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(95868, 5206, 'content', 'August 2015\r\n\r\n<hr />\r\n\r\n....was published in the official gazette on 24th April 2015 and heralds the most significant change in the regulation of employment relations in the Kingdom of Saudi Arabia (“KSA”) since the advent of the Labour Law itself.\r\n\r\nThe amendments are wide ranging and taken together with the reforms to the judicial system that will see the establishment of new labour courts (to be opened in 2017) and the MOL’s joint undertaking with the Ministry of Justice to consolidate the decisions of the labour commissions into ‘judicial codes’, these changes represent the beginnings of a paradigm shift in the management of employment relations in the Kingdom.\r\n\r\n<strong>The Key Amendments </strong>\r\n\r\nThe amendments, conceived in part with the intention of bridging the gap between employment in the public and private sectors and in part to align the statutory regime with current work practices, are a mixed bag for employers and employees.\r\n\r\nThe key amendments are considered below.\r\n\r\n<strong>1. Work organisation regulations</strong>\r\n\r\nArticles 12, 13 and 14 of the Labour Law have been amended so that all employers are required to prepare and make available in a conspicuous place internal regulations that conform with the MOL’s model work regulations.  Previously, this was only required of employers with 10 or more employees.  Employers will be permitted to include additional provisions and conditions to those in the model work regulations provided that they do not contradict the Labour Law.\r\n\r\n<strong>2. Employee training </strong>\r\n\r\nArticle 46 is amended so that the obligation on employers with 50 or more employees to annually train Saudi nationals is increased from 6 per cent to 12 per cent of the workforce.  Employers will be able to include in this figure Saudi employees who have completed studies funded by them.\r\n\r\nCurrently under Article 48, employers are entitled to require trainees to work for them for a period of time on completion of their training.  The amendments go further and require workers to commit to repaying the costs of their training to the employer where they refuse or fail to work for the employer following the end of the training period.\r\n\r\n<strong>3. Probationary period </strong>\r\n\r\nUnder Article 53, at present employees cannot be subject to a probation period greater than 90 days.  This can be increased if they commence a new role for which they can be required to serve an additional probation period of up to 90 days in accordance with Article 54.  The amendments permit the probationary period to be increased to potentially 180 days and also enable employers to require a returning employee to serve another probationary period where there has been a break in service of at least six months. These will be welcome changes for employers as it will enable them to assess a new employee’s suitability over a more reasonable period of time and to re-assess a returning employee who may have been out of employment or the country or region for a long period.\r\n\r\n<strong>4. Fixed term contracts</strong>\r\n\r\nThe period over which a fixed term contract is renewed and the number of times it is renewed before it will be deemed an indefinite term contract is increased.  At present, if a contract is renewed for two consecutive terms or if the original contract term and the renewal period amount to three years then the contract is deemed to be for an indefinite term under Article 55(2).  This is amended so that an indefinite term contract will come into being where the fixed term contract is renewed for three consecutive terms or the original term and the renewal period together amount to four years.  This will give employers more flexibility when employing Saudi nationals but will not affect expatriate employees who will continue to be subject to employment for fixed terms in accordance with Article 37.\r\n\r\n<strong>5. Change of work location </strong>\r\n\r\nArticle 58 is amended to allow an employer to temporarily transfer an employee to a different work location without the employee’s prior written consent for no more than 30 days per year in an emergency.  It is difficult to see how this might work in practice given that there is no definition for what would constitute an ‘emergency’.  However, it is arguable that it will include circumstances where there is an urgent need to fill a role due to the loss of an employee through illness or to deal with an unexpected demand in work.\r\n\r\n<strong>6. Employee service certificate</strong>\r\n\r\nEmployees are entitled under Article 64, on request, to receive a certificate confirming their employment service (including start and end dates of employment, salary details and profession). Where these are provided, employers may make comments on the employee even if they are harmful to the employee’s reputation or reduce his prospects of finding future employment but must include reasons for the same.  The amendments prohibit the inclusion of any statement by the employer which may have this effect.  Employers will be better placed to adopt a policy of providing anodyne references only for all employees.\r\n\r\n<strong>7. Termination of employment: redundancy</strong>\r\n\r\nThe amendments introduce new grounds for termination under Article 74 and allow the employer to validly terminate the employment contract where the establishment is permanently closed or if there is a cessation of the business activity where the employee works.  Although the concept of redundancy is recognised for the first time in the Labour Law, the amendments do not go so far as to include circumstances where there is a diminution in the requirements of a particular role or the numbers employed to perform that role.\r\n\r\n<strong>8. Termination of employment: notice period</strong>\r\n\r\nArticle 75 is amended to increase the notice period for terminating indefinite term contracts from 30 to 60 days for employees paid on a monthly basis and from 15 to 30 days for all other employees.  As the change only affects indefinite term contracts, it will not increase the notice period for expatriate employees who must be employed under a contract for a specified term or, by default, the period of the work permit.  The purpose of the amendment therefore seems to be an attempt to make private sector employment more attractive to Saudi nationals.\r\n\r\nWhere the employer issues notice to terminate employment, both Saudi national and expatriate employees will have the right by way of an amendment to Article 78 to paid leave each week for one day or eight hours to search for alternative employment provided that the employer is notified.  Article 78 is also amended to allow an employer to release the employee from the requirement to work the notice period by making a payment in lieu of notice.\r\n\r\n<strong>9.  Termination of employment: remedies</strong>\r\n\r\nWhere notice has not been observed by either party to an indefinite term contract, Article 76 is amended to allow the parties to waive the requirement on the defaulting party to pay compensation equal to the employee’s wages for the notice period to the other party.\r\n\r\nThe parties can also expressly agree on the compensation that will be payable where either party terminates the contract for an invalid reason.  This is an amendment to Article 77 which also stipulates that where compensation is not agreed in the contract then the sum will be the employee’s wages equivalent to 15 days’ for each year of service in the case of indefinite term contracts and the wages for the remainder of the contract period in the case of fixed term contracts.  In either case, the default compensation sum must not be less than two months’ wages.  The right to claim reinstatement as a remedy is removed altogether by the amendments to Article 78.\r\n\r\nThese changes will bring much needed certainty to termination costs where these are agreed beforehand by the parties and expressly stated in employment contracts.  Where it is not possible to agree on the compensation beforehand, employers will still be in a better position than they are now to assess termination on commercial grounds.\r\n\r\n<strong>10.  Termination of employment: summary termination for unauthorised absence</strong>\r\n\r\nThe amendments increase the number of days that the employee has to be absent from work without a valid reason before he can be dismissed summarily under Article 80(7).  The employee will need to be absent for 30 aggregate days in a year or more than 15 consecutive days.  Currently, the employee must be absent for more than 20 aggregate days in a year or more than 10 consecutive days.  This change will make it more difficult for employers to manage workplace absences and can only be intended as a social measure to narrow the gap in employee rights in the public and private sector.\r\n\r\n<strong>11. Payment of wages</strong>\r\n\r\nArticle 90 is amended to require employers to pay wages through approved banks in the Kingdom.  This is to enable the government to monitor compliance with its Wage Protection System which is a cornerstone of its revised Nitaqat (Saudisation) policy.\r\n\r\n<strong>12. Hours of work</strong>\r\n\r\nArticle 101 is amended to increase the total number of hours that an employee can be required to remain at the place of work from 11 to 12 hours per day.  This may be subject to further amendment if the proposal to limit the weekly working hours to 40 hours per week over 5 days (which is to be considered again this year by the Shoura Council) is accepted by the Council of Ministers.\r\n\r\n<strong>13. Increased leave entitlements </strong>\r\n\r\nThe amendments have increased paid leave entitlements in the following cases:-\r\n<ul>\r\n 	<li>Marriage leave – this is increased from 3 to 5 days;</li>\r\n 	<li>Compassionate leave – this is increased from 3 to 5 days (in the case of a Muslim woman whose spouse dies her leave period is increased from 15 days to the full Iddah period of four months and 10 days and in the case of a non-Muslim woman her period of leave will remain unchanged at 15 days); and</li>\r\n 	<li>Paternity leave – this is increased from 1 to 3 days.</li>\r\n</ul>\r\n<strong>14. Changes to maternity leave</strong>\r\n\r\nArticle 151 is amended to give women more flexibility in taking their maternity leave entitlement.  Female employees have the discretion to distribute as they see fit their entitlement to four weeks paid leave immediately preceding the expected date of delivery and six weeks following it.  They also have the right to extend their maternity leave by one month on an unpaid basis. These changes give women the right to ten weeks’ paid annual leave with the option to take a further four weeks unpaid leave.  Additionally, if a woman gives birth to a disabled or ill baby whose condition requires a full time carer then she will be entitled to an additional month of paid maternity leave at the end of the ten weeks’ paid delivery leave and will be able to avail herself of one month’s unpaid leave too.  Therefore, she will have fourteen weeks’ paid leave with an optional four weeks unpaid leave available to her.\r\n\r\n<strong>15. Labour violations and workplace inspections</strong>\r\n\r\nThe MOL’s work inspection capability is improved by the amendments which allow it to utilise qualified non-Ministry staff to perform inspections and authorise inspectors to impose an immediate fine and to produce minutes and reports of an inspection and not merely provide advice and guidance, as is currently the case.\r\n\r\nThere are also changes to the penalties that can be imposed for labour violations so that these now include financial penalties of up to SAR 100,000 and closure of the business for a period of no more than 30 days (or permanently in some cases).  Additionally, businesses need to remedy the violation within a specific period and if they fail to do so or reach agreement with the MOL to settle the penalty then it will be deemed to be a new violation and presumably subject to further penalty.\r\n\r\nFinally, there is an incentive of a reward of up to 25 per cent of the collected fine imposed by the MOL to those who assist in the detection of labour law violations.\r\n\r\n<strong>Conclusion </strong>\r\n\r\nOn balance, the amendments should be welcomed by employers as they provide greater flexibility in managing employees; particularly when terminating employment.  The introduction of a new ground for dismissal on the permanent closure of an establishment or cessation of a work activity will give employers some clarity and certainty when dealing with redundancies.  The doubling of the probationary period will provide for a more reasonable time frame for employers to assess the suitability of an employee and to do so without liability where employment is terminated in that period.\r\n\r\nFar more exciting is the possibility of agreeing a compensation sum where contracts are terminated for an invalid reason; which has the potential for reducing significantly, if not altogether, the risk of unlawful termination claims being brought by employees.  It will be interesting to see how the MOL intends for this to work in practice and whether the judiciary will accept the contractual terms entered into by the parties; notwithstanding the obvious imbalance that will exist in the bargaining power of the parties at the outset.  Less welcome are the changes to the notice period for terminating indefinite contracts and the increased powers that will be available to the MOL to carry out workplace inspections and to address labour violations.\r\n\r\nThe amendments will come into force six months from their publication in the official gazette and therefore are expected to be implemented on 24th October 2015.'),
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(95883, 5207, 'content', 'August 2015\r\n\r\n<hr />\r\n\r\nIt was recently announced in the press that (i) the Shura (Advisory) Council in the State of Qatar (the “State”) voted to revoke the law governing public procurement (Law No. 26 of 2005 (as amended by Law No. 22 of 2008 and Law No. 14 of 2010)) (“Procurement and Auctions Law”) and (ii) the Cabinet, chaired by Prime Minister and Interior Minister, HE Sheikh Abdullah bin Nasser bin Khalifa Al Thani, has reviewed and taken steps to pass the draft law recommended by the Shura Council.  Along with a complete overhaul of the existing law, the draft law proposes numerous changes to streamline and standardise the public procurement process in Qatar.  The changes are expected to provide more clarity to the public procurement process through the development of uniform guidelines.\r\n\r\n<strong>The Current Position</strong>\r\n\r\nUntil there is legislative change, all public departments, corporations, agencies or entities funded in whole or in part by the State of Qatar remain subject to the Procurement and Auctions Law, which excludes from its scope the armed forces, the police force and Qatar Petroleum.  The law requires that the procurement of goods, commercial contracts, service contracts and contracts for works must be concluded through a tendering process, which may be classified as either local, general (open) or restricted.\r\n\r\nUnder the current law, the Central Tenders Committee (CTC) and the Local Tenders Committee (LTC) facilitate the tendering process in Qatar, with the CTC processing all public tenders relating to contracts exceeding QAR 5,000,000 in value and the LTC processing all public tenders valued at QAR 5,000,000 or less.  All public tenders valued at QAR 5,000,000 or less must be concluded through local tenders in which case only commercially registered suppliers, service providers and contractors in Qatar (having Commercial Registration with the Ministry of Economy and Commerce) may participate.\r\n\r\n<strong>The Anticipated Changes</strong>\r\n\r\nThe proposed amendments will require each ministry to establish its own tender committee.  Each tender committee will comprise representatives from the Ministry of Finance and the Diwan Audit Bureau.  The new law will consist of 38 articles which will create uniform public tendering guidelines.  These uniform guidelines will be implemented by each individual tender committee, will be designed to protect and preserve state (public) funds and will require a higher level of disclosure than provided under the current law.\r\n\r\nOther notable changes:\r\n<ul>\r\n 	<li>First priority will be given local and national products followed by the products from the Gulf countries.</li>\r\n 	<li>Maximum monetary ceilings on public tenders will be removed.</li>\r\n 	<li>Tenders valued at QAR 900 million or higher can be awarded to foreign entities provided there is the presence of a Qatari partner.</li>\r\n 	<li>Three categories will be established with regard to tenders by the Public Works Authority (ASHGHAL): (i) tenders open only to Qatari companies and individuals; (ii) tenders valued at QAR 200 million or higher will be open to participation by foreign entities provided the presence of a Qatari partner; and (iii) tenders valued at QAR 900 million or higher will be open to participation by foreign entities provided that the foreign entities contain a Qatari component or affiliation.</li>\r\n 	<li>Upon the cancellation of a tender, tender bonds will be returned within 7 days to bidders.  Likewise, upon the award of a tender, tender bonds will be returned to the unsuccessful bidders within 7 days.</li>\r\n 	<li>The State is authorised to impose conditions, specifications and define mechanisms required to execute contracts. The State is also authorised to impose penalties under the contracts without commencing legal proceedings in the courts.</li>\r\n 	<li>Bidders may be prevented from withdrawing their bids after submission and penalties may be imposed on bidders seeking withdrawal.  If a bidder is awarded a contract and wishes to withdraw or refuses to sign the contract or issue the required bond, then the relevant public entity may impose penalties as specified in the law.</li>\r\n 	<li>The entitlement of public entities to increase or decrease quantities of goods, works or services at a required rate not exceeding 20% of the contract value provided for in the current law will also be permitted by the new law.  However, additional conditions must be met for the right of variation to be applied.  In some circumstances, the percentage may be increased beyond 20% but this will be subject to the tender committee’s recommendation and the application must follow the process specified in the new law.</li>\r\n 	<li>In the event a contracting company or joint venture dissolves, the State may have the right to terminate the contract. In some circumstances, the State may elect to continue the contractual relationship, after dissolution of a joint venture, if certain conditions are met.</li>\r\n 	<li>The Shura Council supports the view that government entities must not compete with private companies in relation to tenders and auctions in order to support foreign investments and strengthen the private sector in Qatar.</li>\r\n</ul>\r\n<strong>Conclusion</strong>\r\n\r\nThe proposed law is a welcome development as it promises to decentralize the existing procurement process and replace it with a more efficient framework by creating tendering committees in the various ministries and governmental departments who will administer their own tenders.  Once the law is enacted, the ministries and governmental departments will play a more involved role in the public procurement process than previously which should also serve to curb excessive government spending.'),
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(95905, 5208, 'content', 'August 2015\r\n\r\n<hr />\r\n\r\nDissenting from its pro-arbitration stance, the Egyptian Court of Cassation decision dated 12 May 2015 upheld a relatively anti-arbitration interpretation of Article 1(2) of the Egyptian Arbitration Law which reads as follows:\r\n\r\n“With regard to disputes relating to administrative contracts, agreement on arbitration shall be reached upon the approval of the competent minister or the official assuming his powers with respect to public juridical persons. No delegation of powers shall be authorized in this respect”. [emphasis added]\r\n\r\nPrior to analyzing the said decision, it is worth clarifying that under Egyptian law a contract is administrative if three conditions are fulfilled. First, at least one of the parties to the contract must be a public juristic person (i.e. the State, public institutions and professional bodies) or if all the parties are private persons, at least one of the parties must be acting on behalf of a public juristic person. Secondly, the contract must be pertinent to the functioning of a public utility. Thirdly, the contract must comprise an “onerous” clause or condition from the public law (for example the possibility for the contracting authority to terminate the contract). The most common examples of administrative contracts are concessions of public utilities agreements, public works contracts, and supply contracts.\r\n\r\nHistorically, there have been two opposing interpretations for the aforementioned Article 1(2) of the Egyptian Arbitration Law, one of which is a pro-arbitration one and in line with the doctrines of good faith and estoppel, and one which is not (yet appears to be in conformity with the legislator’s intent).\r\n\r\nThe first interpretation, which has been honoured by some arbitral tribunals and applied in several CRCICA cases, considers that the absence of the ministerial approval would not lead to the annulment of the arbitration agreement but solely to the disciplinary liability of the official who consented to the arbitration agreement without obtaining such approval.\r\n\r\nThe second interpretation, as adopted by the Administrative Courts of the Conseil d’Etat, is that the absence of ministerial approval causes the annulment of the arbitration agreement enshrined in an administrative contract.\r\n\r\nThere were justified hopes that the Ordinary Judicial Courts, whose commercial chambers are known for their pro-arbitration approaches, would adopt a stance different from the Conseil d’Etat’s conservative position. Unfortunately, the winds do not blow as the vessels wish.\r\n\r\nThe ruling of the Court of Cassation relates to a dispute between National Gas Company (“NGC”) and the Egyptian General Petroleum Corporation (“EGPC”) arising out of a contract from 1999 by which NGC was under the obligation to provide certain areas of Sharkia Governorate with natural gas. The dispute was settled by an arbitral award rendered according to CRCICA rules in the case No 567/2008. The arbitral tribunal rejected EGPC’s plea against its jurisdiction and stated that the obligation to obtain the ministerial approval of the arbitration clause lies on the administrative entity (i.e. EGPC). Therefore, the failure to obtain such approval shall not cause the nullity of the arbitration clause.\r\n\r\nEGPC initiated setting aside proceedings invoking the nullity of the award based on the absence of the Petroleum Minister’s approval. On 12 September 2009, Cairo Court of Appeal rendered a decision annulling the award. NGC challenged the said decision of the Cairo Court of Appeal before the Court of Cassation. The statement of challenge before the Court of Cassation (“Statement of Challenge”) was based, among other things, on the following grounds:\r\n\r\nFirst, NGC contended that (i) the Minister of Petroleum had approved the arbitration clause pursuant to two addendums to the agreement dated 6 January 1999, by which he ratified EGPC’s assignment of its rights and obligations under the disputed contract, including its arbitration clause, to the Egyptian Natural Gas Holding Company (“EGAS”).\r\n\r\nThe Court of Cassation rejected this argument for lack of evidence since NGC had failed to enclose the disputed contract and its addendums with its Statement of Challenge. The Court of Cassation finding in this regard is in conformity with Article 255 of the Egyptian Code of Civil and Commercial Procedures which should be carefully considered by parties when filing appeals before the Court of Cassation in civil and commercial matters.\r\n\r\nSecondly, NGC invoked the aforementioned pro-arbitration interpretation of Article 1(1) of the Egyptian Arbitration Law according to which the conclusion of the contract, by EGPC’s Chairman, is sufficient to validate the arbitration clause without need for further ratification by the Minister of Petroleum. NGC further affirmed that the arbitration clause should be given effect according to the principle of good faith and the “Appearance Theory”.\r\n\r\nThe Court of Cassation rejected NGC’s position. The Court stated that whenever it becomes impossible for the judge to infer the legislator’s intent from the plain wording or the indications of a statutory provision, the judge may have to consider extrinsic elements like preparatory works for the law, historical sources and the legal rationale behind the provision. Further, the Court of Cassation reiterated its definition of Public Policy which has constantly been affirmed:\r\n\r\n“Rules aiming to achieve a public interest, whether political, social or economic, pertaining to the society’s high order and which prevails over the individual’s interest”.\r\n\r\nThe Court of Cassation referred to the Preparatory Works for the law No. 9/1997 and found that the legal rationale of the law was to resolve a pre-existing  controversy over the arbitrability of administrative contracts through a conclusive statutory provision leaving no room for  opposing opinions and which explicitly “validates the agreement to arbitrate in administrative contracts, determines the administrative authority entitled to ratify such agreement  in order to regulate and ensure that the agreement to arbitrate complies with public interest considerations” . Such balancing of public interest and agreement to arbitrate in administrative contracts is entrusted to “the competent minister or the official assuming his powers with respect to public juridical persons which are not subordinated to any ministry like the Accounting Central Authority”.\r\n\r\nAccordingly, the Court of Cassation concluded that “the validity or nullity of the arbitration clause based on the exclusive approval of the competent minister is a public policy rule since it has been enacted for a public interest thereby permitting both parties to a contractual relation to invoke the nullity” of the arbitration clause whenever the competent minister’s approval has not been granted.\r\n\r\nFinally, NGC contended that the challenged decision of the Cairo Court of Appeal should be quashed for lack of reasoning and violation of the right of defence as it rejected the documented arguments evidencing the implicit approval of the competent minister which is inferred from the attendance of the Minister of Petroleum to the contract signing ceremony and EGPC’s enforcement of two arbitral awards in the cases No. 400/2004 and 490/2006 settling other disputes arising out of the same contract without invoking the absence of the ministerial approval.\r\n\r\nThis was rejected by the Court of Cassation. The Court of Appeal has a discretionary power to assess whether there has been a tacit approval or implicit ratification even if the challenged decision has not addressed some immaterial documents.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nConservatism in this area is not exclusive to Egyptian law. Indeed, under French law the non-arbitrability of administrative contract disputes is the rule and their arbitrability is the exception.\r\n\r\nThe source of such restrictions may be found in public international law, where public acts of nation states (jure imperii) enjoyed immunity from adjudication by foreign courts.\r\n\r\nThe added value of this important decision resides in the predictability and certainty of the rule of law governing the arbitrability of administrative contract disputes.\r\n\r\nThe Egyptian Court of Cassation has confirmed the precedents of the Conseil d’Etat that without Ministerial approval arbitration clauses in administrative contracts are ineffective, and any award made as a result of them will be annulled. Persons who are negotiating administrative contracts to be entered into with Egyptian public bodies must therefore be vigilant should they wish to select arbitration as the means of resolving any future dispute with the Egyptian State or any other Egyptian public juristic person. Written approval of the competent minister must be obtained on or before the date of signature of the administrative contract.'),
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(95927, 5209, 'content', 'August 2015\r\n\r\n<hr />\r\n\r\nDIFC property laws and regulations apply to all real property located within the jurisdiction of the DIFC. Dubai real property laws are not applicable within the DIFC and the Dubai Lands Department has no authority within the DIFC even though the DIFC is geographically located within the Emirate of Dubai. Therefore, the procedures adopted by the Dubai Lands Department and the Real Estate Regulatory Authority do not apply to properties located within the jurisdiction of DIFC.\r\n\r\nThe DIFC has also established the office of the Registrar of Real Property (the “Registrar”) which is responsible for approval and registration of all types of transactions relating to real property located within the DIFC in accordance with the DIFC property laws and regulations. The Registrar maintains a register of all properties and any property in the DIFC must be registered with the Registrar in accordance with all applicable DIFC property laws and regulations.\r\n\r\n<strong>1. Mortgages in the DIFC</strong>\r\n\r\nReal property or an interest in real property (i.e. apartments, lofts, commercial units, etc) in the DIFC may be mortgaged except for partial lots (i.e. part of an apartment or part of a commercial unit). The mortgage must include a sufficient description of the property, identify the interest that is to be mortgaged and include a description of the debt or liability that is secured by the mortgage. The mortgage is then required to be registered with the Registrar and post registration will receive a unique registration number in accordance with the order of the registration of the mortgage.\r\n\r\nDIFC property laws and regulations also provide that a person who is in the course of acquiring an interest in real property may apply to the Registrar for an official search for the respective property which will provide details of any registered interests in the property.\r\n\r\n<strong>1.1  Units where no title deeds have been issued</strong>\r\n\r\nTitle deeds are not issued for all properties in the DIFC and the issuance process for individual units has commenced very recently. Therefore, during this interim phase for units where no title deed is issued, the purchaser is required to register an interest in the unit purchased pursuant to a caveat which is registered with the Registrar. The Registrar issues a “No Objection Letter” (“NOL”) which confirms the registration of the purchaser’s interest in a particular unit. However a NOL is not a substitute to a title deed.\r\n\r\nIf such a unit for which no title deed is issued is to be mortgaged, the customer’s lender will register its interest (as mortgagor) by filing a caveat form and paying the applicable fees to the Registrar. The Registrar will issue an NOL to the lender and the customer until the issuance of the title deed of the relevant unit confirming the registration of each party’s interest.\r\n\r\nThe effect of a caveat is that, with certain exceptions, it prevents the registration of an instrument affecting the property or interest in respect of which the caveat is lodged. Caveats should be filed as soon as a person or entity gains a relevant interest in a property. The caveat in favour of the lender will remain until the title deed has been issued. Once the title deed has been issued, the lender should file a withdrawal of caveat form and pay the applicable fees. The title deed for the unit will be issued once the lender removes its caveat and the same will be issued noting the mortgage in favour of the lender.\r\n\r\n<strong>1.2  Mortgage registration for properties where title deeds have been issued</strong>\r\n\r\nIn scenarios where the title deed for a unit has been issued, the customer does not need to register a caveat. If such a unit is to be mortgaged, the customer’s lender will register the interest as mortgagee by filing a mortgage form and paying the applicable fees.\r\n\r\n<strong>2. Requirements for registration of mortgages in the DIFC</strong>\r\n\r\nMortgage registration must be completed by the mortgagee, who has a mortgage interest in real property located in DIFC, to establish a mortgage in a particular property.\r\n\r\n<strong>2.1  Perfection of a mortgage for units for which no title deed is issued</strong>\r\n\r\nThe following documents are required for registration:\r\n<ul>\r\n 	<li>a copy of the financing agreement between the mortgagee and the mortgagor;</li>\r\n 	<li>a caveat form signed and stamped by the mortgagor (caveat form no. 42); and</li>\r\n 	<li>a mortgage registration form signed and stamped by the mortgagor (mortgage form no. 19). This document will be recorded upon registering the strata plans for the same development, i.e. when the title deed for the unit is ready to be issued.</li>\r\n</ul>\r\nThe payments required for such units are:\r\n<ul>\r\n 	<li>lodgement of caveat fee USD 100 (AED 367.50);</li>\r\n 	<li>conventional mortgage registration fee of USD 100 (AED 367.50); and</li>\r\n 	<li>Islamic Mortgage Registration fee USD 273 (AED 1,004).</li>\r\n</ul>\r\n<strong>2.2  Perfection of a mortgage for units for which no title </strong><strong>deed has been issued</strong>\r\n\r\nThe following documents are required for a unit for which no title deed has been issued:\r\n<ul>\r\n 	<li>a copy of the financing agreement between the mortgagee and the mortgagor; and</li>\r\n 	<li>a mortgage registration form signed and stamped by the mortgagor (mortgage form no. 19).</li>\r\n 	<li>The payments required for such units are:</li>\r\n 	<li>conventional mortgage registration fee of USD 100 (AED 367.50); and</li>\r\n 	<li>Islamic Mortgage Registration fee USD 273 (AED 1,004).</li>\r\n</ul>\r\n<strong>3. Rights of a Mortgagee in the DIFC</strong>\r\n\r\nDIFC property laws and regulations provides that real property or a registered interest in real property may be mortgaged by registering a mortgage; sub-mortgages and second and subsequent mortgages are also capable of registration. However, subsequent mortgages require the consent of the existing prior mortgagee(s).\r\n\r\nFurther, in order to sell or transfer mortgaged property, the Registrar requires the consent (written and in accordance with the registered mortgage) or a discharge of the mortgagee on any registered property in order to transfer the title. Therefore, the customer would be restricted in selling the property without the mortgagee’s written consent having been provided to the DIFC.\r\n\r\nUnless otherwise provided for in the mortgage, a registered mortgagee of real property has the following implied powers on default by the mortgagor:\r\n<ul>\r\n 	<li>to sell the whole or part of the real property or any interest in the real property by whatever means the mortgagee considers appropriate, including by tender, public auction or private contract;</li>\r\n 	<li>to sever fixtures from the real property and sell them;</li>\r\n 	<li>to sell any easement, right or privilege of any kind over or in relation to the real property;</li>\r\n 	<li>to enter into possession of the real property and receive the rents and profits from it; and</li>\r\n 	<li>to foreclose.</li>\r\n</ul>\r\nHowever it is important to note that there is limited information in relation to any foreclosed properties and therefore limited precedent to rely upon.\r\n\r\n<strong>4. DIFC Court Enforcement Proceedings</strong>\r\n\r\nThe DIFC property laws and regulations provide that a registered mortgagee is entitled to foreclose a mortgaged property in accordance with the DIFC property laws and regulations. In the event of a default under the financing agreement, the mortgagee can commence proceedings for foreclosure or for possession of the property in the DIFC court by filing a claim form in accordance with the agreed method of notice of court proceedings under the financing agreement.\r\n\r\nOne of the advantages of DIFC court proceedings is that under the Rules of the DIFC court, there is a mechanism whereby the mortgagee (as the claimant) may seek an immediate judgment against the defendant if it believes that the defendant has no real prospect of successfully defending the claim and there is no other compelling reason why the case or issue should be disposed of at trial.'),
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(95283, 5175, 'content', 'June - July 2015\r\n\r\n<hr />\r\n\r\nWhile this might not be an entirely accurate impression, the increase in the availability and use of drones in the UAE raises a number of legal issues. In this article, we explore the legal landscape and some of the key issues around the use of drones, whether in a recreational or commercial capacity.\r\n\r\nIn 2014, Sheikh Mohammed bin Rashid Al Maktoum, Prime Minister and Vice President of the United Arab Emirates and Ruler of Dubai, launched the Drones for Good award to encourage the use of drones in the service of people. Subsequently, entities from both the government and the private sector have been working on a variety of projects involving drones.\r\n\r\nDrones are increasingly being used for surveillance purposes. Dubai Customs is reported as using drones to track suspicious vessels in Dubai Creek. Separately, there are reports of investment in the use of drones to collect hard-to-reach data, such as environmental data. New York University Abu Dhabi students won the Drones for Good Award for the ‘Wadi Drone’, which collects data in regions where deploying communications infrastructure would damage the natural habitat or present a risk to human safety.\r\n\r\nThe use of drones is not limited to commercial projects. The recreational use of drones has become widespread in the UAE, which has led to problems. We have seen news reports of air traffic at airports being halted because of recreational drones being flown in the flight paths of planes by members of the public.\r\n\r\nResidents have voiced concern over private citizens flying drones equipped with audio/visual recording capabilities over residential areas. Whether or not in response, the sale of recreational drones was banned in Abu Dhabi, pending the introduction of formal rules.\r\n\r\n<strong>Laws regulating drones in the UAE</strong>\r\n\r\nThere are various laws and regulations that apply to the use of drones in the UAE. We summarize some of the key laws below.\r\n<ul>\r\n 	<li>Civil Aviation Regulations - The Civil Aviation Regulations issued by the General Civil Aviation Authority generally apply to air transportation and safety. The Civil Aviation Regulations prohibit any ‘man-made object’ from flying above a height of 200 feet above ground level within 8 kilometers of an airport, or 300 feet above ground level elsewhere within the UAE unless approved by the Emirate Department of Civil Aviation.</li>\r\n 	<li>‘New’ draft law – In February 2015, a draft law was released. It is reported that the draft law provides a detailed regulatory framework for drones, including placing restrictions on where drones can be flown, how high drones can be flown, and the purposes for which drones can be used.</li>\r\n 	<li>Penal Code –  The Penal Code prohibits the publication, without consent, of pictures pertaining to an individual’s private or familial life. The Assistant Director General of the Department of Transport and Rescue of the Dubai Police has been reported as saying that “flying drones fitted with cameras in residential areas is a punishable offence as per the [Penal Code]”.</li>\r\n 	<li>Cyber Crimes Law – The Cyber Crimes Law contains prohibitions similar to those in the Penal Code. Specifically, the Cyber Crimes Law prohibits the use of information technology devices to invade the privacy of others by recording audio/visual materials and saving/publishing photographs without legal authorization.</li>\r\n</ul>\r\n<strong>Things to consider </strong>\r\n\r\nAgainst this background, it is important to consider the issues below with regard to the use of drones - whether in a commercial or recreational capacity:\r\n<ul>\r\n 	<li>There Are Restrictions As To Where Drones Can Fly - Drones may not be operated within a certain radius of an airport, for example.</li>\r\n 	<li>Drones Are Not Easy To Fly – Drone operators must apply an appropriate level of skill and care because drones (or any flying object for that matter) are not generally easy to control and inexperience may result in damage or injury resulting in subsequent claims for compensation under various provisions of the law.</li>\r\n 	<li>Privacy is an essential consideration – The more common drones become, the more important it is for drone operators to be aware of the potential legal consequences of their actions (the penalties for breaching the Penal Code prohibition and Cybercrimes Law prohibition mentioned above generally include a fine and/or imprisonment and may also include confiscation of the drone and any other associated equipment).</li>\r\n</ul>\r\nThe rapid increase in the use of drones within the UAE makes it an area of growing concern and interest. Its development brings new legal challenges making it a “hot topic”. Users of drones should educate themselves in order to ensure that they are in compliance with all the relevant laws and regulations.\r\n\r\nAl Tamimi &amp; Company’s Technology, Media &amp; Telecommunications team regularly advises on issues relating to new technologies. For further information on laws relating to drones, or other issues relating to new technologies, please contact Nick O’Connell (n.oconnell@tamimi.com) or Sana Saleem (s.saleem@tamimi.com).'),
