INSERT INTO `tm_wsal_metadata` (`id`, `occurrence_id`, `name`, `value`) VALUES
(306473, 29261, 'MetaValueOld', '<p dir=\"LTR\" align=\"LEFT\"><img class=\"alignright size-full wp-image-8245\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_17_Image_0003.jpg\" alt=\"\" width=\"570\" height=\"289\" />The education sector in the Middle East has often been widely perceived as a lucrative investment opportunity for developers looking to expand their portfolio of investments. By way of example, the UAE has one of the most buoyant private school markets in the world, with consistently high levels of occupancy coupled with year-on-year growth in demand, in large part as a result of the UAE’s growing expatriate population. It has been estimated that Dubai will need 134 new schools to be constructed over the course of the next 10 years in order to accommodate the estimated 200,000 pupils that will need seats by the 2027/2028 school year. It is a similar story in other parts of the Middle East. This will therefore require a concerted effort by developers, contractors, funders and the relevant regulatory bodies in order to facilitate the construction of such developments, in a manner that meets the every-increasing demand within the region.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The costs associated with investing in school infrastructure are significant. There are various reasons for this, one of which is the potential complexity of issues faced when embarking on such projects, such as the need to integrate the programme of works around the day-to-day activities of the school system (applicable for example where refurbishment works are being undertaken on an existing school).</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The procurement route adopted on any construction and engineering project is one of the key considerations for developers, which will allow them to assess whether the relevant works and moreover the project as a whole can complete on time, be of the required quality and be within budget. Another important consideration is ensuring that the tender process allows for a close examination of contractors’ experience within the sector. Given the specialist nature of school construction projects, developers should not only examine pricing but also consider whether the bidding contractor has sufficient knowledge and experience of working on such specialist projects in the region.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A number of procurement options are available to developers operating within the education sector when procuring works and services from third parties. Each of these has its own advantages and disadvantages. In this article we discuss the following key procurement routes and explain the main advantages and disadvantages associated with each:</p>\r\n\r\n<ol>\r\n 	<li dir=\"LTR\">Traditional contracting;</li>\r\n 	<li dir=\"LTR\">Design and build contracting; and</li>\r\n 	<li dir=\"LTR\">Public-private partnerships.</li>\r\n</ol>\r\n<p dir=\"LTR\" align=\"LEFT\">Finally, we will briefly examine the important role that a well drafted operation and maintenance agreement has in addressing the ongoing operational demands of a school, following completion of a project.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">It should be noted that in addition to procuring works directly, an alternative option for developers is to enter into a ‘build to suit’ arrangement with educational facility operators. This essentially involves land owners, ground lease owners or developers undertaking the construction of an educational facility provided that they have a long term tenant (whether a school, educational institution or an operator) who wishes to enter into a long term lease of the facility. Although beyond the scope of this article, build to suit education projects are an important consideration and examined in greater detail in the article entitled \"<a href=\"https://www.tamimi.com/law-update-articles/build-to-suit-education-projects/\">Build to Suit Education Projects</a>\" authored by Partner and Head of Real Estate, Jeremy Scott, in this month’s edition of Law Update.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Traditional Contracting</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">This is probably one of the most often encountered forms of procurement adopted by developers in the education sector. Essentially the developer (also known as the \"employer\") will engage a professional team of consultants (usually an architect, mechanical and electrical engineer, civil and structural engineer and perhaps other specialist consultants) to prepare designs and specifications for the works that are to then be constructed by a building contractor. Such designers typically have a proven track record and experience in operating in the education sector and this provides comfort that the designs will be well suited for an education facility and will be readily accepted by the relevant authorities.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The contractor will be engaged separately by the developer under a construction contract and will be responsible for engaging sub-contractors to the extent required in order to allow them to complete the required works in accordance with the approved designs.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The building contract will only be responsible for the construction of the works (as design responsibility remains vested in the design team). Given that school projects may concern the expansion of existing facilities (as opposed to ‘green field’ projects), it is likely that the construction works will need to be carried out in accordance with a detailed programme to ensure that interference and disruption during school time is minimised. Additionally, the construction contract needs to contain a specific procedure for the rectification of defects, again to ensure that construction works do not encroach on the day-to-day running of the school.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Some of the advantages of traditional contracting include that the employer retains control over the design of the project and therefore can monitor quality and ensure their requirements in this regard are met. This is a potentially telling advantage on account of the planning and design nuances that are applicable to school designs. There is, however, a greater risk of the building contractor being delayed and of them incurring cost overruns due to the additional oversight and involvement that the employer will have in the project. Delays can be particularly harmful as they may result in the school not being completed in time for an academic year and this could result in significant losses being incurred. In addition, there will be multiple points of responsibility, which can make the employer pursuing a claim in respect of defects that arise, more complex, costly and time consuming.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Design and Build Contracting</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The design and build procurement route generally involves the design of the works being undertaken entirely by the building contractor/its professional team of design consultants. Alternatively the initial design will be developed by the employer/its professional team of design consultants, subsequent to which responsibility for these designs will transfer to the contractor by way of novation of the design consultant appointments.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Here the building contractor takes single point responsibility and thus is liable to the employer for both the design and construction of the works.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The advantages associated with design and build contracting include that it offers greater certainty in terms of time for completion and cost, as such projects are usually for a defined duration and priced on a fixed, lump sum basis (this is of course provided that the employer does not make any changes to the required scope of works). As noted above, delays can be very damaging in the context of a school project so developers (and their funders) typically address this issue in detail in the construction contract. For example, the building contractor may be entitled to an early completion bonus while the employer will often insist on the ability to instruct the building contractor to accelerate the works if they fall behind schedule. Although delay damages are a ‘last resort’, thought should be given to the quantum of delay damages so that they correspond (as far as possible) to the loss that the employer will suffer arising out of a delay (i.e. if the facility is not ready for the start of the school term).</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The presence of single point responsibility makes it more straightforward for the employer and other parties with recourse to the building contractor, to seek redress should any design defects or workmanship issues arise, as opposed to having to pursue the relevant design consultants individually.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Disadvantages of this procurement route include that there may be added scope for delays to the project due to the changes that might be requested by the employer during the construction of the project or otherwise as a consequence of a delay in novating the design consultants to the building contractor. Such changes can also impact on costs. The employer also loses a degree of control over the project and therefore is less able to maintain oversight over quality, when compared to the traditional procurement route. This can have a significant impact in the context of an educational establishment on account of the typically prescriptive Employer’s Requirements. It is therefore important that the design and build contractor is closely supervised.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\"><img class=\"alignright size-full wp-image-8246\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_18_Image_0001.jpg\" alt=\"\" width=\"436\" height=\"362\" />Public- Private Partnerships</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Public Private Partnerships (or \"PPPs\") structures have been used to procure schools, including in the United Kingdom and Australia but are less common in the region. In the traditional sense, the public authority would engage a private entity (usually in the form of a Special Purpose Vehicle) to design, construct, operate and maintain a school for a term of usually between 15 to 25 years, in exchange for which usage payments will be made to the private entity.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The introduction of the recent PPP Law in Dubai in addition to the proposed enactment of the draft Private Sector Participation Law (which will follow the previously introduced Privatization Projects Manual) in Saudi Arabia, underlines the growing emphasis being placed on PPPs by governments in the region and it may help facilitate the gradual adoption of this approach within the region. For the time being however, ‘quasi’ PPP structures are more likely to be adopted, whereby a private entity may grant a long term concession to a specialist school to design, construct, operate and maintain an educational facility.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">An important advantage of PPPs is that it allows the procuring entity to leverage efficiencies and expertise in the private sector in order to enable it to attain its development objectives. For the private sector, PPPs can assist in helping to secure the third party funding necessary to enable the project to proceed, due primarily to the involvement of a public authority.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Disadvantages of this method of procurement include that the procurement and tendering process can be lengthy and expensive, when compared to the traditional procurement process.</p>\r\n&nbsp;\r\n<h2></h2>\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"The education sector in the Middle East has often been widely perceived as a lucrative investment opportunity for developers looking to expand their portfolio of investments…\"</h2>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Operation and Maintenance Agreement</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Once a school has been constructed, in order for it to remain in good working order and attractive to the market, it must be properly operated and maintained. This is usually undertaken by the developer appointing an operation and maintenance contractor (\"O&amp;M Contractor\") under an operation and maintenance agreement (\"O&amp;M Agreement\", otherwise also known as a \"facilities management contract\"). Some of the more important provisions of an O&amp;M agreement, that the parties should ensure are adequately addressed, include the following:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">Having a clear and detailed scope of works specifying exactly what is required of the O&amp;M Contractor in addition to the key performance indicators (or \"KPIs\" against which their performance will be measured). These KPIs should be SMART (Specific, Measurable, Achievable, Relevant and Time Based);</li>\r\n 	<li dir=\"LTR\">A warranty that the O&amp;M Contractor has carried out all reasonable investigations and inspections of the school facility and that the asset is capable of being managed to the standards prescribed by the O&amp;M Agreement. This will reduce the risk of the O&amp;M Contractor seeking to blame the building contractor for any deficiencies in the services they perform;</li>\r\n 	<li dir=\"LTR\">From a practical perspective, where the school is being newly constructed, it may be a good idea to have the O&amp;M Contractor inspect the asset prior to Take Over and to attend any tests on completion under the construction contract. The contractor may also be required to provide the O&amp;M Contractor with training for the operation and maintenance of the school. This will need to be addressed at the earliest stages of a project so that it is possible for the construction contract to include clauses to address issues of this nature;</li>\r\n 	<li dir=\"LTR\">Penalties where the O&amp;M Contractor does not achieve the KPIs or for example, where there is an interruption to the operations of the school during school and non-school hours; and</li>\r\n 	<li dir=\"LTR\">Termination rights which may be linked to a breach of the KPI regime.</li>\r\n</ul>\r\n<p dir=\"LTR\" align=\"LEFT\">There is of course a suite of other important considerations that the parties should be mindful of when negotiating an O&amp;M Agreement, such as insurance, force majeure, performance security and payment. In any event the contract should be closely examined to ensure it is tailored to the specific commercial arrangement between the parties, in addition to the laws of the jurisdiction or Emirate which will govern the contractual relationship.</p>\r\n<em>Al Tamimi &amp; Company’s <a href=\"https://www.tamimi.com/practice/construction-infrastructure/\">Construction and Infrastructure</a> team regularly advises on all elements of the construction procurement process. For further information please contact <a href=\"https://www.tamimi.com/lawyer/euan-lloyd/\">Euan Lloyd</a> (<a href=\"mailto:E.Lloyd@tamimi.com\">E.Lloyd@tamimi.com</a>).</em>'),
(306474, 29261, 'MetaLink', 'content'),
(306475, 29261, 'EditorLinkPost', 'https://www.tamimi.com/wp-admin/post.php?post=8196&amp;action=edit'),
(306476, 29261, 'ReportText', '<p dir=\"LTR\" align=\"LEFT\"><img class=\"alignright size-full wp-image-8245\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_17_Image_0003.jpg\" alt=\"\" width=\"570\" height=\"289\" />The education sector in the Middle East has often been widely perceived as a lucrative investment opportunity for developers looking to expand their portfolio of investments. By way of example, the UAE has one of the most buoyant private school markets in the world, with consistently high levels of occupancy coupled with year-on-year growth in demand, in large part as a result of the UAE’s growing expatriate population. It has been estimated that Dubai will need 134 new schools to be constructed over the course of the next 10 years in order to accommodate the estimated 200,000 pupils that will need seats by the 2027/2028 school year. It is a similar story in other parts of the Middle East. This will therefore require a concerted effort by developers, contractors, funders and the relevant regulatory bodies in order to facilitate the construction of such developments, in a manner that meets the every-increasing demand within the region.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The costs associated with investing in school infrastructure are significant. There are various reasons for this, one of which is the potential complexity of issues faced when embarking on such projects, such as the need to integrate the programme of works around the day-to-day activities of the school system (applicable for example where refurbishment works are being undertaken on an existing school).</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The procurement route adopted on any construction and engineering project is one of the key considerations for developers, which will allow them to assess whether the relevant works and moreover the project as a whole can complete on time, be of the required quality and be within budget. Another important consideration is ensuring that the tender process allows for a close examination of contractors’ experience within the sector. Given the specialist nature of school construction projects, developers should not only examine pricing but also consider whether the bidding contractor has sufficient knowledge and experience of working on such specialist projects in the region.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A number of procurement options are available to developers operating within the education sector when procuring works and services from third parties. Each of these has its own advantages and disadvantages. In this article we discuss the following key procurement routes and explain the main advantages and disadvantages associated with each:</p>\r\n\r\n<ol>\r\n 	<li dir=\"LTR\">Traditional contracting;</li>\r\n 	<li dir=\"LTR\">Design and build contracting; and</li>\r\n 	<li dir=\"LTR\">Public-private partnerships.</li>\r\n</ol>\r\n<p dir=\"LTR\" align=\"LEFT\">Finally, we will briefly examine the important role that a well drafted operation and maintenance agreement has in addressing the ongoing operational demands of a school, following completion of a project.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">It should be noted that in addition to procuring works directly, an alternative option for developers is to enter into a ‘build to suit’ arrangement with educational facility operators. This essentially involves land owners, ground lease owners or developers undertaking the construction of an educational facility provided that they have a long term tenant (whether a school, educational institution or an operator) who wishes to enter into a long term lease of the facility. Although beyond the scope of this article, build to suit education projects are an important consideration and examined in greater detail in the article entitled \"<a href=\"https://www.tamimi.com/law-update-articles/build-to-suit-education-projects/\">Build to Suit Education Projects</a>\" authored by Partner and Head of Real Estate, Jeremy Scott, in this month’s edition of Law Update.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Traditional Contracting</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">This is probably one of the most often encountered forms of procurement adopted by developers in the education sector. Essentially the developer (also known as the \"employer\") will engage a professional team of consultants (usually an architect, mechanical and electrical engineer, civil and structural engineer and perhaps other specialist consultants) to prepare designs and specifications for the works that are to then be constructed by a building contractor. Such designers typically have a proven track record and experience in operating in the education sector and this provides comfort that the designs will be well suited for an education facility and will be readily accepted by the relevant authorities.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The contractor will be engaged separately by the developer under a construction contract and will be responsible for engaging sub-contractors to the extent required in order to allow them to complete the required works in accordance with the approved designs.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The building contract will only be responsible for the construction of the works (as design responsibility remains vested in the design team). Given that school projects may concern the expansion of existing facilities (as opposed to ‘green field’ projects), it is likely that the construction works will need to be carried out in accordance with a detailed programme to ensure that interference and disruption during school time is minimised. Additionally, the construction contract needs to contain a specific procedure for the rectification of defects, again to ensure that construction works do not encroach on the day-to-day running of the school.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Some of the advantages of traditional contracting include that the employer retains control over the design of the project and therefore can monitor quality and ensure their requirements in this regard are met. This is a potentially telling advantage on account of the planning and design nuances that are applicable to school designs. There is, however, a greater risk of the building contractor being delayed and of them incurring cost overruns due to the additional oversight and involvement that the employer will have in the project. Delays can be particularly harmful as they may result in the school not being completed in time for an academic year and this could result in significant losses being incurred. In addition, there will be multiple points of responsibility, which can make the employer pursuing a claim in respect of defects that arise, more complex, costly and time consuming.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Design and Build Contracting</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The design and build procurement route generally involves the design of the works being undertaken entirely by the building contractor/its professional team of design consultants. Alternatively the initial design will be developed by the employer/its professional team of design consultants, subsequent to which responsibility for these designs will transfer to the contractor by way of novation of the design consultant appointments.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Here the building contractor takes single point responsibility and thus is liable to the employer for both the design and construction of the works.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The advantages associated with design and build contracting include that it offers greater certainty in terms of time for completion and cost, as such projects are usually for a defined duration and priced on a fixed, lump sum basis (this is of course provided that the employer does not make any changes to the required scope of works). As noted above, delays can be very damaging in the context of a school project so developers (and their funders) typically address this issue in detail in the construction contract. For example, the building contractor may be entitled to an early completion bonus while the employer will often insist on the ability to instruct the building contractor to accelerate the works if they fall behind schedule. Although delay damages are a ‘last resort’, thought should be given to the quantum of delay damages so that they correspond (as far as possible) to the loss that the employer will suffer arising out of a delay (i.e. if the facility is not ready for the start of the school term).</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The presence of single point responsibility makes it more straightforward for the employer and other parties with recourse to the building contractor, to seek redress should any design defects or workmanship issues arise, as opposed to having to pursue the relevant design consultants individually.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Disadvantages of this procurement route include that there may be added scope for delays to the project due to the changes that might be requested by the employer during the construction of the project or otherwise as a consequence of a delay in novating the design consultants to the building contractor. Such changes can also impact on costs. The employer also loses a degree of control over the project and therefore is less able to maintain oversight over quality, when compared to the traditional procurement route. This can have a significant impact in the context of an educational establishment on account of the typically prescriptive Employer’s Requirements. It is therefore important that the design and build contractor is closely supervised.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\"><img class=\"alignright size-full wp-image-8246\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_18_Image_0001.jpg\" alt=\"\" width=\"436\" height=\"362\" />Public- Private Partnerships</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Public Private Partnerships (or \"PPPs\") structures have been used to procure schools, including in the United Kingdom and Australia but are less common in the region. In the traditional sense, the public authority would engage a private entity (usually in the form of a Special Purpose Vehicle) to design, construct, operate and maintain a school for a term of usually between 15 to 25 years, in exchange for which usage payments will be made to the private entity.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The introduction of the recent PPP Law in Dubai in addition to the proposed enactment of the draft Private Sector Participation Law (which will follow the previously introduced Privatization Projects Manual) in Saudi Arabia, underlines the growing emphasis being placed on PPPs by governments in the region and it may help facilitate the gradual adoption of this approach within the region. For the time being however, ‘quasi’ PPP structures are more likely to be adopted, whereby a private entity may grant a long term concession to a specialist school to design, construct, operate and maintain an educational facility.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">An important advantage of PPPs is that it allows the procuring entity to leverage efficiencies and expertise in the private sector in order to enable it to attain its development objectives. For the private sector, PPPs can assist in helping to secure the third party funding necessary to enable the project to proceed, due primarily to the involvement of a public authority.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Disadvantages of this method of procurement include that the procurement and tendering process can be lengthy and expensive, when compared to the traditional procurement process.</p>\r\n&nbsp;\r\n<h2></h2>\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"The education sector in the Middle East has often been widely perceived as a lucrative investment opportunity for developers looking to expand their portfolio of investments…\"</h2>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Operation and Maintenance Agreement</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Once a school has been constructed, in order for it to remain in good working order and attractive to the market, it must be properly operated and maintained. This is usually undertaken by the developer appointing an operation and maintenance contractor (\"O&amp;M Contractor\") under an operation and maintenance agreement (\"O&amp;M Agreement\", otherwise also known as a \"facilities management contract\"). Some of the more important provisions of an O&amp;M agreement, that the parties should ensure are adequately addressed, include the following:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">Having a clear and detailed scope of works specifying exactly what is required of the O&amp;M Contractor in addition to the key performance indicators (or \"KPIs\" against which their performance will be measured). These KPIs should be SMART (Specific, Measurable, Achievable, Relevant and Time Based);</li>\r\n 	<li dir=\"LTR\">A warranty that the O&amp;M Contractor has carried out all reasonable investigations and inspections of the school facility and that the asset is capable of being managed to the standards prescribed by the O&amp;M Agreement. This will reduce the risk of the O&amp;M Contractor seeking to blame the building contractor for any deficiencies in the services they perform;</li>\r\n 	<li dir=\"LTR\">From a practical perspective, where the school is being newly constructed, it may be a good idea to have the O&amp;M Contractor inspect the asset prior to Take Over and to attend any tests on completion under the construction contract. The contractor may also be required to provide the O&amp;M Contractor with training for the operation and maintenance of the school. This will need to be addressed at the earliest stages of a project so that it is possible for the construction contract to include clauses to address issues of this nature;</li>\r\n 	<li dir=\"LTR\">Penalties where the O&amp;M Contractor does not achieve the KPIs or for example, where there is an interruption to the operations of the school during school and non-school hours; and</li>\r\n 	<li dir=\"LTR\">Termination rights which may be linked to a breach of the KPI regime.</li>\r\n</ul>\r\n<p dir=\"LTR\" align=\"LEFT\">There is of course a suite of other important considerations that the parties should be mindful of when negotiating an O&amp;M Agreement, such as insurance, force majeure, performance security and payment. In any event the contract should be closely examined to ensure it is tailored to the specific commercial arrangement between the parties, in addition to the laws of the jurisdiction or Emirate which will govern the contractual relationship.</p>\r\n<em>Al Tamimi &amp; Company’s <a href=\"https://www.tamimi.com/practice/construction-infrastructure/\">Construction and Infrastructure</a> team regularly advises on all elements of the construction procurement process. For further information please contact <a href=\"https://www.tamimi.com/lawyer/euan-lloyd/\">Euan Lloyd</a> (<a href=\"mailto:E.Lloyd@tamimi.com\">E.Lloyd@tamimi.com</a>).</em>|<p dir=\"LTR\" align=\"LEFT\"><img class=\"alignright  wp-image-8245\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_17_Image_0003.jpg\" alt=\"\" width=\"633\" height=\"321\" />The education sector in the Middle East has often been widely perceived as a lucrative investment opportunity for developers looking to expand their portfolio of investments. By way of example, the UAE has one of the most buoyant private school markets in the world, with consistently high levels of occupancy coupled with year-on-year growth in demand, in large part as a result of the UAE’s growing expatriate population. It has been estimated that Dubai will need 134 new schools to be constructed over the course of the next 10 years in order to accommodate the estimated 200,000 pupils that will need seats by the 2027/2028 school year. It is a similar story in other parts of the Middle East. This will therefore require a concerted effort by developers, contractors, funders and the relevant regulatory bodies in order to facilitate the construction of such developments, in a manner that meets the every-increasing demand within the region.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The costs associated with investing in school infrastructure are significant. There are various reasons for this, one of which is the potential complexity of issues faced when embarking on such projects, such as the need to integrate the programme of works around the day-to-day activities of the school system (applicable for example where refurbishment works are being undertaken on an existing school).</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The procurement route adopted on any construction and engineering project is one of the key considerations for developers, which will allow them to assess whether the relevant works and moreover the project as a whole can complete on time, be of the required quality and be within budget. Another important consideration is ensuring that the tender process allows for a close examination of contractors’ experience within the sector. Given the specialist nature of school construction projects, developers should not only examine pricing but also consider whether the bidding contractor has sufficient knowledge and experience of working on such specialist projects in the region.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A number of procurement options are available to developers operating within the education sector when procuring works and services from third parties. Each of these has its own advantages and disadvantages. In this article we discuss the following key procurement routes and explain the main advantages and disadvantages associated with each:</p>\r\n\r\n<ol>\r\n 	<li dir=\"LTR\">Traditional contracting;</li>\r\n 	<li dir=\"LTR\">Design and build contracting; and</li>\r\n 	<li dir=\"LTR\">Public-private partnerships.</li>\r\n</ol>\r\n<p dir=\"LTR\" align=\"LEFT\">Finally, we will briefly examine the important role that a well drafted operation and maintenance agreement has in addressing the ongoing operational demands of a school, following completion of a project.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">It should be noted that in addition to procuring works directly, an alternative option for developers is to enter into a ‘build to suit’ arrangement with educational facility operators. This essentially involves land owners, ground lease owners or developers undertaking the construction of an educational facility provided that they have a long term tenant (whether a school, educational institution or an operator) who wishes to enter into a long term lease of the facility. Although beyond the scope of this article, build to suit education projects are an important consideration and examined in greater detail in the article entitled \"<a href=\"https://www.tamimi.com/law-update-articles/build-to-suit-education-projects/\">Build to Suit Education Projects</a>\" authored by Partner and Head of Real Estate, Jeremy Scott, in this month’s edition of Law Update.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Traditional Contracting</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">This is probably one of the most often encountered forms of procurement adopted by developers in the education sector. Essentially the developer (also known as the \"employer\") will engage a professional team of consultants (usually an architect, mechanical and electrical engineer, civil and structural engineer and perhaps other specialist consultants) to prepare designs and specifications for the works that are to then be constructed by a building contractor. Such designers typically have a proven track record and experience in operating in the education sector and this provides comfort that the designs will be well suited for an education facility and will be readily accepted by the relevant authorities.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The contractor will be engaged separately by the developer under a construction contract and will be responsible for engaging sub-contractors to the extent required in order to allow them to complete the required works in accordance with the approved designs.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The building contract will only be responsible for the construction of the works (as design responsibility remains vested in the design team). Given that school projects may concern the expansion of existing facilities (as opposed to ‘green field’ projects), it is likely that the construction works will need to be carried out in accordance with a detailed programme to ensure that interference and disruption during school time is minimised. Additionally, the construction contract needs to contain a specific procedure for the rectification of defects, again to ensure that construction works do not encroach on the day-to-day running of the school.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Some of the advantages of traditional contracting include that the employer retains control over the design of the project and therefore can monitor quality and ensure their requirements in this regard are met. This is a potentially telling advantage on account of the planning and design nuances that are applicable to school designs. There is, however, a greater risk of the building contractor being delayed and of them incurring cost overruns due to the additional oversight and involvement that the employer will have in the project. Delays can be particularly harmful as they may result in the school not being completed in time for an academic year and this could result in significant losses being incurred. In addition, there will be multiple points of responsibility, which can make the employer pursuing a claim in respect of defects that arise, more complex, costly and time consuming.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Design and Build Contracting</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The design and build procurement route generally involves the design of the works being undertaken entirely by the building contractor/its professional team of design consultants. Alternatively the initial design will be developed by the employer/its professional team of design consultants, subsequent to which responsibility for these designs will transfer to the contractor by way of novation of the design consultant appointments.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Here the building contractor takes single point responsibility and thus is liable to the employer for both the design and construction of the works.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The advantages associated with design and build contracting include that it offers greater certainty in terms of time for completion and cost, as such projects are usually for a defined duration and priced on a fixed, lump sum basis (this is of course provided that the employer does not make any changes to the required scope of works). As noted above, delays can be very damaging in the context of a school project so developers (and their funders) typically address this issue in detail in the construction contract. For example, the building contractor may be entitled to an early completion bonus while the employer will often insist on the ability to instruct the building contractor to accelerate the works if they fall behind schedule. Although delay damages are a ‘last resort’, thought should be given to the quantum of delay damages so that they correspond (as far as possible) to the loss that the employer will suffer arising out of a delay (i.e. if the facility is not ready for the start of the school term).</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The presence of single point responsibility makes it more straightforward for the employer and other parties with recourse to the building contractor, to seek redress should any design defects or workmanship issues arise, as opposed to having to pursue the relevant design consultants individually.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Disadvantages of this procurement route include that there may be added scope for delays to the project due to the changes that might be requested by the employer during the construction of the project or otherwise as a consequence of a delay in novating the design consultants to the building contractor. Such changes can also impact on costs. The employer also loses a degree of control over the project and therefore is less able to maintain oversight over quality, when compared to the traditional procurement route. This can have a significant impact in the context of an educational establishment on account of the typically prescriptive Employer’s Requirements. It is therefore important that the design and build contractor is closely supervised.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\"><img class=\"size-full wp-image-8246 alignleft\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_18_Image_0001.jpg\" alt=\"\" width=\"436\" height=\"362\" />Public- Private Partnerships</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Public Private Partnerships (or \"PPPs\") structures have been used to procure schools, including in the United Kingdom and Australia but are less common in the region. In the traditional sense, the public authority would engage a private entity (usually in the form of a Special Purpose Vehicle) to design, construct, operate and maintain a school for a term of usually between 15 to 25 years, in exchange for which usage payments will be made to the private entity.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The introduction of the recent PPP Law in Dubai in addition to the proposed enactment of the draft Private Sector Participation Law (which will follow the previously introduced Privatization Projects Manual) in Saudi Arabia, underlines the growing emphasis being placed on PPPs by governments in the region and it may help facilitate the gradual adoption of this approach within the region. For the time being however, ‘quasi’ PPP structures are more likely to be adopted, whereby a private entity may grant a long term concession to a specialist school to design, construct, operate and maintain an educational facility.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">An important advantage of PPPs is that it allows the procuring entity to leverage efficiencies and expertise in the private sector in order to enable it to attain its development objectives. For the private sector, PPPs can assist in helping to secure the third party funding necessary to enable the project to proceed, due primarily to the involvement of a public authority.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Disadvantages of this method of procurement include that the procurement and tendering process can be lengthy and expensive, when compared to the traditional procurement process.</p>\r\n&nbsp;\r\n<h2></h2>\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"The education sector in the Middle East has often been widely perceived as a lucrative investment opportunity for developers looking to expand their portfolio of investments…\"</h2>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Operation and Maintenance Agreement</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Once a school has been constructed, in order for it to remain in good working order and attractive to the market, it must be properly operated and maintained. This is usually undertaken by the developer appointing an operation and maintenance contractor (\"O&amp;M Contractor\") under an operation and maintenance agreement (\"O&amp;M Agreement\", otherwise also known as a \"facilities management contract\"). Some of the more important provisions of an O&amp;M agreement, that the parties should ensure are adequately addressed, include the following:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">Having a clear and detailed scope of works specifying exactly what is required of the O&amp;M Contractor in addition to the key performance indicators (or \"KPIs\" against which their performance will be measured). These KPIs should be SMART (Specific, Measurable, Achievable, Relevant and Time Based);</li>\r\n 	<li dir=\"LTR\">A warranty that the O&amp;M Contractor has carried out all reasonable investigations and inspections of the school facility and that the asset is capable of being managed to the standards prescribed by the O&amp;M Agreement. This will reduce the risk of the O&amp;M Contractor seeking to blame the building contractor for any deficiencies in the services they perform;</li>\r\n 	<li dir=\"LTR\">From a practical perspective, where the school is being newly constructed, it may be a good idea to have the O&amp;M Contractor inspect the asset prior to Take Over and to attend any tests on completion under the construction contract. The contractor may also be required to provide the O&amp;M Contractor with training for the operation and maintenance of the school. This will need to be addressed at the earliest stages of a project so that it is possible for the construction contract to include clauses to address issues of this nature;</li>\r\n 	<li dir=\"LTR\">Penalties where the O&amp;M Contractor does not achieve the KPIs or for example, where there is an interruption to the operations of the school during school and non-school hours; and</li>\r\n 	<li dir=\"LTR\">Termination rights which may be linked to a breach of the KPI regime.</li>\r\n</ul>\r\n<p dir=\"LTR\" align=\"LEFT\">There is of course a suite of other important considerations that the parties should be mindful of when negotiating an O&amp;M Agreement, such as insurance, force majeure, performance security and payment. In any event the contract should be closely examined to ensure it is tailored to the specific commercial arrangement between the parties, in addition to the laws of the jurisdiction or Emirate which will govern the contractual relationship.</p>\r\n<em>Al Tamimi &amp; Company’s <a href=\"https://www.tamimi.com/practice/construction-infrastructure/\">Construction and Infrastructure</a> team regularly advises on all elements of the construction procurement process. For further information please contact <a href=\"https://www.tamimi.com/lawyer/euan-lloyd/\">Euan Lloyd</a> (<a href=\"mailto:E.Lloyd@tamimi.com\">E.Lloyd@tamimi.com</a>).</em>'),
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(306522, 29265, 'PostDate', '2018-09-04 07:40:35'),
