field_59dc7918de021'),
(94210, 5116, '_yoast_wpseo_metadesc', 'Dubai is a city with a diverse and vibrant culture. With an economy historically built on the oil industry, Dubai’s main revenues come from tourism, trade, avaiation, real estate and financial services.'),
(94211, 5117, 'content', 'April 2015\r\n\r\n<hr />\r\n\r\nIndeed, real estate investment currently constitutes a major element of the Kuwaiti economy. Given the importance of the real estate sector in Kuwait, it has become necessary to develop and systematise this sector of the Kuwait economy in order to enable average individuals and investors to participate in the real estate market and utilise skilled and professional institutions for the same. As such, Kuwait has now given the average investor the opportunity to invest through skilled and expert institutions by subscribing in a Real Estate Investment Fund (commonly known as “REITs”) which effectively enables investors to share the income revenues of real estate amongst themselves without the need to actually buy commercial real estate.\r\n<p class=\"MsoNormal\">The law that allowed for this change in the Kuwait market was the Capital Market Law No.7 of 2010 and its executive regulations (the “CMA Law”).  The CMA Law only contemplates one type of REIT, which is the equity REIT (“Equity REIT”). The Equity REIT is a financial vehicle equivalent to any mutual fund regulated under the oversight of the Capital Market Authority of Kuwait (“CMA”). The Equity REIT enables its unit holders to collectively share in the REIT revenues arising out of the underlying real estate assets.</p>\r\n<p class=\"MsoNormal\">The real estate sector in Kuwait requires an expert institutional presence, such as banks, investment banks and those licensed companies under the oversight of the CMA (the “Licensed Companies”), so that the market can be assessed more precisely and driven in the right direction. Therefore, a REIT ideally represents the role of an institutional expert as it is capable of ascertaining the market position and investing in real estate on behalf of groups of individuals who lack expertise and experience in the real estate market.</p>\r\n<p class=\"MsoNormal\">One of the key characteristics of the Equity REIT under the CMA Law that makes it an advantageous financial vehicle in Kuwait is it enables non-Kuwaiti citizens to indirectly invest in the real estate sector in Kuwait, which is generally not possible. In particular, the CMA Law, its directives and Decree No.8 of 2012 do not impose any restrictions hindering non-Kuwaiti citizens from investing in REITs. The real estate market in Kuwait will most likely prosper as a result of the cash that will flow from both non-Kuwaiti citizens and Kuwaiti investors in REITs.</p>\r\n<p class=\"MsoNormal\">Licensed Companies, by establishing REITs, are in a position to assist average investors in navigating the real estate market in Kuwait and help to develop the local real estate market by making precise market studies and appraisals. This will attract investors who were previously directing their investments to amorphous real estate markets. Licensed Companies will get the advantage of both market share in a lucrative market and systemisation of the same. The CMA Law should help to bring the regulatory and orderly nature of the capital markets to the Kuwait commercial real estate market. Not only should REITs assist Licensed Companies to raise funds with tolerable leverage to enter the real estate market, but also give average investors a kind of liquidity not ordinarily available to them in the commercial real estate sector. The profitability of the real estate commercial market should transfer into the capital market and the stock exchange as well since the liquidity advantage existing in the capital markets portfolio will be realised by the real estate market, which is rapidly appreciating.</p>\r\n<p class=\"MsoNormal\">The significance of REITs for the Gulf financial market has expanded, particularly in those countries which lack diversification of resources. From a business standpoint, the REIT is considered to be liquid assets or an investment that has a generally accepted value and a market where it can be sold easily with little or no discount. Although REITs relate to the real estate sector, a solid asset, they also have the advantage of the liquidity of stocks. In this regard, it is worth highlighting that when an investor buys a REIT, he is not just purchasing real estate, he is also buying a business.</p>\r\n<p class=\"MsoNormal\">In conclusion, it is likely that the REITs in the Kuwaiti jurisdiction will flourish during the next few years particularly under well established capital market regulations and with non-Kuwaiti citizens being able to subscribe in REITs and indirectly invest in the Kuwait real estate market. REITs in Kuwait should help to organise the real estate commercial market as well as helping to protect investors from the unpredictable values of real estate.</p>\r\n&nbsp;'),
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(94215, 5117, 'content_description', 'As we witness a global economy recovery after a painful financial crisis starting in 2008, it is evident that real estate sector is currently considered as one of the most influential factors in the global financial recovery, particularly in the Gulf region. '),
(94216, 5117, '_content_description', 'field_59b641c07f473'),
(94217, 5117, 'pageSummary', 'As we witness a global economy recovery after a painful financial crisis starting in 2008, it is evident that real estate sector is currently considered as one of the most influential factors in the global financial recovery, particularly in the Gulf region.'),
(94218, 5117, '_pageSummary', 'field_59e59b307dec8'),
(94219, 5117, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-11/april-8/reits-in-kuwait.html'),
(94220, 5117, '_currentURL', 'field_59d35123ab1e7'),
(94221, 5117, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Ayman Salem'),
(94222, 5117, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(94223, 5117, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'a.salem@tamimi.com'),
(94224, 5117, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'field_59e59afcd15de'),
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(94226, 5117, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', 'field_59e59b05d15df'),
(94227, 5117, 'lawUpdateArticleNoWriters', '1'),
(94228, 5117, '_lawUpdateArticleNoWriters', 'field_59e59aaed15dc'),
(94229, 5117, '_yoast_wpseo_metadesc', 'As we witness a global economy recovery after a painful financial crisis starting in 2008, it is evident that real estate sector is currently considered as one of the most influential factors in the global financial recovery, particularly in the Gulf region.'),
(94230, 5118, 'content', 'April 2015\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">They are appealing against sanctions and disciplinary orders made by the African Football Confederation (“CAF”) in relation to the 30th Africa Cup of Nation which was held in Guinea earlier this year (the “Appeals”).</p>\r\n<p class=\"MsoNormal\">The claims are of interest because they illustrate the role of CAS in the region, a role that is set to become more important with the ever-growing amount of sporting events taking place in the Middle East and North Africa, not least the 2022 World Cup in Qatar.</p>\r\n<p class=\"MsoNormal\"><strong>Morocco</strong></p>\r\n<p class=\"MsoNormal\">Morocco was meant to host the 30th Africa Cup of Nations but decided to withdraw due to the spread of the Ebola virus epidemic in West Africa. The FRMF had requested from the CAF a postponement of the 2015 tournament, but CAF rejected the idea. FRMF then withdrew from hosting the tournament, which prompted CAF to move the tournament to Guinea. CAF also banned Morocco from taking part in the next two tournaments and imposed a fine of USD 1 million and the payment of Euro 8 million in compensation to CAF and its stakeholders.</p>\r\n<p class=\"MsoNormal\">FRMF seek to appeal these decisions by CAF made against it. It is expected that an award in connection to the appeal will be issued within about three months.</p>\r\n<p class=\"MsoNormal\"><strong>Tunisia</strong></p>\r\n<p class=\"MsoNormal\">The appeal by the FTF relate to sanctions that were ordered by CAF as a result of incidents that took place on the pitch at the end of a quarter final match of the Africa Cup of Nations between Tunisia and Equatorial Guinea. The incidents were mainly actions directed against the match referee and CAF officials.</p>\r\n<p class=\"MsoNormal\">CAF condemned FTF for the incidents, fined them USD 50,000, and invited them to send an apology to CAF for accusations of bias against the Tunisian team, or to present a letter with irrefutable and tangible evidence proving FTF’s claims of CAF’s bias.  CAF also endorsed the decision to suspend the FTF president, Mr. Wardie Jari. CAF fixed a deadline of 31 March 2015 for the FTF to conform with the CAF directives, failing which Tunisia would be disqualified from the following Africa Cup of Nations in 2017.</p>\r\n<p class=\"MsoNormal\">The CAF announced on 1 April 2015, that during a meeting on 13 March 2015 with the FTF, the FTF started its presentation with a formal apology.  However, in its press release, CAF did not state that the apology complies with the decision of the disciplinary board of 6 February 2015. Moreover, it has been announced in a Nigerian newsletter that the FTF sent an apology to CAF, however the announcement has not been officially confirmed till date.</p>\r\n<p class=\"MsoNormal\">In its statement of appeal the FTF enclosed a separate request to stay the decisions relating to the suspension of Mr. Jari and the disqualification of Tunisia from the 2017 Africa Cup of Nations pending the appeal. However, on 5 March 2015 CAS issued an order rejecting the request for a stay based on its non-urgency. CAS stated that there was no irreparable damage attached or to be suffered by FTF given that the tournament is taking place in the year 2017.</p>\r\n<p class=\"MsoNormal\">It is expected that an award in connection to the appeal will be issued within about three months.</p>\r\n<p class=\"MsoNormal\"><strong>The role of CAS</strong></p>\r\n<p class=\"MsoNormal\">CAS is an independent institution based in Switzerland. It was initially created in 1984 as part of the International Olympic Committee to deal with disputes arising during the Olympics in an impartial and non-political way. In 1994 it was reformed and became independent of the International Olympic Committee.</p>\r\n<p class=\"MsoNormal\">CAS is able to consider any sports-related disputes provided there is an agreement to submit such disputes to it. This agreement may be incorporated in a contract between the parties (either before or after the dispute arises) or more often it may be stated in the statutes and regulations of the relevant sports organization. As described more fully below, this is the case in relation to CAF.</p>\r\n<p class=\"MsoNormal\">The dispute resolution mechanism used at the CAS may be a regular arbitration proceeding, mediation or an appeal arbitration procedure.  The appeal arbitration procedure is applicable for disputes resulting from decisions taken by the internal bodies of sports organizations, such as CAF.</p>\r\n<p class=\"MsoNormal\">Since 1994 CAS has become increasingly popular as a way of independent resolving sports-related disputes. It has resolved thousands of cases and has a list of arbitrators from all regions of the world.</p>\r\n<p class=\"MsoNormal\"><strong>CAS and CAF</strong></p>\r\n<p class=\"MsoNormal\">The jurisdiction of CAS in relation to the appeals failed by Tunisia and Morocco is derived from, amongst other things, Article 49 of the CAF Statute dated 11February 2007. Paragraph 1 of Article 49 states that CAF shall allow appeals to CAS “to resolve any disputes between CAF, national associations, members, leagues, clubs, players, officials, match agents and licensed players’ agents”.  Moreover, paragraph 2 of the same article states that the Code of Sports-related Arbitration shall be the procedural rules governing the arbitration proceedings while the substantial rules shall be “the various regulations of CAF and FIFA or, if applicable, of national associations, members, leagues and clubs and, as a last resort, Swiss law” .</p>\r\n<p class=\"MsoNormal\">The appeals procedure may be filed only after exhausting all the internal remedies of the sports organization concerned.  Moreover, according to Article 49(3) of the CAF Statute, the appeals must be filed with CAS within 10 days of the decision being communicated to the concerned party.</p>\r\n<p class=\"MsoNormal\"><strong>Conclusion</strong></p>\r\n<p class=\"MsoNormal\">It remains to be seen how the Tribunal’s appointed in relation to the two appeals will resolve them, though their decisions should be made later this year. However whatever the decisions, the role of CAS in the region is likely to increase with the growing number of sporting events. CAS provides a neutral and efficient mechanism by which sports disputes can be resolved, and its growing popularity is a testament to its effectiveness. In the coming years we can expect a growing role for CAS in the Middle East and North African region.  To accommodate for such growth and facilitate access to the CAS in both regions, two cooperation agreements were signed in 2012, launching alternative hearing centres (“AHC”) in Cairo and Abu Dhabi.  The first cooperation agreement was signed with the Cairo Centre for International Commercial Arbitration-CRCICA for the <em>Cairo AHC</em> and the second cooperation agreement was signed with the Abu Dhabi Judicial Department for the <em>Abu Dhabi AHC</em>.  The presence of the CAS in both regions through the AHCs will simplify procedures and save costs as parties will no longer be required to travel to Switzerland for their CAS appeals, arbitrations or mediations.</p>'),
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(94234, 5118, 'content_description', 'The Royal Moroccan Football Federation (“FRMF”) and the Tunisian Football Federation (“FTF”) have filed appeals before the Court for Sports Arbitration (“CAS”) in Lausanne, Switzerland. '),
(94235, 5118, '_content_description', 'field_59b641c07f473'),
(94236, 5118, 'pageSummary', 'The Royal Moroccan Football Federation (“FRMF”) and the Tunisian Football Federation (“FTF”) have filed appeals before the Court for Sports Arbitration (“CAS”) in Lausanne, Switzerland.'),
(94237, 5118, '_pageSummary', 'field_59e59b307dec8'),
(94238, 5118, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-11/april-8/morocco-and-tunisia-appeal-before-the-court-for-sports-arbitration.html'),
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(94242, 5118, 'lawUpdateArticleWriters', '1'),
(94243, 5118, '_lawUpdateArticleWriters', 'field_59da2a866b064'),
(94244, 5118, 'lawUpdateArticlePractices_0_lawUpdateArticlePractice', '410'),
(94245, 5118, '_lawUpdateArticlePractices_0_lawUpdateArticlePractice', 'field_59dc79c8e10ce'),
(94246, 5118, 'lawUpdateArticlePractices', '1'),
(94247, 5118, '_lawUpdateArticlePractices', 'field_59dc7918de021'),
(94248, 5118, '_yoast_wpseo_metadesc', 'The Royal Moroccan Football Federation (“FRMF”) and the Tunisian Football Federation (“FTF”) have filed appeals before the Court for Sports Arbitration (“CAS”) in Lausanne, Switzerland.'),
(94249, 5119, 'content', 'April 2015\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">Following publication of the above decision, the Copyright Protection Office circulated the relevant forms which will be required to be completed and submitted in addition to the existing documentation.</p>\r\n<p class=\"MsoNormal\"><strong>In Summary</strong></p>\r\n<p class=\"MsoNormal\">The implementing regulations of the Qatari Copyright Law No. 7 of 2002 have not yet been issued; thus delaying the implementation of the law.  Before issuance of the above decision, it was possible to deposit a copyright work with the Copyright Protection Office; however, it was not possible to settle the relevant fees or have a certificate issued.</p>\r\n<p class=\"MsoNormal\"><strong>The impacts of issuance</strong></p>\r\n<p class=\"MsoNormal\">Issuance of the above decision will effectively empower the copyright holders to legally enforce their rights against any third party infringements attempts, as well as have the ability to commercialise their copyrights in the Qatari market. In addition, the applicants can now request payment of the filing fees, as stated in the new filing form issued, as well as requesting a certificate.</p>\r\n<p class=\"MsoNormal\">As the state of Qatar is a Member of the Berne Convention for the Protection of Literary and Artistic Works, the majority of copyright protection formalities, terms, sanctions and recordal requirements fall in line with the other members of the said convention.  For instance, copyright is protected in Qatar for the author\'s life plus 50 years following the author\'s date of death.</p>\r\n<p class=\"MsoNormal\"><strong>In order to complete the recordal of copyright, the applicants are advised to consider a time frame which varies between </strong>7 to 12 working days providing they complete the following requirements:</p>\r\n\r\n<ul>\r\n 	<li>Power of attorney;</li>\r\n 	<li>Name of author(s);</li>\r\n 	<li>Subject of the work;</li>\r\n 	<li>Five copies of the work;</li>\r\n 	<li>Detailed specification of the work; and</li>\r\n 	<li>Written declaration of the ownership of the work.</li>\r\n</ul>\r\n&nbsp;\r\n<ul>Applications for recordal can include books, pamphlets and other writings; works delivered orally such as lectures, addresses, sermons or similar works such as poems and hymns; dramatic and dramatic musical works; musical works, whether or not they include accompanying words; choreographic works and pantomimes; audiovisual works; photographic and similar works; works of applied art, whether handicraft or produced on an industrial scale; works of drawing and painting with lines and colors, architecture, sculpture, decorated arts, engravings, sketches, designs and three-dimensional geographic or topographic works; and computer programmes.</ul>\r\n<p class=\"MsoNormal\"><strong>Infringement</strong></p>\r\n<p class=\"MsoNormal\">The sanctions for piracy or infringement activities were also set out in a proper way with statutory penalties of fines of up to QAR 100,000, i.e. USD $27,500 and/or imprisonment for up to one year.</p>\r\n<p class=\"MsoNormal\"><strong>Conclusion</strong></p>\r\n<p class=\"MsoNormal\">Even though the above decision does not replace the issuance of the missing implementing regulations of the Copyright law, it seems to be a positive step to encourage copyright holders to register their rights in Qatar.</p>'),
(174570, 5119, 'core_values', ''),
(174571, 5119, '_core_values', 'field_59b64ab071de4'),
(94250, 5119, '_content', 'field_59b649b5c8b2b'),
(94251, 5119, 'lawUpdateArticleMonth', '5113'),
(94252, 5119, '_lawUpdateArticleMonth', 'field_59da2a396b063'),
(94253, 5119, 'content_description', 'The Qatari Minister of Economy and Commerce has issued a Decision Number 410 of 2014 relating to Copyright Official Fees, which was published in the Official Gazette of Qatar Number 19 of 30 December 2014. '),
(94254, 5119, '_content_description', 'field_59b641c07f473'),
(94255, 5119, 'pageSummary', 'The Qatari Minister of Economy and Commerce has issued a Decision Number 410 of 2014 relating to Copyright Official Fees, which was published in the Official Gazette of Qatar Number 19 of 30 December 2014.'),
(94256, 5119, '_pageSummary', 'field_59e59b307dec8'),
(94257, 5119, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-11/april-8/empowering-copyright-protection-in-qatar.html'),
(94258, 5119, '_currentURL', 'field_59d35123ab1e7'),
(94259, 5119, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Ra\'ed Al Hout'),
(94260, 5119, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'field_59e59ad5d15dd'),
(94261, 5119, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'r.alhout@tamimi.com'),
(94262, 5119, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorEmail', 'field_59e59afcd15de'),
(94263, 5119, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', ''),
(94264, 5119, '_lawUpdateArticleNoWriters_0_lawUpdateAuthorLocation', 'field_59e59b05d15df'),
(94265, 5119, 'lawUpdateArticleNoWriters', '1'),
(94266, 5119, '_lawUpdateArticleNoWriters', 'field_59e59aaed15dc'),
(94267, 5119, 'lawUpdateArticlePractices_0_lawUpdateArticlePractice', '634'),
(94268, 5119, '_lawUpdateArticlePractices_0_lawUpdateArticlePractice', 'field_59dc79c8e10ce'),
(94269, 5119, 'lawUpdateArticlePractices', '1'),
(94270, 5119, '_lawUpdateArticlePractices', 'field_59dc7918de021'),
(94271, 5119, '_yoast_wpseo_metadesc', 'The Qatari Minister of Economy and Commerce has issued a Decision Number 410 of 2014 relating to Copyright Official Fees, which was published in the Official Gazette of Qatar Number 19 of 30 December 2014.'),
(94272, 5120, 'content', 'April 2015\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">These clauses are infamous within the construction industry, especially at the subcontracting level. There are a number of jurisdictions (e.g., UK, Singapore, New Zealand and certain states in Australia) where contractual ‘pay-when-paid’ types of arrangements are either void or looked at with suspicion by the courts.</p>\r\n<p class=\"MsoNormal\">These conditional payment mechanisms work to the advantage of the contractors but may put a serious financial obstruction on the subcontractor’s cashflow. In the UAE, the law accentuates the impact of these clauses as the Civil Code prohibits subcontractors from claiming directly against the employer unless the main contractor has assigned its rights against the employer to the subcontractor.</p>\r\n<p class=\"MsoNormal\">Keeping in mind the practical reality of a subcontractor being at the bottom of the payment food chain, what steps can a subcontractor take to minimize the risk created by pay-when-paid clauses?</p>\r\n<p class=\"MsoNormal\">Some options which a subcontractor can use when faced with a pay when paid scenario are set out below.</p>\r\n<p class=\"MsoNormal\"><strong>Direct Payments by the Employer</strong></p>\r\n<p class=\"MsoNormal\">Bargaining and negotiating terms of a subcontract are difficult for any subcontractor. The practical reality is that power lies with the main contractor/employer, being the entity paying the money.</p>\r\n<p class=\"MsoNormal\">That being said, sometimes a subcontractor can successfully obtain a direct payment obligation from the employer, at least for certified amounts, thus bypassing the main contractor.</p>\r\n<p class=\"MsoNormal\">The Civil Code states that a subcontractor shall have no claim against the employer for anything due to him from the contractor unless the contractor has made an assignment to him against the employer.</p>\r\n<p class=\"MsoNormal\">If a subcontractor has this type of arrangement, care is needed to ensure the terms agreed with the employer do not leave the subcontractor with other legal hurdles (e.g. disputes under local courts and not arbitration).</p>\r\n<p class=\"MsoNormal\"><strong>Contractor Pursuing the Claims of the Subcontractor</strong></p>\r\n<p class=\"MsoNormal\">The subcontractor should ensure that there is a clause which states that the contractor shall purse the claims of the subcontractor to the fullest extent permissible by law. Bolstering this clause ensures that the subcontractor can put pressure on the contractor to go after the employer to secure payment of its claims. The Civil Code lends credence to this approach and states that a condition must be observed and fulfilled as far as possible.</p>\r\n<p class=\"MsoNormal\">It is also advisable to include a clause which provides for the contractor to update the subcontractor of its pursuit of the subcontractor’s claims. This can be done by way of a clause which provides for the contractor to send a copy of all documents relating to the subcontractor’s claim between the contractor and the subcontractor to the Employer. This would ensure that the subcontractor is aware of the progress of matters and can accordingly put pressure on the contractor to pursue its claims more aggressively if that is already not the case.</p>\r\n<p class=\"MsoNormal\">An important point for the subcontractor to note is that the success or failure of its claims to a large extent would depend on the evidence. This means that letters, correspondence, payment applications evidencing the subcontractor’s compliance with its obligation in time should be properly recorded, filed and maintained.</p>\r\n<p class=\"MsoNormal\"><strong>Suspending works</strong></p>\r\n<p class=\"MsoNormal\">Subcontractors should seek a right to suspend works on account of non-payment by the contractor.  Irrespective of a pay-when-paid clause, suspension of works is a powerful weapon which can strong arm a contractor to pursue the subcontractor’s claim diligently and pressure the employer into paying for work which is not in dispute.</p>\r\n<p class=\"MsoNormal\">In time sensitive projects, a robust right to suspend can coerce an employer to pay as a delay would mean incurring late completion damages. A right to suspend works however should be exercised only after fulfilling the primary obligation of performance of the condition under the subcontract. UAE law does not give the right to suspend to a party who has not fulfilled its primary obligation.</p>\r\n<p class=\"MsoNormal\"><strong>Limiting the effect of pay-when-paid regime</strong></p>\r\n<p class=\"MsoNormal\">It is common practice for contractors to deny a claim for an extension of time or additional cost due to delay if a reciprocal entitlement has not been provided to the contractor under the main contract. This is so even if the subcontractor is not at fault.</p>\r\n<p class=\"MsoNormal\">The right to claim additional cost or an extension of time should not be subject to the contractor having a similar right under the main contract where the delay is not on the contractor’s critical path (that is causing a delay to the whole project) or where the delay is caused by something at the contractor’s risk under the main contract.</p>\r\n<p class=\"MsoNormal\"><strong>Conclusion </strong></p>\r\n<p class=\"MsoNormal\">There are ways around a pay-when-paid regime. From the subcontractor’s perspective, the impact of these clauses can be made more reasonable, if not completely negated. A subcontractor should try to manage its risk by insisting on the inclusion of all the options discussed above. While a contractor may be unlikely to agree to all proposed changes, the inclusion of just one will go a long way in providing comfort to the subcontractor.</p>'),
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(94295, 5121, 'content', 'April 2015\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">Having its headquarters in Lausanne, Switzerland, CAS is regarded as the only tribunal that can hear disputes over the interpretation of the Olympic Charter; it is the sole tribunal of appeal from decisions of the world Anti-Doping Agency and the final tribunal of appeal for many major international sports federations.</p>\r\n<p class=\"MsoNormal\">This position at the top of the sporting-legal world and the general acceptance of its decisions has required CAS to ensure that its reasoning is grounded in appropriate legal basis.  In looking not only to the form and substance of the sporting rules before it but also by drawing on what are generally considered to be universally accepted legal principles when forming its opinions and advices, CAS jurisprudence is creating what is becoming known as a transnational, universally applicable sports law.</p>\r\n<p class=\"MsoNormal\">CAS is independent of any sports organisations and is considered the highest international dispute resolution forum for legal cases relating to sports, including commercial disputes (e.g. issues arising from sponsorship agreements or player contracts) and discipline (e.g. doping, non-compliance with codes of conduct).  It also acts as an appeals court for decisions made by sporting organisations’ own arbitration systems or dispute resolution mechanisms, including global associations with disciplinary arms such as FIFA and the International Olympic Committee.</p>\r\n<p class=\"MsoNormal\">In May 2012, Abu Dhabi, the capital of the UAE, became one of only four cities in the world to host a permanent CAS court, the other cities being Lausanne, Sydney and New York.</p>\r\n<p class=\"MsoNormal\">CAS Abu Dhabi is a joint venture between the International Council of Arbitration for Sport (ICAS) and the Abu Dhabi Judicial Department.  This joint venture agreement was signed as per the directives of Sheikh Mansour bin Zayed Al Nahyan, Deputy Prime Minister of the UAE and the Minister of Presidential Affairs.</p>\r\n<p class=\"MsoNormal\">According to the agreement, the CAS Abu Dhabi Centre will hold arbitration hearings, organise meetings, seminars and other activities related to the development and promotion of sport’s legal aspects in the region.   The Abu Dhabi office of sport\'s highest court will also handle local, regional and international sports-related disputes and provide the required facilities to conduct video calls with experts and witnesses from around the world.  The facilities include onsite meeting rooms, communications and internet infrastructure, audio and videoconferencing systems and technical equipment as well as all human resources required to operate the centre.</p>\r\n<p class=\"MsoNormal\">The launch of a CAS facility in Abu Dhabi will provide the opportunity for specialised adjudication of sports related disputes, something that is becoming more common in the Gulf with the rapid rise of participation in sports and the hosting of major sporting events.  In such cases, conducting hearings (live or via the centre’s technology) in the UAE rather than in Switzerland, can potentially save significant costs and shorten periods for resolution.</p>\r\n<p class=\"MsoNormal\">The first case brought before CAS Abu Dhabi for resolution is currently waiting for a decision. The case involved the appeal of an Indian swimmer, Amar Muralidharan, against a doping ban.  The swimmer based his appeal against the decision of the Indian national anti-steroids committee in New Delhi, which convicted him of using banned substances and issued a suspension from competition for two years.  The CAS assigned seasoned independent arbitrator, Michele Bernasconi, from Switzerland, to hear the case as a sole arbitrator.  Muralidharan, his two lawyers and his father attended the first hearing. At the time of printing this article, a follow up with the Abu Dhabi CAS centre indicates that the case is still under scrutiny and a determination of the appeal is imminent.</p>\r\n<p class=\"MsoNormal\">In a previous case with some similarities heard by CAS: United States Olympic Committee v International Olympic Committee CAS 2011/0/2422, CAS referred to the generally-applicable principles of sports law, in a review of its own jurisprudence declaring what was at that time Rule 45 of the Olympic Charter unlawful.  Rule 45 had been introduced to impose a greater sanction on athletes found guilty of a doping offence and suspended from competition for six months or longer; in such a case, the athlete would be banned additionally from competing in the summer and winter Olympic Games immediately following the completion of their suspension.  CAS held Rule 45 to be unlawful primarily on the grounds that by introducing an additional punishment unilaterally that was not sanctioned by the World Anti-Doping Agency Code, the International Olympic Committee had not followed its own rules and procedures.  In other words, it had acted <em>ultra vires</em>, or beyond its powers.</p>\r\n<p class=\"MsoNormal\">The introduction of fundamental generally applicable or universally accepted principles of law into the jurisprudence of CAS provides it with an opportunity to set minimum standards of procedural fairness and governance that are applicable across all sports to compliment its ability to cater to the specificity of sport.  Furthermore, it provides CAS’s decisions with an underpinning legalism that mature legal systems consider integral to continued and reliable operations.</p>\r\n<p class=\"MsoNormal\"><em>Rihab El Amin is a senior associate in Al Tamimi’s litigation practice based in the Abu Dhabi office and is also a key member of the sports law practice.</em></p>\r\n&nbsp;'),
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(94318, 5122, 'content', 'April 2015\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">For a period that extended from 1992 to 2003, the Iraq Speculative Market was known as the Baghdad Speculative Market, which was incorporated according to Law No. 24 of 1991. This market was a state market that enrolled at that time 113 Iraqi joint stock private and mixed companies. The Baghdad Speculative Market was closed according to a decision dated 19 March 2003 issued by its Board of Directors on 18 April 2004 (Law No.74 of 2004), which was issued to incorporate two significant entities in the field of capital, namely the:</p>\r\n<p class=\"MsoNormal\">- Iraq speculative market; and</p>\r\n<p class=\"MsoNormal\">- Commission of Iraq speculative market.</p>\r\n<p class=\"MsoNormal\">A speculative market is financially and administratively independent and is managed by a board of nine members representing different economic sectors of the investment field, which is called the Governors Council.</p>\r\n<p class=\"MsoNormal\">The most important trading feature of the speculative market is that the prices of the marketable shares are free and rely on factors of supply and demand and on available information and statements from joint stock companies.</p>\r\n<p class=\"MsoNormal\">The Iraq Speculative Market adopted the licences of brokers, which were issued from the dissolved Baghdad speculative market, and they were allowed to carry out trading operations therein.</p>\r\n<p class=\"MsoNormal\">The Iraq Speculative Market Commission was incorporated in compliance with law No.74 of 2004 and its amendments; it is a state independent commission having a legal personality consisting of five members including the chief. Its accounts and records are subject to audit by the Financial Supervision and Integrity Commission. The most important service offered by the Commission is to carry out brokerage business in the Iraqi Speculative Market.</p>\r\n<p class=\"MsoNormal\">In the light of the above, the Iraqi Deposit Centre of Speculative Market has carried out many initiatives to build and support its infrastructure and apply updated IT systems aimed at achieving its prospective targets. This is especially with regard to updating the bilingual electronic system relating to the Keeper Custodian System.</p>\r\n<p class=\"MsoNormal\">The Keeper Custodian System was determined in 2012 by the Speculative Market Commission (to be applied optionally) which preserves the investors’ shares with that keeper instead of keeping it with the brokers, and obliges the investor to pay the complete value of the shares which he buys according to the payment system applied in the local speculative market.</p>\r\n<p class=\"MsoNormal\">It is noteworthy that this system complies with the international standards of the:</p>\r\n\r\n<ul>\r\n 	<li>Technical committee of the international organisations of speculative market committees (“10 SCO”);</li>\r\n 	<li>Committee on Payment and Settlement Systems (“CPSS”);</li>\r\n 	<li>Group 30 (“G30”);</li>\r\n 	<li>International Federation of Exchanges (“FIVB”)</li>\r\n 	<li>International Organisation of Securities Services (“ISSA”)</li>\r\n 	<li>World Federation of Exchanges</li>\r\n</ul>\r\n<p class=\"MsoNormal\">The Keeper Custodian is a corporate person duly licensed by the Speculative Market Commission to carry out safe-keeping activity and preserve and convert securities between investors’ and brokers’ accounts and vice versa, and to pay commitments incurred through securities trading on behalf of its investors.</p>\r\n<p class=\"MsoNormal\">According to Instruction No.17 of 2012 in order to be licensed as a custodian for securities the relevant corporate person must be:</p>\r\n\r\n<ul>\r\n 	<li>An authorised Iraqi bank, which has an approval from the Central Bank of Iraq (“CBI”) to practise this activity; or</li>\r\n 	<li>An Iraqi firm specialised in financial services; or</li>\r\n 	<li>A branch of a foreign bank on the condition that it is licensed from the main bank and has the approval of the CBI.</li>\r\n</ul>\r\n<p class=\"MsoNormal\"><strong>Conditions of Keeper Custodian Activity</strong><strong> </strong></p>\r\n\r\n<ul>\r\n 	<li>The paid-up capital to carry out this activity should be not less than 50 billion Dinars.</li>\r\n 	<li>Preparation of the required electronic programs to carry out this activity in compliance with the conditions and specification provided by the market.</li>\r\n 	<li>Provision of what is required for insurance to cover damages that may occur to the investors arising from commercial risk, professional negligence, loss, damage, or theft of the investors’ documents or property, according to the discretion of the Commission.</li>\r\n 	<li>Payment of the subscription allowance with the bank guarantee, which is not less than 1 billion Dinars for the market order after receiving the Commission’s approval.</li>\r\n</ul>\r\n<p class=\"MsoNormal\"><strong>Functions of the Keeper Custodian: The Custodian’s functions</strong></p>\r\n<p class=\"MsoNormal\">The functions of the Keeper Custodian are determined according to a safe keeping agreement concluded with the investor, which includes opening an account for the securities of the investor and providing the rights connected therein including receiving the interest and profits and the right to subscribe with the pledge of securities. The Keeper Custodian is also responsible for converting the securities to and from brokers and other safe-keeping accounts in accordance with investors’ requests.</p>\r\n<p class=\"MsoNormal\"><strong>Obligations on Keeper Custodian</strong></p>\r\n<p class=\"MsoNormal\">According to the valid instructions of the Speculative Market, the Keeper Custodian  shall abide by the agreement of safe keeping of securities with every investor separately which include all investor statements.</p>\r\n<p class=\"MsoNormal\">The Keeper Custodian will use the securities only according to securities law and decisions issued accordingly and in conformity with the agreement concluded with the investor.</p>\r\n<p class=\"MsoNormal\">The Keeper Custodian shall inform the investor about all operations and conversions which occurred on his account, within 24 hours, including providing the investor with a detailed monthly account clarifying all trading and conversions which occurred in his account.</p>\r\n<p class=\"MsoNormal\">The Keeper Custodian shall keep the investors’ statements, their names or any information about their accounts confidential.</p>\r\n<p class=\"MsoNormal\">The Keeper Custodian must pay the annual subscription and submit an annual report about the financial position duly certified by the local supervisor. He must also submit the licence application to carry out the activity of Keeper Custodian to the Commission of Securities.</p>\r\n<p class=\"MsoNormal\">If the Keeper Custodian commits any breach of the law and rules, such as missing one of the licence terms or a material violation of any duties or obligations included in these rules, for example by defaulting in payment of the annual subscription or declaring bankruptcy of the licensed Keeper Custodian company, the Commission may:</p>\r\n\r\n<ul>\r\n 	<li>Address a notice to him and oblige him to rectify the breach within the period specified by the Commission or the market.</li>\r\n 	<li>Suspend the activity of the Keeper Custodian or cancel his licence.</li>\r\n</ul>\r\n<p class=\"MsoNormal\"><strong>Conclusion</strong></p>\r\n<p class=\"MsoNormal\">The Keeper Custodian system has been effectively adopted in the Iraq speculative market, providing high transparency in dealing and evidenced by great success in the international stock exchange. It should be an attractive factor for investors especially with the prospect of strong economic investment in Iraq.</p>\r\nThis new system ensures absolute independence for the Keeper Custodian, makes it obligatory for the investors to pay but at the same time provides a high degree of protection for the foreign investor.'),