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(95298, 5176, 'content', 'June - July 2015\r\n\r\n<hr />\r\n\r\nHowever the actual wording of the exemption needs to be properly understood.  The “exclusion” may not mean what you think it means.\r\n\r\nAs previously reported, a specific competition law (Federal Law no. 4 of 2012 Concerning Regulating Competition) (“Competition Law”) came into effect in the UAE on 23 February 2013.\r\n\r\nThe Competition Law aims to protect and enhance competition and to combat monopolistic practices in the UAE by regulating abuse of dominant position, prohibiting restrictive agreements and providing for merger controls.\r\n\r\nThe Competition Law has yet to become fully effective, however, as further executive regulations or cabinet decisions are still required to prescribe critical aspects of the law including:\r\n<ul>\r\n 	<li>The market  share threshold for the definition of dominant position;</li>\r\n 	<li>The market share threshold for the “weak-impact agreement” exception to the restrictive agreement provisions; and</li>\r\n 	<li>The controls for excluding small and medium establishments.</li>\r\n</ul>\r\nUntil these key issues are clarified, the full extent of the effect of the Competition Law cannot be completely understood.\r\n\r\nParticipants in certain major industry sectors may have considered themselves unaffected by this uncertainty.  This is because the Competition Law states that the sectors and activities specified in the appendix attached to the Competition Law are excluded from the execution of the provisions of the Competition Law (see Article 4(1) of the Competition Law).\r\n\r\nThe affected  sectors and activities are as follows:\r\n<ul>\r\n 	<li>Telecommunications sector.</li>\r\n 	<li>Financial sector.</li>\r\n 	<li>Cultural activities (written, audio, visual).</li>\r\n 	<li>Gas and petrol sector.</li>\r\n 	<li>The production and distribution of pharmaceutical products.</li>\r\n 	<li>Postal services, including express mail services.</li>\r\n 	<li>Activities related to the production, distribution and transport of electricity and water.</li>\r\n 	<li>Activities of drainage, garbage disposal, sanitation and similar activities in addition to the supporting environmental services.</li>\r\n 	<li>Land, sea and air transport sectors and transport by railways and related services.</li>\r\n</ul>\r\nMost of the above-listed industry sectors are prone to the occurrence of “natural” monopolies (i.e. a type of monopoly that exists as a result of the high fixed or start-up costs of operating a business in a particular industry, which creates a barrier for the entry of competitors). At first glance, therefore, exempting these sectors from regulation under the Competition Law appears odd.\r\n\r\nMore careful reading of the Competition Law (and its annex in particular) is required.\r\n\r\nWhat the annex to the Competition Law states (in its English translation) is  as follows:\r\n\r\n<em>Any agreement, practice or business related to a certain commodity or service of which another Law or regulation has granted the responsibility of organising the competition rules thereof to sectoral regulatory bodies shall be exempted from the application of the provisions of this Law  .... </em>\r\n\r\nThe annex then goes on to state that such exemptions “shall include” the sectors, activities and services that are expressly listed in that annex.\r\n\r\nDoes this mean that the listed the sectors and activities are exempted outright from the Competition Law? Or does it mean that they are exempted only because another law or regulation has granted the responsibility of regulating competition in that sector to a sectoral regulatory body?\r\n\r\nFor example, in the UAE’s telecommunications sector, Federal Law no. 3 of 2003 Regarding the Organization of the Telecommunications Sector, as amended (“Telecommunications Law”) established the Telecommunications Regulatory Authority (“TRA”) as the competent authority to oversee the telecommunications sector in the UAE and to issue regulations, instructions, decisions and rules regulating and ensuring competition in the telecommunications sector (Article 14(1) of the Telecommunications Law).\r\n\r\nIt is, therefore, clear cut that the telecommunications sector is exempt from the provisions of the Competition Law. Yet under the Telecommunications Law the TRA’s competence to regulate and ensure competition in the telecommunications sector is stated to be “without prejudice to the applicable law and regulations”. So arguably the TRA’s regulation of competition still has to be consistent with the Competition Law.\r\n\r\nIn other sectors the legal position may be less clear.\r\n\r\nThe Medicines Pricing and Companies Committee, which fixes the price of medicines and pharmaceutical preparations, was established under Federal Law no. 4 of 1983 concerning Pharmaceutical Professions and Institutions (“Pharmacy Law”).  In addition, the price for selling imported and local drugs to the public is to be calculated in accordance with Articles 2 and 3 of Federal Ministry of Health Resolution\r\nno. 838 of 2008. The Ministry of Health also keeps the price of generic drugs manufactured in the UAE under review, favouring price reductions to assist poorer patients and ensure affordability.\r\n\r\nThe Pharmacy Law and the Ministry of Health resolutions described above clearly give the Medicines Pricing and Companies Committee and the Ministry of the Health the responsibility to regulate the prices for pharmaceuticals products, but this is not the same as having responsibility for organising the competition rules for the sector.\r\n\r\nAccordingly, participants who produce and distribute pharmaceutical products in the UAE may not simply be able to presume that they have a complete exemption from the Competition Law in relation to activities not expressly regulated by Pharmacy Law (e.g. agreeing with competitors to divide territories, allocate customers, to limit production or to boycott customers could be subject to the prohibitions in the Competition Law).\r\n\r\nWith regard to the rail sector, a draft regulating law (Federal Law Draft no. 999 of 2011) was issued. This expressly gives the National Transport Authority competency for all issues of economics in the railway sector (including regulating competition).  As that law has not been enacted, does this mean there is no law or regulation that has granted the responsibility of organising the competition rules for the rail sector to National Transport Authority (and so the exemption of the rail sector from the Competition Law is not effective) or is the National Transport Authority the sectoral regulatory body as it is generally empowered to manage “the affairs relating to transport” (see Cabinet Decision no. 502 of 2006)?\r\n\r\nThe point is this: it may not be sufficient to assume that, simply because your sector is listed in the annex to the Competition Law, you are entirely exempt from the provisions of the Competition Law.  Your sector could only be exempt due to another law or regulation giving the responsibility of regulating competition in your sector to a sector specific regulatory body.  In that case, even though the provisions of the Competition Law do not directly apply, other sector specific competition rules will.'),
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(95313, 5177, 'content', 'June - July 2015\r\n\r\n<hr />\r\n\r\nOnline copyright infringement has been a common occurrence for nearly 20 years, and the quality of pirated videos is getting increasingly better, with many of these videos streamed in HD or 1080p. With the introduction of paid streaming services such as Netflix and Hulu, the entertainment industry is hopeful that infringement of such copyrighted television shows and movies will decrease, but the likelihood that these paid services will significantly curb online copyright infringement is something we will have to wait to see.\r\n\r\nIt can be argued that the music industry lost the battle to piracy and online copyright infringement, banking on CD sales instead of transitioning to online digital media for too long. Nowadays, the situation has slightly improved with music that is readily available to be bought on sites such as iTunes, Spotify, and Amazon. Unfortunately, however, it took the music industry too long to realize this lesson. It is increasingly important for intellectual property right owners of television shows and movies to know how to protect their products. Production companies and the like need to adapt and understand their customers, and work around copyright infringement by providing consumers what they want, when they want, and in the form they want it in. This means providing shows online instantaneously.\r\n\r\nHowever, that may require time, effort and money, and copyright infringement of television shows is constantly ongoing, whether by everyday people on YouTube or through expansive streaming websites. As an owner of intellectual property rights, it is extremely important to stop infringement when it occurs, or else the cycle of infringement will continue to grow. Fortunately for copyright owners, big corporations that may unknowingly host infringements are more than willing to cooperate.\r\n\r\nFor example, Apple, Inc. will respond to complaints about copyright infringement within a few days (for example if there is an app on iTunes that is pirating videos), and works with the copyright owner to take down the infringer and the infringing material.\r\n\r\nIf the copyrighted material is streamed on or through a major hosting site, the first step is to file an online complaint. As previously mentioned, one can file a complaint with Apple, Google, Microsoft, YouTube, etc. The complaint should ask for basic information including: the copyright owner’s name and contact details, the location of the infringement (e.g. URL), a description of the material being infringed and the location of the owner’s website if it contains the copyrighted material.\r\n\r\nOnce a complaint form is submitted, the hosting site sends an automated holding message. However, within a few days, an actual representative should contact the right’s owner and asks for more details. After providing proof of ownership (usually a registration or evidence that your company owns the television show), the hosting site contacts the other party. Some websites put the two parties in contact and take a back seat, while other websites contact the infringing party directly requesting that they take down the infringing material. When a company is put in contact with the other company, it is important to have the legal representative send a cease and desist letter or a legal notice demanding the infringer take down the copyrighted material. With small, no-name infringers, that method is usually very effective.\r\n\r\nUnfortunately, not every complaint is addressed that efficiently and conclusively. Occasionally, the hosting website does not find that the material is being infringed, and other times the infringer refuses to cooperate and litigation may ensue. Ultimately, however, the general process is not a tedious one. Too many copyright owners assume that an online complaint form will not amount to anything. To the contrary, large internet corporations are very strong advocates of protecting a true owner’s intellectual property rights and do not want to be hosts to copyright infringements. The proof is on the internet, where at one point or another, most people have seen that well-known message online on YouTube claiming a video is no longer available and has been removed due to copyright infringement; this shows that these corporations take intellectual property infringement seriously.\r\n\r\nReform of the entertainment industry to prevent copyright infringement will take time, and the likes of Netflix and iTunes will help, but in the meantime it is important to continually enforce against copyright infringement to deter users from posting and pirating more videos.'),
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(95332, 5178, 'content', 'June - July 2015\r\n\r\n<hr />\r\n\r\nDuring the Abu Dhabi Executive Council meeting held on 7 May 2015, His Highness Sheikh Mohammed bin Zayed Al Nahyan, Crown Prince of Abu Dhabi and Deputy Supreme Commander of the UAE Armed Forces, gave a directive establishing a new anti-corruption unit to focus on combatting corruption, reflecting the UAE government’s commitment to corporate governance, transparency and accountability and taking the UAE a step closer to a new anti-corruption law.\r\n\r\n<strong>Corruption and its impact</strong>\r\n\r\nCorruption may be defined as “the abuse of entrusted power for private gain” (Transparency International (www.transparency.org)), which includes private sector corruption as well as corruption by public officials.\r\n\r\nIt is well-known that the recent economic growth of the UAE is largely based on a business-friendly environment that attracts substantial foreign investment.  Although corruption is not a widespread phenomenon in the UAE, it is unrealistic to think that this influx of funds and investors will not bring with it an element of dishonest and corrupt practices, which are found in every society to varying degrees.\r\n\r\nCorruption costs a society in a number of ways, including: financially, diminishing public trust, unwillingness by citizens to participate in society, and unfair competition.  These effects of corruption contribute to the creation of an unattractive prospect for the honest majority of foreign investors.\r\n\r\nThe UAE, and in particular the emirate of Dubai, has adopted a project called the “Smart Government Plan”, which would transform all the governmental authorities’ services into e-services.  In addition to the benefits in service that this system brings, it should also help to diminish the possibility of petty corruption.\r\n\r\nThere have been several other initiatives and efforts undertaken by the UAE government, which have been aimed at containing corruption, such as:\r\n<ul>\r\n 	<li>The UAE has the least burdensome tax compliance regulations in the region, significantly reducing the costs and corruption risks for companies when registering a business in the country.</li>\r\n 	<li>The procedures to obtain an operating licence are straightforward and publicly available in all emirates.</li>\r\n 	<li>Anti-corruption, anti-money laundering and anti-fraud legislation is evenly enforced, thus providing a strong deterrent against future illegal acts.</li>\r\n 	<li>The State Audit Institution has drawn up an anti-corruption law.  The law will be discussed in the Cabinet and the Federal National Council and then submitted to the Federal Supreme Council for ratification.</li>\r\n</ul>\r\nHowever, the UAE still faces challenges in combating corruption, which include:\r\n<ul>\r\n 	<li>Market competition in the UAE could be improved.  Foreign companies still have to rely on local sponsorship and the widespread involvement in the economy of a small number of large families provides for an uneven playing field.</li>\r\n 	<li>Information on business and political corruption in the UAE is scarce, making an accurate estimation of the extent of corruption very difficult.</li>\r\n 	<li>There are no civil society organisations working with anti-corruption in the UAE, and there is a scarcity of reports on the issue.</li>\r\n 	<li>The absence of financial disclosure laws for public officials makes the effective implementation of anti-corruption policy difficult.</li>\r\n</ul>\r\n<strong>Anti-Corruption Unit</strong>\r\n\r\nThe decision to establish a specialised department in the UAE to combat corruption is considered one of the main cornerstones that would assist in the continuing development of the country, limiting the chances of corrupt individuals to hinder such growth.\r\n\r\nThe new anti-corruption unit will be established within the Abu Dhabi Accountability Authority (“ADAA”).  The ADAA was established by virtue of Abu Dhabi Law no. 14 of 2008, with its primary objectives being to:\r\n<ul>\r\n 	<li>Ensure Public Entities’ resources and funds are managed, collected and spent efficiently, effectively, economically and ethically.</li>\r\n 	<li>Ensure the accuracy of financial reports and compliance by Public Entities with the relevant laws, rules, regulations and governance guidelines.</li>\r\n 	<li>Promote accountability and transparency across all Public Entities.</li>\r\n 	<li>The tasks of the new anti-corruption unit would include:</li>\r\n 	<li>Investigating financial irregularities and corruption.</li>\r\n 	<li>Identifying gaps in legislation and internal audit regulations.</li>\r\n 	<li>Auditing the government’s consolidated financial statements and Subject Entities’ financial statements.</li>\r\n</ul>\r\nThis development is in line with the UAE’s commitment under the 2005 United Nations Convention Against Corruption, which states at Article 6 that:\r\n\r\n<em>“Each State Party shall, in accordance with the fundamental principles of its legal system, ensure the existence of a body or bodies, as appropriate that prevent corruption.”</em>\r\n\r\nFurthermore, the function of the new unit also reflects adherence by the UAE to the first official Arab anti-corruption instrument, the Arab Convention to Fight Corruption (“Arab Convention”), which was signed on 21 December 2010 by 21 Arab countries, including the UAE.  The preamble of the Arab Convention affirms that combatting corruption is a must, and that it is not limited to the official authorities - people and civil society have a crucial role to play.  Article 10 of the Arab Convention stipulates that:\r\n\r\n<em>“Each State Party shall, in accordance with its laws, lay down, implement and consolidate effective and coordinated policies to prevent and fight corruption. This shall include the strengthening of community participation and the application of the principles of the rule of law, good administration of public affairs and property, integrity, transparency and accountability.”</em>\r\n\r\n<strong>Conclusion</strong>\r\n\r\nIt is clear that the UAE is heading in the right direction when it comes to dealing with corruption.  Transparency International’s Corruption Perception Index saw the UAE increase its score from 68 in 2012, to 69 in 2013 and to 70 in 2014.  This puts the UAE at 25 out of 175 countries, making it the country with the lowest corruption perception index in the GCC.\r\n\r\nThe UAE has taken a step closer to fulfilling its commitments to tackle corruption by the announcement of the new anti-corruption unit.  We await further developments in this area with interest, to discover whether a new anti-corruption law and other initiatives see the UAE rise further in the ranks of countries where the government is committed to reducing corruption.'),
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(95336, 5178, 'content_description', 'Although crimes that constitute corruption are already penalised under existing UAE law (the UAE Federal Penal Code contains anti-bribery provisions and the Federal Human Resources Law also contains relevant provisions), the UAE government has recognised a need for specific and up-to-date anti-corruption legislation.'),
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(95361, 5179, 'content', 'June - July 2015\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">Recent volatility in listed share values has again highlighted weaknesses in the KSA capital market when the Tadawul All Shares Index nose dived following plummeting oil prices.  Many market commentators remarked that the extent of the dive was, to a large extent, unjustified.</p>\r\n<p class=\"MsoNormal\">Unlike most other stock exchanges, the vast majority of significant investors in Tadawul are local retail investors having short term goals underpinning their investment strategy.</p>\r\n<p class=\"MsoNormal\">In 2008 the Capital Market Authority (“<strong>CMA</strong>”) introduced equity swap arrangements where foreign investors could purchase only the economic benefit of listed shares for a defined period of time.  Swaps never attracted the level of investment the CMA hoped for mainly because they were cumbersome to implement and gave no underlying shareholder rights.</p>\r\n<p class=\"MsoNormal\">On 25/10/1435H (corresponding to 21/08/2014G), the CMA issued draft rules enabling certain qualified foreign institutions to directly access share trading on Tadawul for themselves and on behalf of their clients.  The CMA invited comments in regard to these draft rules.</p>\r\n<p class=\"MsoNormal\">The rationale behind opening up the Tadawul for direct foreign investment is largely the following:</p>\r\n\r\n<ul>\r\n 	<li>improvement in market stability and a reduction in pricing volatility;</li>\r\n 	<li>an increase in local expertise of financial markets;</li>\r\n 	<li>encourage listed entities to raise their overall performance;</li>\r\n 	<li>improved corporate governance and transparency for listed entities; and</li>\r\n 	<li>lift the international rating of Tadawul.</li>\r\n</ul>\r\n<p class=\"MsoNormal\">The last point above is very important because it is envisaged that by mid-2017 Tadawul will be classified as an emerging market under global indices.  Should Tadawul achieve this status then many believe the resultant direct foreign investment will be in the region of USD50 Billion</p>\r\n<p class=\"MsoNormal\">Finally on 15/07/1436H (corresponding to 04/05/2015G), the CMA formally released the “Rules for Qualified Foreign Financial Institutions Investment in Listed Shares”, pursuant to Resolution Number 1-42-2015 (“<strong>Rules</strong>”).</p>\r\n<p class=\"MsoNormal\">The Rules became effective from 01/06/2015G with a planned live opening two weeks later and mark a significant move towards the long-awaited opening of the KSA capital markets to foreign investment.</p>\r\n<p class=\"MsoNormal\">Under the Rules, investors will be able to exercise shareholder rights that include voting, participation in appointing board members and trading in rights issues.  These rights were not present in equity swap arrangements.</p>\r\n<p class=\"MsoNormal\"><strong>Overview of Rules for Qualified Foreign Financial Institutions for Investment in Listed Shares</strong></p>\r\n<p class=\"MsoNormal\">The objectives of the Rules are the following:</p>\r\n\r\n<ul>\r\n 	<li>to set out the procedures, requirements and conditions for the registration of a qualified foreign investor (“<strong>QFI</strong>”) – (defined as a foreign investor registered with the CMA in accordance with these Rules to invest in listed shares);</li>\r\n 	<li>to set out the procedures, requirements and conditions for the approval of QFI clients to invest in listed shares; and</li>\r\n 	<li>to specify the obligations of KSA registered securities businesses in their dealings with a QFI.</li>\r\n</ul>\r\n<p class=\"MsoNormal\"><strong>Eligibility for Registration as a QFI</strong></p>\r\n<p class=\"MsoNormal\">Broadly speaking, in order to qualify as a QFI, an applicant must satisfy each of the following criteria:</p>\r\n\r\n<ul>\r\n 	<li>be a bank (including a central bank), brokerage/securities firm, fund manager or insurance company and must be duly licensed or otherwise subject to regulatory oversight and incorporated in a jurisdiction that applies regulatory and monitoring standards equivalent to those of the CMA;</li>\r\n 	<li>have assets under management of at least USD5 Billion, subject to discretionary reduction by the CMA to USD3 Billion; and</li>\r\n 	<li>have been engaged in securities and investment related activities for at least five years.</li>\r\n</ul>\r\n<p class=\"MsoNormal\">The Rules do not apply to nationals and companies of States that are members of the Cooperation Council of the Arab States of the Gulf as these persons may invest directly in KSA listed shares.</p>\r\n<p class=\"MsoNormal\"><strong>Authorised Assessing Person</strong><strong> </strong></p>\r\n<p class=\"MsoNormal\">An application for registration as a QFI must be made by submitting an application in the prescribed form to an assessing authorised person (“<strong>AAP</strong>”).  An AAP must be a KSA registered securities business licensed to conduct securities dealing activity and authorised by the CMA to review, process and submit to the CMA the application by a foreign applicant to become a QFI.</p>\r\n<p class=\"MsoNormal\">The AAP will not approve the assessment unless the applicant agrees to enter into a QFI Assessment Agreement that meets the minimum requirements specified in the Rules.</p>\r\n<p class=\"MsoNormal\">As an additional condition, where an applicant intends to invest in listed shares on behalf of one or more of its clients, an application for approval of the client(s) in question as approved QFI clients must be made by submitting an application in to an AAP.</p>\r\n<p class=\"MsoNormal\"><strong>Approval of QFI’s Clients</strong><strong> </strong></p>\r\n<p class=\"MsoNormal\">A QFI can invest in listed shares on behalf of clients where the client has itself been approved in accordance with the Rules.</p>\r\n<p class=\"MsoNormal\">Broadly speaking, in order for a QFI client to be approved, the following must be considered:</p>\r\n\r\n<ul>\r\n 	<li>The QFI or the applicant must be responsible for the management of the client funds when invested in listed shares;</li>\r\n 	<li>The client is neither a QFI nor approved QFI client of another QFI; and</li>\r\n 	<li>The client is either:</li>\r\n</ul>\r\n<p class=\"MsoListParagraph\">(a)   an investment fund incorporated in a jurisdiction that applies regulatory and monitoring standards equivalent</p>\r\n<p class=\"MsoListParagraph\">        to those of the CMA; or</p>\r\n<p class=\"MsoListParagraph\">(b)   a financial institution that meets each of the eligibility criteria that are applicable to the QFI itself.</p>\r\n<p class=\"MsoNormal\">In order to become a QFI client, various pieces of documentation are required to be submitted to the AAP.  The overall process to become registered as a QFI or QFI client is expected to take around 11 days from the time the AAP receives the necessary documentation.</p>\r\n<p class=\"MsoNormal\">Interestingly there are no CMA registration fees planned for 2015 although the CMA will review this for 2016.  The agreement between an AAP and the QFI will details what the agreed fee structure is between these two entities.</p>\r\n<p class=\"MsoNormal\"><strong>Commencement of Trading</strong><strong> </strong></p>\r\n<p class=\"MsoNormal\">A QFI cannot commence trading or invest in any listed shares unless it:</p>\r\n\r\n<ul>\r\n 	<li>holds a client account;</li>\r\n 	<li>holds an account with the Depository Centre; and</li>\r\n 	<li>has satisfied any conditions as may be imposed by the CMA.</li>\r\n</ul>\r\n<p class=\"MsoNormal\">While not clear in the Rules, it is expected that QFIs will be able to have direct access to Tadawul via an electronic platform provided by the AAP and able to buy/sell KSA listed shares.  The trading times for listed shares on Tadawul are 11am to 3.30pm Sunday to Thursday (excluding official holidays).</p>\r\n<p class=\"MsoNormal\">To facilitate trading on the Tadawul, the Saudi Arabian Monetary Agency (KSA Central Bank) has issued a circular to all KSA licensed banks introducing a new rule that will permit KSA banks to open accounts for QFI’s after certain documentary and other requirements are met.</p>\r\n<p class=\"MsoNormal\"><strong>Investment Limits</strong></p>\r\n<p class=\"MsoNormal\">Investments of QFIs and approved QFI clients will be subject to various limitations including:</p>\r\n\r\n<ul>\r\n 	<li>Each QFI (together with its affiliates), or approved QFI client (together with its affiliates) may own a maximum of 5% of the shares of any issuer whose shares are listed;</li>\r\n 	<li>The maximum proportion of the shares of any issuer whose shares are listed that may be owned by QFIs and approved QFI clients is 20%;</li>\r\n 	<li>The maximum proportion of the shares of any issuer whose shares are listed that may be owned by all foreign investors (in all categories, whether residents or non-residents) in aggregate is 49%, including interests under swaps; and</li>\r\n 	<li>The maximum proportion of the shares of all issuers whose shares are listed that may be owned by QFIs and approved QFI clients in aggregate is 10% by market value, including any interests under swaps.</li>\r\n</ul>\r\n<p class=\"MsoNormal\"><strong>Continuing Obligations</strong></p>\r\n<p class=\"MsoNormal\">As a general rule, a QFI and QFI clients must comply with the relevant provisions stated in the Capital Market Law and its Implementing Regulations, as well as the rules and regulations of Tadawul as well as other relevant laws.</p>\r\n<p class=\"MsoNormal\">In addition to the above, the following requirements must be met:</p>\r\n\r\n<ul>\r\n 	<li>A QFI must continue to engage an AAP for as long as it remains registered as a QFI – (i.e. the QFI must have an executed and valid QFI Assessment Agreement with the AAP);</li>\r\n 	<li>If the QFI Assessment Agreement lapses or is terminated, then the QFI must engage a replacement AAP within ten days, with notification to be provided to the CMA; and</li>\r\n 	<li>A QFI must meet specific disclosure and reporting requirements specified in the Rules and must upon request by the CMA, provide it with any information, documents or written explanations without delay.</li>\r\n</ul>\r\n<p class=\"MsoNormal\">KSA taxation will apply including a 5% withholding by the listed company on dividend payments.</p>\r\n<p class=\"MsoNormal\"><strong>Disputes</strong></p>\r\n<p class=\"MsoNormal\">A KSA quasi-judicial committee known as the Committee for the Resolution of Securities Disputes will have jurisdiction over any public or private dispute that falls under the Capital Market Law (including implementing regulations) and any regulations, rules and instructions issued by the CMA and/or Tadawul.</p>\r\n<p class=\"MsoNormal\"><strong>Conclusion</strong></p>\r\n<p class=\"MsoNormal\">The world’s financial commentators and participants will no doubt watch with keen interest on how things play out on the KSA Stock Market over the coming months – with a key indicator being the fluctuations in Tadawul.</p>\r\n<p class=\"MsoNormal\">Many global institutions are positioning themselves to capitalise on the envisaged opportunities presented by the opening up of the largest Middle Eastern capital market.</p>'),
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(95386, 5180, 'content', 'June - July 2015\r\n\r\n<hr />\r\n\r\nIn the Gulf Co-operation Council (“GCC”) countries governments have implemented state pension schemes for the benefit of their employed citizens. However, not all of those who are entitled to participate in the state pension schemes in their country are registered and therefore not all eligibale employees benefit from the scheme. Whilst there are a number of reasons for this the primary reason appears to be lack of knowledge about the statutory obligations by individuals and employers alike. This article seeks to set out the statutory obligations on employers and employees based in the United Arab Emirates (“UAE”). Different rules apply in the other GCC countries (and for UAE national employees working in Abu Dhabi).\r\n\r\n<strong>Background</strong>\r\n\r\nThe UAE Federal Pensions and Social Security Law No.7 of 1999 (as amended) (the “Pensions Law”) governs pension provision for eligible UAE nationals. The Pensions Law was effectively supplemented on 1 January 2007 by the introduction of the GCC Pensions Resolution [Federal Cabinet Resolution 18 of 2007] (the “Resolution”), which obliges the registration of all non-UAE GCC nationals (hereinafter “GCC nationals”) employed in the UAE for pension in accordance with the schemes established in their home countries. The Pensions Law and Resolution apply equally throughout the UAE to all employers, including the various free zones in the UAE.\r\n\r\nAs a result of the Pensions Law and Resolution, every qualifying UAE and GCC national working in the UAE should be registered by their employer with the General\r\n\r\nPensions and Social Security Authority (“GPSSA”), the federal body responsible for administering UAE state pensions. In respect of GCC nationals, the GPSSA acts as a conduit for remitting contributions paid by employers and employees to the state pension authority in the employee’s home country.\r\n\r\n<strong>Eligibility</strong>\r\n\r\nOnly UAE national employees who hold a ‘family book’ are entitled to be enrolled in the GPSSA pension scheme and are therefore not entitled to receive end of service gratuity . Those UAE nationals who are ineligible for registration are entitled to receive an end of service gratuity payment (or be registered with a qualifying company pension scheme) in accordance with the UAE labour law.\r\n\r\nIn contrast, GCC nationals qualify for registration solely based on their nationality and the ability to prove this - there is no requirement to provide a family book or equivalent.\r\n\r\n<strong>Registration </strong>\r\n\r\nIn order to register employees, an employer must register itself with the GPSSA and on doing so will be provided a registration number, akin to an account or identification number. Concurrently, employees will also receive an individual registration number upon first registration which will remain with the employee during his entire working life.\r\n\r\nEligible employees must be registered within one month of the date of commencement of their employment. Accordingly, where employers enter into an employment contract with an UAE or GCC national employee, it is worth the employer giving thought at that stage to the Company’s registration status. If the employer is not already registered with the GPSSA, perhaps because the employer has not previously employed UAE or GCC nationals, it is useful to begin the registration process as early as possible to avoid delaying the employee’s registration.\r\n\r\nLate registration may attract penalties in the form of late fees and other fines. Penalties are assessed on a case by case basis by the GPSSA (acting where necessary on behalf of the relevant pension authorities in the other GCC countries. Where the penalties relate to late registration of a GCC national, the relevant state pension authority will determine the applicable fines and will communicate this to the GPSSA who will in turn seek to recover these from the employer.\r\n\r\n<strong>Payment of Contributions</strong>\r\n\r\nOnce an employee is registered with the GPSSA, the employer is responsible for paying contributions to the employee’s fund. The level of contribution, together with any applicable caps, vary and depend on the employee’s nationality as different GCC states have different contributions requirements. In addition to contributions made by the employer, employees are also required to contribute to their own fund. Again, the amount required is dependent upon the employee’s nationality due to the varying contribution requirements. The obligation falls on the employer to ensure that the employee’s contribution, in addition to its own, is collected and paid on time. Employers are permitted to deduct the employee’s contribution from their salary on a monthly basis in order to remit the relevant payment to the GPSSA along with its own contribution. <strong> </strong>\r\n\r\n<strong>Opt-out and End of Service Gratuity (“ESG”)</strong>\r\n\r\nAs set out above, it is compulsory to register UAE and GCC national employees for their relevant state pension schemes and the laws do not provide for an opt-out of pension contributions even where the employee consents.\r\n\r\nThe Pensions Law and Resolution are silent in respect of the relationship between the state pension scheme and ESG. However, UAE court judgments establish that an employee can choose to receive a pension or ESG payment (whichever is more beneficial to the employee), but not both. Notwithstanding that, the relevant court judgments apply to the relationship between pension and ESG for expatriate employees. Moreover, it is generally accepted that, pursuant to the Pensions Law and Resolution, pension contributions should be made on behalf of eligible UAE and GCC nationals.\r\n\r\nAs a result of the lack of obligation on employers to pay pension contributions for expatriate employees into the state pension scheme, the obligation to pay ESG arises. Paying ESG to UAE and GCC nationals will not satisfy the obligations set out in the Pensions Law and Resolution. Therefore, paying ESG to UAE and/or GCC nationals who qualify for participation in the state pension scheme is unlikely to extinguish the liability in respect of pensions.\r\n\r\nUltimately, ESG and the state pension scheme run alongside one another (with ESG being paid to eligible expatriates and non-eligible UAE nationals and pension contributions applying to eligible UAE and GCC national employees) and are not substitutes.\r\n\r\n<strong>Non-compliance and Limitation of Claims</strong>\r\n\r\nWhere pension contributions are paid late, the GPSSA may impose fines against the employer which are calculated at the daily rate of 0.1% of the contributions payable for each day that the contributions are overdue. Similarly, where an employer has failed to register employees with the GPSSA, the employer can be fined AED 5,000 per employee.\r\n\r\nThe Pensions Law and Resolution do not provide a time bar for claims. Effectively, the result is that an employer’s failure to register an employee and pay contributions to the state pension scheme and any pursuant liabilities are not extinguished by lapse of time or any other circumstances. It is therefore possible that an employee who was not registered during the course of employment with the employer to make a valid claim for contributions either directly or via the GPSSA.\r\n\r\n<strong>State Pension in Abu Dhabi</strong>\r\n\r\nWhilst the Pensions Law and Resolution have federal remit, the Emirate of Abu Dhabi has a separate pension law, the Civil Pensions and Benefits in the Emirate of Abu Dhabi Law No. 2 of 2000, and a separate authority, the Abu Dhabi Retirement and Pensions Fund (“ADRPF”), which manages pensions on behalf of Abu Dhabi based and employed UAE nationals. The ADRPF does not manage the pensions on behalf of GCC nationals and this responsibility still lies with the GPSSA.\r\n\r\nSimilar considerations and obligations to those outlined above and continue to apply in Abu Dhabi. The main difference is in terms of liability for non-compliance. Essentially, late payment of contributions will attract fines of AED 100 per day and the ADRPF may apply unspecified fines for non-registration or late registration, where the time limit for registration of individuals is 10 days.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThe summary of an employer’s legal and compliance obligations and liabilities for failure to register do not make for easy reading. There is a quiet effort by the authorities to identify employers who have not registered their eligible employees. The recent introduction by the UAE Ministry of Labour of rules requiring employers to first contact the GPSSA for exiting UAE nationals is largely designed to identify errant employers who have failed to register their employees and therefore not paid relevant contributions.\r\n\r\nThis concerted effort will only intensify in the future, and in light of the potential liabilities on employers for failure to comply, it is recommended that all employers ensure that their eligible employees are registered as soon as possible.'),