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(306526, 29265, 'MetaValueNew', '<p dir=\"LTR\" align=\"LEFT\"><img class=\"alignright wp-image-8245 size-full\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_17_Image_0003.jpg\" alt=\"\" width=\"570\" height=\"289\" />The education sector in the Middle East has often been widely perceived as a lucrative investment opportunity for developers looking to expand their portfolio of investments. By way of example, the UAE has one of the most buoyant private school markets in the world, with consistently high levels of occupancy coupled with year-on-year growth in demand, in large part as a result of the UAE’s growing expatriate population. It has been estimated that Dubai will need 134 new schools to be constructed over the course of the next 10 years in order to accommodate the estimated 200,000 pupils that will need seats by the 2027/2028 school year. It is a similar story in other parts of the Middle East. This will therefore require a concerted effort by developers, contractors, funders and the relevant regulatory bodies in order to facilitate the construction of such developments, in a manner that meets the every-increasing demand within the region.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The costs associated with investing in school infrastructure are significant. There are various reasons for this, one of which is the potential complexity of issues faced when embarking on such projects, such as the need to integrate the programme of works around the day-to-day activities of the school system (applicable for example where refurbishment works are being undertaken on an existing school).</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The procurement route adopted on any construction and engineering project is one of the key considerations for developers, which will allow them to assess whether the relevant works and moreover the project as a whole can complete on time, be of the required quality and be within budget. Another important consideration is ensuring that the tender process allows for a close examination of contractors’ experience within the sector. Given the specialist nature of school construction projects, developers should not only examine pricing but also consider whether the bidding contractor has sufficient knowledge and experience of working on such specialist projects in the region.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A number of procurement options are available to developers operating within the education sector when procuring works and services from third parties. Each of these has its own advantages and disadvantages. In this article we discuss the following key procurement routes and explain the main advantages and disadvantages associated with each:</p>\r\n\r\n<ol>\r\n 	<li dir=\"LTR\">Traditional contracting;</li>\r\n 	<li dir=\"LTR\">Design and build contracting; and</li>\r\n 	<li dir=\"LTR\">Public-private partnerships.</li>\r\n</ol>\r\n<p dir=\"LTR\" align=\"LEFT\">Finally, we will briefly examine the important role that a well drafted operation and maintenance agreement has in addressing the ongoing operational demands of a school, following completion of a project.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">It should be noted that in addition to procuring works directly, an alternative option for developers is to enter into a ‘build to suit’ arrangement with educational facility operators. This essentially involves land owners, ground lease owners or developers undertaking the construction of an educational facility provided that they have a long term tenant (whether a school, educational institution or an operator) who wishes to enter into a long term lease of the facility. Although beyond the scope of this article, build to suit education projects are an important consideration and examined in greater detail in the article entitled \"<a href=\"https://www.tamimi.com/law-update-articles/build-to-suit-education-projects/\">Build to Suit Education Projects</a>\" authored by Partner and Head of Real Estate, Jeremy Scott, in this month’s edition of Law Update.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Traditional Contracting</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">This is probably one of the most often encountered forms of procurement adopted by developers in the education sector. Essentially the developer (also known as the \"employer\") will engage a professional team of consultants (usually an architect, mechanical and electrical engineer, civil and structural engineer and perhaps other specialist consultants) to prepare designs and specifications for the works that are to then be constructed by a building contractor. Such designers typically have a proven track record and experience in operating in the education sector and this provides comfort that the designs will be well suited for an education facility and will be readily accepted by the relevant authorities.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The contractor will be engaged separately by the developer under a construction contract and will be responsible for engaging sub-contractors to the extent required in order to allow them to complete the required works in accordance with the approved designs.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The building contract will only be responsible for the construction of the works (as design responsibility remains vested in the design team). Given that school projects may concern the expansion of existing facilities (as opposed to ‘green field’ projects), it is likely that the construction works will need to be carried out in accordance with a detailed programme to ensure that interference and disruption during school time is minimised. Additionally, the construction contract needs to contain a specific procedure for the rectification of defects, again to ensure that construction works do not encroach on the day-to-day running of the school.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Some of the advantages of traditional contracting include that the employer retains control over the design of the project and therefore can monitor quality and ensure their requirements in this regard are met. This is a potentially telling advantage on account of the planning and design nuances that are applicable to school designs. There is, however, a greater risk of the building contractor being delayed and of them incurring cost overruns due to the additional oversight and involvement that the employer will have in the project. Delays can be particularly harmful as they may result in the school not being completed in time for an academic year and this could result in significant losses being incurred. In addition, there will be multiple points of responsibility, which can make the employer pursuing a claim in respect of defects that arise, more complex, costly and time consuming.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Design and Build Contracting</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The design and build procurement route generally involves the design of the works being undertaken entirely by the building contractor/its professional team of design consultants. Alternatively the initial design will be developed by the employer/its professional team of design consultants, subsequent to which responsibility for these designs will transfer to the contractor by way of novation of the design consultant appointments.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Here the building contractor takes single point responsibility and thus is liable to the employer for both the design and construction of the works.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The advantages associated with design and build contracting include that it offers greater certainty in terms of time for completion and cost, as such projects are usually for a defined duration and priced on a fixed, lump sum basis (this is of course provided that the employer does not make any changes to the required scope of works). As noted above, delays can be very damaging in the context of a school project so developers (and their funders) typically address this issue in detail in the construction contract. For example, the building contractor may be entitled to an early completion bonus while the employer will often insist on the ability to instruct the building contractor to accelerate the works if they fall behind schedule. Although delay damages are a ‘last resort’, thought should be given to the quantum of delay damages so that they correspond (as far as possible) to the loss that the employer will suffer arising out of a delay (i.e. if the facility is not ready for the start of the school term).</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The presence of single point responsibility makes it more straightforward for the employer and other parties with recourse to the building contractor, to seek redress should any design defects or workmanship issues arise, as opposed to having to pursue the relevant design consultants individually.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Disadvantages of this procurement route include that there may be added scope for delays to the project due to the changes that might be requested by the employer during the construction of the project or otherwise as a consequence of a delay in novating the design consultants to the building contractor. Such changes can also impact on costs. The employer also loses a degree of control over the project and therefore is less able to maintain oversight over quality, when compared to the traditional procurement route. This can have a significant impact in the context of an educational establishment on account of the typically prescriptive Employer’s Requirements. It is therefore important that the design and build contractor is closely supervised.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\"><img class=\" wp-image-8246 alignleft\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_18_Image_0001.jpg\" alt=\"\" width=\"316\" height=\"262\" />Public- Private Partnerships</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Public Private Partnerships (or \"PPPs\") structures have been used to procure schools, including in the United Kingdom and Australia but are less common in the region. In the traditional sense, the public authority would engage a private entity (usually in the form of a Special Purpose Vehicle) to design, construct, operate and maintain a school for a term of usually between 15 to 25 years, in exchange for which usage payments will be made to the private entity.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The introduction of the recent PPP Law in Dubai in addition to the proposed enactment of the draft Private Sector Participation Law (which will follow the previously introduced Privatization Projects Manual) in Saudi Arabia, underlines the growing emphasis being placed on PPPs by governments in the region and it may help facilitate the gradual adoption of this approach within the region. For the time being however, ‘quasi’ PPP structures are more likely to be adopted, whereby a private entity may grant a long term concession to a specialist school to design, construct, operate and maintain an educational facility.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">An important advantage of PPPs is that it allows the procuring entity to leverage efficiencies and expertise in the private sector in order to enable it to attain its development objectives. For the private sector, PPPs can assist in helping to secure the third party funding necessary to enable the project to proceed, due primarily to the involvement of a public authority.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Disadvantages of this method of procurement include that the procurement and tendering process can be lengthy and expensive, when compared to the traditional procurement process.</p>\r\n&nbsp;\r\n<h2></h2>\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"The education sector in the Middle East has often been widely perceived as a lucrative investment opportunity for developers looking to expand their portfolio of investments…\"</h2>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Operation and Maintenance Agreement</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Once a school has been constructed, in order for it to remain in good working order and attractive to the market, it must be properly operated and maintained. This is usually undertaken by the developer appointing an operation and maintenance contractor (\"O&amp;M Contractor\") under an operation and maintenance agreement (\"O&amp;M Agreement\", otherwise also known as a \"facilities management contract\"). Some of the more important provisions of an O&amp;M agreement, that the parties should ensure are adequately addressed, include the following:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">Having a clear and detailed scope of works specifying exactly what is required of the O&amp;M Contractor in addition to the key performance indicators (or \"KPIs\" against which their performance will be measured). These KPIs should be SMART (Specific, Measurable, Achievable, Relevant and Time Based);</li>\r\n 	<li dir=\"LTR\">A warranty that the O&amp;M Contractor has carried out all reasonable investigations and inspections of the school facility and that the asset is capable of being managed to the standards prescribed by the O&amp;M Agreement. This will reduce the risk of the O&amp;M Contractor seeking to blame the building contractor for any deficiencies in the services they perform;</li>\r\n 	<li dir=\"LTR\">From a practical perspective, where the school is being newly constructed, it may be a good idea to have the O&amp;M Contractor inspect the asset prior to Take Over and to attend any tests on completion under the construction contract. The contractor may also be required to provide the O&amp;M Contractor with training for the operation and maintenance of the school. This will need to be addressed at the earliest stages of a project so that it is possible for the construction contract to include clauses to address issues of this nature;</li>\r\n 	<li dir=\"LTR\">Penalties where the O&amp;M Contractor does not achieve the KPIs or for example, where there is an interruption to the operations of the school during school and non-school hours; and</li>\r\n 	<li dir=\"LTR\">Termination rights which may be linked to a breach of the KPI regime.</li>\r\n</ul>\r\n<p dir=\"LTR\" align=\"LEFT\">There is of course a suite of other important considerations that the parties should be mindful of when negotiating an O&amp;M Agreement, such as insurance, force majeure, performance security and payment. In any event the contract should be closely examined to ensure it is tailored to the specific commercial arrangement between the parties, in addition to the laws of the jurisdiction or Emirate which will govern the contractual relationship.</p>\r\n<em>Al Tamimi &amp; Company’s <a href=\"https://www.tamimi.com/practice/construction-infrastructure/\">Construction and Infrastructure</a> team regularly advises on all elements of the construction procurement process. For further information please contact <a href=\"https://www.tamimi.com/lawyer/euan-lloyd/\">Euan Lloyd</a> (<a href=\"mailto:E.Lloyd@tamimi.com\">E.Lloyd@tamimi.com</a>).</em>'),
(306527, 29265, 'MetaValueOld', '<p dir=\"LTR\" align=\"LEFT\"><img class=\"alignright  wp-image-8245\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_17_Image_0003.jpg\" alt=\"\" width=\"633\" height=\"321\" />The education sector in the Middle East has often been widely perceived as a lucrative investment opportunity for developers looking to expand their portfolio of investments. By way of example, the UAE has one of the most buoyant private school markets in the world, with consistently high levels of occupancy coupled with year-on-year growth in demand, in large part as a result of the UAE’s growing expatriate population. It has been estimated that Dubai will need 134 new schools to be constructed over the course of the next 10 years in order to accommodate the estimated 200,000 pupils that will need seats by the 2027/2028 school year. It is a similar story in other parts of the Middle East. This will therefore require a concerted effort by developers, contractors, funders and the relevant regulatory bodies in order to facilitate the construction of such developments, in a manner that meets the every-increasing demand within the region.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The costs associated with investing in school infrastructure are significant. There are various reasons for this, one of which is the potential complexity of issues faced when embarking on such projects, such as the need to integrate the programme of works around the day-to-day activities of the school system (applicable for example where refurbishment works are being undertaken on an existing school).</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The procurement route adopted on any construction and engineering project is one of the key considerations for developers, which will allow them to assess whether the relevant works and moreover the project as a whole can complete on time, be of the required quality and be within budget. Another important consideration is ensuring that the tender process allows for a close examination of contractors’ experience within the sector. Given the specialist nature of school construction projects, developers should not only examine pricing but also consider whether the bidding contractor has sufficient knowledge and experience of working on such specialist projects in the region.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A number of procurement options are available to developers operating within the education sector when procuring works and services from third parties. Each of these has its own advantages and disadvantages. In this article we discuss the following key procurement routes and explain the main advantages and disadvantages associated with each:</p>\r\n\r\n<ol>\r\n 	<li dir=\"LTR\">Traditional contracting;</li>\r\n 	<li dir=\"LTR\">Design and build contracting; and</li>\r\n 	<li dir=\"LTR\">Public-private partnerships.</li>\r\n</ol>\r\n<p dir=\"LTR\" align=\"LEFT\">Finally, we will briefly examine the important role that a well drafted operation and maintenance agreement has in addressing the ongoing operational demands of a school, following completion of a project.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">It should be noted that in addition to procuring works directly, an alternative option for developers is to enter into a ‘build to suit’ arrangement with educational facility operators. This essentially involves land owners, ground lease owners or developers undertaking the construction of an educational facility provided that they have a long term tenant (whether a school, educational institution or an operator) who wishes to enter into a long term lease of the facility. Although beyond the scope of this article, build to suit education projects are an important consideration and examined in greater detail in the article entitled \"<a href=\"https://www.tamimi.com/law-update-articles/build-to-suit-education-projects/\">Build to Suit Education Projects</a>\" authored by Partner and Head of Real Estate, Jeremy Scott, in this month’s edition of Law Update.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Traditional Contracting</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">This is probably one of the most often encountered forms of procurement adopted by developers in the education sector. Essentially the developer (also known as the \"employer\") will engage a professional team of consultants (usually an architect, mechanical and electrical engineer, civil and structural engineer and perhaps other specialist consultants) to prepare designs and specifications for the works that are to then be constructed by a building contractor. Such designers typically have a proven track record and experience in operating in the education sector and this provides comfort that the designs will be well suited for an education facility and will be readily accepted by the relevant authorities.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The contractor will be engaged separately by the developer under a construction contract and will be responsible for engaging sub-contractors to the extent required in order to allow them to complete the required works in accordance with the approved designs.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The building contract will only be responsible for the construction of the works (as design responsibility remains vested in the design team). Given that school projects may concern the expansion of existing facilities (as opposed to ‘green field’ projects), it is likely that the construction works will need to be carried out in accordance with a detailed programme to ensure that interference and disruption during school time is minimised. Additionally, the construction contract needs to contain a specific procedure for the rectification of defects, again to ensure that construction works do not encroach on the day-to-day running of the school.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Some of the advantages of traditional contracting include that the employer retains control over the design of the project and therefore can monitor quality and ensure their requirements in this regard are met. This is a potentially telling advantage on account of the planning and design nuances that are applicable to school designs. There is, however, a greater risk of the building contractor being delayed and of them incurring cost overruns due to the additional oversight and involvement that the employer will have in the project. Delays can be particularly harmful as they may result in the school not being completed in time for an academic year and this could result in significant losses being incurred. In addition, there will be multiple points of responsibility, which can make the employer pursuing a claim in respect of defects that arise, more complex, costly and time consuming.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Design and Build Contracting</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The design and build procurement route generally involves the design of the works being undertaken entirely by the building contractor/its professional team of design consultants. Alternatively the initial design will be developed by the employer/its professional team of design consultants, subsequent to which responsibility for these designs will transfer to the contractor by way of novation of the design consultant appointments.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Here the building contractor takes single point responsibility and thus is liable to the employer for both the design and construction of the works.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The advantages associated with design and build contracting include that it offers greater certainty in terms of time for completion and cost, as such projects are usually for a defined duration and priced on a fixed, lump sum basis (this is of course provided that the employer does not make any changes to the required scope of works). As noted above, delays can be very damaging in the context of a school project so developers (and their funders) typically address this issue in detail in the construction contract. For example, the building contractor may be entitled to an early completion bonus while the employer will often insist on the ability to instruct the building contractor to accelerate the works if they fall behind schedule. Although delay damages are a ‘last resort’, thought should be given to the quantum of delay damages so that they correspond (as far as possible) to the loss that the employer will suffer arising out of a delay (i.e. if the facility is not ready for the start of the school term).</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The presence of single point responsibility makes it more straightforward for the employer and other parties with recourse to the building contractor, to seek redress should any design defects or workmanship issues arise, as opposed to having to pursue the relevant design consultants individually.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Disadvantages of this procurement route include that there may be added scope for delays to the project due to the changes that might be requested by the employer during the construction of the project or otherwise as a consequence of a delay in novating the design consultants to the building contractor. Such changes can also impact on costs. The employer also loses a degree of control over the project and therefore is less able to maintain oversight over quality, when compared to the traditional procurement route. This can have a significant impact in the context of an educational establishment on account of the typically prescriptive Employer’s Requirements. It is therefore important that the design and build contractor is closely supervised.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\"><img class=\"size-full wp-image-8246 alignleft\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_18_Image_0001.jpg\" alt=\"\" width=\"436\" height=\"362\" />Public- Private Partnerships</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Public Private Partnerships (or \"PPPs\") structures have been used to procure schools, including in the United Kingdom and Australia but are less common in the region. In the traditional sense, the public authority would engage a private entity (usually in the form of a Special Purpose Vehicle) to design, construct, operate and maintain a school for a term of usually between 15 to 25 years, in exchange for which usage payments will be made to the private entity.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The introduction of the recent PPP Law in Dubai in addition to the proposed enactment of the draft Private Sector Participation Law (which will follow the previously introduced Privatization Projects Manual) in Saudi Arabia, underlines the growing emphasis being placed on PPPs by governments in the region and it may help facilitate the gradual adoption of this approach within the region. For the time being however, ‘quasi’ PPP structures are more likely to be adopted, whereby a private entity may grant a long term concession to a specialist school to design, construct, operate and maintain an educational facility.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">An important advantage of PPPs is that it allows the procuring entity to leverage efficiencies and expertise in the private sector in order to enable it to attain its development objectives. For the private sector, PPPs can assist in helping to secure the third party funding necessary to enable the project to proceed, due primarily to the involvement of a public authority.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Disadvantages of this method of procurement include that the procurement and tendering process can be lengthy and expensive, when compared to the traditional procurement process.</p>\r\n&nbsp;\r\n<h2></h2>\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"The education sector in the Middle East has often been widely perceived as a lucrative investment opportunity for developers looking to expand their portfolio of investments…\"</h2>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Operation and Maintenance Agreement</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Once a school has been constructed, in order for it to remain in good working order and attractive to the market, it must be properly operated and maintained. This is usually undertaken by the developer appointing an operation and maintenance contractor (\"O&amp;M Contractor\") under an operation and maintenance agreement (\"O&amp;M Agreement\", otherwise also known as a \"facilities management contract\"). Some of the more important provisions of an O&amp;M agreement, that the parties should ensure are adequately addressed, include the following:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">Having a clear and detailed scope of works specifying exactly what is required of the O&amp;M Contractor in addition to the key performance indicators (or \"KPIs\" against which their performance will be measured). These KPIs should be SMART (Specific, Measurable, Achievable, Relevant and Time Based);</li>\r\n 	<li dir=\"LTR\">A warranty that the O&amp;M Contractor has carried out all reasonable investigations and inspections of the school facility and that the asset is capable of being managed to the standards prescribed by the O&amp;M Agreement. This will reduce the risk of the O&amp;M Contractor seeking to blame the building contractor for any deficiencies in the services they perform;</li>\r\n 	<li dir=\"LTR\">From a practical perspective, where the school is being newly constructed, it may be a good idea to have the O&amp;M Contractor inspect the asset prior to Take Over and to attend any tests on completion under the construction contract. The contractor may also be required to provide the O&amp;M Contractor with training for the operation and maintenance of the school. This will need to be addressed at the earliest stages of a project so that it is possible for the construction contract to include clauses to address issues of this nature;</li>\r\n 	<li dir=\"LTR\">Penalties where the O&amp;M Contractor does not achieve the KPIs or for example, where there is an interruption to the operations of the school during school and non-school hours; and</li>\r\n 	<li dir=\"LTR\">Termination rights which may be linked to a breach of the KPI regime.</li>\r\n</ul>\r\n<p dir=\"LTR\" align=\"LEFT\">There is of course a suite of other important considerations that the parties should be mindful of when negotiating an O&amp;M Agreement, such as insurance, force majeure, performance security and payment. In any event the contract should be closely examined to ensure it is tailored to the specific commercial arrangement between the parties, in addition to the laws of the jurisdiction or Emirate which will govern the contractual relationship.</p>\r\n<em>Al Tamimi &amp; Company’s <a href=\"https://www.tamimi.com/practice/construction-infrastructure/\">Construction and Infrastructure</a> team regularly advises on all elements of the construction procurement process. For further information please contact <a href=\"https://www.tamimi.com/lawyer/euan-lloyd/\">Euan Lloyd</a> (<a href=\"mailto:E.Lloyd@tamimi.com\">E.Lloyd@tamimi.com</a>).</em>'),
(306528, 29265, 'MetaLink', 'content'),
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INSERT INTO `tm_wsal_metadata` (`id`, `occurrence_id`, `name`, `value`) VALUES
(306530, 29265, 'ReportText', '<p dir=\"LTR\" align=\"LEFT\"><img class=\"alignright  wp-image-8245\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_17_Image_0003.jpg\" alt=\"\" width=\"633\" height=\"321\" />The education sector in the Middle East has often been widely perceived as a lucrative investment opportunity for developers looking to expand their portfolio of investments. By way of example, the UAE has one of the most buoyant private school markets in the world, with consistently high levels of occupancy coupled with year-on-year growth in demand, in large part as a result of the UAE’s growing expatriate population. It has been estimated that Dubai will need 134 new schools to be constructed over the course of the next 10 years in order to accommodate the estimated 200,000 pupils that will need seats by the 2027/2028 school year. It is a similar story in other parts of the Middle East. This will therefore require a concerted effort by developers, contractors, funders and the relevant regulatory bodies in order to facilitate the construction of such developments, in a manner that meets the every-increasing demand within the region.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The costs associated with investing in school infrastructure are significant. There are various reasons for this, one of which is the potential complexity of issues faced when embarking on such projects, such as the need to integrate the programme of works around the day-to-day activities of the school system (applicable for example where refurbishment works are being undertaken on an existing school).</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The procurement route adopted on any construction and engineering project is one of the key considerations for developers, which will allow them to assess whether the relevant works and moreover the project as a whole can complete on time, be of the required quality and be within budget. Another important consideration is ensuring that the tender process allows for a close examination of contractors’ experience within the sector. Given the specialist nature of school construction projects, developers should not only examine pricing but also consider whether the bidding contractor has sufficient knowledge and experience of working on such specialist projects in the region.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A number of procurement options are available to developers operating within the education sector when procuring works and services from third parties. Each of these has its own advantages and disadvantages. In this article we discuss the following key procurement routes and explain the main advantages and disadvantages associated with each:</p>\r\n\r\n<ol>\r\n 	<li dir=\"LTR\">Traditional contracting;</li>\r\n 	<li dir=\"LTR\">Design and build contracting; and</li>\r\n 	<li dir=\"LTR\">Public-private partnerships.</li>\r\n</ol>\r\n<p dir=\"LTR\" align=\"LEFT\">Finally, we will briefly examine the important role that a well drafted operation and maintenance agreement has in addressing the ongoing operational demands of a school, following completion of a project.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">It should be noted that in addition to procuring works directly, an alternative option for developers is to enter into a ‘build to suit’ arrangement with educational facility operators. This essentially involves land owners, ground lease owners or developers undertaking the construction of an educational facility provided that they have a long term tenant (whether a school, educational institution or an operator) who wishes to enter into a long term lease of the facility. Although beyond the scope of this article, build to suit education projects are an important consideration and examined in greater detail in the article entitled \"<a href=\"https://www.tamimi.com/law-update-articles/build-to-suit-education-projects/\">Build to Suit Education Projects</a>\" authored by Partner and Head of Real Estate, Jeremy Scott, in this month’s edition of Law Update.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Traditional Contracting</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">This is probably one of the most often encountered forms of procurement adopted by developers in the education sector. Essentially the developer (also known as the \"employer\") will engage a professional team of consultants (usually an architect, mechanical and electrical engineer, civil and structural engineer and perhaps other specialist consultants) to prepare designs and specifications for the works that are to then be constructed by a building contractor. Such designers typically have a proven track record and experience in operating in the education sector and this provides comfort that the designs will be well suited for an education facility and will be readily accepted by the relevant authorities.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The contractor will be engaged separately by the developer under a construction contract and will be responsible for engaging sub-contractors to the extent required in order to allow them to complete the required works in accordance with the approved designs.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The building contract will only be responsible for the construction of the works (as design responsibility remains vested in the design team). Given that school projects may concern the expansion of existing facilities (as opposed to ‘green field’ projects), it is likely that the construction works will need to be carried out in accordance with a detailed programme to ensure that interference and disruption during school time is minimised. Additionally, the construction contract needs to contain a specific procedure for the rectification of defects, again to ensure that construction works do not encroach on the day-to-day running of the school.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Some of the advantages of traditional contracting include that the employer retains control over the design of the project and therefore can monitor quality and ensure their requirements in this regard are met. This is a potentially telling advantage on account of the planning and design nuances that are applicable to school designs. There is, however, a greater risk of the building contractor being delayed and of them incurring cost overruns due to the additional oversight and involvement that the employer will have in the project. Delays can be particularly harmful as they may result in the school not being completed in time for an academic year and this could result in significant losses being incurred. In addition, there will be multiple points of responsibility, which can make the employer pursuing a claim in respect of defects that arise, more complex, costly and time consuming.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Design and Build Contracting</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The design and build procurement route generally involves the design of the works being undertaken entirely by the building contractor/its professional team of design consultants. Alternatively the initial design will be developed by the employer/its professional team of design consultants, subsequent to which responsibility for these designs will transfer to the contractor by way of novation of the design consultant appointments.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Here the building contractor takes single point responsibility and thus is liable to the employer for both the design and construction of the works.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The advantages associated with design and build contracting include that it offers greater certainty in terms of time for completion and cost, as such projects are usually for a defined duration and priced on a fixed, lump sum basis (this is of course provided that the employer does not make any changes to the required scope of works). As noted above, delays can be very damaging in the context of a school project so developers (and their funders) typically address this issue in detail in the construction contract. For example, the building contractor may be entitled to an early completion bonus while the employer will often insist on the ability to instruct the building contractor to accelerate the works if they fall behind schedule. Although delay damages are a ‘last resort’, thought should be given to the quantum of delay damages so that they correspond (as far as possible) to the loss that the employer will suffer arising out of a delay (i.e. if the facility is not ready for the start of the school term).</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The presence of single point responsibility makes it more straightforward for the employer and other parties with recourse to the building contractor, to seek redress should any design defects or workmanship issues arise, as opposed to having to pursue the relevant design consultants individually.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Disadvantages of this procurement route include that there may be added scope for delays to the project due to the changes that might be requested by the employer during the construction of the project or otherwise as a consequence of a delay in novating the design consultants to the building contractor. Such changes can also impact on costs. The employer also loses a degree of control over the project and therefore is less able to maintain oversight over quality, when compared to the traditional procurement route. This can have a significant impact in the context of an educational establishment on account of the typically prescriptive Employer’s Requirements. It is therefore important that the design and build contractor is closely supervised.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\"><img class=\"size-full wp-image-8246 alignleft\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_18_Image_0001.jpg\" alt=\"\" width=\"436\" height=\"362\" />Public- Private Partnerships</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Public Private Partnerships (or \"PPPs\") structures have been used to procure schools, including in the United Kingdom and Australia but are less common in the region. In the traditional sense, the public authority would engage a private entity (usually in the form of a Special Purpose Vehicle) to design, construct, operate and maintain a school for a term of usually between 15 to 25 years, in exchange for which usage payments will be made to the private entity.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The introduction of the recent PPP Law in Dubai in addition to the proposed enactment of the draft Private Sector Participation Law (which will follow the previously introduced Privatization Projects Manual) in Saudi Arabia, underlines the growing emphasis being placed on PPPs by governments in the region and it may help facilitate the gradual adoption of this approach within the region. For the time being however, ‘quasi’ PPP structures are more likely to be adopted, whereby a private entity may grant a long term concession to a specialist school to design, construct, operate and maintain an educational facility.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">An important advantage of PPPs is that it allows the procuring entity to leverage efficiencies and expertise in the private sector in order to enable it to attain its development objectives. For the private sector, PPPs can assist in helping to secure the third party funding necessary to enable the project to proceed, due primarily to the involvement of a public authority.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Disadvantages of this method of procurement include that the procurement and tendering process can be lengthy and expensive, when compared to the traditional procurement process.</p>\r\n&nbsp;\r\n<h2></h2>\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"The education sector in the Middle East has often been widely perceived as a lucrative investment opportunity for developers looking to expand their portfolio of investments…\"</h2>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Operation and Maintenance Agreement</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Once a school has been constructed, in order for it to remain in good working order and attractive to the market, it must be properly operated and maintained. This is usually undertaken by the developer appointing an operation and maintenance contractor (\"O&amp;M Contractor\") under an operation and maintenance agreement (\"O&amp;M Agreement\", otherwise also known as a \"facilities management contract\"). Some of the more important provisions of an O&amp;M agreement, that the parties should ensure are adequately addressed, include the following:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">Having a clear and detailed scope of works specifying exactly what is required of the O&amp;M Contractor in addition to the key performance indicators (or \"KPIs\" against which their performance will be measured). These KPIs should be SMART (Specific, Measurable, Achievable, Relevant and Time Based);</li>\r\n 	<li dir=\"LTR\">A warranty that the O&amp;M Contractor has carried out all reasonable investigations and inspections of the school facility and that the asset is capable of being managed to the standards prescribed by the O&amp;M Agreement. This will reduce the risk of the O&amp;M Contractor seeking to blame the building contractor for any deficiencies in the services they perform;</li>\r\n 	<li dir=\"LTR\">From a practical perspective, where the school is being newly constructed, it may be a good idea to have the O&amp;M Contractor inspect the asset prior to Take Over and to attend any tests on completion under the construction contract. The contractor may also be required to provide the O&amp;M Contractor with training for the operation and maintenance of the school. This will need to be addressed at the earliest stages of a project so that it is possible for the construction contract to include clauses to address issues of this nature;</li>\r\n 	<li dir=\"LTR\">Penalties where the O&amp;M Contractor does not achieve the KPIs or for example, where there is an interruption to the operations of the school during school and non-school hours; and</li>\r\n 	<li dir=\"LTR\">Termination rights which may be linked to a breach of the KPI regime.</li>\r\n</ul>\r\n<p dir=\"LTR\" align=\"LEFT\">There is of course a suite of other important considerations that the parties should be mindful of when negotiating an O&amp;M Agreement, such as insurance, force majeure, performance security and payment. In any event the contract should be closely examined to ensure it is tailored to the specific commercial arrangement between the parties, in addition to the laws of the jurisdiction or Emirate which will govern the contractual relationship.</p>\r\n<em>Al Tamimi &amp; Company’s <a href=\"https://www.tamimi.com/practice/construction-infrastructure/\">Construction and Infrastructure</a> team regularly advises on all elements of the construction procurement process. For further information please contact <a href=\"https://www.tamimi.com/lawyer/euan-lloyd/\">Euan Lloyd</a> (<a href=\"mailto:E.Lloyd@tamimi.com\">E.Lloyd@tamimi.com</a>).</em>|<p dir=\"LTR\" align=\"LEFT\"><img class=\"alignright wp-image-8245 size-full\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_17_Image_0003.jpg\" alt=\"\" width=\"570\" height=\"289\" />The education sector in the Middle East has often been widely perceived as a lucrative investment opportunity for developers looking to expand their portfolio of investments. By way of example, the UAE has one of the most buoyant private school markets in the world, with consistently high levels of occupancy coupled with year-on-year growth in demand, in large part as a result of the UAE’s growing expatriate population. It has been estimated that Dubai will need 134 new schools to be constructed over the course of the next 10 years in order to accommodate the estimated 200,000 pupils that will need seats by the 2027/2028 school year. It is a similar story in other parts of the Middle East. This will therefore require a concerted effort by developers, contractors, funders and the relevant regulatory bodies in order to facilitate the construction of such developments, in a manner that meets the every-increasing demand within the region.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The costs associated with investing in school infrastructure are significant. There are various reasons for this, one of which is the potential complexity of issues faced when embarking on such projects, such as the need to integrate the programme of works around the day-to-day activities of the school system (applicable for example where refurbishment works are being undertaken on an existing school).</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The procurement route adopted on any construction and engineering project is one of the key considerations for developers, which will allow them to assess whether the relevant works and moreover the project as a whole can complete on time, be of the required quality and be within budget. Another important consideration is ensuring that the tender process allows for a close examination of contractors’ experience within the sector. Given the specialist nature of school construction projects, developers should not only examine pricing but also consider whether the bidding contractor has sufficient knowledge and experience of working on such specialist projects in the region.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A number of procurement options are available to developers operating within the education sector when procuring works and services from third parties. Each of these has its own advantages and disadvantages. In this article we discuss the following key procurement routes and explain the main advantages and disadvantages associated with each:</p>\r\n\r\n<ol>\r\n 	<li dir=\"LTR\">Traditional contracting;</li>\r\n 	<li dir=\"LTR\">Design and build contracting; and</li>\r\n 	<li dir=\"LTR\">Public-private partnerships.</li>\r\n</ol>\r\n<p dir=\"LTR\" align=\"LEFT\">Finally, we will briefly examine the important role that a well drafted operation and maintenance agreement has in addressing the ongoing operational demands of a school, following completion of a project.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">It should be noted that in addition to procuring works directly, an alternative option for developers is to enter into a ‘build to suit’ arrangement with educational facility operators. This essentially involves land owners, ground lease owners or developers undertaking the construction of an educational facility provided that they have a long term tenant (whether a school, educational institution or an operator) who wishes to enter into a long term lease of the facility. Although beyond the scope of this article, build to suit education projects are an important consideration and examined in greater detail in the article entitled \"<a href=\"https://www.tamimi.com/law-update-articles/build-to-suit-education-projects/\">Build to Suit Education Projects</a>\" authored by Partner and Head of Real Estate, Jeremy Scott, in this month’s edition of Law Update.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Traditional Contracting</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">This is probably one of the most often encountered forms of procurement adopted by developers in the education sector. Essentially the developer (also known as the \"employer\") will engage a professional team of consultants (usually an architect, mechanical and electrical engineer, civil and structural engineer and perhaps other specialist consultants) to prepare designs and specifications for the works that are to then be constructed by a building contractor. Such designers typically have a proven track record and experience in operating in the education sector and this provides comfort that the designs will be well suited for an education facility and will be readily accepted by the relevant authorities.