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(94337, 5123, 'content', 'April 2015\r\n\r\n<hr />\r\n<p class=\"Default\">However, given the degree of domain name scams abound in cyberspace, it is often parodied as the Wild Wild West.</p>\r\n<p class=\"text\"><strong>Cybersquatting</strong></p>\r\n<p class=\"text\">Trademark owners understand that domain names can function as trademarks and are often first in line to register their trademarks as domain names.  However, they are not the only parties to realise the inherent value of domain names. Domain name registrations are acquired on a first-come, first-served basis.  Enter the cybersquatter, a cyber villain who abuses the first come first served system by registering domain names incorporating the often well known trademarks of brand owners before the legitimate trademark owner manages to register the domain name.  The cybersquatter registrant then offers the domain name registration to the trademark owner for sale at a ransom price way above the cost of the registration.</p>\r\n<p class=\"text\">Such cyberpirates continue to illegitimately profit on the Internet by hijacking the inherent value of trademarks owned by the brand owners’ marks.</p>\r\n<p class=\"text\">Indeed, some cyberpirates register domain names that incorporate valuable trademarks to benefit commercially from Internet traffic that mistakenly arrives at the registrant’s website.  They misappropriate trademarks for such commercial gain rather than purely for trying to sell on such domain names.</p>\r\n<p class=\"text\">Typosquatting is also another innovative method of trademark misappropriation.  In this case, the domain names are registered incorporating misspelled variants of trademarks including nicknames or locally adopted variants thereof.  This can be particularly damaging to the brand owner as the locally adopted variant of the trademark could be the term, which has brand recognition and gravitas with the local consumers in the market.</p>\r\n<p class=\"text\">Another egregious form of cybersquatting occurs when competitors register domain names incorporating the trademarks of their rivals in order to deny them use of their own marks as featured addresses in cyberspace.</p>\r\n<p class=\"text\">Cybersquatters are particularly adept at mining the value of trademarks as used in domain names. In such cases, rather than turning a quick buck by on-selling domain names incorporating trademarks at a ransom, cybersquatters are in it for the long haul with the gems, which could potentially make exponential gains due to the inherent trademark value of the domain name.</p>\r\n<p class=\"text\">Thus, for instance, cybersquatters often link the domain name incorporating a trademark to websites featuring pornographic content, since pornographic sites continue to be sources of easy money on the Internet.  The registrant of the domain name would then receive a click-through fee whenever an Internet user inadvertently arrived at the pornographic website and clicked on one of the links.</p>\r\n<p class=\"text\"><strong>Specific domain name scams examples</strong></p>\r\n<p class=\"Pa4\">Unfortunately, registrants of domain names are easy targets for domain name scams given the fact that most of the details for the registrants of domain names are publicly available on the internet (i.e. company name, contact name, email address and phone number) through websites such as “Whois” (www.whois.com).</p>\r\n<p class=\"Pa5\">As a registrant of a domain name, you may encounter common domain name scams such as the following possibilities:-</p>\r\n\r\n<ul>\r\n 	<li>A notification from a domain name company advising you that it has received an application from a third party to register a domain name which has incorporated your trademark.  The company says it is alerting you to this fact to provide you with the opportunity to register the domain name first.  You are invited to register that domain name with the company as a means of preventing the third party from doing so.</li>\r\n 	<li>An email from an authorised domain name registrar in China, informing you that there has been an attempt by an unauthorised entity to register your trademark as a domain name or as an internet keyword in China and from due performance of their internal audit policies, the sender has found out that the trademark actually belongs to you or may be connected to you; the registrar has delayed the registration momentarily to contact you to ascertain whether you might have authorised the third party to register the domain name or internet keyword; if you have not so authorised the third party, the registrar will give you first priority and can register the domain name or internet keyword on your behalf to block the third party from doing so. If you do not, then the registrar will proceed with the third party’s registration.</li>\r\n 	<li>a “renewal” notification for a domain name which you do not actually have registered but which is very similar to your actual domain name, with perhaps just a different extension (for example, .net instead of .ae).</li>\r\n 	<li>You may be sent a domain name renewal notice by mail or email for your exact domain name, but it has been sent from a different company to the one you registered your domain name with.  Paying for and providing your account information to the new company will generally result in a transfer of the domain name to that company.</li>\r\n</ul>\r\n<p class=\"Pa5\">In order to combat these types of domain name scams, you need to be armed strategically with sound standard operating procedures such as the following:</p>\r\n\r\n<ul>\r\n 	<li>Ascertain the identity of your domain name registrar (this is the company you registered your domain name with originally).  Only that company will send you legitimate correspondence about your domain name.  It is administratively prudent o consolidate your name registrations with a single Registrar.</li>\r\n 	<li>Ascertain the expiry date(s) of your domain name registration(s).  Usually, your domain name registrar will send you a renewal notification about a month before expiry.  A scam entity might send you a renewal notification many months in advance of the expiry date hoping to bait you first.</li>\r\n 	<li>Be keenly alert to any correspondence you receive about your domain name, especially with respect to the domain name referred to in the correspondence.</li>\r\n 	<li>Legitimate correspondence will not ask you to provide your password for renewal of a domain name. If you are asked for your password, this is usually an indication that the sender is not legitimate.</li>\r\n 	<li>Implement strict accounts payable systems to limit the amount of people in your organisation who are authorised to approve and pay invoices so as to minimise the chance of inadvertent payment of a scam invoice.</li>\r\n</ul>\r\n<p class=\"Pa5\">Any notifications from a domain name registrar informing you that it has received an application from an unauthorised entity to register a domain name which incorporates your trademark are to be treated with great suspicion.</p>\r\n<p class=\"Pa5\">Particularly, you should be wary of Chinese internet keywords.  Remember that the internet keywords being offered to you are roman letters rather than Chinese characters and that Chinese websurfers are more likely to enter Chinese characters than English words when looking for your company.  In such circumstances, you would really only want to own some Chinese internet keywords if you foresee that your name in roman letters is going to be the identifier for your company in the minds of Chinese consumers rather than a string of Chinese characters and you would be sufficiently disturbed if such Chinese consumers were to be redirected to another’s website if they were to type your company’s name into the address bar of their internet browser.</p>\r\n<p class=\"Pa5\">The reality is that cybersquatters will continue to register domain names incorporating your trademarks.  This is impossible to prevent due to the multitude of available domain names out there especially with the recent proliferation of available domain names such as .money, .party, .wtf, .fund, .legal, .poker, .dad, .cash etc.  Practically, it is a near impossibility, not to mention prohibitively costly, to reserve every available domain name out there related to your business.  Generally, it is recommended that you register domain names for your core and important brands in the countries of interest to your business.</p>\r\n<p class=\"Pa5\">If you do decide to register a domain name, which has been suggested by a company sending notifications such as those described above, do not use them.  You should choose your own domain name registrar, which does not engage in such activities.</p>\r\n<p class=\"Pa5\">In order to combat the multitude of domain name scams out there on the World Wide Web, you need to sit down with your IP lawyers to find out the practical usage of your trade marks on the internet and how best to protect them in this context.</p>'),
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(101619, 5523, 'content', '<p class=\"p1\">It is precisely this population growth, as well as growing wealth, that offers both operators and investors desirous of tapping into the healthcare market with a potential lucrative proposition as rapid urbanization and fast paced lifestyles have contributed to a spike in chronic diseases like heart disease, diabetes and stroke. It is a fact that Dubai, in comparison with countries like the US, UK and Germany, has a low ratio of doctors, nurses and beds per 1,000 population, which may explain why in the last 5 years or so, a number of international players in healthcare have entered this market and stepped up competition.</p>\r\n<p class=\"p1\">This article 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.</p>\r\n<p class=\"p2\"><strong>Regulation of the Health System in Dubai</strong></p>\r\n<p class=\"p2\">The Dubai Health Authority (‘DHA’) was formed in 2007 and is the supervisory authority tasked with regulatory oversight of the health system in Dubai. It is responsible for licensing and regulating medical professionals and healthcare facilities including hospitals, medical clinics and pharmacies. On the other hand, the Ministry of Health and Prevention oversees the licensing of drug stores.</p>\r\n<p class=\"p2\"><strong>Setting up a Clinic/Polyclinic</strong></p>\r\n<p class=\"p2\">The process of establishing a clinic/polyclinic in Dubai is as follows:</p>\r\n<p class=\"p4\"><em>Step 1 – Reservation of Trade Name</em></p>\r\n<p class=\"p1\">In order to start the formal licencing process of setting up a clinic in Dubai, a name for the limited liability company through which the clinic will operate is reserved through the Dubai Department of Economic Development (‘DED’). This is completed online via the DED portal with payment of the applicable fee. Once a name is reserved, the applicant may proceed to obtain an initial approval from the DED for incorporating the clinic as a limited liability company with the relevant activity of ‘family medicine clinic’.</p>\r\n<p class=\"p4\"><em>Step 2 – Initial Approval from the DED</em></p>\r\n<p class=\"p1\">The initial approval stage will involve submission of the main DED application form, together with various documents such as the passport and UAE visa page of the individual (for a non UAE national) and the manager, to the DED . Upon initial approval from the DED being granted, the intended use of the premises or facility for the clinic shall require a further approval from the planning department of the DED (the approval will normally take one working day). This process will involve the submission of further documents which will include the draft lease agreement for the proposed facility together with a detailed design layout and floor plan that is approved by the Dubai Municipality.</p>\r\n<p class=\"p4\"><em>Step 3 - Initial Approval by the DHA</em></p>\r\n<p class=\"p1\">Once the above steps are completed, the applicant must obtain an approval from the DHA and this process again will entail the submission of various documents, including a proposal letter or feasibility report of the proposed clinic, to the licencing section of the DHA</p>\r\n<p class=\"p4\"><em>Step 4 - Execution of Documents</em></p>\r\n<p class=\"p1\"><span class=\"s1\">The applicant will, for the purposes of formal registration of the clinic, execute both the memorandum of association of the proposed limited liability company and the lease agreement. </span></p>\r\n<p class=\"p4\"><em>Step 5 - Final Approval from the DED Planning Department and Issue of DED Licence</em></p>\r\n<p class=\"p1\"><span class=\"s1\">After registration of the executed lease agreement with the Real Estate Regulatory Agency and issuance of the mandatory Ejari certificate, the applicant will submit further documents including a copy of the executed lease agreement, Ejari certificate, DED licence application form and initial approval from the DED, with the planning department of the DED for its formal approval. The applicant can now start the process of requesting the final licence from the DED. In order for the DED to issue the final licence for the facility, the following documents would be required:</span></p>\r\n<p class=\"p5\"></p>\r\n\r\n<ul>\r\n 	<li>copy of the signed and notarized memorandum of association;</li>\r\n 	<li>copy of the initial approval from the DED;</li>\r\n 	<li>copy of the lease agreement;</li>\r\n 	<li>copy of the Ejari certificate;</li>\r\n 	<li>copy of the final approval from the planning department of the DED for use of the facility as a clinic; and</li>\r\n 	<li>copy of the initial approval by the DHA.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p4\"><em>Step 6 – DHA Application and Final Approval/Licence by the DHA</em></p>\r\n<p class=\"p1\"><span class=\"s1\">For the issuance of the licence by the DHA, the applicant is required to register on the DHA’s online portal to obtain a user login from the DHA website. Once a user ID is created, the applicant can begin the formal application process for acquiring the DHA licence, which involves uploading certain documents relative to the previous steps including a request letter for final approval and licence, copy of passport, UAE visa page and Emirates ID card of the Medical Director and a copy of schematic design drawings showing the proposed floor layout with room measurements for each room/area and labelled in accordance with the clinic’s services, to the DHA portal.</span></p>\r\n<p class=\"p1\">The final stage of the licensing process with the DHA will involve the applicant requesting a final inspection whereafter an onsite pre-operational assessment of the completed facility will be conducted by DHA inspectors.</p>\r\n<p class=\"p1\">In order for the DHA licence to be issued, certain preconditions must be fulfilled including:</p>\r\n<p class=\"p5\"></p>\r\n\r\n<ul>\r\n 	<li>all medical equipment required for provision of the clinic’s services must be installed and operational in accordance with manufacturer specifications; and</li>\r\n 	<li>the appointment:</li>\r\n</ul>\r\n&nbsp;\r\n\r\n&nbsp;\r\n\r\n1. of a medical director;\r\n\r\n&nbsp;\r\n\r\n2. qualified and licensed consultants/specialist physicians; and\r\n\r\n3. other healthcare professionals,\r\n<ul>\r\n 	<li>in sufficient numbers to satisfy the clinic’s proposed functional program and to meet patient needs for all provided services and procedures.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p4\">If all DHA guidelines and requirements are met, a final approval by the DHA is given which results in a licence being issued.</p>\r\n<p class=\"p3\"><span class=\"s3\"><strong>Conclusion</strong></span></p>\r\n<p class=\"p1\">The Dubai Government is strongly focused on the development of the healthcare sector which is evidenced by the establishment of Dubai Healthcare City Free Zone which is committed:</p>\r\n\r\n<ul>\r\n 	<li>to creating a health and wellness destination; and</li>\r\n 	<li>to attract investment and promote medical tourism.</li>\r\n</ul>\r\n<p class=\"p4\">It has recently introduced a 10 year plan to introduce three new medical colleges and five nursing schools to meet its healthcare needs in the coming years.</p>\r\n<p class=\"p1\"><span class=\"s2\"> The advent of mandatory health insurance has increased usage of public and private medical facilities, this together with urbanization has paved the way for investment opportunities for the private sector as we have recently witnessed in a number of M&amp;A deals where private equity firms have entered the healthcare market. </span></p>'),
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(101618, 5522, '_yoast_wpseo_metadesc', 'In order to protect their new and innovative findings, pharmaceutical companies invest significant resources into registering their newly developed drugs as patents.'),
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(101602, 5522, 'pageSummary', 'It is an uncontested fact that prescription drugs are big business; brand name pharmaceutical companies invest millions of dollars each year to develop new and innovative drugs. In order to protect their new and innovative findings, pharmaceutical companies invest significant resources into registering their newly developed drugs as patents. In this regard, patent protection provides a period of market exclusivity to the owner of the patent and is an efficient tool to prevent third parties, including generic drug companies, from entering the market. However, once the patent protection period ends, the demand for brand name drugs drastically reduces as generic drug companies start manufacturing the same product at a significantly lower cost. As such, pharmaceutical companies may turn to other forms of IP protection in order to retain their market share after their patent and market exclusivity expires. '),
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(92827, 5044, 'content_description', ' Is the lawyer of yesterday good for tomorrow? '),
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(92838, 5045, 'content', 'December 2014 - January 2015\r\n\r\n<hr />\r\n\r\nThe New Law was issued in the Federal Gazette (No. 572 dated 30 November 2014). The New Law comes into effect on 1st March 2015.\r\n\r\nThis article provides an overview of the key amendments enacted by the New Law, most of which have strengthened and streamlined aspects of civil procedure in the country.\r\n\r\n<strong>Service and Notification</strong>\r\n<ol>\r\n 	<li>The New Law has introduced additional procedures aimed at facilitating and expediting the process of notification and service:The references to the Court’s Registry in the Civil Procedures Law are changed to “Case Management Office” (see Article 1 of the New Law). This is for reasons that are explained further below.</li>\r\n 	<li>The references to “notification server” are changed to “Process Service” (see Article 1 of the New Law). This is allows for the inclusion of service processor offices which are licensed by the regulating authority to carry out the service of court documents.</li>\r\n 	<li>Article 5 of the Civil Procedures Law gets a sub-article 2 which empowers the court to authorize a plaintiff or their attorney to carry out the service process.</li>\r\n 	<li>The statutory time within which the service processor can serve court documents is extended to take place between 7 am and 8 pm (see Article 6(1) of the New Law; originally the time ended at 6pm).</li>\r\n 	<li>Article 7(b) and (c) of the Civil Procedures Law has been amended to state that the information to be included in  the notification document may include the counter party’s domicile of choice.</li>\r\n 	<li>Article 8 of the Civil Procedures Law  has been substantially amended so that in cases where it is difficult to notify the opposing party (whether through deliberate avoidance or otherwise), under subsection 1 it is now possible to use modern alternatives. Those alternatives include the use of an email address or other modern methods of communication which are to be identified at a later stage by the Minister of Justice.</li>\r\n 	<li>Article 8(2) of the Civil Procedures Law  is greatly expanded to allow service of documents not just on the opposing party, but also any of that party’s employees (which could, for example, include secretarial or even cleaning staff,  such as the maid).</li>\r\n 	<li>In connection with merchant shops, Article 9(6) of the Civil Procedures Law now permits the service to be effected of the ship’s crew and, in cases where the ship has already sailed, the shipping agent.</li>\r\n 	<li>Article 9(7) now permits that, in cases where one of the parties is domiciled overseas, service of papers can be effected through the means agreed upon by the parties rather than having to go through diplomatic channels as was previously the case.</li>\r\n 	<li>Article 10 of the Civil Procedures Law concerns the deemed notification date of service, and is changed as follows:</li>\r\n</ol>\r\n<ul>\r\n 	<li>The article is now split into four subsections.</li>\r\n 	<li>Subsection 2 states that in cases where the party is to be notified is overseas, it is now deemed that the person has received notification from the date of correspondence is received from the Ministry of Foreign Affairs of the Diplomatic Mission which confirms the receipt of the party to be notified.</li>\r\n 	<li>Subsection 3 states that in cases where the service process is by registered mail, fax or email, service is deemed effective from the date of receipt of the registered mail, the fax or the email.</li>\r\n</ul>\r\nAmendments to Article 8 of the Civil Procedures Law  are extremely important because many subsequent articles  in the law that deal with the limitation period for taking certain procedural steps start ticking from the date of service. This can have severe consequences in cases of appeals to the Cassation Court because, for example, the notification of the decision which is being appealed can be made by sending an SMS to the person affected and it is deemed to be sufficient even though the mobile phone may be switched off. It is clear that in these circumstances there will be future regulations or directives to prevent potential abuse of the very wide provisions of Article 8.\r\n\r\n<strong>Jurisdiction:</strong>\r\n\r\nArticle 25 of the Civil Procedures Law clarifies the jurisdiction of the Federal Court and expressly gives it jurisdiction over all disputes that are of a federal nature.\r\n\r\nArticle 30 of the Civil Procedures Law now gives the small claims court jurisdiction over all claims below AED 500,000, raising the previous threshold of AED 100,000.\r\n\r\n<strong>Commencement and lodging of claim and appeals:</strong>\r\n\r\nArticle 42 of the Civil Procedures Law now allows for the commencement of claims electronically in addition to the delivery of the statement of claim to the Case Management Office. Further, Article 162 permits the same in relation to the lodging of an appeal; however in case where an appeal is being lodged to the Court of Cassation it must be done with the Case Management Office of the court of jurisdiction by reason of Article 177.\r\n\r\nArticle 45 now requires, by reason of subsection 1, the lodging with the Case Management Office of the claim submitted electronically. Subsection 2 obliges the defendant to submit its defence within a limited period without identifying what that period is. We presumes that at a later stage,there will be directives or regulations to identify what the relevant limitation periods should be.\r\n\r\n<strong>Attachment Orders:</strong>\r\n\r\nThe new amendment makes important changes to the procedures relating to attachment orders.\r\n\r\nArticle 252(2) of the Civil Procedures Law now regulates the previous practice of landlords entering premises to seize movables belonging to the tenant as well as the subtenant in the event of default and expressly permits for the seizure of movables belonging to the tenant.\r\n\r\nArticle 253 now adds that in cases where movables are to be seized, the person applying for the attachment order is required to provide a comprehensive and detailed description of the item he wishes to seize.\r\n\r\nHowever, it is not clear how a landlord exercising his right to an attachment order would have available to him the detailed description of the movables before he enters the premises.\r\n\r\nArticle 3 of the New Law amends Article 42 of the Civil Procedures Law which establishes the Court Management Office and sets out its function and composition.\r\n\r\nArticle 4 of the New Law cancelled Articles 12 and 47 of the Civil Procedure law for  reasons of convenience and practicality.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThe changes made to the UAE Civil Procedures Law by the New Law are significant and welcome, particularly those that relate to service. The changes will make service quicker and easier, but further regulations will be needed to clarify the full extent of the changes.'),
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(101600, 5522, 'content_description', 'It is an uncontested fact that prescription drugs are big business; brand name pharmaceutical companies invest millions of dollars each year to develop new and innovative drugs. In order to protect their new and innovative findings, pharmaceutical companies invest significant resources into registering their newly developed drugs as patents. In this regard, patent protection provides a period of market exclusivity to the owner of the patent and is an efficient tool to prevent third parties, including generic drug companies, from entering the market. However, once the patent protection period ends, the demand for brand name drugs drastically reduces as generic drug companies start manufacturing the same product at a significantly lower cost. As such, pharmaceutical companies may turn to other forms of IP protection in order to retain their market share after their patent and market exclusivity expires. '),
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(101587, 5521, 'pageSummary', 'The UAE has a strong regulatory regime in relation to advertising content. The National Media Council has released guidelines which all advertisers are expected to understand when promoting their products to the public. When discussing promotional content with advertisers, we emphasise the content of National Media Council Resolution 35 of 2012 on Advertising Standards. For advertising that relies on testimonials or on links to a celebrity, we refer particularly to the terms of Article 5.'),
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(101596, 5522, 'content', '<p class=\"p1\">The debate over pharmaceutical trade dress protection is heated. From one standpoint, generic companies argue that brand name pharmaceutical companies are hiding under the auspices of trade dress rights for products that are no longer subject to patent protection and should be considered part of the public domain. On the other side of argument, brand name pharmaceutical companies argue that, for the period of the patent protection, usually 20 years, they have had market share of the product, therefore, they should be allowed to extend the longevity of their protection through other forms of intellectual property (‘IP’) and to maintain the goodwill already associated with their product.</p>\r\n<p class=\"p1\">It is common knowledge that a trademark is a name of or logo associated to a company which allows consumers to identify the product. Trade dress rights, on the other hand, can be identified as any material quality of a product or its physical appearance that serves as a brand identifier. Such physical aspects of the products can include its shape, colors and even textures. It can be argued that trade dress rights, in general, protects the overall appearance of an object when the object is intended as source identifier. Although the term ‘trade dress’ is not defined in the UAE trademark law, the definition of trademarks in the UAE law broadly includes certain elements qualifying such as trade dress. These include sounds, colours and shapes. In practice, trade dress rights in the UAE are commonly referred to as nonconventional trademarks. In order to be able to secure a trade dress or nonconventional trademark protection for pharmaceuticals, the applicant must demonstrate that consumers have come to associate the physical attributes of the pharmaceutical, such as colour, size and shape, with the manufacturer. Trade dress, or nonconventional trademarks, do not, however, protect functional elements. A product feature is considered functional if the product would not work properly without that element or if that element affects the cost or quality of the product.</p>\r\n<p class=\"p1\">As it applies to the pharmaceutical industry, legal protection extending beyond patents is even more important especially amid increasing concerns about counterfeit drugs which copy the appearance, packaging and name of brand name pharmaceuticals. It can be further argued that the protection allowed through trade dress, or nonconventional trademarks, serves as a public function meant to protect consumers from deception by the producers of look-a-like drugs.</p>\r\n<p class=\"p1\">In addition to the threats of counterfeit pharmaceuticals and the need to enforce nonconventional trademarks with regards to such products, there is also the argument that consumers need to be able to identify the brand by the appearance of the pills. One of the first drugs to be promoted heavily to consumers based on the unique colour and shape of the drug was Viagra produced by Pfizer. Pfizer widely advertised the appearance of the pill, which served to identify Viagra by both the pale blue colour and the diamond shape of the tablets. Given Pfizer’s continued and long term efforts in advertising the appearance of the Viagra pill, consumers over the years have recognised and commonly referred to the product as ‘the little blue pill’. Due to Pfizer’s marketing campaign and the massive publicity surrounding the product, Pfizer was able to establish before the registering authority that consumers were able to identify Viagra as one being produced by Pfizer by the pale blue color and diamond shape of the pill. The massive advertising of the product and the product awareness amongst consumers made it easier for Pfizer to claim that the look of the pill was protectable. In view of Pfizer’s registrations, generic drug makers are prevented from using the appearance of the Viagra pill (diamond shape in combination with the pale blue color) for their generic products. It can be further argued that the color, shape and size of a pill are directly related to the drug’s potency, as such, maintaining a constant color and size between the actual product versus the generic product would promote patient safety.</p>\r\n<p class=\"p1\">In conclusion, to satisfy that there is trade dress right, a manufacturer must demonstrate that the color and shape of the product can be linked to the manufacturer of the tablets. As a practical matter, pharmaceutical manufacturers desiring trade dress protection for their products must carefully select and cultivate that trade dress. As discussed above, one way to attain this threshold is by investing in promotional campaigns that will cause consumers to associate the look of the pill with the particular source. In fact, given the increase in the trend of patient-directed advertising, many companies are investing a significant part of their budget on creative marketing campaigns, which can help to establish trade dress rights.</p>'),
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(92844, 5045, 'pageSummary', 'UAE President Sheikh Khalifa Bin Zaid Al Nahyan has issued Federal Law no. 10 of 2014 (the “New Law”) which amended several articles of Federal Law no. 11 of 1992 (the UAE Civil Procedures Law).'),
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(101580, 5520, '_yoast_wpseo_metadesc', 'The new United Arab Emirates (‘UAE’) Federal Law on Medical Liability (Law No. 4 of 2016) (the ‘New Law’) was published in the UAE Official Gazette on 15 August 2016 and has brought several changes to the previous Medical Liability Law (Federal Law No. 10 of 2008) (the ‘Former Law’).'),