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(95401, 5181, 'content', 'June - July 2015\r\n\r\n<hr />\r\n\r\n<strong>I. Introduction</strong>\r\n\r\nThe New Law will become effective on 1 July 2015 (“Effective Date”) and will replace UAE Federal Law No. 8 of 1984 (“Existing Law”).  The New Law’s provisions as regards company structure and governance have been well documented. Developments relevant to financing transactions have received less attention but include provisions on: (i) corporate power and authority; (ii) regulation of Islamic banks; (iii) lending to board members; (iv) requirements in respect of directors interested in transactions; (v) financial assistance; (vi) pledges of shares in limited liability companies (“LLCs”); (vii) related party transactions; and (viii) application of provisions relating to public joint stock companies (“PJSCs”) to LLCs.  This article covers some of the key developments relevant to financing transactions.\r\n\r\n<strong>II. Power &amp; Authority</strong>\r\n\r\nCapacity and authority are problematic under the Existing Law because there is no statutory provision bestowing core powers upon a company.  It is therefore usual for financial institutions to require resolutions of the shareholders of a company to approve a transaction, where the requisite powers are not explicitly granted in the constitutional documents.  Many had hoped that the New Law would introduce a default level of corporate powers, but this has not materialised.  Instead the New Law has a focus on implied powers and refers to an authorized individual acting in a “usual manner” and “within the usual limits”.  This change in focus is unlikely to yield any lighter requirement in terms of establishing corporate capacity in financing transactions. Article 49, which applies to Joint Liability Companies, but its provisions could be applied by analogy as a guide to what would be considered ‘usual’, specifically notes that securing third party obligations and mortgaging of the company’s assets would be outside usual management.  This is expressed to be the case even if the manager was authorised to sell property under the company’s Memorandum of Association.  It would therefore seem that capacity and powers cannot be implied and a detailed review of constitutional documents will continue to be required, with shareholder resolutions obtained where necessary.\r\n\r\n<strong>III. Pledge of Shares in LLCs</strong>\r\n\r\nThe New Law has enhanced the framework for financing UAE companies, as regards taking security over shares (or quota) in LLCs.  Article 79 of the New Law allows for the transfer or pledge of a partner’s share in a company to an existing partner or a third party.  Such a transfer or pledge must be executed in accordance with the company’s Memorandum of Association before a notary public and registered with the commercial register of the relevant emirate.  The Dubai Economic Department has been accepting and registering pledges of LLC shares over the past 2 years.  While the New Law clarifies the position on the pledging of shares in an LLC, it remains subject to implementation by the Economic Departments of the other emirates.\r\n\r\nLLCs should anticipate that lenders may now require a pledge of shares as part of their security package and lenders will need to be mindful that emirates besides Dubai may require some time before the procedure for registration is clearly established.  Lenders and borrowers alike would be wise to review existing powers of attorney and authorisations to ensure that they cover entry into and registration of share pledges.\r\n\r\n<strong>IV. Financial Assistance</strong>\r\n\r\nFinancial assistance is generally seen as a company providing direct or indirect assistance to a person who is or becomes a shareholder, in connection with their acquisition of shares in the company.  The Existing Law was silent on this subject.  The New Law restricts a company and any of its subsidiaries from providing financial aid to any shareholder for the purchase of any shares, bond or Sukuk issued by the company.  Financial assistance is widely defined under Article 222 and includes providing (i) loans; (ii) gifts or donations; (iii) the assets of the company as security; and (iv) a security or guarantee of the obligations of another person.\r\n\r\nIn many other jurisdictions where equivalent restrictions on financial assistance exist, the legislation typically prescribes a process to override the restriction in certain circumstances.  The New Law, however, does not contemplate such a process, meaning that, on the face of it, the prohibition is absolute. This could be problematic for companies at the time of a share acquisition, as no security for, or guarantee in respect of, any financing could be granted by the target company or its subsidiaries (which is a common requirement in financings connected with share acquisitions).\r\n\r\nThere may be an argument that Article 222 does not apply to LLCs, as LLCs do not have shares and cannot issue bonds or sukuks. Similarly, the New Law is unclear on whether future transactions, for example those which refinance funding provided in connection with a share acquisition, would be subject to the Article 222 restriction. There will no doubt be further analysis and developments in respect of this provision of the New Law.\r\n\r\n<strong>V. Related Party Transactions</strong>\r\n\r\nThe New Law also introduces the concept of related party transactions. Related parties are defined by the New Law as (i) companies in which a director, chairman, senior executive manager or employee holds at least 30% of the share capital and (ii) subsidiary, associated and sister companies.  Article 152 prohibits a person from utilizing information they possess due to their membership or occupation to achieve any interest for themselves or a third party as a result of dealing in securities and any other transactions.  While this is similar to restrictions on insider trading in western jurisdictions, the ambit of this article appears broader, as “other transactions” are not defined.\r\n\r\nSecurities are defined by the New Law as: (i) shares issued by joint stock companies; (ii) derivatives and investment units as approved by the UAE Securities &amp; Commodities Authority (“SCA”); (iii) bonds, Sukuk and bills issued by the Federal Government or the Local Governments or by the public authorities or establishments in the State; (iv) bonds, Sukuk or any debt tools issued by companies in accordance with such regulation issued by the UAE Central Bank (“Central Bank”) and the SCA; and (v) any other local or foreign securities acceptable to the Central Bank and the SCA.\r\n\r\nAdditionally, related party transactions that exceed 5% of the company’s share capital require board and shareholder approval.  The New Law also states that such transactions shall be evaluated by an assessor approved by the SCA (though there is no information on who may be the assessor or how they are appointed).  Given the overlapping relationships and prevalence of multiple family businesses and corporate appointments in the UAE, this will likely be a significant point for companies to take into consideration and develop systems to show segregation of interests and independent decision making.\r\n\r\n<strong>VI. Loans to Directors</strong>\r\n\r\nThe New Law introduces restrictions on loans, guarantees and securities to directors of PJSCs.  Article 153 provides that a PJSC “may not provide any loans to any director, execute guarantees or provide any securities in connection with any loans” granted to a director.  Furthermore, a loan granted to a director’s spouse, child or relative up to the second degree will be deemed to be granted to a director.\r\n\r\nIn addition, Article 153 also states that loans may not be granted to companies where a director, director’s spouse, child or relative holds over 20% of the share capital of such company. Any agreement in contravention of this article is stated as being invalid and auditors will be expected to report upon the extent of this kind of transaction and the company’s compliance with Article 153.\r\n\r\nThis article is of particular interest to banks because, unlike the Existing Law, the New Law does not have an express carve out from this prohibition as regards loans made by banks to their directors. On the face of it, there is therefore a mismatch between the New Law and the provisions of Union Law No. 10 of 1980, which permits banks to lend money to their directors in certain circumstances.  We anticipate that there will be further developments in relation to the interaction between these two laws.\r\n\r\nArticle 368 sets out the penalties for (i) directors who violate Article 153 by obtaining loans, guarantees or securities for themselves or relatives up to the second degree and (ii) the senior officers (including chairmen, directors, executive officers and general managers) who authorize the provision of such loans, guarantees or securities.  Under Article 368 the penalty is imprisonment of no more than three months and/or a fine of between AED 100,000 and AED 500,000\r\n\r\n<strong>VII.  Application of Joint Stock Company Provisions</strong>\r\n\r\nArticles 84 and 104 of the New Law are of particular significance.  Article 84 states that the provisions that apply to directors of joint stock companies apply equally to the managers of LLCs.  Additionally, Article 104 provides that the provisions of the New Law applicable to joint stock companies apply equally to LLCs.  Accordingly, amongst other things, Articles 152 and 153 (discussed above) would appear, on a strict interpretation of the New Law, to apply to managers of LLCs and LLCs. In addition, the limitations under article 154 (which prohibit certain actions by the board without express power in the company’s articles or a special resolution of the General Assembly) would also, on the face of the New Law, apply. The effect of these articles is a significant change for LLCs and their managers and they would be well advised to ensure they review and understand their obligations under the New Law.\r\n\r\n<strong>VIII.  Compliance</strong>\r\n\r\nThe New Law instructs existing companies to comply with its provisions by one year from the Effective Date (“Grace Period”), noting that the Grace Period may be extended.  Notwithstanding other specific penalties prescribed under the New Law, Article 374 states that if a company fails to make the necessary changes in order to comply with the New Law, the company shall be dissolved in accordance with the provisions of the New Law.  Article 374 does not distinguish between significant and technical breaches of the New Law and this will likely be a point for further consideration and perhaps secondary legislation.'),
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(95407, 5181, 'pageSummary', 'UAE Federal Law No. 2 of 2015 (“New Law”) governing commercial companies in the UAE was recently enacted, being published in the Federal Gazette dated 31 March 2015.'),
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(204116, 5181, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Renata Rai'),
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(95422, 5182, 'content', 'June - July 2015\r\n\r\n<hr />\r\n\r\nThe legislation will fill a large gap in a key area of capital market activity in Oman and practitioners in other financial centres will find it familiar reading.\r\n\r\n<strong>The Principles</strong>\r\n\r\nThe Rules enshrine the principles of fair and equal treatment of shareholders, full and accurate disclosure and the prohibition of false markets in the shares of offeree and offeror alike.  It is noteworthy that the Rules will be passed as binding legislation rather than in the form of a code or set of principles to loosely abide by.\r\n\r\n<strong>Mandatory Offers</strong>\r\n\r\nA party will be required to launch a takeover offer in circumstances where it has acquired 25% or more of a company’s share capital or following a stakebuilding exercise in that company.  While the CMA may in quite exceptional circumstances grant a waiver to make a formal offer, crossing the 25% threshold will trigger a requirement to announce a takeover and bind the acquirer to make a formal bid for the company’s share capital.\r\n\r\nTo reduce disruption to the target’s business caused by an impending takeover, the Rules require mandatory takeovers to be completed within 60 days from the date the offer document was sent to the shareholders.\r\n\r\nAs in other jurisdictions, mandatory offers which are subject to various conditions are not permitted; the only condition that is permitted is the requirement to obtain a certain percentage of acceptances for the acquirer to gain control of the target.\r\n\r\n<strong>Recommended Offers</strong>\r\n\r\nThe Rules recognise that takeover rumours affect the share price of an offeree.  Where there has been an unusually high level of trading in its shares, an announcement must be made informing the market of discussions which may or may not lead to a takeover.  Monthly progress announcements will need to be made until such time as either a takeover offer has been confirmed or negotiations are terminated.\r\n\r\nOnce a takeover has been agreed by the respective boards, the Rules require an immediate announcement to the market and accordingly the bid team of both the offeror and offerree will need to be very well prepared because once an announcement has been made, withdrawing an offer will generally not be permitted.  Following announcement the offeror is required to post an offer document to the offeree’s shareholders and complete the takeover within 74 days from posting.\r\n\r\n<strong>Non - Rcommended Offers</strong>\r\n\r\nThe Rules cater for takeovers which are considered by the target’s board to be hostile or unwelcome. The defence document is used by the target’s board to persuade the offeree’s shareholders that the offer is not in their best interests. Action undertaken with the aim of frustrating the takeover by making the target less attractive (such as selling assets or issuing new shares) is not permitted without the approval of the target’s shareholders.\r\n\r\n<strong>Blackout Period</strong>\r\n\r\nIn an attempt to settle the offeree’s business, takeover offers which fail at the negotiation stage or for lack of shareholder acceptance will subject the offeror to a 12 month blackout period during which no further approaches or substantial share acquisitions are permitted. Persons acting in concert with the offeror will also be covered by the blackout.\r\n\r\n<strong>Practical Effect of the Rules</strong>\r\n\r\nCompanies on the Muscat Stock Exchange generally have a relatively small shareholder base and are likely to have a limited number of major shareholders with some minority investors.  While the Rules are sufficiently comprehensive, they do not contain a mechanism to sweep up a small minority which could create problems for an offeror if that minority is resistant to the takeover or is simply holding out for a better price for their shares.\r\n\r\nAdditionally, sanctions for failing to comply with the Rules are limited. The rationale for this perhaps being that takeovers are undertaken for commercially strategic reasons; offeree shareholders benefit by receiving value for their shares and offeror shareholders benefit by acquiring a business and assets. The shareholders are generally aware of the risks and rewards at stake, have the ability to vote on the merits of the offer and merely require a body to supervise the procedure to allow the offeree shareholders to make an informed decision on whether to accept or reject the offer. Whether the CMA intervenes to enforce the Rules will depend on whether both sides play fair and recognise that the ultimate purpose of the Rules is to provide fair and equal treatment to all shareholders.'),
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(95426, 5182, 'content_description', 'The Capital Market Authority of Oman (“CMA”) has published draft legislation governing the takeover of publicly listed Omani companies (“the Rules”). '),
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(95428, 5182, 'pageSummary', 'The Capital Market Authority of Oman (“CMA”) has published draft legislation governing the takeover of publicly listed Omani companies (“the Rules”).'),
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(95437, 5183, 'content', 'June - July 2015\r\n\r\n<hr />\r\n\r\nThe financing of mega projects, in a country that has suffered economic hardship in the past few years, is a challenging objective. Surprisingly to many critics, who were skeptical at the time, Egypt has successfully sourced funding for the first part of the development project (expansion of the Canal) by resorting to the local market. A reported $8.5 billion has been secured within eight days. Investments came directly from the Egyptian market and both retail and institutional investors participated. The financing structure used was fairly simple, yet had attractive returns. Five-year investment certificates with a 12% interest rate, paying quarterly dividends (first distribution received by investors) came in 10, 100 and 1,000 Egyptian pound ($1.40-$140) denominations sold by local banks to investors.\r\n\r\nAn important question will be whether Egypt can expect to rely on similar funding structures for the remainder of its major projects announced during the Egyptian Economic Development Conference held in Sharm El- Sheikh during March 2015.\r\n\r\nThe answer is a simple no, in our view. The Egyptian government is well aware of this and has indicated the types of financial structures it is considering.\r\n\r\nThe five-year macroeconomic strategy and the draft budget summary of Egypt announced by the Egyptian government highlighted promoting investment and public private partnerships (PPPs) as one of the key structures for financing upcoming projects. In addition, continued debt instruments and taxation and revenue reforms would permit the government to continue spending to facilitate, but not undertake, numerous projects in the pipeline. On the PPP side, the Egyptian government announced a potential pipeline of up to an estimated E£28 billion in the coming two years. These projects will be adopted using structures available under the Egyptian PPP Law issued in 2010. The government has also announced that it will continue to manage standard project finance related investor concerns, through a series of measures, including providing sovereign guarantees as reasonably required. With participation of foreign investors, including international financial institutions, such pipeline projects can be realised and will be an important step in the right direction.\r\n\r\nDespite Egypt’s overall debt position, the government must continue to spend strategically in specific social sectors to facilitate the completion of infrastructure projects. Conventional debt instruments, and the associated legal structures alone are no longer sustainable options.\r\n\r\nThe financing of Egypt’s aggressive projects’ pipeline will require a lot more involvement at the private sector level both locally, and by securing more foreign investment.\r\n\r\nWith the legislative reform agenda having been launched, including the so-called Unified Investment Law provisions (Law 17 of 2015), a pool of financing structures will need to be considered on both the debt and equity sides. These will include Islamic finance options, structured finance and hybrid debt and equity finance options.\r\n\r\nOur recommendation would be to focus more on equity finance options, whether in PPP-structured projects or even in projects not structured under the umbrella of conventional PPPs. Consideration can be given to launching greenfield initial public offerings for some of the projects announced not only strictly covered under the PPP Law which requires multi-structure components. Public, retail and institutional investors, could be attracted as partners in some upcoming projects rather than merely becoming creditors. All this remains a form of PPP, but can also be offered to the wider public rather than the investment certificated used to fund the Suez Canal project. This would encourage investors to seek long-term profit sharing for such important projects.\r\n\r\nResorting to convertible bonds could also be supportive in ultimately providing equity financing structures, once conversion is practised.\r\n\r\nBy all means, debt will continue to be an intrinsic component for financing Egypt’s future projects. However, introducing new diversified options is a pressing requirement that is recognised by the government.\r\n\r\nExperiences from foreign partners in terms of legal finance structures will also play a part in informing Egypt’s evolving funding needs. Dubai’s achievements in developing successful legal structures for finance options is a clear example. Advisors will therefore need to look beyond conventional finance structures and build on experiences adopted throughout the region.\r\n\r\n<em>This article first appeared in June 2015 edition of IFLR Magazine.</em>'),
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(95451, 5183, '_yoast_wpseo_metadesc', 'To kick-start mega development projects in Egypt, the Egyptian government is using one of Egypt’s cornerstone resources as a starting point: the Suez Canal, known as the New Suez Chanel Project. The project is due for completion on August 6 2015.'),
(95452, 5184, 'content', 'June - July 2015\r\n\r\n<hr />\r\n\r\nThis great weight is called civil servants.\r\n\r\nWith the number of public sector employees reaching 6.4 million, Egypt is among the top ranked countries in terms of the number of employees in the public sector.  The cost of wages for these civil servants is around EGP 126 billion per year (USD 16.5 billion).\r\n\r\nIn addition to the cost of wages, corruption and inefficiency have been major negative traits of the Egyptian public sector.  Unconfirmed anecdotal reports record that the average length of productive work performed by a public servant is as low as 27 minutes per day.  Most of the employees seem to take their jobs for granted.  They only leave it upon retiring at the age of 60 with a guaranteed pension and promotion is by seniority as a matter of practice.  The vast majority of university graduates used to wait willingly, without seeking a job at the private sector, until appointed by the government, which used to hire all of them without selecting those who were most qualified in terms of academic results or specialism in the fields of development needed.\r\n\r\nThe public sector has, until now, been regulated by legislation that is more than 37 years old (Law 47 of 1978 on the Civil Servants Employees of the State).\r\n\r\n<strong>New Era</strong>\r\n\r\nWith the series of events starting in January 2011, Egypt has changed.  A new Constitution was instated by an overwhelming majority in 2014.  The dynamics, economics, administration systems and technology in Egypt have evolved and are having an impact on how the affairs of the state will be run.  Public awareness has called for the reform of several sectors starting with the Civil Service.\r\n\r\nThe government has realised that it is bound to fight corruption in the public sector and there are several methods by which this can be done, including:\r\n<ul>\r\n 	<li>Reduce or suspend new hiring until the appropriate number of employees required in the public sector is reached;</li>\r\n 	<li>Train existing employees and enhance their qualifications;</li>\r\n 	<li>Change the basis of promotion from seniority to performance;</li>\r\n 	<li>Remove unqualified employees from leadership positions;</li>\r\n 	<li>Reduce the periods of assessment between levels to escalate skilled candidates;</li>\r\n 	<li>Promote government-to-government dealings to prevent citizens from submitting to corrupt officers; and</li>\r\n 	<li>Increase reliance on online services to reduce the interaction between public officers and citizens.</li>\r\n</ul>\r\nArticle 14 of the 2014 Constitution provides that citizens have the right to public posts based on qualification, without courtesy or intermediary.  Thus, the suspension of new hiring in the public sector should be only temporary during the reform process.\r\n\r\nWith the support of the government policy combating corruption and reforming the public sector, a specialised committee consisting of a variety of experts and related entities has concluded which best practices, as adapted to the Egyptian culture, should co-exist in one piece of legislation, to meet the objectives of this difficult time for Egypt.\r\n\r\n<strong>The New Law</strong>\r\n\r\nLaw 18 of 2015 on Civil Service has been freshly introduced by a Presidential Decree, introducing new measures that have long been resisted.\r\n\r\nThe period of probation for new hires has been extended to six months, with the right to terminate non-qualified candidates without need for any procedure other than a notice.  After the elapse of the six-month period, an employee with two consecutive weak performance reports could be transferred to another position, deprived of 50% of their salary or terminated.\r\n\r\nEmployees must now be promoted based on qualification rather than seniority.\r\n\r\nA retirement age of 50 years has been set.\r\n\r\nA new wage structure has been introduced.  The public servant’s wage has always been composed of two components; the base and the variable.  The base salary was approximately 25% of the employee’s salary and formed the basis of the pension and social insurance.  Thus, upon retirement or injury, what the employee received was too little to satisfy the simplest living expenses.  The reformed wages package under the new law increases the base salary to 75% of the total wage, in order to consequently increase the pension and social insurance.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nNew goals have now been set.  The challenges have started to be dealt with.  The government is convening workshops and training sessions to explain the new law and its impact on the public sector. The executive regulations draft is discussed publicly before issuance.  With a dynamic president and cabinet, there is hope to see positive turnarounds on the medium term.'),
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(95471, 5185, 'content', 'June - July 2015\r\n\r\n<hr />\r\n\r\nSpecifically Law 1 of 2015 (the “Amendment Law”) was issued which amended certain provisions of the Labour Law 14 of 2004 (the “Labour Law”).   Prior to the issuance of the Amendment Law, Article 66 of the Labour Law provided that employees’ wages be paid to the employees in one of the following ways:\r\n<ul>\r\n 	<li>To the employee directly within the working day and during working hours in the usual place of work or any other place to be approved by the Ministry of Labour and Social Affairs;</li>\r\n 	<li>By transfer to the employee’s bank account; or</li>\r\n 	<li>By payment to anattorney as appointed by the employee in writing.</li>\r\n</ul>\r\nHowever, under the Amendment Law, handing the wages to the employees or their attorneys is no longer an acceptable option; it is now a compulsory requirement to transfer the employees’ wages to the employees’ bank accounts.   Article (66) of the Labour Law has now been amended to provide that (i) wages and other benefits payable to employees must be paid in Qatari currency (ii) must be transferred to the employees’ bank account at one of the financial institutions operating in the State of Qatar thus permitting the employees to have access to their wages on the due date. Furthermore, employees recruited on annual or monthly wages should be paid at least once a month and wages of all other employees should be paid at least once every two weeks.\r\n\r\nBy way of further explanation, as per article 1 of the Qatar Central Bank Law 13 of 2012, financial institutions are defined as ‘any bank, insurance company, reinsurance company, investment company, finance company, exchange house, representation office, external unit and other financial institutions’ regulated and licensed by the Qatar Central Bank to conduct such banking and similar activities.\r\n\r\nAs a proactive step, on December 29 2014 the Qatar Central Bank issued a circular to all banks operating in Qatar instructing them to be ready to receive the wage files of their customers’ workers and process them through the Workers’ Wages Protection System no later than January 15 2015. The Bank has also made some enhancing technical changes on the Direct Credit and Debit System (QATCH) to facilitate the implementation of the Workers’ Wages Protection System.\r\n\r\nThe Amendment Law  provides that all employers are required to adjust wage processing requirements  in accordance with its provisions within six months of May 2 2015 (the date the law came into force). By decision of the Minister this deadline may be capable of being extended.\r\n\r\nEvery person who violates any of the provisions of the amended article 66 of the Labour Law will be punished by imprisonment for a period not exceeding one month, or a fine of no less than QAR 2,000 ($549) and no more than QAR 6,000 or both.\r\n\r\nThe amendments to the Labour Law create a particular challenge in terms of training blue collar labourers on how to use and access their bank accounts. Nevertheless, the wider benefit is that the amendments will protect the payment of wages to all employees, as the Qatar government can easily document, track and monitor any late or non-payment of wages through requesting employees to provide bank account statements.\r\n\r\n<em>A version of this article first appeared in June 2015 edition of IFLR Magazine.</em>\r\n<div></div>'),
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(95490, 5186, 'content', 'June - July 2015\r\n\r\n<hr />\r\n\r\nIn such instances, the borrower agrees to provide a perfected and notarized pledge over these assets, a legal tool which provides the beneficiary of the pledge with a controlled recourse mechanism at the time of enforcement.  This mechanism entails, in large part, the involvement of the court and, ultimately, a public auction to sell off assets in order for the proceeds to satisfy, in full or in part, the outstanding debt obligation.\r\n\r\nTo avoid the above process, often lenders seek an alternative method of securing the assets.  In the case of listed shares on the Kuwait Stock Exchange, lenders are happy to forego the formal mortgage over the shares by entering into a contractual nominee arrangement whereby the lender would become the legal owner of the shares by virtue of a contract entered into with the borrower.  The borrower will then become the beneficial owner of the economic and beneficial rights relating to the shares. As legal owner of the shares, in the event of non-payment or default, the lender may seek to dispose/sell the shares and use the proceeds to satisfy the outstanding debt obligation (such arrangement as the “Nominee Arrangement”).\r\n\r\n<strong>Implications under Kuwaiti Laws</strong>\r\n\r\nThe Kuwait Stock Exchange (the “KSE”), as controlled by the Kuwait Capital Markets Authority (the “CMA”), provides guidance on the regulations and procedures related to the transfer of title in listed shares. With respect to the Nominee Arrangement, we understand that it may be permissible in other GCC jurisdictions.  However, pursuant to the laws promulgated by the KSE and CMA, it is not clear or straightforward.  Specifically, the regulations issued by the CMA and the KSE do not specifically or explicitly provide for the ability to transfer listed shares between parties by virtue of a financing agreement. In fact, Article 122 of the CMA Law No. 7 of 2010, as amended, states that it shall be considered a crime to enter or purchase a sale order for a security with the knowledge that a counterparty is seeking to purchase or sell such security at the same or similar size, price and time pursuant to a side agreement between the buyer and the seller.\r\n\r\nNotwithstanding, on 10 May 2015, an amendment was issued in the Kuwait Gazette which provided that the CMA shall publish a list of exemptions to the limitations imposed by Article 122. It appears that the legislators were intending to exempt situations where there is no effect on the market price of the listed shares pursuant to the side agreement between the buyer and seller. While the published amendment does not prescribe the applicable exemptions it states that they will be soon identified by the CMA which  may give some comfort pending publication of the exemptions themselves.\r\n\r\nTo the extent that such publications exempt arrangements like the Nominee Arrangement, the lender and borrower should be careful to maintain compliance with all relevant regulations relating to lending and handling of security. Accordingly, language within the agreement should be drafted carefully in order to avoid violation of secured lending practices.  Additionally, it should be noted that such Nominee Arrangement should also contemplate the custodian portfolio laws under the CMA regulations.\r\n\r\n<strong>Summary</strong>\r\n\r\nIn summary, alternatives to placing a perfected pledge over listed shares may include arrangements such as the Nominee Arrangement, subject to its compliance with relevant regulations. A further alternative to consider is the use of issuing a floating pledge over a securities portfolio.  While similar in nature to the Nominee Arrangement, this process, however, would ultimately require a court process for enforcement. It should be noted that a floating pledge of a portfolio account with a custodian can be made by a portfolio pledge agreement.  The custodian would be a local financial institution licensed by the CMA to act as a custodian on behalf of the lender. Furthermore, lenders should note that a pledge over the portfolio (where assets are composed of shares) as opposed to a direct pledge over shares is usually a preferred structure for lenders and borrowers.  It is a preferred structure as it enables both parties to replace/trade the underlying shares in the portfolio with simple procedures without a need to release the pledge and then noting a new pledge over the new shares each time there is a trade of the shares deposited in the portfolio.'),
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(95527, 5189, 'content', 'August 2015\r\n\r\n<hr />\r\n\r\nIn this article, we give an overview of the liability of doctors under UAE law and a case note on a malpractice claim for misdiagnosis, which was brought by a patient before the Dubai Prosecution and the Civil Court.\r\n\r\n<strong>Medical Liability</strong>\r\n\r\nDoctors practising medicine in the UAE must perform their duties accurately, honesty and in accordance with recognised scientific and technical principles to provide the necessary care for patients, pursuant to article 3 of Federal Law No. 10 of 2008 (“Medical Liability Law”).\r\n\r\nArticle 4 of the Medical Liability Law requires the following duties to be fulfilled by a doctor:\r\n<ul>\r\n 	<li>Adhere to the rules, regulations and procedures related to the practise of the profession according to their grade and specialty.</li>\r\n 	<li>Document the health condition of patients and their personal and family medical history before diagnosing and treating them.</li>\r\n 	<li>Prescribe the treatment, clearly instruct the patient of the doses and the method of use in writing, mention the name, signature and date in the medical prescription. The physician shall inform patients, or their families as the case may be, to necessarily adhere to the physician’s instructions on the method of treatment and the important expected side-effects of such medical or surgical treatment.</li>\r\n 	<li>Inform patients of the nature of their illness and its acuteness, unless the interest of the patient requires otherwise or if their mental condition requires them not to be informed, in which case the families of the patients should be informed as follows:</li>\r\n</ul>\r\n<ol>\r\n 	<li>If the patients are incompetent or lack capacity; and</li>\r\n 	<li>If the patients’ health condition does not make informing them in person possible and their consent could not be obtained to inform their families.</li>\r\n</ol>\r\n<ul>\r\n 	<li>Monitor complications resulting from medical or surgical treatment and treat them as soon as possible.</li>\r\n 	<li>Cooperate with other physicians who are involved in the patients’ treatment, provide the necessary information on the patients’ health condition, the performed treatment methods whenever requested, and consult a specialist if the situation requires so.</li>\r\n</ul>\r\nThe duty of a doctor under the UAE Medical Liability Law is not to achieve an end result (i.e. to cure or to guarantee a successful operation) but to use the degree of care and skill that is expected of the average qualified practitioner, taking into account the customary standards of the profession and accepted scientific principles.\r\n\r\nArticle 14 of the Medical Liability Law provides instances where doctors will not be held liable for medical negligence:\r\n<ul>\r\n 	<li>If the damage was sustained due to the action of the patient (i.e. refusing to receive treatment, failing to follow the medical instructions or due to an external cause).</li>\r\n 	<li>If the physician followed a certain medical method which, although not the generally accepted method, is a method which followed recognized medical principles.</li>\r\n 	<li>If the medical side effects and complications are known in the medical practice.</li>\r\n</ul>\r\n<strong>Case Note</strong>\r\n\r\n<em>Background:</em>\r\n\r\nAl Tamimi &amp; Company successfully represented a hospital in Dubai (the “Hospital”) and one of its doctors (the “Treating Physician”) in a criminal complaint filed by a former patient for professional criminal negligence.\r\n\r\n<em>Case History &amp; Chronology:</em>\r\n\r\nOn 7 January 2013, the patient visited the Hospital due to of symptoms of lymph node swelling above the collarbone and was referred to the surgical department for examination.\r\n\r\nThe Treating Physician performed an ultrasound and CT-scan and informed the patient that it was necessary to examine a lymph node sample.\r\n\r\nOn 3 March 2013, the patient visited the Hospital and underwent a lymph node biopsy for the sample to be referred to a specialist laboratory (the “Medical Laboratory”).\r\n\r\nOn 10 March 2013, the test results of the Medical Laboratory confirmed granulomatous inflammation of the lymph nodes suggesting tuberculosis, without the presence of a malignant tumour. Accordingly, the Treating Physician referred the patient to an internal medicine specialist, who commenced treatment with anti-tuberculosis drugs.\r\n\r\nThe patient visited another hospital due to symptoms of back pain and the doctor who examined the patient decided to take a sample from her lymph nodes for examination by the histology laboratory at the hospital. The test results of the laboratory confirmed the diagnosis of lymphoma.\r\n\r\nIn May 2013, the Medical Laboratory re-examined the same tissue samples and confirmed the existence of a malignant tumour in the patient’s lymph node, contrary to its initial report.\r\n\r\nThe patient subsequently filed a criminal complaint a few months later and the Dubai Public Prosecution referred the case to the Higher Committee for Medical Liability, to investigate whether there had been an incident of malpractice and, if so, its cause, the resulting damages, and the causal relation between the fault, damages, and the person responsible for the damage.\r\n\r\nThe Higher Committee for Medical Liability was established under Cabinet Resolution No. 6 of 2012 to investigate medical malpractice cases upon the request of the public prosecutor, the UAE courts, the ministry of health and any other governmental or local health authorities.\r\n\r\n<em>Defence:</em>\r\n\r\nThe Treating Physician and the Hospital, represented by Al Tamimi &amp; Company, filed a response to the complaint and pleaded that the allegation of the antibiotics causing the patient to develop cancer was false, unfounded and contradicted the reports issued by the other hospitals in Dubai after examining the same samples that were examined by the Medical Laboratory. The reports from the other hospitals demonstrated and confirmed the pre-existence of a malignant tumour before the patient started taking the medication prescribed by the Treating Physician. Hence, the reports confirmed that there is no connection between the antibiotics given to the patient and the development of the tumour.\r\n\r\nThe result of the initial examination confirmed the absence of a malignant tumour but suggested a diagnosis of tuberculosis. Doctors in such circumstances treat patients according to the diagnosis of medical laboratories and the Treating Physician in the present case accordingly referred the patient to an internal medicine specialist for tuberculosis treatment.\r\n\r\nIt was evident from the reports of the Medical Laboratory and other hospitals in Dubai, that the Hospital and the Treating Physician were by no means negligent in their management of the Patient and merely treated her in accordance with the findings of the Medical Laboratory.\r\n\r\n<em>The Higher Committee for Medical Liability:</em>\r\n\r\nThe Higher Committee reviewed the patient’s medical files, as well as the reports on the results of the biopsy performed on the tissues samples taken from the patient. A technical sub-committee comprising members of the Higher Committee and outside specialists was set up to investigate the case.\r\n\r\nThe Higher Committee was of the opinion that the biopsy report prepared by the Medical Laboratory clearly failed to diagnose the lymphoma and attributed the changes in the lymph nodes to tuberculosis. Based on that result, the Treating Physician who ordered the biopsy referred the patient to an internal medicine specialist for tuberculosis treatment, which is sound medical procedure.\r\n\r\nSubsequent re-examination of the patient and the lymph nodes revealed lymphoma and re-testing of the samples previously tested at the Medical Laboratory confirmed a diagnosis of lymphoma from the outset.\r\n\r\nThe pathological changes in the lymph nodes were correctly diagnosed around one and a half months after the initial examination. The treatment plan was then adjusted accordingly.\r\n\r\nAfter reviewing all of the above, the Higher Committee for Medical Liability established that:\r\n<ul>\r\n 	<li>The responsible histopathologist at the Medical Laboratory (“Pathologist”) committed medical malpractice when examining the lymph node samples and failing to diagnose lymphoma, resulting in an unnecessary treatment plan for tuberculosis.</li>\r\n 	<li>More than a month later, the patient underwent a proper re-examination and diagnosis and the treatment plan was adjusted. The earlier treatment (against tuberculosis) did not cause any complications for the patient other than prolonged suffering and medical costs.</li>\r\n 	<li>There was no negligence on the part of the Treating Physician or the doctors involved in the patient’s treatment at the Hospital. The medical malpractice is confined to the Pathologist at the Medical Laboratory.</li>\r\n</ul>\r\n<em>Prosecution’s Decision:</em>\r\n\r\nBased on the Higher Committee’s findings, the Prosecutor accordingly dismissed the case against the Treating Physician and the Hospital for lack of evidence.\r\n\r\n<em>Dubai Court Civil Action:</em>\r\n\r\nThe patient filed a civil action against the Pathologist (“First Defendant”) and the Medical Laboratory (“Second Defendant”) before the Dubai court seeking judgment against them, jointly and severally, for AED 2 million for failing to diagnose lymphoma and consequently causing the initiation of an unnecessary treatment plan for tuberculosis, which prolonged the patient’s suffering and increased treatment costs.\r\n\r\nAs to the merits, the court ruled that the duty of a doctor is to use the degree of care and skill that is expected of the average qualified practitioner under similar circumstances, taking into account the customary standards of the profession and accepted scientific principles to the exclusion of matters on which professional opinions may vary among practitioners in the field. Failure to follow this standard of care constitutes error for which the doctor is liable to the injured patient for damages and the lost opportunity for treatment.\r\n\r\nThe court ruled that for a claim to be accepted as medical error there must be a causal link between the treatment and the injury. In determining liability, regard must be had to the action that proximately caused the injury and not to any action that cannot reasonably be expected to have led to the injury.\r\n\r\nThe court concluded that the First Defendant, made the mistake of failing to diagnose lymphoma, which led to the consequent prescription of an unnecessary treatment plan for tuberculosis. After more than a month, the patient was re-examined and correctly diagnosed and the treatment plan was revised, although the previous treatment for tuberculosis did not cause any complications for the patient other than prolonged suffering and increased cost of treatment.\r\n\r\nHence, the First Defendant was held liable for failing to exercise the degree of care and skill that is expected of the average qualified practitioner. Based on the evidence and the documented facts of the case, the court found that the First Defendant committed an error which led to the prescription of a treatment plan for tuberculosis from which the patient was not suffering and caused her to incur medical costs in adhering to the plan based on an incorrect diagnosis.\r\n\r\nIn light of the foregoing, the First Defendant’s error caused damage to the patient in terms of the above medical costs incurred unnecessarily, material damage which should be made good by payment of compensation to the patient and moral damages for the patient’s suffering during the period of treatment.   Concerning the Second Defendant’s liability, it is settled according to Article 313(1) of Federal Law No. 5 of 1985 (“Civil Transactions Law”) that an employer shall be liable for compensation awarded against its employee subject to two conditions: (1) the existence of a master-servant relationship with the master having actual authority to supervise and direct the subordinate and (2) damage caused by the subordinate to a third party in the course of and by reason of performance of his duties.\r\n\r\nThe Second Defendant was held to be vicariously liable for the First Defendant’s error, which makes them jointly liable for payment of compensation to the patient.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThis case indicates that doctors are unlikely to be held legally accountable for treating patients according to the diagnostic test results produced by medical laboratories, provided that:\r\n<ul>\r\n 	<li>The examination of patients is in accordance with acceptable and recognized medical standards.</li>\r\n 	<li>Due care and skill is exercised in the surgical procedure for taking the tissue samples that require investigation by histopathologists, and</li>\r\n 	<li>The treatment provided did not cause any complications for the patient.</li>\r\n</ul>\r\nThe case further demonstrates the importance of medical expert evidence in legal proceedings and the UAE judicial authorities’ reliance on expert evidence when assessing whether or not a doctor committed medical errors and whether there exists a causal link between the error and any harm suffered by a patient.'),
