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(98745, 5365, 'content', 'April 2016\r\n\r\n<hr />\r\n\r\nSustainability, fairness and competitiveness. These are the pillars which lie at the heart of the Bahrain Economic vision 2030 (“Bahrain Vision”) - a vision that has sparked a subsequent stream of on-going economic and institutional reforms since its launch in 2008. Bahrain’s economy has enjoyed significant prosperity over the last few decades: real GDP growth at 4.5% (2014), direct foreign investment and a thriving financial sector are just a few of several contributing factors linked to its economic success. However, a key area of focus within the national strategy is diversification. Bahrain’s status as a ‘regional pioneer’ has spanned almost a century. As  the first GCC State to start an economic diversification strategy that favoured non-oil industries in the 60’s, the Kingdom was also, historically, the first  to establish a Chamber of Commerce and a banking sector, to introduce democratic reforms and, most recently, allow Parliament to amend the state budget- to name but a few.  Bahrian continues to shift to a productive and globally competitive economy, inherently shaped by the government and facilitated through a booming private sector.\r\n\r\nSince gaining independence in 1971, Bahrain has continued to steadily develop into a modern state with organised political, administrative and legal institutions. In a world that is increasingly interconnected, it cannot be denied that there is a constant spill-over effect that comes into play when assessing economic, legislative and social policies. The Bahrain Vision is simply another means by which the Kingdom will continue its growth and expansion into the future.\r\n\r\nBahrain’s on-going ascendancy into becoming an essential international player can be evidenced by observing its willingness to ensure that legislation is constantly being altered and transformed so that it is in line with its global counterparts. This is an important component promulgated by the Bahrain Vision, which sets ambitious targets to secure the Kingdom’s future.\r\n\r\nThis article will explore some key legislative changes that were implemented with this comprehensive vision in mind.\r\n\r\n<strong>Electronic Transactions Law - Gateway into the Esoteric</strong>\r\n\r\nGiven that the majority of business and administrative tasks (and increasingly, even social interactions) are conducted online, the introduction of Legislative Decree No. 28 of 2002 with respect to Electronic Transactions (the “E-Transactions Law”), placed Bahrain on an international platform that is in keeping with the constantly evolving zeitgeist of the time.\r\n\r\nThe E-Transactions Law governs the vast obscure abyss that is the web; debates surrounding the notorious difficulties in regulating this area remain highly relevant to this day. However, the technological revolution has undoubtedly played a key role in speeding up arduous procedural transactions that are now largely conducted online, thereby significantly cutting both time and costs. The E-Transactions Law extensively covers all areas, from the legal recognition of electronic records to the formalities surrounding the formation and receipt of contracts online. Article 24 also creates a severe penalty for cyber crime or fraudulent behaviour, to act as a powerful deterrent for such acts: for instance, a person who intentionally creates, publishes, alters or otherwise uses a certificate or an electronic signature for a fraudulent or other unlawful purpose, is liable to imprisonment for a term of up to 10 years, and a maximum fine of  BD100,000 (or either penalty).\r\n\r\n<strong>The Labour Law - Empowering Women and Workers with a Voice</strong>\r\n\r\nThe Labour Law for the Private Sector Legislative (Decree No.36 of 2012) (the “New Labour Law”) came into effect in September 2012, and repeals and replaces the old Labour Law for the Private Sector (No.23 of 1976 (the “Old Law”).\r\n\r\nThe negligible increase in the real income of the average Bahraini has, over the last decade, progressively become a cause for concern, and an undesirable trend that has hindered the evolution of Bahrain’s Vision. As a result, the New Labour Law heralded the introduction of much sought-after legislative amendments. Particularly worthy of praise is the recognition of the rights of domestic staff (including gardeners, cooks and drivers) in Bahrain. Such employees are now hired on a contractual basis, and in many respects receive the same legal status as their private-sector employed counterparts. This amendment is aimed at addressing the issue of human trafficking, and has laid the foundations for future reform - given that the New Labour Law does not include basic protections such as weekly rest days, a minimum wage and limits on working hours, legislation exclusively protecting the rights of domestic staff (such as in Kuwait), which we understand is currently being considered.\r\n\r\nHowever, despite its overall commendable reformative precept, the New Labour Law has also been met with a healthy amount of scepticism - from employers and employees alike. With regards to the latter, perhaps one of the greatest shortcomings of this piece of legislation is its near silence on minimum wage requirements. Instead, under Part 6, wages are defined as “the total remuneration payable in cash or in kind to an employee under an employment contract”, and includes additional increments, gratuity payments and allowances, if any. Article 16 alludes to the acceptance of minimum wage, yet the topic is one that remains shrouded by ambiguity and ought to be included in future reforms).\r\n\r\nThe New Labour Law has also introduced further recognition of women’s rights, resulting in the increase in the period of maternity leave to 60 days. Female employees have also been given the right to take up to six months without pay, up to three times throughout her period of service with the employer for the purposes of caring for her child if the child is under six years of age. The right of women to undertake more manual forms of labour has also been extended.\r\n\r\nProvisions in relation to non-discriminatory practices are also covered. For instance, Article 39 strictly prohibits wage discrimination whether based on sex, ethnicity, language, religion or belief.\r\n\r\nAn expedited resolution for labour disputes has also been introduced (set out in Part Thirteen of the New Labour Law) which under the 1976 legislation took up to four or five years to resolve through the courts. Compensation calculations for unfair dismissal cases, based on the form of employment contract in question, have also been implemented.\r\n\r\nAdditionally, and in line with the Bahrainisation strategy whereby employers are required to give priority to Bahraini nationals when looking to hire, the New Labour Law states that companies may not terminate a Bahraini employment contract in favour of keeping a foreign employee if both have the same qualifications.\r\n\r\nBy attempting to create an environment of greater transparency, accountability and establishing anti-discriminatory safeguards, the New Labour Law is an additional component that will create a large impact in bolstering the Bahrain Vision guiding principles.\r\n\r\n<strong>Consumer Protection - Promoting an Ethos of Fairness and Honesty</strong>\r\n\r\nIn keeping with the aim to honour sustainability, fairness and competitiveness, consumer protection laws were recently stepped up in late 2012 with Law No 35 of 2012. Bahrain’s Ministry of Industry and Commerce (“MOIC”) now has the right to assign inspectors to scrutinise documents provided by merchants on new products that are to be introduced in the market.\r\n\r\nThe law also allows for inspection of shops and businesses on a regular basis to check existing products.\r\n\r\nInspectors with judicial authority will also have the right to take action on violations committed by businesses after substantial evidence has been provided or through random inspections.\r\n\r\nThe protection of consumers promotes an atmosphere of fairness within an effective legislative framework. Such an environment will play a prominent role in consumer transactions and have a trickle-down effect in accordance with the Bahrain Vision.\r\n\r\n<strong>The Commercial Companies Law - Transforming Bahrain One Investment at a Time</strong>\r\n\r\nOne of the main principles which Bahrain’s Vision is guided by is the principle of competitiveness. Bahrain aims to attain a high level of competitiveness in a global economy. A competitive market is one which combines high quality with increased productivity. In line with this concept, the government of Bahrain aims to attract both local and foreign companies to invest in the Kingdom by offering several attractive incentives to high value-add industries that want to do business in the region as a whole, and in Bahrain specifically. Attractive aspects of doing business in Bahrain include the quality of public services, a well developed infrastructure, and an appealing living environment.\r\n\r\nLegislative Decree No. 50 of 2014 amending the Commercial Companies Law (the “New Companies Law”) introduced a number of significant changes that are more aligned with the principle of competitiveness. For instance Article 3 of the New Companies Law crucially replaces all references to ‘60 days’ in the old law with ‘15 days’, super charging a previously slow procedural practice. For example, when converting a company’s form, a resolution must be passed to amend the company’s Memorandum and Articles of Association to reflect the same. The Commercial Companies Law No 21of 2001 (the “Old Companies Law”) provided that such resolution shall not be effective before the lapse of 60 days from the date of its publication in the Official Gazette and in at least one of the local daily newspapers. Under the New Law, this period is now reduced to 15 days,  a clear attempt to expedited process of conversion of a company’s form.\r\n\r\nIn order to facilitate and incentivise foreign investment in the Kingdom, Article 64 of the Old Companies Law, which required 100% of shareholders in a joint public stock company to be of Bahraini nationality, has been repealed. This has opened up the Bahrain Bourse to foreign investment. However, it is noteworthy that MOIC still applies certain (albeit limited) policies favouring Bahraini (and GCC) investors  over foreign investors. For example, as in other GCC States, there remain specific restrictions on foreigners in relation to certain commercial activities which they may undertake (e.g. export and import). Trading stock and share restrictions under Article 65 of the previous law, which limited dealings of existing shares with any potential new shareholders in closed joint-stock companies for a three year period, have also been repealed. These changes are, again, in harmony with the key tenets underpinning the Bahrain Vision.\r\n\r\nThe New Companies Law further amends Article 347 of the Old Companies Law. Branches of foreign entities no longer require a Bahraini sponsor to set up in Bahrain. Previously, branches of foreign companies had to be guaranteed either by a Bahraini sponsor, or by the parent company (head office), or by way of bank guarantee (Article 348 of the Old Companies Law). The New Companies Law has relaxed this requirement, and now foreign branches may provide a guarantee by way of a letter from the foreign company’s head office, coupled with a copy of the parent’s constitutional documents and audited financial statements.\r\n\r\nFurthermore, a new amendment which became effective in 2016 provides that the incorporation of a company with a limited liability (‘WLL’) no longer requires the minimum capital of BHD 20,000 (USD 53,000). Instead, the shareholders can now jointly agree on the sum of the capital provided that it is sufficient to achieve the objectives of the company. Additionally, the capital must be divided proportionately pro-rata amongst the shareholders. The shares’ value must not be less than BHD 50 (USD 130). Moreover, amendments to the required start-up capital have also been made in relation to the minimum required share capital of a Single Person Company (“SPC”). Previously an SPC’s minimum capital requirement was BHD 50,000 (USD 130,000). Under the new provisions, the minimum capital requirement for an SPC is BHD 50 only.