(101581, 5521, 'content', '<p class=\"p1\"><em>Conditions to be applied in advertising: </em></p>\r\n<p class=\"p3\">Advertising shall not be ambiguous or obscure or void of any clear indications.</p>\r\n<p class=\"p3\"></p>\r\n\r\n<ul>\r\n 	<li>It shall not include any false or misleading claims or resort to exagerations, intimidation, or claim to be unique while contempting competitors, and it shall not resort to fraud and deception.</li>\r\n 	<li>The advertisement shall not include images that are falsified or imitated or images of which they don’t have the rights to use.</li>\r\n 	<li>The advertisement shall be real and unexaggerated, not leading to confusion or ambiguity with other products or activities.</li>\r\n 	<li>The advertising identity shall be clearly determined, and it shall appear as unique and separate from other editorial or media material, and there shall be limits separating the advertisement from any other material in addition to time lapses in case of radio or television broadcasting.</li>\r\n</ul>\r\n<p class=\"p5\">These days, the use of testimonials (praise received from customers that have used the product or service) and brand ambassadors (by way of the use of influencers) is becoming more common than before. Not only do advertisers understand that consumers currently have a higher level of trust in ‘word of mouth’ advertising but social media outlets now make it easier than ever to create and circulate such content. It’s credible. It’s effective. But it is also clear that, when creating and distributing testimonial advertising, advertisers must comply, at the very least, with Article 5.</p>\r\n<p class=\"p1\">When creating testimonial content generally, the terms of sub article 7 are important to keep in mind. This sub article notes that advertising material must appear as ‘<em>separate and unique</em>’ from editorial material. This is not going to be problematic where the testimonials are contained within the advertising material itself as perhaps a boxed segment in a paid print commercial, as it is clear that it is part of the commercial itself. However, where the paid content takes the form of a 140 character Tweet within numerous other editorial or opinion tweets, then it becomes significantly more difficult to keep it clear and unique. Our view is that Tweets that are paid advertising content should be noted as such; however we note that the industry is not yet doing that as standard practice in the region at this stage.</p>\r\n<p class=\"p1\"><span class=\"s2\"> In addition to the usual regulations for advertising, when the product is a medical service or device, then the advertiser must be more cautious. Extra regulations apply under the Health Advertisements Regulations (Ministerial Resolution 430 of 2007) (the “Regulations”). When it comes to testimonials, Article 4 (25) of the Regulations specifically states that, in any medical advertising that is produced for use within the UAE “<em>the evidences and certificates must be authenticated and true, not misleading, explaining the typical cases only and not obtained through illegal means</em>”. In the UAE, as with many jurisdictions around the world, the use of false testimonials is prohibited by law. This is not singular to the UAE legal landscape and indeed some countries have much stricter regulations about the use of testimonials in relation to healthcare products or services.</span></p>\r\n<p class=\"p1\">The USA, always proactive when it comes to regulating consumer matters, has been watching the activities of testimonials in advertising in the medical field for some time. The Federal Trade Commission in the USA (FTC) has issued guidelines and regularly initiates court action. A 2016 case involved the very successful prosecution of a company that was using fake news websites with phony celebrity endorsements (including false endorsements from Oprah Winfrey) alongside unsupported claims about the product’s efficiency in order to promote a weight-loss product. In this matter the FTC was successful in the case and was able to claim the assets of the company as well as some assets of the shareholders.</p>\r\n<p class=\"p1\">There is no doubt that if an advertiser undertook similar practices in the UAE, they could be prosecuted by both the National Media Council and pursuant to the Resolution. Looking at the elements of Article 4 (25) in particular (“<em>must be authenticated and true, not misleading, explaining the typical cases only and not obtained through illegal means</em>”), it is clear that an advertising campaign that uses false endorsements from a celebrity and claims amazing results for everyone ‘even whilst you sleep’ (as was the case in the above matter) could easily be prosecuted in this country as well, under Article 4 (25).</p>\r\n<p class=\"p1\"><span class=\"s1\"> It is important to note that this does not prevent healthcare advertisers from including endorsements if they are genuine consumer reviews – these are not prohibited – and have been properly approved as advertising material under the appropriate regime in the UAE. In addition this will not, in our opinion, stop the circulation of unpaid and unsought reviews about healthcare products and services. People will always want to ‘like’ and ‘share’ information as they choose. The fact that these may comprise positive unpaid reviews of a healthcare product or service does not mean that they should be treated as testimonials.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> Figures released in the UAE indicate that a significant percentage of the penalties imposed for breaching the Resolution are arising, surprisingly, within social media and indeed a vast number arise in Twitter. Because of this, we recommend that healthcare advertisers exercise caution when engaging with anyone that will endorse their brand, including the now ubiquitous social media influencers. </span></p>\r\n<p class=\"p1\">When it comes to social media influencers, we recommend that advertisers take an active role in guiding them in relation to content. Many companies are developing influencer guidelines to assist with this and we recommend that these be added to a services contract that is provided to the influencer in order to ensure that the influencer understands what can and cannot be said, what will require approval from the advertiser and what needs prior approval from the regulator. Most importantly though, this will assist companies in enforceability within the jurisdiction if anything does go wrong.</p>\r\n<p class=\"p1\">The International Consumer Protection Enforcement Network (ICPEN) has this year consolidated regulations from over 60 countries into helpful documents for stakeholders wishing to undertake endorsement-style advertising. Their tips include:</p>\r\n<p class=\"p6\"></p>\r\n\r\n<ul>\r\n 	<li>Endorsements must be truthful and not misleading;</li>\r\n 	<li>Material connections between an endorser and marketer of a product or service that would affect how people evaluate the endorsement must be disclosed clearly and conspicuously;</li>\r\n 	<li>Allow influencers to be open about other commercial relationships that might be relevant to the content;</li>\r\n 	<li>Disclose clearly and prominently whether content has been paid for; and</li>\r\n 	<li>Allow influencers to give genuine views on markets, businesses, goods or services.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p7\"></p>\r\n<p class=\"p1\"><span class=\"s3\"><em>Al Tamimi &amp; Company’s Technology, Media &amp; Telecommunications team regularly advises companies on their advertising and marketing practices in the region. For further information please contact Fiona Robertson (f.robertson@tamimi.com).</em></span></p>'),
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(101552, 5520, 'content', '<p class=\"p1\">These changes include the permissibility of: natural death in cases of terminally ill patients; gender re-assignment procedures, subject to certain conditions; and settlements between patients and healthcare professionals in gross medical negligence cases.</p>\r\n<p class=\"p1\"><span class=\"s2\"> The New Law also requires all medical malpractice claims to be referred to a new medical liability committee (‘Medical Liability Committee’) before they are reviewed by the judicial authorities in the UAE. Further, the law also affords protection and relief to doctors in criminal proceedings by prohibiting their arrest, imprisonment, and investigation before the concerned authorities until the Medical Liability Committee issues a final report. The New Law also introduces stringent penalties against medical practitioners who commit grave medical errors and other key changes, which will be discussed in this article.</span></p>\r\n<p class=\"p2\"><strong>Natural Death</strong></p>\r\n<p class=\"p2\">The New Law permits healthcare professionals to allow natural death by refraining from performing cardiopulmonary resuscitation (‘CPR’) on terminally ill or dying patients who are sufferings from incurable illnesses, provided that the following conditions are met:</p>\r\n<p class=\"p2\"></p>\r\n\r\n<ul>\r\n 	<li>the patient suffers from an irremediable medical condition;</li>\r\n 	<li>all the treatment methods have been exhausted;</li>\r\n 	<li>the treatment is proven to be useless in such medical condition;</li>\r\n 	<li>the treating doctor advises not to provide CPR to the patient; and</li>\r\n 	<li>at least three consulting doctors decide that the patient’s interests require that the natural death is allowed and that CPR should not be provided (In this case, the consent of the patient, his guardian or custodian is not required).</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p5\">However, resuscitation may not be denied if the patient expressly requests to be resuscitated even if resuscitation is useless for the treatment.</p>\r\n<p class=\"p2\"><strong>Gender Re-Assignment Surgery</strong></p>\r\n<p class=\"p2\">The New Law also introduces the permissibility of gender-reassignment surgeries in cases where the person’s sexual orientation is ambiguous and his/her sexual features are different from their physiological, biological, and genetic characteristics. Such permissibility is conditional on the requirement that these facts are confirmed by medical reports and the re-assignment procedure is approved by a medical committee formed by the health authority. This medical committee must also refer the individual to a psychologist to carry out the necessary mental adaptations.</p>\r\n<p class=\"p3\"><span class=\"s3\"><strong>Consent</strong> </span></p>\r\n<p class=\"p2\">Save for emergency cases that require necessary and immediate surgical intervention to save the life of a patient or fetus, and to avoid dangerous complications, the New Law introduces a provision which permits surgical intervention in cases where the consent of a patient or his/her spouse or family members, up to the fourth degree, cannot be obtained. Such consent is permitted on the condition that a report from the treating doctor, another doctor from the same hospital, and the director of the hospital is obtained confirming the need for the surgery. This provision only applies in situations where the consent of the patient or his/her spouse or family members, up to the fourth degree, cannot be obtained and will not be applicable if the patient is fully competent.</p>\r\n<p class=\"p2\"><strong>Disclosure</strong></p>\r\n<p class=\"p2\">Provisions pertaining to disclosure were also amended by the New Law to permit the disclosure of patient information upon the request of the health authority for the purpose of protecting public health (subject to the terms and conditions set by the Executive Regulations of the New Law) and if the disclosure was made by the physician in self-defence before the investigation authority or any judicial authority.</p>\r\n<p class=\"p1\">The New Law permits healthcare professionals to disclose a patient’s medical records to support their defence in legal claims and will safeguard doctors from any liabilities in the event a patient raises arguments pertaining to the prohibition against the disclosure of confidential patient information.</p>\r\n<p class=\"p2\"><strong>Medical Liability Committee</strong></p>\r\n<p class=\"p2\">The New Law states that the new Medical Liability Committee of doctors specialised in all fields of medicine will be formed upon a resolution to be issued by the Minister of Health and Prevention or the health authority. The Medical Liability Committee will be responsible for reviewing medical complaints referred by the health authority, the Public Prosecution, or the courts, and will determine whether or not a medical error has been committed and the seriousness of such error. In cases of several liable parties, the Medical Liability Committee will determine the percentage of every person’s contribution to such error and provide the basis for its decision. The Medical Liability Committee will also determine the damages incurred by such errors, the causal link between the error and the damage, and the percentage of disability of the affected organ, if any. The committee may also seek the assistance of other experts and of whomever it deems fit to perform such duties. This Medical Liability Committee will be subject to the provisions of Federal Law No. 7 of 2012 (Regulating the Profession of Experts before the Judicial Authorities) provided that they do not conflict with the provisions of the New Law. The Executive Regulations that will be issued within six months from the date the New Law came into force will provide information on the formation of the Medical Liability Committee and the rules and procedures of its work.</p>\r\n<p class=\"p1\">The Higher Committee for Medical Liability (‘Higher Committee’) established under the Former Law will continue to review medical malpractice claims referred to it by the authorities until the Medical Liability Committee is formed.</p>\r\n<p class=\"p2\"><strong>Civil Claims</strong></p>\r\n<p class=\"p2\">The New Law provides that civil claims filed due to medical malpractice will not be accepted unless the medical claim has been referred to the Medical Liability Committee. Hence, patients can only pursue civil claims for monetary compensation after their medical claims have been brought before the appropriate health authority, referred to the Medical Liability Committee, and a final report is issued.</p>\r\n<p class=\"p1\">Under the Former Law, patients who filed claims for monetary compensation directly before the court, without going through the health authority, had their cases heard by the court without any restrictions or prior requirement for the medical claims to be filed at the health authority and reviewed by a medical committee.</p>\r\n<p class=\"p1\">It is not clear whether this new mandate extends to the filing of claims before the Settlement Centre of the Dubai Courts for the appointment of medical experts. However, we are of the view that such required referral to the Medical Liability Committee is only limited to compensation claims before the civil courts.</p>\r\n<p class=\"p2\"><strong>Criminal Medical Negligence Claims</strong></p>\r\n<p class=\"p2\">The New Law permits patients to file medical malpractice complaints before the Public Prosecution and requires the prosecution to refer medical malpractice complaints directly to the competent health authority to take the necessary actions. The New Law also prohibits the investigation of healthcare professionals, and their arrest or temporary imprisonment, until the health authority provides a final medical report confirming gross medical error on the part of the involved physician.</p>\r\n<p class=\"p1\">This provision affords protection to doctors in criminal proceedings and will ensure that they are not taken into custody, questioned, investigated, and arrested unless it has been determined through a final report issued by the Medical Liability Committee or the Supreme Committee, defined herein, that they committed a gross medical error. In addition, this provision appears to be limited to cases where doctors commit grave professional errors which amount to criminal offences under UAE law and does not extend to civil liability for medical malpractice. Hence, if the Supreme Committee or Medical Liability Committee determines that a doctor is not liable for gross medical negligence, then the involved medical professional may not be held liable for criminal medical negligence.</p>\r\n<p class=\"p2\"><strong>Referral of Medical Complaints to Health Authorities</strong></p>\r\n<p class=\"p2\">The New Law requires all medical malpractice complaints to be referred to the relevant health authority and the authority will assign the complaints to the Medical Liability Committee. The Medical Liability Committee will issue its opinion in all medical malpractice cases following its review of the facts, medical files, investigations, and other facts and information available to the Medical Liability Committee. The Medical Liability Committee will provide the health authority with its opinion within 30 days from the referral date. Such period may be extended to a similar period(s) subject to the approval of the health authority following the Medical Liability Committee’s request.</p>\r\n<p class=\"p1\">It is pertinent to mention that, prior to the enactment of the New Law, patients had the right to pursue medical malpractice complaints before either the appropriate healthcare authorities or the judicial authorities at any time; however the New Law strictly requires all medical malpractice claims to be referred to the Medical Liability Committee before they are reviewed by the judicial authorities. In this respect, patients must first file medical complaints before the relevant health authority and the authority will in turn assign the complaints to the Medical Liability Committee.</p>\r\n<p class=\"p1\"><span class=\"s2\"> We are of the view that these provisions could expedite the duration of medical malpractice cases before the judicial authorities and possibly discourage patients from proceeding with legal proceedings against healthcare professionals if the Medical Liability Committee finds that the involved physician(s) did not commit medical malpractice. </span></p>\r\n<p class=\"p2\"><strong>Grievances Before the Medical Liability Committee</strong></p>\r\n<p class=\"p2\">Healthcare professionals and complainants are permitted to challenge the report of the Medical Liability Committee before the appropriate health authority within 30 days from the date they are notified of the committee’s decision. The health authority will refer the grievance, the committee’s report, and all relevant documents related to the complaint to the Supreme Committee for Medical Liability (the ‘Supreme Committee’).</p>\r\n<p class=\"p1\"><span class=\"s4\"> The Medical Liability Committee’s decision will be deemed final if no grievances are filed within the above mentioned time-frame of 30 days, after which the parties will not have the opportunity to challenge the committee’s report before any other authority. </span></p>\r\n<p class=\"p2\"><strong>Supreme Committee for Medical Liability</strong></p>\r\n<p class=\"p2\">The New Law sets out the formation of a new Supreme Committee responsible for reviewing grievances filed by healthcare professionals and patients against reports issued by the Medical Liability Committee. The Supreme Committee’s tasks will be set out in the resolution to be issued by the Minister of Health and Prevention.</p>\r\n<p class=\"p1\">The Supreme Committee’s findings are deemed final and will not be subject to any appeals or grievances before any authority.</p>\r\n<p class=\"p1\">Under the Former Law, the Higher Committee was established to provide its technical opinion in medical malpractice cases upon the request of the Public Prosecution, the UAE courts, or the health authorities. Healthcare professionals and patients also had the right to request the court or the Public Prosecution to refer medical malpractice cases to the Higher Committee in legal proceedings. However, the position under the New Law has changed by introducing the new Medical Liability Committee to review and opine on medical malpractice cases before they are heard by the judicial authorities, and a Supreme Committee whose role is primarily to review grievances filed by both patients and healthcare professionals.</p>\r\n<p class=\"p2\"><strong>Penalties</strong></p>\r\n<p class=\"p2\">The New Law also introduced penalties against physicians who commit the following offences:</p>\r\n<p class=\"p6\"></p>\r\n\r\n<ul>\r\n 	<li>a prison sentence of not less than 3 years and not more than 10 years to any physician who conducts sex-change procedures on patients.</li>\r\n 	<li>physicians who refrain from treating patients in emergency cases or interrupt their treatment, if the violation affects the safety of the patient’s body, will be subject to a fine of not less than AED 10,000. The same penalty is also applicable to doctors who conduct unnecessary medical or surgical procedures on patients without their informed consent.</li>\r\n 	<li>imprisonment for a period of not more than one year and/or a fine of not more than AED 200,000 to medical practitioners who commit gross medical errors. If the gross medical error results in death, the penalty will be imprisonment for not more than two years and /or a fine of not more than AED 500,000, and can extend to imprisonment of not more than two years and a fine of not more than AED 1,000,000 if the gross medical error was committed under the influence of alcohol or drugs.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p5\">These penalties will supersede the ones set out in any other legislation following the publication of the New Law. However, the disciplinary penalties found in other laws shall apply to violations for which no penalty is set under the New Law.</p>\r\n<p class=\"p2\"><strong>Settlement</strong></p>\r\n<p class=\"p2\">The New Law permits patients, their heirs, or attorneys to settle with medical practitioners before the health authority in cases where gross medical errors are committed, and the authority will refer the agreed settlement to the Public Prosecution. In addition, the agreed settlement can also be filed or submitted before the Public Prosecution, and at any stage of the complaint, regardless of the status of the action, and after a judgment becomes final.</p>\r\n<p class=\"p1\"><span class=\"s1\"> The settlement between the parties will result in the forfeiture of the criminal action and suspension of the penalty, even in circumstances where reconciliation is reached during the execution of the penalty. However, the reconciliation between both parties will not prejudice the victim’s right to resort to the civil courts to claim compensation. </span></p>\r\n<p class=\"p1\">This settlement provision introduced a drastic change to the Former Law where no such settlement mechanism was available. In the past, even if the patient and the medical practitioner settled the case between them, the Public Prosecutor could still move forward with a criminal charge on the basis of public interest.</p>\r\n<p class=\"p1\"><span class=\"s4\"> The reconciliation provision will encourage patients, or their family members, to settle with doctors in medical malpractice claims and may safeguard doctors from being subjected to criminal liability for committing gross medical negligence. The reconciliation between the parties even extends to cases where final verdicts have been issued by the criminal court and penalties have been imposed against healthcare professionals. The effect of the reconciliation will result in the withdrawal of the criminal case against the implicated healthcare professional.</span></p>\r\n<p class=\"p1\">Nonetheless, the settlement between the parties before the health authority or in criminal proceedings will not prevent the victim from pursuing civil proceedings for compensation against the healthcare professional. Despite the above mentioned reference in the New Law, the parties can agree on settlement terms which extend to the waiver of civil actions against the involved healthcare professional.</p>\r\n<p class=\"p2\"><strong>The Previous Medical Liability Law</strong></p>\r\n<p class=\"p2\">The Former Law will be repealed by the New Law while the Cabinet Resolution No. 33 of 2009, regarding the Executive Regulations of the Former Law, and the resolutions issued by virtue of the said law will remain in force until the Executive Regulations of the New Law are issued, without prejudice to the provisions thereof.</p>\r\n<p class=\"p2\"><strong>Conclusion</strong></p>\r\n<p class=\"p2\">The procedures established in the New Law will ensure that healthcare professionals accused of malpractice are not prosecuted until the Medical Liability Committee or the Supreme Committee issues a final report, and will mandate that patients submit their claims to the health authority to be reviewed by the Medical Liability Committee in order for civil claims for compensation to be admissible to the courts. The New Law also clarifies the events under which CPR may be withheld, gives patients the right to undergo gender-reassignment procedures (subject to certain conditions), and prohibits physicians from undertaking unnecessary medical or surgical procedures on patients without their informed consent. The Law also provides a grievance process that protects both patients and doctors by affording them with the right to have their appeals thoroughly reviewed by the Supreme Committee.</p>\r\n<p class=\"p1\">The changes in the New Law safeguard the legal interests of both patients and doctors. Consequently, the New Law is expected to enhance the quality and delivery of healthcare in the UAE and the manner in which medical malpractice cases are managed before the judicial authorities.</p>'),
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(101535, 5519, 'content', '<p class=\"p1\">In order to legitimately commercialise pharmaceutical products in the GCC, a foreign manufacture would need to either (i) establish a local presence in the relevant country, or (ii) appoint a local agent for that country. In our experience, most foreign pharmaceutical companies will not have a legal presence in the territory that is authorised to undertake distribution. There are obviously separate considerations to be born in mind in the event that a foreign manufacturer does wish to establish a local presence, such as foreign ownership restrictions and sponsorship arrangements, but these fall outside the scope of this article.</p>\r\n<p class=\"p1\">Consequently, where a foreign manufacturer does not have a local presence, it cannot directly obtain the product registration required in the country, or any other of the necessary approvals for importing, distributing, or advertising its pharmaceutical products without the use of a local partner. As a result, many pharmaceutical companies will call upon the services of a local (appropriately licensed) agent as an alternate means to procure all necessary approvals and distribute its pharmaceutical products in the country. This is a very popular, and relatively simple, method of facilitating the distribution of pharmaceutical products throughout the GCC and can provide a foreign manufacturer with valuable local knowledge and resource, allowing it to benefit from associations and sale channels that an agent may have forged over a number of years.</p>\r\n<p class=\"p1\">Nevertheless, whilst these types of arrangement can be very beneficial to a foreign manufacturer it is important that a foreign manufacturer considers the local regulatory and local law issues that could affect the pharmaceutical products on route to market. What follows is a brief overview of such considerations, but specific advice should, of course, be sought before entering a new market to ensure compliance with local laws and regulations and to obtain further insight into local law considerations that could impact on the proposed arrangement. This is certainly the case in respect of the distribution of pharmaceutical products in the GCC.</p>\r\n<p class=\"p2\"><strong>Regulatory Background – UAE Pharmaceuticals</strong></p>\r\n<p class=\"p2\">Under United Arab Emirates (“<strong>UAE</strong>”)  federal law, no medicine or pharmaceutical preparation may be put into circulation except after registration of the product with the Ministry of Health and Prevention (“<strong>Ministry</strong>”). In order to register a pharmaceutical with the Ministry, a new drug application must be submitted, accompanied by various supporting documents.  Specifically, the application must be made by the market authorisation holder from the country of origin, jointly with the local authorised representative. The local authorised representative must be explicitly designated by the foreign manufacturer to act in the UAE, on behalf of the manufacturer, with regard to the manufacturer’s legal obligations and responsibilities.</p>\r\n<p class=\"p1\"><span class=\"s2\"> The local authorised representative may be the licensed distributor of the product or a separate authorised representative. If the local distributor is to act as the local authorised representative as well, the distributor must show evidence of its ability to effectively fulfil the regulatory responsibilities required by the Ministry. For example, the local authorised representative is fully responsible for the product and the post-market plan for handling complaints or recall. Further, the local authorised representative is responsible for fully complying with the requirements of the Ministry after placing the product on the market.  </span></p>\r\n<p class=\"p1\"><span class=\"s2\"> Regarding the local agent, in order to import pharmaceuticals (and this also applies to medical devices) into the UAE, the importing company must be an individual or entity established in the UAE and licensed to import medical products. With regards to an individual, only UAE nationals may apply in their individual capacity to be a registered importer of pharmaceuticals. While in the past only companies wholly owned by UAE nationals could apply for a licence to import medical products, currently companies owned by both a UAE shareholder and a foreign shareholder may also apply for such a licence, subject to foreign ownership restrictions. However, companies with 100% foreign ownership cannot yet apply for a pharmaceutical importation licence. Therefore, for companies wishing to import pharmaceuticals into the UAE, there are two options: 1) incorporate a UAE entity in which they are a shareholder jointly with a UAE national, and undertake the licensing process with the Ministry or 2) engage a distributor agent which is already licensed through the Ministry. </span></p>\r\n<p class=\"p2\"><strong>UAE Commercial Agency </strong></p>\r\n<p class=\"p2\">Typically, pharmaceutical companies will call upon the services of a locally licensed agent to distribute its pharmaceutical products in the country. Consequently, a foreign pharmaceutical company should be aware of local laws that could have application to the distribution arrangement.</p>\r\n<p class=\"p1\"><span class=\"s4\"> In respect of the UAE, the registration of a distribution agreement at the Ministry of Economy (“<strong>MOE</strong>”) (more specifically the commercial agencies register) under Federal Law No. 18 of 1981 Concerning the Organisation of Trade Agencies, as amended (“<strong>Agency Law</strong>”)) has been covered numerous times in previous Law Update articles, and is an important consideration for a foreign manufacturer to consider. </span></p>\r\n<p class=\"p1\">In order to qualify for registration at the MOE, the local agent must meet certain qualification criteria, which can be briefly summarised as follows:</p>\r\n\r\n<ul>\r\n 	<li>the agent must be a UAE national or a UAE entity 100% owned by UAE nationals;</li>\r\n 	<li>exclusivity must be granted for one or more of the emirates; and</li>\r\n 	<li>technically, an agreement also must be notarized and in Arabic (and recently the MOE has been requiring a letter, from the foreign manufacturer, confirming it has no objection to registration), though we are aware that in circumstances where these formalities have not been carried out (i.e. no Arabic version/letter of consent not provided) it is possible for an agent to approach the MOE or local courts to seek an order for registration (provided they can show that they meet the prerequisite registration criteria).</li>\r\n</ul>\r\n<p class=\"p6\">There is sometimes a misunderstanding between the requirement for a local agent to be registered as the local authorised distributor with the Ministry, as referred to above, and a requirement for the local agent to be registered with the MOE.</p>\r\n<p class=\"p1\">In practical terms, the Ministry will only allow one distributor of pharmaceutical products in the UAE as a result of local pharmacovigilance and drug safety requirements (e.g. it is much easier to deal with one local agent who is recognised as the distributor for the pharmaceutical product in respect of, say, a recall). Generally speaking, we find that it is not unusual for a local agent to insist on being granted express “exclusivity” in the distribution agreement as a result of the fact that it will be ultimately responsible for the product in UAE (i.e. given this responsibility, it would want to control the distribution of the products itself and would not want to be responsible for the acts of other agents, notwithstanding, as mentioned above, that the Ministry will technically only permit one distributor for a pharmaceutical product to be registered with it).</p>\r\n<p class=\"p1\">Notwithstanding the commercial benefits to the local agent of exclusivity, a primary motive for an agent wanting an express grant of exclusivity under the relevant distribution agreement may be, as highlighted above, that it is one of the prerequisite criteria to effecting registration at the MOE. In the event the local agent is a UAE national or an entity wholly owned by UAE nationals, then the two principle requirements to achieve registration at the MOE would be satisfied and, in such circumstances, it would be unusual if a local agent did not try to register the agreement at the MOE given the significant protections it could benefit from under the Agency Law. Therefore, the ownership structure of the local agent is also a consideration in the event that exclusivity is being insisted upon by a local agent.</p>\r\n<p class=\"p1\">In the event that the local agent did obtain registered agent status at the MOE in respect of the pharmaceutical products listed under its relevant distribution agreement, then the local agent would be able to avail itself of the benefits afforded to registered agents under the Agency Law including:</p>\r\n<p class=\"p4\"><span class=\"s5\">the agent will have exclusivity to import and distribute the relevant pharmaceutical products in the agent’s registered territory (either part or the whole of the UAE subject to the definition of territory under the relevant distribution agreement);</span></p>\r\n\r\n<ul>\r\n 	<li>the agent can block third parties from importing the relevant products into its registered territory, whilst it remains the registered agent of those products at the MOE;</li>\r\n 	<li>the agent will be entitled to commission on every sale of the relevant products made in the agents territory, notwithstanding the fact that they may not have had any involvement in the transaction;</li>\r\n 	<li>the agent will be in a strong position to seek compensation upon termination; and</li>\r\n 	<li>the agent can only be terminated by the foreign principal by either (i) mutual consent of the parties or (ii) for “material reasons”, which are not further defined under the Agency Law and which the applicable local judicial bodies have interpreted narrowly (the result being that, notwithstanding any express right to terminate the agent under the relevant distribution agreement, the foreign principal may be unable to unilaterally terminate the local agent; essentially meaning that the local agent and foreign principal remain bound, regardless of the terms of the distribution agreement, until such time as the local agent is deregistered at the MOE).</li>\r\n</ul>\r\n<p class=\"p6\">Whilst the above are all significant consideration for a foreign manufacturer to bear in mind, the two key consequences of registration that predominantly concern a foreign manufacturer are (i) the right of the local agent to claim compensation upon termination of the arrangement and (ii) the ability of the local agent to block the pharmaceutical products for which it is a registered commercial agent at the MOE. The latter especially could have a significant impact on the foreign manufacturer’s ability to exploit the UAE as a market.</p>\r\n<p class=\"p2\"><strong>GCC Commercial Agency </strong></p>\r\n<p class=\"p2\">Similarly, there are commercial agency regimes in place throughout the GCC countries that extend similar rights to the local agents, though not all afford the local agent the right to block imports of the pharmaceutical products or, where such a right to request a block on importation exists, the relevant authorities may not be as willing to grant such a request. For example, in Qatar, a registered commercial agent is entitled to submit, without notice to the foreign manufacturer, a request to the Ministry of Economy and Commerce (“<strong>MEC</strong>”) to ban the importation of the products as a result of the termination or non-renewal of an agency agreement. However, it is our current understanding that such applications are usually declined by the MEC and we are not aware of such a ban being imposed on the importation of goods in Qatar since 2007. Notwithstanding this, there is obviously no guarantee that such an importation ban request, if submitted, would be denied by the MEC, so it is important that a foreign manufacturer take local law advice in order to minimise the potential post termination or non-renewal consequences that it could face. This again highlights the need for a foreign manufacturer to obtain local law advice in order to familiarise itself with local laws considerations and the potential impact of such on the ability to distribute its products in the region.</p>\r\n<p class=\"p1\"><span class=\"s4\"> The above represents a general overview of the impact that commercial agency laws can have on these types of agency arrangements in respect of pharmaceutical products in the GCC and hopefully highlights the importance of obtaining local law advice in order to obtain knowledge of (i) local market practices and applicable regulatory regime, (ii) the benefits and pitfalls that a party may face upon termination or non-renewal of a commercial agency relationship, and (iii) the impact of any local laws -before any issues arise.</span></p>'),