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(95550, 5190, 'content', 'August 2015\r\n\r\n<hr />\r\n\r\nThe difference has important consequences because in the event the transaction is not perfected, a deposit may be forfeited if the parties so agree (under Article 148 of the Civil Code) but an advance may be claimed back.\r\n\r\n<strong>Facts of the Case</strong>\r\n\r\nThe Claimant had agreed to buy a consignment of saffron from the Respondent. An initial amount of AED 326,000 was paid by the Claimant by way of a deposit, but there was a fall in the price of saffron. The parties tried to renegotiate the agreement using a lower price, but the Claimant withdrew from the bargain. The Claimant then filed a claim for the return of the initial amount paid, claiming that it had been an advance on the payment and that, since the deal had not been finalized, the money should be returned.\r\n\r\nThe Respondent argued that it had been agreed that the initial sum paid was a deposit, and that by reneging on the deal this had been forfeited by the Claimant, pursuant to Article 148 of the UAE Civil Code:\r\n\r\n<strong>Article 148 </strong>\r\n<ul>\r\n 	<li>Payment of earnest money shall be regarded as evidence that the contract has become final and irrevocable unless the agreement or custom are to the contrary.</li>\r\n 	<li>If the two parties agree that the earnest money shall be forfeited in the event of reneging, each of them shall have the right to renege, and if the person who has paid the money reneges he shall lose it, and if the person receiving it reneges, he shall pay over double that amount.</li>\r\n</ul>\r\n<strong>Court of First Instance</strong>\r\n\r\nThe Court of First Instance appointed an expert and after receiving his report, the court ordered that the Respondent should return the advance to the Claimant with interest at the rate of 9%.\r\n\r\n<strong>Court of Appeal</strong>\r\n\r\nThe Respondent appealed (in Commercial Appeal No. 701 of 2013). The Court of Appeal heard witnesses for the parties.\r\n\r\nThe Court of Appeal held that it was clear in the case that the amount paid to the Respondent by the Claimant was a deposit paid towards the deal. The Claimant had stated in his statement of claim that the sum paid in installments was a deposit and the Claimant’s witness had attested to this fact. The Respondent’s witnesses stated that the parties had agreed that the sum paid by the Claimant shall be forfeit should the Claimant renege or not follow through with the purchase. The Claimant had reneged on the purchase due to a fall in prices without any fault on the part of the Respondent. The Claimant had filed the claim even though  it  had agreed with the Respondent to purchase the consignment at a lower price\r\n\r\nSince the Claimant had reneged on the deal, he forfeited the deposit he had paid. Therefore, the claim had no proper basis and was to be dismissed.\r\n\r\n<strong>Court of Cassation </strong>\r\n\r\nThe Claimant appealed to the Court of Cassation. The Claimant argued that the original invoice supported his claim that the payment was a deposit that was refundable. Furthermore, there was nothing on record to indicate the parties’ agreement to consider the deposit paid towards the purchase price as a non-refundable penalty for reneging on the contract. The Claimant also argued that the Court of Appeal decision was based on a procedural irregularity, since the Respondent called a man and a woman to testify, which is contrary to Sharia rules.\r\n\r\nThe Court of Cassation dismissed the appeal.\r\n\r\nIn its judgment the Court of Cassation explained that the purpose and character of a deposit is determined by reference to the manifest intent of the parties. The trial court is to interpret such intent from the facts and circumstances of the case in order to conclude whether the sum paid is to be considered a deposit in a final agreement, or a deposit subject to forfeiture in the event of reneging (i.e. not final as the deposit is the consideration for the right to resile from the contract). The trial court has full discretion to interpret the facts and weigh the evidence and documents produced in evidence. On article 148 of the UAE Civil Code, the Ministry of Justice’s commentary provides that “the rules relating to the forfeiting and restoration of earnest money/deposits are not rules of damages, but are part of the contractual intention of the parties….If the contract proceeds, the earnest money/deposit will be accounted for in the price to be paid.”\r\n\r\nOn the issue of testimony, the Court of Cassation dismissed the Claimant’s argument as according to Articles 35 and 36 of the Law of Proof in Civil and Commercial Transactions, testimony is permitted in commercial matters whatever the value of the transaction as long as the testimony does not contradict written evidence. It is well established in the UAE and consistent with previous rulings of the Court that the Law of Proof in Civil and Commercial Transactions does not subject testimony to any restriction on the composition of witnesses testifying to a particular fact or set of facts. In other words, the number of witnesses or their gender are not factors that need to be taken into account with respect to testimony. In this case, the Sharia rules on testimony did not apply as the subject of the case was purely commercial.\r\n\r\nThe Court of Appeal held that it was clear in the case that the amount paid to the Respondent company by the Claimant was a deposit paid towards the deal and that it was subject to forfeit in the event the Claimant reneged on the deal. The Claimant had reneged and so had forfeited the amount paid.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThis judgment highlights that a party may have the right to retain a deposit even in the absence of any loss being suffered. Whether a deposit has this purpose and character is to be determined by the intent of the parties and it is for the trial court to interpret such intent from the facts and circumstances of the case and to conclude whether the parties agreed that the deposit would be subject to forfeiture.'),
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(95575, 5191, 'content', 'August 2015\r\n\r\n<hr />\r\n\r\nThe legal requirements vary from country to country, but typically require that a person obtains a license to possess the weapon. In the United States of America the legal possession of weapons is commonplace. In the UK less so, but is permitted (although interestingly, the possession of a ‘replica firearm’ is not permitted). Those who intend to import a weapon into the UAE, whether for personal use or for commercial use, should avail themselves of the relevant laws and procedures.\r\n\r\n<strong>Weapons laws in the uae</strong>\r\n\r\nThe importation and possession of a weapon is governed by Federal Law No. 3 of 2009 regarding Weapons, Ammunition and Explosives, and which defines:\r\n\r\n<em>a ‘weapon’ as: Including a firearm, air gun, sound gun, flare gun, hunting gun, antique gun and stun guns; and </em>\r\n\r\n<em>a ‘firearm’ as: A weapon that launches a projectile by the pressure resulting from the combustion of the propellant material. This definition excludes the air gun, sound gun and photo gun. However, it states any firearm parts, components or spare parts shall be considered firearms.</em>\r\n\r\nIn this article, the term weapon, refers to both weapons and firearms (collectively, “Weapon” or ‘Weapons”).\r\n\r\nOne of the key features which assist in assessing whether an item may be construed as a Weapon or not is whether it is capable of launching a projectile. A spear-gun, for example, could fall within that classification. Another point worthy of note is that because weapon ‘parts’ also fall within the definition. Spare parts imported separately are also caught by the law.\r\n\r\nIn order to import and keep a Weapon, a license must be obtained. The application process for obtaining the licence then varies depending on the item in question, and its intended use (for example, trade, repair, manufacturing, private use). The detailed procedure to be followed is outside the scope of this article; suffice to say that the law imposes a criminal liability for failure to obtain the correct licence.\r\n\r\n<strong>Case Studies</strong>\r\n\r\nThe following two cases handled by Al Tamimi provide some insights on the potential problems which can arise.\r\n\r\n<strong>Case 1:  A Weapon For Personal Use:</strong>\r\n\r\nAn American person moved to the UAE to work in the Emirate of Abu Dhabi.\r\n\r\nA parcel was sent by the person’s family from the US through a shipping company, addressed for the attention of the recipient. The parcel included personal belongings, together with a firearm and bullets which the person had previously lawfully kept at home in the US.\r\n\r\nUpon arrival, the Abu Dhabi Customs Authority searched the parcel and discovered its contents.\r\n\r\nThe matter was referred by the Customs Authority to the Public Prosecutor for investigation of a potential criminal office, followed by an indictment order for the offence of importing a Weapon and bullets into the UAE without obtaining the relevant license to do so.\r\n\r\nThe strategy for the defence of the case highlighted the fact that the expatriate receiving the items had not instructed his family to send the Weapon, and had no criminal intent. The outcome was successful and the Union Supreme Court issued its judgment deeming the accused not guilty of any charges.\r\n\r\n<strong>Case 2: A Replica Weapon Imported For Exhibition Purposes:</strong>\r\n\r\nA replica firearm was shipped into the UAE by a weapons manufacturer, the purpose of which was to exhibit the replica at an international weapons conference being hosted in Abu Dhabi. The firearm was shipped to Dubai together with other non-weapons parts, including a piece of new technology which the manufacturer was also exhibiting at the conference.\r\n\r\nWhen importing the replica into the UAE, the manufacturer relied upon the fact that the replica was not treated as a weapon or firearm according to the laws in their home-country, and assumed (wrongly) that the same would apply in the UAE, and that the importation of a replica would not create any regulatory or criminal liability. Consequently, the due diligence as to the legal requirements for importing into the UAE was not fully investigated. The manufacturer focused on only one part of the process.\r\n\r\nThe multiple processes for obtaining all the relevant exhibition permits, together with a specific license for importing and possessing the replica was not followed in full before the parcel containing the replica arrived into Dubai (through a well known shipping company), and was delivered into the hands of the manufacturer’s representative, who had arrived in Abu Dhabi a few days previously to register as an exhibitor at the conference.\r\n\r\nThe representative was likewise not aware of the licensing requirements. Consequently, when clearing the security procedures at the conference venue, the replica was confiscated, and the representative was detained pending an investigation.\r\n\r\nThe matter was referred to the Public Prosecutor, and the representative detained in custody for a number of days before being released on bail. Forensic examination of the replica was undertaken. Notwithstanding that in the manufacturer’s home-country the replica would not have been classified as a weapon, it transpired that it contained a real weapons ‘part’, therefore according to UAE law, and although non-functional, the forensics’ examiners deemed that the replica could be adjusted and altered in such a manner so as to allow a projectile to be launched from it. Thus, it was considered to be a Weapon and imported in contravention of the law.\r\n\r\nThis case was particularly difficult in that the circumstances were such that the Public Prosecutor in Abu Dhabi considered that it raised a question of national security, and referred the matter for further investigation by the National Security Prosecution. After an investigation lasting four months, the defense team successfully mitigated against the primary case, and having placed considerable emphasis on the lack of criminal intent, the matter went no further.  The case was dismissed by the Prosecutor, and the manufacturer’s representative repatriated to his home-country.\r\n\r\n<strong>Sanctions and Penalties</strong>\r\n\r\nThe penalties for importing and/or possessing an illegal Weapon in the UAE can vary from imprisonment for six months and/or a fine of not less than fifteen thousand Dirhams, up to imprisonment for a maximum of ten years and/or a fine of not less than fifteen thousand Dirhams. Should a matter be referred to the National Security Court, the maximum sentence of imprisonment may be longer, and critically, there is no right of appeal from any sentence handed down by that court.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThe importation and possession of Weapons and related equipment in the UAE can lead to criminal liability and the imposition of severe penalties. Innocent mistakes or failure to establish the correct process for obtaining a licence can have very serious consequences. Legal assistance obtained prior to importation of the item assists in establishing the compliant route through the maze of applications and import procedures in order to obtain the proper licenses. Once a matter is under investigation by a Public Prosecutor, legal assistance is critical in securing the release of a person from custody, and for establishing a primary or mitigation case with a view to negotiating the most successful outcome.'),
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(95598, 5192, 'content', 'August 2015\r\n\r\n<hr />\r\n\r\nThe countersignatory (‘Y’) had argued that that the arbitral agreement was not binding on it because the charterparty had been concluded between the Owners and ‘X’, with Y simply countersigning as a guarantor. The Court of Appeal rejected that argument.\r\n\r\nSince the article was written, Y lodged a further appeal before the Dubai Court of Cassation, which in its judgment has given important guidance on the interpretation of contracts and, in particular, the title of the parties in the contracts.\r\n\r\n<strong>The Court of Cassation</strong>\r\n\r\nIn Y’s appeal before the Dubai Court of Cassation it argued that the representative who signed the charterparty on its behalf was not an authorized signatory to agree on arbitration clause and that it signed the charterparty merely as a witness. In support of its arguments, Y submitted its memorandum of association and a photocopy of a fax sent to the tribunal in which Y expressed reservations over the appointment of the arbitrator. Y claimed that the Court of Appeal had ignored this material argument.\r\n\r\nThe Dubai Court of Cassation decided to repeal the Court of Appeal judgment on the basis that the judgment was insufficiently justified. The Court of Appeal did not address the arguments raised by Y in relation to the incapacity of its signatory to bind Y to arbitration. The matter was therefore sent back to the Court of Appeal, with a different panel of judges, to consider these matters.\r\n\r\n<strong>Second Judgment by Court of Appeal</strong>\r\n\r\nThe Court of Appeal issued recently a second judgment, rejecting Y’s arguments and confirming again that the foreign arbitral award is to be recognized and enforced against Y in the UAE.\r\n\r\nThe Court held that it had been established through the translation of the vessel’s charterparty (as translated by a sworn legal translator) that the charterparty was made by and between the Owners and X and Y as charterers. The charterparty included at the end the signature of Y’s representative in addition to Y’s stamp, which evidenced that Y is a partner with X for chartering the vessel.\r\n\r\nThe Court of Appeal rejected Y’s argument that its description as a ‘countersignatory’ in the charterparty meant that Y was merely confirming the signature of X. The Court of Appeal explained that as below:\r\n\r\n“[The word ‘countersign’] denotes ratification of the signature, because it is stipulated in Al Faruqi Law Dictionary (Fifth Edition, page 174) that one of the meanings of this word is “endorse” and “sign with third parties” (a written deed) and “sign a deed as ratification of a signature affixed thereto”. However the court believes that the translation of ‘countersign’ consistent with the context of Article 12 of the charterparty stipulating [Y]’s name is that “it signs with third parties a written deed”; “third parties” refers to the X Party; “written deed” refers to the charter party. This is supported by the fact that [Y] and the X Party are described at the end of this clause as “charterers”, i.e. in the plural not the singular form, which is consistent with the above-mentioned translation stipulated in the claim sheet.”\r\n\r\nThe above shows the Court explicitly referred to Al Faruqi Legal Dictionary as an authority on the interpretation of English words into Arabic. The Court could have referred the issue to a legal translation expert, but was instead satisfied with using Al Faroqi’s Legal Dictionary as an authority in translation, and analysed the context of the word ‘countersign’ within the context of the charterparty to determine the meaning of the word from the various meanings given in the dictionary.\r\n\r\nAs regards the other arguments raised by Y, the court found that under the New York Convention of 1958 on Recognition and Enforcement of Foreign Arbitral Awards, it was for Y to show its signatory had no capacity to agree on the arbitration clause under the applicable law. Refraining from registering the signatory as a manager of the company does not evidence that the person was not authorized. As regards the reservations made by Y, these reservations were to the appointment of their arbitrator, not on the authority of their signatory to sign the charterparty.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThis case is notable because it clarifies that being designated as a ‘countersignatory’ may, in a charterparty at least, result in the countersignatory being deemed a party to the contract in the same position as the main signatory.  It also confirms that Al Faroqi’s Legal Dictionary is recognised by the UAE court as an authoritative dictionary for the translation of words from English to Arabic.'),
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(95623, 5193, 'content', 'August 2015\r\n\r\n<hr />\r\n\r\nCheil is the de facto financial holding company of Samsung Group, South Korea’s biggest conglomerate which owns the world’s largest electronics company. Samsung C&amp;T is the construction and trading arm of Samsung Group, which built Dubai’s Burj Khalifa, the world’s tallest building.  However, for the last few months the proposed takeover has come under attack from a hedge fund, Elliott Associates LP and the third largest shareholder of Samsung C&amp;T which challenged the valuation process used in the transaction. Despite the outcome of the shareholders’ vote approving the takeover, this battle is likely to be prolonged as it raises questions about South Korea’s corporate governance standards.\r\n\r\nIn this article, we briefly describe the statutory valuation method used in Korea and compare it to the current law in the UAE relating to the subject of asset valuation, which remains a topic that all listed companies, consultants and government authorities need to be conversant with.\r\n\r\n<strong>Market based valuation – Korea</strong>\r\n\r\nKorean law mandates that merger ratios be decided based on recent share prices, on the premise that such share prices, which are market prices and are deemed to always incorporate and reflect all the information made available to market participants at any given time, are the most reliable and objective tools in valuing the companies to be merged. In cases of a merger between listed corporations, the merger price is calculated in accordance with Article 176-5, Paragraph 1, Item 1 of the Enforcement Decree of the Financial Investment Services and Capital Markets Act in Korea, and the merger ratio is calculated accordingly. Therefore the merger ratio in Korea is a matter of simple maths and companies are not allowed to exercise their discretion in determining the ratio; nevertheless they can set up the timing of the merger monitoring the stock changes and may use a certain level of influence over the market itself.\r\n\r\nThis type of market-based valuation in determining merger ratios is commonly used in mature markets such as the UK and the US, so long as such a merger ratio calculated in accordance with the statutory requirements are approved by the board of directors who have a fiduciary duty of loyalty to act in the best interest of the company and its shareholders at all times.  For the board to fulfil their fiduciary duties, it must be clear that the price is fair to all shareholders and fully recognizes the value of the company.   Although the merger formula is inflexible in certain jurisdictions that does not excuse the board from discharging its duties when assessing whether or not to enter into a proposed transaction.\r\n\r\n<strong>Asset based valuation - UAE</strong>\r\n\r\nBefore the 2015 Commercial Companies Law (Federal Law No. 2 of 2015) the UAE had no explicit provisions concerning takeovers or merger control requirements.  Now Article 292 of the 2015 law stipulates that:\r\n\r\n“any person or group of associated persons or related parties desirous of purchasing or undertaking any transaction involving the acquisition of shares of capital stock or convertible Securities in a Public Joint Stock Company (“PJSC”) in the UAE, which offered its shares for public subscription or listed in a Financial Market in the UAE, shall comply with the Securities and Commodities Authority (“SCA”)’s provisions and resolutions on the rules, conditions and procedures for acquisition.“\r\n\r\nIt is expected that the SCA will develop a new takeover code in due course as the above provision implies. We set out below some of the current requirements governing valuation in takeovers applicable to companies listed in the UAE as a reference.\r\n<ul>\r\n 	<li>Article 118 (2) of the 2015 law requires the shares to be assessed by a financial consultant to be elected by the SCA from its roll of approved financial consultants or by entities with financial and technical experience in the subject matter of the valuation, as approved by the SCA.  Further, the SCA may object to the assessment and appoint another assessor as required (Art. 118 (5)).</li>\r\n</ul>\r\n<ul>\r\n 	<li>SCA Ministerial Resolution No. 70 of 2009 (Concerning the Shareholding Companies Shares Valuation Committees and the Mechanism thereof) mandates that a government appointed committee be established (Art. 2), and that its action plan include the methods to be used in the valuation of the assets and activities, valuation implementation steps and the timeline for the completion of valuation (Art.7). The valuation must then be approved by the shareholders of the company.</li>\r\n</ul>\r\n<ul>\r\n 	<li>M&amp;A transactions between listed companies in the DIFC are regulated by the Takeover Rules Module (TKO) which is a part of the Rulebook administered by the Dubai Financial Services Authority (DFSA). Rule 10.1.1 of the TKO provides that the person providing a valuation of assets must ensure that the valuation is supported by the opinion of an appropriate external and independent valuer.</li>\r\n</ul>\r\nFurther, in cases where certain companies find difficulty in obtaining the opinion of an appropriate external valuer to support an asset valuation, TKO allows the DFSA to permit informal valuations where the interests of shareholders appear on balance to be best served.\r\n\r\nBased on these provisions it seems that there is a certain amount of flexibility for market players, including companies and external advisors working in close coordination with relevant government authorities, to devise practical solutions to prevent unfair takeovers even if the market is not in fact efficient.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nMarket price is a better measure than asset valuation to determine the merger ratio since it is a measure incorporating tangible synergies and asset valuation by market players so long as the market functions efficiently. However, even after several decades of empirical research and studies, economists have not yet reached a consensus about whether the market (a financial market in particular) is efficient.  Often the market fails and it is always important to note that any proposed merger needs to be fairly assessed based on the fair values of the two companies.\r\n\r\nGiven the absence of a separate legal regime for a statutory valuation method under UAE law, we expect the government in time to examine the extent to which similar provisions could apply to companies operating under the civil law system here and further to set out clear guidance on the regulatory framework for the valuation of listed companies as part of its continuing efforts to introduce international best business practices in the UAE.'),
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(95638, 5194, 'content', 'August 2015\r\n\r\n<hr />\r\n\r\nBefore the 2011 Revolution, Egypt used to be the number one recipient of foreign direct investment (FDI) in the southern Mediterranean region. Following the Revolution and due to political unrest, FDI decreased drastically. However, in 2015, a conference in Sharm El Sheikh was held to draw the attention of foreign investors and encourage progress and development.\r\n\r\nAlongside the Sharm El Sheikh Economic Conference, Presidential Decree 17 of 2015 was enacted and introduced to the participants of the conference. The decree provides for new amendments to Investment Law 8 of 1997 and other laws with the aim of improving the competitiveness of the investment climate in Egypt.\r\n\r\nBy virtue of the decree, a new section has been inserted into the Investment Law for the purpose of governing state-owned lands and real estate properties as well as providing less burdensome conditions for disposing of the same to investors. The level and extent of facilities granted to investors are to be based on the amount of invested funds, the size, and the nature of the project. In all events, the Investment Law focuses on facilitating the disposition and allocation of lands to those investment projects that most benefit the growth of the national economy.\r\n\r\nFurther, the Investment Law provides for several disposition and allocation routes from immediate sale, to the grant of usufruct rights, lease and vesting of ownership through lease. The amendments of the Law aim to avert the modification of land prices by the competent authorities after the intention to contract with the investor is given. It also aims to allocate those lands for new projects and develop legal mechanisms to activate the distribution of lands to potential investors.\r\n\r\nOn the same basis, lands, in addition to being allocated at usufruct right up to a period of 30 years, can also be allocated by the government to such investors at no or minimal consideration. Over five years starting from April 2015, the unremunerated disposal of state-owned lands and real estate properties will take effect.\r\n\r\nIt is to be noted that where several allocation applications by investors are submitted to the competent authorities to enjoy the above addressed investment incentives, the same will be considered and decided by a draw in light of the technical and financial capacities of the applicants. This creates a dynamic space for fairness between investors.\r\n\r\nOn a different note, the process of transferring foreign funds for these investments from abroad will be undertaken according to the terms set out by the Central Bank of Egypt. The creation of an effective mechanism is set to ensure the investor exits the market safely and at the lowest cost. We believe that parallel amendments on the strict limitations imposed on currency transfers would be adopted as part of the investment reformation.\r\n\r\nThe Law eliminates many obstacles for the investor. It paves the way to mitigating lengthy execution processes by appointing one competent authority to be in charge of coordinating and issuing the various operating licences. Being distinguished by several ministries, this law does not solely entrust the ministry of investment with the mission of increasing investments in Egypt.\r\n\r\nA more coherent vision in respect of implementation mechanisms will gradually take place. We trust that the necessary modifications to existing laws will be undertaken to give an ultimate applicability to the amendments of the Investment Law and to further promote the investment climate of the new Egypt.\r\n\r\n<em>This article first appeared in the IFLR Magazine July 2015 edition.</em>'),
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(95653, 5195, 'content', 'August 2015\r\n\r\n<hr />\r\n\r\nThe notion of preserving family legacy and the resulting need to prepare the business to “hand the baton” to the next generation makes sense. Most private businesses in the region are family owned and many of them are reaching the transitional stage of handover from the founding generation to the next.\r\n\r\nHowever, the legal topography of the Arabian Gulf is unique because civil law and Islamic law principles both have their respective place in the regulatory framework. In matters of succession planning those legal principles have to be considered by Muslim families.\r\n\r\nTo add another dimension to this Middle Eastern legal landscape, there are islands of common law rules which apply in the Dubai International Financial Centre (DIFC) and also now the recently launched Abu Dhabi Global Markets (ADGM) free zones. These freezones can be described as self-governing icebergs in a regional sea of civil law. Whilst these icebergs, although subject to many of the Federal laws of the UAE, have their own dedicated laws and regulations and their own court systems in place, unlike the Titanic, these icebergs don’t sink ships! In fact the DIFC has proven to be vital in developing commerce and attracting investment in the region and the ADGM seems set to follow in these footsteps (though currently it is in its infancy).\r\n\r\nIn light of the above environment, various options have opened up for succession planning in the Middle East. Some of these structures include the setting up of limited liability companies, establishing Waqf-Al Ahlis (family Waqfs), setting up common law system trusts under DIFC and in some instances, even going public with the family business.\r\n\r\nThis article will touch upon another attractive structure for families which should be considered for recognition, namely the private interest foundation.\r\n\r\nThere is no existing legal basis for implementing private interest foundations in the Middle East as there are currently no laws in place addressing this concept.  However, this structure has enjoyed considerable success elsewhere in the world. This structure could provide a credible option in the future for succession planning as it has the potential to combine both, civil law and Islamic law principles, the dominant legal themes in the Arabian Gulf.\r\n\r\n<strong>What are ‘private interest foundations’?</strong>\r\n\r\nFoundations are governed by a charter or their by-laws. A foundation, whilst an entity with its own legal personality, is not a company and does not issue shares or other titles of legal ownership. Most often foundations are associated with charitable, religious or educational purposes and are often non-profit organisations. Jurisdictions like Panama, Austria and Jersey use private interest foundations as a means of succession planning and preserving family wealth.\r\n\r\n<strong>How can private interest foundations work for succession planning?</strong>\r\n\r\nUsually a foundation is set up by the founder who owns the business being transferred under the ownership of the foundation. The foundation is managed by a board of directors or a council whose responsibility is to manage the foundation assets. The board of directors are often nominated by the founder and will have their powers set out in the foundation charter.\r\n\r\nThe foundation charter is a private document and can be drafted in a manner compliant with Islamic principles, if desired. This is significant. In some jurisdictions such as Panama, a “guardian” or a “protector” can also be appointed by the founder in addition to the board. The guardian or protector is independent from the board and its role is to monitor the board to ensure that the foundation assets are being managed in a manner consistent with the founder’s objectives.\r\n\r\nThe benefits derived from the assets in the foundation are paid to beneficiaries who are often the heirs in the manner specified in the foundation charter. After the demise of the founder, foundations are believed to become irrevocable entities, however the foundation charter can specify if the foundation needs to be wound up after a period of time or upon a triggering event.\r\n\r\nThis type of structure offers many benefits to family businesses including enabling the founder to give detailed instructions on the vision of his business for the future and on the distribution of benefits to beneficiaries without raising concerns over the validity of the foundation. If properly recognised in the law, they offer more certainty than Waqfs due to the differing schools of jurisprudence in relation to Waqfs.\r\n\r\nImportantly, assets under the foundation are owned by the foundation itself and not the founders or beneficiaries which provides a degree of separation between the wealth and the owners of the wealth. This results in wealth preservation and helps guard against misuse of assets.\r\n\r\nThe challenge facing the credibility of a private interest foundation structure as a tool for succession planning in the Middle East is the absence of a legal framework. At present, families in the region can only set up foundations in off-shore jurisdictions such as Austria and Panama. These off-shore foundations would be treated as foreign entities and would not enjoy national status and therefore would not be able to hold land, businesses or other assets under their name in the Middle East. In the event of a dispute, it is also not certain whether Middle Eastern courts would currently recognise private interest foundations as a valid structure.\r\n\r\n<strong>The Way Forward </strong>\r\n\r\nOn the basis of the above, there is a case to be made for introducing a legal framework on private interest foundations in the Middle East.\r\n\r\nIntroducing such legislation would provide family businesses the means to set up a succession planning structure that is autonomous of local corporate laws and is self-sustaining.\r\n\r\nTheoretically, introducing such a law would also not require changes to be made to local laws since foundations are not technically classified as ‘entities’.\r\n\r\nThe importance of planning for the future seems to have dawned on stakeholders in the Middle East as dialogue on succession planning issues is gaining momentum. Private interest foundations could be attractive and effective vehicles for succession planning, not least because they are flexible and elegant as trust solutions, yet offer the advantage of additional compatibility with the civil law systems which prevail in the Middle East.'),