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The contractor will be engaged separately by the developer under a construction contract and will be responsible for engaging sub-contractors to the extent required in order to allow them to complete the required works in accordance with the approved designs.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The building contract will only be responsible for the construction of the works (as design responsibility remains vested in the design team). Given that school projects may concern the expansion of existing facilities (as opposed to ‘green field’ projects), it is likely that the construction works will need to be carried out in accordance with a detailed programme to ensure that interference and disruption during school time is minimised. Additionally, the construction contract needs to contain a specific procedure for the rectification of defects, again to ensure that construction works do not encroach on the day-to-day running of the school.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Some of the advantages of traditional contracting include that the employer retains control over the design of the project and therefore can monitor quality and ensure their requirements in this regard are met. This is a potentially telling advantage on account of the planning and design nuances that are applicable to school designs. There is, however, a greater risk of the building contractor being delayed and of them incurring cost overruns due to the additional oversight and involvement that the employer will have in the project. Delays can be particularly harmful as they may result in the school not being completed in time for an academic year and this could result in significant losses being incurred. In addition, there will be multiple points of responsibility, which can make the employer pursuing a claim in respect of defects that arise, more complex, costly and time consuming.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Design and Build Contracting</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The design and build procurement route generally involves the design of the works being undertaken entirely by the building contractor/its professional team of design consultants. Alternatively the initial design will be developed by the employer/its professional team of design consultants, subsequent to which responsibility for these designs will transfer to the contractor by way of novation of the design consultant appointments.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Here the building contractor takes single point responsibility and thus is liable to the employer for both the design and construction of the works.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The advantages associated with design and build contracting include that it offers greater certainty in terms of time for completion and cost, as such projects are usually for a defined duration and priced on a fixed, lump sum basis (this is of course provided that the employer does not make any changes to the required scope of works). As noted above, delays can be very damaging in the context of a school project so developers (and their funders) typically address this issue in detail in the construction contract. For example, the building contractor may be entitled to an early completion bonus while the employer will often insist on the ability to instruct the building contractor to accelerate the works if they fall behind schedule. Although delay damages are a ‘last resort’, thought should be given to the quantum of delay damages so that they correspond (as far as possible) to the loss that the employer will suffer arising out of a delay (i.e. if the facility is not ready for the start of the school term).</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The presence of single point responsibility makes it more straightforward for the employer and other parties with recourse to the building contractor, to seek redress should any design defects or workmanship issues arise, as opposed to having to pursue the relevant design consultants individually.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Disadvantages of this procurement route include that there may be added scope for delays to the project due to the changes that might be requested by the employer during the construction of the project or otherwise as a consequence of a delay in novating the design consultants to the building contractor. Such changes can also impact on costs. The employer also loses a degree of control over the project and therefore is less able to maintain oversight over quality, when compared to the traditional procurement route. This can have a significant impact in the context of an educational establishment on account of the typically prescriptive Employer’s Requirements. It is therefore important that the design and build contractor is closely supervised.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\"><img class=\" wp-image-8246 alignleft\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_18_Image_0001.jpg\" alt=\"\" width=\"316\" height=\"262\" />Public- Private Partnerships</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Public Private Partnerships (or \"PPPs\") structures have been used to procure schools, including in the United Kingdom and Australia but are less common in the region. In the traditional sense, the public authority would engage a private entity (usually in the form of a Special Purpose Vehicle) to design, construct, operate and maintain a school for a term of usually between 15 to 25 years, in exchange for which usage payments will be made to the private entity.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The introduction of the recent PPP Law in Dubai in addition to the proposed enactment of the draft Private Sector Participation Law (which will follow the previously introduced Privatization Projects Manual) in Saudi Arabia, underlines the growing emphasis being placed on PPPs by governments in the region and it may help facilitate the gradual adoption of this approach within the region. For the time being however, ‘quasi’ PPP structures are more likely to be adopted, whereby a private entity may grant a long term concession to a specialist school to design, construct, operate and maintain an educational facility.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">An important advantage of PPPs is that it allows the procuring entity to leverage efficiencies and expertise in the private sector in order to enable it to attain its development objectives. For the private sector, PPPs can assist in helping to secure the third party funding necessary to enable the project to proceed, due primarily to the involvement of a public authority.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Disadvantages of this method of procurement include that the procurement and tendering process can be lengthy and expensive, when compared to the traditional procurement process.</p>\r\n&nbsp;\r\n<h2></h2>\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"The education sector in the Middle East has often been widely perceived as a lucrative investment opportunity for developers looking to expand their portfolio of investments…\"</h2>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Operation and Maintenance Agreement</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Once a school has been constructed, in order for it to remain in good working order and attractive to the market, it must be properly operated and maintained. This is usually undertaken by the developer appointing an operation and maintenance contractor (\"O&amp;M Contractor\") under an operation and maintenance agreement (\"O&amp;M Agreement\", otherwise also known as a \"facilities management contract\"). Some of the more important provisions of an O&amp;M agreement, that the parties should ensure are adequately addressed, include the following:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">Having a clear and detailed scope of works specifying exactly what is required of the O&amp;M Contractor in addition to the key performance indicators (or \"KPIs\" against which their performance will be measured). These KPIs should be SMART (Specific, Measurable, Achievable, Relevant and Time Based);</li>\r\n 	<li dir=\"LTR\">A warranty that the O&amp;M Contractor has carried out all reasonable investigations and inspections of the school facility and that the asset is capable of being managed to the standards prescribed by the O&amp;M Agreement. This will reduce the risk of the O&amp;M Contractor seeking to blame the building contractor for any deficiencies in the services they perform;</li>\r\n 	<li dir=\"LTR\">From a practical perspective, where the school is being newly constructed, it may be a good idea to have the O&amp;M Contractor inspect the asset prior to Take Over and to attend any tests on completion under the construction contract. The contractor may also be required to provide the O&amp;M Contractor with training for the operation and maintenance of the school. This will need to be addressed at the earliest stages of a project so that it is possible for the construction contract to include clauses to address issues of this nature;</li>\r\n 	<li dir=\"LTR\">Penalties where the O&amp;M Contractor does not achieve the KPIs or for example, where there is an interruption to the operations of the school during school and non-school hours; and</li>\r\n 	<li dir=\"LTR\">Termination rights which may be linked to a breach of the KPI regime.</li>\r\n</ul>\r\n<p dir=\"LTR\" align=\"LEFT\">There is of course a suite of other important considerations that the parties should be mindful of when negotiating an O&amp;M Agreement, such as insurance, force majeure, performance security and payment. In any event the contract should be closely examined to ensure it is tailored to the specific commercial arrangement between the parties, in addition to the laws of the jurisdiction or Emirate which will govern the contractual relationship.</p>\r\n<em>Al Tamimi &amp; Company’s <a href=\"https://www.tamimi.com/practice/construction-infrastructure/\">Construction and Infrastructure</a> team regularly advises on all elements of the construction procurement process. For further information please contact <a href=\"https://www.tamimi.com/lawyer/euan-lloyd/\">Euan Lloyd</a> (<a href=\"mailto:E.Lloyd@tamimi.com\">E.Lloyd@tamimi.com</a>).</em>'),
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(306562, 29268, 'PostTitle', 'Procurement in the Education Sector in the Middle East'),
(306563, 29268, 'PostStatus', 'publish'),
(306564, 29268, 'PostDate', '2018-09-04 07:40:35'),
(306565, 29268, 'PostUrl', 'https://www.tamimi.com/law-update-articles/procurement-in-the-education-sector-in-the-middle-east/'),
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(306570, 29268, 'CurrentUserRoles', 'a:2:{i:0;s:13:\"administrator\";i:1;s:10:\"superadmin\";}'),
(306571, 29268, 'SessionID', '3eea04a09d4e3cdd1fe6c70377c574db138b0e23ebe7b0dd06abdc4b42051811'),
(306572, 29269, 'PostID', '8196'),
(306573, 29269, 'PostTitle', 'Procurement in the Education Sector in the Middle East'),
(306574, 29269, 'PostStatus', 'publish'),
(306575, 29269, 'PostType', 'law_update_articles'),
(306576, 29269, 'PostDate', '2018-09-04 07:40:35'),
(306577, 29269, 'PostUrl', 'https://www.tamimi.com/law-update-articles/procurement-in-the-education-sector-in-the-middle-east/'),
(306578, 29269, 'MetaID', '226652'),
(306579, 29269, 'MetaKey', 'content'),
(306580, 29269, 'MetaValueNew', '<p dir=\"LTR\" align=\"LEFT\"><img class=\"alignright wp-image-8245 size-full\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_17_Image_0003.jpg\" alt=\"\" width=\"570\" height=\"289\" />The education sector in the Middle East has often been widely perceived as a lucrative investment opportunity for developers looking to expand their portfolio of investments. By way of example, the UAE has one of the most buoyant private school markets in the world, with consistently high levels of occupancy coupled with year-on-year growth in demand, in large part as a result of the UAE’s growing expatriate population. It has been estimated that Dubai will need 134 new schools to be constructed over the course of the next 10 years in order to accommodate the estimated 200,000 pupils that will need seats by the 2027/2028 school year. It is a similar story in other parts of the Middle East. This will therefore require a concerted effort by developers, contractors, funders and the relevant regulatory bodies in order to facilitate the construction of such developments, in a manner that meets the every-increasing demand within the region.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The costs associated with investing in school infrastructure are significant. There are various reasons for this, one of which is the potential complexity of issues faced when embarking on such projects, such as the need to integrate the programme of works around the day-to-day activities of the school system (applicable for example where refurbishment works are being undertaken on an existing school).</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The procurement route adopted on any construction and engineering project is one of the key considerations for developers, which will allow them to assess whether the relevant works and moreover the project as a whole can complete on time, be of the required quality and be within budget. Another important consideration is ensuring that the tender process allows for a close examination of contractors’ experience within the sector. Given the specialist nature of school construction projects, developers should not only examine pricing but also consider whether the bidding contractor has sufficient knowledge and experience of working on such specialist projects in the region.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A number of procurement options are available to developers operating within the education sector when procuring works and services from third parties. Each of these has its own advantages and disadvantages. In this article we discuss the following key procurement routes and explain the main advantages and disadvantages associated with each:</p>\r\n\r\n<ol>\r\n 	<li dir=\"LTR\">Traditional contracting;</li>\r\n 	<li dir=\"LTR\">Design and build contracting; and</li>\r\n 	<li dir=\"LTR\">Public-private partnerships.</li>\r\n</ol>\r\n<p dir=\"LTR\" align=\"LEFT\">Finally, we will briefly examine the important role that a well drafted operation and maintenance agreement has in addressing the ongoing operational demands of a school, following completion of a project.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">It should be noted that in addition to procuring works directly, an alternative option for developers is to enter into a ‘build to suit’ arrangement with educational facility operators. This essentially involves land owners, ground lease owners or developers undertaking the construction of an educational facility provided that they have a long term tenant (whether a school, educational institution or an operator) who wishes to enter into a long term lease of the facility. Although beyond the scope of this article, build to suit education projects are an important consideration and examined in greater detail in the article entitled \"<a href=\"https://www.tamimi.com/law-update-articles/build-to-suit-education-projects/\">Build to Suit Education Projects</a>\" authored by Partner and Head of Real Estate, Jeremy Scott, in this month’s edition of Law Update.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Traditional Contracting</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">This is probably one of the most often encountered forms of procurement adopted by developers in the education sector. Essentially the developer (also known as the \"employer\") will engage a professional team of consultants (usually an architect, mechanical and electrical engineer, civil and structural engineer and perhaps other specialist consultants) to prepare designs and specifications for the works that are to then be constructed by a building contractor. Such designers typically have a proven track record and experience in operating in the education sector and this provides comfort that the designs will be well suited for an education facility and will be readily accepted by the relevant authorities.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The contractor will be engaged separately by the developer under a construction contract and will be responsible for engaging sub-contractors to the extent required in order to allow them to complete the required works in accordance with the approved designs.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The building contract will only be responsible for the construction of the works (as design responsibility remains vested in the design team). Given that school projects may concern the expansion of existing facilities (as opposed to ‘green field’ projects), it is likely that the construction works will need to be carried out in accordance with a detailed programme to ensure that interference and disruption during school time is minimised. Additionally, the construction contract needs to contain a specific procedure for the rectification of defects, again to ensure that construction works do not encroach on the day-to-day running of the school.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Some of the advantages of traditional contracting include that the employer retains control over the design of the project and therefore can monitor quality and ensure their requirements in this regard are met. This is a potentially telling advantage on account of the planning and design nuances that are applicable to school designs. There is, however, a greater risk of the building contractor being delayed and of them incurring cost overruns due to the additional oversight and involvement that the employer will have in the project. Delays can be particularly harmful as they may result in the school not being completed in time for an academic year and this could result in significant losses being incurred. In addition, there will be multiple points of responsibility, which can make the employer pursuing a claim in respect of defects that arise, more complex, costly and time consuming.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Design and Build Contracting</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The design and build procurement route generally involves the design of the works being undertaken entirely by the building contractor/its professional team of design consultants. Alternatively the initial design will be developed by the employer/its professional team of design consultants, subsequent to which responsibility for these designs will transfer to the contractor by way of novation of the design consultant appointments.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Here the building contractor takes single point responsibility and thus is liable to the employer for both the design and construction of the works.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The advantages associated with design and build contracting include that it offers greater certainty in terms of time for completion and cost, as such projects are usually for a defined duration and priced on a fixed, lump sum basis (this is of course provided that the employer does not make any changes to the required scope of works). As noted above, delays can be very damaging in the context of a school project so developers (and their funders) typically address this issue in detail in the construction contract. For example, the building contractor may be entitled to an early completion bonus while the employer will often insist on the ability to instruct the building contractor to accelerate the works if they fall behind schedule. Although delay damages are a ‘last resort’, thought should be given to the quantum of delay damages so that they correspond (as far as possible) to the loss that the employer will suffer arising out of a delay (i.e. if the facility is not ready for the start of the school term).</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The presence of single point responsibility makes it more straightforward for the employer and other parties with recourse to the building contractor, to seek redress should any design defects or workmanship issues arise, as opposed to having to pursue the relevant design consultants individually.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Disadvantages of this procurement route include that there may be added scope for delays to the project due to the changes that might be requested by the employer during the construction of the project or otherwise as a consequence of a delay in novating the design consultants to the building contractor. Such changes can also impact on costs. The employer also loses a degree of control over the project and therefore is less able to maintain oversight over quality, when compared to the traditional procurement route. This can have a significant impact in the context of an educational establishment on account of the typically prescriptive Employer’s Requirements. It is therefore important that the design and build contractor is closely supervised.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\"><img class=\"wp-image-8246 alignright\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_18_Image_0001.jpg\" alt=\"\" width=\"316\" height=\"262\" />Public- Private Partnerships</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Public Private Partnerships (or \"PPPs\") structures have been used to procure schools, including in the United Kingdom and Australia but are less common in the region. In the traditional sense, the public authority would engage a private entity (usually in the form of a Special Purpose Vehicle) to design, construct, operate and maintain a school for a term of usually between 15 to 25 years, in exchange for which usage payments will be made to the private entity.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The introduction of the recent PPP Law in Dubai in addition to the proposed enactment of the draft Private Sector Participation Law (which will follow the previously introduced Privatization Projects Manual) in Saudi Arabia, underlines the growing emphasis being placed on PPPs by governments in the region and it may help facilitate the gradual adoption of this approach within the region. For the time being however, ‘quasi’ PPP structures are more likely to be adopted, whereby a private entity may grant a long term concession to a specialist school to design, construct, operate and maintain an educational facility.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">An important advantage of PPPs is that it allows the procuring entity to leverage efficiencies and expertise in the private sector in order to enable it to attain its development objectives. For the private sector, PPPs can assist in helping to secure the third party funding necessary to enable the project to proceed, due primarily to the involvement of a public authority.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Disadvantages of this method of procurement include that the procurement and tendering process can be lengthy and expensive, when compared to the traditional procurement process.</p>\r\n&nbsp;\r\n<h2></h2>\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"The education sector in the Middle East has often been widely perceived as a lucrative investment opportunity for developers looking to expand their portfolio of investments…\"</h2>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Operation and Maintenance Agreement</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Once a school has been constructed, in order for it to remain in good working order and attractive to the market, it must be properly operated and maintained. This is usually undertaken by the developer appointing an operation and maintenance contractor (\"O&amp;M Contractor\") under an operation and maintenance agreement (\"O&amp;M Agreement\", otherwise also known as a \"facilities management contract\"). Some of the more important provisions of an O&amp;M agreement, that the parties should ensure are adequately addressed, include the following:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">Having a clear and detailed scope of works specifying exactly what is required of the O&amp;M Contractor in addition to the key performance indicators (or \"KPIs\" against which their performance will be measured). These KPIs should be SMART (Specific, Measurable, Achievable, Relevant and Time Based);</li>\r\n 	<li dir=\"LTR\">A warranty that the O&amp;M Contractor has carried out all reasonable investigations and inspections of the school facility and that the asset is capable of being managed to the standards prescribed by the O&amp;M Agreement. This will reduce the risk of the O&amp;M Contractor seeking to blame the building contractor for any deficiencies in the services they perform;</li>\r\n 	<li dir=\"LTR\">From a practical perspective, where the school is being newly constructed, it may be a good idea to have the O&amp;M Contractor inspect the asset prior to Take Over and to attend any tests on completion under the construction contract. The contractor may also be required to provide the O&amp;M Contractor with training for the operation and maintenance of the school. This will need to be addressed at the earliest stages of a project so that it is possible for the construction contract to include clauses to address issues of this nature;</li>\r\n 	<li dir=\"LTR\">Penalties where the O&amp;M Contractor does not achieve the KPIs or for example, where there is an interruption to the operations of the school during school and non-school hours; and</li>\r\n 	<li dir=\"LTR\">Termination rights which may be linked to a breach of the KPI regime.</li>\r\n</ul>\r\n<p dir=\"LTR\" align=\"LEFT\">There is of course a suite of other important considerations that the parties should be mindful of when negotiating an O&amp;M Agreement, such as insurance, force majeure, performance security and payment. In any event the contract should be closely examined to ensure it is tailored to the specific commercial arrangement between the parties, in addition to the laws of the jurisdiction or Emirate which will govern the contractual relationship.</p>\r\n<em>Al Tamimi &amp; Company’s <a href=\"https://www.tamimi.com/practice/construction-infrastructure/\">Construction and Infrastructure</a> team regularly advises on all elements of the construction procurement process. For further information please contact <a href=\"https://www.tamimi.com/lawyer/euan-lloyd/\">Euan Lloyd</a> (<a href=\"mailto:E.Lloyd@tamimi.com\">E.Lloyd@tamimi.com</a>).</em>');
INSERT INTO `tm_wsal_metadata` (`id`, `occurrence_id`, `name`, `value`) VALUES
(306581, 29269, 'MetaValueOld', '<p dir=\"LTR\" align=\"LEFT\"><img class=\"alignright wp-image-8245 size-full\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_17_Image_0003.jpg\" alt=\"\" width=\"570\" height=\"289\" />The education sector in the Middle East has often been widely perceived as a lucrative investment opportunity for developers looking to expand their portfolio of investments. By way of example, the UAE has one of the most buoyant private school markets in the world, with consistently high levels of occupancy coupled with year-on-year growth in demand, in large part as a result of the UAE’s growing expatriate population. It has been estimated that Dubai will need 134 new schools to be constructed over the course of the next 10 years in order to accommodate the estimated 200,000 pupils that will need seats by the 2027/2028 school year. It is a similar story in other parts of the Middle East. This will therefore require a concerted effort by developers, contractors, funders and the relevant regulatory bodies in order to facilitate the construction of such developments, in a manner that meets the every-increasing demand within the region.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The costs associated with investing in school infrastructure are significant. There are various reasons for this, one of which is the potential complexity of issues faced when embarking on such projects, such as the need to integrate the programme of works around the day-to-day activities of the school system (applicable for example where refurbishment works are being undertaken on an existing school).</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The procurement route adopted on any construction and engineering project is one of the key considerations for developers, which will allow them to assess whether the relevant works and moreover the project as a whole can complete on time, be of the required quality and be within budget. Another important consideration is ensuring that the tender process allows for a close examination of contractors’ experience within the sector. Given the specialist nature of school construction projects, developers should not only examine pricing but also consider whether the bidding contractor has sufficient knowledge and experience of working on such specialist projects in the region.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A number of procurement options are available to developers operating within the education sector when procuring works and services from third parties. Each of these has its own advantages and disadvantages. In this article we discuss the following key procurement routes and explain the main advantages and disadvantages associated with each:</p>\r\n\r\n<ol>\r\n 	<li dir=\"LTR\">Traditional contracting;</li>\r\n 	<li dir=\"LTR\">Design and build contracting; and</li>\r\n 	<li dir=\"LTR\">Public-private partnerships.</li>\r\n</ol>\r\n<p dir=\"LTR\" align=\"LEFT\">Finally, we will briefly examine the important role that a well drafted operation and maintenance agreement has in addressing the ongoing operational demands of a school, following completion of a project.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">It should be noted that in addition to procuring works directly, an alternative option for developers is to enter into a ‘build to suit’ arrangement with educational facility operators. This essentially involves land owners, ground lease owners or developers undertaking the construction of an educational facility provided that they have a long term tenant (whether a school, educational institution or an operator) who wishes to enter into a long term lease of the facility. Although beyond the scope of this article, build to suit education projects are an important consideration and examined in greater detail in the article entitled \"<a href=\"https://www.tamimi.com/law-update-articles/build-to-suit-education-projects/\">Build to Suit Education Projects</a>\" authored by Partner and Head of Real Estate, Jeremy Scott, in this month’s edition of Law Update.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Traditional Contracting</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">This is probably one of the most often encountered forms of procurement adopted by developers in the education sector. Essentially the developer (also known as the \"employer\") will engage a professional team of consultants (usually an architect, mechanical and electrical engineer, civil and structural engineer and perhaps other specialist consultants) to prepare designs and specifications for the works that are to then be constructed by a building contractor. Such designers typically have a proven track record and experience in operating in the education sector and this provides comfort that the designs will be well suited for an education facility and will be readily accepted by the relevant authorities.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The contractor will be engaged separately by the developer under a construction contract and will be responsible for engaging sub-contractors to the extent required in order to allow them to complete the required works in accordance with the approved designs.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The building contract will only be responsible for the construction of the works (as design responsibility remains vested in the design team). Given that school projects may concern the expansion of existing facilities (as opposed to ‘green field’ projects), it is likely that the construction works will need to be carried out in accordance with a detailed programme to ensure that interference and disruption during school time is minimised. Additionally, the construction contract needs to contain a specific procedure for the rectification of defects, again to ensure that construction works do not encroach on the day-to-day running of the school.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Some of the advantages of traditional contracting include that the employer retains control over the design of the project and therefore can monitor quality and ensure their requirements in this regard are met. This is a potentially telling advantage on account of the planning and design nuances that are applicable to school designs. There is, however, a greater risk of the building contractor being delayed and of them incurring cost overruns due to the additional oversight and involvement that the employer will have in the project. Delays can be particularly harmful as they may result in the school not being completed in time for an academic year and this could result in significant losses being incurred. In addition, there will be multiple points of responsibility, which can make the employer pursuing a claim in respect of defects that arise, more complex, costly and time consuming.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Design and Build Contracting</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The design and build procurement route generally involves the design of the works being undertaken entirely by the building contractor/its professional team of design consultants. Alternatively the initial design will be developed by the employer/its professional team of design consultants, subsequent to which responsibility for these designs will transfer to the contractor by way of novation of the design consultant appointments.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Here the building contractor takes single point responsibility and thus is liable to the employer for both the design and construction of the works.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The advantages associated with design and build contracting include that it offers greater certainty in terms of time for completion and cost, as such projects are usually for a defined duration and priced on a fixed, lump sum basis (this is of course provided that the employer does not make any changes to the required scope of works). As noted above, delays can be very damaging in the context of a school project so developers (and their funders) typically address this issue in detail in the construction contract. For example, the building contractor may be entitled to an early completion bonus while the employer will often insist on the ability to instruct the building contractor to accelerate the works if they fall behind schedule. Although delay damages are a ‘last resort’, thought should be given to the quantum of delay damages so that they correspond (as far as possible) to the loss that the employer will suffer arising out of a delay (i.e. if the facility is not ready for the start of the school term).</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The presence of single point responsibility makes it more straightforward for the employer and other parties with recourse to the building contractor, to seek redress should any design defects or workmanship issues arise, as opposed to having to pursue the relevant design consultants individually.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Disadvantages of this procurement route include that there may be added scope for delays to the project due to the changes that might be requested by the employer during the construction of the project or otherwise as a consequence of a delay in novating the design consultants to the building contractor. Such changes can also impact on costs. The employer also loses a degree of control over the project and therefore is less able to maintain oversight over quality, when compared to the traditional procurement route. This can have a significant impact in the context of an educational establishment on account of the typically prescriptive Employer’s Requirements. It is therefore important that the design and build contractor is closely supervised.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\"><img class=\" wp-image-8246 alignleft\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_18_Image_0001.jpg\" alt=\"\" width=\"316\" height=\"262\" />Public- Private Partnerships</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Public Private Partnerships (or \"PPPs\") structures have been used to procure schools, including in the United Kingdom and Australia but are less common in the region. In the traditional sense, the public authority would engage a private entity (usually in the form of a Special Purpose Vehicle) to design, construct, operate and maintain a school for a term of usually between 15 to 25 years, in exchange for which usage payments will be made to the private entity.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The introduction of the recent PPP Law in Dubai in addition to the proposed enactment of the draft Private Sector Participation Law (which will follow the previously introduced Privatization Projects Manual) in Saudi Arabia, underlines the growing emphasis being placed on PPPs by governments in the region and it may help facilitate the gradual adoption of this approach within the region. For the time being however, ‘quasi’ PPP structures are more likely to be adopted, whereby a private entity may grant a long term concession to a specialist school to design, construct, operate and maintain an educational facility.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">An important advantage of PPPs is that it allows the procuring entity to leverage efficiencies and expertise in the private sector in order to enable it to attain its development objectives. For the private sector, PPPs can assist in helping to secure the third party funding necessary to enable the project to proceed, due primarily to the involvement of a public authority.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Disadvantages of this method of procurement include that the procurement and tendering process can be lengthy and expensive, when compared to the traditional procurement process.</p>\r\n&nbsp;\r\n<h2></h2>\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"The education sector in the Middle East has often been widely perceived as a lucrative investment opportunity for developers looking to expand their portfolio of investments…\"</h2>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Operation and Maintenance Agreement</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Once a school has been constructed, in order for it to remain in good working order and attractive to the market, it must be properly operated and maintained. This is usually undertaken by the developer appointing an operation and maintenance contractor (\"O&amp;M Contractor\") under an operation and maintenance agreement (\"O&amp;M Agreement\", otherwise also known as a \"facilities management contract\"). Some of the more important provisions of an O&amp;M agreement, that the parties should ensure are adequately addressed, include the following:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">Having a clear and detailed scope of works specifying exactly what is required of the O&amp;M Contractor in addition to the key performance indicators (or \"KPIs\" against which their performance will be measured). These KPIs should be SMART (Specific, Measurable, Achievable, Relevant and Time Based);</li>\r\n 	<li dir=\"LTR\">A warranty that the O&amp;M Contractor has carried out all reasonable investigations and inspections of the school facility and that the asset is capable of being managed to the standards prescribed by the O&amp;M Agreement. This will reduce the risk of the O&amp;M Contractor seeking to blame the building contractor for any deficiencies in the services they perform;</li>\r\n 	<li dir=\"LTR\">From a practical perspective, where the school is being newly constructed, it may be a good idea to have the O&amp;M Contractor inspect the asset prior to Take Over and to attend any tests on completion under the construction contract. The contractor may also be required to provide the O&amp;M Contractor with training for the operation and maintenance of the school. This will need to be addressed at the earliest stages of a project so that it is possible for the construction contract to include clauses to address issues of this nature;</li>\r\n 	<li dir=\"LTR\">Penalties where the O&amp;M Contractor does not achieve the KPIs or for example, where there is an interruption to the operations of the school during school and non-school hours; and</li>\r\n 	<li dir=\"LTR\">Termination rights which may be linked to a breach of the KPI regime.</li>\r\n</ul>\r\n<p dir=\"LTR\" align=\"LEFT\">There is of course a suite of other important considerations that the parties should be mindful of when negotiating an O&amp;M Agreement, such as insurance, force majeure, performance security and payment. In any event the contract should be closely examined to ensure it is tailored to the specific commercial arrangement between the parties, in addition to the laws of the jurisdiction or Emirate which will govern the contractual relationship.</p>\r\n<em>Al Tamimi &amp; Company’s <a href=\"https://www.tamimi.com/practice/construction-infrastructure/\">Construction and Infrastructure</a> team regularly advises on all elements of the construction procurement process. For further information please contact <a href=\"https://www.tamimi.com/lawyer/euan-lloyd/\">Euan Lloyd</a> (<a href=\"mailto:E.Lloyd@tamimi.com\">E.Lloyd@tamimi.com</a>).</em>'),
(306582, 29269, 'MetaLink', 'content'),
(306583, 29269, 'EditorLinkPost', 'https://www.tamimi.com/wp-admin/post.php?post=8196&amp;action=edit'),