\r\n\r\nAnother significant amendment to the Old Companies Law is the introduction of “shelf companies” (amendment No 28 of 2015 of the Companies Law), being companies created but then ‘left on the shelf’ until sold later to a person who wishes to create a company but does not wish to go through the creation process. This is the first time such corporate forms have been made available in any GCC country. It is noteworthy that the amendment provided above has been issued, but is now pending ratification by the parliament since it was passed when the parliament was not in session.\r\n\r\nRecently, Bahrain has been the first in the GCC to adopt the International Standard Industrial Classification of All Economic Activities (“ISIC”) Rev. 4. The standards are developed by the Department of Economic and Social Affairs of the United Nations Secretariat. This has resulted in key changes to the organization and structure of the available commercial business activities (as set out by the Ministry of Industry and Commerce) within the Kingdom. As of April 2016, not only have the activities become simplified, but restrictive practices have also been relaxed or in some cases entirely removed. For instance, certain activities once exclusively reserved for Bahrainis and GCC citizens, have now opened up for foreign ownership - a welcomed change that can only be seen as progressive for the region.\r\n\r\n<strong>Bahrain’s Property Law - Building Prosperity From The Ground Up</strong>\r\n\r\nBahrain has recently introduced a string of measures designed to regulate its property development industry and to ultimately restore investor confidence in the real estate sector - an objective critical to the development of a country. Law No. 28 of 2014 on Real Estate Development (the “Real Estate Law”) sets out the overall framework of this new regulatory regime. The Real Estate Law includes provisions for establishment of a real estate regulatory body. An Executive Regulation (the “Regulation”) issued under the Law in May this year sets out the functions of the new regulator. The Regulation operates at two levels: it regulates both the developer, and the individual projects undertaken by the same developer.\r\n\r\nIn alliance with Bahrain’s Vision, it is important to note that this new suite of legislative changes, of which both the Real Estate Law and the Regulation are important elements, is a clear demonstration of the Bahrain government’s long-term commitment to making Bahrain’s real estate sector both attractive and transparent for developers and purchasers.\r\n\r\nPrivate Health Institutions- The True Measure Of Economic And Social Success\r\n\r\nThe New Private Health Institutions Law (No.21 of 2015) (the “New Health Law”) offers a wider scope of application than the previous law in this area, as it introduces a change in terminology. Under the New Health Law, it is not only private hospitals that are regulated (as was the case previously) but rather all private health institutions of any size, shape or form, including hospitals, clinics, and medical complexes. The government’s drive to develop transparent policies is in line with the Bahrain Vision.\r\n\r\nThe New Health Law introduces the National Health Regulatory Authority (“NHRA”). The categorisation of private health institutions and licensing requirements and procedures will all be determined by a resolution of the NHRA’s board of directors. The NHRA has the duty to monitor medical services provided by health institutions and to ensure that said services are in compliance with the quality standards and key performance indicators issued by NHRA’s board of directors’ decisions. Said standards are usually in line with international medical standards. Additionally, NHRA has the duty to perform general and thorough revisions and assessments on the performance and quality of the services provided by private health institutions and to ensure that all activities are in accordance with the action plan set out by NHRA’s board of directors.\r\n\r\nThe New Health Law widens the authority of NHRA inspectors by granting them certain quasi-judicial powers. Inspectors are allowed to inspect files, medical records, documents, charts and all other required information available at the private health institution and may obtain copies of the relevant information. The inspectors are now appointed by the Minster of Justice and are exercising their roles in relation to criminal acts (as specified in Article 25 of the New Health Law).\r\n\r\n<strong>Anti-Bribery- Holding Private Individuals Accountable </strong>\r\n\r\nFebruary 2013 saw a new addition to the anti-bribery laws contained within the Bahrain Penal Code ( “Penal Code”) which had previously covered the public sector alone. Law No. 1 of 2013 with Respect to Amending Certain Provisions of the Penal Code, promulgated by Legislative Decree No. 15 of 1976 (the “Amendment”), criminalises bribery in the private sector. In an unprecedented move toward corporate transparency and individual liability, the class of persons subject to the sanctions has been widened to include, but is not limited to, private corporate persons, boards of directors, boards of trustees, chairmen, deputy chairmen and all members of the board irrespective of designation or formation. The sanctions themselves are in several cases more severe than those proscribed for the public sector. Furthermore, a new agency, The Anti-Corruption Authority, is in the process of being formed. Its responsibilities will include the investigation and prosecution of offences related to corruption and bribery. Moreover, as a part of the Ministry of Interior’s strategy to combat corruption, the National Anti- Corruption Campaign (launched in June 2014) was an undertaking aimed at enhancing awareness on the effect of unscrupulous practices on society,\r\n\r\n<strong>Arbitration Law - Ensuring fairness and Transparency in Dispute Resolution</strong>\r\n\r\nThe Arbitration Law No.9 of 2015 (the “New Arbitration Law”) is considered a leap in Bahrain’s arbitration history. The New Arbitration Law provides that the UNCITRAL Model law on International Commercial Arbitration (the “UNCITRAL Law”) applies to all arbitration cases regardless of their legal status, whether or not the arbitration is being held inside or outside of Bahrain, whether one of the parties is subject to the laws of Bahrain, and regardless of  the legal relationship between the parties.\r\n\r\nA new addition has been introduced in Article 6 of the New Arbitration Law which provides that non-Bahraini lawyers may represent any party to a dispute in any international commercial arbitration that is conducted in Bahrain. This is significant and in line with the principles of fairness and the right of parties to choose their own legal representatives.\r\n\r\n<strong>In Conclusion</strong>\r\n\r\nThe last 12 months have been critical for Bahrain’s future and development. The significant drop in global oil prices (and their subsequent rise locally) has highlighted the Kingdom’s continued reliance on its oil revenue, and the increasing importance of shifting its main source of national income elsewhere. Continuing to issue and amend legislation that can work hand-in-hand with an over-arching economic vision is perhaps the key to Bahrain’s success. By placing focus on the strengthening of trust and confidence in our free market economy, the ripple effect of foreign investment, an increased local workforce and continued emphasis on the rights of workers, may be felt in all areas of Bahraini life.\r\n\r\n&nbsp;'),
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(98734, 5364, 'content', 'April 2016\r\n\r\n<hr />\r\n\r\n<strong>Can you give a brief overview about how Law Update started? </strong>\r\n\r\n25 years ago, we were a very small law firm. There was myself, a secretary, office admin and two assistant local lawyers and we mainly focused on litigation. I was, at the time, wearing two hats; one working with Clifford Chance and one handling my local advocacy before the Courts.\r\n\r\nAt the time, there was one legal newsletter, in English, that was circulated among the small legal community in Dubai, with updates about what was happening in terms of laws, regulations, draft laws and so on.\r\n\r\nHowever, the newsletter had no updates about judgments, and I felt that it would be extremely useful for the community to have updates, in English, about laws and regulations, which included the details of our Ministers and the Cabinet, the heads of different authorities and departments, as well as three leading judgments each month that were released from the Court of Cassation.\r\n\r\nAt the time, my small team, who were at full capacity, would find the judgments for me and I would translate and summarise them, usually between 10pm and midnight when I had some free time at home. I would then bring them to my secretary on a floppy disk and we would then publish. We would print out our newsletter and send to our list of contacts, which at the time was about 50 people, and we also kept them at our reception.\r\n\r\nAlmost immediately, we received a very positive response from the expat legal community, who started asking for more and more copies, as well as from local and international universities who were hungry for information for their students.\r\n\r\nSince day one, we have not missed a single edition of our newsletter. I continued to type them up myself for over a year at the beginning, and choose the judgments that were included for a further ten years. Every time I travelled by car to Abu Dhabi or by plane abroad, I would bring around 50 judgments with me and mark and summarise them, to ensure the right information was included in our newsletters. As the firm grew, ambitious young lawyers would write articles, usually about something happening in the community, and we continued to build on our newsletter, the design, the brand, the name, and so on. The newsletter helped us build up an excellent library of judgments, and as our business development and marketing teams have expanded, our Law Update has continued to develop, to resemble what it does today. It is now one of our best marketing and information tools and I’m very proud of what we’ve achieved.\r\n\r\n<strong>What did the legal landscape look like when you started Al Tamimi over 25 years ago?</strong>\r\n\r\nThe legal landscape was very primitive with very few firms. There were only about four western firms across the UAE, a small pool of local lawyers and around three major local law firms, which predominantly focused only on litigation.\r\n\r\nThe courts were mainly Shariah courts, and civil courts only dealt with shipping and banking matters. There were very few databases available containing information on judgments, records, updates on the UAE laws and regulations.  The majority of information came from the Law Gazette, however it was not published very regularly, so the Law Update filled a huge gap there.\r\n\r\n<strong>What was your vision for the firm? </strong>\r\n\r\nMy vision for the firm has not changed at all. From day one, I have wanted to become the leading law firm in the UAE and the Middle East, offering the quality legal advice to our clients and the wider legal community.\r\n\r\n<strong>Has this vision translated into what you have created now?</strong>\r\n\r\nI am very pleased with what has been achieved so far, but we are not there yet. There are always new opportunities and new levels to reach. We have wonderful talent within the firm, very good lawyers, excellent ethics and a very high level of professionalism.  We are also well established in the UAE and across the region. As I always say to my colleagues, we are not here to set up, we are here to lead, and I want to continue to strive to be the number one firm in every jurisdiction we have a presence in.