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(95668, 5196, 'content', 'August 2015\r\n\r\n<hr />\r\n\r\nRight around the world there are debates, conferences, research reports, and reviews taking place to address the problem of levelling the playing field between men and women; and, importantly, ensuring women have the proper support they need – whether cultural, social or regulatory – to reach their full potential and succeed in work.\r\n\r\nBy way of a reminder, the workplace is not a level playing field at present. This is the case on an international scale, not just in the Middle East, where there is often foreign criticism of the role of women in society, usually linked to poorly-informed religious arguments.\r\n\r\nBy way of an example, if you look at the UK specifically, just 5% of the top 100 chief executive officer roles available in the country are filled by women. That is not a particularly impressive statistic for a nation that dates back hundreds of years. But, in fact, the UK is considered a leading Western nation in the empowerment of women in the workplace, and it is a subject that now exercises their law makers on a near daily basis.\r\n\r\nIf that is indeed the case, one wonders why the UAE’s significant achievements in empowering women, particularly in business and government, are not more widely celebrated. Generally speaking, in a region that has a largely negative reputation for the role and treatment of women in society, the UAE stands out as a shining light.\r\n\r\nA recent meeting with the Dubai Foundation for Women &amp; Children was a stark reminder of how much has been achieved in just 43 years since the unification of the Emirates. The Foundation is the first licensed not for profit shelter in the UAE for women and children victims of domestic violence, child abuse and human trafficking. Established in 2007, it offers victims immediate protection and support in accordance with international human rights obligations, and it works hard to promote community awareness of these important social problems.\r\n\r\nThe Foundation’s strapline is a quote from His Highness Sheikh Mohammed Bin Rashid Al Maktoum, UAE Vice President, Prime Minister and Ruler of Dubai. It reads: “A place without women is a place without spirit”. That comment alone sends a powerful message across the whole of society: in private homes and businesses, within government authorities, and in the public arena more generally.\r\n\r\nIt shows that the UAE understands the contribution women can make to society. So, if anyone ever questions whether the country’s leaders appreciate what women can offer, they need only remind themselves of the sincere intent behind this quote. There is a very clear and active desire to see more women participating in all areas of society, and particularly in the workplace.\r\n\r\nIn step with His Highness’ sentiment, the UAE Government has continually encouraged the promotion of women in business and into key leadership positions. It recognises that the different skills and approach women can bring to tasks and management are critical, especially if the country is to truly achieve its vision of becoming an innovation-led economy, and a happy, welcoming and peaceful society overall.\r\n\r\nTo ignore gender specific skills – like patience, focus and sensitivity, which are often found in more women than men – is simply limiting your potential to solve problems, to grow, learn, and to be a more creative nation. This isn’t just anecdotal evidence either, with a 2012 Credit Suisse report showing that female business leaders can boost a large, listed company’s share price performance by 26% over six years when compared to businesses without women in a position of power.\r\n\r\nOf course, actions speak louder than words, and the UAE was the first Gulf state to appoint a woman to a Ministerial position. Her Excellency Sheikha Lubna Bint Khalid Al Qasimi joined the Federal Government in 2004 as Minister of Economy. In 2008, she was appointed Minister of Foreign Trade, and in 2013 as Minister of International Cooperation and Development – a role she still holds today.\r\n\r\nThe country’s drive for further female empowerment actually started long before Sheikha Lubna’s rise to become the world’s most powerful Arab woman. It actually started 40 years ago this month, in August 1975, with the founding of the General Women’s Union and Her Highness Sheikha Fatima bint Mubarak’s pioneering chairmanship.\r\n\r\nFast forwarding to 2015, and across the public sector, women have been taking an increasingly prominent role, to the extent that they now make up approximately 66% of the workforce, with around 30% in senior positions. There are now eight women in the Federal National Council and four women in Ministerial posts.\r\n\r\nIn our overseas Embassies and Consulates, there are several Emirati women in the top Ambassadorial posts, and in the traditionally male only military, Mariam Al Mansouri is the face of the air force and actively defending her country from extremist threats.\r\n\r\nIn business and culture women have made considerable progress, and there are plenty of impressive female role models for the next generation to be inspired by, such as Dr Amina Al Rustamani, CEO of TECOM Investments, Raja Easa Al Gurg, Managing Director of Easa Saleh Al Gurg Group, and Noura Al Kaabi, CEO of twofour54.\r\n\r\nSheikha Lubna, too, had a stellar business career before joining the Government, having previously been appointed by Sheikh Mohammed Bin Rashid as Chief Executive of Tejari, the electronic B2B marketplace.\r\n\r\nCompanies in the private sector have benefited from the lead the public sector has taken, making strides to change their corporate culture and bring on female talent. In banking, a critical sector for the economy, Emirati women account for over 65% of the local banking sector’s employees and 43% of all bank jobs.\r\n\r\nMore broadly, studies on women in business in the Gulf consistently show that the UAE tops the region in terms of company ownership and leadership, workforce participation, employment opportunities, and in education. Female literacy in the UAE stands at over 90%, higher than the male literacy rate.\r\n\r\nClearly, there is still more to be done for the UAE to reach the levels of female employment that match those seen in the West, but the gap against men is closing fast. Ongoing collaboration, cultural change, good leadership and information will all play a part in making this a reality. We will get there. However, the UAE’s progress over just four decades is substantial.\r\n\r\nWe should celebrate this remarkable progress and continue to encourage the important role of women in all aspects of our society. We should also thank organisations like the Dubai Foundation for Women and Children for the vital role they are playing in tackling important social problems and ensuring that our communities remain places full of spirit.'),
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(94910, 5154, 'content', 'May 2015\r\n\r\n<hr />\r\n\r\nThe introduction of Nitaqat (literally ‘Zones’), which place employers in various colour-coded classifications based on the percentage of Saudis employed, heralded an increased focus on the hiring and retention of Saudi nationals. The Saudi Arabian General Investment Authority (‘SAGIA’) has instituted an overhaul of the foreign investment license application process which continues to be refined today.  And finally, there was the widespread work visa checks conducted in late 2013 and 2014, which resulted in the deportation of nearly one million undocumented and other illegally resident expatriates.  According to some sources, more than four million workers corrected their work permit status during this period which is an impressive feat by any measure.\r\n\r\nIn each case, businesses in Saudi Arabia were required to understand the new legislation, implement systems in order to comply with it and take steps to ensure that those systems were complied with by the local teams in Saudi Arabia.  This was by definition a reactive process with many companies initially finding themselves in a lower tier than expected of Nitaqat, or with a rejected foreign investment license application, or in some cases even without workers.\r\n\r\nThese legislative changes do not occur in a vacuum, and for the leadership of businesses in Saudi Arabia, or businesses that conduct business with Saudi Arabia, it can be helpful to understand the underlying policy objectives behind these regimes. With an understanding of the policy objectives, companies doing business in Saudi can begin to proactively develop their operations in line with the objectives and in this way reduce the possibility of loss of competitiveness.\r\n\r\nFor example, a large and increasingly well-educated young Saudi national workforce looking for opportunities means that businesses must provide opportunities to allow Saudi nationals to train, develop and take on leadership opportunities as they arise.  Similarly, the Kingdom’s strategic plan to diversify away from a petroleum-based economy means that there are and will continue to be significant opportunities for businesses in sectors that build on other strengths of the Saudi economy (including its vast deposits of minerals and other natural resources).  These and other policy considerations will continue to inform legislative changes in the future.\r\n\r\nExamples of such legislative changes abound.  For example, SAGIA continues to modify its policy with respect to the issuance of foreign investment licenses to fine-tune the balance between those applications that are successful and those that are rejected.  In late 2014, SAGIA introduced a “fast track” application process.  For those applicants that meet one of a number of criteria, a reduced set of documentation requirements and a promise of a quicker approval process awaits.  The criteria makes clear the types of applicants that the Kingdom is seeking: for example, companies publicly listed in their home jurisdictions, or those seeking to establish regional hubs for their operations in Saudi Arabia. In the future, those companies that successfully bid on major infrastructure and other projects could avail themselves of the “fast track” mechanism in order to comply with any requirements to establish, for example, Saudi manufacturing facilities in order to supply those projects.\r\n\r\nSaudi Arabia’s Wage Protection System (‘WPS’) requires employers to provide salary payment data to the Ministry of Labour and for salaries to be paid via electronic funds transfer.  In addition to ensuring that all employees are documented and all monthly salaries are paid to employees according to the terms of the relevant employment agreements, the WPS allows the Ministry of Labour to determine what percentage of payroll is being paid to Saudis vs. non-Saudis.  In time, this insight will permit the Ministry of Labour to analyse the seniority of Saudi nationals in organisations and to develop policies to encourage Saudi nationals to take on senior leadership functions.\r\n\r\nThe previously described Nitaqat, the centrepiece of the Kingdom’s Saudisation strategy, will also be developed further.  The third phase of this program, which was due to be implemented on 20 April 2015 but has been delayed for an unspecified period, will in some cases (based on sector or industry) significantly increase the percentage of Saudis required to be employed by larger businesses.  It will also more directly target small to medium enterprises.\r\n\r\nThe Nitaqat regime introduced for the first time the possibility of employees being able to take on new employment without obtaining consent from the previous employer in the form of a so-called “no objection” letter.  For those companies finding themselves in the lower tiers of Nitaqat (namely yellow and red), the “poaching” of Saudi-based employees by local competitors in the higher tiers (premium and green) became a reality for the first time.  This introduction of the concept of a workforce that is able to move freely between employers may be expanded in due course, and in the long term employers should prepare for a possible liberalisation (or possible end altogether) of the sponsorship system.\r\n\r\nFinally, at the time of writing the Ministry of Labour has recently announced a number of amendments to the Labour Law, including increased requirements for employers to train Saudi nationals.  The full impact of these additional amendments will become clearer in time.\r\n\r\nThere are three main points to be taken from the above:\r\n<ul>\r\n 	<li>\r\n<div>Recognise the shifting legal landscape.  Those businesses that are ready for and can anticipate legislative changes will be best situated to respond quickly when change does occur.</div></li>\r\n</ul>\r\n<ul>\r\n 	<li>\r\n<div>Stay apprised of new developments.  Often proposed changes in legislation will be publicly debated at length before being implemented. For example, the introduction of an eight-year residency limit for expats has been discussed recently by the Ministry of Labour.  While it does not appear this proposal will become law in the near future, knowledge of this proposal can be kept in mind when employers work through succession planning for expat employees.</div></li>\r\n</ul>\r\n<ul>\r\n 	<li>\r\n<div>Show value to the Kingdom.  While the legislative landscape will continue to change, the policy objectives will not. Those businesses that can objectively show a record of hiring and training Saudi nationals, building plants and infrastructure, and transferring technology onshore will continue to be valued and will be able react to new requirements in the most agile manner.</div></li>\r\n</ul>\r\nRecent developments indicate that the pace of legislative development (and business opportunity) in Saudi Arabia are set to continue to increase in the near term.  For those businesses that are willing to invest in the Kingdom and partner with Saudi authorities, access to those business opportunities will also continue to grow.  Jeddah, being a key commercial hub in Saudi Arabia as well as a major international seaport, will certainly be a central focus for such business opportunities.\r\n\r\nSumit Soni has practiced with international firms in Saudi Arabia for 8 years and is the head of Al Tamimi’s Jeddah office.'),
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(94929, 5155, 'content', 'May 2015\r\n\r\n<hr />\r\n\r\nThis article seeks to provide a high level outline of the current customs implications applicable to manufacturing entities in Dubai’s mainland and free zone jurisdictions.\r\n\r\n<strong>Customs Regime Applicable in the UAE’s Mainland Jurisdiction</strong>\r\n\r\nA limited liability company (“LLC”) incorporated in the UAE’s mainland jurisdiction, under the commercial companies law, Federal Law No.8 of 1984, is required to be owned at least 51% by UAE natural person or a corporate entity which is wholly owned by UAE nationals. The new federal commercial companies law, expected to come into force in mid-July 2015, maintains this requirement.\r\n\r\n<strong>Importing into the UAE</strong>\r\n\r\nIn order to be able to manufacture goods, a mainland LLC will require an industrial production licence. Having an industrial production licence entitles mainland LLCs to import raw materials and machinery into the UAE (for the purposes of being used by the importer to manufacture products) without paying customs duty at the point of entry into the UAE (typically 5% ad valorem although this may vary depending on the type of goods) In the UAE, no customs duty is levied upon the exportation of goods outside of the UAE.\r\n\r\n<strong>Exporting out of the UAE</strong>\r\n\r\nThe products manufactured by such mainland LLCs will be subject to customs duties, upon their importation into another country, which will vary depending on the respective customs regulations of such country.\r\n\r\n<strong>Exporting from the UAE to GCC or GAFTA states</strong>\r\n\r\nCustoms duty exemptions may be secured by a mainland LLC with an industrial production licence manufacturing goods in the UAE when importing such goods into:\r\n<ul>\r\n 	<li>any GCC country, pursuant to the Common Customs Law of GCC States (“GCC Customs Law”); or</li>\r\n 	<li>any of the countries that are a party to the Greater Arab Free Trade Area Agreement (“GAFTA”). GAFTA includes all the GCC countries.</li>\r\n</ul>\r\nSuch exemptions are subject to obtaining a certificate of origin and a value added certificate for such goods from the UAE Ministry of Economy (“MoE”).\r\n\r\nIn order to obtain a certificate of origin and value added certificate from the MoE, there are two pre-requisites:\r\n<ul>\r\n 	<li>the share capital of the mainland LLC should be at least 51% owned by a UAE national or a corporate entity which is wholly owned by UAE nationals; and</li>\r\n 	<li>at least 40% value should be added to the goods during the manufacturing process (for which the customs duty exemption is being sought) by the mainland LLC locally (electricity costs, rent costs and employees’ salaries will also be considered for the purposes of added value).</li>\r\n</ul>\r\n<strong>Customs Regime Applicable in the UAE’s Free Zones: </strong>\r\n\r\nUnlike mainland LLCs, free zone companies are licensed by the free zone itself rather than the Dubai department of economic development. A free zone company can be owned 100% by foreign investors and still be eligible for an industrial licence to manufacture goods in the free zone.\r\n\r\n<strong>Importing into a free zone</strong>\r\n\r\nFree zone companies can import raw materials and machinery into the free zone without having to pay customs duty upon importation of such goods into the free zone. Likewise, in free zones, no customs duty is levied upon the exportation of goods outside of the free zones.\r\n\r\n<strong>Exporting outside of a free zone (including GCC and GAFTA states)</strong>\r\n\r\nCustoms duties will be levied on such goods upon importation into other countries (including the GCC countries and GAFTA members), depending on the customs regulations of the specific destination country. Free zone companies with an industrial licence are not eligible to obtain certificates of origin and value added certificates from the MoE for their goods and, therefore, such entities are by default not eligible for the customs duty exemptions under the GCC Customs Law and the GAFTA.\r\n\r\n<strong>The Unique Case in Jebel Ali Free Zone</strong>\r\n\r\nPursuant to Jebel Ali Free Zone’s (“JAFZ”) Rules &amp; Regulations Law No.999 of 2005, a corporate entity set up in JAFZ can obtain a national industrial licence subject to having 51% of its share capital owned by GCC nationals and satisfying the criterion of 40% local value addition to the goods. This is different from the abovementioned mainland industrial production licence and the free zone industrial licence.\r\n\r\nSubject to MoE’s approval, such an entity may also secure certificates of origin and value added certificates from the MoE. Such certificates may enable a manufacturing entity to import products manufactured in JAFZ from JAFZ into the UAE mainland without the payment of customs duty (subject to Dubai Customs approval). However, in practice, such certificates are unlikely to entitle the holder to secure any of the above-mentioned customs duty exemptions under the GCC Customs Law or the GAFTA (pursuant to Article 88 of the GCC Customs Law, free zone goods are explicitly treated as foreign goods and, although the GAFTA does not make reference to free zones or free zone goods, it is implemented to exclude free zones).\r\n\r\n<strong>Conclusions</strong>\r\n\r\nUnder the existing customs regime, the practice is as follows:\r\n<ul>\r\n 	<li>Mainland LLCs with an industrial production licence may benefit from a custom duty exemption for their manufactured goods, from the importation of raw materials and machinery into to the UAE as well as to the exportation of their manufactured goods outside the UAE and the importation into any GCC country or GAFTA member state;</li>\r\n 	<li>Free Zone companies are eligible for an industrial licence to manufacture goods in the free zone, however are not eligible for any customs duty exemptions upon importation  into any GCC country or GAFTA member state; and</li>\r\n 	<li>JAFZ provides the option of a national industrial licence; however in practice such JAFZ entities will not be eligible for customs duty exemptions under the GCC Customs Law or the GAFTA, though it may enable the importation of products manufactured in JAFZ, from JAFZ into the UAE mainland without the payment of customs duty.</li>\r\n</ul>\r\nTherefore, it is safe to say that if the objective is to set up a manufacturing entity to serve customers based in the GCC or in any GAFTA member state, a good business strategy would be to set up a UAE mainland LLC in order to avail itself of the customs duty exemptions described above. It is anticipated that such customs duty exemptions will in future also extend to manufacturing entities set up in the UAE’s free zones, however, until such time a UAE mainland LLC is the optimal choice.'),
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(94958, 5156, 'content', 'May 2015\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">In the UAE, LLCs are run by a manager or a panel of managers that are responsible to the partners of the company. Managers in LLCs carry out a number of obligations and responsibilities within a certain scope of authority. As a general rule, unless it is indicated in the company’s memorandum of association that a manager has limited authority, then they have the necessary authority to act on behalf of the LCC provided that they clarify to third parties that they are acting in their capacity as a manager.</p>\r\n<p class=\"MsoNormal\">The PJSC is a more complex structure where the management is carried out by a collegial body of directors. The directors act as trustees for the shareholders, and define the management structure of the firm, delegating to that management structure those administrative matters the board itself chooses.</p>\r\n<p class=\"MsoNormal\">We will now highlight some of the key differences between the managers of LLCs and the board of directors of PJSCs.</p>\r\n<p class=\"MsoNormal\"><strong>1.     </strong><strong>The method of composition</strong></p>\r\n<p class=\"MsoListParagraph\"><strong>LLCs</strong></p>\r\n<p class=\"MsoNormal\">The management on LLC is taken up by one or more managers, who are selected from either the partners or from third parties provided that their number does not exceed five. In general, the managers of LLCs are appointed in the company’s memorandum of association or by a separate contract for a limited or an unlimited period. The partner\'s general assembly may appoint the managers only in the event of failure to appoint the managers in the above mentioned manner.</p>\r\n<p class=\"MsoNormal\">In the event of more than one manager, the memorandum of association may provide for the formation of a panel of managers.</p>\r\n<p class=\"MsoNormal\">In this regard, it is worth noting that a new commercial companies law has been issued and shall become in force three months following the date of publication in the official gazette (“<strong>New CCL</strong>”). The New CCL has removed the number of mangers limit. Therefore, under the New CCL there will be no limit for the number of managers.</p>\r\n<p class=\"MsoListParagraph\"><strong>PJSCs</strong></p>\r\n<p class=\"MsoNormal\">The management of PJSCs is vested in a board of directors, consisting of three to fifteen directors.  The articles of association will state their term of office which should not exceed three years.</p>\r\n<p class=\"MsoNormal\">The ordinary general assembly will elect members of the board of directors. As an exception, the founders may appoint the first board of directors for a maximum period of three years. Moreover, the majority of the directors including the chairman must be UAE nationals. If the number of the UAE directors fall below this threshold, the board shall within a maximum period of three months take the necessary measures to comply with this requirement; otherwise, the board resolutions adopted after the lapse of the  period shall be null and void.</p>\r\n<p class=\"MsoNormal\">In addition, at least one-third of the board of directors of PJSCs must be independent members and subject to the Ministerial Resolution No. 518 of 2009 concerning Governance Rules and Corporate Discipline Standards (as amended); and the majority of members must be non-executive members. Such board members shall be elected by cumulative voting.</p>\r\n<p class=\"MsoNormal\"><strong>2.     </strong><strong>Requirements</strong></p>\r\n<p class=\"MsoListParagraphCxSpLast\"><strong>LLCs</strong></p>\r\n<p class=\"MsoNormal\">There are no requirements to be elected as a manager in an LLC other than having the relevant experience and qualifications in certain domains, Such as in construction companies the manager should have experience in such domain.</p>\r\n<p class=\"MsoListParagraph\"><strong>PJSCs</strong></p>\r\n<p class=\"MsoNormal\">In general, the director must not be convicted of a crime relating to honour and honesty unless he has been reinstated or granted amnesty by the concerned authorities. Furthermore, no director, either in his personal capacity or as a representative of a corporate body, can be a director in more than five joint-stock companies having their head offices within UAE. Nor shall he be a chairman or a vice-chairman of more than two companies having their head offices within UAE, nor a managing director of more than one company located in UAE.</p>\r\n<p class=\"MsoNormal\">In addition, non-executive members must have the necessary technical skills and experience to be used for the good of the company.</p>\r\n<p class=\"MsoNormal\"><strong>3.     </strong><strong>Powers of directors</strong></p>\r\n<p class=\"MsoListParagraphCxSpLast\"><strong>LLCs</strong></p>\r\n<p class=\"MsoNormal\">As a general rule, unless the powers of the manager are fixed in the company’s memorandum of association, the company’s manager has full powers to carry out the affairs of the company, and his actions shall be binding on the company.</p>\r\n<p class=\"MsoNormal\">However, in practice, if the powers of the manager are not specifically enumerated in the company’s memorandum of association, the manager may not be considered as authorized to exercise these powers by some public authorities such as the Notary Public.</p>\r\n<p class=\"MsoListParagraph\"><strong>PJSCs</strong></p>\r\n<p class=\"MsoNormal\">The board of directors will assume all the powers necessary to execute the business required in satisfaction of the company objectives, save such powers as may be vested by the law or the company’s articles of association in the general assembly. However, it is not permitted for the board directors to enter into loan agreements whose term exceeds three years, nor to dispose of the company’s property or place of business, or to mortgage the same, release company’s debtors from their commitments, compromise claims or refer to arbitration, unless the same are expressly granted by the company’s articles of association or embodied by nature thereof in the company objectives. Save these two cases, it is a condition for the conclusion of such actions to obtain the approval of the general assembly.</p>\r\n<p class=\"MsoNormal\"><strong>4.     </strong><strong>Corporate governance</strong></p>\r\n<p class=\"MsoListParagraphCxSpLast\"><strong>LLCs</strong></p>\r\n<p class=\"MsoNormal\">With the exception of the relevant provisions under the CCL ( Article 235-255), there are no specific corporate governance rules applicable to LLCs.</p>\r\n<p class=\"MsoListParagraphCxSpLast\"><strong>PJSCs</strong></p>\r\n<p class=\"MsoNormal\">PJSCs are subject to Ministerial Resolution No. 518 of 2009 concerning Governance Rules and Corporate Discipline Standards (as amended). These Rules contain a number of positive directors’ duties that echo those in other jurisdictions. Amongst those duties, there are duties of honesty and loyalty and the requirement to consider the company’s and shareholders’ interests. Particular duties are set out in relation to non-executive board members including the duty to participate in Board meetings and to give an independent opinion.</p>\r\n<p class=\"MsoNormal\">It is worth noting that the Rules do not apply to all PJSCs as some of them have been exempted, such as Banks.</p>\r\n<p class=\"MsoNormal\"><strong>5.     </strong><strong>Meetings and resolutions</strong></p>\r\n<p class=\"MsoListParagraphCxSpLast\"><strong>LLCs</strong></p>\r\n<p class=\"MsoNormal\">The memorandum of association should contain provisions organizing the meeting of managers in case of there being a panel. The provisions will explain the business of the said panel and the majority needed for the validity of their resolutions.</p>\r\n<p class=\"MsoListParagraphCxSpLast\"><strong>PJSCs</strong></p>\r\n<p class=\"MsoNormal\">In general, the board meetings of PJSCs will be attended by the majority of directors and the resolutions in such meetings must be adopted by a majority of votes of those present of represented. In case of a tie, the chairman shall have a casting vote.</p>\r\n<strong>6.     </strong><strong>Remuneration</strong>\r\n<p class=\"MsoListParagraphCxSpLast\"><strong>LLC</strong></p>\r\n<p class=\"MsoNormal\">In LLCs, the company may enter into a management agreement with its manager which sets out the manager’s remuneration. The remuneration paid to the manager may be based on a percentage of the annual profits of the LLC or it may be a fixed amount. In all cases the remuneration awarded to a manager must be agreed upon by the partners of the LLC.</p>\r\n<p class=\"MsoListParagraphCxSpLast\"><strong>PJSCs</strong></p>\r\n<p class=\"MsoNormal\">The articles of association shall explain the methods adopted to determine the directors’ remuneration, which may not exceed 10% of the net profit after depreciation and reserve are deducted and dividends of not less than 5% of the capital were distributed among shareholders.</p>\r\nIn conclusion, it is worth noting that while the rules governing the management of an LLC are briefly provided for in the CCL (as the articles of association customarily provide for most of the detailed requirements and rules to be observed), those governing PJSCs are part of a more elaborated and sophisticated legal framework. In the process of converting an LLC into a PJSC, the partners should take this into account and comply with this comprehensive regulatory framework after the completion of the conversion process. More specifically, the mandatory rules governing the management of PJSCs, specifically those related to the corporate governance requirements and the conflict of interest limitations, should be observed when the Board of Directors is elected and throughout its term.\r\n<div></div>\r\n&nbsp;'),
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(94973, 5157, 'content', 'May 2015\r\n\r\n<hr />\r\n\r\nThis arbitration centre is being launched pursuant to Dubai Maritime City Authority’s Law No. 11 of 2007, which stipulates that an arbitration centre meeting international standards is to be created within Dubai’s Maritime City. EMAC will fill the immediate need for a specialized maritime arbitration centre in the Middle East, Asia and Africa.\r\n\r\nEMAC’s Rules are based on the UNCITRAL Arbitration Rules 2010 but are full of new approaches and new methods which it is hoped will bring a fresh touch and a faster and cheaper arbitration process than offered by the current maritime arbitration centres.\r\n\r\nIn the speech delivered by H.E. Dr. Abdullah Belhaif Al-Nuaimi, Minister Of Public Works, in the EMAC Workshop held on 16 April 2015, he endorsed and supported EMAC and emphasized the importance of alternative dispute resolution. The UAE government believes in arbitration as one of the venues for settlement of disputes and in particular for shipping disputes. His Excellency also emphasized that the government will have no involvement in the running of the arbitration centre. It is for the parties to agree on arbitration and the arbitration centre will be fully independent. The government will assist in providing support and training to allow the centre to operate fully and independently from the government.\r\n\r\nSome of the features of EMAC are:\r\n<ul>\r\n 	<li>The Rules are drafted to allow the arbitration to be set-up and run with minimal involvement by the centre.</li>\r\n 	<li>The parties may agree on the seat of arbitration and the venue, however in the absence of an agreement the default seat will be the Dubai International Financial Centre, with the DIFC Courts as the curial courts.</li>\r\n 	<li>The Rules provide for multi-party arbitration, joinder, and emergency arbitration.</li>\r\n 	<li>The Rules allow for the conduct of arbitration through electronic means if the parties wish.</li>\r\n 	<li>The Rules contain provisions for fast-track arbitration and rules for dealing with small claims.</li>\r\n</ul>\r\nThe UAE is currently a major - if not the largest - maritime and shipping hub in the region:\r\n<ul>\r\n 	<li>Within the UAE there are about 12 – 15 commercial ports operating.</li>\r\n 	<li>Last year Jebel Ali port alone handled more than 15 million containers. Dubai has been the city of choice for the distribution centers and regional offices of most multinational companies.</li>\r\n 	<li>Khorfakkan Port is a major port and a key player in handling container shipments.</li>\r\n 	<li>Fujairah is the fourth largest port in handling and providing bunker services and storage for bunkers. Most of the bunker supply for the Gulf and the Indian Ocean is done through Fujairah.</li>\r\n 	<li>Abu Dhabi has invested heavily in its major ports which continue to grow rapidly.</li>\r\n</ul>\r\nEMAC will provide a natural choice for the shipping industry and associated industries to settle their disputes through specialized arbitration transaction. EMAC’s structure is designed to provide services to local, regional and international shipping communities. Dubai and the UAE hope that in time EMAC will take its place alongside the established centers for maritime arbitration.'),
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(94992, 5158, 'content', 'May 2015\r\n\r\n<hr />\r\n\r\nFor this reason the motto of the House of Stark is “Winter is Coming” - words which send a warning and remind of the need for planning and vigilance.\r\n\r\nFor every family in business, the transition between generations can be winter of despair and if not handled properly can lead to the paralysis and death of the business.\r\n\r\n<strong>How Can Family Businesses Survive?</strong>\r\n\r\nFamily businesses are the cornerstone of most economies in the Middle East. Research by the Family Business Institute shows that only 30% of family businesses survive to the second generation, 12% to the third generation whilst only 3% continue through the fourth generation and beyond.\r\n\r\nSuccession planning and good governance are the keys to keeping successful families together. The absence of these key elements has driven many families to legal and financial problems and ultimately opens family conflict. Disruption of business operations, failure of business continuity and, worst of all, the decay of family ties, represent the sad legacy.\r\n\r\nSuccession planning and robust governance arrangements may be viewed as unnecessary by founders, especially where founders command complete control of both the family and the business. However, in time, the number of stakeholders will proliferate due to inheritance processes. Often, consensus amongst the stakeholders becomes difficult.\r\n\r\nAwareness of the importance of succession planning and governance amongst Arabian Gulf families has come a long way in the past few years. Many families are initiating the building of the machinery to enable the second generation to step in and go forward.\r\n\r\n<strong>Why are Succession Planning and Governance Urgent?</strong>\r\n\r\nThreats in the absence of succession planning appear mainly at the transition, the time when the founder and patriarch of the family and the business passes or can no longer be involved.  Under Middle Eastern legal systems, the lack of preparation for such a scenario usually results in a temporary freeze on dealings with the assets of the founder and the business.\r\n\r\nLack of succession planning will also result in splintered real estate ownership at the death of the founder which usually leads to cumbersome selling, development and management of property. Furthermore, it exposes the heirs, as the new owners, to liability against any risks arising out of real estate occupation (e.g. liability for fires or serious accidents in buildings).\r\n\r\nAnother significant risk is the lack of unanimous agreement on business leadership amongst the heirs resulting to a decision-making void. This scenario degrades business decisions and encourages shifting alliances and power struggles between family members. Many family businesses are challenging to run. Not all family members are interested in maintaining the business and not all family members possess the skills, aptitude and experience to do so successfully.\r\n\r\n<strong>Forced Heirship Challenges </strong>\r\n\r\nSharia Law forms the basis of Islamic jurisprudence. Islamic jurisprudence includes both laws and regulations relating to the practices of the religion of Islam as well as laws and regulations relating to possession, inheritance, finance and other aspects of life.\r\n\r\nIn the UAE for example, the UAE Personal Affairs Law contains a formula for division of assets which reflect Sharia principles.\r\n\r\nFamily owned businesses in the Gulf region face additional challenges because they must take the inheritance rules into account when considering succession planning. Sharia inheritance rules aim to conserve and distribute wealth fairly across the generations; and to protect the rights of minors, family members, and orphans.\r\n\r\nThese rules are mostly concerned with fairness in inheritance but if stewardship arrangements are not put in place for complex businesses, fairness of distribution can also lead to fragmentation of ownership and decision making. Furthermore, whilst the Courts have a system in place for protection of minors, the process itself may neglect the needs of the business as a result of the requirement to comply with meticulous court procedures in relation to decision-making process affecting minors’ interests.\r\n\r\nThese challenges may be mitigated by designing a Sharia compliant structure which accommodates large and complex business holdings yet respect and implement the principles and spirit of Sharia. These structures can also be reviewed and approved by an Islamic scholar.\r\n\r\n<strong>Corporatizing Family Arrangements</strong>\r\n\r\nAn essential part of succession planning is the corporatization of family arrangements. In order to corporatize the family arrangements, a suitable corporate structure must be selected. Which corporate structure is viable will depend on a number of factors such as the nature of the business and type of business activities involved, its geographic location, the presence of real property assets and their locations, the complexity of the family arrangements required and many more elements.\r\n\r\nAll family assets must be quarantined within the collective family corporate structure selected and the shareholding must be distributed appropriately amongst the founder, family members, and others as the case may be. This should be followed by a binding document, i.e. family constitution, shareholder’s agreement or trust deed supported by the relevant Memorandum and Articles of Association (where applicable) to reflect and detail stewardship arrangements and reflect and impose the family governance arrangements.\r\n\r\nIt is evident that some structures, such as corporate structures established in “onshore” GCC areas (i.e. areas not confined to free zone) are not suited at all for succession planning purposes in comparison to other legal structures. This is due to their inflexible nature and the significant involvement of governmental authorities.  Other legal structures are superior vehicles for succession planning, such as legal structures involving common-law trusts.\r\n\r\n<strong>Selecting Legal Structures for Families</strong>\r\n\r\nAmongst the obstacles family businesses in the GCC face when considering onshore structures arise from limitations embedded in commercial companies laws. Comprehensive family arrangements may be difficult to implement through a corporate structure governed by the respective local onshore companies’ law.\r\n\r\nCorporate structures, specifically those in the UAE and the other GCC countries, are relatively rigid. Even where a family constitution is put in place to reflect and impose the family governance arrangements which cannot be included in the Memorandum and Articles of Association of a company, the establishment of a practical and enforceable link between a set of Memorandum and Articles of Association in a form consistent with the companies law and a “non-standard” family constitution (operating as a binding shareholders’ agreement) may be challenging due to prescriptive legal requirements (e.g. mandatory statutory rights of pre-emption).\r\n\r\nIn contrast, trust structures can be designed to preserve the wealth of the family as a unit and are well suited to an enduring family structure.\r\n\r\nCommon-law trusts can be administered according to the wishes of the founders. Where a corporate trustee is utilised, the benefits of these arrangements can be reinforced by the trustee’s perpetual succession and limited liability.\r\n\r\nHowever, common-law trusts are often unviable for GCC family owned businesses. A foreign trustee would be deemed “foreign” for the purpose of business licensing rules and land ownership in GCC countries, and the trust deed itself would not be recognised or enforced in GCC’s onshore courts.\r\n\r\nOne avenue which may be available for certain families is the Dubai International Financial Centre (“DIFC”), a financial free zone which is a “stand-alone” jurisdiction, governed by a separate set of laws, rules and regulations informed by the common law of England.\r\n\r\nDIFC laws allow trust structures to be the basis for company and asset holding arrangements of the type available in common-law jurisdictions such as the UK, Cayman, and BVI, making the DIFC a recognized platform for wealthy families to set up holding companies to manage private family wealth and family structures in most of the GCC.\r\n\r\nAmongst the many advantages the DIFC offers, a company established in the DIFC and wholly owned by GCC nationals is considered to have GCC status in Dubai and in a number of countries around the GCC. Hence, the DIFC trust structure can work for GCC nationals with GCC assets.\r\n\r\nGiven the diversity of families in business in the region, there will never be a “one-size fits all” solution. Each family business succession plan must be considered and developed independently taking into consideration many factors such as the founder’s vision for both the family and the business, the relationship between the founder and family members, the relationship amongst the family members themselves, the nature of the business, the corporate strategy desired, the business assets and their geographic locations and many more.\r\n\r\n<strong>Signing a Binding Arrangement</strong>\r\n\r\nLegally binding arrangements should be put in place to govern the affairs of the family stakeholders and record the rights and duties of the stakeholders and detail stewardship arrangements. Where applicable, the document recording these arrangements should be, to the extent possible, supported by the relevant Memorandum and Articles of Association. This binding document may be a family constitution, a shareholder’s agreement or a trust deed.\r\n\r\nThis binding document in most cases is a comprehensive document that covers and regulates many aspects of the family and its business.\r\n\r\nThe binding document determines, amongst other matters, who from the family is eligible to own a stake in the business, restrictions on dealing with such stake, board membership eligibility and the mechanism of its election, the ultimate controlling body, dividends policy, reserved matters, exit policy and valuation of shares, conflicts of interest, competition and many other matters.\r\n\r\nIn trust structures, the family arrangements are usually embedded in the trust deed and not Articles of Association or shareholders’ agreements. Family members enjoy almost unlimited flexibility in designing their family arrangements under the trust deed. Also, the trust deed is a confidential document that is not publicly available. In most jurisdictions which have trust laws such deeds are not subject to any filing with any authorities. Hence, the family can ensure total confidentiality of their arrangements.\r\n\r\n<strong>The Importance of Taking Action Now</strong>\r\n\r\nFamily businesses may face many challenges both on the business side and the family side. Therefore, it is important to put in place a coherent structure that will protect the family legacy and wealth, preserve the legal rights of the family members and at the same time ensure that the business grows and succeeds.\r\n\r\nNow is always the right time for families to take the necessary actions to avoid falling into the pitfalls other families have endured due to the lack of proper succession planning. Examples and cases from the real world have proven that preservation of family wealth, continuation of the legacy of the founder’s business and the seamless transition into next generations is a result of taking appropriate action long before the transition occurs.\r\n\r\nEvery family business must face generational change – so for every family in business “Winter is Coming” and they must be prepared for it.'),