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(101520, 5518, 'content', '<p class=\"p1\">A significant percentage of the pharmaceutical products imported into the GCC come from Europe and comply with the European requirement to have a COO. In Europe, the country of origin is determined by applying European Directive No. 952/2013 (‘<strong>European Code</strong>’) as follows:</p>\r\n<p class=\"p2\">goods, the production of which involves more than one country or territory shall be deemed to originate in the country or territory where they underwent their last, substantial, economically-justified processing or working, in an undertaking equipped for that purpose, resulting in the manufacture of a new product or representing an important stage of manufacture;</p>\r\n<p class=\"p3\"> The accepted methodology to determine the foregoing is the ‘last/final customs tariff code change along the entire value chain of a certain product’. For pharmaceutical products, the last customs tariff code change is a change occurring on a bulk drug product level.</p>\r\n<p class=\"p1\">So the question is, could a European product, which already carries a COO, be sufficient to comply with the equivalent GCC requirements? The answer is both ‘yes’ and ‘no’, depending upon the local requirements of the country of import. In the GCC, some states follow the European approach, but insert a few unique differences. Unfamiliarity with these differences in either law, procedure, interpretation, or local approach can lead to products being held at customs and, in some cases, being returned to the home port.</p>\r\n<p class=\"p3\"><strong>GCC Common Customs Law</strong></p>\r\n<p class=\"p3\">Customs procedures in the GCC states follow a regional common customs law. The Common Customs Law of the GCC Member States (‘GCC Common Customs Law’) was adopted by the Supreme Council at the 20th Session (Riyadh, 27-29 November 1999) and implemented only as a reference law for one year from the date adopted by the Supreme Council. It was intended to be revised in the light of the comments received by the Secretariat General from each member state in an attempt to have the law compulsorily implemented by all the customs administrations of the GCC. The GCC Common Customs Law was re-published in 2008, with the only substantive changes being made to the introductory narrative.</p>\r\n<p class=\"p1\">According to Article 25 of the GCC Common Customs Law, ‘[i]mported goods are subject to the proof of origin according to the rules of origin adopted within the framework of the international and regional economic agreements in force’. The phrase, ‘within the framework of the international and regional economic agreements’, references the rules of origin requirements found in Annex K, Chapter 1 of the Revised Kyoto Convention on the Harmonisation and Standardisation of Customs Procedures, as amended (‘Revised Kyoto Convention’), which prescribes that where two or more countries have taken part in the production of the goods, the origin of the goods should be determined according to the substantial transformation criterion. Therefore, both the European Code and the GCC Common Customs Law follow the same basic principles.</p>\r\n<p class=\"p1\"><span class=\"s3\"> A number of states in the GCC (and wider region) are signatories to the Revised Kyoto Convention, which aims to standardise customs procedures and ensure that they are consistent with the practices of international trade, including the United Arab Emirates (‘UAE’), Kingdom of Saudi Arabia (‘KSA’), Qatar, Oman, and Bahrain. With regard to these countries, the rules regarding COO should be the same as for the European Code; however, this is not the case. (Kuwait is not a signatory to this convention.)</span></p>\r\n<p class=\"p1\"><span class=\"s4\"> The Revised Kyoto Convention prescribes that where two or more countries have taken part in the production of goods, the origin of the goods should be determined according to the substantial transformation criterion. In applying the substantial transformation criterion, use should be made of the World Customs Organisation’s International Convention on the Harmonized Commodity Description and Coding System (‘Harmonised System’). Each signatory state should follow the methodology set out in the Harmonised System when examining what constitutes a substantial transformation of goods. The recommended practice detailed by the Revised Kyoto Convention, Annex K, Chapter 1, is as follows:</span></p>\r\n\r\n<ul>\r\n 	<li>‘operations which do not contribute, or which contribute to only a small extent, to the essential characteristics or properties of the goods, and in particular operations confined to one or more of those listed below, should not be regarded as constituting substantial manufacturing or processing:</li>\r\n 	<li>operations necessary for the preservation of goods during transportation or storage;</li>\r\n 	<li>operations to improve the packaging or the marketable quality of the goods or to prepare them for shipment, such as breaking bulk, grouping of packages, sorting and grading, repacking;</li>\r\n 	<li>simple assembly operations; and</li>\r\n 	<li>mixing of goods of different origin, provided that the characteristics of the resulting product are not essentially different from the characteristics of the goods which have been mixed.’</li>\r\n 	<li>GCC customs authorities should also accept COO forms in the format and of the size laid out in the Revised Kyoto Convention. The following table confirms how the law is currently applied across the GCC states.</li>\r\n</ul>\r\n<p class=\"p8\"><span class=\"s2\"><strong>Other Matters to Consider</strong></span></p>\r\n<p class=\"p3\"><em>The balance of power – imports and distributor arrangements:</em></p>\r\n<p class=\"p1\">Once the issue of COO is resolved, each importing GCC state will then only permit imports from a company which is duly authorised to bring the products into the country. As a general rule, in order to import and distribute medical products in any of the GCC states, the importing company must be a locally established company. It is possible for a company owned by both a local shareholder and a foreign shareholder to apply for registration to import and distribute products. However, foreign producers with no established corporate presence will need to either establish a company with the necessary licence, or engage a distributor, or agent, which is already registered with the various competent authorities in the country into which the products are to be imported.</p>\r\n<p class=\"p8\"><span class=\"s2\"><strong>Conclusion</strong></span></p>\r\n<p class=\"p7\"><span class=\"s1\">The importation procedures and the price of many pharmaceutical products are controlled at both the GCC and local member state. It remains the case across the GCC that local ministries of health (the bodies which register the products), typically permit only one distributor per product to be registered. This stringent and often lengthy process of product registration – including product evaluation, establishing pharmacovigilance systems, obtaining product labelling and COO compliance, and other matters - assists the regulator in tracking products being brought in-country, which, in-turn, reduces the risk of counterfeit products finding their way onto the shelves or parallel imports flooding the market. It also prevents and minimizes the risk of fraud and abuse within the supply-chain by those companies engaged in anti-competitive practices. These control mechanisms are expected to strengthen over time.</span></p>\r\n\r\n<table class=\"t1\" cellspacing=\"0\" cellpadding=\"0\">\r\n<tbody>\r\n<tr>\r\n<td class=\"td1\" valign=\"middle\"><span class=\"s1\"><strong>GCC State</strong></span></td>\r\n<td class=\"td1\" valign=\"middle\"><span class=\"s1\"><strong>GCC Common Customs Law</strong></span></td>\r\n<td class=\"td1\" valign=\"middle\"><span class=\"s1\"><strong>Revised Kyoto Convention</strong></span></td>\r\n<td class=\"td1\" valign=\"middle\"><span class=\"s1\"><strong>Variation</strong></span></td>\r\n</tr>\r\n<tr>\r\n<td class=\"td1\" valign=\"top\"><span class=\"s1\"><strong> </strong></span> <span class=\"s1\"><strong>UAE</strong></span></td>\r\n<td class=\"td1\" valign=\"top\">  ✓</td>\r\n<td class=\"td1\" valign=\"top\">  Instrument of accession</td>\r\n<td class=\"td1\" valign=\"top\">  Local variation of procedure may affect imports into various Free Zones. <span class=\"s2\"><strong> </strong></span></td>\r\n</tr>\r\n<tr>\r\n<td class=\"td1\" valign=\"top\"><span class=\"s1\"><strong> </strong></span> <span class=\"s1\"><strong>KSA</strong></span> <span class=\"s2\"><strong> </strong></span></td>\r\n<td class=\"td1\" valign=\"top\">  ✓</td>\r\n<td class=\"td1\" valign=\"top\">  Instrument of accession</td>\r\n<td class=\"td1\" valign=\"top\">  None</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td1\" valign=\"top\"><span class=\"s1\"><strong> </strong></span> <span class=\"s1\"><strong>QATAR</strong></span> <span class=\"s2\"><strong> </strong></span></td>\r\n<td class=\"td1\" valign=\"top\">  ✓</td>\r\n<td class=\"td1\" valign=\"top\">  Instrument of accession</td>\r\n<td class=\"td1\" valign=\"top\">  None</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td1\" valign=\"top\"><span class=\"s1\"><strong> </strong></span> <span class=\"s1\"><strong>OMAN</strong></span> <span class=\"s2\"><strong> </strong></span></td>\r\n<td class=\"td1\" valign=\"top\">  ✓</td>\r\n<td class=\"td1\" valign=\"top\">  Signatory</td>\r\n<td class=\"td1\" valign=\"top\">  None</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td1\" valign=\"top\"><span class=\"s1\"><strong> </strong></span> <span class=\"s1\"><strong>KUWAIT</strong></span></td>\r\n<td class=\"td1\" valign=\"top\">  ✓</td>\r\n<td class=\"td1\" valign=\"top\">  N/A</td>\r\n<td class=\"td1\" valign=\"top\">  The applicable Kuwaiti laws provide that the site of production is part of the product licence. If the production site is changed, the licence has to be updated or it is no longer valid. Therefore, in Kuwait, the COO is linked to the site of the manufacturer.  <span class=\"s2\"><strong> </strong></span></td>\r\n</tr>\r\n<tr>\r\n<td class=\"td1\" valign=\"top\"><span class=\"s1\"><strong> </strong></span> <span class=\"s1\"><strong>BAHRAIN</strong></span></td>\r\n<td class=\"td1\" valign=\"top\">  ✓</td>\r\n<td class=\"td1\" valign=\"top\">  Instrument of accession</td>\r\n<td class=\"td1\" valign=\"top\">  The country of origin is the country in which the Certificate of Pharmaceutical Products (‘CPP’) has been issued. The CPP should be legalised from the batch releaser country, which is considered the country of origin even if the bulk pharmaceutical active ingredients were manufactured elsewhere and only packed in the batch releaser country. <span class=\"s2\"><strong> </strong></span></td>\r\n</tr>\r\n</tbody>\r\n</table>'),
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(101475, 5515, '_yoast_wpseo_metadesc', 'Abu Dhabi Judicial Department has recently announced that with effect from 1 January 2017 tenants in Abu Dhabi will need to ensure that their tenancy contracts are correctly registered in order to be protected in the event of a rental scam.'),
(101476, 5516, 'content', 'November 2016\r\n\r\n<hr />\r\n<p class=\"p1\"><strong>New Intermediate SPV Vehicles </strong></p>\r\n<p class=\"p2\">The DFSA and DIFC held a joint seminar on 31 October on structuring and the new ‘Intermediate SPV’ regime with the focus being on fund structuring. (‘Intermediate’ referring to such vehicles sitting in an intermediate position in a structure).</p>\r\n<p class=\"p1\">The Intermediate SPV is a recent development by the DIFC Authority which provides a cost effective option for establishing SPVs in the DIFC (i.e., only US$1,000) not just in respect of fund structures but across the board.</p>\r\n<p class=\"p1\">There has been the option to establish Special Purpose Companies in the DIFC previously, and this option remains, but these are comparatively expensive and process-heavy to set up. The new Intermediate SPVs will be cheaper and easier to establish. No change of law or rules has occurred as yet, but the entities are available now through standardised waivers which will apply when an application is made to the DIFC Authority.</p>\r\n<p class=\"p1\">However, the Intermediate SPVs will only be available to entities that already have a substantive presence in the DIFC (i.e., fund managers, asset managers, family offices etc).</p>\r\n<p class=\"p1\">This development is a step closer to what the ADGM offers by way of SPVs and will make life easier and cheaper as far as structuring options go for existing DIFC entities, but doesn’t go quite as far as the ADGM regime due to the requirement to already have a substantive DIFC presence.</p>\r\n<p class=\"p4\"><strong>Amendments to DFSA Legislation</strong></p>\r\n<p class=\"p2\">On 22 June 2016, the DFSA published a notice of amendments to the DFSA Rulebook based on the changes proposed in consultation paper 103 and consultation paper 105. This includes changes to the insurance regime, the AML Annual Return deadline and stipulations for communications with the DFSA. These amendments came into effect on 1 August 2016.</p>\r\n<p class=\"p1\"><em>Changes to the insurance regime</em></p>\r\n<p class=\"p1\">The recent amendments have provided for the below changes to the DFSA’s insurance regime:</p>\r\n\r\n<ul>\r\n 	<li>Clarification that Insurers Effecting Contracts of Insurance can give advice and undertake Insurance Intermediation activities relating to their own products and those of Group members.</li>\r\n 	<li>The definition of Insurance Intermediation has been expanded to cover operators of aggregation sites.</li>\r\n 	<li>The exclusions to Insurance Intermediation and Insurance Management have been amended to cover various activities which are not intended to regulated as financial services.</li>\r\n 	<li>Removal of the overlap between Insurance Intermediation and Insurance Management.</li>\r\n 	<li>Introduction of the new defined terms ‘Insurance Agents’ and ‘Insurance Brokers’.</li>\r\n 	<li>Clarification around the application of the Conduct of Business requirements to reinsurance activities.</li>\r\n 	<li>More clarity around disclosure requirement in relation to conflicts of interests arising from ownership links.</li>\r\n 	<li>The Expenditure Based Capital Minimum requirement applicable to Insurance Intermediaries handling Insurance Monies has been lowered from 18 weeks of operational expenditure to 9 weeks of operational expenditure.</li>\r\n 	<li>Requirements for Insurance Managers to give some additional declarations in their annual return.</li>\r\n 	<li>The introduction of new reporting requirements for Insurers, including branches, and also for Insurance Managers which conduct underwriting activities.</li>\r\n</ul>\r\n<p class=\"p2\"><em>Online Applications and Submission of Data to the DFSA</em></p>\r\n<p class=\"p1\"><span class=\"s2\">The legislative changes that were set out in Consultation Paper No.105 have now been implemented. Essentially the DFSA intend to increase the range of transactions, and interactions, which can take place online. The DFSA will introduce an online portal that will allow entities and individuals to submit electronic data directly to the DFSA. The portal will be accessible from the DFSA website, in the same way as is currently the case for the Electronic Prudential Reporting System. </span></p>\r\n<p class=\"p1\">In the first phase of work, which is intend to be complete by the end of 2016, various DFSA authorization application forms and the Annual AML return will be made available through the online portal.</p>\r\n<p class=\"p1\">Additionally, the timing of submission of the annual AML return has changed. Instead of being due four months’ after the end of the Relevant Person’s financial year, this return will in future be due by the end of September each year and the report must cover the period from August of the previous year up to and including July of the lodgement year.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Regulatory Actions</strong></span></p>\r\n<p class=\"p2\"><em>Authorised Firm conducting prohibited insurance activity in the UAE</em></p>\r\n<p class=\"p1\">On the 21 September 2016 the DFSA issued a Decision Notice and imposed a fine of USD 85,191 on an Authorised Firm, who is licensed to provide the Financial Service of Insurance Intermediation. The fine was imposed following a DFSA investigation conducted in collaboration with the United Arab Emirates Insurance Authority.</p>\r\n<p class=\"p1\">Under the DFSA Rulebook Authorised Firms are prohibited from intermediating a Contract of Insurance for a risk situated in the UAE unless:</p>\r\n\r\n<ul>\r\n 	<li>the risk is situated in the DIFC; or</li>\r\n 	<li>the contract is one of re-insurance.</li>\r\n</ul>\r\n<p class=\"p7\">The DFSA’s investigation identified that the Authorised Firm intermediated contracts of Insurance for customers with risks situated in the UAE and outside the DIFC, which were not contracts of re-insurance in breach of the abovementioned DFSA Rules. The Authorised Firm also and failed to have adequate systems and controls in place to detect, monitor and prevent such activities from occurring.</p>\r\n<p class=\"p8\"><em>DFSA concerns over Authorised Firm’s AML systems and licensed activities</em></p>\r\n<p class=\"p1\">On the 18 of October 2016 the DFSA accepted an Enforceable Undertaking from an Authorised Firm as a result of the DFSA concerns about the firm’s anti-money laundering systems and controls, and about whether it had carried out the Financial Service of Providing Custody to its clients without being licensed to do so. Although the firm did not agree with the DFSA’s findings, it acknowledges the DFSA’s concerns and agrees to engage an independent expert to ensure that the concerns are remedied.</p>\r\n<p class=\"p1\">The firm also agreed to pay a financial penalty of USD 60,000 to the DFSA of which USD 30,000 is payable on or by 17 November 2016. The remaining USD 30,000 is suspended indefinitely and becomes payable if the firm fails to comply with the Enforceable Undertaking.</p>\r\n<p class=\"p2\"><strong>Future Amendments to DFSA Legislation</strong></p>\r\n<p class=\"p2\">To complete our summary of regulatory updates in the DIFC, we also feel is of importance to mention the following proposed amendments to the DFSA Rulebook that have been addressed in the below listed consultation papers. Please note all three of these consultation papers have finished their consultation period and the proposed amendments to the DFSA Rulebook will be implemented when the relevant Rulemaking instruments are issued by the DFSA. Below is a summary of the changes that each Consultation paper has proposed.</p>\r\n<p class=\"p1\">Please note the proposed changes will not come into force until the relevant Rulemaking instrument has been published by the DFSA and please also be aware that the proposals contained within the consultation papers may change. Therefore ultimately only the text of the amended Rulebook and/or Law as published in the Rulemaking instrument can be relied upon.</p>\r\n<p class=\"p1\"><em>Consultation paper 106</em></p>\r\n<p class=\"p1\">The DFSA issued Consultation paper 106 due to what they felt was a lack of clarity in some areas of regulation. Therefore Consultation paper 106 proposes to provide greater clarity to the meaning and scope of ‘arranging’ related Financial Services, Operating a Representative Office and the Financial Promotions regime.</p>\r\n<p class=\"p1\">In summary, the Consultation paper proposes to make the following changes:</p>\r\n\r\n<ul>\r\n 	<li>combine arranging and advising activities relating to credit into a new separate Financial Service of ‘Arranging and Advising on Credit’;</li>\r\n 	<li>provide clarity on how arranging activities can be distinguished from the Financial Service or financial product to which that activity relates, such as the distinction between:</li>\r\n</ul>\r\n1. ‘Arranging Deals in Investments’ and ‘Dealing in Investments as Agent’; and\r\n\r\n2. ‘Arranging Custody’ and ‘Providing Custody’.\r\n<ul>\r\n 	<li>introduce clarifications about what Financial Services an Insurance Broker and an Insurance Agent require;</li>\r\n 	<li>provide for some changes to the activities excluded from regulation under arranging and advising;</li>\r\n 	<li>provide guidance to create clarity about the intended scope of a Representative Office licence;</li>\r\n 	<li>remove the application of the Client Asset provisions to firms ‘Arranging Custody’; and</li>\r\n 	<li>refine the Financial Promotions regime to minimise the risk of abuse of that regime.</li>\r\n</ul>\r\n<p class=\"p7\">In light of the above proposals, when they come in force, some Authorised Firms may need Licences for a different type of activity than they currently hold. It is proposed that the DFSA would generally allow a period of six months for the firms to complete the necessary formalities to obtain the right type of Licence. Representative Offices and persons carrying out Financial Promotions which act beyond the scope of their Licences or of the DFSA Rules, as would be clarified under these proposals, would need to cease such activities immediately.</p>\r\n<p class=\"p7\"><em>Consultation paper 107</em></p>\r\n<p class=\"p1\">In consultation paper 107, the DFSA is proposing changes to the Anti-Money Laundering, Counter-Terrorist Financing and Sanctions Module (‘AML Module’) in order to make sure that the regime remains up-to-date in light of the 2012 Financial Action Task Force Recommendations and the recent amendments made to the UAE Federal Law No.4 of 2002 and other UAE AML Legislation.</p>\r\n<p class=\"p1\">In summary, the Consultation paper proposes to make the following changes in the AML Module:</p>\r\n\r\n<ul>\r\n 	<li>Amend various definitions in order to reflect updates to the UAE Federal AML Laws.</li>\r\n 	<li>Provide further clarity in relation to applying a Risk Based Approach.</li>\r\n 	<li>updates relating to the prohibition on dealing with Shell Banks and opening anonymous accounts.</li>\r\n 	<li>Provide further guidance on what measures should be taken to understand a client’s source of wealth and source of funds and when identifying ultimate beneficial owners.</li>\r\n 	<li>Amend the guidance regarding outsourcing customer due diligence.</li>\r\n 	<li>Amend the application of the ‘Sanctions and other international obligations’, the ‘Money Laundering Reporting Officer’ and the ‘Suspicious Activity Reports’ Chapters to apply to all persons that the AML Module applies to.</li>\r\n 	<li>Provide guidance about the application of United Nations Security Council resolutions.</li>\r\n 	<li>Provide guidance around the DFSA’s processes in relation to freezing of funds or assets.</li>\r\n 	<li>Provide further guidance around what activities are captured under the current Designated Non-Financial Business or Professions definition.</li>\r\n</ul>\r\n<p class=\"p2\"><em>Consultation paper 108</em></p>\r\n<p class=\"p1\">In consultation paper 108 the DFSA is proposing amendments to the capital requirements for managers of collective investment funds and amendments to the rules regarding reporting suspicions of market abuse.</p>\r\n<p class=\"p1\">In relation to capital requirements for managers of collective investment funds, it is proposed to leave the required expenditure based capital minimum as it is. However the DFSA proposes to reduce the Base Capital Requirement for: a) managers of Public Funds to USD 140,000; and b) managers of Exempt Funds and QIFs to USD 70,000.</p>\r\n<p class=\"p1\">An obligation to report suspicions of market abuse to the DFSA is currently imposed on market operators (i.e. Operators of Authorised Market Institutions and of Alternative Trading Systems). However there is not an explicit obligation on Authorised Firms to report suspicions of market abuse by others for whom the firm may be acting. Therefore the DFSA proposes to amend the DFSA Rulebook so that Authorised Firms and Recognised Members are under an explicit obligation to report suspicions of market abuse to the DFSA.</p>'),
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(101482, 5516, 'pageSummary', 'This article is a summary of some key financial services regulatory developments that have been implemented in the Dubai International Financial Centre (“DIFC”) in recent months. There have been several amendments to the Dubai Financial Services Authority (“DFSA”) Rules in 2016. In this article we highlight some of the more recent changes in the DIFC and to the DFSA Rulebook that may be of interest to some of our clients who are either already present in the DIFC or who are looking to establish a presence in the DIFC.'),
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(101497, 5517, 'content', 'November 2016\r\n\r\n<hr />\r\n<p class=\"p1\"><em>In a data protection context, a ‘data controller’ can broadly be understood as someone (usually a corporate entity) who determines the purposes for which personal data is processed. ‘Personal data’ can generally be understood as data relating to an identifiable natural person, and a ‘data subject’ can be understood as the identifiable natural person to whom such personal data relates. The concept of ‘processing’ is very broad, and can include the collection, recording, organization, storage, adaption or alteration, retrieval, consultation, use, disclosure, transmission, dissemination, combination, erasure or destruction of personal data.</em></p>\r\n<strong>Information obligations</strong>\r\n\r\nData controllers need to provide data subjects with certain information to ensure that the processing of such data subjects’ personal data is fair and legitimate. This needs to be considered when preparing or reviewing privacy policies intended to serve as formal notification to data subjects of such personal data processing activities.\r\n\r\nWhether or not personal data is collected directly from data subjects, in each of the relevant jurisdictions data subjects must be informed of the identity of the data controller, the purposes of the intended processing of personal data, and any further information necessary to guarantee fair processing in relation to the data subject; having regard to the specific circumstances in which the personal data is collected. The latter may include:\r\n<ul>\r\n 	<li>the recipients or categories of recipients of the personal data;</li>\r\n 	<li>the existence of the right of access to and the right to rectify the personal data;</li>\r\n 	<li>whether the personal data will be used for direct marketing purposes; and</li>\r\n 	<li>whether the transfer of personal data or processing of sensitive personal data is necessary to uphold the legitimate interests of the data controller recognized in the international financial markets.</li>\r\n</ul>\r\nWhere personal data is collected directly from the data subject, information on whether replies to questions are obligatory or voluntary, as well as the possible consequences of failure to reply, should also be communicated to the data subject to ensure fair processing. Where personal data is not collected directly from the data subject, information on the category of personal data concerned should also be communicated to the data subject to ensure fair processing.\r\n\r\nThe data controller need not provide information that the data controller reasonably expects the data subject already has. Additionally, in the case of personal data not collected directly from the data subject, the provision of the information contemplated above is not required if it proves impossible to do so or would involve a disproportionate effort.\r\n\r\n<span class=\"s2\"> The manner in which such information is communicated to the data subject is not prescribed, although it needs to be consistent with the general obligation to process personal data fairly. </span>\r\n\r\n<strong>Right to access; right to rectify</strong>\r\n\r\nIn addition to the right to be provided with certain information as outlined above, the data protection laws and regulations in the DIFC, ADGM and QFC also provide data subjects with certain other rights with regard to access to, and rectification, erasure or blocking of, personal data, as well as a right to object to processing.\r\n\r\n<span class=\"s3\"> A data subject has the right to obtain from the data controller upon request, at reasonable intervals and without excessive delay or expense:</span>\r\n<ul>\r\n 	<li>Confirmation in writing as to whether or not personal data relating to the data subject is being processed and, at a minimum, the purpose of processing, the categories of personal data concerned, and the recipients or categories of recipients to whom the personal data will be disclosed;</li>\r\n 	<li>Communication to the data subject, in an intelligible form, of the personal data undergoing processing and of any available information as to its source; and</li>\r\n 	<li>As appropriate, the rectification, erasure or blocking of personal data, the processing of which does not comply with the provisions of the applicable law or regulations.</li>\r\n</ul>\r\nA data subject also has the right to object to the processing of personal data at any time on reasonable grounds relating to the data subject’s particular situation; and the right to be informed before personal data is disclosed for the first time to third parties or used for the purposes of direct marketing, and to be expressly offered the right to object to such disclosures or uses.\r\n\r\nData subject access rights do not apply to the actions of the various regulators, authorities and companies’ registrars in the relevant jurisdictions if the application of such provisions would be likely to prejudice the proper discharge of the powers and functions of these entities, in so far as those powers and functions are designed to protect members of the public against dishonesty, malpractice or other seriously improper conduct.\r\n\r\nData controllers operating in the DIFC, ADGM and QFC need to be aware of their obligations with regard to properly informing data subjects of personal data processing involving such data subjects’ personal data, and addressing legitimate data subject access requests.\r\n\r\n&nbsp;\r\n\r\n<em>Al Tamimi &amp; Company’s Technology, Media &amp; Telecommunications team regularly advises on data and data protection issues throughout the Middle East. For further information please contact Nick O’Connell (n.oconnell@tamimi.com) or Sana Saleem (s.saleem@tamimi.com). </em>\r\n\r\n&nbsp;'),
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(101501, 5517, 'content_description', 'While not identical, many similarities can be found in the data protection laws and regulations of the Dubai International Financial Centre (‘DIFC’), the Abu Dhabi Global Market (‘ADGM’) (each being financial services free zones in the United Arab Emirates) and the Qatar Financial Centre (‘QFC’) (being a financial services licensing authority in Qatar). In this article, we focus on obligations to provide information to data subjects when gathering personal data, and the rights of data subjects to object to the processing of personal data relating to them. '),
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(101503, 5517, 'pageSummary', 'While not identical, many similarities can be found in the data protection laws and regulations of the Dubai International Financial Centre (‘DIFC’), the Abu Dhabi Global Market (‘ADGM’) (each being financial services free zones in the United Arab Emirates) and the Qatar Financial Centre (‘QFC’) (being a financial services licensing authority in Qatar). In this article, we focus on obligations to provide information to data subjects when gathering personal data, and the rights of data subjects to object to the processing of personal data relating to them.'),