\r\n\r\nI am proud of the size of the firm we have created and the talent we have managed to attract, and also the type of partnership we have established. We are now 55 partners at the firm, with a unique and wonderful combination of minds that has helped the firm to grow. We have withstood challenges; economic and others, and during these times, we have remained true to our vision and become what we are today.\r\n\r\n<strong>What is your proudest moment in relation to Al Tamimi, and can you discuss a few of your key achievements? </strong>\r\n\r\nWe started as a small litigation advocacy firm, and we have grown to become a firm providing the full range of corporate services to clients across various practices and sectors.\r\n\r\nI am very proud that we have created such a dynamic firm, acting and representing leading multinationals on a local and regional basis.\r\n\r\n<strong>How has the legal landscape in the UAE changed over the past 25 years, and what does it look like today? </strong>\r\n\r\n25 years ago, the UAE had a small, village-type legal system, where local people learned how to do court work, drafting laws and litigation themselves. Today, the legal system in the UAE is extremely sophisticated, whether looking at the DIFC or the Abu Dhabi Global Market, and the country has grown to become a true international business hub. The UAE’s legal sector is now home to some of the best talent from around the world, specialising in a range of industries including banking, insurance, technology and more.\r\n\r\n<strong>What have been some key moments of change?</strong>\r\n\r\nA major turning point for the UAE was the opening the Jebel Ali Free Zone, which saw a lot of international businesses starting to look to Dubai and the UAE as a base for their operations. The establishment of TECOM’s free zones , such as Dubai Internet City and Dubai Media City which followed, attracted many companies operating in these sectors and of course, a highly skilled workforce to complement this. A major turning point, the DIFC, followed, which saw Dubai and the UAE become a hub for regional financial markets, and with this came the attraction of top talent and leading firms and institutions from around the world.\r\n\r\nLooking at the legal system in particular, as different companies arrived in Dubai and the UAE, an international level of legal services was required. The opening of DIFC, for example, meant different levels of laws were needed across to support this expansion, and the regulators responded which has seen the legal system operate on par with international centres. The expertise held by legislators and lawyers are also at a much higher level as a result, with over 80 international law firms operating in Dubai alone today.\r\n\r\n<strong>What do you think the legal landscape will look like in the UAE in 25 years from now?</strong>\r\n\r\nI believe we will see greater challenges, and as a result, greater opportunities. As internationals continue to focus on the UAE, the country will have to respond by further developing its legal system and policies. Whether this is relating to the role of women, human rights, labour, bilateral treaties, for example, the UAE will see that what was acceptable five years ago, will not be acceptable in 25 years from now. We therefore need a highly sophisticated legal system to support this growth and a very well designed strategy to tackle the challenges which I like to call opportunities.\r\n\r\nIn addition to this, with the growth of the digital environment, business is being conducted differently to the way it was and there will be another level of legislation required to protect this new environment – one that I don’t think any of us are able to envisage right now.\r\n\r\n<strong>What advice would you give to the business and legal community – any key tips to doing business in the region?</strong>\r\n\r\nFor the business community, my advice would be to focus on enhancing your internal corporate governance and ensuring your policies and procedures are of global standards. This is extremely important for the future. Business is changing and this requires appropriate business behaviour; sound human resources, accounting and reporting procedures, IT systems, and a very employee-friendly working environment.\r\n\r\nOn an international level, the UAE and the region provide wonderful opportunities for businesses, including tax advantages, re-export hubs, international treaties, exemption of tariffs and customs duties, and companies should take advantage of these, and look to structure themselves within the region to benefit from this.\r\n\r\nFor the legal community, we are still very short on local and regional talent. Most of the talent here is either western or western-educated, and we need to ensure that good training programmes are in place for the next generation of local lawyers. We need our law schools to be of international standard and to provide a level of education for our future lawyers and judges to be the best they can be. This is what will help us to succeed in the future. We also need to promote the legal profession to our young local students as a profession that is rewarding and attractive.'),
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(98715, 5363, 'content', 'April 2016\r\n\r\n<hr />\r\n\r\nConstruction projects in the Middle East are often procured under a single stage tender process, pursuant to which the employer issues an invitation to tender to 5 or 6 contractors for a particular project and then selects the most competitive tender, usually based on price.\r\n\r\nWhile this approach has clear and well-known benefits, it can be expensive for all concerned, encourages claims if the successful contractor has underpriced the project (which can easily occur if there was inadequate time to enable the contractor to evaluate risks) and fails to incentivise value engineering between the parties.\r\n\r\nTo address these issues, two-stage tendering is becoming more accepted in the Middle East (particularly in a design and build context) and is viewed as a real alternative to traditional procurement.\r\n\r\n<strong>Procurement Structure</strong>\r\n\r\nAs a first step to implementing a two-stage process, the employer would typically approach several contractors, on a competitive tender basis, with basic information regarding the project (i.e. an outline design) and request an indicative price (including details of each contractor’s profit, overhead and preliminaries) for the works as well as the contractor’s proposal for executing the project.\r\n\r\nFollowing receipt of this basic information, the employer will engage its preferred contractor to perform buildability services under a pre-construction agreement.\r\n\r\nUnder the pre-construction agreement, the contractor will usually work with the employer’s design team to resolve buildability issues and undertake a concept programme for the project (typically on an accelerated basis), which is usually accompanied by a ‘maximum ceiling price’.   To arrive at the maximum ceiling price, the contractor will need to obtain indicative price quotes for key subcontract packages and the maximum ceiling price should be presented on an open book basis.\r\n\r\nIf the contractor is engaged to take the lead on the design, the employer may instruct the contractor to develop a concept design into a schematic design.  However, it is important that the employer has the express right to terminate the pre-construction agreement if either the concept design or the maximum ceiling price fails to meet the approval of the employer (although a right of termination only tends to be activated following a period of unsuccessful negotiations).\r\n\r\nIf the contractor is requested to undertake the schematic design, the contractor may also be required to provide a guaranteed maximum price (also on an open book basis) for completing the project, which generally should not exceed the maximum ceiling price.\r\n\r\nAs with the concept design, the employer should have the express contractual right to terminate the pre-construction agreement if either the schematic design or the guaranteed maximum price is unacceptable to the employer.\r\n\r\n<strong>Pre-Construction Agreement   </strong>\r\n\r\nThere are no ‘standard form’ pre-construction agreements so careful bespoke drafting is required to ensure that the agreement is properly documented.\r\n\r\nAs well as the ability to terminate the pre-construction agreement at certain key points, the pre-construction agreement should also make it clear that the contractor has no expectation of being awarded the construction contract.\r\n\r\nIn the event of early termination of the pre-construction agreement, the contractor should therefore be paid for the pre-construction services performed as at the date of termination (i.e. principally for buildability and design work undertaken) but liability for such things as loss of profit, loss of expectation and loss of opportunity should be expressly excluded.\r\n\r\nIt is also important that intellectual property rights are addressed.  In short, any designs prepared by the contractor should vest in the employer or, alternatively, the employer must be granted a sufficiently broad license to freely use and develop any designs prepared by the contractor following termination of the pre-construction agreement.\r\n\r\n<strong>Conversion Mechanism</strong>\r\n\r\nIf the employer is looking to have a design and build contract, the employer will seek to engage the Contractor for the construction of the poroject under a design and build contract where the employer is satisfied with the schematic design and the guaranteed maximum price. This will enable the contractor to simultaneously undertake the detailed design and to commence the construction of the works.\r\n\r\nA guaranteed maximum pricing mechanism often provides that the employer and the contractor may share any savings (i.e. the extent to which the cost of the project is less than the guaranteed maximum price) or alternatively the contractor may be entitled to a bonus.\r\n\r\nIn this situation, the construction contract needs to include an open book pricing mechanism pursuant to which the employer has full visibility regarding the actual cost of completing the project.\r\n\r\n<strong>Advantages Of Two-Stage Tendering</strong>\r\n\r\nThe main advantage of two-stage tendering for the employer is that it facilitates the fast tracking of the project and this is particularly appealing if the employer is under time pressure to deliver (i.e. perhaps a development agreement imposes aggressive timelines on the employer).  As the employer and the contractor are working together from an early stage, two-stage tendering will facilitate construction works commencing prior to the finalisation of the design.\r\n\r\nPrice certainty can also be achieved if a two-stage tender results in a guaranteed maximum price construction contract being executed.  Allied to this point, risks are more likely to have been properly evaluated and priced by the contractor on account of the greater visibility afforded to him under during the pre-construction phase, thus potentially decreasing the contract price and the risk of variations.\r\n\r\nAdditionally, the contractor’s involvement with the employer’s designers from an early stage means that buildability and sequences issues can be addressed and resolved quickly while there is also greater scope for value engineering, which should also make the final contract price more competitive (and may facilitate a cost savings mechanism).\r\n\r\nfinally, two-stage tendering promotes more a collaborative approach between the parties and the possibility of disputes arising during the construction phase is therefore reduced.\r\n\r\n<strong>Disadvantages Of Two-Stage Tendering </strong>\r\n\r\nTwo-stage tendering is not without risk.\r\n\r\nAlthough the pre-construction agreement may provide the employer with the express right of termination at various points, the employer may, from a practical perspective, become ever more reluctant to exercise this right as the contractor becomes an increasingly entrenched member of the design team and this will lead to the employer’s bargaining power being eroded.