(306584, 29269, 'ReportText', '<p dir=\"LTR\" align=\"LEFT\"><img class=\"alignright wp-image-8245 size-full\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_17_Image_0003.jpg\" alt=\"\" width=\"570\" height=\"289\" />The education sector in the Middle East has often been widely perceived as a lucrative investment opportunity for developers looking to expand their portfolio of investments. By way of example, the UAE has one of the most buoyant private school markets in the world, with consistently high levels of occupancy coupled with year-on-year growth in demand, in large part as a result of the UAE’s growing expatriate population. It has been estimated that Dubai will need 134 new schools to be constructed over the course of the next 10 years in order to accommodate the estimated 200,000 pupils that will need seats by the 2027/2028 school year. It is a similar story in other parts of the Middle East. This will therefore require a concerted effort by developers, contractors, funders and the relevant regulatory bodies in order to facilitate the construction of such developments, in a manner that meets the every-increasing demand within the region.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The costs associated with investing in school infrastructure are significant. There are various reasons for this, one of which is the potential complexity of issues faced when embarking on such projects, such as the need to integrate the programme of works around the day-to-day activities of the school system (applicable for example where refurbishment works are being undertaken on an existing school).</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The procurement route adopted on any construction and engineering project is one of the key considerations for developers, which will allow them to assess whether the relevant works and moreover the project as a whole can complete on time, be of the required quality and be within budget. Another important consideration is ensuring that the tender process allows for a close examination of contractors’ experience within the sector. Given the specialist nature of school construction projects, developers should not only examine pricing but also consider whether the bidding contractor has sufficient knowledge and experience of working on such specialist projects in the region.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A number of procurement options are available to developers operating within the education sector when procuring works and services from third parties. Each of these has its own advantages and disadvantages. In this article we discuss the following key procurement routes and explain the main advantages and disadvantages associated with each:</p>\r\n\r\n<ol>\r\n 	<li dir=\"LTR\">Traditional contracting;</li>\r\n 	<li dir=\"LTR\">Design and build contracting; and</li>\r\n 	<li dir=\"LTR\">Public-private partnerships.</li>\r\n</ol>\r\n<p dir=\"LTR\" align=\"LEFT\">Finally, we will briefly examine the important role that a well drafted operation and maintenance agreement has in addressing the ongoing operational demands of a school, following completion of a project.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">It should be noted that in addition to procuring works directly, an alternative option for developers is to enter into a ‘build to suit’ arrangement with educational facility operators. This essentially involves land owners, ground lease owners or developers undertaking the construction of an educational facility provided that they have a long term tenant (whether a school, educational institution or an operator) who wishes to enter into a long term lease of the facility. Although beyond the scope of this article, build to suit education projects are an important consideration and examined in greater detail in the article entitled \"<a href=\"https://www.tamimi.com/law-update-articles/build-to-suit-education-projects/\">Build to Suit Education Projects</a>\" authored by Partner and Head of Real Estate, Jeremy Scott, in this month’s edition of Law Update.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Traditional Contracting</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">This is probably one of the most often encountered forms of procurement adopted by developers in the education sector. Essentially the developer (also known as the \"employer\") will engage a professional team of consultants (usually an architect, mechanical and electrical engineer, civil and structural engineer and perhaps other specialist consultants) to prepare designs and specifications for the works that are to then be constructed by a building contractor. Such designers typically have a proven track record and experience in operating in the education sector and this provides comfort that the designs will be well suited for an education facility and will be readily accepted by the relevant authorities.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The contractor will be engaged separately by the developer under a construction contract and will be responsible for engaging sub-contractors to the extent required in order to allow them to complete the required works in accordance with the approved designs.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The building contract will only be responsible for the construction of the works (as design responsibility remains vested in the design team). Given that school projects may concern the expansion of existing facilities (as opposed to ‘green field’ projects), it is likely that the construction works will need to be carried out in accordance with a detailed programme to ensure that interference and disruption during school time is minimised. Additionally, the construction contract needs to contain a specific procedure for the rectification of defects, again to ensure that construction works do not encroach on the day-to-day running of the school.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Some of the advantages of traditional contracting include that the employer retains control over the design of the project and therefore can monitor quality and ensure their requirements in this regard are met. This is a potentially telling advantage on account of the planning and design nuances that are applicable to school designs. There is, however, a greater risk of the building contractor being delayed and of them incurring cost overruns due to the additional oversight and involvement that the employer will have in the project. Delays can be particularly harmful as they may result in the school not being completed in time for an academic year and this could result in significant losses being incurred. In addition, there will be multiple points of responsibility, which can make the employer pursuing a claim in respect of defects that arise, more complex, costly and time consuming.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Design and Build Contracting</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The design and build procurement route generally involves the design of the works being undertaken entirely by the building contractor/its professional team of design consultants. Alternatively the initial design will be developed by the employer/its professional team of design consultants, subsequent to which responsibility for these designs will transfer to the contractor by way of novation of the design consultant appointments.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Here the building contractor takes single point responsibility and thus is liable to the employer for both the design and construction of the works.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The advantages associated with design and build contracting include that it offers greater certainty in terms of time for completion and cost, as such projects are usually for a defined duration and priced on a fixed, lump sum basis (this is of course provided that the employer does not make any changes to the required scope of works). As noted above, delays can be very damaging in the context of a school project so developers (and their funders) typically address this issue in detail in the construction contract. For example, the building contractor may be entitled to an early completion bonus while the employer will often insist on the ability to instruct the building contractor to accelerate the works if they fall behind schedule. Although delay damages are a ‘last resort’, thought should be given to the quantum of delay damages so that they correspond (as far as possible) to the loss that the employer will suffer arising out of a delay (i.e. if the facility is not ready for the start of the school term).</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The presence of single point responsibility makes it more straightforward for the employer and other parties with recourse to the building contractor, to seek redress should any design defects or workmanship issues arise, as opposed to having to pursue the relevant design consultants individually.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Disadvantages of this procurement route include that there may be added scope for delays to the project due to the changes that might be requested by the employer during the construction of the project or otherwise as a consequence of a delay in novating the design consultants to the building contractor. Such changes can also impact on costs. The employer also loses a degree of control over the project and therefore is less able to maintain oversight over quality, when compared to the traditional procurement route. This can have a significant impact in the context of an educational establishment on account of the typically prescriptive Employer’s Requirements. It is therefore important that the design and build contractor is closely supervised.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\"><img class=\" wp-image-8246 alignleft\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_18_Image_0001.jpg\" alt=\"\" width=\"316\" height=\"262\" />Public- Private Partnerships</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Public Private Partnerships (or \"PPPs\") structures have been used to procure schools, including in the United Kingdom and Australia but are less common in the region. In the traditional sense, the public authority would engage a private entity (usually in the form of a Special Purpose Vehicle) to design, construct, operate and maintain a school for a term of usually between 15 to 25 years, in exchange for which usage payments will be made to the private entity.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The introduction of the recent PPP Law in Dubai in addition to the proposed enactment of the draft Private Sector Participation Law (which will follow the previously introduced Privatization Projects Manual) in Saudi Arabia, underlines the growing emphasis being placed on PPPs by governments in the region and it may help facilitate the gradual adoption of this approach within the region. For the time being however, ‘quasi’ PPP structures are more likely to be adopted, whereby a private entity may grant a long term concession to a specialist school to design, construct, operate and maintain an educational facility.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">An important advantage of PPPs is that it allows the procuring entity to leverage efficiencies and expertise in the private sector in order to enable it to attain its development objectives. For the private sector, PPPs can assist in helping to secure the third party funding necessary to enable the project to proceed, due primarily to the involvement of a public authority.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Disadvantages of this method of procurement include that the procurement and tendering process can be lengthy and expensive, when compared to the traditional procurement process.</p>\r\n&nbsp;\r\n<h2></h2>\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"The education sector in the Middle East has often been widely perceived as a lucrative investment opportunity for developers looking to expand their portfolio of investments…\"</h2>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Operation and Maintenance Agreement</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Once a school has been constructed, in order for it to remain in good working order and attractive to the market, it must be properly operated and maintained. This is usually undertaken by the developer appointing an operation and maintenance contractor (\"O&amp;M Contractor\") under an operation and maintenance agreement (\"O&amp;M Agreement\", otherwise also known as a \"facilities management contract\"). Some of the more important provisions of an O&amp;M agreement, that the parties should ensure are adequately addressed, include the following:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">Having a clear and detailed scope of works specifying exactly what is required of the O&amp;M Contractor in addition to the key performance indicators (or \"KPIs\" against which their performance will be measured). These KPIs should be SMART (Specific, Measurable, Achievable, Relevant and Time Based);</li>\r\n 	<li dir=\"LTR\">A warranty that the O&amp;M Contractor has carried out all reasonable investigations and inspections of the school facility and that the asset is capable of being managed to the standards prescribed by the O&amp;M Agreement. This will reduce the risk of the O&amp;M Contractor seeking to blame the building contractor for any deficiencies in the services they perform;</li>\r\n 	<li dir=\"LTR\">From a practical perspective, where the school is being newly constructed, it may be a good idea to have the O&amp;M Contractor inspect the asset prior to Take Over and to attend any tests on completion under the construction contract. The contractor may also be required to provide the O&amp;M Contractor with training for the operation and maintenance of the school. This will need to be addressed at the earliest stages of a project so that it is possible for the construction contract to include clauses to address issues of this nature;</li>\r\n 	<li dir=\"LTR\">Penalties where the O&amp;M Contractor does not achieve the KPIs or for example, where there is an interruption to the operations of the school during school and non-school hours; and</li>\r\n 	<li dir=\"LTR\">Termination rights which may be linked to a breach of the KPI regime.</li>\r\n</ul>\r\n<p dir=\"LTR\" align=\"LEFT\">There is of course a suite of other important considerations that the parties should be mindful of when negotiating an O&amp;M Agreement, such as insurance, force majeure, performance security and payment. In any event the contract should be closely examined to ensure it is tailored to the specific commercial arrangement between the parties, in addition to the laws of the jurisdiction or Emirate which will govern the contractual relationship.</p>\r\n<em>Al Tamimi &amp; Company’s <a href=\"https://www.tamimi.com/practice/construction-infrastructure/\">Construction and Infrastructure</a> team regularly advises on all elements of the construction procurement process. For further information please contact <a href=\"https://www.tamimi.com/lawyer/euan-lloyd/\">Euan Lloyd</a> (<a href=\"mailto:E.Lloyd@tamimi.com\">E.Lloyd@tamimi.com</a>).</em>|<p dir=\"LTR\" align=\"LEFT\"><img class=\"alignright wp-image-8245 size-full\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_17_Image_0003.jpg\" alt=\"\" width=\"570\" height=\"289\" />The education sector in the Middle East has often been widely perceived as a lucrative investment opportunity for developers looking to expand their portfolio of investments. By way of example, the UAE has one of the most buoyant private school markets in the world, with consistently high levels of occupancy coupled with year-on-year growth in demand, in large part as a result of the UAE’s growing expatriate population. It has been estimated that Dubai will need 134 new schools to be constructed over the course of the next 10 years in order to accommodate the estimated 200,000 pupils that will need seats by the 2027/2028 school year. It is a similar story in other parts of the Middle East. This will therefore require a concerted effort by developers, contractors, funders and the relevant regulatory bodies in order to facilitate the construction of such developments, in a manner that meets the every-increasing demand within the region.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The costs associated with investing in school infrastructure are significant. There are various reasons for this, one of which is the potential complexity of issues faced when embarking on such projects, such as the need to integrate the programme of works around the day-to-day activities of the school system (applicable for example where refurbishment works are being undertaken on an existing school).</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The procurement route adopted on any construction and engineering project is one of the key considerations for developers, which will allow them to assess whether the relevant works and moreover the project as a whole can complete on time, be of the required quality and be within budget. Another important consideration is ensuring that the tender process allows for a close examination of contractors’ experience within the sector. Given the specialist nature of school construction projects, developers should not only examine pricing but also consider whether the bidding contractor has sufficient knowledge and experience of working on such specialist projects in the region.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A number of procurement options are available to developers operating within the education sector when procuring works and services from third parties. Each of these has its own advantages and disadvantages. In this article we discuss the following key procurement routes and explain the main advantages and disadvantages associated with each:</p>\r\n\r\n<ol>\r\n 	<li dir=\"LTR\">Traditional contracting;</li>\r\n 	<li dir=\"LTR\">Design and build contracting; and</li>\r\n 	<li dir=\"LTR\">Public-private partnerships.</li>\r\n</ol>\r\n<p dir=\"LTR\" align=\"LEFT\">Finally, we will briefly examine the important role that a well drafted operation and maintenance agreement has in addressing the ongoing operational demands of a school, following completion of a project.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">It should be noted that in addition to procuring works directly, an alternative option for developers is to enter into a ‘build to suit’ arrangement with educational facility operators. This essentially involves land owners, ground lease owners or developers undertaking the construction of an educational facility provided that they have a long term tenant (whether a school, educational institution or an operator) who wishes to enter into a long term lease of the facility. Although beyond the scope of this article, build to suit education projects are an important consideration and examined in greater detail in the article entitled \"<a href=\"https://www.tamimi.com/law-update-articles/build-to-suit-education-projects/\">Build to Suit Education Projects</a>\" authored by Partner and Head of Real Estate, Jeremy Scott, in this month’s edition of Law Update.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Traditional Contracting</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">This is probably one of the most often encountered forms of procurement adopted by developers in the education sector. Essentially the developer (also known as the \"employer\") will engage a professional team of consultants (usually an architect, mechanical and electrical engineer, civil and structural engineer and perhaps other specialist consultants) to prepare designs and specifications for the works that are to then be constructed by a building contractor. Such designers typically have a proven track record and experience in operating in the education sector and this provides comfort that the designs will be well suited for an education facility and will be readily accepted by the relevant authorities.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The contractor will be engaged separately by the developer under a construction contract and will be responsible for engaging sub-contractors to the extent required in order to allow them to complete the required works in accordance with the approved designs.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The building contract will only be responsible for the construction of the works (as design responsibility remains vested in the design team). Given that school projects may concern the expansion of existing facilities (as opposed to ‘green field’ projects), it is likely that the construction works will need to be carried out in accordance with a detailed programme to ensure that interference and disruption during school time is minimised. Additionally, the construction contract needs to contain a specific procedure for the rectification of defects, again to ensure that construction works do not encroach on the day-to-day running of the school.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Some of the advantages of traditional contracting include that the employer retains control over the design of the project and therefore can monitor quality and ensure their requirements in this regard are met. This is a potentially telling advantage on account of the planning and design nuances that are applicable to school designs. There is, however, a greater risk of the building contractor being delayed and of them incurring cost overruns due to the additional oversight and involvement that the employer will have in the project. Delays can be particularly harmful as they may result in the school not being completed in time for an academic year and this could result in significant losses being incurred. In addition, there will be multiple points of responsibility, which can make the employer pursuing a claim in respect of defects that arise, more complex, costly and time consuming.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Design and Build Contracting</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The design and build procurement route generally involves the design of the works being undertaken entirely by the building contractor/its professional team of design consultants. Alternatively the initial design will be developed by the employer/its professional team of design consultants, subsequent to which responsibility for these designs will transfer to the contractor by way of novation of the design consultant appointments.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Here the building contractor takes single point responsibility and thus is liable to the employer for both the design and construction of the works.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The advantages associated with design and build contracting include that it offers greater certainty in terms of time for completion and cost, as such projects are usually for a defined duration and priced on a fixed, lump sum basis (this is of course provided that the employer does not make any changes to the required scope of works). As noted above, delays can be very damaging in the context of a school project so developers (and their funders) typically address this issue in detail in the construction contract. For example, the building contractor may be entitled to an early completion bonus while the employer will often insist on the ability to instruct the building contractor to accelerate the works if they fall behind schedule. Although delay damages are a ‘last resort’, thought should be given to the quantum of delay damages so that they correspond (as far as possible) to the loss that the employer will suffer arising out of a delay (i.e. if the facility is not ready for the start of the school term).</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The presence of single point responsibility makes it more straightforward for the employer and other parties with recourse to the building contractor, to seek redress should any design defects or workmanship issues arise, as opposed to having to pursue the relevant design consultants individually.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Disadvantages of this procurement route include that there may be added scope for delays to the project due to the changes that might be requested by the employer during the construction of the project or otherwise as a consequence of a delay in novating the design consultants to the building contractor. Such changes can also impact on costs. The employer also loses a degree of control over the project and therefore is less able to maintain oversight over quality, when compared to the traditional procurement route. This can have a significant impact in the context of an educational establishment on account of the typically prescriptive Employer’s Requirements. It is therefore important that the design and build contractor is closely supervised.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\"><img class=\"wp-image-8246 alignright\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_18_Image_0001.jpg\" alt=\"\" width=\"316\" height=\"262\" />Public- Private Partnerships</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Public Private Partnerships (or \"PPPs\") structures have been used to procure schools, including in the United Kingdom and Australia but are less common in the region. In the traditional sense, the public authority would engage a private entity (usually in the form of a Special Purpose Vehicle) to design, construct, operate and maintain a school for a term of usually between 15 to 25 years, in exchange for which usage payments will be made to the private entity.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The introduction of the recent PPP Law in Dubai in addition to the proposed enactment of the draft Private Sector Participation Law (which will follow the previously introduced Privatization Projects Manual) in Saudi Arabia, underlines the growing emphasis being placed on PPPs by governments in the region and it may help facilitate the gradual adoption of this approach within the region. For the time being however, ‘quasi’ PPP structures are more likely to be adopted, whereby a private entity may grant a long term concession to a specialist school to design, construct, operate and maintain an educational facility.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">An important advantage of PPPs is that it allows the procuring entity to leverage efficiencies and expertise in the private sector in order to enable it to attain its development objectives. For the private sector, PPPs can assist in helping to secure the third party funding necessary to enable the project to proceed, due primarily to the involvement of a public authority.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Disadvantages of this method of procurement include that the procurement and tendering process can be lengthy and expensive, when compared to the traditional procurement process.</p>\r\n&nbsp;\r\n<h2></h2>\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"The education sector in the Middle East has often been widely perceived as a lucrative investment opportunity for developers looking to expand their portfolio of investments…\"</h2>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Operation and Maintenance Agreement</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Once a school has been constructed, in order for it to remain in good working order and attractive to the market, it must be properly operated and maintained. This is usually undertaken by the developer appointing an operation and maintenance contractor (\"O&amp;M Contractor\") under an operation and maintenance agreement (\"O&amp;M Agreement\", otherwise also known as a \"facilities management contract\"). Some of the more important provisions of an O&amp;M agreement, that the parties should ensure are adequately addressed, include the following:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">Having a clear and detailed scope of works specifying exactly what is required of the O&amp;M Contractor in addition to the key performance indicators (or \"KPIs\" against which their performance will be measured). These KPIs should be SMART (Specific, Measurable, Achievable, Relevant and Time Based);</li>\r\n 	<li dir=\"LTR\">A warranty that the O&amp;M Contractor has carried out all reasonable investigations and inspections of the school facility and that the asset is capable of being managed to the standards prescribed by the O&amp;M Agreement. This will reduce the risk of the O&amp;M Contractor seeking to blame the building contractor for any deficiencies in the services they perform;</li>\r\n 	<li dir=\"LTR\">From a practical perspective, where the school is being newly constructed, it may be a good idea to have the O&amp;M Contractor inspect the asset prior to Take Over and to attend any tests on completion under the construction contract. The contractor may also be required to provide the O&amp;M Contractor with training for the operation and maintenance of the school. This will need to be addressed at the earliest stages of a project so that it is possible for the construction contract to include clauses to address issues of this nature;</li>\r\n 	<li dir=\"LTR\">Penalties where the O&amp;M Contractor does not achieve the KPIs or for example, where there is an interruption to the operations of the school during school and non-school hours; and</li>\r\n 	<li dir=\"LTR\">Termination rights which may be linked to a breach of the KPI regime.</li>\r\n</ul>\r\n<p dir=\"LTR\" align=\"LEFT\">There is of course a suite of other important considerations that the parties should be mindful of when negotiating an O&amp;M Agreement, such as insurance, force majeure, performance security and payment. In any event the contract should be closely examined to ensure it is tailored to the specific commercial arrangement between the parties, in addition to the laws of the jurisdiction or Emirate which will govern the contractual relationship.</p>\r\n<em>Al Tamimi &amp; Company’s <a href=\"https://www.tamimi.com/practice/construction-infrastructure/\">Construction and Infrastructure</a> team regularly advises on all elements of the construction procurement process. For further information please contact <a href=\"https://www.tamimi.com/lawyer/euan-lloyd/\">Euan Lloyd</a> (<a href=\"mailto:E.Lloyd@tamimi.com\">E.Lloyd@tamimi.com</a>).</em>'),
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(306654, 29276, 'PostTitle', 'Educational Institutions in UAE: Approvals Required for Public Benefit Activities and Fundraising'),
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(306664, 29277, 'PostID', '8197'),
(306665, 29277, 'PostTitle', 'Educational Institutions in UAE: Approvals Required for Public Benefit Activities and Fundraising'),
(306666, 29277, 'PostStatus', 'publish'),
(306667, 29277, 'PostType', 'law_update_articles'),
(306668, 29277, 'PostDate', '2018-09-04 07:39:48'),
(306669, 29277, 'PostUrl', 'https://www.tamimi.com/law-update-articles/educational-institutions-in-uae-approvals-required-for-public-benefit-activities-and-fundraising/'),
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(306672, 29277, 'MetaValueNew', '<p dir=\"LTR\" align=\"LEFT\"><img class=\"alignright size-full wp-image-8247\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_19_Image_0002.jpg\" alt=\"\" width=\"575\" height=\"593\" />Education providers are no longer exempt from the requirement to obtain government approval for a whole range of activities, from holding fetes, to pure fundraising. In this article we analyse how these restrictions impact upon educational providers and their students.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">The nature of the activity</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The nature of the activity will determine what type of regulatory approval is required. Clearly, not all activities carried out by education providers and their students are purely focused on fundraising. However, in recent times due to the introduction of new laws addressing the subject of fundraising, there has been a tendency to assume that all activities would require this type of approval. This is not always necessary. Many activities carried out by education providers, students, and parent groups are not predominantly concerned with raising funds (but which sometimes have that incidental benefit), but may still require other approvals.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In order to determine which pathway for obtaining approvals should be followed, It is necessary to examine whether an activity is:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">for the benefit of the education provider;</li>\r\n 	<li dir=\"LTR\">for the benefit of the public (in whole or in part); and</li>\r\n 	<li dir=\"LTR\">whether there is an element of fundraising, and the intended class of recipient of the funds generated.</li>\r\n</ul>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Activities for the benefit of the education provider</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In circumstances where an educational establishment is gathering support from other corporate bodies and from the public to improve the facilities offered by that provider, for example, investment in new sports equipment, or to create a bursary to allow the students additional educational opportunities, such as a trip overseas to undertake a research project; this kind of activity, although there is an element of fundraising, does not fall into the category of requiring a fundraising approval. The activity is purely for the benefit for the education provider and its students.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Activities for the benefit of the public</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Many education providers carry out activities which are intended to be of benefit of the public. For example, where a school has a Corporate Social Responsibility (CSR) programme, and participates in activities whereby either the general public or members of the general public will benefit. CSR activities creates opportunities for students to learn how to get involved in ‘volunteering’ and helping others who are less fortunate.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In the past, these kinds of activity would not have triggered any requirement on the education provider to obtain any kind of regulatory approval. Nowadays, the position is less clear. If the CSR activity is classified as being of public benefit, this can impose an obligation on the education provider to either register formally with a social community regulator or at least notify that regulator of its intended activities.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">At Federal level, the Federal Law No. (2) of 2008 Regarding Non-Governmental Public Welfare Associations and Organisations, requires organisations carrying out philanthropic activities to register as ‘public welfare associations’ but does not apply to:</p>\r\n<p dir=\"LTR\" align=\"LEFT\">‘schools and institutes, federations, associations, clubs, and youth and sport centers interested in youth cultural, social and sport affairs in the state regulated by Law no.25 of 1999 on the General Authority of Youth and Sports Welfare.’</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In Dubai, Law No. (12) of 2017 regulating Civil Society Organisations in Dubai, requires any organisation which engages in any kind of activity as a ‘civil association’ to first obtain a licence from the Community Development Authority (\"CDA\") but does not apply to:</p>\r\n\r\n<ol>\r\n 	<li dir=\"LTR\">The associations and institutions covered by the provisions of the Federal Law No. (2) of 2008; or</li>\r\n 	<li dir=\"LTR\">The bodies working in the field of youth and sport care covered by the provisions of the Federal Law No. (7) of 2008.</li>\r\n</ol>\r\n<p dir=\"LTR\" align=\"LEFT\">There may be some education providers which do not conform to those which are described and exempted from the above-mentioned laws. The most obvious example being a university, which is not specifically mentioned, but could instead fall into the category of ‘school’ or ‘institute’. In some cases, the education provider may need to prove that they should have the benefit of the exemption.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In those rare cases where the exemption does not apply, the organizer of the activity could argue that in carrying out occasional CSR activities, this does not place it squarely within the definition of either a public welfare organization or a civil association. However, the regulators themselves take a very broad interpretation of what activities fall within their particular legal scope, and have even required hospitals created on a ‘not for profit’ basis to obtain licenses to participate in activities which are connected with having a public benefit. One way of avoiding having to obtain approval is to conduct the CSR activity in conjunction with a social services provider or registered charity which has already obtained approval, in in effect ‘piggy-back’ on the principal’s licence.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Fundraising</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The laws applicable to fundraising activities have been explained in detail in our <a href=\"https://www.tamimi.com/law-update-articles/an-update-on-the-regulatory-framework-for-crowdfunding-platforms-in-the-uae/\">previous articles</a>, and thus are mentioned only in brief here in the context of their application to fundraising projects organised by education providers, parent groups, and students.</p>\r\n <img class=\"aligncenter size-full wp-image-8265\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_20_Imojage_0001.jpg\" alt=\"\" width=\"1037\" height=\"350\" />\r\n<h3 dir=\"LTR\" align=\"LEFT\">The federal position</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Federal Fundraising Law (Federal Resolution No. 8 of 1974) expressly prohibits any UAE-based association from raising money inside or outside the UAE without first obtaining a licence. Prior to obtaining a licence, an association must be registered with and the General Authority for Islamic Affairs and Endowments, and requires the submission of certain information about the applicant along with details of the activities it plans to undertake.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Dubai position</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Emirate of Dubai issued Decree No. 9 of 2015 (\"Dubai Fundraising Decree\"), which is applicable to fundraising activities which take place in the Emirate, and are regulated by Islamic Affairs and Charitable Activities Department (\"IACAD\"). The Dubai Fundraising Decree prohibits anyone (a person or a legal entity) from collecting funds, raising donations, or permitting third parties to collect donations in the Emirate of Dubai, without obtaining prior approval from IACAD. Prior to the implementation of the Dubai Fundraising Decree education providers in Dubai were not required to obtain governmental approvals for fundraising.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Since the issuance of the Dubai Fundraising Decree, some education providers have been concerned about carrying out fundraising activities due to the burden of obtaining approval and confusion as to when approvals are actually required.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Non-compliance</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Strict penalties are applied to those who will fall foul of the applicable laws and conduct fundraising activities without prior approval, up to and including:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">a fine not less than AED 5,000 and not exceeding AED 100,000; and/or</li>\r\n 	<li dir=\"LTR\">imprisonment of one month to one year.</li>\r\n</ul>\r\n<p dir=\"LTR\" align=\"LEFT\">IACAD can seize the funds collected and shall redirect them for another purpose. Any bank account opened for the collection of donations will be suspended or closed and funds transferred to IACAD.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">IACAD at its sole discretion may offer an amicable settlement in lieu of imposing penalties, by:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">Issuing a written warning to the violator, and obtaining an undertaking not to repeat the same violation;</li>\r\n 	<li dir=\"LTR\">Obligating the violator to repay double the amount of the donated funds;</li>\r\n 	<li dir=\"LTR\">Closing the venue where the funds were raised for a period of up to one year.</li>\r\n</ul>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Abu Dhabi and other Emirates</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Federal law applies in the other emirates, as has been explained above, but no additional laws have been implemented. However, the government departments responsible for social welfare in other emirates are reaching-out and creating opportunities for government and the private sector to work together on CSR initiatives. Thus for practical purposes, education providers in other Emirates would be encouraged to strike up a dialogue with their local regulator with regard to any CRS, or public benefit or fundraising activities even where is no need to formally register or seek particular approval.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Social Media</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The <a href=\"https://www.tamimi.com/law-update-articles/developments-in-the-uae-cyber-crimes-law/\">Cyber Crimes Law 2012</a> (Federal Decree by Law No. 5 of 2012) stipulates that, any person who establishes, operates, or supervises, an \"Electronic Site\" (such as a website), or publishes information on an information network, or any other information technology tool, which calls for or promotes the collection of donations without approval, shall be punished by imprisonment and a fine not less than AED 250,000 and not exceeding AED 500,000 or both. At present, the responsible regulator under the Cyber Crimes Law, the Ministry of Economy, does not have a process for granting approval. In the Emirate of Dubai, the fact of having IACAD approval is sufficient.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Notably, the Dubai Fundraising Decree also contains provisions prohibiting the advertising of fundraising activities on social media sites in the absence of the requisite approval.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Therefore, education providers should refrain from advertising fundraising events on social media networks unless such activity is carried out with the relevant approvals.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Education providers, parents groups and students are advised to carefully plan the activities to be undertaken and to obtain governmental approvals, where these are required, and to avail of the exemptions available wherever possible.</p>\r\n<em>Al Tamimi &amp; Company’s <a href=\"https://www.tamimi.com/lawyer/andrea-tithecott/\">Andrea Tithecott</a> regularly advises on <a href=\"https://www.tamimi.com/practice/regulatory/\">regulatory matters</a> which impact education providers. For further information please contact Andrea Tithecott at (<a href=\"mailto:a.tithecott@tamimi.com\">a.tithecott@tamimi.com</a>).</em>'),
(306673, 29277, 'MetaValueOld', '<p dir=\"LTR\" align=\"LEFT\">Education providers are no longer exempt from the requirement to obtain government approval for a whole range of activities, from holding fetes, to pure fundraising. In this article we analyse how these restrictions impact upon educational providers and their students.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">The nature of the activity</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The nature of the activity will determine what type of regulatory approval is required. Clearly, not all activities carried out by education providers and their students are purely focused on fundraising. However, in recent times due to the introduction of new laws addressing the subject of fundraising, there has been a tendency to assume that all activities would require this type of approval. This is not always necessary. Many activities carried out by education providers, students, and parent groups are not predominantly concerned with raising funds (but which sometimes have that incidental benefit), but may still require other approvals.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In order to determine which pathway for obtaining approvals should be followed, It is necessary to examine whether an activity is:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">for the benefit of the education provider;</li>\r\n 	<li dir=\"LTR\">for the benefit of the public (in whole or in part); and</li>\r\n 	<li dir=\"LTR\">whether there is an element of fundraising, and the intended class of recipient of the funds generated.</li>\r\n</ul>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Activities for the benefit of the education provider</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In circumstances where an educational establishment is gathering support from other corporate bodies and from the public to improve the facilities offered by that provider, for example, investment in new sports equipment, or to create a bursary to allow the students additional educational opportunities, such as a trip overseas to undertake a research project; this kind of activity, although there is an element of fundraising, does not fall into the category of requiring a fundraising approval. The activity is purely for the benefit for the education provider and its students.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Activities for the benefit of the public</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Many education providers carry out activities which are intended to be of benefit of the public. For example, where a school has a Corporate Social Responsibility (CSR) programme, and participates in activities whereby either the general public or members of the general public will benefit. CSR activities creates opportunities for students to learn how to get involved in ‘volunteering’ and helping others who are less fortunate.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In the past, these kinds of activity would not have triggered any requirement on the education provider to obtain any kind of regulatory approval. Nowadays, the position is less clear. If the CSR activity is classified as being of public benefit, this can impose an obligation on the education provider to either register formally with a social community regulator or at least notify that regulator of its intended activities.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">At Federal level, the Federal Law No. (2) of 2008 Regarding Non-Governmental Public Welfare Associations and Organisations, requires organisations carrying out philanthropic activities to register as ‘public welfare associations’ but does not apply to:</p>\r\n<p dir=\"LTR\" align=\"LEFT\">‘schools and institutes, federations, associations, clubs, and youth and sport centers interested in youth cultural, social and sport affairs in the state regulated by Law no.25 of 1999 on the General Authority of Youth and Sports Welfare.’</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In Dubai, Law No. (12) of 2017 regulating Civil Society Organisations in Dubai, requires any organisation which engages in any kind of activity as a ‘civil association’ to first obtain a licence from the Community Development Authority (\"CDA\") but does not apply to:</p>\r\n\r\n<ol>\r\n 	<li dir=\"LTR\">The associations and institutions covered by the provisions of the Federal Law No. (2) of 2008; or</li>\r\n 	<li dir=\"LTR\">The bodies working in the field of youth and sport care covered by the provisions of the Federal Law No. (7) of 2008.</li>\r\n</ol>\r\n<p dir=\"LTR\" align=\"LEFT\">There may be some education providers which do not conform to those which are described and exempted from the above-mentioned laws. The most obvious example being a university, which is not specifically mentioned, but could instead fall into the category of ‘school’ or ‘institute’. In some cases, the education provider may need to prove that they should have the benefit of the exemption.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In those rare cases where the exemption does not apply, the organizer of the activity could argue that in carrying out occasional CSR activities, this does not place it squarely within the definition of either a public welfare organization or a civil association. However, the regulators themselves take a very broad interpretation of what activities fall within their particular legal scope, and have even required hospitals created on a ‘not for profit’ basis to obtain licenses to participate in activities which are connected with having a public benefit. One way of avoiding having to obtain approval is to conduct the CSR activity in conjunction with a social services provider or registered charity which has already obtained approval, in in effect ‘piggy-back’ on the principal’s licence.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Fundraising</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The laws applicable to fundraising activities have been explained in detail in our <a href=\"https://www.tamimi.com/law-update-articles/an-update-on-the-regulatory-framework-for-crowdfunding-platforms-in-the-uae/\">previous articles</a>, and thus are mentioned only in brief here in the context of their application to fundraising projects organised by education providers, parent groups, and students.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">The federal position</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Federal Fundraising Law (Federal Resolution No. 8 of 1974) expressly prohibits any UAE-based association from raising money inside or outside the UAE without first obtaining a licence. Prior to obtaining a licence, an association must be registered with and the General Authority for Islamic Affairs and Endowments, and requires the submission of certain information about the applicant along with details of the activities it plans to undertake.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Dubai position</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Emirate of Dubai issued Decree No. 9 of 2015 (\"Dubai Fundraising Decree\"), which is applicable to fundraising activities which take place in the Emirate, and are regulated by Islamic Affairs and Charitable Activities Department (\"IACAD\"). The Dubai Fundraising Decree prohibits anyone (a person or a legal entity) from collecting funds, raising donations, or permitting third parties to collect donations in the Emirate of Dubai, without obtaining prior approval from IACAD. Prior to the implementation of the Dubai Fundraising Decree education providers in Dubai were not required to obtain governmental approvals for fundraising.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Since the issuance of the Dubai Fundraising Decree, some education providers have been concerned about carrying out fundraising activities due to the burden of obtaining approval and confusion as to when approvals are actually required.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Non-compliance</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Strict penalties are applied to those who will fall foul of the applicable laws and conduct fundraising activities without prior approval, up to and including:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">a fine not less than AED 5,000 and not exceeding AED 100,000; and/or</li>\r\n 	<li dir=\"LTR\">imprisonment of one month to one year.</li>\r\n</ul>\r\n<p dir=\"LTR\" align=\"LEFT\">IACAD can seize the funds collected and shall redirect them for another purpose. Any bank account opened for the collection of donations will be suspended or closed and funds transferred to IACAD.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">IACAD at its sole discretion may offer an amicable settlement in lieu of imposing penalties, by:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">Issuing a written warning to the violator, and obtaining an undertaking not to repeat the same violation;</li>\r\n 	<li dir=\"LTR\">Obligating the violator to repay double the amount of the donated funds;</li>\r\n 	<li dir=\"LTR\">Closing the venue where the funds were raised for a period of up to one year.</li>\r\n</ul>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Abu Dhabi and other Emirates</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Federal law applies in the other emirates, as has been explained above, but no additional laws have been implemented. However, the government departments responsible for social welfare in other emirates are reaching-out and creating opportunities for government and the private sector to work together on CSR initiatives. Thus for practical purposes, education providers in other Emirates would be encouraged to strike up a dialogue with their local regulator with regard to any CRS, or public benefit or fundraising activities even where is no need to formally register or seek particular approval.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Social Media</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The <a href=\"https://www.tamimi.com/law-update-articles/developments-in-the-uae-cyber-crimes-law/\">Cyber Crimes Law 2012</a> (Federal Decree by Law No. 5 of 2012) stipulates that, any person who establishes, operates, or supervises, an \"Electronic Site\" (such as a website), or publishes information on an information network, or any other information technology tool, which calls for or promotes the collection of donations without approval, shall be punished by imprisonment and a fine not less than AED 250,000 and not exceeding AED 500,000 or both. At present, the responsible regulator under the Cyber Crimes Law, the Ministry of Economy, does not have a process for granting approval. In the Emirate of Dubai, the fact of having IACAD approval is sufficient.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Notably, the Dubai Fundraising Decree also contains provisions prohibiting the advertising of fundraising activities on social media sites in the absence of the requisite approval.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Therefore, education providers should refrain from advertising fundraising events on social media networks unless such activity is carried out with the relevant approvals.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Education providers, parents groups and students are advised to carefully plan the activities to be undertaken and to obtain governmental approvals, where these are required, and to avail of the exemptions available wherever possible.</p>\r\n<em>Al Tamimi &amp; Company’s <a href=\"https://www.tamimi.com/lawyer/andrea-tithecott/\">Andrea Tithecott</a> regularly advises on <a href=\"https://www.tamimi.com/practice/regulatory/\">regulatory matters</a> which impact education providers. For further information please contact Andrea Tithecott at (<a href=\"mailto:a.tithecott@tamimi.com\">a.tithecott@tamimi.com</a>).</em>'),