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(95007, 5159, 'content', 'May 2015\r\n\r\n<hr />\r\n\r\nThe purpose of the Competition Law is clear: to open up markets in Oman to growing players and reduce the effect that larger market players have on prices and flow of products and services. Its aim is also clear: to reduce the exploitative forces on consumers occasionally imposed by holders of significant market power.\r\n\r\n<strong>Key areas addressed by the Law</strong>\r\n\r\nReaders of the Competition Law will draw similarities with equivalent legislation adopted by other members of the Gulf Co-operation Council and with Articles 81 and 82 of the EC Treaty Establishing the European Community.  The Competition Law governs the following practices:\r\n<ul>\r\n 	<li>Monopolies: arrangements that seek to control the quantity and prices of products or services are banned.</li>\r\n 	<li>Dominant market practices: simply being dominant is not unlawful but, dominance combined with participating in practices that aim to eliminate or restrict other market players is. The threshold above which dominance is established is set at 35% of the relevant market.</li>\r\n 	<li>Joint venture / merger notification: acquisitions, mergers or arrangements that would lead to a person or group of persons becoming dominant require advance clearance from the Consumer Protection Authority (“CPA”).</li>\r\n</ul>\r\n<strong>Effect of the Competition Law on the Omani Market </strong>\r\n\r\n<strong>Monopolistic Arrangements</strong>\r\n\r\nExperience from around the world highlights that not all monopolies have the effect of restricting or damaging competition and the legislation recognises this by outlawing only those arrangements which have the effect of harming competition.\r\n\r\nThe legislation has additional bite through its claim of extra-territorial effect so that if, for example, a contract is made in Japan, between a Japanese car producer and its Omani distributors, which has the effect of limiting the monthly supply of spare car parts into Oman and thereby keeping the price of those spare parts artificially high, the contract would likely be deemed unlawful by a court in Oman.\r\n\r\n<strong>Anti-competitive Arrangements</strong>\r\n\r\nThe legislation bans arrangements that restrict competition in Oman regardless of the market share of the wrongdoer.  The following are expressly prohibited:\r\n<ul>\r\n 	<li>Requiring resellers to sell at a particular price or offer a particular discount</li>\r\n 	<li>Limiting the supply and flow of products by “warehousing”</li>\r\n 	<li>Carving up the market into distinct territories or by reference to specific clients</li>\r\n 	<li>Acting in a way which prevents or obstructs other market players</li>\r\n 	<li>Refusing to deal with particular persons</li>\r\n 	<li>Collusion on bids and tenders</li>\r\n</ul>\r\nAgain, the legislation claims extra-territorial effect and arrangements (whether written or not) concluded outside the Sultanate that contain any of the above are likely to be deemed unlawful.\r\n\r\nA curious situation arises under this category of prohibited actions.  If, for example, a German supplier of state-of-the-art air conditioning units approaches an Omani distributor, the distributor may only be willing to take on the risk of marketing the product if it is given incentives and protection which could take the form of an exclusive arrangement.   Would such an arrangement be deemed anti-competitive on the grounds that other distributors are excluded from the market?  Or could the Court be persuaded that the agreement was in fact pro-competition on the grounds that a key new product was being marketed in Oman to the benefit of inhabitants?\r\n\r\n<strong>Abuse of a dominant position</strong>\r\n\r\nAs outlined above, dominant market players are not being asked to dispose of businesses and assets in order to fall outside the definition of “dominance”.  It is abuse of that dominant position which is targeted and the matters listed below are considered abusive practices if conducted by dominant market players:\r\n<ul>\r\n 	<li>Predatory pricing: selling products or providing services at depressed prices for a prolonged period of time to wipe out or otherwise damage competitors.</li>\r\n 	<li>Imposing import restrictions: for example, using market power to limit the quantity of competing products passing through the sea port.</li>\r\n 	<li>Creating high barriers to entry: imposing special conditions on a purchaser of products or dealing with them in a way that places them at a competitive disadvantage, for example where a manufacturer imposes an obligation on smaller distributors to make investments in expensive retail premises to market the products.</li>\r\n 	<li>Refusing to deal: for example, a principal imposing an obligation on its distributor of premium writing instruments not to deal with a supplier of generic refills. The purpose of this is to promote the principal’s higher priced refills.</li>\r\n 	<li>Price reselling: fixing resale prices of products in a territory without reference to whether the market can sustain those prices.</li>\r\n 	<li>Warehousing / creating shortages: for example, by withholding products from the market place to keep prices of products already in the market place at an artificially high level.</li>\r\n 	<li>Creating product surplus or deficit: flooding the market with a product to lower the prices and drive out weaker competitors or sucking up supply to create a shortage to increase the price.</li>\r\n</ul>\r\n<strong>Creation of Economic Concentrations</strong>\r\n\r\nClearance from the CPA must be obtained before creating an economic concentration.  Economic concentrations in Oman are likely to be created by merger, acquisition or joint venture between two or more companies.  The threshold above which clearance would be required for the concentration is a 35% share of the relevant market.  Creation of an economic concentration with a relevant market share of greater than 50% is prohibited.\r\n\r\n<strong>Enforcement and Criminal Sanctions </strong>\r\n\r\n<strong>Powers of the CPA</strong>\r\n\r\nIt is noteworthy that the CPA has been given heightened powers allowing it to monitor infringements and enforce the Competition Law in a way that would be expected by a regulator in Western jurisdictions.  CPA inspectors, who are treated as officers of the court, have authority to conduct inspection of commercial premises - without notice - and report findings of wrongdoing including the right to bring court claims against the wrongdoers.  Obstructing or misleading these inspectors – and destroying information pertinent to the investigation - is a criminal offence which will attract a prison sentence and a fine of up to USD250,000.\r\n\r\n<strong>Criminal Sanctions and fines</strong>\r\n\r\nCreation of monopolistic arrangements, the abuse of a dominant position and entering into anti-competitive agreements are punishable with a prison sentence of up to three years along with a fine equivalent to up to 10% of the total annual sales derived from the wrongdoing.\r\n\r\nFailure to obtain clearance from the CPA for an economic concentration attracts a prison sentence and a fine of up to USD250,000.\r\n\r\nThe extra sting in the tail of the Competition Law comes in the form of corrective sanctions: in addition to the sanctions described above, the court has power to require the contravention to be corrected, for example, by requiring a dominant market player to stop abusive practices or directing an economic concentration to dispose of its assets to reduce its market share.  Failure to comply with these corrective sanctions attracts daily fines of up to USD25,000 and repeated contravention can ultimately lead to a total shut down of the offending business.\r\n\r\n<strong>Sanctions on senior management</strong>\r\n\r\nThe Competition Law makes it clear that the penalties described above will be imposed on members of the board of directors and all officers of the legal entity involved in the wrongdoing.\r\n\r\n<strong>Those likely to be most affected by the Competition Law</strong>\r\n\r\nWhile the legislation applies to the entire private sector, there are a number of sectors which are likely to come under scrutiny in the foreseeable future:\r\n\r\n<strong>Infrastructure and construction:</strong> the CPA will be keen to ensure that bids and tenders are conducted in a transparent manner without collusion or price fixing in any form by private market participants.  This dovetails with the Sultanate’s recent focus on stamping out bribery and corruption in this sector.\r\n\r\n<strong>Commercial agencies:</strong> there are a number of standard practices in the automobile sector which could become open to challenge.  Such practices are reflected in contractual provisions between a supplier and the local distributor and involve some or all of the following:\r\n<ul>\r\n 	<li>requiring spare car parts to be purchased only from the supplier and from no other person, thereby closing off the market for generic spare parts;</li>\r\n 	<li>exclusive distribution arrangements which exclude other competitors from entering the market;</li>\r\n 	<li>export bans, namely provisions which prohibit a distributor from marketing outside its designated territory; and</li>\r\n 	<li>territorial protection for a particular distributor.</li>\r\n</ul>\r\n<strong>Supermarkets:</strong> there is a small number of supermarket operators in Oman, only one or two of which have a major presence in the malls of Oman.  Given the convenience of having a supermarket within a mall a case could be made that consumer choice has effectively been limited and that major names are in a privileged position and are able to control product prices.\r\n\r\nOther areas which could be affected by the legislation include the markets in sanitary materials, pharmaceutical products, oil &amp; gas machinery and products.\r\n\r\n<strong>Key areas not addressed by the Legislation</strong>\r\n\r\n<strong>Interpretation</strong>\r\n\r\nWhile the Competition Law has undoubtedly filled a hole in the legislative framework in Oman, as is the case with any new piece of legislation, the manner in which the courts interpret some of the key provisions will be critical, particularly when ascertaining the share of a market held by a dominant player or establishing the relevant market.  The test for dominance has no clear formula and there is little guidance or relevant case law on the meaning of “relevant market”. These are issues that have troubled courts in other jurisdictions and are likely to result in a number of test cases brought before the Omani court.\r\n\r\n<strong>Exclusivity of Commercial Agents</strong>\r\n\r\nThe other key area that remains unclear has been noted above in relation to automobile commercial agencies but applies to all commercial agencies.  Are all exclusive commercial agencies, which appear to limit competition, at least contractually, damaging to the consumer? Is the German supplier of state-of-the-art air conditioning units likely to postpone investing in Oman until clear guidance has been set by the Court?\r\n\r\nMany principals have master agency agreements over the MENA region, which allow principals to control pricing and the flow of goods into the region.  The legislation applies to practices that affect the Omani market, which means that a UAE-based agent supplying goods into Oman will not, at least in theory, be able to escape the arms of the law simply by virtue of being located outside Oman.  In practice however, if the agent is found in breach of the law in Oman, would a court in the UAE enforce the judgment? Would the CPA intervene and block importation of the agent’s activities in Oman?\r\n\r\n<strong>Future impact of the Competition Law</strong>\r\n\r\nMuch depends on the role of the CPA in policing and enforcing the legislation. It may simply decide to act only on firm complaints where there are clear and indisputable cases of anti-competitive behaviour, in which case it may be some time before the courts of Oman have an opportunity to interpret the legislation.  The alternative is to take an aggressively pro-active role by using its powers to investigate specific markets, gather evidence of anti-competitive practices and accelerate the effect of the legislation.\r\n\r\nGiven Oman’s desire to present its economy as a free market attractive to all investors, it would be sensible to infer that the legislation will be interpreted in a way that highlights the importance to Oman of preserving its economic significance in the GCC and attracting investment from within and outside the GCC.'),
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(95024, 5160, 'content', 'May 2015\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">Social networking is a great tool to build a business, maintain contact with consumers and create word of mouth. Twitter is a great example of this, if a comment regarding a product or even a service is ‘tweeted’ and ‘liked’ and the comment is ‘re-tweeted’, such action can have a ripple effect and thereby allow the business to expand its reach. Likewise, a business’ online presence is also strengthened by maintaining an up to date website with up to date information, and by allowing visitors to the site to follow and connect with the business and ‘like’ the goods or services offered.</p>\r\n<p class=\"MsoNormal\">In the design and creative process for either online or printed advertising, there are a number of considerations to be made, namely how and where might it work best to integrate social media links and icons. One of the most obvious solutions is to provide a clear visual link through to the related social media accounts using an icon. The Facebook, LinkedIn, Instagram, Twitter and YouTube logos are ubiquitous and commonly used by businesses and individuals through various platforms such as on their websites and even their printed matter. However, the common question is whether the use of such logos and designs is permitted and, if so, to which extent.</p>\r\n<p class=\"MsoNormal\">Under the UAE trademark law, a trademark owner can legally prevent others from unauthorised use of its trademarks. However in many jurisdictions there is a concept as to ‘fair use’ of trademarks. Briefly, the concept of ‘fair use’ as it applies to trademarks, allows a third party to use another party’s registered trademark and logos for the purpose of description and identification. However, there is a fine line as to how the trademark and logo are used. Any alteration in the permitted trademark and design, or any use of the trademark and design in a manner which can be construed as the trademark owner endorsing the third party’s goods and services, can be interpreted as unauthorised use. Under the UAE trademark law, using another trademark for the purposes of comparing, endorsing or generally taking advantage of the goodwill associated with the trademark can also be interpreted as unlawful use and expose the user to liability. Further adding ambiguity to the debate of fair use, is the fact that the UAE trademark Law does not contain a specific provision as to the ‘fair use’ principle.</p>\r\n<p class=\"MsoNormal\">Despite the fact that the UAE trademark law does not contain a ‘fair use’ doctrine, the social media companies have a general worldwide policy that use of their logos are ‘free use ‘so long as the users of their designs respect the boundaries. It is common that brand owners who allow third parties to use their trademarks and designs, either through a licence agreement or free use, will often establish quality control provisions to maintain their brand integrity. By way of example, the Facebook logo is exclusively used with the blue and white colours. As such, any modification of the design and colour can have a negative impact of the Facebook logo and create confusion as to the brand’s association.</p>\r\n<p class=\"MsoNormal\">Below is a description of how some of the social media logos can be used and things to avoid:</p>\r\n<p class=\"MsoNormal\"><img src=\"http://www.tamimi.com/en/media/get/20150520_Social-media-logos.jpg\" /></p>\r\n<p class=\"MsoNormal\">If you intend to use or feature any social media trademarks and designs it is highly advised to visit the brand owner’s website and review the guidelines as to the proper use. By conducting the proper and necessary due diligence from the onset, it will avoid unnecessary problems or conflict with the brand owners of these trademarks and designs.</p>\r\n<p class=\"MsoNormal\"></p>'),
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(95057, 5163, 'content', 'June - July 2015\r\n\r\n<hr />\r\n<p class=\"MsoListParagraph\">These themes were also brought into sharp focus in the Lance Armstrong scandalstory a few years ago.</p>\r\n<p class=\"MsoListParagraph\">In this article we discuss:</p>\r\n\r\n<ul>\r\n 	<li>The key points in the FIFA and Armstrong cases</li>\r\n 	<li>The extra jurisdictional nature of the US justice system</li>\r\n 	<li>Whistle blowing protection- internationally and within the GCC</li>\r\n 	<li>Actions that a GCC employer can take to protect whistleblowers and punish wrongdoers</li>\r\n</ul>\r\n<p class=\"MsoListParagraph\"><strong>Football deflated</strong></p>\r\n<p class=\"MsoListParagraph\">What should have been just another routine week for FIFA has turned into a spate week of arrests of several high ranking FIFA officials on corruption charges. The investigation began in surreal circumstances- a pursuit down Fifth Avenue of a larger than life character riding a mobility scooter who had two expensive apartments, one for him and one for his cats<a href=\"#_ftn1\">[1]</a>. The man, Chuck Blazer, was a high ranking FIFA executive who was living the high life with no ostensible explanation for how it was being funded.</p>\r\n<p class=\"MsoListParagraph\">This led firstly to an IRS investigation and then an FBI one. In 2011 Blazer was given a choice to cooperate with the FBI investigation or face the full wrath of the bureau and with the real possibility of a long stretch in prison. He chose to cooperate. Since then Blazer has given up several colleagues and friends and recorded incriminating FIFA conversations involving corrupt practices.</p>\r\n<p class=\"MsoNormal\"><strong>Spinning tales</strong></p>\r\n<p class=\"MsoNormal\">Rewind a few years to the Lance Armstrong case. The US anti doping authority, USADA, compiled a damning report against Armstrong including testimonies from 11 former teammates that he used performance-enhancing drugs. This led to Armstrong being stripped of his 7 Tour De France victories by the international cycling union, UCI.</p>\r\n<p class=\"MsoNormal\">The common threads in both cases are the use of employee informants and the long reach of the US justice system.</p>\r\n<p class=\"MsoNormal\"><strong>Employee informants</strong></p>\r\n<p class=\"MsoNormal\">The growing use of employee informants by the US justice and anti-doping authorities follows the very successful use of these very same tactics in dealing with organised crime and racketeering enforcement over the last few decades.</p>\r\n<p class=\"MsoNormal\">When one employee breaks ranks it often leads to a cascading effect whereby his evidence is put to another of his colleagues and they are given the option to cooperate or face the full force of the law. As more employees cooperate the pressure on the hold-outs becomes colossal. Hence a compelling dossier can be built up by sheer numbers of witnesses who are prepared to testify. In the Armstrong case all his teammates of note testified against him. There were previous investigations into the allegations against him but they didn’t assemble such a powerful collection of voices.</p>\r\n<p class=\"MsoNormal\">It is too early to say how the FIFA case(s) will proceed but one assumes that the FBI feels it has enough evidence already to obtain verdicts and may also benefit from the ‘cascading effect’ described above.</p>\r\n<p class=\"MsoListParagraph\"><strong>Long reach</strong></p>\r\n<p class=\"MsoListParagraph\">In the case of the FIFA charges, the US investigators were able to charge people, including non-US citizens living outside of the USA for crimes that were not committed on US soil. This can happen if an aspect of the alleged crime takes place within the USA.  For example, if an e-mail has passed through a US based server, or a wire transfer (for the purposes of bribery) originates in the US, this can be used as evidence to indict a person under US law.</p>\r\n<p class=\"MsoListParagraph\">In respect of the FIFA investigation, the US and Swiss governments have worked together jointly, but it is ultimately Switzerland’s prerogative to extradite the officials. In order to extradite non-US citizens, US authorities need to prove that the alleged crimes are also crimes in Switzerland.</p>\r\n<p class=\"MsoListParagraph\">In some cases, defendants in other European countries have been able to delay their extraditions to the U.S. for over a decade.,  Hhowever, even if these officials are not extradited to the US, the US can issue notices to other countries, that would allow for immediate arrest and detainment of the FIFA officials if they ever set foot in that country.</p>\r\n<p class=\"MsoListParagraph\">The Armstrong case was interesting in that the USADA investigation led to the loss of his titles won in France and which were validated by the UCI. USADA claimed it had the power to nullify his titles on the basis that it is a constituent body of the World Anti-Doping Agency (WADA) and the UCI is a signatory to the WADA Code. Ultimately this interesting jurisdictional issue became academic as the UCI took swift action, on the basis of the USADA report, to nullify the Tour result itself.<strong> </strong></p>\r\n<p class=\"MsoNormal\"><strong>Whistle blowing protection- internationally and within the GCC</strong></p>\r\n<p class=\"MsoNoSpacing\">The US (Sarbanes-Oxley Act 2002) and UK (Public Interest Disclosure Act 1998) provide protection for employees if they raise allegations of wrong doing for reasons of public interest. Many other jurisdictions have similar provisions.</p>\r\n<p class=\"MsoNoSpacing\">Currently there is no similar whistle blower protection legislation in the GCC. However the UAE government issued a draft bill to establish an anti-corruption authority named “The Federal Authority for Combating Corruption” (FACC). The bill states that the FACC, once established, will issue regulations to protect whistle-blowers. Such regulations shall guarantee the freedom, security and well-being of whistle-blowers and protect them from being prosecuted criminally, civilly or administratively.</p>\r\n<p class=\"MsoNoSpacing\">The bill defines a whistle-blower as a person who reveals information - in good faith – pertaining to a crime relating to corruption without being a principal or accessory to the reported crime. In addition to this, a witness, expert or victim will also be considered as whistle-blowers. Whistle-blowers report actions that come to their knowledge regarding allegedly dishonest or illegal activities occurring in a government department or private company or organisation. The bill creates a general presumption that a whistleblower is acting in good faith if the whistleblower reports the crime for the apparent benefit of the public interest and in the belief that there is enough information or proof to justify reporting it.</p>\r\n<p class=\"MsoListParagraph\">Interestingly the protections envisaged by FACC would not have been available to the key witnesses mentioned above in respect of the FIFA or Armstrong cases as they were accomplices to the criminal act.</p>\r\n<p class=\"MsoListParagraph\">Notwithstanding the lack of legislation in the region many employers have put in place their own whistle-blowing policies in order to promote greater accountability.  Additionally, many companies offer a compliance disclosure hot line, for employees to contact when the normal channels for airing grievances or concerns are unavailable or inappropriate.</p>\r\n<p class=\"MsoNormal\"><strong>Actions that a GCC employer can take to protect whistleblowers and punish wrongdoers</strong></p>\r\n<p class=\"MsoNormal\">Where a sporting organisation (or indeed any employer in the GCC) is faced with a whistle-blowing case it will have to, in the absence of legislation, rely on its own internal procedures in respect of the protection to afford to the whistle-blower and the procedures for moving forward with the investigation. If these policies and procedures are not already in place then the recent stories emanating from Zurich will surely focus the minds of administrators to implement them as a priority.</p>\r\n<p class=\"MsoNormal\">In respect of the employee who is the subject of the whistle-blower’s allegations (“<strong>Suspect</strong>”) he will be entitled to his statutory employment protections which includes the right to certain minimal due process in respect of a disciplinary/termination decision. Specifically the Suspect is entitled to know the allegations made against him and the evidence in support and be allowed to provide his defence.</p>\r\n<p class=\"MsoNormal\">Accordingly a practical issue may arise in relation to what level of confidentiality/anonymity can be provided to the whistle-blower. If the whistle-blower’s allegations can be verified by other sources then no issue arises. However if the whistle-blower’s direct evidence is critical to the disciplinary hearing then the organisation needs to consider what undertaking to provide anonymity it can give, if any, to a whistle-blower in such circumstances.</p>\r\n<p class=\"MsoNormal\">If the Suspect is found guilty of the alleged offence then he may be terminated in accordance with the applicable Labour Law. Practically however there are hurdles. Unlike the US and UK, gross misconduct is defined in the GCC countries and very narrowly so. The Labour Court, particularly in the UAE, would expect to see judicial findings to uphold allegations of dishonesty or bribery. Therefore from a practical perspective the sporting organisation or employer is unlikely to be prepared to wait for a judicial process to reach completion (including appeals) so in certain cases the decision is made to terminate the employee in the knowledge that there is a legal risk of a compensation claim.</p>\r\n<p class=\"MsoNormal\"><strong>Ivor McGettigan</strong><strong> (</strong><a href=\"mailto:i.mcgettigan@tamimi.com\">i.mcgettigan@tamimi.com</a><strong>) is a Partner in the Employment Practice and a key member of Al Tamimi’s dedicated Sports Law practice.  Ivor is a highly experienced Employment Lawyer with more than 16 years of professional experience, having also acted for sports federations, clubs and teams in a range of cases.  </strong></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> Source: The Guardian 27 May 2015</p>\r\n\r\n</div>\r\n</div>\r\n&nbsp;'),
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(95072, 5164, 'content', 'June - July 2015\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">The award of the 2022 FIFA World Cup has given a greater impetus to infrastructure development and has served to create a timeline for delivery. The numbers are staggering (particularly given the size and current population of Qatar): USD $35 billion for a new rail project, USD $20 billion for upgrading the road network, USD $11 billion on further upgrades to the Doha International Airport, USD $5 billion on a new deepwater sea port, new and refurbished sports stadia and 170 hotels comprising over 70,000 hotel rooms.</p>\r\n<p class=\"MsoNormal\">Of particular relevance to the operators of those new hotels, the hotel industry in general and other tourism sectors in Qatar is Law number 6 for the year 2012 (”Tourism Licensing Law”), which was put into place to regulate business activities in the tourism industry in Qatar to which the Tourism Licensing Law applies. Those business activities fall under two main categories as follows:</p>\r\n\r\n<ul>\r\n 	<li>“Tourist establishments”, which means places operating mainly to accommodate tourists, such as entertainment establishments and specialised clubs, and other places allocated to provide services for tourists, such as tourism offices, offices offering tourist transport, tourist guide offices and time-sharing places, and any other establishment deemed to be a tourist establishment in accordance with a decision of the Minister of Economy and Commerce on the proposal of the President of the Authority.</li>\r\n 	<li>“Tourist activities”, which means any activity of transport of tourists including transport of tourists on trips onshore or offshore, the activities of tour guides, time-sharing and any other activity deemed to be a tourist activity in accordance with a decision of the Minister of Economy and Commerce on the proposal of the President of the Authority.</li>\r\n</ul>\r\n<p class=\"MsoNormal\">Pursuant to Article 2 of the Tourism Licensing Law:</p>\r\n<p class=\"MsoNormal\"><em>“Establishing, using or managing a hotel or tourist establishment or the practicing of any tourist activity shall be prohibited unless a licence has been obtained from the Authority in accordance with the requirements and regulations established by this Law and the implementing regulations thereof”.</em></p>\r\n<p class=\"MsoNormal\">The concerned authority mentioned above is the Qatar Tourism Authority (“Authority”). Article 3 of the Tourism Licensing Law provides that where any person intends to carry out an activity requiring a licence from the Authority, an application must be made on the form provided by the Authority. Once the applicant has completed the form, attached any documentation required by the form and submitted the application, a committee within the Authority will review the application and issue a response within thirty days from the date of submission of the application. If the Authority does not respond before expiry of this period,  it is deemed to be a rejection of the application. If the application is approved, a preliminary approval will be issued under Article 5 of the Tourism Licensing Law setting out certain pre-requisites to be met by the applicant.</p>\r\n<p class=\"MsoNormal\">When the applicant has met these requirements, it must deliver a written notification to the Authority. Within fifteen days of the notification, the Authority’s inspectors will carry out an inspection to verify compliance and, based on this inspection, the Authority can issue a licence.</p>\r\n<p class=\"MsoNormal\">Pursuant to Article 6 of the Tourism Licensing Law, a three-year licence will be issued for hotels and a one-year licence will be issued for tourist establishments and other tourism activities. On expiry, the licence can be renewed for further or similar periods.</p>\r\n<p class=\"MsoNormal\">Under Article 12 of the Tourist Licensing Law, licensees must to provide adequate opportunities for the training, preparation and development of Qatari nationals at various levels and provide the Authority with information concerning the licensee’s annual training programmes. The Article does not expressly refer to the hiring of Qatari nationals, so it can be interpreted as being aimed at ensuring that knowledge and expertise within the industry is being imparted to Qatari nationals.</p>\r\n<p class=\"MsoNormal\">For any new business requiring a licence, once the applicant has obtained the preliminary approval, it can carry out the procedures for incorporation the business in parallel with meeting the pre-requisites required by the Authority, however final incorporation will not occur until all the requirements of the Authority are met.</p>\r\n<p class=\"MsoNormal\">It is important that all hotel and tourism operators, regardless of whether they are already established in Qatar or are planning on entering the Qatar market to take advantage of the opportunities expected from the 2022 FIFA World Cup, are aware of the licensing requirements and the procedure for obtaining a licence under the Tourism Licensing Law.</p>'),
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(95091, 5165, 'content', 'June - July 2015\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">The Regulations have now been finalised and came into effect as of 14 June 2015.</p>\r\n<p class=\"MsoNormal\">As with the Dubai International Financial Centre (“<strong>DIFC</strong>”) ADGM will be a special free zone and will operating as a new jurisdiction carved out of the UAE and will not be subject to UAE civil and commercial law. English common law shall apply in and form part of the law of ADGM, with appropriate safeguards in order to ensure that any undesirable evolvement of the common law may be overridden by ADGM. This was not unexpected as it was commonly felt that ADGM would create a familiar legal environment for international banks and financial institutions.</p>\r\n<p class=\"MsoNormal\">From an employment perspective the Regulations closely follow those of the DIFC and as such differ in a number of significant areas from the UAE position (which we refer to as ‘onshore’ in this article).</p>\r\n<p class=\"MsoNormal\"><strong>The Key Points</strong></p>\r\n<p class=\"MsoNormal\"><strong>Part-Time Working Arrangements. </strong>For the first time in the UAE, the Regulations provide for part-time working arrangements. In particular, the Regulations state that employee leave entitlements, as well as an employer’s right to terminate for excessive sick leave, shall apply but shall be calculated on a pro-rata basis for part-time employees. In our view this development will be beneficial for both employers and employees, and is in line with the UAE’s stated ambition to achieve greater female participation in the workforce. <strong> </strong></p>\r\n<p class=\"MsoNormal\"><strong>Overtime.</strong> The Regulations stipulate that the maximum working week is 48 hours “<em>unless the Employer has first obtained the Employee’s freely-given and informed consent in writing</em>”. One would anticipate that employers would obtain this consent via the employment contract signed at the commencement of the relationship when the employee is unlikely to challenge it. There is no provision for overtime payment for hours worked in excess of 48 hours.</p>\r\n<p class=\"MsoNormal\"><strong>Annual leave.</strong> Employees are entitled to 20 working days annual leave (as opposed to 22 working days onshore) and are allowed to carry forward up to five (5) working days into the next calendar year.</p>\r\n<p class=\"MsoNormal\"><strong>Maternity Leave</strong>. Employees are entitled to a minimum maternity leave of 65 working days of which the first 33 days are fully paid and the balance is paid at 50% normal rate. This contrasts with the onshore provision which is 45 calendar days paid maternity leave (which equates to 32 working days for those on a 5 day week).</p>\r\n<p class=\"MsoNormal\"><strong>Sick Leave.</strong> The very generous DIFC sick leave provisions are replicated in ADGM. An employee is entitled to 60 working days paid sick leave in any 12 month period. This contrasts with the onshore position where an employee is entitled to 90 calendar days sick leave (equating to 66 working days on a 5 day week basis) of which only one third is paid.</p>\r\n<p class=\"MsoNormal\"><strong>Discrimination.</strong> The Regulations prohibit an employer from discriminating against an employee on the grounds of sex, marital status, race, nationality, religion, age and disability.</p>\r\n<p class=\"MsoNormal\"><strong>Compensation Limits and Applicable Fines</strong>. The Regulations provide that the Board of Directors of the ADGM may make rules setting out applicable fines and/or appropriate limits of compensation for non-compliance with the obligations under the Regulations. However, until such time that any such rules are made, there are no applicable limits on the compensation due for non-compliance with the Regulations.</p>\r\n<p class=\"MsoNormal\"><strong>Data Protection</strong>. The Regulations impose a number of obligations and restrictions with regard to personal data, including the specific purposes for which personal data can be processed, and the circumstances in which an employer is permitted to transfer personal data outside of the ADGM. The Regulations also provide that appropriate measures must be taken by employers to prevent unauthorised or unlawful processing of personal data as well as accidental loss or destruction of personal data.</p>\r\n<p class=\"MsoNormal\"><strong>Probation period</strong>. An employer may place an employee on a probation period of up to six months. This reflects the onshore position but differs from the DIFC (which is silent on the issue of probationary periods albeit that they are routinely used).</p>\r\n<p class=\"MsoNormal\"><strong>Paternity Leave.</strong> For the first time in the UAE private sector, paternity leave of 5 working days is provided to employees in ADGM.</p>\r\n<p class=\"MsoNormal\"><strong>Right to a written contract.</strong> Employees may only be employed pursuant to a written contract which must be in English and signed by both parties. The contract must contain certain fundamental pieces of information such as salary, term, notice period, job title and so on.</p>\r\n<p class=\"MsoNormal\"><strong>End of service gratuity</strong> is calculated the same way as onshore however there is no reduction in gratuity where an employee with less than 5 years service resigns. Gratuity is not payable in cases of gross misconduct or where the employee elects to take a company pension instead.</p>\r\n<p class=\"MsoNormal\"><strong>Termination</strong></p>\r\n<p class=\"MsoNormal\">The Regulations state that, other than rights under the Regulations, applicable common law and the employment contract, an employee shall have no other rights to compensation or payments from the employer on termination of the employment.</p>\r\n<p class=\"MsoNormal\">While there is no express provision for compensation for unfair dismissal nor is there a requirement for an employer to follow established procedures for implementing dismissals, the explicit recognition of common law principles could potentially open the door to employee claims for damages under the common law concept of implied duty of trust and confidence. It is yet to be seen how this may be interpreted and applied in practice.</p>\r\n<p class=\"MsoNormal\">Perhaps in an effort to provide a counter-balance for employees the minimum notice periods in ADGM are more generous for longer serving employees than onshore. For employees with 3 months to 5 years service the minimum notice is 30 days and for those with over 5 years service it is 90 days. The onshore equivalent is 30 days.</p>\r\n<p class=\"MsoNormal\">The employer may terminate for cause (without notice and without end of service gratuity) if the employee’s conduct is such that “<em>a reasonable employer would consider immediate termination to be warranted</em>”.</p>\r\n<p class=\"MsoNormal\"><strong>Post Termination Restrictions</strong></p>\r\n<p class=\"MsoNormal\">The effectiveness of post termination restrictions in the UAE has been debated for some time. Non-compete and non-solicitation clauses will potentially have more bite within ADGM in that the equitable remedy of injunctive relief should be available in the ADGM courts.  This will have the effect of potentially blocking a departing employee from securing employment with a competitor within ADGM until such time as the non-compete is no longer applicable. It would also be open to an employer to claim damages for breach of these clauses. It will be interesting to see the interplay between the DIFC and ADGM jurisdictions on this front and whether either jurisdiction would enforce the restrictive covenant emanating from the other.</p>\r\n<p class=\"MsoNormal\"><strong>Employment Disputes</strong></p>\r\n<p class=\"MsoNormal\">It is proposed that a dedicated employment tribunal system will be established to deal with all employment cases arising in ADGM with its own discrete procedural rules. This should ensure that those adjudicating on employment disputes are specialised and experienced in that field, resulting in just outcomes and efficient case management which can only benefit employers and employees. The draft procedural rules will be submitted for public consultation in a similar manner to the Regulations. Prior to the establishment of that system the ADGM courts will handle any employment disputes.</p>\r\n<p class=\"MsoNormal\"><strong>Regulatory Transition</strong></p>\r\n<p class=\"MsoNormal\">One aspect of ADGM is the creation of a new jurisdiction but another aspect is the formation of a new regulatory body. Most employers currently based in the geographical area that will become ADGM are subject to the remit of the Ministry of Labour (“<strong>MOL</strong>”). Their employees have labour cards (work permits) and the employer is subject to MOL inspection and oversight. There are some government owned entities in the area that are not under the remit of the MOL.</p>\r\n<p class=\"MsoNormal\">When the free zone is operational a transition process will occur whereby employers will get licensed by the ADGM free zone authority (“<strong>FZA</strong>”) and the employees will shift from onshore visas to free zone visas. From an employment law perspective this is a termination of one employment and commencement of another. Employers will need to consider how to deal with accrued benefits like end of service gratuity and annual leave. It is expected that most employers will seek to ‘roll over’ these accrued benefits to the new employment, which may be done subject to the correct agreements being in place.</p>\r\n<p class=\"MsoNormal\">Dependent visas will also have to be cancelled and reissued. Currently it is necessary to produce an Abu Dhabi tenancy contract to obtain a dependent visa in Abu Dhabi (but not for the employee’s visa) and it is not clear yet whether this will change under the new regime.</p>\r\n<p class=\"MsoNormal\">From an employer’s perspective the FZA will replace the MOL as the regulatory and oversight body. Generally speaking free zones are considered to be more relaxed about providing permission for hybrid working arrangements and short term working arrangements.</p>\r\n<p class=\"MsoNormal\">Most free zones have a mediation process (with differing levels of formality) that must be exhausted by the parties to an employment dispute before a party can file a case in court and it remains to be seen whether this is followed in ADGM.</p>\r\n<p class=\"MsoNormal\"><strong>UAE nationals</strong></p>\r\n<p class=\"MsoNormal\">There are explicit onshore requirements regarding the termination of UAE national employees – specifically, the MOL must be consulted at least 30 days prior to the proposed dismissal of a UAE national and its approval for the dismissal must be obtained. These requirements will not apply in ADGM. The same considerations will apply in respect of nationals and non-nationals.<strong> </strong></p>\r\n<p class=\"MsoNormal\"><strong>Emiratisation</strong><strong> </strong></p>\r\n<p class=\"MsoNormal\">Certain onshore Ministerial Resolutions stipulate that a percentage (which varies between certain sectors) of a company’s workforce should be UAE nationals. There is presently no such requirement in ADGM.</p>\r\n<p class=\"MsoNormal\"><strong>Conclusion</strong></p>\r\n<p class=\"MsoNormal\">The Regulations are very employer friendly in that the prospect of obtaining injunctive relief to enforce post termination restrictions is likely to be attractive to employers. The working hour arrangements, which oftentimes can represent a challenge for onshore employers, are also quite flexible.</p>\r\n<p class=\"MsoNormal\">While there is no express provision for unfair dismissal compensation and employers are not required to follow established procedures for implementing dismissals, the explicit recognition of common law principles could potentially open the door to employee claims for damages under the common law concept of implied duty of trust and confidence. It is yet to be seen how this may be interpreted and applied in practice.</p>\r\n<p class=\"MsoNormal\">From the employee perspective there are anti-discrimination and data protection provisions as well as more generous sick leave, maternity leave and also, for the first time in the UAE private sector, paternity leave. Furthermore there is no reduced gratuity where the employee resigns.</p>\r\n<p class=\"MsoNormal\">Overall the Regulations are likely to be welcomed by employers and without doubt they send out a powerful message that ADGM is open for business.</p>\r\n<p class=\"MsoNormal\">Al Tamimi &amp; Company will shortly be holding a client workshop to discuss the final draft of the Regulations.</p>'),