\r\n\r\nThe strength of the contractor’s bargaining power may increase further if the contractor is permitted to perform significant construction works on site without a construction contract being in place.\r\n\r\nFurther, the employer may still face difficulties even if the employer terminates the pre-construction agreement.  Terminations are seldom smooth and there is almost inevitably some form of fall out (regardless of how well the pre-construction agreement has been drafted).  For example, the contractor may retain possession of key deliverables, difficulties may be encountered in transferring approvals and permits to the employer or to the incoming contractor while the contractor may also retain possession of the site (assuming that it has been granted access and has started work) until its claims have been resolved.\r\n\r\nEven if the termination process is seamless, the project will almost certainly be delayed by the employer having to engage an alternative contractor, which may be something that the employer can ill afford if a two-stage tender was adopted on account of time sensitivities.  A further point to consider is that an incoming contractor will almost certainly demand a price premium if he is required to accept responsibility for the design or works undertaken by a previous contractor.\r\n\r\nFrom a practical perspective, employers could potentially mitigate these risks by prolonging negotiations for as long as possible with two interested parties, thereby retaining competitive tension.  However, negotiating with two contractors can be a time consuming and expensive exercise which cuts across the underlying principle of collaboration and is unlikely to be a workable solution.\r\n\r\nAnother option may be for the employer to allow adequate float to provide a buffer against unforeseen and prolonged negotiations but again this may not be practical in the circumstances.\r\n\r\nRegardless of the above, the main risk for the contractor is that it has no guarantee of being awarded the construction contract until it has been actually signed.  This is a significant exposure as it is unlikely that payment under the pre-construction agreement will adequately compensate it for the extent of the design and collaborative work that it will have performed.\r\n\r\n<strong>Concluding thoughts  </strong>\r\n\r\nThere are many variants for two-stage tendering and, in our view, it is a realistic alternative to traditional tendering, yielding positive results for both the employer and the contractor.  As with any other form of contracting, two-stage tendering should be approached with care and both parties need to ensure that their commercial interests are adequately addressed by a well-drafted pre-construction agreement and construction contract.\r\n\r\n&nbsp;'),
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(98667, 5361, 'content', 'April 2016\r\n\r\n<hr />\r\n\r\nEgypt has been recognised as one of the major volume markets in the region. With nearly one hundred million in total population, Egypt is considered the largest market in the Middle East and North Africa for many international and local traders and entities.\r\n\r\nThe expanding significance of the economic value of the local market requires establishing practical mechanisms for intellectual property (‘IP’) rights, enforcement and protection. Whilst trademark rights represent a substantial focus for IP owners, many other aspects of IP rights also exist, such as copyright, patents, industrial designs, trade secrets and plant varieties.\r\n\r\nAl Tamimi &amp; Company’s IP team will publish a series of articles on Egyptian IP law and practice to provide more clarity on the current regime and legal platform, protection strategies, enforcement options and. most importantly. provide an update on recent developments. This series of articles is aimed at assisting international IP rights owners, such as multinational enterprises, regional and local entities, to become more familiar with the current system, find suitable ways to improve their protection strategies and understand their legal options to ensure continuity and proper protection of their rights.\r\n\r\n<strong>Trademark Practice</strong>\r\n\r\nThe trademark practice in Egypt generally focuses on protection, i.e. filing and registration, and enforcement of brands against infringement and counterfeit. Other areas such as transactions, advisory on branding and ownership disputes remain core areas for brand owners but the majority of IP priority services relate to protection and enforcement. We set out in this article a brief overview of procedures, options, timeframes and the challenges that brand owners can face when protecting their brand and initiating enforcement proceedings in Egypt.\r\n\r\n<strong>Protection: Procedures, Requirements and Challenges</strong>\r\n\r\nProtection starts by acquiring rights and obtaining official recognition of those rights by the local trademark office. This is also a prerequisite for any claim of ownership or attempt to initiate enforcement action. The registration of a trademark in Egypt involves the typical procedures, i.e. filing, examination, publication and registration. The typical time frame to complete the registration process is from 12 to 24 months with relatively minimal fees and expenditures for brand owners. The brand owner should complete the process though a local attorney and should provide the following information and documents:\r\n<ul>\r\n 	<li>name of the applicant</li>\r\n 	<li>address of the applicant</li>\r\n 	<li>nationality and nature of business of the applicant</li>\r\n 	<li>a clear and detailed description of the list of goods and services to which the trademark applies</li>\r\n 	<li>a Power of Attorney to the applicant’s representative, which is properly legalised if executed outside Egypt or notarised if executed within Egypt.</li>\r\n</ul>\r\nA clearance search of the trademark is always recommended to brand owners prior to registration and/or use. Whilst proof of use is not required to protect and register a trademark in Egypt, we recommend that brand owners run such searches prior to commencing registration or commercial exploitation of brands. The searches can be initiated and completed within an average period of five working days.\r\n\r\nIn practice, the Egyptian Trademark Office employs expert examiners and systems and has been recognised locally as one of the well-established governmental offices and authorities in Egypt. The examiners, however, apply some conservative rules in examination when compared with trademark office examiners in neighbouring countries or the Middle East region. Challenges that can face applicants vary in type, which can include unexpected provisional refusals, office actions and imposing disclaimers. Therefore, trademark owners are always advised to consult with their local IP attorney at the stage of branding to understand the implications of their selection and ensure that registration properly progresses.\r\n\r\n<strong>Enforcement: Options, Requirements and Formalities</strong>\r\n\r\nOnce the trademark is officially registered, enforcement procedures can be initiated. Recently, we noted an increase in trademark infringements and many well-known trademarks are being counterfeited. The infringing products are either displayed at local markets or offered online to internet users through e-commerce platforms.\r\n\r\nBrand owners usually take enforcement issues seriously due to many commercial and legal factors. We have been engaged to work with various brands to support their enforcement strategy in Egypt, and there are several options to initiate anti-counterfeiting proceedings or tackle infringement cases. The local regulations entitle trademark owners to seek adequate remedies, including injunctive relief, compensation and permanent seizure and destruction of counterfeit and infringing goods.\r\n\r\nFor easy reference, we set out below the most common options for trademark owners under Egyptian law and practice:\r\n\r\n<strong>Legal Notice</strong>\r\n\r\nSending a legal notice appears to be a very efficient tool to resolve many problems at an early stage in Egypt. Therefore, we always recommend trademark owners to think of this option against retailers, traders or local entities that infringe or sell counterfeit goods. The legal notice can be sent as a letter from the trademark owner or its lawyer or via an official notice that is served through a court bailiff.\r\n\r\n<strong>Administrative Action: Ministry of Supply Raid Actions</strong>\r\n\r\nThe Ministry of Supply accepts complaints from owners of registered trademarks and then moves to conduct raid actions. The raid can be completed on an expedited basis and concluded within two to five working days in average. Thereafter, the Ministry officials will investigate the outcome and transfer the case to the public prosecutor for further proceedings provided that they have received confirmation that the seized goods are counterfeit. The product’s assessment is completed by the Trademark Office, which can cause some delay in the timeframe. Nevertheless, once the assessment is completed by the Trademark Office and the goods are confirmed as an infringement of a registered trademark, the case will be transferred to the criminal court for further proceedings and hearings.\r\n\r\nIt is very important to note that after the raid action occurs, the Ministry of Supply will seize the counterfeit products and wait for further judicial decisions for destruction or other rulings. The Ministry of Supply may conduct this action in conjunction with imposing any official fees on the brand’s owner. The procedure requires some documents, such as proof of registration, samples and guidelines to differentiate between products and a properly made Power of Attorney. Once the raid action is approved, the representative of brand owner can attend the proceeding, assist officials in the inspection and, most importantly, the raid can cover many targets simultaneously.\r\n\r\n<strong>Administrative Action: Customs</strong>\r\n\r\nAnother option to stop counterfeit products at the border is to file complaints before the competent Customs Authority. When there is information regarding a shipment carrying counterfeit products, the Customs Authority can accept complaints and hold the infringing shipment. Raids can often occur upon the arrival of the counterfeiting products. However, the brand owner is required to provide sufficient documents and information, such as full information of the shipment, and later the importer should submit the documents of the shipment prior to the Customs Authority moving with the seizure. The brand owner is also required to post a monetary bond that is equal to 25% of the total shipment’s value, but this can be released once the seizure is found to be legitimate and lawful.\r\n\r\nIt is very important to note that customs seizure is only a temporary measure to hold the shipment and it needs to be followed by a court order. Therefore, the customs seizure lasts for ten (10) days during which time the brand owner should secure an order from the court, i.e. an attachment order or injunctive relief, to sustain the seizure and progress the case. Once the Customs Authority receives notice of the injunctive relief granted by the court, it will hold the shipment until a final decision is issued by the court.\r\n\r\n<strong>Civil Action</strong>\r\n\r\nTrademark owners can always initiate civil proceedings to claim damages, seizure of counterfeit or infringing goods or other remedies. Typically, trademark owners take civil action for an administrative seizure or following the grant of an attachment order. There is a specialised court in Egypt, called the Economic Court, that has jurisdiction to look into IP and trademarks disputes. The Economic Court employs specialised judges who are educated in IP rights, understand the infringement implications and, most importantly, are willing to grant relatively high damages in counterfeit cases. The Economic Court also hears the proceedings promptly and a case can be concluded within an expedited time frame, such as six to 14 months in average.