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(306676, 29277, 'ReportText', '<p dir=\"LTR\" align=\"LEFT\">Education providers are no longer exempt from the requirement to obtain government approval for a whole range of activities, from holding fetes, to pure fundraising. In this article we analyse how these restrictions impact upon educational providers and their students.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">The nature of the activity</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The nature of the activity will determine what type of regulatory approval is required. Clearly, not all activities carried out by education providers and their students are purely focused on fundraising. However, in recent times due to the introduction of new laws addressing the subject of fundraising, there has been a tendency to assume that all activities would require this type of approval. This is not always necessary. Many activities carried out by education providers, students, and parent groups are not predominantly concerned with raising funds (but which sometimes have that incidental benefit), but may still require other approvals.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In order to determine which pathway for obtaining approvals should be followed, It is necessary to examine whether an activity is:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">for the benefit of the education provider;</li>\r\n 	<li dir=\"LTR\">for the benefit of the public (in whole or in part); and</li>\r\n 	<li dir=\"LTR\">whether there is an element of fundraising, and the intended class of recipient of the funds generated.</li>\r\n</ul>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Activities for the benefit of the education provider</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In circumstances where an educational establishment is gathering support from other corporate bodies and from the public to improve the facilities offered by that provider, for example, investment in new sports equipment, or to create a bursary to allow the students additional educational opportunities, such as a trip overseas to undertake a research project; this kind of activity, although there is an element of fundraising, does not fall into the category of requiring a fundraising approval. The activity is purely for the benefit for the education provider and its students.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Activities for the benefit of the public</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Many education providers carry out activities which are intended to be of benefit of the public. For example, where a school has a Corporate Social Responsibility (CSR) programme, and participates in activities whereby either the general public or members of the general public will benefit. CSR activities creates opportunities for students to learn how to get involved in ‘volunteering’ and helping others who are less fortunate.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In the past, these kinds of activity would not have triggered any requirement on the education provider to obtain any kind of regulatory approval. Nowadays, the position is less clear. If the CSR activity is classified as being of public benefit, this can impose an obligation on the education provider to either register formally with a social community regulator or at least notify that regulator of its intended activities.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">At Federal level, the Federal Law No. (2) of 2008 Regarding Non-Governmental Public Welfare Associations and Organisations, requires organisations carrying out philanthropic activities to register as ‘public welfare associations’ but does not apply to:</p>\r\n<p dir=\"LTR\" align=\"LEFT\">‘schools and institutes, federations, associations, clubs, and youth and sport centers interested in youth cultural, social and sport affairs in the state regulated by Law no.25 of 1999 on the General Authority of Youth and Sports Welfare.’</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In Dubai, Law No. (12) of 2017 regulating Civil Society Organisations in Dubai, requires any organisation which engages in any kind of activity as a ‘civil association’ to first obtain a licence from the Community Development Authority (\"CDA\") but does not apply to:</p>\r\n\r\n<ol>\r\n 	<li dir=\"LTR\">The associations and institutions covered by the provisions of the Federal Law No. (2) of 2008; or</li>\r\n 	<li dir=\"LTR\">The bodies working in the field of youth and sport care covered by the provisions of the Federal Law No. (7) of 2008.</li>\r\n</ol>\r\n<p dir=\"LTR\" align=\"LEFT\">There may be some education providers which do not conform to those which are described and exempted from the above-mentioned laws. The most obvious example being a university, which is not specifically mentioned, but could instead fall into the category of ‘school’ or ‘institute’. In some cases, the education provider may need to prove that they should have the benefit of the exemption.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In those rare cases where the exemption does not apply, the organizer of the activity could argue that in carrying out occasional CSR activities, this does not place it squarely within the definition of either a public welfare organization or a civil association. However, the regulators themselves take a very broad interpretation of what activities fall within their particular legal scope, and have even required hospitals created on a ‘not for profit’ basis to obtain licenses to participate in activities which are connected with having a public benefit. One way of avoiding having to obtain approval is to conduct the CSR activity in conjunction with a social services provider or registered charity which has already obtained approval, in in effect ‘piggy-back’ on the principal’s licence.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Fundraising</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The laws applicable to fundraising activities have been explained in detail in our <a href=\"https://www.tamimi.com/law-update-articles/an-update-on-the-regulatory-framework-for-crowdfunding-platforms-in-the-uae/\">previous articles</a>, and thus are mentioned only in brief here in the context of their application to fundraising projects organised by education providers, parent groups, and students.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">The federal position</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Federal Fundraising Law (Federal Resolution No. 8 of 1974) expressly prohibits any UAE-based association from raising money inside or outside the UAE without first obtaining a licence. Prior to obtaining a licence, an association must be registered with and the General Authority for Islamic Affairs and Endowments, and requires the submission of certain information about the applicant along with details of the activities it plans to undertake.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Dubai position</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Emirate of Dubai issued Decree No. 9 of 2015 (\"Dubai Fundraising Decree\"), which is applicable to fundraising activities which take place in the Emirate, and are regulated by Islamic Affairs and Charitable Activities Department (\"IACAD\"). The Dubai Fundraising Decree prohibits anyone (a person or a legal entity) from collecting funds, raising donations, or permitting third parties to collect donations in the Emirate of Dubai, without obtaining prior approval from IACAD. Prior to the implementation of the Dubai Fundraising Decree education providers in Dubai were not required to obtain governmental approvals for fundraising.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Since the issuance of the Dubai Fundraising Decree, some education providers have been concerned about carrying out fundraising activities due to the burden of obtaining approval and confusion as to when approvals are actually required.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Non-compliance</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Strict penalties are applied to those who will fall foul of the applicable laws and conduct fundraising activities without prior approval, up to and including:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">a fine not less than AED 5,000 and not exceeding AED 100,000; and/or</li>\r\n 	<li dir=\"LTR\">imprisonment of one month to one year.</li>\r\n</ul>\r\n<p dir=\"LTR\" align=\"LEFT\">IACAD can seize the funds collected and shall redirect them for another purpose. Any bank account opened for the collection of donations will be suspended or closed and funds transferred to IACAD.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">IACAD at its sole discretion may offer an amicable settlement in lieu of imposing penalties, by:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">Issuing a written warning to the violator, and obtaining an undertaking not to repeat the same violation;</li>\r\n 	<li dir=\"LTR\">Obligating the violator to repay double the amount of the donated funds;</li>\r\n 	<li dir=\"LTR\">Closing the venue where the funds were raised for a period of up to one year.</li>\r\n</ul>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Abu Dhabi and other Emirates</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Federal law applies in the other emirates, as has been explained above, but no additional laws have been implemented. However, the government departments responsible for social welfare in other emirates are reaching-out and creating opportunities for government and the private sector to work together on CSR initiatives. Thus for practical purposes, education providers in other Emirates would be encouraged to strike up a dialogue with their local regulator with regard to any CRS, or public benefit or fundraising activities even where is no need to formally register or seek particular approval.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Social Media</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The <a href=\"https://www.tamimi.com/law-update-articles/developments-in-the-uae-cyber-crimes-law/\">Cyber Crimes Law 2012</a> (Federal Decree by Law No. 5 of 2012) stipulates that, any person who establishes, operates, or supervises, an \"Electronic Site\" (such as a website), or publishes information on an information network, or any other information technology tool, which calls for or promotes the collection of donations without approval, shall be punished by imprisonment and a fine not less than AED 250,000 and not exceeding AED 500,000 or both. At present, the responsible regulator under the Cyber Crimes Law, the Ministry of Economy, does not have a process for granting approval. In the Emirate of Dubai, the fact of having IACAD approval is sufficient.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Notably, the Dubai Fundraising Decree also contains provisions prohibiting the advertising of fundraising activities on social media sites in the absence of the requisite approval.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Therefore, education providers should refrain from advertising fundraising events on social media networks unless such activity is carried out with the relevant approvals.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Education providers, parents groups and students are advised to carefully plan the activities to be undertaken and to obtain governmental approvals, where these are required, and to avail of the exemptions available wherever possible.</p>\r\n<em>Al Tamimi &amp; Company’s <a href=\"https://www.tamimi.com/lawyer/andrea-tithecott/\">Andrea Tithecott</a> regularly advises on <a href=\"https://www.tamimi.com/practice/regulatory/\">regulatory matters</a> which impact education providers. For further information please contact Andrea Tithecott at (<a href=\"mailto:a.tithecott@tamimi.com\">a.tithecott@tamimi.com</a>).</em>|<p dir=\"LTR\" align=\"LEFT\"><img class=\"alignright size-full wp-image-8247\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_19_Image_0002.jpg\" alt=\"\" width=\"575\" height=\"593\" />Education providers are no longer exempt from the requirement to obtain government approval for a whole range of activities, from holding fetes, to pure fundraising. In this article we analyse how these restrictions impact upon educational providers and their students.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">The nature of the activity</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The nature of the activity will determine what type of regulatory approval is required. Clearly, not all activities carried out by education providers and their students are purely focused on fundraising. However, in recent times due to the introduction of new laws addressing the subject of fundraising, there has been a tendency to assume that all activities would require this type of approval. This is not always necessary. Many activities carried out by education providers, students, and parent groups are not predominantly concerned with raising funds (but which sometimes have that incidental benefit), but may still require other approvals.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In order to determine which pathway for obtaining approvals should be followed, It is necessary to examine whether an activity is:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">for the benefit of the education provider;</li>\r\n 	<li dir=\"LTR\">for the benefit of the public (in whole or in part); and</li>\r\n 	<li dir=\"LTR\">whether there is an element of fundraising, and the intended class of recipient of the funds generated.</li>\r\n</ul>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Activities for the benefit of the education provider</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In circumstances where an educational establishment is gathering support from other corporate bodies and from the public to improve the facilities offered by that provider, for example, investment in new sports equipment, or to create a bursary to allow the students additional educational opportunities, such as a trip overseas to undertake a research project; this kind of activity, although there is an element of fundraising, does not fall into the category of requiring a fundraising approval. The activity is purely for the benefit for the education provider and its students.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Activities for the benefit of the public</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Many education providers carry out activities which are intended to be of benefit of the public. For example, where a school has a Corporate Social Responsibility (CSR) programme, and participates in activities whereby either the general public or members of the general public will benefit. CSR activities creates opportunities for students to learn how to get involved in ‘volunteering’ and helping others who are less fortunate.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In the past, these kinds of activity would not have triggered any requirement on the education provider to obtain any kind of regulatory approval. Nowadays, the position is less clear. If the CSR activity is classified as being of public benefit, this can impose an obligation on the education provider to either register formally with a social community regulator or at least notify that regulator of its intended activities.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">At Federal level, the Federal Law No. (2) of 2008 Regarding Non-Governmental Public Welfare Associations and Organisations, requires organisations carrying out philanthropic activities to register as ‘public welfare associations’ but does not apply to:</p>\r\n<p dir=\"LTR\" align=\"LEFT\">‘schools and institutes, federations, associations, clubs, and youth and sport centers interested in youth cultural, social and sport affairs in the state regulated by Law no.25 of 1999 on the General Authority of Youth and Sports Welfare.’</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In Dubai, Law No. (12) of 2017 regulating Civil Society Organisations in Dubai, requires any organisation which engages in any kind of activity as a ‘civil association’ to first obtain a licence from the Community Development Authority (\"CDA\") but does not apply to:</p>\r\n\r\n<ol>\r\n 	<li dir=\"LTR\">The associations and institutions covered by the provisions of the Federal Law No. (2) of 2008; or</li>\r\n 	<li dir=\"LTR\">The bodies working in the field of youth and sport care covered by the provisions of the Federal Law No. (7) of 2008.</li>\r\n</ol>\r\n<p dir=\"LTR\" align=\"LEFT\">There may be some education providers which do not conform to those which are described and exempted from the above-mentioned laws. The most obvious example being a university, which is not specifically mentioned, but could instead fall into the category of ‘school’ or ‘institute’. In some cases, the education provider may need to prove that they should have the benefit of the exemption.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In those rare cases where the exemption does not apply, the organizer of the activity could argue that in carrying out occasional CSR activities, this does not place it squarely within the definition of either a public welfare organization or a civil association. However, the regulators themselves take a very broad interpretation of what activities fall within their particular legal scope, and have even required hospitals created on a ‘not for profit’ basis to obtain licenses to participate in activities which are connected with having a public benefit. One way of avoiding having to obtain approval is to conduct the CSR activity in conjunction with a social services provider or registered charity which has already obtained approval, in in effect ‘piggy-back’ on the principal’s licence.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Fundraising</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The laws applicable to fundraising activities have been explained in detail in our <a href=\"https://www.tamimi.com/law-update-articles/an-update-on-the-regulatory-framework-for-crowdfunding-platforms-in-the-uae/\">previous articles</a>, and thus are mentioned only in brief here in the context of their application to fundraising projects organised by education providers, parent groups, and students.</p>\r\n <img class=\"aligncenter size-full wp-image-8265\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_20_Imojage_0001.jpg\" alt=\"\" width=\"1037\" height=\"350\" />\r\n<h3 dir=\"LTR\" align=\"LEFT\">The federal position</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Federal Fundraising Law (Federal Resolution No. 8 of 1974) expressly prohibits any UAE-based association from raising money inside or outside the UAE without first obtaining a licence. Prior to obtaining a licence, an association must be registered with and the General Authority for Islamic Affairs and Endowments, and requires the submission of certain information about the applicant along with details of the activities it plans to undertake.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Dubai position</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Emirate of Dubai issued Decree No. 9 of 2015 (\"Dubai Fundraising Decree\"), which is applicable to fundraising activities which take place in the Emirate, and are regulated by Islamic Affairs and Charitable Activities Department (\"IACAD\"). The Dubai Fundraising Decree prohibits anyone (a person or a legal entity) from collecting funds, raising donations, or permitting third parties to collect donations in the Emirate of Dubai, without obtaining prior approval from IACAD. Prior to the implementation of the Dubai Fundraising Decree education providers in Dubai were not required to obtain governmental approvals for fundraising.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Since the issuance of the Dubai Fundraising Decree, some education providers have been concerned about carrying out fundraising activities due to the burden of obtaining approval and confusion as to when approvals are actually required.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Non-compliance</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Strict penalties are applied to those who will fall foul of the applicable laws and conduct fundraising activities without prior approval, up to and including:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">a fine not less than AED 5,000 and not exceeding AED 100,000; and/or</li>\r\n 	<li dir=\"LTR\">imprisonment of one month to one year.</li>\r\n</ul>\r\n<p dir=\"LTR\" align=\"LEFT\">IACAD can seize the funds collected and shall redirect them for another purpose. Any bank account opened for the collection of donations will be suspended or closed and funds transferred to IACAD.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">IACAD at its sole discretion may offer an amicable settlement in lieu of imposing penalties, by:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">Issuing a written warning to the violator, and obtaining an undertaking not to repeat the same violation;</li>\r\n 	<li dir=\"LTR\">Obligating the violator to repay double the amount of the donated funds;</li>\r\n 	<li dir=\"LTR\">Closing the venue where the funds were raised for a period of up to one year.</li>\r\n</ul>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Abu Dhabi and other Emirates</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Federal law applies in the other emirates, as has been explained above, but no additional laws have been implemented. However, the government departments responsible for social welfare in other emirates are reaching-out and creating opportunities for government and the private sector to work together on CSR initiatives. Thus for practical purposes, education providers in other Emirates would be encouraged to strike up a dialogue with their local regulator with regard to any CRS, or public benefit or fundraising activities even where is no need to formally register or seek particular approval.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Social Media</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The <a href=\"https://www.tamimi.com/law-update-articles/developments-in-the-uae-cyber-crimes-law/\">Cyber Crimes Law 2012</a> (Federal Decree by Law No. 5 of 2012) stipulates that, any person who establishes, operates, or supervises, an \"Electronic Site\" (such as a website), or publishes information on an information network, or any other information technology tool, which calls for or promotes the collection of donations without approval, shall be punished by imprisonment and a fine not less than AED 250,000 and not exceeding AED 500,000 or both. At present, the responsible regulator under the Cyber Crimes Law, the Ministry of Economy, does not have a process for granting approval. In the Emirate of Dubai, the fact of having IACAD approval is sufficient.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Notably, the Dubai Fundraising Decree also contains provisions prohibiting the advertising of fundraising activities on social media sites in the absence of the requisite approval.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Therefore, education providers should refrain from advertising fundraising events on social media networks unless such activity is carried out with the relevant approvals.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Education providers, parents groups and students are advised to carefully plan the activities to be undertaken and to obtain governmental approvals, where these are required, and to avail of the exemptions available wherever possible.</p>\r\n<em>Al Tamimi &amp; Company’s <a href=\"https://www.tamimi.com/lawyer/andrea-tithecott/\">Andrea Tithecott</a> regularly advises on <a href=\"https://www.tamimi.com/practice/regulatory/\">regulatory matters</a> which impact education providers. For further information please contact Andrea Tithecott at (<a href=\"mailto:a.tithecott@tamimi.com\">a.tithecott@tamimi.com</a>).</em>'),
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(306725, 29282, 'PostTitle', 'Educational Institutions in UAE: Approvals Required for Public Benefit Activities and Fundraising'),
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(306728, 29282, 'PostDate', '2018-09-04 07:39:48'),
(306729, 29282, 'PostUrl', 'https://www.tamimi.com/law-update-articles/educational-institutions-in-uae-approvals-required-for-public-benefit-activities-and-fundraising/'),
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(306732, 29282, 'MetaValueNew', '<p dir=\"LTR\" align=\"LEFT\"><img class=\"alignright  wp-image-8247\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_19_Image_0002.jpg\" alt=\"\" width=\"623\" height=\"643\" />&nbsp;Education providers are no longer exempt from the requirement to obtain government approval for a whole range of activities, from holding fetes, to pure fundraising. In this article we analyse how these restrictions impact upon educational providers and their students.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">The nature of the activity</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The nature of the activity will determine what type of regulatory approval is required. Clearly, not all activities carried out by education providers and their students are purely focused on fundraising. However, in recent times due to the introduction of new laws addressing the subject of fundraising, there has been a tendency to assume that all activities would require this type of approval. This is not always necessary. Many activities carried out by education providers, students, and parent groups are not predominantly concerned with raising funds (but which sometimes have that incidental benefit), but may still require other approvals.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In order to determine which pathway for obtaining approvals should be followed, It is necessary to examine whether an activity is:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">for the benefit of the education provider;</li>\r\n 	<li dir=\"LTR\">for the benefit of the public (in whole or in part); and</li>\r\n 	<li dir=\"LTR\">whether there is an element of fundraising, and the intended class of recipient of the funds generated.</li>\r\n</ul>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Activities for the benefit of the education provider</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In circumstances where an educational establishment is gathering support from other corporate bodies and from the public to improve the facilities offered by that provider, for example, investment in new sports equipment, or to create a bursary to allow the students additional educational opportunities, such as a trip overseas to undertake a research project; this kind of activity, although there is an element of fundraising, does not fall into the category of requiring a fundraising approval. The activity is purely for the benefit for the education provider and its students.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Activities for the benefit of the public</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Many education providers carry out activities which are intended to be of benefit of the public. For example, where a school has a Corporate Social Responsibility (CSR) programme, and participates in activities whereby either the general public or members of the general public will benefit. CSR activities creates opportunities for students to learn how to get involved in ‘volunteering’ and helping others who are less fortunate.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In the past, these kinds of activity would not have triggered any requirement on the education provider to obtain any kind of regulatory approval. Nowadays, the position is less clear. If the CSR activity is classified as being of public benefit, this can impose an obligation on the education provider to either register formally with a social community regulator or at least notify that regulator of its intended activities.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">At Federal level, the Federal Law No. (2) of 2008 Regarding Non-Governmental Public Welfare Associations and Organisations, requires organisations carrying out philanthropic activities to register as ‘public welfare associations’ but does not apply to:</p>\r\n<p dir=\"LTR\" align=\"LEFT\">‘schools and institutes, federations, associations, clubs, and youth and sport centers interested in youth cultural, social and sport affairs in the state regulated by Law no.25 of 1999 on the General Authority of Youth and Sports Welfare.’</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In Dubai, Law No. (12) of 2017 regulating Civil Society Organisations in Dubai, requires any organisation which engages in any kind of activity as a ‘civil association’ to first obtain a licence from the Community Development Authority (\"CDA\") but does not apply to:</p>\r\n\r\n<ol>\r\n 	<li dir=\"LTR\">The associations and institutions covered by the provisions of the Federal Law No. (2) of 2008; or</li>\r\n 	<li dir=\"LTR\">The bodies working in the field of youth and sport care covered by the provisions of the Federal Law No. (7) of 2008.</li>\r\n</ol>\r\n<p dir=\"LTR\" align=\"LEFT\">There may be some education providers which do not conform to those which are described and exempted from the above-mentioned laws. The most obvious example being a university, which is not specifically mentioned, but could instead fall into the category of ‘school’ or ‘institute’. In some cases, the education provider may need to prove that they should have the benefit of the exemption.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In those rare cases where the exemption does not apply, the organizer of the activity could argue that in carrying out occasional CSR activities, this does not place it squarely within the definition of either a public welfare organization or a civil association. However, the regulators themselves take a very broad interpretation of what activities fall within their particular legal scope, and have even required hospitals created on a ‘not for profit’ basis to obtain licenses to participate in activities which are connected with having a public benefit. One way of avoiding having to obtain approval is to conduct the CSR activity in conjunction with a social services provider or registered charity which has already obtained approval, in in effect ‘piggy-back’ on the principal’s licence.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Fundraising</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The laws applicable to fundraising activities have been explained in detail in our <a href=\"https://www.tamimi.com/law-update-articles/an-update-on-the-regulatory-framework-for-crowdfunding-platforms-in-the-uae/\">previous articles</a>, and thus are mentioned only in brief here in the context of their application to fundraising projects organised by education providers, parent groups, and students.</p>\r\n&nbsp;<img class=\"aligncenter size-full wp-image-8265\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_20_Imojage_0001.jpg\" alt=\"\" width=\"1037\" height=\"350\" />&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">The federal position</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Federal Fundraising Law (Federal Resolution No. 8 of 1974) expressly prohibits any UAE-based association from raising money inside or outside the UAE without first obtaining a licence. Prior to obtaining a licence, an association must be registered with and the General Authority for Islamic Affairs and Endowments, and requires the submission of certain information about the applicant along with details of the activities it plans to undertake.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Dubai position</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Emirate of Dubai issued Decree No. 9 of 2015 (\"Dubai Fundraising Decree\"), which is applicable to fundraising activities which take place in the Emirate, and are regulated by Islamic Affairs and Charitable Activities Department (\"IACAD\"). The Dubai Fundraising Decree prohibits anyone (a person or a legal entity) from collecting funds, raising donations, or permitting third parties to collect donations in the Emirate of Dubai, without obtaining prior approval from IACAD. Prior to the implementation of the Dubai Fundraising Decree education providers in Dubai were not required to obtain governmental approvals for fundraising.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Since the issuance of the Dubai Fundraising Decree, some education providers have been concerned about carrying out fundraising activities due to the burden of obtaining approval and confusion as to when approvals are actually required.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Non-compliance</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Strict penalties are applied to those who will fall foul of the applicable laws and conduct fundraising activities without prior approval, up to and including:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">a fine not less than AED 5,000 and not exceeding AED 100,000; and/or</li>\r\n 	<li dir=\"LTR\">imprisonment of one month to one year.</li>\r\n</ul>\r\n<p dir=\"LTR\" align=\"LEFT\">IACAD can seize the funds collected and shall redirect them for another purpose. Any bank account opened for the collection of donations will be suspended or closed and funds transferred to IACAD.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">IACAD at its sole discretion may offer an amicable settlement in lieu of imposing penalties, by:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">Issuing a written warning to the violator, and obtaining an undertaking not to repeat the same violation;</li>\r\n 	<li dir=\"LTR\">Obligating the violator to repay double the amount of the donated funds;</li>\r\n 	<li dir=\"LTR\">Closing the venue where the funds were raised for a period of up to one year.</li>\r\n</ul>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Abu Dhabi and other Emirates</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Federal law applies in the other emirates, as has been explained above, but no additional laws have been implemented. However, the government departments responsible for social welfare in other emirates are reaching-out and creating opportunities for government and the private sector to work together on CSR initiatives. Thus for practical purposes, education providers in other Emirates would be encouraged to strike up a dialogue with their local regulator with regard to any CRS, or public benefit or fundraising activities even where is no need to formally register or seek particular approval.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Social Media</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The <a href=\"https://www.tamimi.com/law-update-articles/developments-in-the-uae-cyber-crimes-law/\">Cyber Crimes Law 2012</a> (Federal Decree by Law No. 5 of 2012) stipulates that, any person who establishes, operates, or supervises, an \"Electronic Site\" (such as a website), or publishes information on an information network, or any other information technology tool, which calls for or promotes the collection of donations without approval, shall be punished by imprisonment and a fine not less than AED 250,000 and not exceeding AED 500,000 or both. At present, the responsible regulator under the Cyber Crimes Law, the Ministry of Economy, does not have a process for granting approval. In the Emirate of Dubai, the fact of having IACAD approval is sufficient.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Notably, the Dubai Fundraising Decree also contains provisions prohibiting the advertising of fundraising activities on social media sites in the absence of the requisite approval.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Therefore, education providers should refrain from advertising fundraising events on social media networks unless such activity is carried out with the relevant approvals.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Education providers, parents groups and students are advised to carefully plan the activities to be undertaken and to obtain governmental approvals, where these are required, and to avail of the exemptions available wherever possible.</p>\r\n<em>Al Tamimi &amp; Company’s <a href=\"https://www.tamimi.com/lawyer/andrea-tithecott/\">Andrea Tithecott</a> regularly advises on <a href=\"https://www.tamimi.com/practice/regulatory/\">regulatory matters</a> which impact education providers. For further information please contact Andrea Tithecott at (<a href=\"mailto:a.tithecott@tamimi.com\">a.tithecott@tamimi.com</a>).</em>');
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(306733, 29282, 'MetaValueOld', '<p dir=\"LTR\" align=\"LEFT\"><img class=\"alignright size-full wp-image-8247\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_19_Image_0002.jpg\" alt=\"\" width=\"575\" height=\"593\" />Education providers are no longer exempt from the requirement to obtain government approval for a whole range of activities, from holding fetes, to pure fundraising. In this article we analyse how these restrictions impact upon educational providers and their students.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">The nature of the activity</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The nature of the activity will determine what type of regulatory approval is required. Clearly, not all activities carried out by education providers and their students are purely focused on fundraising. However, in recent times due to the introduction of new laws addressing the subject of fundraising, there has been a tendency to assume that all activities would require this type of approval. This is not always necessary. Many activities carried out by education providers, students, and parent groups are not predominantly concerned with raising funds (but which sometimes have that incidental benefit), but may still require other approvals.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In order to determine which pathway for obtaining approvals should be followed, It is necessary to examine whether an activity is:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">for the benefit of the education provider;</li>\r\n 	<li dir=\"LTR\">for the benefit of the public (in whole or in part); and</li>\r\n 	<li dir=\"LTR\">whether there is an element of fundraising, and the intended class of recipient of the funds generated.</li>\r\n</ul>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Activities for the benefit of the education provider</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In circumstances where an educational establishment is gathering support from other corporate bodies and from the public to improve the facilities offered by that provider, for example, investment in new sports equipment, or to create a bursary to allow the students additional educational opportunities, such as a trip overseas to undertake a research project; this kind of activity, although there is an element of fundraising, does not fall into the category of requiring a fundraising approval. The activity is purely for the benefit for the education provider and its students.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Activities for the benefit of the public</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Many education providers carry out activities which are intended to be of benefit of the public. For example, where a school has a Corporate Social Responsibility (CSR) programme, and participates in activities whereby either the general public or members of the general public will benefit. CSR activities creates opportunities for students to learn how to get involved in ‘volunteering’ and helping others who are less fortunate.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In the past, these kinds of activity would not have triggered any requirement on the education provider to obtain any kind of regulatory approval. Nowadays, the position is less clear. If the CSR activity is classified as being of public benefit, this can impose an obligation on the education provider to either register formally with a social community regulator or at least notify that regulator of its intended activities.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">At Federal level, the Federal Law No. (2) of 2008 Regarding Non-Governmental Public Welfare Associations and Organisations, requires organisations carrying out philanthropic activities to register as ‘public welfare associations’ but does not apply to:</p>\r\n<p dir=\"LTR\" align=\"LEFT\">‘schools and institutes, federations, associations, clubs, and youth and sport centers interested in youth cultural, social and sport affairs in the state regulated by Law no.25 of 1999 on the General Authority of Youth and Sports Welfare.’</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In Dubai, Law No. (12) of 2017 regulating Civil Society Organisations in Dubai, requires any organisation which engages in any kind of activity as a ‘civil association’ to first obtain a licence from the Community Development Authority (\"CDA\") but does not apply to:</p>\r\n\r\n<ol>\r\n 	<li dir=\"LTR\">The associations and institutions covered by the provisions of the Federal Law No. (2) of 2008; or</li>\r\n 	<li dir=\"LTR\">The bodies working in the field of youth and sport care covered by the provisions of the Federal Law No. (7) of 2008.</li>\r\n</ol>\r\n<p dir=\"LTR\" align=\"LEFT\">There may be some education providers which do not conform to those which are described and exempted from the above-mentioned laws. The most obvious example being a university, which is not specifically mentioned, but could instead fall into the category of ‘school’ or ‘institute’. In some cases, the education provider may need to prove that they should have the benefit of the exemption.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In those rare cases where the exemption does not apply, the organizer of the activity could argue that in carrying out occasional CSR activities, this does not place it squarely within the definition of either a public welfare organization or a civil association. However, the regulators themselves take a very broad interpretation of what activities fall within their particular legal scope, and have even required hospitals created on a ‘not for profit’ basis to obtain licenses to participate in activities which are connected with having a public benefit. One way of avoiding having to obtain approval is to conduct the CSR activity in conjunction with a social services provider or registered charity which has already obtained approval, in in effect ‘piggy-back’ on the principal’s licence.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Fundraising</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The laws applicable to fundraising activities have been explained in detail in our <a href=\"https://www.tamimi.com/law-update-articles/an-update-on-the-regulatory-framework-for-crowdfunding-platforms-in-the-uae/\">previous articles</a>, and thus are mentioned only in brief here in the context of their application to fundraising projects organised by education providers, parent groups, and students.</p>\r\n <img class=\"aligncenter size-full wp-image-8265\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_20_Imojage_0001.jpg\" alt=\"\" width=\"1037\" height=\"350\" />\r\n<h3 dir=\"LTR\" align=\"LEFT\">The federal position</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Federal Fundraising Law (Federal Resolution No. 8 of 1974) expressly prohibits any UAE-based association from raising money inside or outside the UAE without first obtaining a licence. Prior to obtaining a licence, an association must be registered with and the General Authority for Islamic Affairs and Endowments, and requires the submission of certain information about the applicant along with details of the activities it plans to undertake.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Dubai position</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Emirate of Dubai issued Decree No. 9 of 2015 (\"Dubai Fundraising Decree\"), which is applicable to fundraising activities which take place in the Emirate, and are regulated by Islamic Affairs and Charitable Activities Department (\"IACAD\"). The Dubai Fundraising Decree prohibits anyone (a person or a legal entity) from collecting funds, raising donations, or permitting third parties to collect donations in the Emirate of Dubai, without obtaining prior approval from IACAD. Prior to the implementation of the Dubai Fundraising Decree education providers in Dubai were not required to obtain governmental approvals for fundraising.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Since the issuance of the Dubai Fundraising Decree, some education providers have been concerned about carrying out fundraising activities due to the burden of obtaining approval and confusion as to when approvals are actually required.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Non-compliance</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Strict penalties are applied to those who will fall foul of the applicable laws and conduct fundraising activities without prior approval, up to and including:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">a fine not less than AED 5,000 and not exceeding AED 100,000; and/or</li>\r\n 	<li dir=\"LTR\">imprisonment of one month to one year.</li>\r\n</ul>\r\n<p dir=\"LTR\" align=\"LEFT\">IACAD can seize the funds collected and shall redirect them for another purpose. Any bank account opened for the collection of donations will be suspended or closed and funds transferred to IACAD.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">IACAD at its sole discretion may offer an amicable settlement in lieu of imposing penalties, by:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">Issuing a written warning to the violator, and obtaining an undertaking not to repeat the same violation;</li>\r\n 	<li dir=\"LTR\">Obligating the violator to repay double the amount of the donated funds;</li>\r\n 	<li dir=\"LTR\">Closing the venue where the funds were raised for a period of up to one year.</li>\r\n</ul>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Abu Dhabi and other Emirates</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Federal law applies in the other emirates, as has been explained above, but no additional laws have been implemented. However, the government departments responsible for social welfare in other emirates are reaching-out and creating opportunities for government and the private sector to work together on CSR initiatives. Thus for practical purposes, education providers in other Emirates would be encouraged to strike up a dialogue with their local regulator with regard to any CRS, or public benefit or fundraising activities even where is no need to formally register or seek particular approval.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Social Media</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The <a href=\"https://www.tamimi.com/law-update-articles/developments-in-the-uae-cyber-crimes-law/\">Cyber Crimes Law 2012</a> (Federal Decree by Law No. 5 of 2012) stipulates that, any person who establishes, operates, or supervises, an \"Electronic Site\" (such as a website), or publishes information on an information network, or any other information technology tool, which calls for or promotes the collection of donations without approval, shall be punished by imprisonment and a fine not less than AED 250,000 and not exceeding AED 500,000 or both. At present, the responsible regulator under the Cyber Crimes Law, the Ministry of Economy, does not have a process for granting approval. In the Emirate of Dubai, the fact of having IACAD approval is sufficient.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Notably, the Dubai Fundraising Decree also contains provisions prohibiting the advertising of fundraising activities on social media sites in the absence of the requisite approval.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Therefore, education providers should refrain from advertising fundraising events on social media networks unless such activity is carried out with the relevant approvals.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Education providers, parents groups and students are advised to carefully plan the activities to be undertaken and to obtain governmental approvals, where these are required, and to avail of the exemptions available wherever possible.</p>\r\n<em>Al Tamimi &amp; Company’s <a href=\"https://www.tamimi.com/lawyer/andrea-tithecott/\">Andrea Tithecott</a> regularly advises on <a href=\"https://www.tamimi.com/practice/regulatory/\">regulatory matters</a> which impact education providers. For further information please contact Andrea Tithecott at (<a href=\"mailto:a.tithecott@tamimi.com\">a.tithecott@tamimi.com</a>).</em>'),