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(94371, 5125, 'content', 'April 2015\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">Whilst there are many benefits to this, the potential pitfall is that UAE nationals are in some sectors being overlooked for roles in favour of their expatriate counterparts. Year on year statistics and comparative studies at various levels continue to highlight the growing divide between the hiring of UAE nationals in the public and private sectors, as well as the increasing need to effectively redress this imbalance to ensure UAE nationals are gaining meaningful employment in the private sector, and are not being recruited solely to meet Emiratisation targets or employer-specific quotas.</p>\r\n<p class=\"MsoNormal\">This article sets out a brief recap of the Emiratisation laws applied in the private sector.</p>\r\n<p class=\"MsoNormal\"><strong>Scope of Emiratisation Laws</strong></p>\r\n<p class=\"MsoNormal\">The UAE Labour Law provides that foreign nationals can only be employed after approval from the Ministry of Labour and only where there are no qualified UAE nationals to undertake the role. These preferential provisions are an extension of the UAE Constitution which states that the UAE Government must ensure that employment is available for all UAE nationals.</p>\r\n<p class=\"MsoNormal\">Despite this, UAE nationals are under-represented in the private sector. Accordingly, in recent years, a number of ministerial orders have been implemented with a view to increasing employment of UAE nationals in all areas with a particular focus on the private sector.</p>\r\n<p class=\"MsoNormal\"><strong> </strong></p>\r\n<p class=\"MsoNormal\">Ministerial Orders No. 41, No. 42 and No. 43 of 2005 impose on private sector employers a “quota” system, whereby every company is obliged to recruit (and retain on the payroll) a sufficient number of UAE nationals to ensure that the UAE nationals component of its workforce constitutes a specified (minimum) percentage of the overall number of staff.</p>\r\n<p class=\"MsoNormal\">The applicable quotas are as follows:</p>\r\n\r\n<ul>\r\n 	<li>\r\n<div class=\"MsoNormal\">2% for commercial entities (where the entity has over 50 employees);</div></li>\r\n 	<li>4% for banks; and</li>\r\n 	<li>5% for insurance companies (where the entity has over 50 employees).</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"MsoNormal\">Irrespective of the above, the Central Bank and Insurance Authority have the discretion to determine quotas and year on year increases for banks and insurance companies.</p>\r\n<p class=\"MsoNormal\">In addition to the above, Council of Ministers Order No. 26 and Ministerial Order No. 1187, issued in August and November of 2010 respectively, implement a system of classification as an incentive to those adhering to their Emiratisation obligations.  Essentially, where employers strictly observe government policies with regard to Emiratisation they will not be required to provide a financial guarantee for employees. Companies with lower gradings are required to file mandatory financial guarantees, the amount of which will depend on the category of the employer (as set out in the relevant Order).</p>\r\n<p class=\"MsoNormal\">Strictly speaking, the rules do not apply in the free zones as they have their own employment regulations and in theory, their own Emiratisation requirements (although none of the free zones have yet implemented any Emiratisation requirements).</p>\r\n<p class=\"MsoNormal\"><strong>Specific Roles</strong></p>\r\n<p class=\"MsoNormal\">Ministerial Resolution No. (635) of 2008 on Public Relations Officers states that any company which employs over 100 workers must employ an UAE national PRO. There are no other role specific requirements in relation to Emiratisation.</p>\r\n<p class=\"MsoNormal\"><strong>Enforcement</strong></p>\r\n<p class=\"MsoNormal\">The rules and incentives set out above are useful in showing the intentions of the authorities in terms of Emiratisation. Practically however they are somewhat lacking in enforcement capabilities and in reality a relaxed approach has been taken in respect of meeting Emiratisation quotas.</p>\r\n<p class=\"MsoNormal\">The Ministry of Labour can block a work permit and residency visa application from any private-sector employer if unemployed registered nationals are qualified for the role. In practice however this does not often happen.</p>\r\n<p class=\"MsoNormal\">Whilst the Ministry of Labour does not take a very robust approach to Emiratisation, other authorities do. By way of example, in some cases the Insurance Authority has refused to renew commercial licences of businesses where Emiratisation targets are not met. Only when the employer demonstrates that it has met the Emiratisation quota has the commercial licence been renewed.</p>\r\n<p class=\"MsoNormal\">Going forward, the indications are that the UAE Government will take steps to increase Emiratisation but not by more rigorously policing whether quotas are being met. Instead, one indication of the Government’s approach to this is that the UAE Labour Law is to be amended to increase entitlements in the private sector to make jobs appealing to Emirati nationals. This is intended to close the perceived gap between the public and private sector insofar as pay and benefits are concerned.  <strong> </strong></p>\r\n<p class=\"MsoNormal\"><strong>Employment and termination of Emirati Nationals</strong><strong> </strong></p>\r\n<p class=\"MsoNormal\">The engaging of UAE national employees is a relatively simple process. It is significantly less complex than hiring non-UAE nationals insofar as there is no requirement to obtain a work visa for UAE national employees (although there is a requirement to obtain a work permit). Instead, an employer must notify the Labour Department within 15 days of appointing a UAE national employee and provide specific information in respect of the UAE national employee including a breakdown of their remuneration package.</p>\r\n<p class=\"MsoNormal\">In addition, the employer must enter into the Ministry of Labour UAE national standard form contract with the UAE national employee and file a signed copy of that agreement with the Labour Department. This does not preclude an employer entering into a supplemental employment contract containing further details of the tasks to be assigned to the employee, working conditions, confidentiality and intellectual property restrictions, restrictive covenants, etc. This is more usual where senior employees are concerned.</p>\r\n<p class=\"MsoNormal\">Every qualifying UAE national should also be registered by his or her employer with the General Pension and Social Security Authority (“<strong>GPSSA</strong>”) and thereafter the employer must provide pension contributions to the GPSSA on the employee’s behalf. Throughout employment, the GPSSA must also be kept up to date with any employment changes that may affect an employee\'s salary for instance periods of unpaid leave or work injuries.</p>\r\n<p class=\"MsoNormal\">Termination of UAE nationals is difficult. Essentially, termination of employment involving a UAE national is deemed to be ‘unlawful’ where:</p>\r\n\r\n<ul>\r\n 	<li>the dismissal is for a reason other than those set out in section 120 of the UAE Labour Law; or</li>\r\n 	<li>a non-UAE national working in the same position is retained; or</li>\r\n 	<li>the Ministry of Labour is not notified of the termination at least 30 days in advance.</li>\r\n</ul>\r\n<p class=\"MsoNormal\">Accordingly, employers are often unable to dismiss employees who are, for example, poor performers since this reason does not fall within the exhaustive list set out in Article 120 of the Labour Law. Where dismissals do involve UAE nationals, it is advisable for employers to seek advice before taking any action to ensure that they do not fall foul of the rigid guidelines in place in this regard.</p>'),
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(101459, 5515, 'content', 'November 2016\r\n\r\n<hr />\r\n<p class=\"p1\">Abu Dhabi Executive Council Resolution on the Rules and Procedures of Registration of Tenancy Contracts in the Emirate of Abu Dhabi (Chairman of the Executive Council Resolution No. 4 of 2011) created an obligation on landlords and tenants with tenancy contracts with terms of less than 4 years to register their tenancy contracts with the Tawtheeq department at the relevant Municipality in the Emirate (Abu Dhabi Municipality, Al Ain Municipality or the Western Region Municipality, as applicable). Tawtheeq carries out cross-checks with the land registration records held by the Municipalities to ensure that landlords leasing properties are the legal owners of those properties and therefore registration of tenancy contracts should ensure that there are fewer rental fraud cases.</p>\r\n<p class=\"p1\"><span class=\"s1\"> The Abu Dhabi Judicial Department have reported that they continue to see many cases where tenants are defrauded by bogus landlords who lease properties to numerous parties, collect advance rent and then disappear before the scam is uncovered. </span></p>\r\n<p class=\"p1\">The primary responsibility for checking a landlord’s title to a property and its capacity to lease the property remains with tenants. It is recommended that all tenants request a copy of the landlord’s title deed or sale and purchase agreement (SPA) to the property and the landlord’s passport copy or Emirates ID before signing any tenancy contract or handing over a rent cheque. Since the introduction of the law on the Regulation of the Real Estate Sector in the Emirate of Abu Dhabi (Law No. 3 of 2015) earlier this year, tenants should also check that the real estate broker they are dealing with has been correctly licensed and registered with Abu Dhabi Municipality (“ADM”) and the Department of Economic Development (“DED”). The tenant should ask the broker for a copy of the real estate brokerage licence issued by ADM, trade licence for the real estate brokerage company issued by DED and a copy of his or her individual licence to operate as a real estate broker in Abu Dhabi issued by ADM. If a broker is unable to produce these licences then that should be a red flag to a potential tenant that the broker is operating illegally and is not a reputable business.</p>\r\n<p class=\"p1\"><span class=\"s1\"> Tawtheeq registration also protects a tenant from the possibility that the property they wish to lease is an illegally sub-divided unit. Apartments created from the illegal sub-division of villas will not be accepted for registration by Tawtheeq. Without a correctly registered Tawtheeq tenancy contract a tenant will face many difficulties when dealing with government departments or utility providers. A Tawtheeq tenancy contract is required for water, electricity, telephone and internet connections, Mawaqif parking permits and for the sponsorship of family members.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> It is primarily the responsibility of the landlord to register with Tawtheeq however if the landlord refuses to register then the tenant can complain to the Abu Dhabi Rent Dispute Committee which can order that the tenancy contract must be registered.</span></p>'),
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(101448, 5514, 'content_description', 'In Part 1 of this series published in September 2016 of Law Update, we examined the registration requirements of short term leases in Dubai, Abu Dhabi and Sharjah. Continuing on with the series, in Part II, we will go over the registration requirements of short term leases in Northern Emirates namely, Ras Al Khaimah, Umm Al Quwain, Ajman and Fujairah. '),
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(101450, 5514, 'pageSummary', 'In Part 1 of this series published in September 2016 of Law Update, we examined the registration requirements of short term leases in Dubai, Abu Dhabi and Sharjah. Continuing on with the series, in Part II, we will go over the registration requirements of short term leases in Northern Emirates namely, Ras Al Khaimah, Umm Al Quwain, Ajman and Fujairah.'),
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(101444, 5514, 'content', 'November 2016\r\n\r\n<hr />\r\n\r\n<table class=\"t1\" cellspacing=\"0\" cellpadding=\"0\">\r\n<tbody>\r\n<tr>\r\n<td class=\"td1\" valign=\"middle\"><span class=\"s1\"><strong>No.</strong></span></td>\r\n<td class=\"td1\" valign=\"middle\"><span class=\"s1\"><strong>Description</strong></span></td>\r\n<td class=\"td1\" valign=\"middle\"><span class=\"s1\"><strong>Ras Al Khaimah</strong></span></td>\r\n<td class=\"td1\" valign=\"middle\"><span class=\"s1\"><strong>Umm Al Quwain </strong></span></td>\r\n<td class=\"td1\" valign=\"middle\"><span class=\"s1\"><strong>Ajman </strong></span></td>\r\n<td class=\"td1\" valign=\"middle\"><span class=\"s1\"><strong>Fujairah</strong></span></td>\r\n</tr>\r\n<tr>\r\n<td class=\"td2\" valign=\"middle\">1.</td>\r\n<td class=\"td2\" valign=\"middle\">Applicable Tenancy Laws</td>\r\n<td class=\"td2\" valign=\"middle\">The Emirate of Ras Al Khaimah currently does not have a law to regulate landlord and tenant relationships.  Therefore, the provisions of the UAE Civil Transactions Law No. 5 of 1985 apply to lease agreements in Ras Al Khaimah.  <span class=\"s2\"><strong> </strong></span></td>\r\n<td class=\"td2\" valign=\"middle\">Umm Al Quwain Law no. (3) of 2008 regulating the Relationship between Landlords and Tenants in the Emirate of Umm Al Quwain as amended by Law No. 2 of 2011</td>\r\n<td class=\"td2\" valign=\"middle\">Ajman Emiri Decree No. 3 of 2009 as amended by Emiri Decree No. 8 of 2014 promulgating the Amended Real Estate Leasing Law in the Emirate of Ajman</td>\r\n<td class=\"td2\" valign=\"middle\">Fujairah Law No. 1 of 2011 concerning leases of premises in the Emirate of Fujairah</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td1\" valign=\"middle\">2.</td>\r\n<td class=\"td1\" valign=\"middle\">Dispute Resolution Authority</td>\r\n<td class=\"td1\" valign=\"middle\"><span class=\"s3\">Real Estate and Rental Dispute Settlement Committee deals with tenancy disputes between master developers affiliated with the Government of Ras Al Khaimah and third party tenant pursuant to RAK Emiri Decree No. 2 of 2012. </span> For all other tenancy disputes, the matter is referred to the Courts of Ras Al Khaimah.  <span class=\"s2\"><strong> </strong></span></td>\r\n<td class=\"td1\" valign=\"middle\">Rent Dispute Settlement Committee formed pursuant to Law No. 3 of 2008 Amending Law No. 1 of 2006 Regulating Relationship Between Landlords and Tenants in the Emirate of Umm Al Quwain</td>\r\n<td class=\"td1\" valign=\"middle\">Rent Dispute Settlement Committee formed pursuant to Emiri Decree No. 3 of 2009 on the Promulgation of Amended Real Estate Rent Law in Ajman</td>\r\n<td class=\"td1\" valign=\"middle\">Committee for Resolution of Lease Disputes formed pursuant to Law No. 1 of 2011 concerning leases of premises in the Emirate of Fujairah</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td2\" valign=\"middle\">3.</td>\r\n<td class=\"td2\" valign=\"middle\">Leases that can be registered</td>\r\n<td class=\"td2\" valign=\"middle\">Based on our discussions with the competent authorities, we have been informed that there is no prescribed tenure for short term leases in Ras Al Khaimah.</td>\r\n<td class=\"td2\" valign=\"middle\"><span class=\"s4\"> </span> <span class=\"s3\">Based on our discussions with the competent authorities that whilst there is no prescribed tenure for lease agreements in Umm Al Quwain, the lease agreement for residential use are usually between 1 to 5 years.</span> All commercial lease agreements do not exceed 1 year in tenure. <span class=\"s2\"><strong> </strong></span></td>\r\n<td class=\"td2\" valign=\"middle\">Based on our discussions with the competent authorities, we have been informed that all short term lease agreements (i.e. for residential or commercial purposes) in Ajman do not exceed 12 months in tenure.</td>\r\n<td class=\"td2\" valign=\"middle\">Based on our discussions with the competent authorities, we have been informed that all short term (i.e. residential, commercial or industrial) leases not exceeding 10 years in tenure can be registered.</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td1\" valign=\"middle\">4.</td>\r\n<td class=\"td1\" valign=\"middle\">Registration Fees</td>\r\n<td class=\"td1\" valign=\"middle\">Based on our discussions with the competent authorities, we have been informed that 1% of the total rent value is payable for residential lease agreement with a minimum fee of AED 300; and 5% of the total rent value is payable for commercial lease agreements.  <span class=\"s2\"><strong> </strong></span></td>\r\n<td class=\"td1\" valign=\"middle\">Based on our discussions with the competent authorities, we have been informed that a registration fee of 2% of the rent contract value is payable in cases of residential lease agreement;  10% of the rent contract value per annum is payable in cases of commercial lease agreement.</td>\r\n<td class=\"td1\" valign=\"middle\">Based on our discussions with the competent authorities, we have been informed that 1% of the annual rent value is payable in cases of residential lease agreements;  10% of the annual rent value is payable for commercial lease agreements.</td>\r\n<td class=\"td1\" valign=\"middle\">Based on our discussions with the competent authorities, we have been informed that if the rent amount is in the range of AED 1 to AED 15,000, then the registration fee payable is AED 300.  For rent amount exceeding AED 15,000, the registration fee is 2% of the total rental value.</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td2\" valign=\"middle\">5.</td>\r\n<td class=\"td2\" valign=\"middle\">Fees to obtain the standard contract documentation <span class=\"s2\"><strong> </strong></span></td>\r\n<td class=\"td2\" valign=\"middle\">AED 50</td>\r\n<td class=\"td2\" valign=\"middle\">AED 50</td>\r\n<td class=\"td2\" valign=\"middle\">Available free of cost at Ajman Municipality</td>\r\n<td class=\"td2\" valign=\"middle\">AED 50</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td1\" valign=\"middle\">6.</td>\r\n<td class=\"td1\" valign=\"middle\">Where to register?</td>\r\n<td class=\"td1\" valign=\"middle\">RAK Municipality</td>\r\n<td class=\"td1\" valign=\"middle\">Umm Al Quwain Municipality register the residential lease agreements. Department of Economic Affairs in Umm Al Quwain register the commercial lease agreements. <span class=\"s2\"><strong> </strong></span></td>\r\n<td class=\"td1\" valign=\"middle\">Ajman Municipality</td>\r\n<td class=\"td1\" valign=\"middle\">Fujairah Municipality</td>\r\n</tr>\r\n<tr>\r\n<td class=\"td2\" valign=\"middle\">7.</td>\r\n<td class=\"td2\" valign=\"middle\">Effects of non registration</td>\r\n<td class=\"td2\" valign=\"middle\">Based on our discussions with the competent authorities, we have been informed that non registration does not affect the validity of the lease.  However, without registration a tenant is likely to face practical problems for example when renewing trade licenses, visa sponsorships and utility connections.  <span class=\"s2\"><strong> </strong></span></td>\r\n<td class=\"td2\" valign=\"middle\">Article 3 of Law No. 2 of 2011 states that the government departments and institutions shall not accept any lease contract in any transaction which requires submitting a copy of the lease contract unless such lease contract is issued and approved by the Umm Al Quwain Municipality and it is valid. The current policy of the Umm Al Quwain Municipality provides for imposition of a penalty for non registration in an amount of 1% of rent value in addition to the 2% registration fees.</td>\r\n<td class=\"td2\" valign=\"middle\">Article 4.1 of Emiri Decree No. 8 of 2014 provides that non registration of lease contracts will attract a fine equal to three times the contract attestation fee upon the landlord.  The tenant is likely to face practical problems for example when renewing trade licenses, visa sponsorships and utility connections.</td>\r\n<td class=\"td2\" valign=\"middle\">Article 4 (3) of Law No. 1 of 2011 provides that non registration of Fujairah leases would result in that none of the government or local department or institution in Fujairah would accept the tenancy contract without the registration with the Fujairah Municipality.  The Fujairah Municipality would accept the lease registration by recording the date of the tenancy contract in its contract authentication register maintained by the Municipality.  <span class=\"s2\"><strong> </strong></span></td>\r\n</tr>\r\n</tbody>\r\n</table>\r\n<p class=\"p1\">Given that majority of the lease registration fee requirements is based on policies of the competent authorities in the respective Emirate, we recommend to verify with the competent authority prior to undertaking any lease registration.</p>'),
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(101421, 5513, 'content_description', 'Two years ago, in the case of Banyan Tree v Meydan Group, an arbitral award rendered outside the Dubai International Financial Centre (DIFC) was enforced by the DIFC courts in circumstances where neither party was based nor had assets in the DIFC. The case demonstrated the willingness of the DIFC’s courts to enforce awards rendered ian Dubai (so called “onshore awards”), but still there remained uncertainty regarding the enforceability of such onshore awards. That uncertainty appears to have been removed, at least as far as awards rendered under the rules of arbitration of the Dubai International Arbitration Centre (DIAC) are concerned.\r\n'),
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(101423, 5513, 'pageSummary', 'Two years ago, in the case of Banyan Tree v Meydan Group, an arbitral award rendered outside the Dubai International Financial Centre (DIFC) was enforced by the DIFC courts in circumstances where neither party was based nor had assets in the DIFC. The case demonstrated the willingness of the DIFC’s courts to enforce awards rendered ian Dubai (so called “onshore awards”), but still there remained uncertainty regarding the enforceability of such onshore awards. That uncertainty appears to have been removed, at least as far as awards rendered under the rules of arbitration of the Dubai International Arbitration Centre (DIAC) are concerned.'),
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(101417, 5513, 'content', 'November 2016\r\n\r\n<hr />\r\n<p class=\"p1\">On 20 September 2016, the DIFC Dispute Resolution Authority (DRA), a body that administers dispute resolution within the DIFC, signed a Memorandum of Understanding (MoU) with DIAC, an institution that provides dispute resolution and commercial arbitration services in Dubai, which is to facilitate the recognition, ratification and enforcement of DIAC arbitral awards in the DIFC.</p>\r\n<p class=\"p1\"><span class=\"s1\"> The DRA was established pursuant to Law No. (7) of 2014 amending Law No. (9) of 2004 concerning the DIFC; it compromises of the DIFC Courts, DIFC Arbitration Institute, DIFC Wills and Probate Registry, and the DIFC Academy of Law. DIAC is an autonomous arbitration institution, which was established in Dubai in 2003 and is based at the Dubai Chamber of Commerce &amp; Industry. </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> The DRA and DIAC have entered into the MoU with the primary objective to cooperate and exchange information for the purpose of enhancing the expedited recognition, ratification and/or enforcement of DIAC arbitral awards by the DIFC Courts. The MoU promises to be a strategic opportunity for the onshore and offshore bodies, with the express intention to create “closer ties” and achieve mutual interests. Indeed, following the signing of the MoU, DIAC launched a new office in the DIFC on 27 September 2016, further strengthening its cooperation with the DRA. </span></p>\r\n<p class=\"p1\"><span class=\"s2\"> The MoU represents a significant step in Dubai’s efforts to market itself as a leading arbitration hub in the region, as the onshore and offshore entities join forces for their mutual benefit. The MoU lists as one of its objectives, the revision of applicable laws, regulations and rules, and development of programmes for the “benefit of the legal community in the Middle East”. The DRA and DIAC plan to further take steps to create awareness about each other and to provide insights into their respective rules and procedures. The parties also intend to explore engaging in joint marketing, joint training and joint legal community knowledge sharing. The presence of the new DIAC office in the DIFC manifests in a highly visible way the strategic collaboration between the DRA and DIAC.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> As the MoU marks another step forward for Dubai as a leading regional and international arbitration hub, it remains to be seen whether Abu Dhabi will follow in its footsteps. Will Abu Dhabi Global Market (ADGM), the newly established UAE arbitral seat, follow the DIFC’s lead in facilitating closer ties with onshore arbitration centres for strategic mutual benefit or take a different route altogether? </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> Interesting times indeed for arbitration in the UAE. </span></p>\r\n<p class=\"p2\">See MoU between DIAC/DRA: <a href=\"http://difccourts.ae/wp-content/uploads/2016/09/MoU-between-DRA-and-DIAC-20-September-2016.pdf \" target=\"_blank\" rel=\"noopener\">http://difccourts.ae/wp-content/uploads/2016/09/MoU-between-DRA-and-DIAC-20-September-2016.pdf </a></p>\r\n<p class=\"p2\"><span class=\"s1\"> </span></p>\r\n<p class=\"p1\"><span class=\"s1\">*This article first appeared in the Kluwer Arbitration Blog on 28 October 2016.</span></p>'),
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(101394, 5512, 'content', 'November 2016\r\n\r\n<hr />\r\n<p class=\"p1\"><strong>Litigation </strong></p>\r\n<p class=\"p2\">Dubai is no different to any other jurisdiction in that an aggrieved party has a constitutional right to have its grievances heard in the local courts. What makes Dubai different is that it has two distinct court systems operating (some might say competing) within the same Emirate.</p>\r\n<p class=\"p1\">On the one hand there are the traditional local courts in what is known as ‘onshore’ Dubai. Whilst on the other hand there is the separate legal jurisdiction, known as ‘offshore’ Dubai, which is found within the geographical free zone district known as the Dubai International Financial Centre (‘DIFC”) and which has its own courts, i.e. the DIFC Courts.<sup>1</sup></p>\r\n<p class=\"p1\">The onshore courts apply local laws, including the UAE Civil Code and UAE Civil Procedures Laws, both of which are influenced by the sharia. All advocates are required to be Emirati and all proceedings (written and oral) are conducted in Arabic.</p>\r\n<p class=\"p1\"><span class=\"s2\"> The offshore DIFC Courts, however, are modelled on the English Commercial Court and the substantive laws which apply in the DIFC closely resemble English common law (indeed, the latter acts as a default source of law). Its procedural rules are based on the English Civil Procedure Rules, proceedings are conducted in English and there is a system of binding precedent. </span></p>\r\n<p class=\"p1\">For the purposes of this article, only litigation in the local (non-DIFC) courts is considered.</p>\r\n<p class=\"p1\"><span class=\"s3\"> In terms of court structure, there is a Court of First Instance, Court of Appeal and a Court of Cassation. There is no system of binding precedent, but relevant Court of Cassation judgments are highly persuasive. There are no specialist construction courts or judges. </span></p>\r\n<p class=\"p1\"><span class=\"s2\"> Proceedings are started by filing a claim (Memorandum) along with payment of a court fee. The claimant will include the documents it relies on and is not obliged to disclose documents which are adverse to its own case. If not already in Arabic, these documents will need to be translated before being filed with the court. </span></p>\r\n<p class=\"p1\">Next, the court will fix a hearing date (normally within a month) and serve the claim on the defendant.</p>\r\n<p class=\"p1\"><span class=\"s3\"> At this first hearing the legal representatives of both parties will present their respective Powers of Attorney. Once the Powers of Attorney have been presented the courts will fix a date for the defendant to file its defence (a period of 2-3 weeks is normally allowed for this). The defendant can file a counterclaim with its defence. </span></p>\r\n<p class=\"p1\">As proceedings continue it is not unusual for there to be numerous exchanges of documents and each party asking the court for time to respond to such disclosure.</p>\r\n<p class=\"p1\">At some point the judge will take the view that the parties have sufficiently presented their respective cases and reserve the case for judgment. At this juncture, and if the judge decides that the case is sufficiently complex, a court appointed expert may be appointed (occasionally, this appointment may be made much earlier, especially in the case of urgent matters).</p>\r\n<p class=\"p1\">Whilst it is highly unlikely that the local courts will hear evidence from party-appointed experts in construction disputes, it is possible (sometimes necessary) that their reports will be used in the presentation of a party’s case in front of the court appointed expert. Therefore, it is crucial that a party engages an experienced construction litigator in the local courts who knows what level of detail will be required in preparing and presenting a case before the court appointed expert.</p>\r\n<p class=\"p1\">Upon receipt of the court appointed expert’s report the court will fix a date for judgment. If an expert is involved the whole process can take up 2 years from the filing of the claim until a Court of First Instance judgment is delivered.</p>\r\n<p class=\"p1\">Any appeal from the Court of First Instance must be made within 30 days of the date of judgment and appeals can relate to both fact and law, which effectively means a rehearing. Any appeal from the Court of Appeal must again be made within 30 days but can only be made on the basis of a point of law. Interestingly, no permission is needed because there is an automatic right of appeal.</p>\r\n<p class=\"p1\">Whilst it is possible for the local courts to make an award of inter partes legal costs in favour of the winning party for its attorney’s fees, such an award will be minimal.</p>\r\n<p class=\"p1\">In terms of evidence, the local courts will very rarely entertain live witness testimony. The proceedings are generally conducted on a ‘documents only’ basis with submissions on law made by the local advocates. Importantly, the ‘without prejudice’ rule does not apply in ‘onshore’ Dubai.</p>\r\n<p class=\"p1\">Once a judgment has been handed down the winning party will then seek to enforce its entitlement if the losing party doesn’t pay and this is normally done by way of obtaining an attachment (which operates similar to the common law injunction known as a ‘freezing order’) and execution via the execution court. Other than attachment orders there is no system of interim injunctive relief in the local courts, i.e. there is no summary judgment (except for some very special and limited circumstances), which can cause problems in terms of enforcing mediated settlement agreements of DAB decisions.</p>\r\n<p class=\"p2\"><strong>Ad Hoc Arbitration </strong></p>\r\n<p class=\"p4\">For an ad hoc arbitration to work best there needs to be: (i) cooperation between both parties and their respective lawyers; (ii) the parties’ lawyers need to be familiar with the arbitral process; and (iii) there should be a comprehensive arbitration law.</p>\r\n<p class=\"p1\">Before commencing an arbitration the validity of the arbitration agreement and the authority of those who agreed to it should be carefully checked. In Dubai it is advisable that a Special Power of Attorney be obtained so as to be able to agree to arbitrate and to represent a party in the proceedings (Article 58 UAE Civil Procedures Law).</p>\r\n<p class=\"p1\">Arbitral proceedings are commenced when one party (the Claimant) serves a Notice to Arbitrate on the other party (the Respondent). Ordinarily, there is no requirement in an ad hoc arbitration for a responding party to file an Answer.</p>\r\n<p class=\"p1\">The UAE’s arbitration law is silent on how many arbitrators will make up the Tribunal, other than it must be an odd number. In terms of complex construction disputes it is usual to agree on a 3-person Tribunal. Unless such matters can be agreed, there is a risk that the local courts will decide that a sole arbitrator is to be appointed and who that person will be, which would defeat one of the benefits of party autonomy.</p>\r\n<p class=\"p1\">Unlike an institutional arbitration, in an ad hoc arbitration the parties will generally enter into direct contracts with the members of the Tribunal by way of Terms of Appointment.</p>\r\n<p class=\"p1\">Within 30 days of being constituted the Tribunal will be required to notify the parties of the date for the first hearing.</p>\r\n<p class=\"p1\"><span class=\"s4\"> One of the most crucial documents in any arbitration in Dubai is the Terms of Reference. This document, which is required to be signed by all relevant parties, will set out the details of the arbitration and what the Tribunal is being asked to decide.</span></p>\r\n<p class=\"p1\">At the first hearing (or shortly thereafter) the Tribunal will usually issue a Procedural Directions Timetable.</p>\r\n<p class=\"p1\">Because the Tribunal will have only been provided with the details of the dispute stated in the Notice to Arbitrate it will want both parties to state (i.e. plead) their respective cases in writing. This is normally done by way of a:</p>\r\n<p class=\"p5\">i. Statement of Claim;</p>\r\n<p class=\"p1\">ii. Defence and Counterclaim;</p>\r\n<p class=\"p1\">iii. Reply and Defence;</p>\r\n<p class=\"p1\">iv. Rejoinder;</p>\r\n<p class=\"p5\">As in any jurisdiction, the primary source of evidence in arbitrations in Dubai will be contemporaneous documents. However, unlike litigation in the local courts, witness evidence is the norm in an arbitration.</p>\r\n<p class=\"p1\">Depending on the issues involved, it is not unusual to see delay and quantum experts involved in construction disputes. Occasionally, there may also be a requirement for technical, property valuation and/or forensic accounting experts.</p>\r\n<p class=\"p1\">A recent trend in Dubai has been for Tribunal’s to request that all evidence (documentary, witness of fact and expert evidence) be filed with the pleadings (known as ‘memorial’ style pleadings). Whilst this may work well in general commercial arbitrations where the volume of documentation and scope of issues in dispute are minimal compared to construction, this method of pleading is extremely burdensome, time consuming and costly in complex construction arbitrations. This is a reason why it is important that the selection of the members of the Tribunal (including the chairman) be carefully made because a Tribunal not experienced in construction disputes may have little or no experience of what is entailed in preparing and presenting such a case, which means both parties may be disadvantaged by possibly being ordered to comply with unreasonable and unrealistic deadlines.</p>\r\n<p class=\"p1\"><span class=\"s3\"> The proceedings will culminate in an evidentiary hearing. The purpose of this final hearing is to allow both parties to present their respective cases and allow the other side and/or the Tribunal to ask questions. Immediately prior to and after the hearing both parties will normally be required to make written submissions. </span></p>\r\n<p class=\"p1\">During the evidentiary hearing the witnesses are excluded from hearing the evidence of others, though this rule is generally relaxed for the experts by way of an agreement between the parties. All witnesses are required to give their evidence under oath. Importantly, a Tribunal may continue with the proceedings in the absence of a non-participating party.</p>\r\n<p class=\"p1\">According to the UAE’s arbitration law, the final award must be made within 6 months of the first hearing. However, it is quite usual for the Tribunal to approach the parties for their consent to grant an extension to this six-month period.</p>\r\n<p class=\"p1\">In complex construction arbitrations it can take between 18 to 24 months, sometimes longer, from the commencement of proceedings through to the issuance of a final award.</p>\r\n<p class=\"p1\">As with an institutional arbitration, it is imperative that the arbitrators sign every page of the final award, that it be dated and state the place where it was issued (i.e. state the juridical seat). The final award should include the facts of the dispute and the legal basis for reaching its conclusions and the arbitration agreement should be included. Unless the parties have agreed otherwise, the final award should be issued in Arabic; hence, the importance of setting down the language of the arbitration in the arbitration clause.</p>\r\n<p class=\"p1\">There is no legal basis for appealing against a final award. However, losing parties often deploy arguments to try and annul (i.e. set aside) a final award when a winning party attempts to have the award enforced in the local courts.</p>\r\n<p class=\"p1\">The UAE’s arbitration law does not cater for the award of inter partes legal costs, so, unless the same was made an express issue for the Tribunal to decide upon in the Terms of Reference, there would be no legal basis for the Tribunal to make an award of legal costs.</p>\r\n<p class=\"p2\"><strong>Institutional Arbitration – Dubai International Arbitration Centre (‘DIAC’) </strong></p>\r\n<p class=\"p2\">Parties are at liberty to use any institution to administer the arbitral process. The most commonly used institution in Dubai is the Dubai International Arbitration Centre and the DIAC Arbitration Rules 2007.</p>\r\n<p class=\"p1\">In order to commence arbitration, a party must file a Request for Arbitration and pay a registration fee. The Request must contain, amongst other things, a description of the nature and circumstances of the dispute, a statement of the relief sought, comments concerning the number of arbitrators and the name of any nominated arbitrator.</p>\r\n<p class=\"p1\">DIAC will be responsible for serving the Request on the Respondent.</p>\r\n<p class=\"p1\">The Respondent has 30 days from the date of receipt of the Request to file an Answer along with its counterclaim (if any), though this date can be extended. In the unusual event that the Respondent fails to file an Answer the proceedings will continue.</p>\r\n<p class=\"p1\">The next step is for DIAC to fix an advance on costs. The advance on costs is an amount that DIAC considers will cover the fees and expenses of the Tribunal and DIAC’s administrative costs. DIAC will request payment of an advance on costs from the parties in equal shares; however, if one party fails to pay its share the other party must pay the full amount of the advance in order for proceedings to continue. The advance on costs will ultimately form part of the costs of arbitration.</p>\r\n<p class=\"p1\">In terms of the number of arbitrators, the DIAC Rules default to a sole arbitrator in case of no agreement otherwise.</p>\r\n<p class=\"p1\">The arbitral file will be sent to the Tribunal as soon as it is constituted, provided that the advance on costs has been paid.</p>\r\n<p class=\"p1\">Although not expressly referred to in the DIAC Rules, upon receipt of the file the Tribunal will usually draw up the Terms of Reference, which will govern the scope of the arbitration. The Terms of Reference are usually discussed at the preliminary meeting along with a Procedural Directions Timetable (which sets out what needs to be done going forward, including dates for filing pleadings, the submission of witness statements, and a date for the evidentiary hearing).</p>\r\n<p class=\"p1\">If the parties did not file detailed Statements of Case with their Request or Answer then they may be required to file a Statement of Claim or Defence (and Counterclaim) in as short a period as 30 and 60 days respectively of the Tribunal’s constitution, though experienced counsel and arbitrators will usually agree to extend these periods for complex construction disputes (it should be remembered that the DIAC Rules were not drafted specifically for construction disputes).</p>\r\n<p class=\"p1\">Unless the parties agree to hold a hearing on the papers (which would be highly unusual for a complex construction dispute), it is usual for an evidentiary hearing to be scheduled. The length of the hearing will be determined by the complexity of the case, the volume of documents and the number of witnesses (factual and expert). Generally, witness statements stand as evidence-in-chief. Witnesses are required to attend the hearing and provide their evidence under oath.</p>\r\n<p class=\"p1\">The final award should be rendered within 6 months from the date when the Tribunal received the file, but this time limit may be extended upon application to DIAC by the Tribunal, or by agreement with the parties. As with an ad hoc arbitration, it usually takes up to 18-24 months (possibly longer depending on the complexity of the case and any interim matters that arise) to obtain a final award. Again as with an ad hoc arbitration, it is imperative that the Tribunal sign every page of the Final Award, that it be dated and state where it was issued. Unusually, the DIAC Rules do not specify that the Tribunal has power to award legal costs, so as with ad hoc arbitration, the Tribunal cannot award these unless an explicit agreement between the parties is reached on the issue.</p>\r\n<p class=\"p1\"><span class=\"s3\"> If the losing party fails to comply with the orders directed in the final award, the winning party will be compelled to commence proceedings in the local courts to have the final award enforced. </span></p>\r\n<p class=\"p1\"><span class=\"s5\"> As is the case with an ad hoc arbitration, it is now possible to take onshore arbitral awards to the offshore DIFC Courts for ratification purposes in an attempt to avoid the legal grounds for challenge in the local courts. However, the losing party in the arbitration may still simultaneously commence challenge proceedings in the onshore Dubai courts. This enforcement issue, and the question of which court has jurisdiction over the matter, remains very much a hot topic and a developing area of law in Dubai.</span></p>\r\n<p class=\"p2\"><strong>Summary </strong></p>\r\n<p class=\"p2\">The following table attempts to summarise the foregoing.</p>\r\n\r\n<table border=\"0\">\r\n<tbody>\r\n<tr>\r\n<td></td>\r\n<td><strong>Litigation</strong></td>\r\n<td><strong>Arbitration</strong></td>\r\n</tr>\r\n<tr>\r\n<td><strong>Advantages</strong></td>\r\n<td>\r\n<ul>\r\n 	<li>Can be quick, especially if no expert is involved</li>\r\n 	<li>Pleadings can be relatively brief compared to common law court litigation and arbitration which saves on time and cost</li>\r\n 	<li>Possible to make urgent applications</li>\r\n 	<li>Less risk in being required to disclose documents which could be adverse to your own case</li>\r\n 	<li>Little risk in having to provide oral testimony</li>\r\n 	<li>No need to use foreign counsel Finality of judgment</li>\r\n 	<li>Tends to be cheaper because venue and judge need not be paid for</li>\r\n 	<li>Little risk of a substantial adverse costs order</li>\r\n</ul>\r\n</td>\r\n<td>\r\n<ul>\r\n 	<li>Can select which law will apply to the proceedings</li>\r\n 	<li>Can select the applicable arbitral rules</li>\r\n 	<li>Can select the venue (neutrality)</li>\r\n 	<li>Can select the arbitrators who should be chosen based on their specialist skills in light of the nature of the dispute</li>\r\n 	<li>Proceedings are confidential Allows for detailed analysis of claims and defences</li>\r\n 	<li>Allows for a party’s case to be tested and scrutinised by way of cross examination</li>\r\n 	<li>Usually parties can request disclosure of documents</li>\r\n 	<li>Parties are free to choose their own experts</li>\r\n 	<li>Parties are free to use international lawyers/advocates</li>\r\n 	<li>Usually <em>inter partes</em> legal costs can be recovered, which can be quite substantial</li>\r\n 	<li>If they are international, awards  can be enforced around the world (New York Convention)</li>\r\n</ul>\r\n</td>\r\n</tr>\r\n</tbody>\r\n</table>\r\n&nbsp;'),