\r\n\r\nIn civil proceedings that follow administrative seizures, the Economic Court gathers information from the Ministry of Supply, the Customs Authority, police raids or criminal proceedings, and uses the same information to determine the civil claim.\r\n\r\nCivil action, however, requires expenditure on legal costs and court fees, e.g. official fees for filing a civil case. This depends on the claim and is assessed based on a percentage of the amount claimed. In general, the costs are calculated at 5% of the amount of the claims above EGP 4,000.\r\n\r\n<strong>Criminal Action </strong>\r\n\r\nThe option to take criminal action is also available for trademark owners to counter infringement incidents. In practice however, we recommend that the criminal proceeding is initiated after completing the above administrative options as this will ensure that the seizure happens promptly. However, a criminal case can always be raised directly before the police or through a complaint before the public prosecutor to issue an arrest and inspection warrant.\r\n\r\nIf the complaint is filed before the police, it will be transferred after the raid to the public prosecutor for further proceedings. In order to progress a criminal proceeding, the police will investigate any criminal complaint and move with raid action as a part of the investigation procedures. If sufficient evidence of infringement crime is found and collected at the raid action, the matter is referred to the public prosecutor to consider further. The public prosecutor will thereafter complete the investigation and refer the case to the criminal court for further proceedings.\r\n\r\nThe location of the infringement or the counterfeit goods plays a substantial part in determining whether to take this option. Strategically speaking, we note that the police give extra attention to major crimes, for which they will often act promptly and move with inspection. Being a misdemeanour, trademark counterfeit criminal cases may get delayed before being accepted and actioned and therefore it is always recommended to consider administrative options when possible. However, progressing the case with police could also be one of the most important and suitable options depending on the circumstances of the case, the location and the availability of qualified personnel at the police station to undertake the necessary procedures.\r\n\r\nThe typical time frame to progress a criminal proceeding with the police and public prosecutor varies from 12 to 24 months. Criminal courts impose sanctions, such as destruction of counterfeit products, imposition of penalties, namely fines, and possibly imprisonment when public safety and personal injury occurs from trading with counterfeit products.\r\n\r\nIn term of fees, there are no official fees associated with a criminal complaint. However, if a civil claim is filed jointly with the criminal proceeding, nominal court fees apply. In fact, it is possible to initiate a civil action before the criminal court that is examining the criminal case. If a civil case is joined with a criminal case in this manner, the civil plaintiff is able to make submissions that may ultimately be considered by the criminal court in the context of the criminal aspects of the case. Therefore, it is always recommended for trademark owners to pursue this option to ensure proper support is given to the public prosecutor’s claims, to observe the outcomes of hearings and, most importantly, be able to litigate the case before higher courts in case a negative judgement is given at the first instance level.\r\n\r\nOnce a destruction order is granted by the court, the complainant is responsible for liaising with the logistic service providers, if any, and the municipality to arrange the destruction formalities and expenses.\r\n\r\nIt is important to note that if a criminal action has already been initiated in respect of a claim that is pending before the civil courts, or if a criminal action is initiated subsequent to the filing of a civil action, the civil action will be put on hold until a final decision is concluded in the criminal proceedings.\r\n\r\n<strong>Summary</strong>\r\n\r\nTrademark prosecution is an evolving practice in Egypt. Brand owners should understand the likely outcomes, time frames and expenses when registering their trademarks, and we recommend that they register their marks for the Egyptian market at early stage. Once the trademark is registered, enforcement proceedings can be taken and several options are generally available, including administrative actions, civil and criminal proceedings.\r\n\r\nIt is recommended that enforcement campaigns consider the nature of the infringement, the locations, the level of proactivity of the relevant authority and the legal expenses that will result from each action.\r\n\r\nFor any further inquiries, please contract Munir Suboh at m.suboh@tamimi.com or Hassane Hassan at h.hassan@tamimi.com'),
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(98648, 5360, 'content', 'April 2016\r\n\r\n<hr />\r\n\r\nThe expansion of generic Top-Level Domains (gTLDs) such as .COM, .ORG, .NET in the Domain Name System is well known and familiar to us.\r\n\r\nIn addition, the Internet Corporation for Assigned Names and Numbers (ICANN), the international organization responsible for the management and oversight of the Internet’s domain name system has been allowing registrants to expand the Internet beyond the traditional top-level domains into new fangled gTLDS such as .ROCKS, .SUCKS,.GLOBAL,.ONLINE,.LIFE,.TECH,.COMPANY,.XYZ, .WORLD,.SOLUTIONS,.NYC,.GURU etc.\r\n\r\nWith registry operators continuously rolling out new gTLDs to the market, the protection of trademark rights in cyberspace is becoming increasingly challenging. Over a thousand new gTLD applications have been received by ICANN, and over 100 new gTLDs have been delegated and are going “live” for registration by Internet users worldwide.\r\n\r\nAs domain name registration is on “first-come, first-served” basis, it is expected that the expansion of the gTLD system will lead to an increase in disputes between trademark proprietors and domain name registrants concerning the registration and use of domain names in bad faith.\r\n\r\nTo try and combat the risk of disputes arising in respect of new gTLDs, ICANN has devised the Uniform Rapid Suspension System (URS) to complement the availability of the existing and well-developed ICANN Uniform Domain Name Dispute Resolution Policy (UDRP).\r\n\r\nIn essence, the URS has been designed to give trademark owners a faster, cheaper alternative to the UDRP for combating cybersquatting and other forms of trademark infringement by domain name registrants. The URS is incorporated into all registry agreements executed by the operators of new gTLDs, and it may be adopted voluntarily by existing gTLD operators (such as .com, .org, and .net).\r\n\r\nThe URS is a rights protection mechanism that complements the existing UDRP by offering a lower-cost, faster path to relief for trademark proprietors complaining of the most clear-cut cases of infringement.\r\n\r\n<strong>Mechanics</strong>\r\n\r\nThe core requirements for a URS complaint are substantially similar to those arising in UDRP proceedings.\r\n\r\nIn order to be entitled to relief, a URS complainant must satisfy 3 grounds being:\r\n<ul>\r\n 	<li>The registered domain name is identical or confusingly similar to a word mark:</li>\r\n 	<li>for which the complainant holds a valid national or regional registration that is in current use; or (For the purposes of demonstrating evidence of ‘use’ in the context of (a) above, it requires a declaration by the complainant and also one specimen of current use in commerce with this proof of use being submitted directly with the complaint.)</li>\r\n 	<li>that has been validated through a court proceeding; or</li>\r\n 	<li>that is specifically protected by a statute or treaty in effect at the time the URS complaint is filed;</li>\r\n 	<li>The registrant has no legitimate right or interest to the domain name; and</li>\r\n 	<li>The domain was registered and is being used in bad faith.9</li>\r\n</ul>\r\nThere is no discovery or hearing; the evidence examined by the URS panel is restricted to the materials submitted by the parties with their respective complaint and response, and those materials will serve as the entire record used by the URS panel to arrive at a decision.\r\n\r\nIn the event that the URS panel decides that all three grounds are satisfied by clear and convincing evidence and that there is no genuine contestable issue, then it shall issue a decision in the complainant’s favour. If the URS panel finds that any of the groundshave not been satisfied, it shall deny the relief requested and  terminate the URS proceedings without prejudice to the complainant’s right to proceed with court action or under the UDRP.\r\n\r\n<strong>Remedy</strong>\r\n\r\nIn the event of a successful URS complaint, the registry operator shall be required to suspend the domain name, which shall remain suspended for the balance of the registration period and will not revert to the original website. The registry operator shall cause the nameservers to redirect to an informational web page provided by the URS provider.\r\n\r\n<strong>Is it For You?</strong>\r\n\r\nAs set out, URS  is an efficient, low-cost dispute mechanism for obvious cases of cybersquatting. The enforcement of URS complaints has reflected this purpose. For example, where there is some sign of plausible good faith, even if circumstantial and completely uncorroborated by concrete evidence, URS panels have been known to find in favour of the domain name registrant. Accordingly, the use of URS is very much ‘horses for courses’ and it may not serve as the best option for trademark proprietors where there is a likely bone of contention on the part of the domain name registrant.\r\n\r\nThe URS has certainly proven to be useful as a mechanism for suspending websites that areblatantly infringing.  The use of the URS is also particularly suited for trademark proprietors with famous brand names.  It is often the case that success from an enforcement perspective will often be more likely when the trademark proprietor has a high profile presence in the markethence, the message to brand owners would be to continue to cultivate the goodwill and reputation in one’s brand.'),
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(98622, 5358, 'content_description', 'The Dubai Statistics Centre (‘’DSC’’), a public entity established in 2006, is responsible for surveys and statistics in the Emirate of Dubai. Law No.28 of 2015 Concerning the Dubai Statistics Centre (the ‘’DSC Law’’) recently clarified the role of the DSC, which is now particularly relevant in this era of big data, data breaches, and data protection concerns.  '),
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(98624, 5358, 'pageSummary', 'The Dubai Statistics Centre (‘’DSC’’), a public entity established in 2006, is responsible for surveys and statistics in the Emirate of Dubai. Law No.28 of 2015 Concerning the Dubai Statistics Centre (the ‘’DSC Law’’) recently clarified the role of the DSC, which is now particularly relevant in this era of big data, data breaches, and data protection concerns.'),
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(98626, 5358, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-14/april-9/data-collection-by-the-dubai-government-and-the-regulation-of-survey-firms.html'),
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(98632, 5358, '_yoast_wpseo_metadesc', 'Law No.28 of 2015 Concerning the Dubai Statistics Centre (the ‘’DSC Law’’) recently clarified the role of the DSC, which is now particularly relevant in this era of big data, data breaches, and data protection concerns.'),