(306734, 29282, 'MetaLink', 'content'),
(306735, 29282, 'EditorLinkPost', 'https://www.tamimi.com/wp-admin/post.php?post=8197&amp;action=edit'),
(306736, 29282, 'ReportText', '<p dir=\"LTR\" align=\"LEFT\"><img class=\"alignright size-full wp-image-8247\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_19_Image_0002.jpg\" alt=\"\" width=\"575\" height=\"593\" />Education providers are no longer exempt from the requirement to obtain government approval for a whole range of activities, from holding fetes, to pure fundraising. In this article we analyse how these restrictions impact upon educational providers and their students.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">The nature of the activity</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The nature of the activity will determine what type of regulatory approval is required. Clearly, not all activities carried out by education providers and their students are purely focused on fundraising. However, in recent times due to the introduction of new laws addressing the subject of fundraising, there has been a tendency to assume that all activities would require this type of approval. This is not always necessary. Many activities carried out by education providers, students, and parent groups are not predominantly concerned with raising funds (but which sometimes have that incidental benefit), but may still require other approvals.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In order to determine which pathway for obtaining approvals should be followed, It is necessary to examine whether an activity is:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">for the benefit of the education provider;</li>\r\n 	<li dir=\"LTR\">for the benefit of the public (in whole or in part); and</li>\r\n 	<li dir=\"LTR\">whether there is an element of fundraising, and the intended class of recipient of the funds generated.</li>\r\n</ul>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Activities for the benefit of the education provider</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In circumstances where an educational establishment is gathering support from other corporate bodies and from the public to improve the facilities offered by that provider, for example, investment in new sports equipment, or to create a bursary to allow the students additional educational opportunities, such as a trip overseas to undertake a research project; this kind of activity, although there is an element of fundraising, does not fall into the category of requiring a fundraising approval. The activity is purely for the benefit for the education provider and its students.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Activities for the benefit of the public</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Many education providers carry out activities which are intended to be of benefit of the public. For example, where a school has a Corporate Social Responsibility (CSR) programme, and participates in activities whereby either the general public or members of the general public will benefit. CSR activities creates opportunities for students to learn how to get involved in ‘volunteering’ and helping others who are less fortunate.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In the past, these kinds of activity would not have triggered any requirement on the education provider to obtain any kind of regulatory approval. Nowadays, the position is less clear. If the CSR activity is classified as being of public benefit, this can impose an obligation on the education provider to either register formally with a social community regulator or at least notify that regulator of its intended activities.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">At Federal level, the Federal Law No. (2) of 2008 Regarding Non-Governmental Public Welfare Associations and Organisations, requires organisations carrying out philanthropic activities to register as ‘public welfare associations’ but does not apply to:</p>\r\n<p dir=\"LTR\" align=\"LEFT\">‘schools and institutes, federations, associations, clubs, and youth and sport centers interested in youth cultural, social and sport affairs in the state regulated by Law no.25 of 1999 on the General Authority of Youth and Sports Welfare.’</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In Dubai, Law No. (12) of 2017 regulating Civil Society Organisations in Dubai, requires any organisation which engages in any kind of activity as a ‘civil association’ to first obtain a licence from the Community Development Authority (\"CDA\") but does not apply to:</p>\r\n\r\n<ol>\r\n 	<li dir=\"LTR\">The associations and institutions covered by the provisions of the Federal Law No. (2) of 2008; or</li>\r\n 	<li dir=\"LTR\">The bodies working in the field of youth and sport care covered by the provisions of the Federal Law No. (7) of 2008.</li>\r\n</ol>\r\n<p dir=\"LTR\" align=\"LEFT\">There may be some education providers which do not conform to those which are described and exempted from the above-mentioned laws. The most obvious example being a university, which is not specifically mentioned, but could instead fall into the category of ‘school’ or ‘institute’. In some cases, the education provider may need to prove that they should have the benefit of the exemption.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In those rare cases where the exemption does not apply, the organizer of the activity could argue that in carrying out occasional CSR activities, this does not place it squarely within the definition of either a public welfare organization or a civil association. However, the regulators themselves take a very broad interpretation of what activities fall within their particular legal scope, and have even required hospitals created on a ‘not for profit’ basis to obtain licenses to participate in activities which are connected with having a public benefit. One way of avoiding having to obtain approval is to conduct the CSR activity in conjunction with a social services provider or registered charity which has already obtained approval, in in effect ‘piggy-back’ on the principal’s licence.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Fundraising</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The laws applicable to fundraising activities have been explained in detail in our <a href=\"https://www.tamimi.com/law-update-articles/an-update-on-the-regulatory-framework-for-crowdfunding-platforms-in-the-uae/\">previous articles</a>, and thus are mentioned only in brief here in the context of their application to fundraising projects organised by education providers, parent groups, and students.</p>\r\n <img class=\"aligncenter size-full wp-image-8265\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_20_Imojage_0001.jpg\" alt=\"\" width=\"1037\" height=\"350\" />\r\n<h3 dir=\"LTR\" align=\"LEFT\">The federal position</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Federal Fundraising Law (Federal Resolution No. 8 of 1974) expressly prohibits any UAE-based association from raising money inside or outside the UAE without first obtaining a licence. Prior to obtaining a licence, an association must be registered with and the General Authority for Islamic Affairs and Endowments, and requires the submission of certain information about the applicant along with details of the activities it plans to undertake.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Dubai position</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Emirate of Dubai issued Decree No. 9 of 2015 (\"Dubai Fundraising Decree\"), which is applicable to fundraising activities which take place in the Emirate, and are regulated by Islamic Affairs and Charitable Activities Department (\"IACAD\"). The Dubai Fundraising Decree prohibits anyone (a person or a legal entity) from collecting funds, raising donations, or permitting third parties to collect donations in the Emirate of Dubai, without obtaining prior approval from IACAD. Prior to the implementation of the Dubai Fundraising Decree education providers in Dubai were not required to obtain governmental approvals for fundraising.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Since the issuance of the Dubai Fundraising Decree, some education providers have been concerned about carrying out fundraising activities due to the burden of obtaining approval and confusion as to when approvals are actually required.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Non-compliance</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Strict penalties are applied to those who will fall foul of the applicable laws and conduct fundraising activities without prior approval, up to and including:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">a fine not less than AED 5,000 and not exceeding AED 100,000; and/or</li>\r\n 	<li dir=\"LTR\">imprisonment of one month to one year.</li>\r\n</ul>\r\n<p dir=\"LTR\" align=\"LEFT\">IACAD can seize the funds collected and shall redirect them for another purpose. Any bank account opened for the collection of donations will be suspended or closed and funds transferred to IACAD.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">IACAD at its sole discretion may offer an amicable settlement in lieu of imposing penalties, by:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">Issuing a written warning to the violator, and obtaining an undertaking not to repeat the same violation;</li>\r\n 	<li dir=\"LTR\">Obligating the violator to repay double the amount of the donated funds;</li>\r\n 	<li dir=\"LTR\">Closing the venue where the funds were raised for a period of up to one year.</li>\r\n</ul>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Abu Dhabi and other Emirates</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Federal law applies in the other emirates, as has been explained above, but no additional laws have been implemented. However, the government departments responsible for social welfare in other emirates are reaching-out and creating opportunities for government and the private sector to work together on CSR initiatives. Thus for practical purposes, education providers in other Emirates would be encouraged to strike up a dialogue with their local regulator with regard to any CRS, or public benefit or fundraising activities even where is no need to formally register or seek particular approval.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Social Media</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The <a href=\"https://www.tamimi.com/law-update-articles/developments-in-the-uae-cyber-crimes-law/\">Cyber Crimes Law 2012</a> (Federal Decree by Law No. 5 of 2012) stipulates that, any person who establishes, operates, or supervises, an \"Electronic Site\" (such as a website), or publishes information on an information network, or any other information technology tool, which calls for or promotes the collection of donations without approval, shall be punished by imprisonment and a fine not less than AED 250,000 and not exceeding AED 500,000 or both. At present, the responsible regulator under the Cyber Crimes Law, the Ministry of Economy, does not have a process for granting approval. In the Emirate of Dubai, the fact of having IACAD approval is sufficient.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Notably, the Dubai Fundraising Decree also contains provisions prohibiting the advertising of fundraising activities on social media sites in the absence of the requisite approval.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Therefore, education providers should refrain from advertising fundraising events on social media networks unless such activity is carried out with the relevant approvals.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Education providers, parents groups and students are advised to carefully plan the activities to be undertaken and to obtain governmental approvals, where these are required, and to avail of the exemptions available wherever possible.</p>\r\n<em>Al Tamimi &amp; Company’s <a href=\"https://www.tamimi.com/lawyer/andrea-tithecott/\">Andrea Tithecott</a> regularly advises on <a href=\"https://www.tamimi.com/practice/regulatory/\">regulatory matters</a> which impact education providers. For further information please contact Andrea Tithecott at (<a href=\"mailto:a.tithecott@tamimi.com\">a.tithecott@tamimi.com</a>).</em>|<p dir=\"LTR\" align=\"LEFT\"><img class=\"alignright  wp-image-8247\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_19_Image_0002.jpg\" alt=\"\" width=\"623\" height=\"643\" />&nbsp;Education providers are no longer exempt from the requirement to obtain government approval for a whole range of activities, from holding fetes, to pure fundraising. In this article we analyse how these restrictions impact upon educational providers and their students.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">The nature of the activity</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The nature of the activity will determine what type of regulatory approval is required. Clearly, not all activities carried out by education providers and their students are purely focused on fundraising. However, in recent times due to the introduction of new laws addressing the subject of fundraising, there has been a tendency to assume that all activities would require this type of approval. This is not always necessary. Many activities carried out by education providers, students, and parent groups are not predominantly concerned with raising funds (but which sometimes have that incidental benefit), but may still require other approvals.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In order to determine which pathway for obtaining approvals should be followed, It is necessary to examine whether an activity is:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">for the benefit of the education provider;</li>\r\n 	<li dir=\"LTR\">for the benefit of the public (in whole or in part); and</li>\r\n 	<li dir=\"LTR\">whether there is an element of fundraising, and the intended class of recipient of the funds generated.</li>\r\n</ul>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Activities for the benefit of the education provider</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In circumstances where an educational establishment is gathering support from other corporate bodies and from the public to improve the facilities offered by that provider, for example, investment in new sports equipment, or to create a bursary to allow the students additional educational opportunities, such as a trip overseas to undertake a research project; this kind of activity, although there is an element of fundraising, does not fall into the category of requiring a fundraising approval. The activity is purely for the benefit for the education provider and its students.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Activities for the benefit of the public</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Many education providers carry out activities which are intended to be of benefit of the public. For example, where a school has a Corporate Social Responsibility (CSR) programme, and participates in activities whereby either the general public or members of the general public will benefit. CSR activities creates opportunities for students to learn how to get involved in ‘volunteering’ and helping others who are less fortunate.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In the past, these kinds of activity would not have triggered any requirement on the education provider to obtain any kind of regulatory approval. Nowadays, the position is less clear. If the CSR activity is classified as being of public benefit, this can impose an obligation on the education provider to either register formally with a social community regulator or at least notify that regulator of its intended activities.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">At Federal level, the Federal Law No. (2) of 2008 Regarding Non-Governmental Public Welfare Associations and Organisations, requires organisations carrying out philanthropic activities to register as ‘public welfare associations’ but does not apply to:</p>\r\n<p dir=\"LTR\" align=\"LEFT\">‘schools and institutes, federations, associations, clubs, and youth and sport centers interested in youth cultural, social and sport affairs in the state regulated by Law no.25 of 1999 on the General Authority of Youth and Sports Welfare.’</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In Dubai, Law No. (12) of 2017 regulating Civil Society Organisations in Dubai, requires any organisation which engages in any kind of activity as a ‘civil association’ to first obtain a licence from the Community Development Authority (\"CDA\") but does not apply to:</p>\r\n\r\n<ol>\r\n 	<li dir=\"LTR\">The associations and institutions covered by the provisions of the Federal Law No. (2) of 2008; or</li>\r\n 	<li dir=\"LTR\">The bodies working in the field of youth and sport care covered by the provisions of the Federal Law No. (7) of 2008.</li>\r\n</ol>\r\n<p dir=\"LTR\" align=\"LEFT\">There may be some education providers which do not conform to those which are described and exempted from the above-mentioned laws. The most obvious example being a university, which is not specifically mentioned, but could instead fall into the category of ‘school’ or ‘institute’. In some cases, the education provider may need to prove that they should have the benefit of the exemption.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In those rare cases where the exemption does not apply, the organizer of the activity could argue that in carrying out occasional CSR activities, this does not place it squarely within the definition of either a public welfare organization or a civil association. However, the regulators themselves take a very broad interpretation of what activities fall within their particular legal scope, and have even required hospitals created on a ‘not for profit’ basis to obtain licenses to participate in activities which are connected with having a public benefit. One way of avoiding having to obtain approval is to conduct the CSR activity in conjunction with a social services provider or registered charity which has already obtained approval, in in effect ‘piggy-back’ on the principal’s licence.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Fundraising</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The laws applicable to fundraising activities have been explained in detail in our <a href=\"https://www.tamimi.com/law-update-articles/an-update-on-the-regulatory-framework-for-crowdfunding-platforms-in-the-uae/\">previous articles</a>, and thus are mentioned only in brief here in the context of their application to fundraising projects organised by education providers, parent groups, and students.</p>\r\n&nbsp;<img class=\"aligncenter size-full wp-image-8265\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_20_Imojage_0001.jpg\" alt=\"\" width=\"1037\" height=\"350\" />&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">The federal position</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Federal Fundraising Law (Federal Resolution No. 8 of 1974) expressly prohibits any UAE-based association from raising money inside or outside the UAE without first obtaining a licence. Prior to obtaining a licence, an association must be registered with and the General Authority for Islamic Affairs and Endowments, and requires the submission of certain information about the applicant along with details of the activities it plans to undertake.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Dubai position</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Emirate of Dubai issued Decree No. 9 of 2015 (\"Dubai Fundraising Decree\"), which is applicable to fundraising activities which take place in the Emirate, and are regulated by Islamic Affairs and Charitable Activities Department (\"IACAD\"). The Dubai Fundraising Decree prohibits anyone (a person or a legal entity) from collecting funds, raising donations, or permitting third parties to collect donations in the Emirate of Dubai, without obtaining prior approval from IACAD. Prior to the implementation of the Dubai Fundraising Decree education providers in Dubai were not required to obtain governmental approvals for fundraising.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Since the issuance of the Dubai Fundraising Decree, some education providers have been concerned about carrying out fundraising activities due to the burden of obtaining approval and confusion as to when approvals are actually required.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Non-compliance</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Strict penalties are applied to those who will fall foul of the applicable laws and conduct fundraising activities without prior approval, up to and including:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">a fine not less than AED 5,000 and not exceeding AED 100,000; and/or</li>\r\n 	<li dir=\"LTR\">imprisonment of one month to one year.</li>\r\n</ul>\r\n<p dir=\"LTR\" align=\"LEFT\">IACAD can seize the funds collected and shall redirect them for another purpose. Any bank account opened for the collection of donations will be suspended or closed and funds transferred to IACAD.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">IACAD at its sole discretion may offer an amicable settlement in lieu of imposing penalties, by:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">Issuing a written warning to the violator, and obtaining an undertaking not to repeat the same violation;</li>\r\n 	<li dir=\"LTR\">Obligating the violator to repay double the amount of the donated funds;</li>\r\n 	<li dir=\"LTR\">Closing the venue where the funds were raised for a period of up to one year.</li>\r\n</ul>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Abu Dhabi and other Emirates</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Federal law applies in the other emirates, as has been explained above, but no additional laws have been implemented. However, the government departments responsible for social welfare in other emirates are reaching-out and creating opportunities for government and the private sector to work together on CSR initiatives. Thus for practical purposes, education providers in other Emirates would be encouraged to strike up a dialogue with their local regulator with regard to any CRS, or public benefit or fundraising activities even where is no need to formally register or seek particular approval.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Social Media</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The <a href=\"https://www.tamimi.com/law-update-articles/developments-in-the-uae-cyber-crimes-law/\">Cyber Crimes Law 2012</a> (Federal Decree by Law No. 5 of 2012) stipulates that, any person who establishes, operates, or supervises, an \"Electronic Site\" (such as a website), or publishes information on an information network, or any other information technology tool, which calls for or promotes the collection of donations without approval, shall be punished by imprisonment and a fine not less than AED 250,000 and not exceeding AED 500,000 or both. At present, the responsible regulator under the Cyber Crimes Law, the Ministry of Economy, does not have a process for granting approval. In the Emirate of Dubai, the fact of having IACAD approval is sufficient.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Notably, the Dubai Fundraising Decree also contains provisions prohibiting the advertising of fundraising activities on social media sites in the absence of the requisite approval.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Therefore, education providers should refrain from advertising fundraising events on social media networks unless such activity is carried out with the relevant approvals.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Education providers, parents groups and students are advised to carefully plan the activities to be undertaken and to obtain governmental approvals, where these are required, and to avail of the exemptions available wherever possible.</p>\r\n<em>Al Tamimi &amp; Company’s <a href=\"https://www.tamimi.com/lawyer/andrea-tithecott/\">Andrea Tithecott</a> regularly advises on <a href=\"https://www.tamimi.com/practice/regulatory/\">regulatory matters</a> which impact education providers. For further information please contact Andrea Tithecott at (<a href=\"mailto:a.tithecott@tamimi.com\">a.tithecott@tamimi.com</a>).</em>'),
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(306804, 29288, 'MetaValueNew', '<p dir=\"LTR\" align=\"LEFT\"><img class=\"alignright  wp-image-8247\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_19_Image_0002.jpg\" alt=\"\" width=\"623\" height=\"643\" />&nbsp;Education providers are no longer exempt from the requirement to obtain government approval for a whole range of activities, from holding fetes, to pure fundraising. In this article we analyse how these restrictions impact upon educational providers and their students.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">The nature of the activity</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The nature of the activity will determine what type of regulatory approval is required. Clearly, not all activities carried out by education providers and their students are purely focused on fundraising. However, in recent times due to the introduction of new laws addressing the subject of fundraising, there has been a tendency to assume that all activities would require this type of approval. This is not always necessary. Many activities carried out by education providers, students, and parent groups are not predominantly concerned with raising funds (but which sometimes have that incidental benefit), but may still require other approvals.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In order to determine which pathway for obtaining approvals should be followed, It is necessary to examine whether an activity is:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">for the benefit of the education provider;</li>\r\n 	<li dir=\"LTR\">for the benefit of the public (in whole or in part); and</li>\r\n 	<li dir=\"LTR\">whether there is an element of fundraising, and the intended class of recipient of the funds generated.</li>\r\n</ul>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Activities for the benefit of the education provider</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In circumstances where an educational establishment is gathering support from other corporate bodies and from the public to improve the facilities offered by that provider, for example, investment in new sports equipment, or to create a bursary to allow the students additional educational opportunities, such as a trip overseas to undertake a research project; this kind of activity, although there is an element of fundraising, does not fall into the category of requiring a fundraising approval. The activity is purely for the benefit for the education provider and its students.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Activities for the benefit of the public</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Many education providers carry out activities which are intended to be of benefit of the public. For example, where a school has a Corporate Social Responsibility (CSR) programme, and participates in activities whereby either the general public or members of the general public will benefit. CSR activities creates opportunities for students to learn how to get involved in ‘volunteering’ and helping others who are less fortunate.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In the past, these kinds of activity would not have triggered any requirement on the education provider to obtain any kind of regulatory approval. Nowadays, the position is less clear. If the CSR activity is classified as being of public benefit, this can impose an obligation on the education provider to either register formally with a social community regulator or at least notify that regulator of its intended activities.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">At Federal level, the Federal Law No. (2) of 2008 Regarding Non-Governmental Public Welfare Associations and Organisations, requires organisations carrying out philanthropic activities to register as ‘public welfare associations’ but does not apply to:</p>\r\n<p dir=\"LTR\" align=\"LEFT\">‘schools and institutes, federations, associations, clubs, and youth and sport centers interested in youth cultural, social and sport affairs in the state regulated by Law no.25 of 1999 on the General Authority of Youth and Sports Welfare.’</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In Dubai, Law No. (12) of 2017 regulating Civil Society Organisations in Dubai, requires any organisation which engages in any kind of activity as a ‘civil association’ to first obtain a licence from the Community Development Authority (\"CDA\") but does not apply to:</p>\r\n\r\n<ol>\r\n 	<li dir=\"LTR\">The associations and institutions covered by the provisions of the Federal Law No. (2) of 2008; or</li>\r\n 	<li dir=\"LTR\">The bodies working in the field of youth and sport care covered by the provisions of the Federal Law No. (7) of 2008.</li>\r\n</ol>\r\n<p dir=\"LTR\" align=\"LEFT\">There may be some education providers which do not conform to those which are described and exempted from the above-mentioned laws. The most obvious example being a university, which is not specifically mentioned, but could instead fall into the category of ‘school’ or ‘institute’. In some cases, the education provider may need to prove that they should have the benefit of the exemption.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In those rare cases where the exemption does not apply, the organizer of the activity could argue that in carrying out occasional CSR activities, this does not place it squarely within the definition of either a public welfare organization or a civil association. However, the regulators themselves take a very broad interpretation of what activities fall within their particular legal scope, and have even required hospitals created on a ‘not for profit’ basis to obtain licenses to participate in activities which are connected with having a public benefit. One way of avoiding having to obtain approval is to conduct the CSR activity in conjunction with a social services provider or registered charity which has already obtained approval, in in effect ‘piggy-back’ on the principal’s licence.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Fundraising</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The laws applicable to fundraising activities have been explained in detail in our <a href=\"https://www.tamimi.com/law-update-articles/an-update-on-the-regulatory-framework-for-crowdfunding-platforms-in-the-uae/\">previous articles</a>, and thus are mentioned only in brief here in the context of their application to fundraising projects organised by education providers, parent groups, and students.</p>&nbsp;\r\n&nbsp;<img class=\"aligncenter size-full wp-image-8265\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_20_Imojage_0001.jpg\" alt=\"\" width=\"1037\" height=\"350\" />&nbsp;\r\n&nbsp;<h3 dir=\"LTR\" align=\"LEFT\">The federal position</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Federal Fundraising Law (Federal Resolution No. 8 of 1974) expressly prohibits any UAE-based association from raising money inside or outside the UAE without first obtaining a licence. Prior to obtaining a licence, an association must be registered with and the General Authority for Islamic Affairs and Endowments, and requires the submission of certain information about the applicant along with details of the activities it plans to undertake.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Dubai position</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Emirate of Dubai issued Decree No. 9 of 2015 (\"Dubai Fundraising Decree\"), which is applicable to fundraising activities which take place in the Emirate, and are regulated by Islamic Affairs and Charitable Activities Department (\"IACAD\"). The Dubai Fundraising Decree prohibits anyone (a person or a legal entity) from collecting funds, raising donations, or permitting third parties to collect donations in the Emirate of Dubai, without obtaining prior approval from IACAD. Prior to the implementation of the Dubai Fundraising Decree education providers in Dubai were not required to obtain governmental approvals for fundraising.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Since the issuance of the Dubai Fundraising Decree, some education providers have been concerned about carrying out fundraising activities due to the burden of obtaining approval and confusion as to when approvals are actually required.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Non-compliance</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Strict penalties are applied to those who will fall foul of the applicable laws and conduct fundraising activities without prior approval, up to and including:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">a fine not less than AED 5,000 and not exceeding AED 100,000; and/or</li>\r\n 	<li dir=\"LTR\">imprisonment of one month to one year.</li>\r\n</ul>\r\n<p dir=\"LTR\" align=\"LEFT\">IACAD can seize the funds collected and shall redirect them for another purpose. Any bank account opened for the collection of donations will be suspended or closed and funds transferred to IACAD.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">IACAD at its sole discretion may offer an amicable settlement in lieu of imposing penalties, by:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">Issuing a written warning to the violator, and obtaining an undertaking not to repeat the same violation;</li>\r\n 	<li dir=\"LTR\">Obligating the violator to repay double the amount of the donated funds;</li>\r\n 	<li dir=\"LTR\">Closing the venue where the funds were raised for a period of up to one year.</li>\r\n</ul>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Abu Dhabi and other Emirates</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Federal law applies in the other emirates, as has been explained above, but no additional laws have been implemented. However, the government departments responsible for social welfare in other emirates are reaching-out and creating opportunities for government and the private sector to work together on CSR initiatives. Thus for practical purposes, education providers in other Emirates would be encouraged to strike up a dialogue with their local regulator with regard to any CRS, or public benefit or fundraising activities even where is no need to formally register or seek particular approval.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Social Media</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The <a href=\"https://www.tamimi.com/law-update-articles/developments-in-the-uae-cyber-crimes-law/\">Cyber Crimes Law 2012</a> (Federal Decree by Law No. 5 of 2012) stipulates that, any person who establishes, operates, or supervises, an \"Electronic Site\" (such as a website), or publishes information on an information network, or any other information technology tool, which calls for or promotes the collection of donations without approval, shall be punished by imprisonment and a fine not less than AED 250,000 and not exceeding AED 500,000 or both. At present, the responsible regulator under the Cyber Crimes Law, the Ministry of Economy, does not have a process for granting approval. In the Emirate of Dubai, the fact of having IACAD approval is sufficient.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Notably, the Dubai Fundraising Decree also contains provisions prohibiting the advertising of fundraising activities on social media sites in the absence of the requisite approval.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Therefore, education providers should refrain from advertising fundraising events on social media networks unless such activity is carried out with the relevant approvals.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Education providers, parents groups and students are advised to carefully plan the activities to be undertaken and to obtain governmental approvals, where these are required, and to avail of the exemptions available wherever possible.</p>\r\n<em>Al Tamimi &amp; Company’s <a href=\"https://www.tamimi.com/lawyer/andrea-tithecott/\">Andrea Tithecott</a> regularly advises on <a href=\"https://www.tamimi.com/practice/regulatory/\">regulatory matters</a> which impact education providers. For further information please contact Andrea Tithecott at (<a href=\"mailto:a.tithecott@tamimi.com\">a.tithecott@tamimi.com</a>).</em>'),
(306805, 29288, 'MetaValueOld', '<p dir=\"LTR\" align=\"LEFT\"><img class=\"alignright  wp-image-8247\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_19_Image_0002.jpg\" alt=\"\" width=\"623\" height=\"643\" />&nbsp;Education providers are no longer exempt from the requirement to obtain government approval for a whole range of activities, from holding fetes, to pure fundraising. In this article we analyse how these restrictions impact upon educational providers and their students.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">The nature of the activity</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The nature of the activity will determine what type of regulatory approval is required. Clearly, not all activities carried out by education providers and their students are purely focused on fundraising. However, in recent times due to the introduction of new laws addressing the subject of fundraising, there has been a tendency to assume that all activities would require this type of approval. This is not always necessary. Many activities carried out by education providers, students, and parent groups are not predominantly concerned with raising funds (but which sometimes have that incidental benefit), but may still require other approvals.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In order to determine which pathway for obtaining approvals should be followed, It is necessary to examine whether an activity is:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">for the benefit of the education provider;</li>\r\n 	<li dir=\"LTR\">for the benefit of the public (in whole or in part); and</li>\r\n 	<li dir=\"LTR\">whether there is an element of fundraising, and the intended class of recipient of the funds generated.</li>\r\n</ul>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Activities for the benefit of the education provider</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In circumstances where an educational establishment is gathering support from other corporate bodies and from the public to improve the facilities offered by that provider, for example, investment in new sports equipment, or to create a bursary to allow the students additional educational opportunities, such as a trip overseas to undertake a research project; this kind of activity, although there is an element of fundraising, does not fall into the category of requiring a fundraising approval. The activity is purely for the benefit for the education provider and its students.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Activities for the benefit of the public</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Many education providers carry out activities which are intended to be of benefit of the public. For example, where a school has a Corporate Social Responsibility (CSR) programme, and participates in activities whereby either the general public or members of the general public will benefit. CSR activities creates opportunities for students to learn how to get involved in ‘volunteering’ and helping others who are less fortunate.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In the past, these kinds of activity would not have triggered any requirement on the education provider to obtain any kind of regulatory approval. Nowadays, the position is less clear. If the CSR activity is classified as being of public benefit, this can impose an obligation on the education provider to either register formally with a social community regulator or at least notify that regulator of its intended activities.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">At Federal level, the Federal Law No. (2) of 2008 Regarding Non-Governmental Public Welfare Associations and Organisations, requires organisations carrying out philanthropic activities to register as ‘public welfare associations’ but does not apply to:</p>\r\n<p dir=\"LTR\" align=\"LEFT\">‘schools and institutes, federations, associations, clubs, and youth and sport centers interested in youth cultural, social and sport affairs in the state regulated by Law no.25 of 1999 on the General Authority of Youth and Sports Welfare.’</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In Dubai, Law No. (12) of 2017 regulating Civil Society Organisations in Dubai, requires any organisation which engages in any kind of activity as a ‘civil association’ to first obtain a licence from the Community Development Authority (\"CDA\") but does not apply to:</p>\r\n\r\n<ol>\r\n 	<li dir=\"LTR\">The associations and institutions covered by the provisions of the Federal Law No. (2) of 2008; or</li>\r\n 	<li dir=\"LTR\">The bodies working in the field of youth and sport care covered by the provisions of the Federal Law No. (7) of 2008.</li>\r\n</ol>\r\n<p dir=\"LTR\" align=\"LEFT\">There may be some education providers which do not conform to those which are described and exempted from the above-mentioned laws. The most obvious example being a university, which is not specifically mentioned, but could instead fall into the category of ‘school’ or ‘institute’. In some cases, the education provider may need to prove that they should have the benefit of the exemption.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In those rare cases where the exemption does not apply, the organizer of the activity could argue that in carrying out occasional CSR activities, this does not place it squarely within the definition of either a public welfare organization or a civil association. However, the regulators themselves take a very broad interpretation of what activities fall within their particular legal scope, and have even required hospitals created on a ‘not for profit’ basis to obtain licenses to participate in activities which are connected with having a public benefit. One way of avoiding having to obtain approval is to conduct the CSR activity in conjunction with a social services provider or registered charity which has already obtained approval, in in effect ‘piggy-back’ on the principal’s licence.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Fundraising</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The laws applicable to fundraising activities have been explained in detail in our <a href=\"https://www.tamimi.com/law-update-articles/an-update-on-the-regulatory-framework-for-crowdfunding-platforms-in-the-uae/\">previous articles</a>, and thus are mentioned only in brief here in the context of their application to fundraising projects organised by education providers, parent groups, and students.</p>\r\n&nbsp;<img class=\"aligncenter size-full wp-image-8265\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_20_Imojage_0001.jpg\" alt=\"\" width=\"1037\" height=\"350\" />&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">The federal position</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Federal Fundraising Law (Federal Resolution No. 8 of 1974) expressly prohibits any UAE-based association from raising money inside or outside the UAE without first obtaining a licence. Prior to obtaining a licence, an association must be registered with and the General Authority for Islamic Affairs and Endowments, and requires the submission of certain information about the applicant along with details of the activities it plans to undertake.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Dubai position</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Emirate of Dubai issued Decree No. 9 of 2015 (\"Dubai Fundraising Decree\"), which is applicable to fundraising activities which take place in the Emirate, and are regulated by Islamic Affairs and Charitable Activities Department (\"IACAD\"). The Dubai Fundraising Decree prohibits anyone (a person or a legal entity) from collecting funds, raising donations, or permitting third parties to collect donations in the Emirate of Dubai, without obtaining prior approval from IACAD. Prior to the implementation of the Dubai Fundraising Decree education providers in Dubai were not required to obtain governmental approvals for fundraising.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Since the issuance of the Dubai Fundraising Decree, some education providers have been concerned about carrying out fundraising activities due to the burden of obtaining approval and confusion as to when approvals are actually required.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Non-compliance</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Strict penalties are applied to those who will fall foul of the applicable laws and conduct fundraising activities without prior approval, up to and including:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">a fine not less than AED 5,000 and not exceeding AED 100,000; and/or</li>\r\n 	<li dir=\"LTR\">imprisonment of one month to one year.</li>\r\n</ul>\r\n<p dir=\"LTR\" align=\"LEFT\">IACAD can seize the funds collected and shall redirect them for another purpose. Any bank account opened for the collection of donations will be suspended or closed and funds transferred to IACAD.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">IACAD at its sole discretion may offer an amicable settlement in lieu of imposing penalties, by:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">Issuing a written warning to the violator, and obtaining an undertaking not to repeat the same violation;</li>\r\n 	<li dir=\"LTR\">Obligating the violator to repay double the amount of the donated funds;</li>\r\n 	<li dir=\"LTR\">Closing the venue where the funds were raised for a period of up to one year.</li>\r\n</ul>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Abu Dhabi and other Emirates</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Federal law applies in the other emirates, as has been explained above, but no additional laws have been implemented. However, the government departments responsible for social welfare in other emirates are reaching-out and creating opportunities for government and the private sector to work together on CSR initiatives. Thus for practical purposes, education providers in other Emirates would be encouraged to strike up a dialogue with their local regulator with regard to any CRS, or public benefit or fundraising activities even where is no need to formally register or seek particular approval.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Social Media</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The <a href=\"https://www.tamimi.com/law-update-articles/developments-in-the-uae-cyber-crimes-law/\">Cyber Crimes Law 2012</a> (Federal Decree by Law No. 5 of 2012) stipulates that, any person who establishes, operates, or supervises, an \"Electronic Site\" (such as a website), or publishes information on an information network, or any other information technology tool, which calls for or promotes the collection of donations without approval, shall be punished by imprisonment and a fine not less than AED 250,000 and not exceeding AED 500,000 or both. At present, the responsible regulator under the Cyber Crimes Law, the Ministry of Economy, does not have a process for granting approval. In the Emirate of Dubai, the fact of having IACAD approval is sufficient.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Notably, the Dubai Fundraising Decree also contains provisions prohibiting the advertising of fundraising activities on social media sites in the absence of the requisite approval.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Therefore, education providers should refrain from advertising fundraising events on social media networks unless such activity is carried out with the relevant approvals.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Education providers, parents groups and students are advised to carefully plan the activities to be undertaken and to obtain governmental approvals, where these are required, and to avail of the exemptions available wherever possible.</p>\r\n<em>Al Tamimi &amp; Company’s <a href=\"https://www.tamimi.com/lawyer/andrea-tithecott/\">Andrea Tithecott</a> regularly advises on <a href=\"https://www.tamimi.com/practice/regulatory/\">regulatory matters</a> which impact education providers. For further information please contact Andrea Tithecott at (<a href=\"mailto:a.tithecott@tamimi.com\">a.tithecott@tamimi.com</a>).</em>'),