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(95106, 5166, 'content', 'June - July 2015\r\n\r\n<hr />\r\n\r\nBy virtue of these laws all dispositions over real estate units sold off plan must be registered, failure to do so would render such disposition void. This is a matter of UAE public policy.\r\n\r\nGiven that it is generally accepted that the enforcement of an arbitral award may be refused if the subject matter of the dispute is not capable of resolution through arbitration and if enforcement would be contrary to public policy, it is understandable, that due to the mandatory nature of these laws, questions concerning the arbitrability of real estate disputes have arisen. This is supported by the fact that as a result of the court’s broad interpretation of Article 3 of the UAE Civil Code,  concerning public policy, a number of awards settling property disputes have been refused.  Article 3 defines public policy in fairly wide terms including all matters concerning ‘the circulation of wealth’ and ‘rules of private ownership’ which the articles goes on to say are matters for the state and not a private arbitration tribunal. That said, we have witnessed the courts slowly refining their interpretation of the said provision and in turn narrowing their application of the public policy rule.\r\n\r\nThis is most recently evident in the Abu Dhabi Court of Cassation Case No.55 of 2014 where the court made a distinction between circumstances in which the subject matter of the dispute does not relate to a public interest concerning the system of society but relates instead to the private interests of the parties in which conciliation is permitted.  An arbitration clause may be successfully invoked in the latter case.\r\n\r\n<strong>The facts of the case</strong>\r\n\r\nThe Claimant had entered into a sale and purchase agreement for a residential unit in Sky Gardens Tower, Reem Island, Abu Dhabi. The Respondent defaulted in its obligation to achieve timely handover of the unit.\r\n\r\nIn accordance with the arbitration clause in the agreement, the Claimant commenced proceedings before the Abu Dhabi Commercial, Conciliation and Arbitration Centre (“ADCCAC”) to cancel the agreement and recover the payments made to the Respondent totaling AED 590,169.5. An award was rendered by the arbitrator in the Claimant’s favour.\r\n\r\nThe Claimant filed for enforcement proceedings before the Abu Dhabi courts. The Court of First Instance confirmed the award and the Respondent sought by way of a cross-application to annul the award.\r\n\r\nThe Court of Appeal relied on Article 3 of the Civil Code which views the circulation of wealth and rules of individual ownership as matters of public policy and therefore non-arbitrable to overturn the Court of First Instance’s ruling.\r\n\r\n<strong>The Court of Cassation</strong>\r\n\r\nThe Claimant successfully appealed this decision on the basis of misapplication of the law and insufficient reasoning. The Court of Cassation held that “the arbitrator correctly applied the law in declaring his jurisdiction and taking up the application filed for termination of the sale and purchase agreement and recovery of payments made to the Respondent. Such rights can be the subject of conciliation. The dispute is about the termination of a contract for a freehold unit and a claim for the recovery of payments already made due to breach of contract which is not a public policy issue.”\r\n\r\nThe Court of Cassation explained that a rule of law enacted to regulate the circulation of wealth and individual ownership of a state in terms of possession and the acquisition of rights in rem, and the nature and scope of such rights, the means by which they are acquired and extinguished, including rules pertaining to their registration on the property register “are all provisions relating to the monetary system of the State which are essentially public policy.”  As such, they cannot be subject matter for arbitration and any related dispute would fall within the ambit of the local courts even in circumstances where there is a valid arbitration agreement. This reasoning is further supported by the fact that conciliation is not permitted in matters relating to public policy and since, as a matter of public policy, arbitration is not permitted in matters in which conciliation is not permissible,  there can be no arbitration for dispositions of property involving existing rights or creating new ones if a mandatory provision has not been complied with in terms of registering the property since this would be contrary to public policy.\r\n\r\nIf, however, the claimant’s action strictly seeks to terminate the sale contract due to non-performance or breach by the opposing party, the arbitration clause in the contract should be applied. It follows that an arbitral award declaring the termination of the contract in an arbitration proceeding, conducted pursuant to such clause, should not be void.\r\n\r\nIn this instance, the arbitrator issued an award ordering the termination of a sale purchase agreement and the refund of monies by the respondent. The Court considered the arbitral award to be valid, as the settlement of the dispute did not involve the circulation of wealth or public policy, as explained above. The Court of Cassation reasoned that “there is no justification for invoking public policy grounds to apply this mandatory rule of law, which, being unrelated to public policy, can be the subject of conciliation and, in turn, a subject matter for arbitration.”\r\n\r\nTherefore, whilst it is still essential that the disposition of property be registered, the Abu Dhabi Court of Cassation’s recent interpretation of public policy does not preclude a party from invoking an arbitration clause to enforce or rescind a contract, or claim a refund of monies paid, provided it is based on breach of contract.'),
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(95127, 5167, 'content', 'June - July 2015\r\n\r\n<hr />\r\n\r\nWhichever route is taken against healthcare professionals and hospitals, medical evidence will be required to substantiate a malpractice claim. This article will provide a general overview of the role of medical experts (with an emphasis on civil proceedings in medical claims) and discuss a case which sheds light on the Dubai civil court’s approach to situations where there are conflicting medical opinions.\r\n\r\n<strong>Medical Liability</strong>\r\n\r\nArticle 14(1) of Federal Law No. 10 of 2008 (“The Medical liability Law”) defines malpractice as an error that occurs due to a practitioner’s unfamiliarity with the technical aspects of a procedure being undertaken, or due to his negligence.\r\n\r\nThe Medical Liability Law (article 14(2)) sets out the circumstances in which a physician will not be liable:\r\n<ul>\r\n 	<li>If the damage was sustained due to the action of the patient (i.e. refusing to receive treatment or due to an external cause).</li>\r\n 	<li>If the physician followed a certain medical method which, although not the generally accepted method, is a method which followed recognized medical principles.</li>\r\n 	<li>If the medical side effects and complications are known in the medical practice.</li>\r\n</ul>\r\n<strong>The Duty Of Medical Experts</strong>\r\n\r\nA medical expert will address the following two main questions amongst others, which occur in almost all medical malpractice cases:\r\n<ul>\r\n 	<li>Did the doctor follow the standard of care expected of doctors in the same field of specialty?</li>\r\n 	<li>Did the doctor’s failure to follow the standard of care harm the patient?</li>\r\n</ul>\r\nThe medical expert will determine what a competent doctor would have done in the same situation at issue in the case; whether there were any medical errors; and the causal link between the doctor’s actions or inactions and the harm suffered by the patient. The expert will then give an opinion as to whether the doctor met the required standard of care.\r\n\r\n<strong>Civil Court</strong>\r\n\r\nPatients can take medical complaints before the civil courts to claim monetary compensation against healthcare providers and professionals for material, moral and psychological damages. There are no precedents on the figures awarded by the courts in medical malpractice claims. The amounts awarded by the court varies from case to case and is in the discretion of the judge, who assesses the level of damages suffered by a patient following a review of the evidence which usually includes the patient’s medical file, medical expert reports or opinions, and other documentation which substantiate medical expenses incurred by a patient.\r\n\r\nIn awarding compensation for damages, the guiding principle in accordance with the UAE Civil Code (Federal Law No 5 of 1985) is that compensation should be equal to the harm suffered. Damages are the remedy that is used to restore the victim to the position they were in prior to the harm suffered. Direct damages, loss of profit, loss of opportunity, consequential damages and moral damages are the types of damages recognized under UAE law.\r\n\r\nArticle 389 of the Civil Code provides that:\r\n\r\n<em>“The criterion for the entitlement of an aggrieved party to compensation is that the damage should have been suffered as a direct result of the default, and that it has already happened or will occur in the future. Potential damage that is not ascertained will definitely happen in the future is not the subject of mandatory compensation unless it has in fact happened.” </em>\r\n\r\nIn order to receive compensation under the Civil Code, a patient or victim of medical malpractice would need to establish that the healthcare professional or physician was at fault in some way (article 282 Civil Code).\r\n\r\nWhen assessing damages, the court will look into the harm and damage suffered by the patient, the healthcare professional’s actions or inactions and the causal link between the two.\r\n\r\nArticle 292 of the Civil Code provides that:\r\n\r\n<em>“In all cases the compensation shall be assessed on the basis the amount of harm suffered by the victim, together with loss of profit, provided that  is a natural result of the harmful act.”</em>\r\n\r\n<strong>Case Study</strong>\r\n\r\nAl Tamimi &amp; Company recently represented a hospital in a case which demonstrates different opinions of medical experts and how the court rendered its decision based on two contradictory reports from medical expert committees in Dubai.\r\n\r\n<strong>Background</strong>\r\n\r\nA patient was admitted to a hospital in Dubai (the “Hospital” or “Second Defendant”) in May 2009 suffering from symptoms arising out of a disorder in his digestive system. The case had been diagnosed through primary examinations (a colonoscopy), the results of which confirmed the presence of a carcinogenic tumor in the patient’s colon which required immediate surgery.\r\n\r\nThe Treating Surgeon (First Defendant) explained the nature of the surgery that needed to be performed on the patient, which would entail removing the left part of the colon (a left hemolectomy) and the approval of the patient was obtained for conducting the surgical procedure.\r\n\r\nThe first surgery was conducted in mid May 2009 and the patient was released from the intensive care unit the following day as his condition was stable. However, after four days the patient’s condition started to worsen as he began to suffer from symptoms of intestinal and bowel obstruction that necessitated another surgical intervention. Again, the surgeon obtained the patient’s approval for the second surgical procedure and on conducting a colostomy. The second surgical procedure was accordingly conducted five days following the first procedure.\r\n\r\nFour days after conducting the second surgery, the patient started to suffer an infection in the spot of the surgical intervention and developed a fever and deterioration in his health which required admission to the intensive care unit. The diagnosis confirmed a wound infection which needed to be treated by re-opening the surgical wound for debridement to identify the nature of the infection and commence treatment with the suitable antibiotic, in addition to some accompanying treatments in the intensive care unit and daily attention and care to the wound.\r\n\r\nThe patient’s health started to stabilize after being admitted to the intensive care unit.\r\n\r\nIn June 2009, the patient wished to continue his treatment abroad with another doctor and was transferred by a medical evacuation plane to a hospital outside the UAE at the request of his family.\r\n\r\nIn December 2012, when the patient noticed the deterioration in his health (anorexia, lack of energy and weight loss), he consulted the same treating doctor outside the UAE who decided to conduct a Computerized Tomography Scan (“CT-scan”) on the patient’s abdomen, the results of which indicated that his illness had become fourth-degree colorectal cancer.\r\n\r\nThe patient started chemotherapy and all necessary treatment in another hospital in Dubai in December 2012 until he died in March 2014.\r\n\r\n<strong>Medical Complaint Before The Regulator</strong>\r\n\r\nIn February 2010, a year following the patient’s discharge from the Defendant Hospital, a complaint was filed before the Regulator in Dubai against the First and Second Defendant for alleged medical negligence in the surgical procedures performed on the patient.\r\n\r\nThe Regulator’s medical committee found medical errors and substandard care in the First Defendant’s treatment and management for the following reasons:\r\n<ul>\r\n 	<li>The first surgery should have been done laparascopically and not via open cut surgery (open colectomy). The Hospital did not perform the latter surgery due to lack of equipment and skilled surgeons.</li>\r\n 	<li>The patient developed a wound infection because the necessary drugs and equipment were not available at the Hospital.</li>\r\n 	<li>The patient’s colon fistula and open stomach wound were unable to heal which lead to the patient going into a coma and needing artificial ventilation owing to pulmonary complications.</li>\r\n</ul>\r\nThe Hospital (on behalf of the Treating Surgeon) responded and appealed the medical committee’s decision on the followings grounds:\r\n<ul>\r\n 	<li>The medical committee’s allegation that the first surgery should have been done via laparoscopy was incorrect as medical literature has shown that the outcome of both open cut surgeries and laparoscopy have the same effect and outcome. In addition, the morbidity and mortality figures are no different and open colectomy therefore remains an acceptable method of treatment.</li>\r\n 	<li>The Hospital is well equipped for laparoscopic procedures and has various doctors who are licensed, qualified and skilled to perform laparoscopic procedures, contrary to the medical committee’s allegation in this regard.</li>\r\n 	<li>All the appropriate medication was given to the patient to treat the wound infection.</li>\r\n 	<li>Wound infections are well known complications of such surgeries and the patient was managed by laparotomy and colostomy at the time.</li>\r\n 	<li>The allegations of a colon fistula, an open stomach wound unable to heal, and the patient going into a coma and needing artificial ventilation were incorrect. The patient had a colostomy for sound reasons and the wound was being treated by keeping it open with regular irrigation and dressings in accordance with standard medical practice.</li>\r\n 	<li>The patient himself as well as his family refused treatment and was discharged from the Hospital against the Treating Surgeon’s medical advice, and transferred to another hospital outside the UAE.</li>\r\n 	<li>The Hospital adheres to strict infection control policies and its infection control committee monitors infections in accordance with international medical norms.</li>\r\n 	<li>All the documentation in the patient’s medical file at the Hospital (which were enclosed to the response and appeal before the medical committee) demonstrate and confirm there was no substandard care or any medical malpractice in the Treating Surgeon’s treatment of the patient.</li>\r\n</ul>\r\nThe medical committee nonetheless upheld its previous decision against the Treating Surgeon.\r\n\r\n<strong>Civil Case</strong>\r\n\r\nThe patient subsequently filed a civil case before the Dubai court in January 2013 against the Hospital and the Treating Surgeon for compensation as a result of alleged loss and damage suffered due to alleged medical negligence committed by the First Defendant. The patient supported his claim with the medical committee’s earlier findings of alleged medical error and substandard care and a list of the costs and medical expenses incurred in his treatment in Dubai and abroad.\r\n\r\nSince the case contained technical aspects that require expert assessment, the Dubai court decided to refer the case to a specialized medical committee consisting of consultants in the fields of surgery and oncology in Dubai (the “Panel of Medical Experts”).\r\n\r\nThe Panel was instructed by the court to determine whether or not there were any medical errors in the patient’s treatment and in the surgical procedures; the person responsible for such medical errors (if any); the causal link between the medical error and the harm suffered by the patient.\r\n\r\n<strong>Defence to the Patient’s Civil Claim:</strong>\r\n\r\nThe Hospital, represented by Al Tamimi &amp; Company, filed a response to the claim and pleaded that the alleged complications suffered by the patient did not amount to medical error as per the provisions of article 14 of the Medical Liability Law.\r\n\r\nThe defense was supported by medical literature and an opinion from an independent medical specialist who explained, amongst other things, the allegation that the left hemilectomy should have been performed laparoscopically and not by traditional open surgery was misguided for the following reasons:\r\n<ul>\r\n 	<li>There is no consensus that laparoscopic large bowel resection for malignancy is current standard of care. Scientific principles supported by evidence provides that in the short term, laparoscopic large bowel resection confers some advantage in terms of shorter post-operative recovery and hospitalization, but there is no difference in the consequences of postoperative complications with both laparoscopy and open surgery.</li>\r\n 	<li>With regard to long-term oncological outcome, there is no difference between the aforementioned two procedures either. However, recent studies from the UK showed poor survival rates in stage 3 patients operated laparoscopically. The vast majority of large bowel resections for cancer in most countries like the United Kingdom, the United States and South Africa are still conducted by conventional open surgery.</li>\r\n 	<li>The same complications would have occurred in the patient’s case following a laparoscopic left hemilectomy.</li>\r\n 	<li>Wound infection is a common complication of large bowel resections for cancer. It can as well as pulmonary dysfunction complicate any surgery and does not imply any inadequate surgical management.</li>\r\n 	<li>The post-operative complication of bowel obstruction was appropriately managed in a timely manner by the Treating Surgeon.</li>\r\n 	<li>The decision of the Treating Surgeon to resect the bowel for cancer by way of conventional open surgery at the time was in accordance with acceptable medical standards.</li>\r\n</ul>\r\n<strong>The Panel’s Medical Opinion</strong>\r\n\r\nIn summary, the Panel concluded by way of a report to the Dubai court that the treating doctor at the hospital abroad failed to carry out the necessary diagnostic tests and refer the patient to oncology at the appropriate time. The Panel members did not make any references of medical error or misconduct against the First Defendant or any negative remarks against the Hospital with respect to the management and treatment of the patient.\r\n\r\n<strong>The Dubai Court’s Judgment:</strong>\r\n\r\nThe First Instance Court rendered a verdict based on the Panel’s findings and dismissed the patient’s claim for medical malpractice against the First and Second Defendant. The patient subsequently died, but his heirs appealed the Court’s decision before the Court of Appeal and the Appeal Court accordingly upheld the lower court’s decision.\r\n\r\nThe patient’s heirs have also appealed the Court of Appeal’s decision before the Court of Cassation (the final appeal court) and the case is yet to be heard and concluded by the Cassation Court.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThe aforementioned case makes it clear that a doctor will not be held liable for malpractice or negligence under UAE law provided that the treatment is consistent with recognized medical principles, and the medical side effects and complications suffered by a patient are well known in the medical practice (article 14(2) (b) &amp; (c) of the Medical Liability Law). This is so even if the method of treatment is not one followed by other doctors in the same specialty.\r\n\r\nMedical experts do not always come to the same conclusion with respect to what constitutes substandard care and malpractice. With several foreign healthcare professionals practicing in the UAE, it is not surprising to see dissimilar or conflicting medical opinions in the same malpractice claim owing to the diverse mindset, experience and variety of doctors from different backgrounds and specialties in the UAE.\r\n\r\nThis case indicates that the civil court was not entirely convinced and satisfied with the findings of the former medical committee (the Regulator) which were in favour of the patient, and this appears to be the main reason why the court referred the matter for further expert review and assessment.'),
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(95149, 5167, '_yoast_wpseo_metadesc', 'Medical malpractice claims can be pursued against doctors and hospitals by filing a medical complaint at the appropriate health authority (the “Regulator”), filing a civil case before the UAE court and by commencing a criminal complaint before the UAE police which will be transferred to the public prosecution.'),
(95150, 5168, 'content', 'June - July 2015\r\n\r\n<hr />\r\n\r\n<strong>Background</strong>\r\n<ul>\r\n 	<li>The Claimant is an investor and came to the UAE to invest in real estate. The Claimant met the Defendants, who introduced themselves as working in real estate brokerage and having connections with prominent developers in the UAE such that they could purchase, through their relationship with the officials, the plots of land desired by the Claimant.</li>\r\n 	<li>The First Defendant received approximately AED 2,500,000 and the second Defendant AED 6,000,000,  for their mediation.</li>\r\n 	<li>Although the purchasing transactions were successfully made, the Claimant alleged that the Defendants had not expended any effort and did not answer the Claimant’s calls. Therefore, the Claimant filed his claim before the Court of First Instance requesting reimbursement of the amounts paid by him on the basis of unjust and baseless enrichment.</li>\r\n 	<li>The Court of First Instance rejected the Claimant’s action. The Claimant then appealed to the Court of Appeal, who overruled the judgment of the Court of First Instance and ordered the Defendants to reimburse to the Claimant the amount received, along with legal interest at the rate of 9% from the date of the claim until full payment. The Court of Appeal based its reasoning on the fact that the brokerage contract, the subject matter of this case, should be considered invalid since it was not interpreted into a written contract in accordance with Article 26 of Regulation No. 85/2006 regulating the real estate agents register in Dubai.</li>\r\n</ul>\r\nThe Defendants appealed the judgment before the Court of Cassation on the grounds of:\r\n<ul>\r\n 	<li>Misapplication and misunderstanding of the law;</li>\r\n 	<li>Flaws in reasoning; and</li>\r\n 	<li>Contravening what was established by the documents.</li>\r\n</ul>\r\nThe Defendants argued that the Court had ruled for the invalidity of the brokerage contract due to its form, despite evidence submitted to prove that the transaction for plot no. 32 had been executed by the Defendants, as a result of their mediation, for the benefit of the Claimant. This fact had been confirmed by the Court of First Instance and the Court of Appeal had also pointed out in its reasoning that the Claimant has issued the cheques because of the Defendants’ mediation efforts for the land deal.\r\n\r\n<strong>Judgment of the Court of Cassation</strong>\r\n\r\nIn its ruling, the Court of Cassation granted the appeal of the Defendants (the Brokers) and explained that Articles 210 and 274 of the Civil Transactions Law provide that if the subject matter of an obligation is contrary to public order or morals, the contract is considered void. In deciding the invalidity of the contract, the contracting parties shall return the received amounts pursuant to the provision on refund of unentitled amounts at Article 321 of the Civil Transactions Law. Even if the invalidity is due to illegality, such that restitution is impossible, if a contracting party has provided a benefit, the recipient party is obliged to make fair compensation.\r\n\r\nEven though the judgment under appeal had found that the contract of brokerage was invalid because it was not interpreted into a written form and this should lead to restoring the parties to their initial status before contracting and thus obliging the Defendants to refund the amounts received from the Claimant, the expert assigned by the Court of First Instance had stated in his report that the purchase transaction of plot no. 32 for the company belonging to the Claimant and his son was a result of the effort made by the Defendants, which meant that they had achieved a benefit for the Claimant in procuring the plot. Due to the impossibility of restitution for the benefit received by the Claimant, the Defendants deserved compensation for their effort and this should have been estimated by the judgment. The appealed judgment had violated the law in ruling that the Defendants must refund the amounts received from the Claimant without estimating compensation for the benefit they provided, and must be revoked for this reason.'),
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(95154, 5168, 'content_description', 'In a recent judgment, (Dubai Court of Cassation Case No. 40/2013 (Civil)), the Court decided that the annulment of a brokerage contract for non-fulfilment of formalities, such as being made in writing, does not preclude the Court from estimating the efforts made by the broker and in justly compensating the broker thereof.\r\n'),
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(95169, 5169, 'content', 'June - July 2015\r\n\r\n<hr />\r\n\r\nHowever, understanding the various unilateral and multilateral sanctions against Iran is not simple. These are complex and ever-changing regulations from different international sources; any number of which can apply to a company or individual depending on many factors such as nationality, place of business and ownership structure.\r\n\r\nThe world recently watched eagerly every time the P5+1 and Iran sat down for a round of negotiations, hoping they would strike an accord.\r\n\r\n<strong>A ‘historic’ understanding </strong>\r\n\r\nOn 2 April 2015, the P5+1, the European Union and Iran reached a ‘historic’ understanding, as they concluded upon a preliminary framework for a nuclear deal. However, the positivity came with mixed feelings. Soon afterwards, the respective governments published their views of the agreement. The media was quick to highlight why it was uncertain and unclear that a deal would go through.\r\n\r\nFollowing these negotiations in Lausanne, the P5+1, European Union and Iran agreed on a preliminary framework for an agreement, which once / if it comes into effect, will relieve Iran of some of the toughest sanctions imposed upon a nation, in exchange for significantly curbing its nuclear activities.\r\n\r\n<strong>What does the deal have to offer?</strong>\r\n<ul>\r\n 	<li>After the meeting in Lausanne, the White House released the “Parameters for a Joint Comprehensive Plan of Action” (JCPOA) regarding Iran’s nuclear programme.</li>\r\n 	<li>US and EU nuclear related sanctions will be lifted in phases, upon verification that Iran is indeed fulfilling the terms of the agreement. To this end, Iran will be subject to strict oversight by the UN nuclear watchdog (IAEA).</li>\r\n 	<li>All UN Security Council resolutions on the Iran nuclear issue will be suspended as Iran acts upon its commitments to address key nuclear issues.</li>\r\n 	<li>The existing UN Security Council sanctions on transfers of sensitive technologies and activities will still be in force. Therefore, a new UN Security Council resolution will be drawn up that will re-establish these sanctions and endorse the JCPOA.</li>\r\n 	<li>The new resolution will also create a procurement channel, to ensure transparency in Iran’s nuclear supply chain.</li>\r\n 	<li>A dispute resolution channel will be established where the JCPOA members can voice their concerns and grievances. In case the issue of non compliance raised by a JCPOA member cannot be resolved through this mechanism, all previous UN sanctions will be re-imposed.</li>\r\n 	<li>Regardless of the success of this agreement, the sanctions imposed on Iran by the US due to its support of terrorism, human rights abuses and ballistic missiles will continue to be in force.</li>\r\n</ul>\r\n<strong>Are you free to do business with and within Iran?</strong>\r\n\r\nIt is crucial to note the following:\r\n<ul>\r\n 	<li>This agreement is only a preliminary understanding. There is no deal yet between the P5+1 powers and Iran.</li>\r\n 	<li>Several technical details remain to be finalised.</li>\r\n 	<li>No definitive time frames have been announced on how and when the sanctions would be lifted.</li>\r\n 	<li>The sanctions to be suspended are all nuclear related sanctions. Any sanctions in place overlapping nuclear proliferation and Iran’s support of terrorism will still be in force.</li>\r\n</ul>\r\n<strong>This means that the sanctions remain as they are</strong>\r\n\r\nOwing to the chain of events that have occurred in the past few weeks, it is unclear as to whether the P5+1 and Iran will be able to reach a conclusive deal. The 30th June 2015 deadline has been extended - as previous deadlines have been - to the 10th of July 2015, with a view to progress and finalize the negotiations.\r\n\r\nHence, you must continue to be vigilant to sanctions violations, and it would be advisable for all businesses to strengthen their compliance systems and structures.\r\n\r\nEnforcement actions that we have witnessed reiterate the need to have strong compliance programmes in place, despite the news that is floating around regarding hungry investors, individuals and conglomerates alike, eyeing Iran as an investment opportunity and acting too soon.\r\n\r\nThe next few weeks will be critical as the P5+1 continue talks and work on drafting the deal. Until then, we wait and watch for matters to unfold.\r\n\r\nFor any queries in relation to economic sanctions, please contact Ibtissem Lassoued, Partner in our Regional Financial Crime Practice (email: i.lassoued@tamimi.com)'),
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(95188, 5170, 'content', 'June - July 2015\r\n\r\n<hr />\r\n\r\nThis enhances trading activity and boosts the shares’ liquidity.\r\n\r\nDual listing also offers greater access to capital; the ability to tap into different markets at different times; and an opportunity to boost public profile even further than listing shares on a single market.\r\n\r\nOver the past months there has been a significant increase in the economic activity between the UAE and Egypt. In March 2015 Orascom Construction Limited, a leading global engineering and construction contractor, listed its shares first on NASDAQ Dubai (”NASDAQ”) and then a day later on the Egyptian Stock Exchange (”EGX”). The shares trade on the EGX in Egyptian Pounds and on NASDAQ in USD.\r\n\r\nWhilst there can be benefits to dual listing, companies need to be aware that they will be subjecting themselves to further regulations. Common concerns are:\r\n<ul>\r\n 	<li>what on-going disclosure/reporting obligations they will have under the regulations of each of the exchanges;</li>\r\n 	<li>whether these obligations overlap so that one set of information prepared for disclosure in one market can be used for the other; and</li>\r\n 	<li>how does a company fulfil its obligation to disclose to both markets if one market is closed?</li>\r\n</ul>\r\nBelow we have set out some key on-going reporting obligations under the EGX and NASDAQ regimes that can serve as a point of reference for companies which are considering a dual listing on EGX and NASDAQ.\r\n\r\n<strong>Inside Information</strong>\r\n\r\nUnder the NASDAQ regulations, there is a requirement on the business/reporting i.e. publically-listed entity (“PL Company”) to disclose information that is not generally available but which would have a significant impact on price. However, there is no clear requirement to disclose such inside information on the EGX unless it is considered as a material event. EGX further obliges each PL Company to have in place procedures to protect against misuse of insider information.\r\n\r\nDespite the lack of an explicit prohibition under the EGX regime that the PL Company disclosed “price-sensitive” information, in practice the overall Egyptian legal framework requires that information that would impact the price of securities be disclosed to the public.\r\n\r\nBoth regimes are similar in this regard and a PL Company would disclose this information at the same time to both markets.\r\n\r\n<strong>Governance</strong>\r\n\r\nBoth the DFSA and the Egyptian Financial Supervisory Authority (“EFSA”) have prescribed a number of governance-related events that give rise to disclosure obligations.\r\n\r\nThe NASDAQ market disclosure requirements include disclosure of:\r\n<ul>\r\n 	<li>the best corporate governance practices adopted and if not, why not (in the annual report of the PL Company);</li>\r\n 	<li>in case of a change to the board of directors (“Board”) composition or duties of the Board/Directors, the effective date of the change and the nature of the position;</li>\r\n 	<li>an event that (a) requires shareholder approval, (e.g. changes in the constitutional documents), or (b) changes the issued share capital over 20%, acquisition/disposal of assets equal or greater than 50% net assets value of the PL Company;</li>\r\n 	<li>voluntary liquidation; and</li>\r\n 	<li>in case of a Board resolution being passed outside the ordinary business of the PL Company, disclosure of the resolution.</li>\r\n</ul>\r\nThe EFSA market disclosure requirements prescribe public disclosure of the following events concerning the governance of the PL Company:\r\n<ul>\r\n 	<li>Any changes that occur to the disclosed information of the PL Company or any of its data incorporated in the pertinent prospectus, and any amendments to:</li>\r\n</ul>\r\n- PL Company’s Articles of Association;\r\n\r\n- Change of auditor during the fiscal year;\r\n\r\n- Change of address of headquarters or contact details thereof; and\r\n\r\n- Any change to the principal managers;\r\n<ul>\r\n 	<li>Any change to the Board of the PL Company;</li>\r\n 	<li>Resolutions of the Board of the PL Company;</li>\r\n 	<li>Resolutions of the general assembly meeting of the PL Company;</li>\r\n 	<li>Approval of the Board on the annual and quarterly (periodic) financial statements;</li>\r\n 	<li>Publishing a summary on the board of directors’ report, annual financial statements, auditor’s report together with the comment and remarks of the EFSA;</li>\r\n 	<li>The shareholding structure for all shareholders owning 5% or more; and</li>\r\n 	<li>A statement setting out the investments made by the PL Company in other companies exceeding 10% of their relevant share capital.</li>\r\n</ul>\r\nThe governance–related reporting obligations of a PL Company largely overlap between NASDAQ and EGX. Therefore, a disclosure statement prepared for one market, e.g. Board composition changes, maybe used for the other market (for NASDAQ in English and the EGX in Arabic).  To the extent possible, in practice a PL Company would adopt the more extensive reporting obligations when reporting to both markets.\r\n\r\n<strong>Business</strong>\r\n\r\nIn case of NASDAQ, transactions which potentially result in:\r\n<ul>\r\n 	<li>any significant investment (i.e. any investments equal to or greater than 5% of the value of the net assets of the PL Company as per its most recent financial reports, or material change to such a reports) or material change to such a course of business of the PL Company; or</li>\r\n 	<li>the incurring of any significant debt (being a debt with an amount equal to or greater than 5% of the value of the net assets of the PL Company as per its most recent financial reports) outside the usual and ordinary course of business of the PL Company, and</li>\r\n 	<li>would trigger disclosure requirements.