(98633, 5359, 'content', 'April 2016\r\n\r\n<hr />\r\n\r\nThis matter raises questions about the installation and use of CCTV, or other monitoring and control devices, in the Emirate of Abu Dhabi.\r\n\r\nThe fact is that under Abu Dhabi law most public and many private facilities are expressly required to have monitoring and control systems.\r\n\r\nThe Monitoring and Control Center (“MCC”) was established by the Executive Council  of the Emirate of Abu Dhabi under Abu Dhabi  Law No.5 of 2011 (“MCC Law”) with the statutory aims of :\r\n<ul>\r\n 	<li>\r\n<div>Managing, organising and utilising the systems of monitoring and control devices in vital places,  facilities and public and private establishments as well as analysing the data provided by such devices in order to prevent the commission of crimes and discover the perpetrators and preserve security and public order in the Emirate; and</div></li>\r\n 	<li>\r\n<div>Ensuring continuous operation of monitoring and control devices and systems and their integration and coherence with other monitoring and control devices and systems in the Emirate.</div></li>\r\n</ul>\r\nThe vision of the MCC is a safe and smart Abu Dhabi. Under Abu Dhabi Law Executive Regulations No.5 of 2011 (“MCC Regulations’) the MCC is responsible for issuing the permits, non-objection certificates and accreditation certificates for the practice of monitoring works in the public places and facilities, private places and their infrastructure. The MCC also sets the standards and technical specifications of the monitoring and control devices.\r\n\r\nThe establishment of monitoring stations or operating monitoring devices without obtaining the MCC’s approval is an offence punishable by imprisonment of up to two years and/or a fine of no less than AED 50,000 and no more than AED 200,000. The MCC has the authority to seize and confiscate any monitoring and control devices used in breach of provisions of the law.\r\n\r\nThe following public and private facilities in Abu Dhabi are required to have the monitoring and control systems in accordance with the terms and conditions set by the MCC:\r\n<ul>\r\n 	<li>Hotels, hotel apartments and residences</li>\r\n 	<li>Banks, exchange offices and monetary and financial institutions</li>\r\n 	<li>Shopping centres, entertainment centres and clubs</li>\r\n 	<li>Fuel stations</li>\r\n 	<li>Gold and jewellery shops</li>\r\n 	<li>Deposits and warehouses of precious material and hazardous substances</li>\r\n 	<li>Hospitals and medical centres</li>\r\n 	<li>Sports clubs</li>\r\n 	<li>Ports, airports and land ports</li>\r\n 	<li>Commercial buildings</li>\r\n 	<li>Public and private schools, universities and institutes</li>\r\n</ul>\r\nThe public and private facilities are required to install cameras in particular locations (for example in front of all doors and elevators and in all stairs including emergency stairs).\r\n\r\nThe MCC Regulations also prescribe restrictions on how cameras can be installed.  Mobile cameras with zoom lenses cannot be installed in private places such as swimming pools and dressing rooms except with the particular permission of the MCC.  Further, no private places should fall within the scope of vision of cameras unless with permission.\r\n\r\nUnder the MCC Law and MCC Regulations, a public or private facility that is legally entitled to use monitoring and control devices (i.e. they are licensed by the MCC) is defined as a “Monitoring Agency”.\r\n\r\nAll staff of Monitoring Agencies are subject to specific legal prohibitions in relation to the use of monitoring and control devices.\r\n\r\nIt is illegal for staff of a Monitoring Agency to misuse the monitoring and control devices by directing them towards any person or any private place for personal objectives or purposes or for the disclosure of any information to achieve any personal objectives (e.g.  for the defamation, degradation, humiliation or blackmail of any person).\r\n\r\nStaff of Monitoring Agencies cannot do any act that prejudices freedom or privacy of a person or the inviolability of their homes.\r\n\r\nThe MCC Regulations also prohibit the staff of Monitoring Agencies from installing or operating monitoring devices for persons inside their workplaces. It is not expressly clear how this correlates with the separate express requirements in the MCC Regulations to have fixed cameras in front of reception counters, boxes and selling desks, which as a consequence would also monitor employees working in those areas.\r\n\r\nEmployees of the MCC or a Monitoring Agency cannot disclose any information of data recorded by Monitoring Agencies to any entity or person that is not legally authorised to have access to that information or data except with the permission of the MCC.\r\n\r\nThe MCC may request a copy of the information and data recorded by Monitoring Agencies and provide competent local and federal judicial, police and security authorities with that information and data which may lead to or contribute to the identification of criminals, inciters, involved parties, witnesses, accomplices or victims of any criminal act that may affect the public or private interests. An affected party may, during the hearing of a Court action, request the Court to contact the MCC to obtain information in case the event or the crime takes place in the monitored area in the MCC jurisdiction.\r\n\r\nAs the MCC Law and MCC Regulations are Abu Dhabi laws, a person’s right to privacy may need to be considered under relevant Federal Laws such as Articles 378 and 379 of the UAE Penal Code (Federal Law No. 3 of 1987) and the UAE Cybercrimes Law (Federal Law No. 5 of 2012) which contain restrictions on recording of visual materials.\r\n\r\nDubai has its own separate law concerning CCTV. We have previously discussed in this publication Law No.10 of 2014 Amending Provisions of Law No 24 of 2008 - See more at: http://www.tamimi.com/en/magazine/law-update/section-8/october-4/surveillance-cameras-in-dubai.html\r\n\r\nWhat is clear is that in Abu Dhabi you should not be installing or using monitoring or control devices without the necessary MCC licence.'),
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(98618, 5358, 'content', 'April 2016\r\n\r\n<hr />\r\n\r\n<strong>Dubai Statistics Centre: The Official Source Of Statistical Information Relating to Dubai</strong>\r\n\r\nThe DSC Law makes clear that the DSC is the official source for emirate level (as opposed to federal level) statistics in Dubai. The DSC is responsible for compiling and analysing statistical information, and for preparing and disseminating statistical reports.\r\n\r\nThe aims of the DSC include establishing an advanced statistical system for Dubai, contributing to the social and economic development of the emirate, and providing statistical support to policy decision makers to assist with policy development and to measure performance. Additionally, the DSC is concerned with ensuring the accuracy of opinion polls conducted in the emirate, and for regulating statistical work and opinion surveys in Dubai. Non-government entities that wish to run opinion polls in Dubai now need a permit from the DSC, and failing to obtain a permit is an offence under the DSC Law.\r\n\r\nThe DSC’s responsibilities include:\r\n<ul>\r\n 	<li>establishing a modern and comprehensive system for compiling, analysing, and disseminating official statistics, and disseminating statistical information using advanced methods;</li>\r\n 	<li>designing and conducting demographic, social, and economic surveys in the emirate, including the general census of population and housing, and surveys on social, economic, health, educational, and other matters;</li>\r\n 	<li>preparing and providing high quality statistical data and information to interested parties, including government entities, businesses, media, researchers, and others;</li>\r\n 	<li>setting the standards and rules regulating statistical work and methodology in the emirate; and</li>\r\n 	<li>regulating the work of non-government entities working in the survey and opinion polling field.</li>\r\n</ul>\r\nThe DSC Law requires ‘data sources’ to provide the DSC with the statistical information it requires, in accordance with the requirements determined by the DSC. Data sources include government departments, authorities, public corporations, free zone authorities, other Dubai government related entities, federal ministries, authorities, public corporations, and international agencies, as well as charitable foundations, companies, and individuals in the emirate.\r\n\r\nPrivate individuals and entities that want to run surveys in Dubai need first to obtain a permit from the DSC. Public entities need a permit from the DSC for surveys to be conducted ‘in the field’, but for surveys that will not be in-the-field surveys (such as on-line surveys), it is only necessary for the government entity to coordinate with the DSC and no permit is required.\r\n\r\nPersonal information obtained through any statistics or surveys is deemed confidential and may only be disclosed by the DSC with the written consent of its owner or upon judicial order. Such information may not be disseminated other than for statistical purposes. It cannot be used for taxation assessment, as evidence of a crime, or in support of a legal claim - with an exception in respect of evidence against someone for providing false data to the DSC.\r\n\r\nThe DSC law makes it an offence to breach the confidentiality of any statistical data; presumably this refers to statistical data that has been gathered by the DSC but not yet publicly reported. Additionally, it is an offence to use statistical data other than for its intended purposes, or to change or add to it; on its face, this could significantly inhibit the potential benefits and efficiencies of being able to use general information for multiple analytical purposes. The DSC Law also makes it an offence to sell or disseminate any statistical information without obtaining a permit as provided in the DSC Law. Penalties for this are not insignificant: imprisonment for up to six months and/or a fine of up to AED 100,000. A variety of other offences are specified in the law and these include failing to cooperate with surveys, providing misleading information, failing to provide data, disseminating false statistics, and other offences.\r\n\r\nThe DSC Law contemplates a DSC advisory board that will include specialist members with experience and specialisation in the fields of planning and statistics. If the DSC uses this opportunity to seek input from specialists with practical, commercial and current experience in modern statistics methodologies and technologies, survey management, and big data management, then this will enhance the advisory board and enable the DSC to excel in meeting its stated goals.\r\n\r\n<strong>Regulating Polling Companies Operating in Dubai</strong>\r\n\r\nAdditionally, Executive Council Resolution No.39 of 2015 Regulating Poll Studies Firms Operating in the Emirate of Dubai (the ‘’Resolution’’), has been issued to regulate the survey industry in Dubai. The Resolution provides that no one can conduct surveys in Dubai (including in any free zones located in Dubai) without a trade licence from the relevant licensing authority and a permit from the DSC.\r\n\r\nBesides seeking to ensure the proper and accurate conduct of surveys in Dubai, the objectives of the Resolution include providing legal protection for personal data, ensuring the efficient conduct of surveys by survey firms, and removing obstacles and creating a favourable environment for survey firms. The new permit process and associated official fee are likely to be of some interest to those operating in the industry, who have until mid-2016 to comply with the Resolution in this respect.\r\n\r\nThe DSC’s role in regulating survey firms will significantly impact on their operations. The DSC will be responsible for: accepting or rejecting applications for permits by survey firms; monitoring the activities of survey firms to ensure compliance with the DSC’s requirements; issuing identification cards to field researchers; investigating complaints about survey firms; creating a finding of surveys and using these findings to update statistical data on Dubai; reviewing the reports based on surveys, and preparing appropriate responses in coordination with relevant government entities.\r\n\r\nUnder the Resolution, survey firms are required to provide details of all personnel involved in the conduct of surveys in Dubai, cooperate with the DSC, and grant access to their premises, records, and data related to their activities. Upon request by the DSC, survey firms are also required to provide the DSC with any information or data relating to the firm’s activities in the emirate.\r\n\r\nThe Resolution provides for penalties for various prohibited acts, including:\r\n<ul>\r\n 	<li>violating the confidentiality of personal data (AED 20,000);</li>\r\n 	<li>changing or modifying the findings of surveys to misrepresent the facts (AED 10,000); and</li>\r\n 	<li>using survey findings to undermine the image of the UAE or its achievements (not specified).</li>\r\n</ul>\r\nSignificantly, the DSC is also responsible for finding appropriate solutions to overcome obstacles facing survey firms. While the new regulatory regime is likely to be greeted with some apprehension by those operating in the survey industry, the fact that one of DSC’s key roles is to find appropriate solutions for hurdles facing those in the industry should come as some relief.\r\n\r\nAl Tamimi &amp; Company’s Technology, Media &amp; Telecommunications team regularly advises on issues relating to big data, personal data, data breaches, and other data-related issues. For further information, please contact Nick O’Connell (n.oconnell@tamimi.com) or Sana Saleem (s.saleem@tamimi.com).'),