(306806, 29288, 'MetaLink', 'content'),
(306807, 29288, 'EditorLinkPost', 'https://www.tamimi.com/wp-admin/post.php?post=8197&amp;action=edit'),
(306808, 29288, 'ReportText', '<p dir=\"LTR\" align=\"LEFT\"><img class=\"alignright  wp-image-8247\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_19_Image_0002.jpg\" alt=\"\" width=\"623\" height=\"643\" />&nbsp;Education providers are no longer exempt from the requirement to obtain government approval for a whole range of activities, from holding fetes, to pure fundraising. In this article we analyse how these restrictions impact upon educational providers and their students.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">The nature of the activity</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The nature of the activity will determine what type of regulatory approval is required. Clearly, not all activities carried out by education providers and their students are purely focused on fundraising. However, in recent times due to the introduction of new laws addressing the subject of fundraising, there has been a tendency to assume that all activities would require this type of approval. This is not always necessary. Many activities carried out by education providers, students, and parent groups are not predominantly concerned with raising funds (but which sometimes have that incidental benefit), but may still require other approvals.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In order to determine which pathway for obtaining approvals should be followed, It is necessary to examine whether an activity is:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">for the benefit of the education provider;</li>\r\n 	<li dir=\"LTR\">for the benefit of the public (in whole or in part); and</li>\r\n 	<li dir=\"LTR\">whether there is an element of fundraising, and the intended class of recipient of the funds generated.</li>\r\n</ul>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Activities for the benefit of the education provider</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In circumstances where an educational establishment is gathering support from other corporate bodies and from the public to improve the facilities offered by that provider, for example, investment in new sports equipment, or to create a bursary to allow the students additional educational opportunities, such as a trip overseas to undertake a research project; this kind of activity, although there is an element of fundraising, does not fall into the category of requiring a fundraising approval. The activity is purely for the benefit for the education provider and its students.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Activities for the benefit of the public</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Many education providers carry out activities which are intended to be of benefit of the public. For example, where a school has a Corporate Social Responsibility (CSR) programme, and participates in activities whereby either the general public or members of the general public will benefit. CSR activities creates opportunities for students to learn how to get involved in ‘volunteering’ and helping others who are less fortunate.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In the past, these kinds of activity would not have triggered any requirement on the education provider to obtain any kind of regulatory approval. Nowadays, the position is less clear. If the CSR activity is classified as being of public benefit, this can impose an obligation on the education provider to either register formally with a social community regulator or at least notify that regulator of its intended activities.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">At Federal level, the Federal Law No. (2) of 2008 Regarding Non-Governmental Public Welfare Associations and Organisations, requires organisations carrying out philanthropic activities to register as ‘public welfare associations’ but does not apply to:</p>\r\n<p dir=\"LTR\" align=\"LEFT\">‘schools and institutes, federations, associations, clubs, and youth and sport centers interested in youth cultural, social and sport affairs in the state regulated by Law no.25 of 1999 on the General Authority of Youth and Sports Welfare.’</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In Dubai, Law No. (12) of 2017 regulating Civil Society Organisations in Dubai, requires any organisation which engages in any kind of activity as a ‘civil association’ to first obtain a licence from the Community Development Authority (\"CDA\") but does not apply to:</p>\r\n\r\n<ol>\r\n 	<li dir=\"LTR\">The associations and institutions covered by the provisions of the Federal Law No. (2) of 2008; or</li>\r\n 	<li dir=\"LTR\">The bodies working in the field of youth and sport care covered by the provisions of the Federal Law No. (7) of 2008.</li>\r\n</ol>\r\n<p dir=\"LTR\" align=\"LEFT\">There may be some education providers which do not conform to those which are described and exempted from the above-mentioned laws. The most obvious example being a university, which is not specifically mentioned, but could instead fall into the category of ‘school’ or ‘institute’. In some cases, the education provider may need to prove that they should have the benefit of the exemption.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In those rare cases where the exemption does not apply, the organizer of the activity could argue that in carrying out occasional CSR activities, this does not place it squarely within the definition of either a public welfare organization or a civil association. However, the regulators themselves take a very broad interpretation of what activities fall within their particular legal scope, and have even required hospitals created on a ‘not for profit’ basis to obtain licenses to participate in activities which are connected with having a public benefit. One way of avoiding having to obtain approval is to conduct the CSR activity in conjunction with a social services provider or registered charity which has already obtained approval, in in effect ‘piggy-back’ on the principal’s licence.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Fundraising</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The laws applicable to fundraising activities have been explained in detail in our <a href=\"https://www.tamimi.com/law-update-articles/an-update-on-the-regulatory-framework-for-crowdfunding-platforms-in-the-uae/\">previous articles</a>, and thus are mentioned only in brief here in the context of their application to fundraising projects organised by education providers, parent groups, and students.</p>\r\n&nbsp;<img class=\"aligncenter size-full wp-image-8265\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_20_Imojage_0001.jpg\" alt=\"\" width=\"1037\" height=\"350\" />&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">The federal position</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Federal Fundraising Law (Federal Resolution No. 8 of 1974) expressly prohibits any UAE-based association from raising money inside or outside the UAE without first obtaining a licence. Prior to obtaining a licence, an association must be registered with and the General Authority for Islamic Affairs and Endowments, and requires the submission of certain information about the applicant along with details of the activities it plans to undertake.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Dubai position</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Emirate of Dubai issued Decree No. 9 of 2015 (\"Dubai Fundraising Decree\"), which is applicable to fundraising activities which take place in the Emirate, and are regulated by Islamic Affairs and Charitable Activities Department (\"IACAD\"). The Dubai Fundraising Decree prohibits anyone (a person or a legal entity) from collecting funds, raising donations, or permitting third parties to collect donations in the Emirate of Dubai, without obtaining prior approval from IACAD. Prior to the implementation of the Dubai Fundraising Decree education providers in Dubai were not required to obtain governmental approvals for fundraising.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Since the issuance of the Dubai Fundraising Decree, some education providers have been concerned about carrying out fundraising activities due to the burden of obtaining approval and confusion as to when approvals are actually required.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Non-compliance</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Strict penalties are applied to those who will fall foul of the applicable laws and conduct fundraising activities without prior approval, up to and including:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">a fine not less than AED 5,000 and not exceeding AED 100,000; and/or</li>\r\n 	<li dir=\"LTR\">imprisonment of one month to one year.</li>\r\n</ul>\r\n<p dir=\"LTR\" align=\"LEFT\">IACAD can seize the funds collected and shall redirect them for another purpose. Any bank account opened for the collection of donations will be suspended or closed and funds transferred to IACAD.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">IACAD at its sole discretion may offer an amicable settlement in lieu of imposing penalties, by:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">Issuing a written warning to the violator, and obtaining an undertaking not to repeat the same violation;</li>\r\n 	<li dir=\"LTR\">Obligating the violator to repay double the amount of the donated funds;</li>\r\n 	<li dir=\"LTR\">Closing the venue where the funds were raised for a period of up to one year.</li>\r\n</ul>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Abu Dhabi and other Emirates</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Federal law applies in the other emirates, as has been explained above, but no additional laws have been implemented. However, the government departments responsible for social welfare in other emirates are reaching-out and creating opportunities for government and the private sector to work together on CSR initiatives. Thus for practical purposes, education providers in other Emirates would be encouraged to strike up a dialogue with their local regulator with regard to any CRS, or public benefit or fundraising activities even where is no need to formally register or seek particular approval.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Social Media</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The <a href=\"https://www.tamimi.com/law-update-articles/developments-in-the-uae-cyber-crimes-law/\">Cyber Crimes Law 2012</a> (Federal Decree by Law No. 5 of 2012) stipulates that, any person who establishes, operates, or supervises, an \"Electronic Site\" (such as a website), or publishes information on an information network, or any other information technology tool, which calls for or promotes the collection of donations without approval, shall be punished by imprisonment and a fine not less than AED 250,000 and not exceeding AED 500,000 or both. At present, the responsible regulator under the Cyber Crimes Law, the Ministry of Economy, does not have a process for granting approval. In the Emirate of Dubai, the fact of having IACAD approval is sufficient.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Notably, the Dubai Fundraising Decree also contains provisions prohibiting the advertising of fundraising activities on social media sites in the absence of the requisite approval.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Therefore, education providers should refrain from advertising fundraising events on social media networks unless such activity is carried out with the relevant approvals.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Education providers, parents groups and students are advised to carefully plan the activities to be undertaken and to obtain governmental approvals, where these are required, and to avail of the exemptions available wherever possible.</p>\r\n<em>Al Tamimi &amp; Company’s <a href=\"https://www.tamimi.com/lawyer/andrea-tithecott/\">Andrea Tithecott</a> regularly advises on <a href=\"https://www.tamimi.com/practice/regulatory/\">regulatory matters</a> which impact education providers. For further information please contact Andrea Tithecott at (<a href=\"mailto:a.tithecott@tamimi.com\">a.tithecott@tamimi.com</a>).</em>|<p dir=\"LTR\" align=\"LEFT\"><img class=\"alignright  wp-image-8247\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_19_Image_0002.jpg\" alt=\"\" width=\"623\" height=\"643\" />&nbsp;Education providers are no longer exempt from the requirement to obtain government approval for a whole range of activities, from holding fetes, to pure fundraising. In this article we analyse how these restrictions impact upon educational providers and their students.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">The nature of the activity</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The nature of the activity will determine what type of regulatory approval is required. Clearly, not all activities carried out by education providers and their students are purely focused on fundraising. However, in recent times due to the introduction of new laws addressing the subject of fundraising, there has been a tendency to assume that all activities would require this type of approval. This is not always necessary. Many activities carried out by education providers, students, and parent groups are not predominantly concerned with raising funds (but which sometimes have that incidental benefit), but may still require other approvals.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In order to determine which pathway for obtaining approvals should be followed, It is necessary to examine whether an activity is:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">for the benefit of the education provider;</li>\r\n 	<li dir=\"LTR\">for the benefit of the public (in whole or in part); and</li>\r\n 	<li dir=\"LTR\">whether there is an element of fundraising, and the intended class of recipient of the funds generated.</li>\r\n</ul>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Activities for the benefit of the education provider</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In circumstances where an educational establishment is gathering support from other corporate bodies and from the public to improve the facilities offered by that provider, for example, investment in new sports equipment, or to create a bursary to allow the students additional educational opportunities, such as a trip overseas to undertake a research project; this kind of activity, although there is an element of fundraising, does not fall into the category of requiring a fundraising approval. The activity is purely for the benefit for the education provider and its students.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Activities for the benefit of the public</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Many education providers carry out activities which are intended to be of benefit of the public. For example, where a school has a Corporate Social Responsibility (CSR) programme, and participates in activities whereby either the general public or members of the general public will benefit. CSR activities creates opportunities for students to learn how to get involved in ‘volunteering’ and helping others who are less fortunate.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In the past, these kinds of activity would not have triggered any requirement on the education provider to obtain any kind of regulatory approval. Nowadays, the position is less clear. If the CSR activity is classified as being of public benefit, this can impose an obligation on the education provider to either register formally with a social community regulator or at least notify that regulator of its intended activities.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">At Federal level, the Federal Law No. (2) of 2008 Regarding Non-Governmental Public Welfare Associations and Organisations, requires organisations carrying out philanthropic activities to register as ‘public welfare associations’ but does not apply to:</p>\r\n<p dir=\"LTR\" align=\"LEFT\">‘schools and institutes, federations, associations, clubs, and youth and sport centers interested in youth cultural, social and sport affairs in the state regulated by Law no.25 of 1999 on the General Authority of Youth and Sports Welfare.’</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In Dubai, Law No. (12) of 2017 regulating Civil Society Organisations in Dubai, requires any organisation which engages in any kind of activity as a ‘civil association’ to first obtain a licence from the Community Development Authority (\"CDA\") but does not apply to:</p>\r\n\r\n<ol>\r\n 	<li dir=\"LTR\">The associations and institutions covered by the provisions of the Federal Law No. (2) of 2008; or</li>\r\n 	<li dir=\"LTR\">The bodies working in the field of youth and sport care covered by the provisions of the Federal Law No. (7) of 2008.</li>\r\n</ol>\r\n<p dir=\"LTR\" align=\"LEFT\">There may be some education providers which do not conform to those which are described and exempted from the above-mentioned laws. The most obvious example being a university, which is not specifically mentioned, but could instead fall into the category of ‘school’ or ‘institute’. In some cases, the education provider may need to prove that they should have the benefit of the exemption.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In those rare cases where the exemption does not apply, the organizer of the activity could argue that in carrying out occasional CSR activities, this does not place it squarely within the definition of either a public welfare organization or a civil association. However, the regulators themselves take a very broad interpretation of what activities fall within their particular legal scope, and have even required hospitals created on a ‘not for profit’ basis to obtain licenses to participate in activities which are connected with having a public benefit. One way of avoiding having to obtain approval is to conduct the CSR activity in conjunction with a social services provider or registered charity which has already obtained approval, in in effect ‘piggy-back’ on the principal’s licence.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Fundraising</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The laws applicable to fundraising activities have been explained in detail in our <a href=\"https://www.tamimi.com/law-update-articles/an-update-on-the-regulatory-framework-for-crowdfunding-platforms-in-the-uae/\">previous articles</a>, and thus are mentioned only in brief here in the context of their application to fundraising projects organised by education providers, parent groups, and students.</p>&nbsp;\r\n&nbsp;<img class=\"aligncenter size-full wp-image-8265\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_20_Imojage_0001.jpg\" alt=\"\" width=\"1037\" height=\"350\" />&nbsp;\r\n&nbsp;<h3 dir=\"LTR\" align=\"LEFT\">The federal position</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Federal Fundraising Law (Federal Resolution No. 8 of 1974) expressly prohibits any UAE-based association from raising money inside or outside the UAE without first obtaining a licence. Prior to obtaining a licence, an association must be registered with and the General Authority for Islamic Affairs and Endowments, and requires the submission of certain information about the applicant along with details of the activities it plans to undertake.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Dubai position</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Emirate of Dubai issued Decree No. 9 of 2015 (\"Dubai Fundraising Decree\"), which is applicable to fundraising activities which take place in the Emirate, and are regulated by Islamic Affairs and Charitable Activities Department (\"IACAD\"). The Dubai Fundraising Decree prohibits anyone (a person or a legal entity) from collecting funds, raising donations, or permitting third parties to collect donations in the Emirate of Dubai, without obtaining prior approval from IACAD. Prior to the implementation of the Dubai Fundraising Decree education providers in Dubai were not required to obtain governmental approvals for fundraising.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Since the issuance of the Dubai Fundraising Decree, some education providers have been concerned about carrying out fundraising activities due to the burden of obtaining approval and confusion as to when approvals are actually required.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Non-compliance</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Strict penalties are applied to those who will fall foul of the applicable laws and conduct fundraising activities without prior approval, up to and including:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">a fine not less than AED 5,000 and not exceeding AED 100,000; and/or</li>\r\n 	<li dir=\"LTR\">imprisonment of one month to one year.</li>\r\n</ul>\r\n<p dir=\"LTR\" align=\"LEFT\">IACAD can seize the funds collected and shall redirect them for another purpose. Any bank account opened for the collection of donations will be suspended or closed and funds transferred to IACAD.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">IACAD at its sole discretion may offer an amicable settlement in lieu of imposing penalties, by:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">Issuing a written warning to the violator, and obtaining an undertaking not to repeat the same violation;</li>\r\n 	<li dir=\"LTR\">Obligating the violator to repay double the amount of the donated funds;</li>\r\n 	<li dir=\"LTR\">Closing the venue where the funds were raised for a period of up to one year.</li>\r\n</ul>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Abu Dhabi and other Emirates</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Federal law applies in the other emirates, as has been explained above, but no additional laws have been implemented. However, the government departments responsible for social welfare in other emirates are reaching-out and creating opportunities for government and the private sector to work together on CSR initiatives. Thus for practical purposes, education providers in other Emirates would be encouraged to strike up a dialogue with their local regulator with regard to any CRS, or public benefit or fundraising activities even where is no need to formally register or seek particular approval.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Social Media</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The <a href=\"https://www.tamimi.com/law-update-articles/developments-in-the-uae-cyber-crimes-law/\">Cyber Crimes Law 2012</a> (Federal Decree by Law No. 5 of 2012) stipulates that, any person who establishes, operates, or supervises, an \"Electronic Site\" (such as a website), or publishes information on an information network, or any other information technology tool, which calls for or promotes the collection of donations without approval, shall be punished by imprisonment and a fine not less than AED 250,000 and not exceeding AED 500,000 or both. At present, the responsible regulator under the Cyber Crimes Law, the Ministry of Economy, does not have a process for granting approval. In the Emirate of Dubai, the fact of having IACAD approval is sufficient.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Notably, the Dubai Fundraising Decree also contains provisions prohibiting the advertising of fundraising activities on social media sites in the absence of the requisite approval.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Therefore, education providers should refrain from advertising fundraising events on social media networks unless such activity is carried out with the relevant approvals.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Education providers, parents groups and students are advised to carefully plan the activities to be undertaken and to obtain governmental approvals, where these are required, and to avail of the exemptions available wherever possible.</p>\r\n<em>Al Tamimi &amp; Company’s <a href=\"https://www.tamimi.com/lawyer/andrea-tithecott/\">Andrea Tithecott</a> regularly advises on <a href=\"https://www.tamimi.com/practice/regulatory/\">regulatory matters</a> which impact education providers. For further information please contact Andrea Tithecott at (<a href=\"mailto:a.tithecott@tamimi.com\">a.tithecott@tamimi.com</a>).</em>'),
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(306884, 29295, 'PostDate', '2018-09-04 07:39:01'),
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(306888, 29295, 'MetaValueNew', '<img class=\"aligncenter size-full wp-image-8249\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_21_Image_0002.jpg\" alt=\"\" width=\"1121\" height=\"337\" />\r\n<p dir=\"LTR\" align=\"LEFT\">Collaborating with a land owner, ground lease owner or developer (\"Landlords\") to lease a ‘build to suit’ school or other educational facility is becoming an increasingly popular means for educational facility operators (\"Tenants\") to meet their premises requirements in the UAE and broader region.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">What is a build to suit arrangement?</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In simple terms, a build to suit arrangement comprises the following elements:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">a Landlord who is prepared to undertake the construction of the educational facility provided they have a long term Tenant;</li>\r\n 	<li dir=\"LTR\">a Tenant being a school or other educational institution provider who wishes to enter into a long term lease of an educational facility; and</li>\r\n 	<li dir=\"LTR\">in many instances financial institutions who may be prepared to finance the Landlord in constructing the educational facility on the basis that, once built, the Landlord will have the revenue streams under the long term lease.</li>\r\n</ul>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Why build to suit?</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Private school operators or other educational institutions would prefer not to undertake the significant capital outlay required to acquire an interest in land and construct their own premises.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In addition, developers and other investors have an appetite for singly owned and tenanted real estate assets with tenants who will take over the full operation and maintenance of the facility.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Part of what makes build to suit arrangements so attractive, is that they are inherently flexible in their scope and structure. Parties can readily adapt the commercial arrangement to reach a mutually agreeable position on both the development and leasing aspects.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The pre-leasing aspect may also enable the Landlord to obtain finance for the project.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Accordingly, completing an education facility on a build to suit basis represents a win-win for operators, developers and investors. That said to avoid disputes arising at a later stage, build-to-suit projects can present a number of complexities that warrant careful consideration prior to entering into the relevant contractual documentation.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">What are the key legal elements of a build to suit transaction?</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">While a detailed discussion of the issues and risk points is beyond the scope of this article, the following discussion points provide a high-level overview of the key legal elements to consider in a build to suit transaction:</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Due diligence on the land plot</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">The parties should ensure that the land is appropriate for the proposed development. This may include considerations such as: ensuring the plot has appropriate planning and other regulatory approvals; ensuring the physical layout of the plot is suitable for the proposed designs; ensuring proximity to necessary infrastructure and utilities; confirming sufficient permitted GFA; licensing and free zone considerations; and other operational and design issues.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">From a commercial perspective, the location of the plot will also be important, as patrons of a school or other educational facility will generally want this to be proximate to or easily accessible from their residence. Competitor schools in or planned for the locality may also be a consideration.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Scope of works</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">A lack of clarity in the scope of the works is one of the key issues giving rise to disputes. As the rent and other obligations are often struck based on what the owner is expecting to deliver and what the tenant is expecting to receive (and the associated costs), aligning the parties expectations is key to minimising risk.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">To mitigate this risk, the parties should develop a clear scope of work at the outset. The parties should consider what plant and equipment is included in the scope of work, and whether the premises will be delivered in \"turn-key\" condition with all fit out installed as well as the extent to which equipment, furniture is included.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In the context of a school or other educational facility, the design may have to meet the requirements of the regulators such as the Dubai Knowledge and Human Development Authority. In addition, many operators will have their own design requirements. It is recommended that, unless the Tenant has such capabilities in-house, the Tenant engage suitable consultants to prepare a detailed technical brief addressing such matters as design requirements, structural loads, utility capacities and regulatory requirements. The detailed technical brief should be attached to the final agreement giving clarity to both the Landlord and Tenant as to key specifications required.</p>\r\n&nbsp;\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"Part of what makes build to suit arrangements so attractive, is that they are inherently flexible in their scope and structure. Parties can readily adapt the commercial arrangement to reach a mutually agreeable position on both the development and leasing aspects.\"</h2>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Milestones and longstop dates</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Will the owner be required to achieve completion of stages of the relevant works by milestone dates, or to procure completion of the project prior to a longstop date? If one or both of these requirements apply, what are the consequences of the Landlord failing to adhere to the relevant dates? Are delay damages payable, or does failure to meet milestone or long stop dates give rise to a right for the Tenant to terminate the agreements?</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In education projects, the date of completion can be critical as failure to achieve completion by a certain date could result in missing the window for enrolments for an entire year.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Calculation of rent</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">How will the rent payable under the lease be determined? Considerations may include whether there will there be a base/ground rent component payable for the land.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Where the rent (or a component of the rent) is to be calculated against the project costs incurred by the owner, what costs are included/excluded for the purpose of making that calculation? Examples of common exclusions are the owner’s cost of acquiring the land (if applicable), the owner’s cost of financing the construction and the cost of delivering infrastructure to the boundary of the plot.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Where the rent is calculated with reference to the project costs or by some other methodology, the Tenant will be concerned to ensure that there is a cap on its liability. The Tenant may also require that the project costs be certified by an independent cost consultant.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Often the rent is discounted at the beginning of the term with such discounts amortised over the remainder of the term. This practice recognises that it takes some time for the school or other educational facility to attract students and therefore improves the Tenant’s cash flows until such time as the school or other educational facility is established in the market.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Appointment of contractors</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">How will the consultants and contractors undertaking the designs and works be appointed? Will mutual agreement be required? One option is for the parties to agree a short-list or pre-agree contractors and consultants whom the owner may engage. Alternatively, will there be a tender process and if yes, how will that be conducted and what role will the Tenant play in selecting the preferred tender? Will the Tenant have the right to approve the terms of the third party contracts?</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Development of detailed designs and construction drawings</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Ideally, detailed designs and specifications would be developed and attached to the contractual documents. However, often the project design is not finalised at the time when contractual documents are entered into. In those circumstances, the parties must agree on the mechanism for setting the final design requirements on which the project will be undertaken.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Variations</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Issues to consider include whether variations (by the Landlord, Tenant or both parties) will be permitted once the final designs and specifications are settled. If variations are permitted, what parameters or processes will apply to determine whether the variation will be implemented and on what grounds may a variation be refused (and the grounds of refusal may differ depending on which party is approving the variation). For example, where a variation would result in a material delay to the works program or result in a material increase in project costs, one party may be entitled to withhold its approval.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Retention of a specialist consultant by the tenant</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Unless the Tenant retains specialist architects and/or engineers in house, it is recommended that the Tenant obtain its own architectural and/or engineering consulting firm throughout the design, construction and handover phases of the project. The Tenant’s consultant may assist with the following tasks:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">ensuring the design brief meets the Tenant’s and any regulator’s requirements;</li>\r\n 	<li dir=\"LTR\">where permitted under the contractual documentation, consulting with the Landlord on the appointment of any contractor or sub-contractor;</li>\r\n 	<li dir=\"LTR\">supervising the contractor and sub-contractors to ensure they are meeting the design brief;</li>\r\n 	<li dir=\"LTR\">assessing any requests from the Landlord or the Tenant to make variations and evaluating the cost of such variations;</li>\r\n 	<li dir=\"LTR\">cost consulting; and</li>\r\n 	<li dir=\"LTR\">assessing whether milestones are met and whether the school is ready for handover.</li>\r\n</ul>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Independent Experts</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">If disputes arise during the process, this could lead to delays in completing or the handover of the project, particularly where the disputes may be of a technical nature.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Whilst each party having its own consultant engaged may reduce the likelihood of disputes, it will not remove the risk completely as it remains possible that the respective parties’ consultants will disagree.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In these circumstances, it can be useful to have an independent consultant appointed to mediate and determine such disputes as an expert.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Documentation</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Transaction documents from a Tenant’s perspective would typically include an agreement to lease and the occupational lease. Where acting for the Landlord, ground lease, financing, construction and development management documentation may be required.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The terms of the occupational lease are often critical, particularly given that the parties generally require a long-term arrangement. The parties should accordingly consider carefully the maintaining and repairing obligations and obligations for other outgoings, taxation issues, rent reviews, reinstatement obligations and insurance as well as the other usual Landlord and Tenant considerations.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Obligations in relation to registration of leases and any resulting registration fees should also be considered.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\"></h3>\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Build to suit arrangements are not the only option for private school or educational institutions when setting up operations however they provide a useful option from, both the Landlord’s and the educational institutions perspective.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Readers will appreciate that there are a large number of issues to be considered prior to entering into build to suit projects and the above snapshot is by no means exhaustive. However, ensuring that the parties have a clear understanding and agreed position on these types of issues goes a long way to ensuring a successful project.</p>\r\n<em>Al Tamimi &amp; Company’s, <a href=\"https://www.tamimi.com/lawyer/jeremy-scott/\">Jeremy Scott</a>, regularly advises on various <a href=\"https://www.tamimi.com/practice/real-estate/\">real estate matters</a> in the UAE and other countries in the GCC. For further information please contact Jeremy Scott (<a href=\"mailto:j.scott@tamimi.com\">j.scott@tamimi.com</a>).</em>'),
(306889, 29295, 'MetaValueOld', '<p dir=\"LTR\" align=\"LEFT\">Collaborating with a land owner, ground lease owner or developer (\"Landlords\") to lease a ‘build to suit’ school or other educational facility is becoming an increasingly popular means for educational facility operators (\"Tenants\") to meet their premises requirements in the UAE and broader region.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">What is a build to suit arrangement?</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In simple terms, a build to suit arrangement comprises the following elements:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">a Landlord who is prepared to undertake the construction of the educational facility provided they have a long term Tenant;</li>\r\n 	<li dir=\"LTR\">a Tenant being a school or other educational institution provider who wishes to enter into a long term lease of an educational facility; and</li>\r\n 	<li dir=\"LTR\">in many instances financial institutions who may be prepared to finance the Landlord in constructing the educational facility on the basis that, once built, the Landlord will have the revenue streams under the long term lease.</li>\r\n</ul>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Why build to suit?</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Private school operators or other educational institutions would prefer not to undertake the significant capital outlay required to acquire an interest in land and construct their own premises.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In addition, developers and other investors have an appetite for singly owned and tenanted real estate assets with tenants who will take over the full operation and maintenance of the facility.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Part of what makes build to suit arrangements so attractive, is that they are inherently flexible in their scope and structure. Parties can readily adapt the commercial arrangement to reach a mutually agreeable position on both the development and leasing aspects.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The pre-leasing aspect may also enable the Landlord to obtain finance for the project.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Accordingly, completing an education facility on a build to suit basis represents a win-win for operators, developers and investors. That said to avoid disputes arising at a later stage, build-to-suit projects can present a number of complexities that warrant careful consideration prior to entering into the relevant contractual documentation.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">What are the key legal elements of a build to suit transaction?</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">While a detailed discussion of the issues and risk points is beyond the scope of this article, the following discussion points provide a high-level overview of the key legal elements to consider in a build to suit transaction:</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Due diligence on the land plot</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">The parties should ensure that the land is appropriate for the proposed development. This may include considerations such as: ensuring the plot has appropriate planning and other regulatory approvals; ensuring the physical layout of the plot is suitable for the proposed designs; ensuring proximity to necessary infrastructure and utilities; confirming sufficient permitted GFA; licensing and free zone considerations; and other operational and design issues.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">From a commercial perspective, the location of the plot will also be important, as patrons of a school or other educational facility will generally want this to be proximate to or easily accessible from their residence. Competitor schools in or planned for the locality may also be a consideration.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Scope of works</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">A lack of clarity in the scope of the works is one of the key issues giving rise to disputes. As the rent and other obligations are often struck based on what the owner is expecting to deliver and what the tenant is expecting to receive (and the associated costs), aligning the parties expectations is key to minimising risk.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">To mitigate this risk, the parties should develop a clear scope of work at the outset. The parties should consider what plant and equipment is included in the scope of work, and whether the premises will be delivered in \"turn-key\" condition with all fit out installed as well as the extent to which equipment, furniture is included.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In the context of a school or other educational facility, the design may have to meet the requirements of the regulators such as the Dubai Knowledge and Human Development Authority. In addition, many operators will have their own design requirements. It is recommended that, unless the Tenant has such capabilities in-house, the Tenant engage suitable consultants to prepare a detailed technical brief addressing such matters as design requirements, structural loads, utility capacities and regulatory requirements. The detailed technical brief should be attached to the final agreement giving clarity to both the Landlord and Tenant as to key specifications required.</p>\r\n&nbsp;\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"Part of what makes build to suit arrangements so attractive, is that they are inherently flexible in their scope and structure. Parties can readily adapt the commercial arrangement to reach a mutually agreeable position on both the development and leasing aspects.\"</h2>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Milestones and longstop dates</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Will the owner be required to achieve completion of stages of the relevant works by milestone dates, or to procure completion of the project prior to a longstop date? If one or both of these requirements apply, what are the consequences of the Landlord failing to adhere to the relevant dates? Are delay damages payable, or does failure to meet milestone or long stop dates give rise to a right for the Tenant to terminate the agreements?</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In education projects, the date of completion can be critical as failure to achieve completion by a certain date could result in missing the window for enrolments for an entire year.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Calculation of rent</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">How will the rent payable under the lease be determined? Considerations may include whether there will there be a base/ground rent component payable for the land.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Where the rent (or a component of the rent) is to be calculated against the project costs incurred by the owner, what costs are included/excluded for the purpose of making that calculation? Examples of common exclusions are the owner’s cost of acquiring the land (if applicable), the owner’s cost of financing the construction and the cost of delivering infrastructure to the boundary of the plot.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Where the rent is calculated with reference to the project costs or by some other methodology, the Tenant will be concerned to ensure that there is a cap on its liability. The Tenant may also require that the project costs be certified by an independent cost consultant.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Often the rent is discounted at the beginning of the term with such discounts amortised over the remainder of the term. This practice recognises that it takes some time for the school or other educational facility to attract students and therefore improves the Tenant’s cash flows until such time as the school or other educational facility is established in the market.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Appointment of contractors</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">How will the consultants and contractors undertaking the designs and works be appointed? Will mutual agreement be required? One option is for the parties to agree a short-list or pre-agree contractors and consultants whom the owner may engage. Alternatively, will there be a tender process and if yes, how will that be conducted and what role will the Tenant play in selecting the preferred tender? Will the Tenant have the right to approve the terms of the third party contracts?</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Development of detailed designs and construction drawings</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Ideally, detailed designs and specifications would be developed and attached to the contractual documents. However, often the project design is not finalised at the time when contractual documents are entered into. In those circumstances, the parties must agree on the mechanism for setting the final design requirements on which the project will be undertaken.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Variations</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Issues to consider include whether variations (by the Landlord, Tenant or both parties) will be permitted once the final designs and specifications are settled. If variations are permitted, what parameters or processes will apply to determine whether the variation will be implemented and on what grounds may a variation be refused (and the grounds of refusal may differ depending on which party is approving the variation). For example, where a variation would result in a material delay to the works program or result in a material increase in project costs, one party may be entitled to withhold its approval.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Retention of a specialist consultant by the tenant</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Unless the Tenant retains specialist architects and/or engineers in house, it is recommended that the Tenant obtain its own architectural and/or engineering consulting firm throughout the design, construction and handover phases of the project. The Tenant’s consultant may assist with the following tasks:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">ensuring the design brief meets the Tenant’s and any regulator’s requirements;</li>\r\n 	<li dir=\"LTR\">where permitted under the contractual documentation, consulting with the Landlord on the appointment of any contractor or sub-contractor;</li>\r\n 	<li dir=\"LTR\">supervising the contractor and sub-contractors to ensure they are meeting the design brief;</li>\r\n 	<li dir=\"LTR\">assessing any requests from the Landlord or the Tenant to make variations and evaluating the cost of such variations;</li>\r\n 	<li dir=\"LTR\">cost consulting; and</li>\r\n 	<li dir=\"LTR\">assessing whether milestones are met and whether the school is ready for handover.</li>\r\n</ul>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Independent Experts</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">If disputes arise during the process, this could lead to delays in completing or the handover of the project, particularly where the disputes may be of a technical nature.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Whilst each party having its own consultant engaged may reduce the likelihood of disputes, it will not remove the risk completely as it remains possible that the respective parties’ consultants will disagree.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In these circumstances, it can be useful to have an independent consultant appointed to mediate and determine such disputes as an expert.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Documentation</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Transaction documents from a Tenant’s perspective would typically include an agreement to lease and the occupational lease. Where acting for the Landlord, ground lease, financing, construction and development management documentation may be required.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The terms of the occupational lease are often critical, particularly given that the parties generally require a long-term arrangement. The parties should accordingly consider carefully the maintaining and repairing obligations and obligations for other outgoings, taxation issues, rent reviews, reinstatement obligations and insurance as well as the other usual Landlord and Tenant considerations.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Obligations in relation to registration of leases and any resulting registration fees should also be considered.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\"></h3>\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Build to suit arrangements are not the only option for private school or educational institutions when setting up operations however they provide a useful option from, both the Landlord’s and the educational institutions perspective.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Readers will appreciate that there are a large number of issues to be considered prior to entering into build to suit projects and the above snapshot is by no means exhaustive. However, ensuring that the parties have a clear understanding and agreed position on these types of issues goes a long way to ensuring a successful project.</p>\r\n\r\n<em>Al Tamimi &amp; Company’s, <a href=\"https://www.tamimi.com/lawyer/jeremy-scott/\">Jeremy Scott</a>, regularly advises on various <a href=\"https://www.tamimi.com/practice/real-estate/\">real estate matters</a> in the UAE and other countries in the GCC. For further information please contact Jeremy Scott (<a href=\"mailto:j.scott@tamimi.com\">j.scott@tamimi.com</a>).</em>'),