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(101383, 5511, 'content_description', 'Mergers on the Rise: \r\n\r\nMergers of companies in the UAE have become increasingly common in recent years. Among the more highly publicised were Emirates Bank’s merger with National Bank of Dubai in 2007 to form Emirates NBD, and Aldar’s merger with Sorouh in 2013. Then, in July 2016, the boards of First Gulf Bank and National Bank of Abu Dhabi approved a merger of FGB and NBAD to form what is likely to produce the largest bank in the MENA region. Subsequent to this, it has been announced that Abu Dhabi’s Mubadala Development Company will merge with the Abu Dhabi International Petroleum Investment Company (IPIC) and, in just the last few days (at the time of writing), it has been announced that each of Khalifa University of Science, Technology and Research, the Abu Dhabi Petroleum Institute and the Masdar Institute will merge.'),
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(101385, 5511, 'pageSummary', 'Mergers on the Rise:\r\n\r\nMergers of companies in the UAE have become increasingly common in recent years. Among the more highly publicised were Emirates Bank’s merger with National Bank of Dubai in 2007 to form Emirates NBD, and Aldar’s merger with Sorouh in 2013. Then, in July 2016, the boards of First Gulf Bank and National Bank of Abu Dhabi approved a merger of FGB and NBAD to form what is likely to produce the largest bank in the MENA region. Subsequent to this, it has been announced that Abu Dhabi’s Mubadala Development Company will merge with the Abu Dhabi International Petroleum Investment Company (IPIC) and, in just the last few days (at the time of writing), it has been announced that each of Khalifa University of Science, Technology and Research, the Abu Dhabi Petroleum Institute and the Masdar Institute will merge.'),
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(101393, 5511, '_yoast_wpseo_metadesc', 'Mergers of companies in the UAE have become increasingly common in recent years. Among the more highly publicised were Emirates Bank’s merger with National Bank of Dubai in 2007 to form Emirates NBD, and Aldar’s merger with Sorouh in 2013.'),
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(96201, 5223, '_yoast_wpseo_metadesc', 'In March 2015, the UAE Minister of the Economy confirmed that the federal government was working on legislation designed to allow for full foreign ownership of companies operating outside the UAE’s economic free zones.'),
(96202, 5224, 'content', 'September 2015\r\n\r\n<hr />\r\n\r\nADGM occupies Al Maryah Island and is designated as the new financial centre for Abu Dhabi. The Regulations took effect from their publication on 14 June 2015 and will govern multi-owned developments in ADGM.\r\n\r\n<strong>Creation of a Strata Title Development </strong>\r\n\r\nThe owner or developer of a freehold or leasehold interest in property within ADGM has the right to apply to classify the development as a strata title development. The same provisions apply to a scheme whether the owner or developer has a freehold or leasehold interest in the property. By registering a strata plan with ADGM (“Strata Plan”), the property can be divided into two or more lots or sub-lots (“Strata Lots”) for strata ownership by individual strata lot owners (“Strata Owners”) or for ownership by an association owned by the strata lot owners (“Association”). Strata Lots can be either lots owned by Strata Owners (“Strata Owner Lots”) or lots owned by Associations.\r\n\r\nStrata Lots can be created by dividing property both vertically (on single or multiple levels) and horizontally. Different areas within a Strata Plan may be designated for different uses, for example retail, residential, commercial areas.\r\n\r\nWhere a development will be phased into different stages it is possible to lodge multiple Strata Plans, either simultaneously or at different stages in the development (“Staged Development Scheme”). A volumetric development plan, where a plot is sub-divided into areas for different purposes, such as retail, residential, commercial, and where not all sub-divided areas are designated for strata ownership, is deemed to be a Staged Development Scheme.\r\n\r\nAlternative contractual common ownership schemes are permitted and can be registered in the Real Property Register, for example leasehold interests in units may be granted and the common areas retained and managed by the developer. This will be the case even where a Strata Plan has been filed in connection with the scheme.\r\n\r\n<strong>Requirements for Strata Plans</strong>\r\n\r\nStrata Plans must identify the owner of the freehold interest in the site and the owner of any leasehold interests. The strata developer must also be included with details of its property interest in the site. The Strata Plan will only have legal effect once it has been accepted and registered by the Registrar. The Strata Plan must state whether or not it relates to a Staged Development Scheme. A description of the proposed strata development must be included with details of any amenities to be provided. The strata developer must also incorporate a schedule of materials and finishes to be used and provide details of the boundaries of the scheme.\r\n\r\nDetails of the proposed Association must be included in the Strata Plan together with a draft certificate of incorporation for the Association, the first by-laws of the Association and details of any special developer rights.\r\n\r\nWhere a Strata Plan specifies the use for any particular Strata Lot, the Strata Owners may not use that Strata Lot for any other purpose. If the Strata Lots include multiple uses then a statement of the maximum percentage of the floor area for each proposed use must be prepared.\r\n\r\nThe Strata Plan must also include a warranty in favour of anyone entering into a contract to buy a Strata Lot that the development will be carried out in accordance with the scheme. This warranty will be enforceable as a contractual warranty but the parties will be free to negotiate further warranties and, in so far as those warranties provide the purchaser with greater protection than the warranty contained in the Strata Plan, they will also be enforceable against the strata developer.\r\n\r\nA Strata Plan must be endorsed with or accompanied by a certificate (“Surveyor’s Certificate”) from a duly qualified surveyor approved by the Registrar (“Approved Surveyor”), certifying that the buildings shown on the Strata Plan, and all proposed Strata Lots, fall within the boundaries of the site.\r\n\r\nWhere an appropriate authority in Abu Dhabi has notified the Registrar that planning approval is not required for a development or that any necessary planning approvals have already been obtained, the building plans that have been approved by the appropriate authorities may constitute the Strata Plan if accompanied by a Surveyor’s Certificate from an Approved Surveyor.\r\n\r\n<strong>Requirements for Staged Development Plans</strong>\r\n\r\nA staged development plan must be submitted for any Staged Development Scheme. This will consist of a master plan and a disclosure statement. The master plan must show the overall development and Strata Plans for each stage. Warranties from the developer to any purchaser of a Strata Lot will also apply for Staged Development Schemes. The disclosure statement must include a warning as to the risks of staged developments in general, a description of the proposed stages, estimated times for completion of each stage, a schedule of hours of working for the second and subsequent stages, and a schedule of the proposed unit entitlements for each Strata Lot.\r\n\r\n<strong>Effect of Prior Mortgages</strong>\r\n\r\nIf a mortgage was registered against a property before a Strata Plan is submitted, the Registrar will register that mortgage in the title to each Strata Lot. The consent of the mortgagee will be required for the registration of the Strata Plan. When a Strata Lot is sold and there is a repayment to the mortgagee, the Registrar may remove the registered mortgage from the Strata Lot title if the mortgagee provides written consent.\r\n\r\n<strong>Registration of Titles</strong>\r\n\r\nWhen a Strata Plan is registered, the Registrar will register titles for each Strata Lot. This title will record the benefits and burdens relating to that Strata Lot and the proportionate interest as a shareholder that the owner of the Strata Lot will have in the Association.\r\n\r\n<strong>Creation of Common Property </strong>\r\n\r\nThe Registrar will register all parts of the site which are not Strata Lots as common property owned by the Association (“Common Property”). Common Property will include all structural elements of the development, such as the supports, foundations, structural walls, joists and roofs. Additionally, land under and surrounding buildings, roadways, landscaping, paths, beaches and service infrastructure will form the Common Property.\r\n\r\n<strong>Allocation of Unit Entitlements</strong>\r\n\r\nEach Strata Lot will have a unit entitlement, which may be shares in the Association or a fixed number of votes at a general meeting of the Association. Unit entitlements must be fixed on a fair and equitable basis. Changes to unit entitlements are allowed by extraordinary resolution of the Association or by an order of the ADGM courts. The Strata Plan must state the formula to be used to reallocate unit entitlements if Strata Lots are added to or withdrawn from the strata development.\r\n\r\n<strong>Rights and Obligations of Associations</strong>\r\n\r\nAssociations will take the form of private limited companies and the interests of the Strata Owners will usually take the form of shares in the Association. The Strata Owners will have all rights of shareholders in a private limited company as set out in the ADGM Companies Regulations 2015 (“Companies Regulations”). The Association will be run by a board of directors who may appoint committees and officers to carry out certain duties. Potential directors of Associations will need to understand the duties that will be imposed on them by the Companies Regulations. The Association may also appoint a manager to run the administration, management and control of the Common Property.\r\n\r\nThe Association will levy assessments on Strata Owner Lots as necessary to meet anticipated expenditure, which should be proportional to the unit entitlements of the Strata Owner Lots. Interest can be charged on late payment of assessments at a rate decided by an ordinary resolution of the Association. Ultimately, if assessments are not paid by Strata Owners then the Association will have a right of foreclosure over the Strata Owner Lots.\r\n\r\nThe Association will have powers to make by-laws concerning the Common Property and Strata Owners Lots. The Strata Title Regulations include a set of model by-laws which may be adopted by Associations. By-laws can be enforced in the ADGM courts.\r\n\r\nAssociations are required to insure the buildings and Common Property against fire and other usual risks. This requirement does not include any obligation on the Associations to insure the contents of Strata Owner Lots.\r\n\r\n<strong>Establishment of Escrow Accounts</strong>\r\n\r\nA strata developer must establish an escrow account unless its development is already substantially complete at the time the Strata Plan is lodged. Developers do not need to register with ADGM but the Strata Plan must be lodged with and registered by the Registrar appointed by ADGM.\r\n\r\nAll payments received from purchasers of Strata Owner Lots must be paid into the escrow account together with any financing obtained for the development. Amounts on deposit in the escrow account must only be used for construction and development of the strata development including other costs associated with the development such as marketing costs. The Regulations do not detail what limits will be imposed on these uses of escrow account funds, but withdrawals from the escrow account must be in proportion to the progress achieved in the construction of the development. Further, five percent of the total balance of the escrow account must be retained for 12 months after the date on which the building completion certificate is issued and may be used for the correction of deficient and outstanding work.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThe Regulations bring the concept of strata title to Abu Dhabi for the first time. We expect, however, that the forthcoming Abu Dhabi property law will introduce similar strata title for the remainder of the Emirate of Abu Dhabi. When interpreting and implementing the Regulations, developers and investors in ADGM will also be able to draw on the considerable strata title expertise developed over recent years in Dubai. We expect that this legal framework will bring confidence to develop and invest in real estate in ADGM.'),
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(96217, 5225, 'content', 'September 2015\r\n\r\n<hr />\r\n\r\nFollowing the issuance on 15 July 2015 of Law No. 2 of 2015 against Discrimination and Hatred (the “Law”), the UAE has now introduced federal legislation which specifically prohibits all forms of discrimination on the basis of religion, belief, sect, faith, creed, race, colour or ethnic origin (each being a “Protected Characteristic”). The Law defines “religion” as “the heavenly religions – Islam, Christianity and Judaism” and therefore the law does not apply in respect of discriminatory conduct against an individual based on any other religion.\r\n\r\nThe Law is drafted in broad terms to ensure that it encompasses all discriminatory conduct regardless of how it is expressed (e.g. through speech, writing, drawing, photography, singing, acting or miming) and irrespective of the means/channels through which it is expressed (e.g. online, by phone or video, and whether written or oral).\r\n\r\nNotably, Article 17 of the Law states that a representative, manager or agent of a company will be punished (by the same penalties that would apply if s/he had committed the offence themselves) if a crime prohibited by the Law is committed by any personnel of the company in its name and on its behalf, and provided that the representative, manager or agent is aware of the same.\r\n\r\nFurthermore, Article 6 of the Law is a broad catch-all provision which states that a person who commits an act of discrimination may face imprisonment of up to 5 years and/or a fine of between AED 500,000 and AED 1,000,000. The same penalties may be imposed where a discriminatory act is “committed by a public employee upon or due to performing his job” (Article 9). Through this provision, the Anti-Discrimination Law specifically links the prohibition against discrimination to an employment context, however the reference to “public employee” seems to indicate that this Article is limited to governmental employees only. Even if Article 9 only applies to governmental employees, the broad prohibition against discrimination in Article 6 of the Law has the potential to be applied more broadly including within the private sector, and whether in an employment context or otherwise.\r\n\r\nIn addition, the Law prohibits:\r\n<ul>\r\n 	<li>producing, promoting or selling any products or material which include any expression involving religious contempt, discrimination or hatred speech (or being in possession of such material for the purpose of distribution or display);</li>\r\n 	<li>establishing, managing or participating in any group or organisation for the purpose of religious contempt, discrimination or hatred speech;</li>\r\n 	<li>organizing or participating in a conference or meeting for the purpose of religious contempt, discrimination or hatred speech; or</li>\r\n 	<li>providing, requesting, receiving or delivering money or material support directly or indirectly for the purpose of committing any of the acts which are prohibited by the law.</li>\r\n</ul>\r\n&nbsp;\r\n\r\n<strong>Potential impact on the workplace</strong>\r\n\r\nFor the first time in the UAE, federal legislation has now been enacted to help protect all individuals in the UAE from discrimination on the basis of a Protected Characteristic. While in our opinion the Law is primarily aimed at preventing and criminalizing hate crimes and the incitement of hatred, particularly in light of recent global events, the Law also seeks to prevent discrimination more broadly and may have flow-on consequences in an employment context.\r\n\r\nIn light of Article 17 of the Law, companies in the UAE should ensure that appropriate internal policies and procedures are established (and that existing policies are updated) to raise employees’ awareness and understanding of the type of conduct which could now constitute a criminal offence under the Law. This should reduce the risk of an employee breaching the Law and the company representative, manager or agent being held responsible for such breach. Such company policies should extend to the use of online forums and social media in the event that certain comments or opinions expressed online by an employee could be construed as discriminating against a Protected Characteristic.\r\n\r\nThe Law will not interfere with other UAE legislation which affords specific (albeit limited) protection for particular groups of society. This also means that any provisions in UAE Federal Law No. 8 of 1980 (the “UAE Labour Law”) which confer particular legal rights on UAE nationals will not be affected by the Law. Pursuant to the UAE Labour Law, employers are required to prioritise UAE nationals over all other nationalities when recruiting in the UAE (followed by Arab nationals). Accordingly, it would not be possible for an employee to bring a discrimination claim against their employer pursuant to the Law in circumstances where one of the employee’s colleagues receives more favourable treatment and/or specific protection in accordance with the UAE Labour Law.\r\n\r\nIt remains to be seen whether an employee in the UAE may be able to rely on the Law to bring a claim against their employer. For example, it is not yet clear how the UAE Courts will adjudicate claims/disputes where an employee feels that they have been afforded less favourable treatment by their employer (for example, by receiving smaller salary increments than their colleagues or missing out on a promotion opportunity) on the basis of one of the employee’s Protected Characteristics. Similarly, it remains to be tested whether a dismissed employee may be able to bring a labour claim against their employer pursuant to the UAE Labour Law, as well as a separate claim pursuant to the Law if the employee considers that their employment was terminated on the basis of a Protected Characteristic. Finally, it remains to be seen how the criminal sanctions set out in the Anti-Discrimination Law may be imposed in the context of a dispute between an employee and his/her employer, particularly as an employer’s conduct or decisions are not always easily attributable to a particular individual.\r\n\r\nWhile the practical effects of the Law for employers and employees in the UAE remain to be seen, the new law is clearly aimed at encouraging tolerance and acceptance in the UAE, irrespective of a person’s religion, belief, sect, faith, creed, race, colour or ethnic group. This is particularly important in such a multicultural country as the UAE where individuals from all around the world come together to live and work. Companies operating in the UAE would be well advised to ensure that internal policies and procedures are implemented (and that existing policies are updated) to ensure that all employees are aware of the conduct expected of them under the new Law.\r\n<div></div>'),
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(96232, 5226, 'content', 'September 2015\r\n\r\n<hr />\r\n\r\nWe have seen an increase in the number of enquiries from clients wanting use electronic signatures in their business processes in the UAE.\r\n\r\nSome of the reasons for the limited adoption may be concerns about the following aspects:\r\n<ul>\r\n 	<li>Does the law recognise an electronic signature as having legal force and effect?;</li>\r\n 	<li>What criteria should an electronic signature to meet in order to be enforceable?; and</li>\r\n 	<li>Is an electronic signature admissible as evidence in court in the event of a dispute between the parties to the agreement?</li>\r\n</ul>\r\nIt is important to understand the legal framework in relation to the enforceability of electronic signatures before adopting electronic signatures for your business.\r\n\r\n<strong>E-signatures in the UAE</strong>\r\n\r\nIn the UAE, the use and admissibility of electronic signatures is governed by Federal Law No.1 of 2006 regarding Electronic Transactions and E-Commerce (“Federal E-commerce Law”).\r\n\r\nBasic electronic signatures are defined broadly to include all types of electronic signatures.  These are generally defined as data in electronic form which are attached to or logically associated with other electronic data and which serve as a method of authentication.\r\n\r\nAn electronic signature that meets the requirements of the Federal E-commerce Law has legal force and effect under the Federal E-commerce Law.  The Federal E-commerce Law further provides that nothing in the laws of evidence (which includes Federal Law No. 10 of 1992 (“Law of Evidence in Civil and Commercial Transactions”)) shall prevent the admission of an electronic message or e-signature in evidence.\r\n\r\nReliance on electronic signatures must be reasonable.  Reasonableness is generally based on the following factors:\r\n<ul>\r\n 	<li>the nature, value and importance of the transaction being supported by the electronic signature;</li>\r\n 	<li>steps taken by the relying party to verify the identity of the signatory of the electronic signature;</li>\r\n 	<li>evidence of prior breach or cancellation of the electronic signature;</li>\r\n 	<li>previous transactions between the parties, which relied on electronic signatures; and</li>\r\n 	<li>any other relevant factor.</li>\r\n</ul>\r\nThere are, however, specific categories of transactions and documents for which electronic signatures may not be used, including:\r\n<ul>\r\n 	<li>transactions and issues relating to personal law such as marriage, divorce and wills;</li>\r\n 	<li>deeds of title to immovable property;</li>\r\n 	<li>negotiable instruments;</li>\r\n 	<li>transactions involving the sale, purchase, lease (for a term of more than 10 years) and other disposition of immovable property and the registration of other rights relating to immovable property;</li>\r\n 	<li>any document legally required to be attested before a Notary Public, and</li>\r\n 	<li>any other documents or transactions exempted by special provision of the law.</li>\r\n</ul>\r\n&nbsp;\r\n\r\n<strong>Secure e-signatures</strong>\r\n\r\nThe Federal E-commerce Law also provides for a ‘secure’ electronic signature for which there is a legal presumption of reliability.  This may be contrasted with ‘simple’ electronic signatures for which no such presumption exists in law.  Secure electronic signatures must be issued by recognised service providers in order to qualify as secure electronic signatures under the law.\r\n\r\n<strong>Conclusion </strong>\r\n\r\nIt is important to bear in mind that electronic signatures are only as secure as the business processes and technology used to create them.  High value or more important transactions need better quality electronic signatures - signatures used for these transactions need to be more securely linked to the signatory in order to provide the level of assurance needed and to ensure trust in the underlying system.\r\n\r\nAl Tamimi &amp; Company’s Technology, Media &amp; Telecommunications team regularly advises on e-signatures. For further information please contact Nick O’Connell (n.oconnell@tamimi.com) or Sana Saleem (s.saleem@tamimi.com)'),
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(96246, 5226, '_yoast_wpseo_metadesc', 'The use of electronic signatures in the UAE has, thus far, been less widespread than in the US and Europe. We have seen an increase in the number of enquiries from clients wanting use electronic signatures in their business processes in the UAE.'),
(96247, 5227, 'content', 'September 2015\r\n\r\n<hr />\r\n\r\nIn this article, we look at the scope of the consultation and outline some of the observations we made.\r\n\r\nAbu Dhabi Global Market is an international financial centre established in accordance with the Federal Law No. 8 of 2004, Federal Decree No. 15 of 2013, Cabinet Resolution No. 4 of 2013 and Abu Dhabi Law No. 4 of 2013.  It is seeking to introduce the type of regulatory framework necessary to ensure a business-friendly environment that operates in line with international best practice.  One aspect of this involves providing an opportunity for public consultation on its draft regulations.\r\n\r\nAmongst other draft regulations, we had the opportunity to comment on ADGM’s draft Data Protection Regulations 2015 (“Regulations”).  The primary issue posed for consideration by ADGM was:\r\n\r\nShould the ADGM Board adopt a set of stand-alone data protection regulations, or should it rely upon individual data protection provisions in existing regulations?\r\n\r\nThe reference to existing regulations is a reference to Article 51 of ADGM’s Employment Regulations 2015 (‘‘Employment Regulatioms”). Article 51 provides a data protection framework specific to the processing of personal data relating to employees of ADGM licensed entities.\r\n\r\nIn our view, ADGM’s approach of seeking to introduce a broader data protection regime is preferable to having data protection provisions aimed only at the employment relationship.  The principles relating to the appropriate treatment of personal data should apply broadly to personal data relating to all natural persons, not only to the employees of data controllers.  For example, personal data relating to natural persons who are clients (existing or potential) of data controllers and personal data relating to the personnel of others (eg. service providers to data controllers), should be afforded the same protection as personal data relating to a data controller’s employees.\r\n\r\nAdditionally, data protection is a highly relevant compliance issue for many individuals and organisations located in other jurisdictions.  To seek to address data protection by way of a discrete provision in the Employment Regulations would send the market the wrong message and could even be construed as a failure on the part of ADGM to understand the issues.  ADGM needs to take data protection issues seriously and it needs to be seen to do so.  A set of stand-alone data protection regulations highlights ADGM’s commitment to ensuring that personal data is processed appropriately.  Seeking to rely on Article 51 of the Employment Regulations would not send that message.\r\n\r\nThe Regulations also propose the repeal of Article 51, removing the ambiguity that would otherwise arise if the personal data of different types of data subjects was treated differently under separate regulations.\r\n\r\nBeyond the observations directed to the issue posed for consideration, we also took the opportunity to make some more general observations regarding the Regulations.\r\n\r\nThe Regulations replicate significant portions of the DIFC Data Protection Law, whilst notably removing some prescriptive language and unwieldy definitions found in that legislation.\r\n\r\nADGM noted that developments in Europe indicate that EU Data Protection Directive 95/46/EC is outdated, and the General Data Protection Regulation is under consideration there.  Were ADGM poised to adopt regulations more closely aligned with the General Data Protection Regulation, it could be seen as the data protection leader in this region.\r\n\r\nThe Regulations address transfers of personal data out of the ADGM jurisdiction in the absence of an adequate level of protection.  Some European jurisdictions allow for the risk of transfers to recipients located in such jurisdictions to be addressed by way of a ‘Data Transfer Agreement’ or ‘Binding Corporate Rules’, which essentially provide a contractual basis for ensuring that data protection principles are respected in the context of data transfers out of the jurisdiction.  Adopting this type of approach would enhance the Regulations, respecting data protection requirements while reflecting the need for flexibility and commercial pragmatism.\r\n\r\nThe Regulations address security of processing of personal data, and include an obligation on the data controller, or the data processor carrying out the data controller’s function at the time of an intrusion, to notify the ADGM registrar of a data breach incident.  In practical terms, it may be appropriate to consider whether the obligation should fall on the data processor only in the event that the data controller fails to notify the ADGM registrar in a timely manner.  In practice, noting that data processors could be in locations around the world, it would be unlikely for them to be aware of the Regulations - or to initiate a notification to the ADGM registrar other than by way of the data controller.\r\n\r\nAs a general point, we observed that the Regulations are well-drafted and are likely to be welcomed by those wishing to set up in the Abu Dhabi Global Market.\r\n\r\nAl Tamimi &amp; Company’s Technology, Media &amp; Telecommunications team regularly advises on privacy and data protection matters in the Middle East. For further information please contact Nick O’Connell (n.oconnell@tamimi.com).\r\n<div></div>'),
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(96265, 5227, '_yoast_wpseo_metadesc', 'Al Tamimi recently had the opportunity to participate in a round of public consultations on the draft regulations to the newly established Abu Dhabi Global Market (“ADGM”). In this article, we look at the scope of the consultation and outline some of the observations we made.'),