</li>\r\n</ul>\r\nUnder the EFSA regime, however, disclosure is required if the following circumstances concerning the business of the PL Company arise:\r\n<ul>\r\n 	<li>any arrangements of a value exceeding 5% of the revenues of the preceding fiscal year;</li>\r\n 	<li>and change in the PL Company’s financing structure that would exceed 5% of the equity;</li>\r\n 	<li>initiation of any lawsuits against the PL Company in relation to its business, Board members or managers as well as judgments rendered in this respect;</li>\r\n 	<li>any legal judgments issued against the PL Company that may impact its financial position or the rights of the shareholders or has an impact on the trading price of the stocks or the investment decisions of the persons dealing on the stock;</li>\r\n 	<li>sale or purchase of assets, share of other companies or real estate that exceeds 10% of the equity of the PL Company and shall prepare an independent valuation report thereon;</li>\r\n 	<li>issuance of any administrative decrees that affect the business of the PL Company as well as any amendment to such decrees or withdrawal or revocation of same; and</li>\r\n 	<li>any arrangements concluded with elated parties.</li>\r\n</ul>\r\nThe DFSA have left a lot of discretion to the PL Company allowing it to decide where a disclosure should be made.\r\n\r\nThe EFSA, however, have been more particular as to what type of events trigger disclosure requirement in terms of the business of the PL Company, e.g. disclosure of any law suits, judgements, decisions that involve the PL Company.\r\n\r\nDespite these differences, however, both the DFSA and the EFSA implemented the 5% disclosure triggering threshold that applies if the PL Company makes an investment or incurs a debt.\r\n\r\nAs stated earlier, in practise the easiest way of ensuring both markets get the same information is to adopt the more stringent requirements in each case and then disclose that information to each market.\r\n\r\n<strong>Securities</strong>\r\n\r\nAs far as the securities of the PL Company go, the following events give raise to a disclosure obligation on NASDAQ:\r\n<ul>\r\n 	<li>Any decision to declare, recommend or pay any dividend or to make any other distribution on the securities; or not to declare, recommend or pay any dividend which would otherwise have been expected to have been declared, recommended or paid in the normal course of events, if the decision of such nature has been taken by the PL Company, when the decision shall be disclosed including the rate and amount of and record date for the dividend or other distribution or the grounds for the decision in relation to non-payment;</li>\r\n 	<li>Any decision on admission to listing or trading of the same class of securities of the PL Company on another stock exchange; and</li>\r\n 	<li>Any other disclosure required to be made pursuant to the requirements in the other stock exchange arising from the listing or trading of the same class of securities on that exchange where such disclosure is not made in the DIFC.</li>\r\n</ul>\r\nUnder the EFSA regime, however, disclosure is required if the following securities-related circumstances arise:\r\n<ul>\r\n 	<li>any new issuance of bonds as well as related collaterals and mortgages;</li>\r\n 	<li>any decision that might result in the redemption or cancellation of issued and registered securities;</li>\r\n 	<li>any proposed change to the capital structure exceeding 5% of the equity;</li>\r\n 	<li>any person purchasing more than 25% of the stock (and the future investments plans of any person purchasing more than 25% of the stock would also need to be disclosed);</li>\r\n 	<li>any capital increase, rights issue or other issuance of other securities or share split;</li>\r\n 	<li>cash dividend distributions or issuance of free shares or any combination thereof;</li>\r\n 	<li>resolutions related to amending the nominal value of the shares;</li>\r\n 	<li>purchase of any treasury stock;</li>\r\n 	<li>voluntary delisting request; and</li>\r\n 	<li>any agreement that may result in the admission of new strategic investors to purchase a stake in the PL Company.</li>\r\n</ul>\r\nUpon reading of the above, it may seem that only few securities–related events, mainly concerning dividends, require disclosure on NASDAQ whereas on EGX a PL Company needs to disclose far more share-related events.\r\n\r\nThis is all organisation and apparent difference. A comprehensive reading of the DFSA rulebook indicates there is a significant overlap between disclosure triggering events.\r\n\r\nSome of events treated as “securities-related” under the EFSA regime have been classified as PL Company or Business related under the DFSA Rulebook, arriving at the same outcome, regardless of the apparent discrepancy.\r\n\r\n<strong>Interests</strong>\r\n\r\nBoth NASDAQ and EGX require certain public disclosures to be made when an event affecting interests of the PL Company has taken place.\r\n\r\nFor instance, the DFSA require that a NASDAQ-listed PL Company file a report of interests held by a Connected Person (as defined under the DFSA regime) and make a market disclosure including details of name/address of the Connected Person, date when the Connected Person acquired interests in the PL Company, the transaction price, amount and class of security.  It should also be noted under the DFSA regime that a Director has a material interest in the company if he/she has direct or indirect ownership of investments in the PL Company or any involvement in financial or commercial arrangements of the PL Company.\r\n\r\nUnder the EFSA regime, the existing shareholders and their Related Parties (as defined in the EGX Listing Rules) of the PL Company shall disclose the purchase of any shares exceeding 5% or any multiple thereof of the PL Company’s share capital and/or the subscription rights. Any existing shareholder who exceeds 25% must disclose its investment plans. The Board members and employees and their Related Parties (as defined in the EGX Listing Rules) of the PL Company shall disclose a purchase of any shares exceeding 3% or any multiple thereof of the PL Company’s share capital and/or the subscription rights. Related party transactions must be pre-approved by the general assembly in advance and disclosed.\r\n\r\nIn relation to the DFSA requirements, it is important to note that, whilst the obligation to file a Connected Person relates to a person who owns 5% or more of the PL Company, a person who is a director of PL Company is per se, a Connected Person.  What this also means that a person who is a director must file a Connected Person Report if they acquire or cease to hold investments in the PL Company.  In this case, the 5% threshold does not apply.  Likewise, an increase or decrease of 1% of the last level reported will trigger an obligation to lodge a Report.  What this means is that a relatively small movement in the holding of a director could trigger an obligation to lodge a report.\r\n\r\n<strong>Financial Information\r\n</strong>\r\n\r\nIn line with international standards, a PL Company is subject to numerous disclosure requirements that concern its financial information.\r\n\r\nThe DFSA require, amongst others, that a NASDAQ-listed PL Company discloses to the public:\r\n<ul>\r\n 	<li>an annual financial report;</li>\r\n 	<li>a semi-annual financial report;</li>\r\n 	<li>preliminary financial results (if required by DFSA);</li>\r\n 	<li>any change to the accounting reference date; and</li>\r\n 	<li>any change of accounting date extending the annual accounting period to more than 14 months.</li>\r\n</ul>\r\nIn Egypt, the disclosure requirements concern the following:\r\n<ul>\r\n 	<li>Audited annual financial balance sheets and financial statements with the audit report (consolidated and standalone);</li>\r\n 	<li>Reviewed quarterly financial balance sheets and financial statements with review report  (consolidated and standalone); and</li>\r\n 	<li>Any change of the financial year of the PL Company.<strong> </strong></li>\r\n</ul>\r\n<strong>Capital\r\n</strong>\r\n\r\nAny proposed new issue of securities by the PL Company requires NASDAQ disclosure of the class, number and proposed date of issue and details of the changes to the share capital resulting from the new issue proposed, consideration received.\r\n\r\nIn Egypt this is the same.\r\n\r\nUnder the DFSA Rules that an alteration in the share capital of the PL Company will require approval of a majority of shareholders.  The DFSA Rules also require that where there is an issue of shares for cash that these shares must be offered to existing shareholders in proportion to their existing holdings, prior to any offer to investors who are not existing shareholders.\r\n\r\n<strong>Insolvency/Winding-Up\r\n</strong>\r\n\r\nFinally, on NASDAQ, in the case of the presentation of any winding-up petition, the making of any winding-up order or the appointment of an administrator, liquidator or the commencement of any proceedings under any applicable insolvency laws in respect of the PL Company or any member of its group; or the passing of any resolution by the PL Company or any member of its group that it be wound up by way of members’ or creditors’ voluntary winding-up, or the occurrence of any event or termination of any period of time which would cause a winding-up, the PL Company is required to make market disclosure of:\r\n<ul>\r\n 	<li>the time and date of the presentation, details of the order, appointment, resolution or other event;</li>\r\n 	<li>the identity of the petitioner or other person at whose instigation the event occurs;</li>\r\n 	<li>the court or tribunal responsible for making any order; and</li>\r\n 	<li>the administrator or liquidator appointed, as is relevant.</li>\r\n 	<li>In Egypt the PL Company is required to disclose any material decisions, events and the resolutions of the Board and general assemblies, as well as, any law suit filed against it that may have a material impact or judgment issued against it that may have such an impact.</li>\r\n</ul>\r\n<strong>Director’s dealings\r\n</strong>\r\n\r\nIt is also important to note that under the DFSA Rules during certain periods of the year, directors and senior management of the company are prevented from dealing in the securities of the company.  The restricted periods are from the end of the relevant financial year up to and including the announcement or publication of the annual financial report.  In the case of semi-annual reports the close period is from the time of the end of the semi-annual financial period and up to the announcement of the semi-annual financials.  The rationale is easy to understand, that is directors will have access to details of the financials of the company prior to the details of the financials being disclosed to the market.  It is therefore important that they not be able to trade on the basis of this information.  In any event, even if the prohibition was not in place, because of the prohibition on insider dealing, a director would be subject to that prohibition.\r\n\r\n<strong> Conclusion\r\n</strong>\r\n\r\nA dual listing is often a commercially appealing proposition. It can help get global exposure and boost a company’s profile.\r\n\r\nThat said, apart from assessing the potential benefits that having shares listed on NASDAQ and the EGX can bring, companies should carefully consider the challenges that the dual listing may create.\r\n\r\nListing shares on more than one market increases initial and ongoing costs associated with the listing as well as liability of the business given the requirement to comply with more than one set of rules and regulations. This requires significant management commitment and time dedication, amongst other challenges.  As suggested, one way of meeting these challenges is, to the extent feasible, to disclose on the basis of the more stringent requirements because the PL Company can be sure that it complies with its obligations in both markets.  Investors in both markets should be able to make informed investment decisions based on the same information in each market.\r\n\r\nDual listing, however, can be an excellent means to achieving greater commercial success.\r\n\r\nAs the above indicates, certain reporting obligations overlap so one and the same public disclosure statement may satisfy both NASDAQ and EGX requirements.');
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(95211, 5171, 'content', 'June - July 2015\r\n\r\n<hr />\r\n\r\nNot only dishonoured cheques, but any action in which a person stops payment of the cheque is perceived as a crime. That includes making changes in the cheque which deprives the beneficiary from cashing it, signing the wrong signature or omitting one’s signature or having insufficient funds in the account. Any act or omission that prevents the beneficiary from cashing the cheque is a crime punishable under UAE law.\r\n\r\nCriminal proceedings are usually pursued against the person signing the cheque whether he is a lawyer, manager, accountant or any individual who has placed his signature on the cheque.  Even if the dishonoured check is from a company owned by another person, the signatory of the cheque will be charged with criminal proceedings. This is based on the premise that as a responsible executive in the company, the signatory should have known that there are insufficient funds in the account before issuing the cheque. However, both the signatory of the cheque and the company may have civil liability to pay the money (a different topic from the subject matter of this article).\r\n\r\nAny argument that the cheque was postponed or paid in the future or that the signatory could not know if there were sufficient funds in the account is not a valid defence. The intent to commit cheque fraud is not required to be found guilty.\r\n\r\nFurthermore, the mere fact that the dishonoured cheque was signed and handed over for a legitimate transaction, subjects the signatory to criminal proceeding even if the transaction was not completed. The non-completion of the transaction will be considered a civil argument, and will not be a defence to the criminal prosecution. In other words, the fact that the service was not provided or was otherwise frustrated is not sufficient to stop a criminal proceeding or to acquit the signatory of cheque.\r\n\r\nTwo other arguments are also used, although they usually fail:\r\n\r\n(1) that the cheque was not due for payment and was stolen (provided, most of the time, that a criminal complaint was filed to report the lost or stolen cheque before the beneficiary lodged the cheque with the police); or (2) if the transaction underlining the payment of the cheque was an illegal transaction contrary to UAE Public Policy, such as gambling. These two arguments require high standard proof and often need to be documented and the simple argument that the cheque was illegal or lost will not be enough. Of course, the argument that the cheque was obtained contrary to public policy could open the door for other prosecution against the signatory and beneficiary of the cheques if that argument came to be true.\r\n\r\nThe only way to prevent criminal prosecution is if payment of the cheque is made in full at the time of prosecution. In other words, the best way to avoid prosecution is to produce and pay a certified cheque or preferably cash in the full amount of the cheque.   Usually the person has two options:\r\n<ul>\r\n 	<li>To pay the beneficiary of the cheque the full amount (after which the case will be closed instantly); or</li>\r\n 	<li>To deposit the money with the Police or the Prosecutor as the case may be, and be granted bail subject to the outcome of the proceeding. However, as stated above, it is likely that the outcome of the proceeding will be a sentence so payment of the cheque to the beneficiary is a must if the person wishes to avoid prosecution.</li>\r\n</ul>\r\n<strong>Bail</strong>\r\n\r\nIf the person wishes to resist the prosecution then it is advisable to put the full amount of the cheque as bail in court before the police or the prosecutor before the matter is transferred to court. Prior to 2008, it was almost impossible to bail a person out on a cheque matter unless the full amount was paid before the police or the prosecutor’s office. It is likely that in most of the cases and especially where there is substantial amount of money, the person will stay in prison during the investigation and while the case is heard in court until final sentence. It is likely that the person will not be released until he serves the sentence. In most cases the sentence will be anything between 6 months to 3 years depending on the circumstances surrounding the cheque and the amount of the cheque. The higher the amount the longer the sentence. There were hardly any exceptions to this except pardon from the Ruler which was given in extreme and rare circumstances, and mainly for humanitarian reasons. In recent years there has been a relaxation of the strict rules and bail is granted more easily.\r\n\r\nWhen deciding on bail the criminal court will not be focusing on the repayment of the amount. This often comes as a surprise to people not familiar with the legal system in the UAE and especially those that follow the civil law system. The police, prosecutor and the court in particular focus on the criminal aspect of a dishonored cheque. Although they would require the value of the cheque to be put as bail, the criminal court will focus on the criminal sentencing and will leave it to the civil court independently to award the beneficially the amount due. This is unless the party settles before the criminal court to repay the amount by mutual agreement. In such case the criminal sentence used to be a fine, but now the case will be closed if the amount is paid in full.\r\n\r\nSince 2008 and because of the financial crisis and the sharp rise in the volume of dishonoured cheques, changes have occurred to the criminality of dishonoured cheques. In essence, all that is said above remains the same and  dishonored cheques continue to be a crime and the police, the prosecutor and the court continue to prosecute. However:\r\n<ul>\r\n 	<li>It is not uncommon to find people who have been released on bail by giving security of another passport or for a lesser amount than the value of the cheque until the case is judged. In other words, unlike in the past, the party on some occasions does not have to lodge the full amount of the cheque.</li>\r\n 	<li>Prior to 2008 it was in only very rare and exceptional situations that the sentence for a dishonoured check was limited to a fine. Whereas post 2008 there has been quite a few cases where despite the fact that the amount of the cheque was large, the sentence has been a fine and not imprisonment. This may be attributed to the large number of cases facing the police and the prosecutor and the volume of people being imprisoned.</li>\r\n 	<li>In the past paying the full amount of the dishonoured check before the court or the prosecutor changed the sentence from imprisonment to fine.  However, today if the amount is paid in full the sentence will be waived entirely.  In other words, if payment is made in full, the case will be closed by the police or the prosecutor.  If the case has been transferred to court and sentence passed, the sentence will be waived by virtue of the fact that the amount has been paid. Payment of the amount will not only stop prosecution but the entire sentence.</li>\r\n 	<li>It is possible to obtain an Interpol warrant of arrest for a dishonoured cheque even if the accused is absconding and is not currently residing in the UAE provided that the dishonored cheque is not less than AED 37,000 (or if multiple cheques, that the total amount is not less than AED 37,000). However, note that for such situations the police will not immediately issue an Interpol arrest warrant but will issue a circular for arrest internally and the file will remain with the police before issuing an Interpol arrest warrant.</li>\r\n 	<li>It is becoming more difficult to circulate a warrant of arrest through the Interpol based on prosecution of dishonoured cheques. This is not only because of the legal system in the UAE but also foreign countries are not willing to entertain arrest warrants based on financial liability.</li>\r\n</ul>\r\nThe process has become slightly lenient and more accommodating.  Bail is very much possible unlike with the old process and time extension is granted more than once to assist the party to reach amicable settlement.\r\n\r\nWhile in principle dishonored cheques remain a criminal offence, there have been many debates on whether it should continue to be a crime or whether the UAE Federal criminal law should change to abolish Article 401 and to limit dishonored cheques to only civil liability. The opinion in the UAE seems to be split over the subject. Some think that although the criminal aspect of the dishonoured cheque exists in many other countries and currently in some parts of the developed western world, it is something of the past and is not conducive to commercial transactions. They feel that it does not fall within the meaning of a cheque as a commercial document and that the recovery potential should be limited only to civil commercial recovery and not extend to the prosecution of the signatory of the cheque. My view is that the UAE is an emerging market, with cheques being used on many occasions as security for payment including banks. It is the only flexible means of deffered payment, which numerous businesses use and depend upon. Various industries continue to have cheques as a good useful commercial instrument that is not only used for payment but also for an extra measure of security and that security is dependent on criminal protection.\r\n\r\nIn view of this, while the punishment for dishonored cheques has become more flexible and soft, such that the criminal sentence can be waived, the criminal protection against dishonoured cheques continues to exist and be useful. It is likely to continue to exist in the UAE for sometime in the future. The Central Bank seems to be aiding in mitigating the occurrences of dishonoured checks by making it difficult for parties who have more than one dishonored cheque to open a new bank account or possibly even closing the bank account. This will put increased pressure on businesses to ensure that cheques are honoured.'),
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(95232, 5172, 'content', 'June - July 2015\r\n\r\n<hr />\r\n\r\nLaw No. 7 of 2006 concerning Real Property Registration in the Emirate of Dubai (“Property Law”) governs property ownership by individuals and companies in the Emirate of Dubai. Article 4 of the Property Law, which is the key provision on property ownership, states:\r\n\r\n“The right to own real property in the emirate will be restricted to UAE nationals, nationals of the Gulf Cooperation member states and to companies fully owned by these, and to public joint stock companies. Subject to the approval of the Ruler, non –UAE persons may, in certain areas determined by the Ruler, be granted the following rights:\r\n<ul>\r\n 	<li>Freehold ownership of real property without time restrictions; and</li>\r\n 	<li>Usufruct or leasehold over real property for a period not exceeding ninety-nine (99) years.”</li>\r\n</ul>\r\nThis Article will discuss the current legal position of real property ownership in the Emirate of Dubai as regulated by Article 4 of the Property Law and, based on our experience in registering property transfers, the current policy of the Dubai Land Department (“DLD”).\r\n\r\nIt is important to note that the DLD’s policy has not been formally published and is subject to change from time to time. Specific legal guidance on a proposed ownership structure should be sought prior to entering into any property transaction.\r\n\r\n<strong>Ownership by UAE and other GCC nationals and companies</strong>\r\n\r\nUnited Arab Emirates (“UAE”) and Gulf Cooperation Council (“GCC”) nationals and companies incorporated in the UAE (excluding the free zones) that are wholly owned by UAE or GCC nationals have the right to own any property interest in real property located in any area in the Emirate of Dubai pursuant to Article 4 of the Property Law. This includes limited liability companies and private joint stock companies in which all the shareholders are UAE or GCC nationals.\r\n\r\nIf a company incorporated in the UAE has non-UAE or GCC shareholders, it will not be considered a UAE or GCC national for the purposes of Article 4 of the Property Law. The only exception to this rule is public joint stock companies that are listed in Dubai. Although these companies allow their shares to be bought by non-UAE or GCC nationals, they are still considered to be UAE nationals for the purposes of Article 4 of the Property Law.\r\n\r\n<strong>Ownership by other nationals and companies </strong>\r\n\r\nArticle 4 of the Property Law allows non-UAE or GCC nationals and companies to own freehold title, a long lease or a usufruct right up to 99 years in the areas in Dubai that have been designated for foreign ownership under regulations issued by the Ruler of Dubai (“Designated Areas”).\r\n\r\nOn a strict interpretation of Article 4 of the Property Law, all non-UAE or GCC nationals or  companies are granted the right to own a freehold interest, a right of usufruct or a long lease of up to 99 years in real property in Designated Areas. However, the DLD’s current policy imposes restrictions on the types of non-UAE or GCC companies that can own property. A summary of the current restrictions on property ownership is as follows:\r\n\r\n<strong>Offshore companies</strong>\r\n\r\nPresently, the only types of offshore companies that DLD permits to own property in Designated Areas are offshore companies incorporated in the Jebel Ali Free Zone or the Dubai Multi Commodities Centre Free Zone. Thus, offshore companies set up in other jurisdictions such as the Cayman Islands or the British Virgin Islands are currently not allowed to own property in Dubai.\r\n\r\nOffshore companies that owned property in Designated Areas before the DLD’s policy came into force are entitled to maintain their ownership, but will not be able to make further property purchases.\r\n\r\n<strong>2.   Free zone companies in Dubai and other Emirates (excluding DIFC)</strong>\r\n\r\nCompanies incorporated within the free zones in Dubai, such as Dubai Media City and Dubai Healthcare City, are allowed to own properties in Designated Areas.\r\n\r\nThe DLD does not currently permit Free zone companies incorporated in other Emirates, such as Ajman and Ras Al Khaimah, to own property in Dubai. However, free zone companies that owned property in Designated Areas before the DLD’s policy came into force are entitled to maintain their ownership, but will not be able to make further property purchases.\r\n\r\n<strong>3.   DIFC companies</strong>\r\n\r\nCompanies incorporated within the Dubai International Financial Centre (“DIFC”) must obtain special approval from the DLD to purchase property outside the DIFC and such special approval shall be granted by the DLD at its sole discretion. We anticipate that this special restriction may be removed in the near future so that the regulation of ownership of property by DIFC companies will be treated the same as companies incorporated in other free zones within Dubai.\r\n\r\nHowever, while direct ownership of property by DIFC-registered companies is only permitted within the DIFC and not in the rest of Dubai (i.e. Designated Areas), an offshore company (such as JAFZA offshore or DMCC offshore company) whose shareholding is held by a DIFC-registered company will be permitted to own property within the Designated Areas.\r\n\r\n<strong>4.   Other companies</strong>\r\n\r\nCompanies that are incorporated onshore in Dubai, such as limited liability companies and private joint stock companies, with non-UAE or GCC shareholders may own property in the Designated Areas. However, the current policy of DLD does not allow companies registered onshore in foreign jurisdictions to own property in Dubai.\r\n\r\n<strong>Summary of ownership structures</strong>\r\n\r\nTo summarise, the structure of a proposed owning entity will depend on where the property is located, the nationality of the owner and, if the owner is company, the type of company. The types of entities that are permitted to own property in the Emirate of Dubai in accordance with Article 4 of the Property Law and the DLD’s current policy are set out below.\r\n\r\n<strong>1.   All areas:</strong>\r\n<ul>\r\n 	<li>UAE or GCC nationals</li>\r\n</ul>\r\n<ul>\r\n 	<li>companies incorporated onshore in the UAE (excluding the free zones), e.g. private joint stock companies or limited liability companies, where 100% of the shareholders are UAE or GCC nationals</li>\r\n 	<li>public joint stock companies that are listed on the Dubai Financial Market.</li>\r\n</ul>\r\n<strong>2.    Designated Areas:</strong>\r\n<ul>\r\n 	<li>nationals of all countries</li>\r\n 	<li>free zone companies incorporated in Dubai regardless of the nationality of the shareholders (except DIFC companies, which require special approval)</li>\r\n 	<li>Jebel Ali Free Zone offshore companies or Dubai Multi Commodities Centre Free Zone offshore companies, regardless of the nationality of the shareholders</li>\r\n 	<li>companies incorporated onshore in Dubai (e.g. private joint stock companies or limited liability companies), regardless of the nationality of the shareholders</li>\r\n 	<li>public joint stock companies that are listed on the Dubai Financial Market.</li>\r\n</ul>'),
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(95247, 5173, 'content', 'June - July 2015\r\n\r\n<hr />\r\n\r\nArticle 154 of the new law states that:\r\n\r\n<em>“The Board of Directors shall have all the powers specified in the Articles of Association of the company, other than as reserved by this Law or the Articles of Association of the company to the General Assembly. However, the Board of Directors may not enter into loans for a period in excess of three years, sell the property of the company or the store, or mortgage movable and immovable property of the company, discharge the debtors of the company from their obligations, make compromise or agree on arbitration, unless such acts are authorized under the Articles of Association of the company or are within the object of the company by nature. In cases other than these two ones, such acts require to issue a special resolution by the General Assembly.” </em>\r\n\r\nThe text of Article 154 is almost identical to Article 103 of the existing Commercial Companies Law. The latter referred to the requirement for “an approval from the General Assembly” whereas Article 154 requires “a special resolution by the General Assembly”. While the latter appears to have the same meaning and goal, it could also be viewed as specifically requiring a “special resolution” rather than just an “approval”, where agreement to arbitration is not “authorized under the Articles of Association of the company or are within the object of the company by nature”.\r\n\r\nWhat is clear is that the new law is maintaining a restrictive approach when it comes to the critical issue of authority to agree to arbitration (to the exclusion of court proceedings in the UAE). While arbitration has increasingly been adopted by many companies in the Middle East, it is viewed by the local UAE courts as an exceptional exceptional mode of dispute resolution. This restrictive view is also reflected in Article 154 of the new law.\r\n\r\nThe power of the Board of a PJSC to agree to arbitration as a means of resolving disputes has to be explicitly stated in the Articles of Association of the Company. The alternative requirement is to deem the agreement to arbitration as a matter falling within the objectives of the company, which is unlikely to ever be the case. Failing these two options the General Assembly will be required to issue a special resolution. It should also be noted that Article 58(2) of the Civil Procedures Law provides a general restriction that the power to agree on arbitration cannot be delegated to others without a special resolution to that effect.\r\n\r\nWhile the foregoing may seem formalistic, failure to satisfy the same may have adverse and unwanted implications. In a recent case the Abu Dhabi Courts annulled an arbitration award since it was based on an arbitration agreement whose signatory was someone who lacked an explicit resolution authorizing him to agree on arbitration (the power had not been properly delegated as is necessary under article 58(2)). Al Tamimi &amp; Company represented the successful applicant.\r\n\r\nWe note that, in practice, the above requirements may not always be absolute as cases contesting arbitration agreements are assessed on a case by case basis. The Courts may interpret other circumstances such as implied approval of an arbitration agreement, and thus deem the agreement valid in all the circumstances.\r\n\r\nTo minimize unwanted outcomes, however, a PJSC would be well advised to explicitly state in its Articles of Association that its Board can agree on arbitration. Any delegation of this power to third parties should be explicitly stated in a special resolution as well.'),
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(95268, 5174, 'content', 'June - July 2015\r\n\r\n<hr />\r\n\r\nMs H, a North Carolina singer who appeared in the program as part of its audition process, has lodged a claim in the Los Angeles Superior Court against the producers of the program. Her claim is for intentional infliction of emotional distress, defamation, false light, invasion of privacy and gross negligence.\r\n\r\nThis article will briefly describe the claim and consider how it might be treated under UAE law.\r\n\r\n<strong>The Claim</strong>\r\n\r\nMs H, according to her claim, sang “The Greatest Love of All” in front of a live audience, four celebrity judges and a team of camera operators for the program.  This was then broadcast worldwide and has since, of course, been generally available via YouTube. She is claiming that the producers altered her vocal performance in order to make her sound “screechy”, and that the wildly positive audience reaction was replaced with a calm and underwhelmed audience. She says that the judges original comments and reactions were removed and replaced with other comments that were recorded when she was not present. All of this harm has, according to the court papers, caused the claimant a considerable amount of embarrassment, emotional distress and has harmed her reputation as a professional singer. Ms H has valued her damages at USD 2 million.  In addition, because she says that the producers did all of this wilfully, maliciously and fraudulently, she is seeking further (unspecified) sums as punitive damages.\r\n\r\nThe interesting part of the claim is that Ms H claims that she was taken into a room alone with a staff member and told that, if she did not sign the contestant release immediately, she would not be permitted to continue with the audition process. She states that she was not provided with an opportunity to seek legal advice, nor to take a copy of the agreement, and that her consent was therefore obtained by duress and undue influence. She is also claiming mistake as to her understanding of what was to be done with the performance (that is, she did not understand that they could alter the performance and, impliedly, alter it to make her appear less talented than she was) and goes on to claim that the resulting mistake revokes and rescinds the release under Californian law.\r\n\r\nOf course, ‘The X Factor’ is not the only program on television to require its contestants to sign release forms that are, as a rule, not able to be negotiated.  Having seen numerous contestant release forms for both broadcast and on-line competitions, it is clear that the terms are always firmly in favour of the producer of the content. No producer wishes to risk a large investment in producing content unless it can control every aspect and every contributor. A short version of a standard term might read: “my appearance in the Program can be edited at the Producers discretion”. Undoubtedly, the heavyweight industry producers involved in ‘The X Factor’ would have had such a clause in the release form.\r\n\r\nSo, how might such a claim fare under UAE law?\r\n\r\n<strong>Duress Under UAE Law</strong>\r\n\r\nLooking first at duress, this is set out in Section 2 (4) (a) of the UAE Civil Code. In Article 182 it states that: A person who exercises … duress to conclude a contract may not enforce his contract, but the contract will be valid if the victim or his heirs so permit after the threat has ceased, either expressly or by their acts.\r\n\r\nIf this law had applied to Ms H’s situation, what might the result be?  How would the courts view the fact that she returned 4 times to audition? What would it think of the fact that the program was in its 3rd season and so its content would have been well known to her?  Did she, by continuing to audition, presumably entering the makeup room, rehearsing  out the back, getting her costume on, willingly walking onto the stage lose her right (under UAE law) to claim the duress as she then acted in accordance with the terms of the release?  Is this behaviour enough to validate the release, or must that validation be explicit? In addition, was the mere statement that she could not continue to audition strong enough to be considered duress under UAE law?  Our view is that it is not likely to succeed here – we await the view from California.\r\n\r\nWhat of the fact that it was a staff member and not the producers that ‘forced’ her to sign the release?  Article 184 of the UAE Civil Code states that: “If the duress is exercised otherwise than by one of the contracting parties, the person coerced into contracting may not claim that the contract is ineffective unless he proves that the other contracting party knew or is presumed to have known of the duress”.  So, to succeed in her claim in the UAE, the claimant would have to not only show that a staff member had forced her to sign the release in the dressing room, using threats, but that the producer were aware that this was being done by its staff members.  This might be difficult to prove.\r\n\r\n<strong>Mistake Under UAE Law</strong>\r\n\r\nIn most jurisdictions, mistake is a complex area of contract law and always a difficult argument to raise and win.  The UAE Civil Code covers mistake in Section 2 (4)(c).  Article 194 states that: “If there is a mistake as to the identity of the contract or as to one of the conditions upon which it is made or as to the subject matter of the contract, the contract shall be void”.  Ms H says that, had she known that the release meant that the producers could alter the performance to make her “screechy”, then she would not have signed it. She is, from a UAE law perspective, trying to claim that this is “one of the conditions” upon which the release is made; this was unknown to her and had she known it, she would not have signed the release. Indeed, it is true that some releases can contain a clause that may say that materials cannot be edited in “a manner that will be in any way derogatory to [the contestant]”.  But more common in releases for reality, quiz shows or game shows is a clause that acknowledges that the program may contain “statements … surprising, humiliating, embarrassing, derogatory, defamatory or offensive or injurious to [the contestant] or to third parties”.\r\n\r\nIf this statement was indeed contained within the release, it is hard to then argue that there was mistake as to the basis on which the contract was formed. Article 193 states that: “No regard shall be had for any mistake save in so far as it is contained in the form of the contract or demonstrated by the surrounding circumstances and conditions, or the nature of things, or custom”. Obviously, her misunderstanding of the release terms will not, of itself, allow the release to be declared void.  She has to be mistaken about the circumstances of the contract. The producers will likely claim that the right to edit is clear in the release, possible humiliation is mentioned in the release and she must logically have seen past acts portrayed badly on the same program. If these arguments are available to the producers, it is difficult to understand the surrounding circumstances that might further her claim.  How was it possible that she was unaware that, despite being allowed a right to edit as they see fit, the producers may use that right to edit the footage to make her ‘screechy’ (if indeed they did)?\r\n\r\n<strong>Other Possible Claims Under <strong>UAE</strong> Law</strong>\r\n\r\nInterestingly, Ms H has not claimed for misrepresentation nor for cheating (or deceit) in California.  In the UAE, this claim would fall under the same section of the UAE Civil Code as the above two claims, and would give rise to a defect in consent. Although the facts are not clear in Ms H’s claim, if it could be shown that Ms H has signed the release because the producers had deceived her into believing that the filmed performance would not, for example, be edited in any way then she would have a claim for cancellation of the release. Article 187 is clear: “If one of the contracting parties makes a misrepresentation to the other and it transpires that the contract was concluded by a gross cheat, the person so misled may cancel the contract”. As with the claims above, if it can only be shown that the employees of the producers made the misrepresentations, then Article 190 allows the release to be cancelled if “the other contracting party knew of the misrepresentation at the time of the contract”.\r\n\r\nIn California, Ms H may struggle to win her case against the producers.  In the UAE, she would have to jump over several more hurdles to prove duress, find a mistake of fact or show misrepresentation in order to have the release held as void.\r\n\r\nWhether she is successful or not, the claim is a timely reminder to content producers to ensure that all talent is given proper time to review the release and ask any questions.  Staff should be trained to present the release responsibly. And only edit people to make them sound ‘‘screechy’’ if your release clearly allows you to do it.\r\n\r\nAl Tamimi &amp; Company’s Technology, Media &amp; Telecommunications team regularly advises on content financing, production and distribution.'),
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