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(306892, 29295, 'ReportText', '<p dir=\"LTR\" align=\"LEFT\">Collaborating with a land owner, ground lease owner or developer (\"Landlords\") to lease a ‘build to suit’ school or other educational facility is becoming an increasingly popular means for educational facility operators (\"Tenants\") to meet their premises requirements in the UAE and broader region.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">What is a build to suit arrangement?</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In simple terms, a build to suit arrangement comprises the following elements:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">a Landlord who is prepared to undertake the construction of the educational facility provided they have a long term Tenant;</li>\r\n 	<li dir=\"LTR\">a Tenant being a school or other educational institution provider who wishes to enter into a long term lease of an educational facility; and</li>\r\n 	<li dir=\"LTR\">in many instances financial institutions who may be prepared to finance the Landlord in constructing the educational facility on the basis that, once built, the Landlord will have the revenue streams under the long term lease.</li>\r\n</ul>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Why build to suit?</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Private school operators or other educational institutions would prefer not to undertake the significant capital outlay required to acquire an interest in land and construct their own premises.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In addition, developers and other investors have an appetite for singly owned and tenanted real estate assets with tenants who will take over the full operation and maintenance of the facility.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Part of what makes build to suit arrangements so attractive, is that they are inherently flexible in their scope and structure. Parties can readily adapt the commercial arrangement to reach a mutually agreeable position on both the development and leasing aspects.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The pre-leasing aspect may also enable the Landlord to obtain finance for the project.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Accordingly, completing an education facility on a build to suit basis represents a win-win for operators, developers and investors. That said to avoid disputes arising at a later stage, build-to-suit projects can present a number of complexities that warrant careful consideration prior to entering into the relevant contractual documentation.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">What are the key legal elements of a build to suit transaction?</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">While a detailed discussion of the issues and risk points is beyond the scope of this article, the following discussion points provide a high-level overview of the key legal elements to consider in a build to suit transaction:</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Due diligence on the land plot</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">The parties should ensure that the land is appropriate for the proposed development. This may include considerations such as: ensuring the plot has appropriate planning and other regulatory approvals; ensuring the physical layout of the plot is suitable for the proposed designs; ensuring proximity to necessary infrastructure and utilities; confirming sufficient permitted GFA; licensing and free zone considerations; and other operational and design issues.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">From a commercial perspective, the location of the plot will also be important, as patrons of a school or other educational facility will generally want this to be proximate to or easily accessible from their residence. Competitor schools in or planned for the locality may also be a consideration.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Scope of works</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">A lack of clarity in the scope of the works is one of the key issues giving rise to disputes. As the rent and other obligations are often struck based on what the owner is expecting to deliver and what the tenant is expecting to receive (and the associated costs), aligning the parties expectations is key to minimising risk.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">To mitigate this risk, the parties should develop a clear scope of work at the outset. The parties should consider what plant and equipment is included in the scope of work, and whether the premises will be delivered in \"turn-key\" condition with all fit out installed as well as the extent to which equipment, furniture is included.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In the context of a school or other educational facility, the design may have to meet the requirements of the regulators such as the Dubai Knowledge and Human Development Authority. In addition, many operators will have their own design requirements. It is recommended that, unless the Tenant has such capabilities in-house, the Tenant engage suitable consultants to prepare a detailed technical brief addressing such matters as design requirements, structural loads, utility capacities and regulatory requirements. The detailed technical brief should be attached to the final agreement giving clarity to both the Landlord and Tenant as to key specifications required.</p>\r\n&nbsp;\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"Part of what makes build to suit arrangements so attractive, is that they are inherently flexible in their scope and structure. Parties can readily adapt the commercial arrangement to reach a mutually agreeable position on both the development and leasing aspects.\"</h2>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Milestones and longstop dates</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Will the owner be required to achieve completion of stages of the relevant works by milestone dates, or to procure completion of the project prior to a longstop date? If one or both of these requirements apply, what are the consequences of the Landlord failing to adhere to the relevant dates? Are delay damages payable, or does failure to meet milestone or long stop dates give rise to a right for the Tenant to terminate the agreements?</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In education projects, the date of completion can be critical as failure to achieve completion by a certain date could result in missing the window for enrolments for an entire year.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Calculation of rent</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">How will the rent payable under the lease be determined? Considerations may include whether there will there be a base/ground rent component payable for the land.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Where the rent (or a component of the rent) is to be calculated against the project costs incurred by the owner, what costs are included/excluded for the purpose of making that calculation? Examples of common exclusions are the owner’s cost of acquiring the land (if applicable), the owner’s cost of financing the construction and the cost of delivering infrastructure to the boundary of the plot.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Where the rent is calculated with reference to the project costs or by some other methodology, the Tenant will be concerned to ensure that there is a cap on its liability. The Tenant may also require that the project costs be certified by an independent cost consultant.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Often the rent is discounted at the beginning of the term with such discounts amortised over the remainder of the term. This practice recognises that it takes some time for the school or other educational facility to attract students and therefore improves the Tenant’s cash flows until such time as the school or other educational facility is established in the market.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Appointment of contractors</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">How will the consultants and contractors undertaking the designs and works be appointed? Will mutual agreement be required? One option is for the parties to agree a short-list or pre-agree contractors and consultants whom the owner may engage. Alternatively, will there be a tender process and if yes, how will that be conducted and what role will the Tenant play in selecting the preferred tender? Will the Tenant have the right to approve the terms of the third party contracts?</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Development of detailed designs and construction drawings</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Ideally, detailed designs and specifications would be developed and attached to the contractual documents. However, often the project design is not finalised at the time when contractual documents are entered into. In those circumstances, the parties must agree on the mechanism for setting the final design requirements on which the project will be undertaken.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Variations</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Issues to consider include whether variations (by the Landlord, Tenant or both parties) will be permitted once the final designs and specifications are settled. If variations are permitted, what parameters or processes will apply to determine whether the variation will be implemented and on what grounds may a variation be refused (and the grounds of refusal may differ depending on which party is approving the variation). For example, where a variation would result in a material delay to the works program or result in a material increase in project costs, one party may be entitled to withhold its approval.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Retention of a specialist consultant by the tenant</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Unless the Tenant retains specialist architects and/or engineers in house, it is recommended that the Tenant obtain its own architectural and/or engineering consulting firm throughout the design, construction and handover phases of the project. The Tenant’s consultant may assist with the following tasks:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">ensuring the design brief meets the Tenant’s and any regulator’s requirements;</li>\r\n 	<li dir=\"LTR\">where permitted under the contractual documentation, consulting with the Landlord on the appointment of any contractor or sub-contractor;</li>\r\n 	<li dir=\"LTR\">supervising the contractor and sub-contractors to ensure they are meeting the design brief;</li>\r\n 	<li dir=\"LTR\">assessing any requests from the Landlord or the Tenant to make variations and evaluating the cost of such variations;</li>\r\n 	<li dir=\"LTR\">cost consulting; and</li>\r\n 	<li dir=\"LTR\">assessing whether milestones are met and whether the school is ready for handover.</li>\r\n</ul>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Independent Experts</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">If disputes arise during the process, this could lead to delays in completing or the handover of the project, particularly where the disputes may be of a technical nature.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Whilst each party having its own consultant engaged may reduce the likelihood of disputes, it will not remove the risk completely as it remains possible that the respective parties’ consultants will disagree.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In these circumstances, it can be useful to have an independent consultant appointed to mediate and determine such disputes as an expert.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Documentation</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Transaction documents from a Tenant’s perspective would typically include an agreement to lease and the occupational lease. Where acting for the Landlord, ground lease, financing, construction and development management documentation may be required.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The terms of the occupational lease are often critical, particularly given that the parties generally require a long-term arrangement. The parties should accordingly consider carefully the maintaining and repairing obligations and obligations for other outgoings, taxation issues, rent reviews, reinstatement obligations and insurance as well as the other usual Landlord and Tenant considerations.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Obligations in relation to registration of leases and any resulting registration fees should also be considered.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\"></h3>\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Build to suit arrangements are not the only option for private school or educational institutions when setting up operations however they provide a useful option from, both the Landlord’s and the educational institutions perspective.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Readers will appreciate that there are a large number of issues to be considered prior to entering into build to suit projects and the above snapshot is by no means exhaustive. However, ensuring that the parties have a clear understanding and agreed position on these types of issues goes a long way to ensuring a successful project.</p>\r\n\r\n<em>Al Tamimi &amp; Company’s, <a href=\"https://www.tamimi.com/lawyer/jeremy-scott/\">Jeremy Scott</a>, regularly advises on various <a href=\"https://www.tamimi.com/practice/real-estate/\">real estate matters</a> in the UAE and other countries in the GCC. For further information please contact Jeremy Scott (<a href=\"mailto:j.scott@tamimi.com\">j.scott@tamimi.com</a>).</em>|<img class=\"aligncenter size-full wp-image-8249\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_21_Image_0002.jpg\" alt=\"\" width=\"1121\" height=\"337\" />\r\n<p dir=\"LTR\" align=\"LEFT\">Collaborating with a land owner, ground lease owner or developer (\"Landlords\") to lease a ‘build to suit’ school or other educational facility is becoming an increasingly popular means for educational facility operators (\"Tenants\") to meet their premises requirements in the UAE and broader region.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">What is a build to suit arrangement?</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In simple terms, a build to suit arrangement comprises the following elements:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">a Landlord who is prepared to undertake the construction of the educational facility provided they have a long term Tenant;</li>\r\n 	<li dir=\"LTR\">a Tenant being a school or other educational institution provider who wishes to enter into a long term lease of an educational facility; and</li>\r\n 	<li dir=\"LTR\">in many instances financial institutions who may be prepared to finance the Landlord in constructing the educational facility on the basis that, once built, the Landlord will have the revenue streams under the long term lease.</li>\r\n</ul>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Why build to suit?</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Private school operators or other educational institutions would prefer not to undertake the significant capital outlay required to acquire an interest in land and construct their own premises.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In addition, developers and other investors have an appetite for singly owned and tenanted real estate assets with tenants who will take over the full operation and maintenance of the facility.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Part of what makes build to suit arrangements so attractive, is that they are inherently flexible in their scope and structure. Parties can readily adapt the commercial arrangement to reach a mutually agreeable position on both the development and leasing aspects.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The pre-leasing aspect may also enable the Landlord to obtain finance for the project.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Accordingly, completing an education facility on a build to suit basis represents a win-win for operators, developers and investors. That said to avoid disputes arising at a later stage, build-to-suit projects can present a number of complexities that warrant careful consideration prior to entering into the relevant contractual documentation.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">What are the key legal elements of a build to suit transaction?</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">While a detailed discussion of the issues and risk points is beyond the scope of this article, the following discussion points provide a high-level overview of the key legal elements to consider in a build to suit transaction:</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Due diligence on the land plot</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">The parties should ensure that the land is appropriate for the proposed development. This may include considerations such as: ensuring the plot has appropriate planning and other regulatory approvals; ensuring the physical layout of the plot is suitable for the proposed designs; ensuring proximity to necessary infrastructure and utilities; confirming sufficient permitted GFA; licensing and free zone considerations; and other operational and design issues.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">From a commercial perspective, the location of the plot will also be important, as patrons of a school or other educational facility will generally want this to be proximate to or easily accessible from their residence. Competitor schools in or planned for the locality may also be a consideration.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Scope of works</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">A lack of clarity in the scope of the works is one of the key issues giving rise to disputes. As the rent and other obligations are often struck based on what the owner is expecting to deliver and what the tenant is expecting to receive (and the associated costs), aligning the parties expectations is key to minimising risk.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">To mitigate this risk, the parties should develop a clear scope of work at the outset. The parties should consider what plant and equipment is included in the scope of work, and whether the premises will be delivered in \"turn-key\" condition with all fit out installed as well as the extent to which equipment, furniture is included.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In the context of a school or other educational facility, the design may have to meet the requirements of the regulators such as the Dubai Knowledge and Human Development Authority. In addition, many operators will have their own design requirements. It is recommended that, unless the Tenant has such capabilities in-house, the Tenant engage suitable consultants to prepare a detailed technical brief addressing such matters as design requirements, structural loads, utility capacities and regulatory requirements. The detailed technical brief should be attached to the final agreement giving clarity to both the Landlord and Tenant as to key specifications required.</p>\r\n&nbsp;\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"Part of what makes build to suit arrangements so attractive, is that they are inherently flexible in their scope and structure. Parties can readily adapt the commercial arrangement to reach a mutually agreeable position on both the development and leasing aspects.\"</h2>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Milestones and longstop dates</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Will the owner be required to achieve completion of stages of the relevant works by milestone dates, or to procure completion of the project prior to a longstop date? If one or both of these requirements apply, what are the consequences of the Landlord failing to adhere to the relevant dates? Are delay damages payable, or does failure to meet milestone or long stop dates give rise to a right for the Tenant to terminate the agreements?</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In education projects, the date of completion can be critical as failure to achieve completion by a certain date could result in missing the window for enrolments for an entire year.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Calculation of rent</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">How will the rent payable under the lease be determined? Considerations may include whether there will there be a base/ground rent component payable for the land.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Where the rent (or a component of the rent) is to be calculated against the project costs incurred by the owner, what costs are included/excluded for the purpose of making that calculation? Examples of common exclusions are the owner’s cost of acquiring the land (if applicable), the owner’s cost of financing the construction and the cost of delivering infrastructure to the boundary of the plot.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Where the rent is calculated with reference to the project costs or by some other methodology, the Tenant will be concerned to ensure that there is a cap on its liability. The Tenant may also require that the project costs be certified by an independent cost consultant.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Often the rent is discounted at the beginning of the term with such discounts amortised over the remainder of the term. This practice recognises that it takes some time for the school or other educational facility to attract students and therefore improves the Tenant’s cash flows until such time as the school or other educational facility is established in the market.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Appointment of contractors</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">How will the consultants and contractors undertaking the designs and works be appointed? Will mutual agreement be required? One option is for the parties to agree a short-list or pre-agree contractors and consultants whom the owner may engage. Alternatively, will there be a tender process and if yes, how will that be conducted and what role will the Tenant play in selecting the preferred tender? Will the Tenant have the right to approve the terms of the third party contracts?</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Development of detailed designs and construction drawings</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Ideally, detailed designs and specifications would be developed and attached to the contractual documents. However, often the project design is not finalised at the time when contractual documents are entered into. In those circumstances, the parties must agree on the mechanism for setting the final design requirements on which the project will be undertaken.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Variations</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Issues to consider include whether variations (by the Landlord, Tenant or both parties) will be permitted once the final designs and specifications are settled. If variations are permitted, what parameters or processes will apply to determine whether the variation will be implemented and on what grounds may a variation be refused (and the grounds of refusal may differ depending on which party is approving the variation). For example, where a variation would result in a material delay to the works program or result in a material increase in project costs, one party may be entitled to withhold its approval.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Retention of a specialist consultant by the tenant</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Unless the Tenant retains specialist architects and/or engineers in house, it is recommended that the Tenant obtain its own architectural and/or engineering consulting firm throughout the design, construction and handover phases of the project. The Tenant’s consultant may assist with the following tasks:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">ensuring the design brief meets the Tenant’s and any regulator’s requirements;</li>\r\n 	<li dir=\"LTR\">where permitted under the contractual documentation, consulting with the Landlord on the appointment of any contractor or sub-contractor;</li>\r\n 	<li dir=\"LTR\">supervising the contractor and sub-contractors to ensure they are meeting the design brief;</li>\r\n 	<li dir=\"LTR\">assessing any requests from the Landlord or the Tenant to make variations and evaluating the cost of such variations;</li>\r\n 	<li dir=\"LTR\">cost consulting; and</li>\r\n 	<li dir=\"LTR\">assessing whether milestones are met and whether the school is ready for handover.</li>\r\n</ul>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Independent Experts</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">If disputes arise during the process, this could lead to delays in completing or the handover of the project, particularly where the disputes may be of a technical nature.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Whilst each party having its own consultant engaged may reduce the likelihood of disputes, it will not remove the risk completely as it remains possible that the respective parties’ consultants will disagree.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In these circumstances, it can be useful to have an independent consultant appointed to mediate and determine such disputes as an expert.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Documentation</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Transaction documents from a Tenant’s perspective would typically include an agreement to lease and the occupational lease. Where acting for the Landlord, ground lease, financing, construction and development management documentation may be required.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The terms of the occupational lease are often critical, particularly given that the parties generally require a long-term arrangement. The parties should accordingly consider carefully the maintaining and repairing obligations and obligations for other outgoings, taxation issues, rent reviews, reinstatement obligations and insurance as well as the other usual Landlord and Tenant considerations.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Obligations in relation to registration of leases and any resulting registration fees should also be considered.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\"></h3>\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Build to suit arrangements are not the only option for private school or educational institutions when setting up operations however they provide a useful option from, both the Landlord’s and the educational institutions perspective.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Readers will appreciate that there are a large number of issues to be considered prior to entering into build to suit projects and the above snapshot is by no means exhaustive. However, ensuring that the parties have a clear understanding and agreed position on these types of issues goes a long way to ensuring a successful project.</p>\r\n<em>Al Tamimi &amp; Company’s, <a href=\"https://www.tamimi.com/lawyer/jeremy-scott/\">Jeremy Scott</a>, regularly advises on various <a href=\"https://www.tamimi.com/practice/real-estate/\">real estate matters</a> in the UAE and other countries in the GCC. For further information please contact Jeremy Scott (<a href=\"mailto:j.scott@tamimi.com\">j.scott@tamimi.com</a>).</em>'),
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(306940, 29300, 'PostID', '8198'),
(306941, 29300, 'PostTitle', 'Build to Suit Education Projects'),
(306942, 29300, 'PostStatus', 'publish'),
(306943, 29300, 'PostType', 'law_update_articles'),
(306944, 29300, 'PostDate', '2018-09-04 07:39:01'),
(306945, 29300, 'PostUrl', 'https://www.tamimi.com/law-update-articles/build-to-suit-education-projects/'),
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(306948, 29300, 'MetaValueNew', '<img class=\"aligncenter size-full wp-image-8249\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_21_Image_0002.jpg\" alt=\"\" width=\"1121\" height=\"337\" />&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Collaborating with a land owner, ground lease owner or developer (\"Landlords\") to lease a ‘build to suit’ school or other educational facility is becoming an increasingly popular means for educational facility operators (\"Tenants\") to meet their premises requirements in the UAE and broader region.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">What is a build to suit arrangement?</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In simple terms, a build to suit arrangement comprises the following elements:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">a Landlord who is prepared to undertake the construction of the educational facility provided they have a long term Tenant;</li>\r\n 	<li dir=\"LTR\">a Tenant being a school or other educational institution provider who wishes to enter into a long term lease of an educational facility; and</li>\r\n 	<li dir=\"LTR\">in many instances financial institutions who may be prepared to finance the Landlord in constructing the educational facility on the basis that, once built, the Landlord will have the revenue streams under the long term lease.</li>\r\n</ul>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Why build to suit?</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Private school operators or other educational institutions would prefer not to undertake the significant capital outlay required to acquire an interest in land and construct their own premises.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In addition, developers and other investors have an appetite for singly owned and tenanted real estate assets with tenants who will take over the full operation and maintenance of the facility.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Part of what makes build to suit arrangements so attractive, is that they are inherently flexible in their scope and structure. Parties can readily adapt the commercial arrangement to reach a mutually agreeable position on both the development and leasing aspects.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The pre-leasing aspect may also enable the Landlord to obtain finance for the project.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Accordingly, completing an education facility on a build to suit basis represents a win-win for operators, developers and investors. That said to avoid disputes arising at a later stage, build-to-suit projects can present a number of complexities that warrant careful consideration prior to entering into the relevant contractual documentation.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">What are the key legal elements of a build to suit transaction?</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">While a detailed discussion of the issues and risk points is beyond the scope of this article, the following discussion points provide a high-level overview of the key legal elements to consider in a build to suit transaction:</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Due diligence on the land plot</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">The parties should ensure that the land is appropriate for the proposed development. This may include considerations such as: ensuring the plot has appropriate planning and other regulatory approvals; ensuring the physical layout of the plot is suitable for the proposed designs; ensuring proximity to necessary infrastructure and utilities; confirming sufficient permitted GFA; licensing and free zone considerations; and other operational and design issues.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">From a commercial perspective, the location of the plot will also be important, as patrons of a school or other educational facility will generally want this to be proximate to or easily accessible from their residence. Competitor schools in or planned for the locality may also be a consideration.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Scope of works</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">A lack of clarity in the scope of the works is one of the key issues giving rise to disputes. As the rent and other obligations are often struck based on what the owner is expecting to deliver and what the tenant is expecting to receive (and the associated costs), aligning the parties expectations is key to minimising risk.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">To mitigate this risk, the parties should develop a clear scope of work at the outset. The parties should consider what plant and equipment is included in the scope of work, and whether the premises will be delivered in \"turn-key\" condition with all fit out installed as well as the extent to which equipment, furniture is included.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In the context of a school or other educational facility, the design may have to meet the requirements of the regulators such as the Dubai Knowledge and Human Development Authority. In addition, many operators will have their own design requirements. It is recommended that, unless the Tenant has such capabilities in-house, the Tenant engage suitable consultants to prepare a detailed technical brief addressing such matters as design requirements, structural loads, utility capacities and regulatory requirements. The detailed technical brief should be attached to the final agreement giving clarity to both the Landlord and Tenant as to key specifications required.</p>\r\n&nbsp;\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"Part of what makes build to suit arrangements so attractive, is that they are inherently flexible in their scope and structure. Parties can readily adapt the commercial arrangement to reach a mutually agreeable position on both the development and leasing aspects.\"</h2>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Milestones and longstop dates</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Will the owner be required to achieve completion of stages of the relevant works by milestone dates, or to procure completion of the project prior to a longstop date? If one or both of these requirements apply, what are the consequences of the Landlord failing to adhere to the relevant dates? Are delay damages payable, or does failure to meet milestone or long stop dates give rise to a right for the Tenant to terminate the agreements?</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In education projects, the date of completion can be critical as failure to achieve completion by a certain date could result in missing the window for enrolments for an entire year.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Calculation of rent</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">How will the rent payable under the lease be determined? Considerations may include whether there will there be a base/ground rent component payable for the land.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Where the rent (or a component of the rent) is to be calculated against the project costs incurred by the owner, what costs are included/excluded for the purpose of making that calculation? Examples of common exclusions are the owner’s cost of acquiring the land (if applicable), the owner’s cost of financing the construction and the cost of delivering infrastructure to the boundary of the plot.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Where the rent is calculated with reference to the project costs or by some other methodology, the Tenant will be concerned to ensure that there is a cap on its liability. The Tenant may also require that the project costs be certified by an independent cost consultant.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Often the rent is discounted at the beginning of the term with such discounts amortised over the remainder of the term. This practice recognises that it takes some time for the school or other educational facility to attract students and therefore improves the Tenant’s cash flows until such time as the school or other educational facility is established in the market.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Appointment of contractors</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">How will the consultants and contractors undertaking the designs and works be appointed? Will mutual agreement be required? One option is for the parties to agree a short-list or pre-agree contractors and consultants whom the owner may engage. Alternatively, will there be a tender process and if yes, how will that be conducted and what role will the Tenant play in selecting the preferred tender? Will the Tenant have the right to approve the terms of the third party contracts?</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Development of detailed designs and construction drawings</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Ideally, detailed designs and specifications would be developed and attached to the contractual documents. However, often the project design is not finalised at the time when contractual documents are entered into. In those circumstances, the parties must agree on the mechanism for setting the final design requirements on which the project will be undertaken.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Variations</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Issues to consider include whether variations (by the Landlord, Tenant or both parties) will be permitted once the final designs and specifications are settled. If variations are permitted, what parameters or processes will apply to determine whether the variation will be implemented and on what grounds may a variation be refused (and the grounds of refusal may differ depending on which party is approving the variation). For example, where a variation would result in a material delay to the works program or result in a material increase in project costs, one party may be entitled to withhold its approval.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Retention of a specialist consultant by the tenant</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Unless the Tenant retains specialist architects and/or engineers in house, it is recommended that the Tenant obtain its own architectural and/or engineering consulting firm throughout the design, construction and handover phases of the project. The Tenant’s consultant may assist with the following tasks:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">ensuring the design brief meets the Tenant’s and any regulator’s requirements;</li>\r\n 	<li dir=\"LTR\">where permitted under the contractual documentation, consulting with the Landlord on the appointment of any contractor or sub-contractor;</li>\r\n 	<li dir=\"LTR\">supervising the contractor and sub-contractors to ensure they are meeting the design brief;</li>\r\n 	<li dir=\"LTR\">assessing any requests from the Landlord or the Tenant to make variations and evaluating the cost of such variations;</li>\r\n 	<li dir=\"LTR\">cost consulting; and</li>\r\n 	<li dir=\"LTR\">assessing whether milestones are met and whether the school is ready for handover.</li>\r\n</ul>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Independent Experts</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">If disputes arise during the process, this could lead to delays in completing or the handover of the project, particularly where the disputes may be of a technical nature.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Whilst each party having its own consultant engaged may reduce the likelihood of disputes, it will not remove the risk completely as it remains possible that the respective parties’ consultants will disagree.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In these circumstances, it can be useful to have an independent consultant appointed to mediate and determine such disputes as an expert.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Documentation</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Transaction documents from a Tenant’s perspective would typically include an agreement to lease and the occupational lease. Where acting for the Landlord, ground lease, financing, construction and development management documentation may be required.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The terms of the occupational lease are often critical, particularly given that the parties generally require a long-term arrangement. The parties should accordingly consider carefully the maintaining and repairing obligations and obligations for other outgoings, taxation issues, rent reviews, reinstatement obligations and insurance as well as the other usual Landlord and Tenant considerations.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Obligations in relation to registration of leases and any resulting registration fees should also be considered.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\"></h3>\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Build to suit arrangements are not the only option for private school or educational institutions when setting up operations however they provide a useful option from, both the Landlord’s and the educational institutions perspective.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Readers will appreciate that there are a large number of issues to be considered prior to entering into build to suit projects and the above snapshot is by no means exhaustive. However, ensuring that the parties have a clear understanding and agreed position on these types of issues goes a long way to ensuring a successful project.</p>\r\n<em>Al Tamimi &amp; Company’s, <a href=\"https://www.tamimi.com/lawyer/jeremy-scott/\">Jeremy Scott</a>, regularly advises on various <a href=\"https://www.tamimi.com/practice/real-estate/\">real estate matters</a> in the UAE and other countries in the GCC. For further information please contact Jeremy Scott (<a href=\"mailto:j.scott@tamimi.com\">j.scott@tamimi.com</a>).</em>');