(96266, 5228, 'content', 'September 2015\r\n\r\n<hr />\r\n\r\nOn 18 August 2015, Bank of New York Mellon (“BNYM”) consented to a Securities and Exchange Commission (“SEC”) Order requiring BNYM to pay $14.8 million to settle charges that it violated the FCPA by providing student internships to family members of foreign government officials affiliated with a Middle Eastern Sovereign Wealth Fund (“SWF”). All parties involved, except BNYM, have been anonymised in the Order so that the nationality of the foreign public officials and the SWF is publicly unknown beyond being described as ‘Middle Eastern’.\r\n\r\nThe BNYM internships were given to three people: the son and nephew of one key figure of the SWF and the son of another. The internships were given despite the facts that the interns did not meet the rigorous selection criteria usually applied by BNYM and did not go through the standard (or any) recruitment process before being awarded the internships. In addition, these internships were found by the SEC to be more valuable than those offered to the regular applicants, who had endured the competitive admissions process against strict entry requirements. For example, rotation between business units was arranged, which is not an opportunity afforded to regular interns.\r\n\r\nEmails between BNYM employees clearly demonstrate that the motivation behind the favour to the foreign officials was to influence the latter’s decision-making in the interests of BNYM. There can be no doubt that this was bribery in action - the BNYM employees expected to retain and gain business from the foreign officials in return for offering their relatives valuable internships to which they would not otherwise have had access.\r\n\r\n<strong>A Cultural Issue?</strong>\r\n\r\nThe term ‘cultural differences’ is often, rather pejoratively, used in discussions concerning questionable business practices, as an apparent explanation of the way that persons from the Middle East (and other places) approach business ethics. It is clear, however, from correspondence referred to in the Order, that the BNYM situation cannot be explained as either party acting honestly and in accordance with cultural norms that happen to differ from the rules to which they are subject, thereby creating some sort of ethical dilemma. This was indisputably a case of bribery, not only as defined by the FCPA but also as defined by, for example, the Penal Code of the United Arab Emirates. One of the foreign officials involved told BNYM employees that the internships represented an opportunity for the bank and that he could get competitor banks to offer the internships if BNYM did not deliver. No, this was not a subtle cultural issue of, for example, gifts that would be seen as extravagant in the ‘West’ but perfectly standard in the Middle East, which BNYM had to massage into a US law-compliant form. This was an out and out corrupt deal and the bank was fully in on it.\r\n\r\n<strong>Relationship-Building v Bribery: Where is the line?</strong>\r\n\r\nNotwithstanding the BNYM case, building relationships by giving (reasonable and proportionate) gifts, entertainment and hospitality is an established and accepted part of doing business. Indeed, it is referred to as much in the official Ministry of Justice Guidance to the UK Bribery Act, for example.\r\n\r\n<strong>So the question becomes: where is the line between acceptable relationship-building and bribery?</strong>\r\n\r\nA number of factors will determine which side of the line any given expenditure or benefit falls and are common to jurisdictions including the US, the UK and the UAE. These include the value, proportionality, timing and appropriateness of the expenditure in all the circumstances. None of these alone, nor any of them combined, will suffice to prove bribery without the criminal intention, required by all jurisdictions, for the offence to be completed.\r\n\r\nIn the absence of direct evidence of bribery, such as the damning emails uncovered in the BNYM case, many factual elements will point to or away from the presence of criminal intent. In such cases, it is this circumstantial evidence that will provide the only information upon which law enforcement agencies can decide which side of the line a case falls. The bottom line is that the person(s) involved will know what the intention behind any particular expenditure was. In circumstances where a company is required to decide whether bribery has been committed by an employee, the importance of well-designed and properly-implemented systems and controls will become apparent quickly.\r\n\r\n<strong>Genuine Engagement Required</strong>\r\n\r\nImportantly, in addition to the anti-bribery provisions of the FCPA, the SEC found that BNYM violated the internal controls provisions of the FCPA. Although BNYM had a code of conduct and a specific FCPA policy in place, which prohibited employees from violating the statute, the SEC highlighted that there was insufficient guidance on the risks of hiring customers and relatives of customers, including foreign government officials. In conclusion, the SEC found, the systems and controls in place were inadequate to ensure compliance with its written policy against bribery of foreign officials.\r\n\r\nThis finding highlights the importance of actively engaging with the responsibilities imposed by applicable legislation. Merely holding a written policy but not making efforts to enforce it by, for example, the training of employees, will not guarantee compliance with the law.\r\n\r\nWhilst there is no suggestion in the Order that BNYM deliberately gave less attention to the issue than was required, the Order demonstrates the importance of taking the requirements of the law seriously and implementing sufficient programs to ensure compliance.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThe BNYM case serves as a reminder that a bribe can comprise anything of value and clarifies that an internship is an example of such a thing. It also highlights the importance of the legal and compliance function acting in conjunction with senior management and HR to ensure effective compliance with applicable laws in relation to specific activities, such as hiring, gifts &amp; entertainment, charitable contributions, sponsorship or business transactions. Finally, staff must be trained on company policies if such policies are to be effective.\r\n\r\nThere are many circumstances in which businesses in the Middle East might be subjected to enquiries in respect of corruption issues, whether by local law enforcement agencies investigating an allegation, or by related foreign entities (such as parent companies or counterparties) to whom laws such as the FCPA or Bribery Act apply. In such situations, the ability to provide documented evidence of policies, and of their implementation and adherence, will be invaluable in saving time, money and, in the worst cases, prosecution.\r\n\r\nFor information or assistance relating to anti-corruption issues in the Middle East, please contact Andrew Hudson (Senior Associate) at a.hudson@tamimi.com or Ibtissem Lassoued (Partner) at i.lassoued@tamimi.com.\r\n<div></div>'),
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(96289, 5229, 'content', 'September 2015\r\n\r\n<hr />\r\n\r\n<strong>What is a letter of intent?</strong>\r\n\r\nConstruction projects frequently need to get started quickly, before final documents are agreed.  In these situations, the industry often uses a ‘letter of intent’ (“LOI”) as a bridging measure to allow work to proceed and to give the parties some legal protection.  The LOI is then meant to be replaced by the formal contract.\r\n\r\nAn LOI should never be taken lightly, even if it is meant to be only a temporary arrangement.  If the terms are not drawn properly, the parties may find themselves in dispute or forced into an arrangement that was not contemplated.  After all, an LOI is still a contract.\r\n\r\nUnfortunately, more often than not, parties are under intense time pressure to sign an LOI.  This may lead to LOIs being signed with key terms missing or without understanding the repercussions of what is being signed.\r\n\r\n<strong>Why should I use an LOI?</strong>\r\n\r\nLOIs provide some comfort that the parties are genuinely interested in seeing a deal concluded.  LOIs also set the ground rules for completing the negotiations and provide a framework for the final agreement.  In addition, LOIs can enable the parties to get a head start on the construction program in a number of practical ways, including allowing them to let the subcontractors commence the design process or order long lead-time items.\r\n\r\nLOIs are helpful when the contractor needs to obtain necessary approvals and permissions from government authorities.  LOIs also cater to the employer’s desire to urgently get the contractor on to the site to commence works.\r\n\r\nIf drafted correctly, LOIs can be used to flush out preliminary issues and allow them to be resolved prior to negotiating the finer points of the final agreement.  For example, where an agreement may have been subject to site testing, this can be done under the LOI so that the formal contract is unconditional.\r\n\r\n<strong>Are there any pitfalls in using an LOI?</strong>\r\n\r\nThere are many risks in using an LOI, if it is not done carefully.  One of the key issues is whether the LOI will be replaced by a formal contract, especially where the LOI will expire on a specified date or upon reaching a maximum value of work.  The parties need to ensure that the formal contract is concluded or that other arrangements are agreed before the LOI expires.\r\n\r\nIf the parties disregard the expiry of the LOI and continue to carry out work without putting a new LOI in place, there is uncertainty as to the terms under which that work is being done.  In such a situation, disputes over work performed under the LOI, which may have been referred to arbitration, may be left to the local courts.\r\n\r\nIf work that is not contemplated by an LOI is purported to be carried out under it, there will be greater uncertainty than would be the case under a formal contract, as LOIs will not usually contain key terms to manage variations, day works and extensions of time.\r\n\r\n<strong>UAE law on the ‘binding v. non-binding debate’</strong>\r\n\r\nThe most common risk in using an LOI is the possibility that a dispute will arise as to whether it is legally binding.  While many jurisdictions have a number of judgments as to when an LOI is binding, this issue is yet to be explored in detail by UAE courts.\r\n\r\nFederal Law No. 5 of 1985 (“Civil Code”) gives guidance as to the essential ingredients of a binding LOI in the UAE.\r\n\r\nArticle 141 of the Civil Code provides that the parties to a contract must agree on the essential elements of the obligation, but that they can leave matters of detail to be determined at a later date.\r\n\r\nThe Ministry of Justice official commentary states that the law does not stipulate that in order for the contract to be concluded there should be an agreement over all essential matters and matters of detail.  The law stipulates that it must be clear that the parties intended to reach an agreement even if they fail themselves to finalise all of the details of the contract.\r\n\r\nThe Civil Code also requires that certain formalities must be met for a contract to be concluded.  These formalities include that there be an offer and acceptance and consensus ad idem i.e. the parties should agree upon the same thing in the same sense.  It also states that a contract may only be made upon the agreement of the two parties to the essential elements of the obligation, and the other lawful conditions which the parties regard as essential.\r\n\r\nWhile the Civil Code does not describe what is an “essential” element of the contract, in the case of LOIs, numerous elements may be regarded as essential.  For example, payment terms, time for completion, warranties by the contractor, construction programme, scope of work under the LOI (and not necessarily the formal contract) are all arguably essential elements of an LOI.\r\n\r\nWithout any clear statement at law to give guidance as to what are the essential ingredients of a binding LOI, it becomes extremely important that an LOI is carefully drafted to properly record the parties’ true intentions and deliver the intended legal outcomes.\r\n\r\nIn short, the LOI should clearly reflect the agreement of the parties to enter into a binding agreement by incorporating all essential rights and obligations.\r\n\r\nIt is to be noted that the implied obligation of good faith may mean that the courts will find bad faith (and therefore a breach of contract) if the parties fail to agree in certain circumstances, such as one party deliberately trying to avoid reaching an agreement, delaying proceedings  or failing to take reasonable steps to reach an agreement.\r\n\r\n<strong>Essentials of an LOI</strong>\r\n\r\nAn ambiguous LOI is not the best foundation for the final formal contract.  So what should an LOI contain?\r\n\r\nThe LOI should state clearly what it is and what it aims to achieve.  For example, it could state that the employer intends to accept the contractor’s tender and enter into a contract for the carrying out of the tender works but, is not yet ready or able to do so.\r\n\r\nThe major terms of the final contract should be agreed and set out in the LOI.  The key terms yet to be agreed should be set out in the LOI, as this clearly frames the remaining negotiation to take place during the LOI period.\r\n\r\nImportantly, the LOI should also set out a clear risk allocation, confirmation of the contract price, a detailed specification and scope of work for the LOI (attached as schedules), a distinct dispute resolution process and well-defined termination rights.\r\n\r\nIn addition, the LOI should contain clear statements regarding insurance obligations and related indemnities (no work should be done without appropriate insurance cover in place!), intellectual property licenses or rights and essential boilerplate clauses such as governing law.  If the parties intend to incorporate some or all of the terms of a standard form contract (e.g. FIDIC) into the LOI, this should be stated expressly.\r\n\r\nIt is also important to ensure clarity regarding how the LOI arrangement comes to an end.  This brings certainty to the agreement, which is in both parties’ interests.\r\n\r\nThe parties may wish the formal contract to supersede the terms and conditions of the LOI.\r\n\r\nThe parties may also wish to agree that any works carried out or payments made under the LOI will be treated as carried out or made under the formal contract.\r\n\r\nWhile these suggestions are important, they are not exhaustive.  Each LOI will depend on the project to which it relates, the scope of works required under the LOI and the agreed rights and obligations.\r\n\r\n<strong>What happens if a formal contract is not concluded?</strong>\r\n\r\nImagine playing a card game where you are not sure of the rules.  There is a chance that you may get lucky and win the game but, the chances of you losing are way higher than you winning it.  The parties to a construction project may find themselves in a similar situation, where the project might be completed without any issues based on the LOI alone.  On the other hand, if a formal contract has not been finalised and things go wrong, there is a high probability that any dispute will be far more complicated than it should be and will incur substantial legal fees as a result.\r\n\r\nSome LOIs will contain an expiry date and it is advisable that the contractor does not work past this date.  When the LOI does not contain an expiry date and there is a legitimate deadlock in contractual negotiations, the parties should stop the work, commit to a written extension of the LOI or enter into a new arrangement.\r\n\r\n<strong>Short term solution only</strong>\r\n\r\nBy its very nature, an LOI is not intended to contain all the detailed terms of the parties’ agreement.  Parties should not seek to just keep extending an LOI to cover more work, or even the project, simply because it seems convenient.\r\n\r\nAn ambiguous and under-detailed LOI could lend itself to uncertainty and disputes.  Parties should opt to enter into a detailed formal contract shortly after the LOI and in any event before substantial works are commenced.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nIn the time-critical construction industry, LOIs will continue to be needed and used, so it is important to make sure that you get it right to avoid uncertainty and open-endedness.\r\n\r\nThe fact that LOIs pose a ‘risk’ is not a problem in itself.  Risk is an inherent part of all construction projects.  The problem arises when there is no management of this risk.\r\n\r\nLegal advice should be sought when deciding to enter into an LOI.  Parties may not think it is important because the LOI is temporary and might simply use a document that was used on the last project to serve as an LOI but, this can be a recipe for disaster.  A clear and tailored legal perspective ensures that all critical and necessary issues are fully addressed.\r\n\r\nFor further information on construction laws and business in the UAE, please contact Scott Lambert, Regional Head of Construction and Infrastructure, Al Tamimi &amp; Company at s.lambert@tamimi.com'),
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(96311, 5230, 'content', 'September 2015\r\n\r\n<hr />\r\n\r\nThis provides increased exposure for the event and value for sponsors, player profiles and the event generally.\r\n\r\nBut along with this increased exposure comes a problem for the event organisers.  As technology creates ever more easy ways to distribute content, there is inevitably a loss of control of the brand and the images associated with the sporting event.\r\n\r\nLarge events have vast resources to assist with this issue. But what about smaller events, such as those that are now more frequently being held in the Middle East?  What can they do to try and ensure that they have some degree of control and protection over their brand as well as the footage and images that are created at their events?\r\n\r\nSporting events organisers generally protect their rights by using three layers of protection. The first involves controlling access to the location of the event itself.  They either exclude people who are not associated with official broadcast/media partners or they allow access to non rights holders but subject to contractual terms. The second layer of protection comes from the control of rights in relation to the recordings and images that are created of the event itself. This is important since there is no copyright in the sporting event itself but only in images or recordings created from the game.  The third relies on the contractual relationships with the key figures taking part in the event – that is the players and athletes themselves. In this article we will address the first layer.\r\n\r\n<strong>Controlling Access</strong>\r\n\r\nGenerally a person who controls access to a property is able to deny a particular person from accessing that property. In the early days of sporting events, all local broadcasters were able to attend the event venue with their usual press passes and film or take photographs as they pleased. But as the media and sports industries grew together and became more reliant on each other for audiences and revenue, it became common for one media outlet to pay for exclusive rights to the event. To allow this exclusivity to be put into effect in practical terms, the event organiser simply stopped all other media outlets from entering the grounds.\r\n\r\nOf course rival media outlets were then angered that they were excluded from reporting about an event that had, in their view, news value. This lead to the development of the news access regime whereby non-rights holding media outlets were provided with restricted accreditation and could attend the events as long as they signed a contract that restricted the amount of recordings or stills they would use from the event and the way in which they would use it. Usually, the rival media outlets could not access the venues with camera equipment and crews – they simply had access to a feed from the rights holding media outlet and could use that in accordance with the terms and conditions of the contract that they signed.  This was not only helpful to the non-rights holding media outlets but also worked in favour of the event organiser, particularly in those countries where the law allowed for use of a ‘fair’ amount of material without consent if it was used for the purposes of news reporting (the ‘fair dealing’ or ‘fair use’ provisions; similar provisions are found in the Middle East, such as Article 3 of the UAE’s Federal Law No 7 of 2002, Concerning Copyrights and Neighbouring Rights). The event organiser could now contractually restrict the amount of material used by way of a contract, thereby taking control of the ‘fair dealing’ that might take place under a news exemption.\r\n\r\nThis regime of news access and associated rules became standard within the sporting industry. This approach has not however been without its own controversies from time to time.  At the Olympic Games in Athens in 2004, a crew from a non-rights holding broadcaster managed to enter the main athletics’ arena with their entire camera kit without any of the appropriate passes. But on the whole, this method of rights control has been extremely effective at controlling event content.\r\n\r\n<strong>Implementing Controlled Access in the Middle East</strong>\r\n\r\nWith several of the local sporting events becoming recognisable local and international brands, we believe that it is time for local events organisers in the region to consider implementing news access regimes. So what might a contract for non-rights holders look like?\r\n\r\nContract for non-rights holders can completely restrict the way in which the non-rights holder can deal with the ownership of any images or footage that they create. If an event organiser wished to do so, it could demand that rights be granted back to it as well. For example, Taylor Swift had, until recently, required all photographers to allow her to use their images in any way that she wished in perpetuity with no payment back to them.\r\n\r\nBelow is a list of some areas in which an event organiser might consider applying restrictions under a news access regime:\r\n<ul>\r\n 	<li>the duration of the recording used.</li>\r\n 	<li>the number of times per day it can be used.</li>\r\n 	<li>the time period between each usage.</li>\r\n 	<li>the type of program or publication in which it can be used.</li>\r\n 	<li>credits or logos that must be used in conjunction with the footage or images.</li>\r\n 	<li>restricting use of mobile devices to create content.</li>\r\n</ul>\r\n&nbsp;\r\n\r\nFor the entity that gains news access, the restrictions may have an upside as well.  In addition to gaining access to the event, they may be given access to press conferences, provided with live statistics, given a live feed of the event, given tickets to networking events or permitted to interview athletes. They may also be allowed to film in certain areas that are close to the event, albeit not within the event venue itself, which would allow interviews with attendees of the event. Again, this can be controlled.\r\n\r\nBreaches of any of the news access terms usually result in swift action. The offending news outlet can expect all of its accreditation to be withdrawn, meaning that its reporters and photographers will not be granted any of the permissions noted above – no interviews with athletes, no entry to press conferences.  For a news organisation in particular, this can be devastating for its coverage. Some of the more influential event organisers may also refuse to provide accreditation for the next event to the breaching entities. So the organisations that are granted access do not usually breach any of the conditions of entry.\r\n\r\nAs the Middle East hosts more world class events, the event organisers need to become more sophisticated in the way they allow third parties to access the events in order to record them. It is standard practice in many areas of the world for professional sporting events to impose news access restrictions and provide proper accreditation for media outlets.  Media outlets and reporters are used to dealing with the restrictions and will only respect those event organisers who put them in place.\r\n\r\nFiona Robertson (f.robertson@tamimi.com) is a senior associate in the firm’s Technology, Media &amp; Telecommunications practice and member of the firm’s Sports Law and Events Management practice.  She regularly advises clients in the sports industry on a variety of issues relating to the exploitation and protection of their media rights.'),
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(96326, 5231, 'content', 'September 2015\r\n\r\n<hr />\r\n\r\nHowever, the overtime provisions as set out in the Egyptian Labor Law No. 12 of 2003 (the “Labor Law”) are regularly breached by employers both in respect of white and blue collar workers.  This article explores the law and the challenges faced by employers in being in compliance with it.\r\n\r\n<strong>General Rule</strong>\r\n\r\nPursuant to the Labor Law, an employee shall normally work for a maximum of eight hours a day or forty eight hours per week (based upon a 6 day working week).\r\n\r\nIn addition, the Law No. 133 of 1961 regarding Regulating the Employment of Employees in Industrial Establishments stipulates that employees working in certain industrial establishments (as may be determined by the Minister of Industry) may not work more than 42 hours a week (not including lunch hours).\r\n\r\nFurthermore, the general rule is that an employee may not work for more than five hours continuously and then must be entitled to a lunch break of at least one hour.\r\n\r\nFinally, there is an obligation to allow the employees engaging in hard labor to have drinks, snacks and rest periods on a regular basis to be regulated by each relevant employer.\r\n\r\n<strong>Exceptions</strong>\r\n\r\nThe Labor Law has specified cases whereby a company may not be required to abide by the above working hours restrictions and where overtime working is permissable.   Accordingly, an employee may be required in certain cases, provided the employer has informed the Labor office, to work overtime.\r\n\r\nIn addition, the Ministerial Decree No. 122 of 2003 provides that employers who have a continuous 24 hour operation (based on three shifts) can have its  employees work eight hours shifts rather than be bound by the five hour restriction. In addition,  employers that operate a two shift operation may also have eight continuous daily working hours provided they obtain the written approval of the employees to work these shifts.\r\n\r\n<strong>Remuneration</strong>\r\n\r\nIn terms of overtime pay, Article 85 of the Labor Law, provides that overtime pay shall be more than the normal salary paid. The Labor Law sets out minimum rates for overtime pay and differentiates between overtime worked during the day and at night.\r\n\r\nDaytime overtime shall be compensated with an additional percentage of 35% of the normal working hours’ salary, while night-time overtime shall be compensated by 70% of the normal working hours’ salary.\r\n\r\nA company must always abide by the minimum limits set out by the Law above. In the event a company provides a higher threshold via its general internal regulations it creates a contractual right and it shall not have the discretion to subsequent decrease the overtime rate.\r\n\r\nWe would suggest that the Labor Law appears to be fair and equitable when it comes to the overtime terms applied. However, the economic landscape in Egypt is much changed and employers are often demanding more from the workforce whilst profit margins decline.  The Labor Law sets out a penalty of EGP 100 where an employer violates the above provisions regulating the overtime in addition to the prospect of employee claims. However, this minimal penalty does not act as a disincentive and many employers are in breach of the above overtime provisions given the pressures that they face particularly those that deploy blue collar workings in factories and in the construction industry.\r\n\r\nWe anticipate that in the near future – considering the tremendous change of pace in the Egyptian industrial and business sectors – the working conditions in general and the overtime conditions in particular will continue to face significant challenges and likely legislative amendment.\r\n<div></div>'),
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(94037, 5107, 'content', 'March 2015\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">Users can look forward to significantly higher standards and speeds for mobile and smart phones as the world moves closer to Fifth Generation (5G) standards.  This article looks at the background to the 5G standard, makes some observations about what a 5G service might look like, and finally examines some of the legal and technical challenges ahead.</p>\r\n<p class=\"MsoNormal\">A recent announcement by the Telecommunications Regulatory Authority (TRA) of the UAE noted that the UAE had achieved the highest increase worldwide in the Global Information, Communications &amp; Technology Development Index (Index). In the latest edition, the UAE had jumped from 46<sup>th</sup> to 32<sup>nd</sup> place.  The Index is published by the International Telecommunications Union (ITU), a highly respected United Nations agency which coordinates global telecommunication standards and regulations.</p>\r\n<p class=\"MsoNormal\">The ITU noted further key results:</p>\r\n\r\n<ul>\r\n 	<li>The UAE is the highest ranking country in the world in terms of the proportion of rural population covered by at least a Third Generation (3G) Mobile Telephone Network</li>\r\n 	<li>It ranked second of all Arab countries<a class=\"msocomanchor\" href=\"#_msocom_1\">[RK1]</a>  in terms of having the largest proportion of its population online at 88% (Bahrain is ranked slightly higher)</li>\r\n 	<li>Wireless broadband penetration in the UAE has doubled from 45% in 2013 to 90% in 2015</li>\r\n 	<li>The UAE has a high level of household internet connectivity</li>\r\n 	<li>Mobile telephone penetration is at 193%, one of the highest in the world.</li>\r\n</ul>\r\n<p class=\"MsoNormal\">The UAE is therefore in good hands when it comes to the development and management of the Information, Communications and Technology sector generally, and more specifically the mobile sector.</p>\r\n<p class=\"MsoNormal\">Most readers will be familiar with the family of mobile standards known as 2G, 3G etcetera. These standards track the quantum improvements in speed and capability of mobile and more recently smart phone capability and are developed by the GSM Association based in London. In the early days of mobile phones, in the late 1980’s and early 1990’s, phones were only used for analogue voice calls. The further development from this original 1G standard can be seen in the following table.</p>\r\n\r\n<table class=\"MsoTableGrid\" border=\"1\" cellspacing=\"0\" cellpadding=\"0\">\r\n<tbody>\r\n<tr>\r\n<td valign=\"top\" width=\"64\"><strong>GENERATION</strong></td>\r\n<td valign=\"top\" width=\"104\"><strong>PRIMARY SERVICE</strong></td>\r\n<td valign=\"top\" width=\"95\"><strong>KEY DIFFERENTIATOR</strong></td>\r\n<td valign=\"top\" width=\"126\"><strong>WEAKNESS </strong>(addressed by subsequent generation)</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"64\">1G</td>\r\n<td valign=\"top\" width=\"104\">Analogue phone calls</td>\r\n<td valign=\"top\" width=\"95\">Mobility</td>\r\n<td valign=\"top\" width=\"126\">Poor spectral efficiency, major security issues</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"64\">2G</td>\r\n<td valign=\"top\" width=\"104\">Digital phone calls and messaging</td>\r\n<td valign=\"top\" width=\"95\">Secure, mass adoption</td>\r\n<td valign=\"top\" width=\"126\">Limited data rates – difficult to support demand for internet/e-mail</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"64\">3G</td>\r\n<td valign=\"top\" width=\"104\">Phone calls, messaging, data</td>\r\n<td valign=\"top\" width=\"95\">Better internet experience</td>\r\n<td valign=\"top\" width=\"126\">Real performance failed to match hype, failure of WAP for internet access</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"64\">3.5G</td>\r\n<td valign=\"top\" width=\"104\">Phone calls, messaging, broadband data</td>\r\n<td valign=\"top\" width=\"95\">Broadband internet, applications</td>\r\n<td valign=\"top\" width=\"126\">Tied to legacy, mobile specific architecture and protocols</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"64\">4G</td>\r\n<td valign=\"top\" width=\"104\">All-IP services (including voice, messaging)</td>\r\n<td valign=\"top\" width=\"95\">Faster broadband internet, lower latency</td>\r\n<td valign=\"top\" width=\"126\"></td>\r\n</tr>\r\n</tbody>\r\n</table>\r\n<p class=\"MsoNormal\"><em>(Source: © GSMA Intelligence 2015)</em></p>\r\n<p class=\"MsoNormal\">There are some warning signs in this table, easily recognised by those who remember the auction of 3G spectrum in the late 1990’s and early 2000’s. Eager telecommunications operators bid huge sums for new 3G spectrum in the expectation of large increases in demand for mobile internet services.  This occurred at a time when profitable online business models on the one hand, and the essential technologies underpinning mobile internet delivery on the other, were severely under-developed. This failure flowed through to the sub-sea cable sector which had also geared up for strong growth in demand, which failed to appear. Things were made worse, fatally for a number of very large sub-sea cable operators, by a sudden surge at the time in the science behind fibre-optic cable technology. This allowed for the transmission of far more data down a single fibre optic cable, leading to massive oversupply and redundancy in sub-sea cables which still exists to an extent some 15 years later.</p>\r\n<p class=\"MsoNormal\">These earlier failures at the 3G stage are a reminder of how easily capital can be misallocated, even by the most experienced players. It also serves as a warning against the hype that is slowly but surely mounting around 5G.</p>\r\n<p class=\"MsoNormal\">Right now, mobile enjoy what appears to be a happy medium at the 4G level. Handset technology in the form of new generation smart phones is relatively well matched with mobile broadband speeds and the wide offerings in the form of data downloads and applications. But this moment will not last, so what of the future? Specifically, how will the authorities in the UAE adapt to 5G noting that the first commercial launches of 5G are not expected until 2020.</p>\r\n<p class=\"MsoNormal\">To answer that let’s look at the question of what is meant by 5G and what it might offer. Given the speed at which technology is being developed, the distant horizon for the launch of 5G, and the recent historical failures mentioned above, the final incarnation of 5G will no doubt be different from what is known now.</p>\r\n<p class=\"MsoNormal\">Despite that, the more obvious improvements over the current 4G standard can be described with a degree of certainty. First, there will be higher coverage, density and availability of mobile services which will allow more devices to operate in a given area while downloading and uploading vastly more data. Secondly, new technologies will allow significant reductions in energy usage and a corresponding increase in the battery life of devices.</p>\r\n<p class=\"MsoNormal\">However, in a recent analysis<a href=\"#_ftn1\">[1]</a> published in December 2014 (the GSMA Report) the GSMA Association makes the argument that many of these improvements over 4G standards are merely incremental and not truly reflective of the unique qualities of a 5G standard. So what might distinguish 5G from 4G?</p>\r\n<p class=\"MsoNormal\">One of the ultimate aims of radio technology as applied to the internet, including the mobile internet, is to reduce delays in transmitting data, known as latency. To understand this more clearly, remember that data transmitted via the internet to your mobile device is first broken up into small packets of data, then sent over a multitude of internet pathways, and finally reassembled at the end destination in its original form. . Compared to the early days of the internet, when there were very few pathways, latency was very poor and often some packets of data simply dropped out and were lost altogether (packet-loss). New technologies and far greater network density have improved the internet experience, especially for mobile users.  So, one distinguishing feature of true 5G is exceptionally low latency.</p>\r\n<p class=\"MsoNormal\">The second technical element identified in the GSMA Report as being fundamental to a true 5G service is a much faster data rate.  The GSMA quotes a figure of 1 Gigabit per second (Gbps) which is many multiples higher than reliable existing services.  Moreover, the transmitting devices (antennae and other network equipment) will also need to be upgraded to deal with these speeds, raising the capital allocation argument for network operators.</p>\r\n<p class=\"MsoNormal\">From a regulatory perspective it will be the revolutionary 5G applications which will present regulators around the world with new challenges. Some examples are:</p>\r\n\r\n<ul>\r\n 	<li>Remote surgical operations</li>\r\n 	<li>Driverless vehicles</li>\r\n 	<li>Connected cars</li>\r\n 	<li>Healthcare monitoring</li>\r\n 	<li>Advanced virtual reality, including gaming</li>\r\n</ul>\r\n<p class=\"MsoNormal\">In almost all cases new sector laws and regulations will need to be developed, at the very least to protect human health and life on the one hand, and on the other hand to promote efficient investment in applications that will benefit society. In each case regulators will need to address the multiple challenges faced by all parties: the potential users of these technologies, the technology providers, as well as the relevant government entities who will oversee the relevant activities (for example Department of Health, Road Transport Authority).</p>\r\n<p class=\"MsoNormal\">Alongside these revolutionary offerings, 5G will also allow enhanced versions of existing applications such as voice and video calls, gaming and machine-to-machine communication.  All if these applications are currently available with existing 4G and related technologies, which make them much less relevant to the 5G discussion.</p>\r\n<p class=\"MsoNormal\">Aside from these regulatory challenges, there are other issues which 5G technologies will present to regulators around the world. This relates to the use of spectrum, which is essentially the range of radio frequencies over which communications are sent through the air. (Readers may wish to refer to an earlier recent article in Issue 275 of December 2015 of the Al Tamimi Law Update, “Averting a Spectrum Shortage in the GCC”.)</p>\r\n<p class=\"MsoNormal\">As noted in our earlier article, spectrum is a valuable national resource and has finite limits. There are constant and growing demands for more spectrum from a wide range of stakeholders such as emergency service providers, telecoms companies, the aviation and marine industries, television broadcasters, national defence and security departments, and many others. Thus far operators and equipment vendors who are looking towards 5G are focussing on spectrum which is in a different frequency range than existing 3G and 4G solutions, which may provide some relief to regulators.</p>\r\n<p class=\"MsoNormal\">Aside from the main regulatory issue for governments of how to allocate this valuable spectrum, one of the flow-on implications is that many more cell sites will need to be built to support a 5G network. This scenario raises questions of land use rights, primarily increasing demand for access to public and private land by mobile operators.  It also raises the thorny question of site sharing and other sharing arrangements as between competing telecommunications network operators. As the GSM Report notes, there may be cases where a single network infrastructure should be implemented and made accessible to all licensed operators. We agree that this may be the ideal technical solution in some cases, but given the troubled history (globally) of network and facility sharing in the telecommunications sector, this will present a very significant challenge to telecommunications regulators, not just in the UAE.</p>\r\n<p class=\"MsoNormal\">In summary, 5G will most likely distinguish itself from earlier 3G and 4G standards by offering truly unique services which will require very high standards of latency and packet-loss and massively higher data speeds.  Applications which are merely an enhancement of existing services will not rank as true 5G.</p>\r\n<p class=\"MsoNormal\">On the other hand, the revolutionary new applications which depend on the enhanced 5G technologies will need to be developed within a suitable regulatory framework in each case, whether it be healthcare, transport or media. Further regulatory challenges will arise in dealing with scarce spectrum resources. However as noted at the start of the article, the UAE is a leader in the Information, Technology and Communication sector, and this should give confidence that it will be able to deal with the challenges that 5G will bring.</p>\r\n\r\n<div>\r\n\r\n&nbsp;\r\n\r\n<hr size=\"1\" />\r\n\r\n<div>\r\n<p class=\"MsoFootnoteText\"><a href=\"#_ftnref\">[1]</a> “Understanding 5G: Perspectives on future technological advancements in mobile.” GSMA Intelligence; London, December 2014. <a href=\"https://gsmaintelligence.com/research/?file=c88a32b3c59a11944a9c4e544fee7770&amp;download\">https://gsmaintelligence.com/research/?file=c88a32b3c59a11944a9c4e544fee7770&amp;download</a></p>\r\n<p class=\"MsoFootnoteText\"></p>\r\n\r\n</div>\r\n</div>\r\n<div>\r\n\r\n<hr class=\"msocomoff\" size=\"1\" />\r\n\r\n<div>\r\n<div class=\"msocomtxt\">\r\n<p class=\"MsoCommentText\"> <a class=\"msocomoff\" href=\"#_msoanchor_1\">[RK1]</a>Would be interesting to state which was No1</p>\r\n\r\n</div>\r\n</div>\r\n</div>'),