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(98617, 5357, '_yoast_wpseo_metadesc', 'Al Tamimi & Company takes a look at the MAS Clearsight (MASC) Decision Notice and the important points which arise out of that decision.'),
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(214172, 5356, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Ahmed Abdulshafe'),
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(98594, 5356, '_yoast_wpseo_metadesc', 'The UAE Federal Supreme Court recently issued a judgment confirming that an accused person’s right of defence must be respected by the UAE Courts.'),
(98595, 5357, 'content', 'April 2016\r\n\r\n<hr />\r\n\r\nThey are therefore important in assisting firms to review their internal policies and procedures from the DFSA’s point of view.\r\n\r\nThe purpose of this article is to take a look at the MAS Clearsight (MASC) Decision Notice and the important points which arise out of that decision. It is important to note that whilst DFSA Decision Notices provide guidance on DFSA’s view of certain regulations, more often than not it is an uncontested view. That is, most disciplinary matters are settlements between the Authorised Firm and the DFSA, and accordingly the decision does not reflect a robust questioning of DFSA’s position on particular rules.\r\n\r\nThe reason that this Decision Notice is worth reviewing is that the DFSA came to the view that:\r\n<ul>\r\n 	<li>The investments which MASC was offering to investors amounted to a foreign fund under the Collective Investment Law 2010; and</li>\r\n 	<li>MASC was Advising and Arranging in relation to these Investments and accordingly was required to treat the Investors as clients and “on-board” them in accordance with the Conduct of Business module of DFSA.</li>\r\n</ul>\r\nDFSA came to this view, even though MASC was of the view that:\r\n<ul>\r\n 	<li>It was not marketing a foreign fund; and</li>\r\n 	<li>The investors were investors, and not clients of MASC.</li>\r\n</ul>\r\nIt will be important for firms to consider these findings particularly where they are providing services akin to a placement agent and finding investors for and on behalf of an issuer.\r\n\r\n<strong>A Foreign Fund</strong>\r\n\r\nIn its response to the DFSA, MASC argued that the investment opportunity which it was providing to investors did not meet the requirements to be classified as a foreign fund. In its argument for why the investment opportunity should not be considered as a foreign fund MASC argued that amongst other things, it was not registered in a foreign jurisdiction as a fund; it did not have an investment manager, and there was no private placement memorandum.\r\n\r\nThe DFSA was of the view that the arrangement was a “foreign fund” under Article 11(1) of the Collective Investment Law. In coming to this view, the DFSA appears to have emphasised certain parts of the definition of ‘‘Collective Investment Fund’’ set out in the Collective Investment Law and in particular:\r\n<ul>\r\n 	<li>Article 11(1) (a) which provides that the purpose or effect of the arrangements is to enable persons who participate in the arrangements to participate in or receive profits or income arising from the acquisition, holding, management or disposal of the property or sums paid out of such profits;</li>\r\n 	<li>The arrangements are such that persons who participate do not have day to day control over the management of the property (Article 11(1) (b)); and</li>\r\n 	<li>The arrangements have either or both of the following characteristics: contributions of the investors are pooled, and/or the property is managed as a whole by or on behalf of the Fund Manager (Article 11(1)(c)).</li>\r\n</ul>\r\nNotwithstanding that MASC had not intended to create a fund, the DFSA found as a matter of fact that sufficient of the matters set out above existed for it to conclude that the arrangements constituted a Foreign Fund. In particular the words “purpose or effect” would allow the DFSA to conclude that an arrangement is a fund, whatever the intention of the parties to the arrangements. As result of the DFSA’s finding, certain other requirements followed, which had not been fulfilled by MASC.\r\n\r\nThe important part of the reasoning of the DFSA which is relevant to Authorised Firms, is that the DFSA looks at the structure and the purpose behind the arrangement (“purpose or effect”) when forming a view about whether the arrangement constitutes a fund (foreign or domestic). It will not be sufficient for an Authorised Firm to make the statement that the arrangement is not a fund, as this will not prevent DFSA from looking at the true structure ofthe arrangement and on that basis, forming a view about whether the arrangement constitutes a fund.\r\n\r\n<strong>Investors v Clients</strong>\r\n\r\nWhen looking at the reasoning of DFSA on this point it is important to look at the scope of the mandates which MASC signed up with the issuer. The scope of the mandates included identifying, short listing, introducing or referring investors” and:\r\n<ul>\r\n 	<li>Conducting closing discussions and negotiations with investors and finalising the term sheet;</li>\r\n 	<li>Negotiating the best suitable terms on behalf of the issuer and the investors;</li>\r\n 	<li>Remaining the contact point between the issuer and the investors;</li>\r\n 	<li>Assisting the issuer in discussions and negotiations with investors;</li>\r\n 	<li>Assisting the issuer in closing discussions and finalising the term sheets with investors.</li>\r\n</ul>\r\nIn its findings, the DFSA concluded that the investors should have been treated as clients of MASC because of the nature of the activities which MASC provided to investors. In this regard the DFSA concluded that the relevant conduct of MASC which resulted in investors being treated as clients, included:\r\n<ul>\r\n 	<li>Making statements to investors to influence them to make investments in the books;</li>\r\n 	<li>Facilitating investments in the books by, amongst other things, providing term sheets to investors, obtaining signatures of investors, sending the signed terms sheets to the issuer and overseeing the payment of the funds into the SPV accounts.</li>\r\n</ul>\r\nAdditionally, the term sheets provided by MASC included a statement that MASC was advising on the investment opportunity.\r\n\r\nThe above being the case, the DFSA concluded that the investors needed to be treated by MASC as clients and therefore the subject of the relevant provisions in COB (the Conduct of Business module).\r\n\r\nIt is clear that the scope of providing services according to a mandate entered into with an issuer, and the extent that providing additional services to an investor results in an investor becoming a client and therefore the subject of the provisions in COB, is going to be problematic for many Authorised Firms which provide these kind of services.\r\n\r\nAuthorised Firms which routinely act for issuers will now need to consider how they can manage the risk that somewhere in the continuum of providing services to the issuer, they unwittingly stray into a relationship with an investor which results in the investor becoming a client, with all of the additional obligations which an Authorised Firm owes to a client.'),
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(98576, 5356, 'content', 'April 2016\r\n\r\n<hr />\r\n\r\nAl Tamimi &amp; Co represented the First Defendant and obtained the favourable Supreme Court judgment on his behalf.\r\n\r\n<strong>The Indictment </strong>\r\n\r\nIt should be noted at the outset that the First Defendant (“Client”) does not accept any of the allegations made against him in the indictment.  Our Client is a UAE national and was at the material time a high-level UAE Government employee.  The Second Defendant (“D2”) was an accountant working with him.  They were both, therefore, Public Officials as defined by Article 5 of the UAE Federal Law No. 3 of 1987 as amended (“UAE Penal Code”).\r\n\r\nThe Public Prosecutor alleged in the indictment that our Client had instructed D2 to keep the cash income of the department aside, rather than depositing it in the appropriate bank account.  The amount in question is AED18m.  It was alleged that our Client used this money for personal expenditure, while D2 also received benefits for his part in the scheme.  The Public Prosecutor alleged that this behaviour amounted to an offence contrary to Article 224 of the UAE Penal Code, which states:\r\n\r\nA Public Official, or any person to whom a public service is assigned, who embezzles funds which are in his possession due to his office or assignment, shall be liable to a maximum penalty of 15 years’ imprisonment.\r\n\r\nThe Indictment further alleged that, as part of the embezzlement, the defendants had acted together to forge official documents (UAE government forms) and unofficial documents (bank statements) in order to cover up the embezzlement, in violation of Articles 216, 217, 218 of the UAE Federal Penal Code and that they used these forged documents contrary to Article 222.\r\n\r\nArticle 218 defines an ‘official document’ as a document:\r\n\r\n...which a Public Official has the competence to prepare, to be involved in the production of, or to grant an official quality.\r\n\r\nThe forged UAE government forms and bank statements were submitted to the accounting department in the relevant UAE Ministry.  Together, these forms showed that the amount received by the department had been deposited in the bank account, which was not the reality of the situation.\r\n\r\n<strong>Court Judgments</strong>\r\n\r\nD2 had made a confession during the investigation, in which he blamed our Client and stated that he was acting upon the orders of our Client.  The Public Prosecutor relied upon this confession as evidence against our Client.\r\n\r\nThe Court of First Instance convicted both defendants – our Client attended but D2 was convicted in his absence – and passed sentences of five years’ imprisonment and an AED18m fine.  The Court also made orders for the refund the embezzled amount, seizure of the forged documents and for D2 to be deported from the UAE after the execution of the sentence.  Further, and of particular significance to our Client, the Court made a number of punitive orders against him, including prohibitions on voting, acting as a legal custodian or agent, wearing national or foreign medals and managing public institutions or joint stock companies, all of which were imposed for a period of three years beginning after completion of the prison term.\r\n\r\nOur Client appealed the decision of the Court of First Instance but the court of Appeal ruled to reject the appeal on the merits, and upheld the lower court’s verdict.\r\n\r\nAl Tamimi &amp; Company filed a Cassation petition against the Court of Appeal judgment, arguing that the judgment was flawed and that it prejudiced our Client’s right of defence, as neither of the lower courts reviewed any of the allegedly forged documents in the presence of our Client, in violation of his right to properly defend himself.  Further, the lower courts had not considered critical documents that we submitted on behalf of our Client and which contradicted the confession made by D2 (upon which the lower courts had relied for the conviction) and proved our Client’s innocence of the allegations against him.\r\n\r\n<strong>Supreme Court Judgment </strong>\r\n\r\nThe Supreme Court found in favour of our Client, stating that the omission of the lower courts to allow our Client the opportunity to review the allegedly forged documents had prejudiced the fairness of the trial proceedings.  The allegedly forged documents were a fundamental aspect of the case and the courts are required by duty to scrutinise the basic evidence and defendants must be given the opportunity to review and comment on such evidence.\r\n\r\nFurther, with regard to the argument that the confession by D2 was unreliable, we had asked the lower courts to appoint an expert to review the documents submitted but, this request was rejected.  The Supreme Court found that the lower courts had also failed our Client in this regard.\r\n\r\nThe Supreme Court held that the defence advanced on behalf of our Client related to challenges of essential evidence in the case which, if such challenges were upheld, would have led to a different verdict.  The rights of the defendant must be respected and the verdict of the lower courts must be set aside and the case returned to the Court of Appeal to be heard by a differently constituted panel of judges.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThis Supreme Court ruling confirms that the right of a defendant to present his defence should be respected by the courts of the UAE.'),