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(101378, 5510, '_yoast_wpseo_metadesc', 'The Chairman of the Securities and Commodities Authority of the United Arab Emirates (SCA) issued on 28 April 2016 the Resolution No. (7/R.M) of 2016 Concerning Corporate Discipline and Governance Standards of Public Joint Stock Companies (New Governance Rules)'),
(101379, 5511, 'content', 'November 2016\r\n\r\n<hr />\r\n<p class=\"p1\"><strong>Means of Implementing Mergers:</strong></p>\r\n<p class=\"p2\">It is symptomatic of times when economic conditions appear favourable to business growth that businesses expand rapidly, but not necessarily in the most cost-effective and streamlined manner. When economic conditions change and become less favourable, as during present times, it becomes more important for businesses to operate in a more cost-effective and efficient manner in order to maximise profit margins and under-cut their competition by reducing their costs base. An important tool in the drive to rationalise and reduce costs is the merger of operations, where circumstances allow and where benefits can be gained. This can assist to cull the profligate and inefficient corporate structuring that often flourishes when businesses are focusing more on keeping up with burgeoning and evolving client demand, rather than on optimal corporate structure planning.</p>\r\n<p class=\"p3\">There are a myriad of different means by which companies or organisations can merge with one another. Each different mechanism will be selected for particular reasons and will produce a different outcome. The three classic means of effecting a merger of corporate entities are as follows:</p>\r\n<p class=\"p2\"><em>1. Common Holding Company</em></p>\r\n<p class=\"p3\"><span class=\"s2\">This would involve bringing different companies/businesses together under a common holding or parent company. This can assist in slimming down the management structure, facilitating the sharing of resources and support functions as well as enabling the uniform implementation of policies and procedures across a merged group, together with aiding access to finance for the companies and businesses brought together by the merger. </span></p>\r\n<p class=\"p2\"> [image height=\"312\" src=\"http://www.tamimi.com/en/media/get/20161204_Screen-Shot-2016-11-10-at-11.16.16-AM.png\" width=\"600\" class=\"__image__\" imageId=\"5053\"]</p>\r\n<p class=\"p2\"><em> </em></p>\r\n<p class=\"p3\"><em>2. Business and Assets Transfer</em></p>\r\n<p class=\"p3\"><span class=\"s2\">Such a transaction involves transferring a business, assets and personnel from one or more companies into another company, thereby merging the businesses of the two or more companies into a single company structure (“Business Transfer”). This may engender each of the advantages described under 1. above as well as reducing the number of companies within a group, further allowing for synergies between business-streams to be exploited and offering a greater opportunity to reduce management, support personnel and infrastructure (such as office space, workshops, machinery and so on). Typically, the company or companies that transfer their businesses, assets and personnel to another will in due course be wound-up and dissolved. </span></p>\r\n<p class=\"p2\"> [image height=\"280\" src=\"http://www.tamimi.com/en/media/get/20161204_Screen-Shot-2016-11-10-at-11.16.27-AM.png\" width=\"600\" class=\"__image__\" imageId=\"5054\"]</p>\r\n<p class=\"p2\"><em>3. Legal Merger</em></p>\r\n<p class=\"p3\">A legal merger pursuant to the UAE Commercial Companies Law No. 2 of 2015 (“CCL”) (“Legal Merger”) enables different companies to be fused together to become one. All of the businesses, contracts, other assets and liabilities, as well as personnel will come together within the sole surviving merged company. This procedure, which is made possible by articles 283 to 291 of the CCL, may engender all the advantages under 1 and 2 above, but without the need (as under 2.) to seek the consent of each and every customer, supplier and employee of the businesses to be brought together and to effect transfers of each of them.</p>\r\n<p class=\"p2\"> [image height=\"312\" src=\"http://www.tamimi.com/en/media/get/20161204_Screen-Shot-2016-11-10-at-11.16.35-AM.png\" width=\"600\" class=\"__image__\" imageId=\"5055\"]</p>\r\n<p class=\"p2\">Furthermore, under 2. above, given that the UAE does not have a regime similar to the European Transfer of Undertakings regulations, whereby personnel working within a particular business will transfer with that business when a merger occurs, in the UAE there will in effect be a negotiation with each and every employee, who needs to agree to terminate their current employment contract and enter into a new one with the company that survives the merger.</p>\r\n<p class=\"p3\">A Legal Merger can therefore make for a much cleaner and neater solution and can substantially reduce the costs and timeframe of implementing a merger.</p>\r\n<p class=\"p3\">If properly planned, a Legal Merger of businesses previously operating within separate companies can bring benefits in terms of operational cost-savings through reducing expensive management, support functions, and auditing requirements; simplifying corporate governance; affording other reductions by eliminating duplicated personnel and resources, and licensing and compliance costs; enabling synergies of ideas, technology, intellectual property, expertise, and the common utilisation of other assets and infrastructure; as well as significantly reducing the time, costs and effort in implementing the merger itself.</p>\r\n<p class=\"p3\">The former UAE Commercial Companies Law No. 8 of 1984 also provided for corporate mergers, but the new 2015 law addresses them in much more detail and offers further assurances and opportunities.</p>\r\n<p class=\"p2\"><strong>Comparison of Merger Mechanisms - Legal Merger vs. Business Transfer:</strong></p>\r\n<p class=\"p2\">When determining which of these two types of merger mechanism will offer the optimal structuring route to achieve the desired end result, a number of key issues fall to be considered. There follows an outline description of certain key features distinguishing a Legal Merger from a Business Transfer.</p>\r\n<p class=\"p3\"><em>Documentation</em>: Under a Legal Merger, all of the assets of the merging companies will automatically be brought together within the surviving company without the need for them to be individually identified and transferred, so full and clear title to each asset on a transfer to the surviving company should be achieved without anything being left behind. Under a Business Transfer, it is necessary to identify each and every asset of the businesses being transferred, so that steps can be taken to ensure that each of them is effectively moved across, which will in all likelihood involve a complex series of enquiries and a certain amount of transfer documentation.</p>\r\n<p class=\"p3\"><em>Steps involved</em>: The CCL requires that shareholders holding at least 75 per cent of each company involved must pass resolutions to approve a Legal Merger. This is interesting, because it means that shareholders holding up to 24.9’ per cent of the shares in non-surviving companies can be forced to accept the exchange of their interests in the share capital of such companies for shares in the surviving company. This contrasts markedly with the well-recognised lack of a ‘squeeze-out’ mechanism in a normal corporate acquisition or tender offer scenario in the UAE, where any small minority of shareholders opposed to a sale of all the shares in a company can frustrate such a sale by digging in their heels and refusing to cooperate.</p>\r\n<p class=\"p3\"><span class=\"s3\"> Therefore, on approval by a 75 per cent majority of the shareholders of each company involved and a green-light from each of the relevant supervising governmental authorities, a Legal Merger will result in all shareholders of the non-surviving company automatically becoming shareholders in the surviving company.</span></p>\r\n<p class=\"p3\">Conversely, in a Business Transfer, the cooperation of each shareholder is required, because for them to acquire new shares in the surviving company simultaneously with a transfer of assets out of the non-surviving company, the shareholders would each individually need to consent and subscribe for new shares in the surviving company. Further, rather than the business, assets and personnel automatically transferring into the surviving company, they need painstakingly to be identified and transferred, if not by simple delivery, then by whatever legal and documentary process applies to them. Furthermore, the non-surviving entity will need separately to be wound-up and dissolved, requiring it to be placed into liquidation, the appointment of a liquidator and the various procedures to be complied with to bring about its ultimate dissolution. Typically, it will only be when the non-surviving company has relatively few assets and contracts, which can easily be shifted to the surviving company, that it may be faster and more convenient to undertake a Business Transfer instead of a Legal Merger.</p>\r\n<p class=\"p3\">In terms of timing, for a Legal Merger, once shareholder resolutions have been adopted and relevant governmental approvals have been obtained (and assuming no qualifying objections are raised to hinder the merger), then the merger will be effective immediately following its date of registration in the relevant commercial register. Whereas, for a Business Transfer, the timeframe will depend on the nature of the assets and contracts to be transferred. Typically, for the negotiation and novation of all key contracts, the identification and transfer of all relevant assets, for the revision of the licence of the surviving company with approvals from each relevant supervising authority, and for the winding-up and dissolution of the non-surviving companies, the process overall can be expected to take significantly longer.</p>\r\n<p class=\"p3\"><em>Third party consents</em>: For a Legal Merger, third party consents will be required only for contracts specifically stating consent requirements in case of a corporate restructuring (which are likely to be few in number). Whereas, in a Business Transfer, there will likely be a need to obtain many more third party consents to the transfers of assets and the novation of business contracts, because every customer, supplier and financier will need to agree (either explicitly or impliedly) to the termination of its contract with each non-surviving company and its entry into a fresh contract with the surviving company. It is worthy of note that in a Legal Merger, the CCL enables creditors and other interested third parties to petition the court within 30 days if they oppose a proposed Legal Merger. In considering the petition, the court will look to see whether the petitioning parties would likely be unfairly prejudiced by the implementation of the merger.</p>\r\n<p class=\"p3\"><em>Transfer of employees</em>: One very significant area in which a Legal Merger scores over a Business Transfer relates to human capital arrangements. In a Legal Merger, it is possible for personnel of merging companies simply to be brought together with merely an amendment being made to the files of the labour and immigration authorities, rather than the tedious and costly cancellation of work permits and visas by the non-surviving company and the grant of new ones by the surviving company as their new employer and sponsor. Accordingly, the cost-saving potential of a Legal Merger in this respect can be very significant for businesses with substantial numbers of employees.</p>\r\n<p class=\"p3\"><span class=\"s2\"> <em>Accounting</em>: Other potential advantages arising out of a Legal Merger, that are not available when effecting a merger by way of a Business Transfer, include the merging of profit and loss, and balance sheet statements. For instance, it can be possible for the surviving company to utilise the profits and losses on the financial statements of the non-surviving company to its advantage, which is not possible where the non-surviving company will remain separate and simply be wound-up and dissolved. </span></p>\r\n<p class=\"p3\">Further, in a Legal Merger, the share capital of each of the companies involved will be merged resulting in the merged company going forwards with an enhanced paid-up share capital. In most jurisdictions, where taxation is a key feature of planning corporate transactions, an assessment of the tax effects of either merger mechanism will be critical. Due to the scant nature of the UAE taxation regime, tax will likely be of little significance, but in most of the other jurisdictions of the GCC and Middle East region, tax planning will feature in designing a successful merger.</p>\r\n<p class=\"p2\"><strong>Closing Comments: </strong></p>\r\n<p class=\"p2\">The new CCL opens the door further for companies to reap the benefits of effecting corporate mergers to rationalise business operations at less cost. From a legal perspective, a Legal Merger, whereby one surviving company remains following the merger of two or more companies, often represents a particularly attractive route. This is due to the various reasons summarised above, but in essence the time, effort, disruption to business and impact on relations with third parties (customers, suppliers and financiers) will be significantly reduced, as typically will be the costs of proceeding with a Legal Merger.</p>\r\n<p class=\"p3\">Ultimately, when preparing for a merger structure, it is important to consider the optimal transaction structure. This article deals briefly with just a few of the key issues pertinent to planning and implementing a merger transaction, but its principal aim is to highlight the opportunities for the rationalisation of resources and cost-savings that mergers, and the implementation of them by different means, can bring about. Accordingly, it is important to assess the steps, features and timeframes applicable to a Legal Merger, a Business Transfer or another form of merger, taking account of the nature and extent of the assets, contracts and consents involved, in order to identify which structure is preferable in the context of a particular business amalgamation.</p>'),
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(101364, 5510, 'content', 'November 2016\r\n\r\n<hr />\r\n\r\n<ul>\r\n 	<li>List a set of new corporate governance rules in accordance with, and to adhere to, the Federal Law No. (2) of 2015 on Commercial Companies (CCL); and</li>\r\n 	<li>Repeal the UAE Ministerial Resolution No. (518) of 2009 Concerning Governance Rules and Corporate Discipline Standards (Repealed Governance Rules).</li>\r\n</ul>\r\n<p class=\"p4\">New provisions were also introduced under the New Governance Rules, that did not exist under the Repealed Governance Rules, such as the provisions related to Insiders Register, Confidentiality of Data &amp; Information, Conflict of Interest, Register of Related Parties, General Assembly Meetings, Capital Increase, Dividends Distribution, Investors Relation, and Obligations of the Auditor.</p>\r\n<p class=\"p1\">The purpose of this article is to compare the New and Repealed Governance Rules and highlight some of the provisions that we consider would benefit from clarification from SCA.</p>\r\n<p class=\"p1\">It is worth mentioning that any capitalised terms shall have the same meaning to those mentioned in the New Governance Rules unless provided otherwise in this article.</p>\r\n<p class=\"p5\"><strong>Formation of the Board of Directors </strong></p>\r\n<p class=\"p5\">There is no material difference between the New and Repealed Governance Rules since both stipulate that the articles of association shall decide on the method of formation, number of members and tenure of membership of the Board of Directors. However, the New Governance Rules reiterate Article 148 of the CCL which states that if a Government owns 5% or more of a Company’s shares, the said Government may then appoint a representative in the Company’s Board of Directors pro rata to its shareholding or at least one Board Member if the shareholding percentage required to elect such member is less than the shareholding of the said Government. The Government’s right to vote shall expire with respect to the shares utilized to appoint its board representative unless there are remaining shares still to be utilized (other than those already utilized to appoint the Board Members representing the Government).</p>\r\n<p class=\"p1\"><span class=\"s3\"> In accordance with Article 151 of the CCL, the condition to have the Chairman and majority of the Board Members to be UAE nationals continue to be in effect in the New Governance Rules without prejudice to the treaties and agreements entered into by the State (such as the treaties entered with the GCC States).</span></p>\r\n<p class=\"p5\"><strong>Regulations of Candidature to Board Membership</strong></p>\r\n<p class=\"p5\">Both rules provided for women’s representation in the Board of Directors and to disclose in the Company’s annual report the reasons for not having a woman Board Member if there are no women that are members. However, the difference is that the Repealed Governance Rules stipulate a requirement to have at least one female Board Member while the New Governance Rules set a minimum percentage of 20% of the Board of Directors to be represented by women with an obligation to disclose the percentage of women represented in the Board of Directors.</p>\r\n<p class=\"p1\"><span class=\"s4\"> The New Governance Rules further sets the rules for board membership candidature, such as having the process of candidature open for at least ten days (fourteen days in the Repealed Governance Rules), publishing the details of the board candidates in the Company’s website two days utmost (five days in the Repealed Governance Rules) prior to the general assembly meeting day, prohibiting assigning candidature after closing the candidature process (did not exist in the Repealed Governance Rules), and providing SCA and the Market with the details of the candidates on the day following the closure of the candidature process (no timeline for providing such details existed in the Repealed Governance Rules).</span></p>\r\n<p class=\"p5\"><strong>Conditions for Board Membership</strong></p>\r\n<p class=\"p5\">The New Governance Rules referred to the CCL which stipulates that a Board Member must not be a Board Member in more than five companies, or to be a Chairman or Vice Chairman in more than two companies, or to be the managing director in more than one company.</p>\r\n<p class=\"p1\"><span class=\"s4\"> The New Governance Rules, in addition to the aforementioned prohibition of the CCL, stipulates that a Board Member must not (i) have been convicted with a crime of honor or honesty unless pardoned (such prohibition existed in Article 97 of the Old Companies Law No. (8) of 1984 but do not exist anymore in the CCL); (ii) have at least five years of experience in the activity carried out by the Company that he he/she is applying for its board membership; (iii) hold a clean record before SCA that no disciplinary action has been taken against him, no court order is issued to dismiss/remove him/her from his/her position as a Board Member, and no outstanding proceedings before the Public Prosecution office in relation to honesty and integrity; and (iv) any other conditions stipulated in the Company’s articles of association.</span></p>\r\n<p class=\"p1\">The New Governance Rules also lists the documents required to be submitted by candidates for board membership.</p>\r\n<p class=\"p5\"><strong>Obligations and Duties of the Board of Directors</strong></p>\r\n<p class=\"p5\">The New Governance Rules expanded the duties and obligations of the Board of Directors in Article 43 thereof to ensure its involvement in each and every aspect of the Company’s management and operations. The New Governance Rules further provides under Article 11 (did not exist under the Repealed Governance Rules) for the duties and obligations of the Board Members which basically obligate Board Members to (i) preserve the Company’s rights and act as a prudent person; (ii) act with honesty and integrity and in accordance with the applicable laws and regulations and the Company’s articles of association; (iii) disclose being a Chairman, Board Member or a member of the Senior Executive Management of a company other than the Company itself; and (iv) dedicate sufficient time for his/her duties and obligations toward the Company.</p>\r\n<p class=\"p6\"><span class=\"s1\"><strong>Board Members Lack of Independency</strong></span></p>\r\n<p class=\"p5\">More or less the provisions whereby the Board Member will lack independency are same in both rules. However, two additional conditions were added to the New Governance Rules that needs to be taken into consideration.</p>\r\n<p class=\"p1\"><span class=\"s3\"> The first is that the New Governance Rules has added that a Board Member will lack independency if such Board Member or any of his/her Relatives work or has worked in the Senior Executive Management of the Company or a Subsidiary during the last two years preceding the date of being Board Member candidate.</span></p>\r\n<p class=\"p1\"><span class=\"s3\"> The second condition is that a Board Member will also be conflicted if such Board Member or any of his/her Relatives has a direct or indirect interest in one or more Deal concluded with the Company or a Subsidiary during the last two years and the aggregate value of such Deals exceeds 5% of the Company paid up share capital or AED 5 million or their equivalent in foreign currency whichever is less unless the Deals fall within the normal course of the Company’s activities and there are no preferential conditions whatsoever and that they have been entered on an arms’ length basis.</span></p>\r\n<p class=\"p1\"><span class=\"s2\"> It is worth mentioning that the New Governance Rules also added that a Board Member shall not lack independency for just being an employee of the Parent Company or a Subsidiary if such Parent Company or a Subsidiary is a Government or is a Company or a Subsidiary that is at least 75% owned by a Government.</span></p>\r\n<p class=\"p1\"><span class=\"s2\"> Unfortunately, the New Governance Rules are silent in respect to the procedures to be taken if a Board Member lacks independency and just mention the conditions under which a Board Member is conflicted. However, we believe that disclosure obligation under Clause 11(c) of the New Governance Rules is applicable in this regard; i.e. the conflicted Board Member will have an obligation to inform the Board and the Board shall then decide on the action to be taken in this regard.</span></p>\r\n<p class=\"p5\"><strong>Chairman of the Board of Directors</strong></p>\r\n<p class=\"p5\">The New Governance Rules added new provisions that did not exist in the Repealed Governance Rules regarding the election of the Chairman from amongst the Board Members (by way of cumulative voting), prohibition to combine between the position of the Chairman and General Manager, the right to elect the General Manager from amongst the Board Members and the right to form committees from amongst the Board Members to monitor the progress of the Company’s operations and to ensure the implementation of the Board’s resolutions.</p>\r\n<p class=\"p7\"><strong>Vacancy of Board Member Position</strong></p>\r\n<p class=\"p5\">The key difference is that the wordings of the New Governance Rules provides that in case 25% or more of the Board Member positions are vacant, then the remaining Board Members have to call for a general assembly meeting within 30 (thirty) days (no more than three months in the Repealed Governance Rules) to elect the members to occupy the vacant positions as per Article 145 of the CCL.</p>\r\n<p class=\"p1\"><span class=\"s2\"> The New Governance Rules has also added a clause regarding the representatives of juristic persons or Governments (did not exist in the Repealed Governance Rules) who can be changed by way of an official letter addressed to the Company and the new representative shall complete his/her predecessor’s tenure.</span></p>\r\n<p class=\"p1\">The New Governance Rules further lists the circumstances under which a position of a Board Member shall be vacant. This also did not exist under the Repealed Governance Rules.</p>\r\n<p class=\"p5\"><strong>Dismissal of Board or Executive Management Members</strong></p>\r\n<p class=\"p5\">The Repealed Governance Rules just referred to the Old Companies Law No. (8) of 1984 and accordingly is silent on this matter.</p>\r\n<p class=\"p1\"><span class=\"s4\"> Even though Article 168 of the CCL provides for the circumstances under which a Board Member may be dismissed, the New Governance Rules further stipulates that a Board Member or a member of the Company’s executive management shall not continue in his/her position if a court order is issued against him/her with a penalty of imprisonment and/or fine with the dismissal of such member from his position. Such Board Member may not be a member again of the Board of Directors or the Company’s executive management at least a year from the date the court order is issued.</span></p>\r\n<p class=\"p5\"><strong>Board Members Remuneration</strong></p>\r\n<p class=\"p5\">The New Governance Rules provided same as the Repealed Governance Rules that the remuneration of the Board Members shall not exceed 10% of the Company’s net profit for the relevant financial year. However, the three key differences between the New and Repealed Governance Rules as per Article 169 of the CCL is that (i) Board Members’ remuneration under the New Governance Rules is not subject to the distribution of a minimum percentage of dividends and therefore it is impliedly stated that the general assembly of a Company may resolve that the Board Members shall receive their remuneration even if it is decided that no dividends will be distributed to the shareholders for the relevant financial year but  this is subject to the Company generating net profits for such year. The Repealed Governance Rules on the other hand provided that Board Members remuneration shall be subject to the distribution of at least 5% of the net profits to the shareholders which is not the case any more; (ii) the New Governance Rules further provides that  (did not exist under the Repealed Governance Rules) the Company may pay additional expenses, fees or monthly salaries to the extent determined by the Board of Directors to any Board Member if such member works in any committee, makes special efforts or performs additional works to serve the Company beside his ordinary duties as a Board Member. Having said this, no attendance allowance may be paid to the Chairman or Board Member in respect of the board meetings; and (iii) the New Governance Rules additionally provides that  (also did not exist under the Repealed Governance Rules)  fines imposed on the Company because of the Board of Directors’ violation of the applicable laws or the Company’s articles of association shall be deducted from the remuneration of the Board of Directors. Having said this, the general assembly meeting of the Company may not deduct all or some of such fines if such fines are not a result of the Board of Directors fault or negligence.</p>\r\n<p class=\"p5\"><strong>Board Meeting</strong></p>\r\n<p class=\"p5\">The Repealed Governance Rules stipulated that the Board of Directors has to meet at least once every two months; i.e. at least six times a year and that no board meeting shall be valid unless attended by the majority of its members and all its resolutions has to be passed by a simple majority voting of the Board Members present at the meeting.</p>\r\n<p class=\"p1\">The New Governance Rules on the other hand provides that, in accordance with Article 156 of the CCL, the Board of Directors has to meet at least four times a year and all board resolutions has to be passed by a simple majority voting of the Board Members present at the meeting. As for the quorum required to construe the board meeting being valid, the New Governance Rules is silent referring this matter to the CCL and likewise the Repealed Governance Rules requires the attendance of the majority of the Board Members.</p>\r\n<p class=\"p1\"><span class=\"s5\"> Both rules provide that the Chairman shall have a casting vote.</span></p>\r\n<p class=\"p1\">The New Governance Rules has added additional clauses in relation to:</p>\r\n\r\n<ul>\r\n 	<li>the obligation to convene the board meeting calling for a general assembly 30 days prior to the general assembly date (21 days under the Old Companies Law No. (8) of 1984);</li>\r\n 	<li>having the board meeting to be held in the Company’s headquarter unless the Board believes there is a necessity to convene the meeting in another place;</li>\r\n 	<li>having a secretary to the Board of Directors who shall not be a Board Member;</li>\r\n 	<li>delegating other Board Members to attend a board meeting provided that no Board Member shall act as a proxy for more than one Board Member; and</li>\r\n 	<li>prohibiting any voting by way of correspondence.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p5\"><strong>Participation in Board Meetings via Modern Technology</strong></p>\r\n<p class=\"p5\">Article 6 of the New Governance Rules has provided for the conditions to have a board meeting using modern technology in accordance with Article 156 of the CCL subject to stipulating in the Company’s articles of association for using such means to convene a board meeting.</p>\r\n<p class=\"p5\"><strong>Board Resolutions by way of Circulation</strong></p>\r\n<p class=\"p5\">The critical difference between the two rules in this regard is that the Repealed Governance Rules has stipulated that the Board of Directors shall pass no more than four resolutions per year by way of circulation.</p>\r\n<p class=\"p1\">The New Governance Rules on the other hand did not set a ceiling to the maximum number of resolutions that can be passed by way of circulation (unless provided otherwise in the Company’s articles of association) and provided that (same as stipulated in the Repealed Governance Rules) the Board Members agree by way of simple majority that the circumstances requires the resolution to be passed by way of circulation and that the resolutions are ratified in the next physical board meeting.</p>\r\n<p class=\"p5\"><strong>Minutes of Board Meetings</strong></p>\r\n<p class=\"p5\">No material difference between the two rules in this regard except that the New Governance Rules are more comprehensive and lists the standards to be taken into consideration when recording the minutes of meeting such as listing the date, venue, attendees, absent board members, date of the invitations sent regarding the meeting, proxies and including the phrase “<em>Signatories of this minutes shall be responsible of the validity of the date included therein</em>” in the minutes of meeting.</p>\r\n<p class=\"p7\"><strong>Board Committees, Internal Control and Compliance Officer</strong></p>\r\n<p class=\"p5\">There is no difference between the New and the Repealed Governance Rules in this regard except that the New Governance Rules are more comprehensive in terms of the duties of the audit committee and the elements to be included in the internal control annual revision report.</p>\r\n<p class=\"p5\"><strong>Corporate Governance Report</strong></p>\r\n<p class=\"p5\">The New Governance Rules have expanded the details that should be included in the Corporate Governance Report which has to be as follows:</p>\r\n\r\n<ol>\r\n 	<li>A statement of the details and reasons of any compensations and allowances paid to every Board Member and the members of the Board committees during the fiscal year;</li>\r\n 	<li>A statement of the Company’s Board Members and first and second line officers as per the Company organizational structure as well as their positions, appointment dates, salary details, the benefits paid to each of them and any compensation paid to them by the Company and the reason of such compensations; and</li>\r\n 	<li>Remuneration of the Board Members and all the members of the Company management team including the compensations and any motivational programs associated with the securities issued or guaranteed by the Company.</li>\r\n 	<li>The New Governance Rules is silent on the obligation to mention the violations committed during the financial year in the report (such obligation existed in the Repealed Governance Rules). We believe that the report still has to mention the violations committed even if the New Governance Rules are silent on this matter since this is a crucial purpose for issuing the report and presenting it to the shareholders.</li>\r\n 	<li>The obligation to have the report available to the shareholders before submitting the application to approve convening the annual general assembly meeting still continue to be enforceable under the New Governance Rules.</li>\r\n</ol>'),
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(158163, 5510, 'file', ''),
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(158165, 5510, 'orderValue4', '4'),
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(101336, 5509, '_content', 'field_59b649b5c8b2b'),
(101337, 5509, 'lawUpdateArticleMonth', '5506'),
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(101339, 5509, 'content_description', 'This case involved an application to the Dubai Court of First Instance to recognise and enforce an ICC arbitral award issued in the UK pursuant to the New York Convention. This article will summarise the four court judgments obtained by the parties and will also address the courts’ approach towards the foreign arbitral award.'),
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