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(98557, 5355, 'content', 'April 2016\r\n\r\n<hr />\r\n\r\nOn 6 January 2016, Cairo Court of Appeal annulled an EGP 100 million award against the famous satirist Bassem Youssef and his TV show production company Q-Soft, thereby giving both of them a new lease of life (Cairo Court of Appeal, 7th Circuit - Commercial - 6 January 2016 – Lawsuits No 11,12,14 of Judicial Year 13). This article reports on the decision and its implications. Prior to joining Al Tamimi and Co., the author of this article was part of Q-Soft’s legal team before the Egyptian courts.\r\n\r\n<strong>Background </strong>\r\n\r\nThe dispute arose out of a contract dated 25 July 2012, whereby Q-Soft licensed Capital Broadcasting Center (“CBC”) to exclusively screen episodes of Bassem Youssef’s satirical show starting from 11 November 2012 for the duration of pre-determined screening seasons.\r\n\r\nThe satirical show, “El Bernameg”, was an unprecedented success, providing humorous criticism in 2012 and 2013 of the ousted President Mohamed Morsi, who was a senior leader of the Muslim Brotherhood. Despite numerous complaints lodged by pro-Morsi activists (which led to criminal investigations against Bassem Youssef), El Bernameg’s team sustained its satirical criticism until the Muslim Brotherhood Regime fell as a result of unprecedented protests which started on 30 June 2013.\r\n\r\nAfter a four-month break, Bassem Youssef resumed his show in October 2013, with an episode that stirred popular criticism as it appeared to satirise the Interim Egyptian President and the very popular Minister of Defence. Public opinion was divided among those who still supported El Bernameg as a matter of freedom of expression and those who disliked it for patriotic reasons. As a result, CBC decided to stop airing it on its channels and Q-Soft served a notice of termination of its contract with CBC.\r\n\r\n<strong>The Arbitration</strong>\r\n\r\nIn accordance with a clause providing for arbitration in the event of disputes, Q-Soft submitted a Notice of Arbitration against CBC to the Cairo Regional Centre for International Commercial Arbitration (“CRCICA”). Q-Soft sought compensation of EGP 1.9 million for the damage caused by CBC’s breach of the contract and its decision to stop screening episodes.\r\n\r\nCBC filed a counterclaim before CRCICA against both Q-Soft and Bassem Youssef seeking a compensation of more than EGP 363 million for their non-compliance with the terms of the contract, their intentional failure to submit the scripts of the remaining episodes to the channels’ administration, and their breach of the channels’ content/screening policies. Bassem Youssef denied the jurisdiction of the Tribunal and did not submit any claim.\r\n\r\nThe arbitral tribunal issued its award on 10 November 2014. It decided, by majority, to reject Bassem Youssef’s claim regarding the tribunal’s lack of jurisdiction and to dismiss Q-Soft’s claims as well as “Bassem Youssef’s claims” (though the latter did not seek any remedy save for its objection to the Tribunal’s jurisdiction). The tribunal decided to uphold the counterclaim and ordered that Q-Soft and Bassem Youssef were to each pay CBC EGP 25 million in compensation and another EGP 25 million in moral damages (a total of EGP 100 million in damages plus interest).\r\n\r\n<strong>Annulment Proceedings</strong>\r\n\r\nAnnulment proceedings were brought by Bassem Youssef and Qsoft before Cairo Court of Appeal.\r\n\r\nOn 6 January 2016, Cairo Court of Appeal annulled the arbitral award on two major grounds. The first ground was that the damages had been awarded without stating reasons. The other ground was that the award was a ‘breach of a constitutional right to freedom of expression’.\r\n\r\nOpting to condemn the award itself rather than the majority of the arbitral tribunal, the Cairo Court of Appeal endorsed the latter ground explicitly rather than Q-Soft’s main ground for annulment which was based on arbitral bias or partiality being contrary to procedural public policy. Q-Soft and Bassem Youssef had aimed to demonstrate that the majority of the arbitral tribunal was, for ideological reasons, irritated by the content of Bassem Youssef’s satirical TV show. They referred to the following paragraph of the award as evidence of bias:\r\n\r\n“[various types of medias] whether visible, audible, readable or electronic  should be united on preserving the interests of the country, and aim to be Egypt’s safeguard, to consider the exceptional and serious circumstances that Egypt is going through at this period, and to adopt the media charter of honor and code of ethics and the values of our community, and to refrain at this period from using any methods that aim to achieve temporary material gains at the expense of the interests of a homeland that must survive and remain”.\r\n\r\nAgain, Cairo Court of Appeal opted not to explicitly address the alleged ideological partiality or bias of the arbitral tribunal but rather emphasised the lack of reasoning of the award on damages and relied on the constitutional right of freedom of expression by stating that:\r\n\r\n“It is not permissible--under the veil of discretionary power--to alter the principles set by the Constitution or to separate such principles from the purpose of their enactment or their final objective. Constitutional principles are not enacted in alienation, merely as philosophical principles, and hence, they do not exist in a vacuum. The objective of constitutional principles is general wellbeing as it guarantees in its substance an idea of fairness that is compatible to the modern democratic state which it aims to create and to ensure the welfare of its people.\r\n\r\nThe judgments of the Constitutional Court have confirmed that the freedom of expression of one’s views and the ability to express such views either orally or photographically or by any other mean of communication, is described in the Constitution as the “Mother” of rights, in the absence of which, no open dialogue exists. The safeguards provided for by Constitutions in relation to freedom of expression is constituted on the guarantee of the expression of views, ideas, and their articulation to others, in order to expand horizons and to increase the sources of knowledge to all. Freedom of expression is a supreme value/principle, from which derogations are not permissible ”.\r\n\r\nIt is well known that Bassem Youssef is a major political satirist and harshly critical of the present Egyptian President and others. Nevertheless, the 7th Commercial Circuit of Cairo Court of Appeal confirmed the independence of the Egyptian Judiciary by annulling the arbitral award on the basis of constitutional rights pertaining to public policy. By setting aside this award, the Cairo Court of Appeal affirmed their pro-arbitration stance by safeguarding the reputation of arbitration from an award grounded in arbitral bias.\r\n\r\n&nbsp;'),
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(98509, 5351, 'content', 'March 2016\r\n\r\n<hr />\r\n\r\nThe Egyptian Labour Law is pro-employee and imposes limits on employers’ rights. For example, if local parties under a fixed-term contract continue the working relationship beyond the original term of the contract, or agree to automatic renewal and create no new contract, the contract is automatically renewed and becomes an indefinite-term contract, thus limiting the employer’s right to terminate the employee. Thus, an employer that does not wish to be put in the position where it cannot terminate an employee whose performance is dissatisfying should consider entering into a fixed-term contract of short duration, renewable as many times, but pursuant to new analogous contracts freshly executed each time. Once this expires, the employee will have no rights of termination compensation under the law.\r\n\r\n<strong>Military leave</strong>\r\n\r\nWhile the Labour Law largely dictates employment requirements, there is a question over an employer’s position with regard to an employee who is required to undertake military service. If an employee is on a fixed-term contract and must undertake military service and returns after his contract ends, is the employer bound to reinstate him in accordance with the Law on Military and Patriotic Service (No. 127 of 1980)?\r\n\r\nArticle 43 of the law (as amended) provides that (Arabic text prevailing):\r\n\r\n“The administrative body of the state, municipality units, general authorities, public sector companies, business public sector companies, private companies, associations and institutions and employers must keep, to whom is undertaking his military service, staying thereafter or called in for service thereafter amongst the employees, their position or analogous position until the end of the military service, the stay thereafter or the call in thereafter. The said position may be filled on temporary basis during such period.…\r\n\r\nThe employee or worker shall return to his job or work kept therefore if he so requests within thirty days from the day he is released from military service or the stay thereafter and within one week from the date of his release after the in-call for service.\r\n\r\nHe must be returned to work within sixty days from the date of submitting the request. The date of submitting the request shall be the date of his reinstatement at work.…\r\n\r\nIf the employee or worker does not submit his request on time or start his work within thirty days or a week, respectively, from the date of the reinstatement order, the request to be reinstated may be rejected unless the delay is for due cause.\r\n\r\nThe employee or worker shall remain entitled during his military service, the staying thereafter and the in-call for service thereafter, to his promotions and bonuses, as if he were performing his work. The service period shall be added to their work period and accounted for in respect of the bonus and pension. He shall also be accounted for the additional service periods and additions in the calculation of such bonus or pension according to Law No. 90 for the year 1975 on Insurance, Retirement and Pensions of the Armed Forces.\r\n\r\nThe service period shall be deemed successfully completed if the employment was under probation. During the period of stay after the military service and the in-call for service, all material and moral rights and other advantages including allowances, bonuses and production incentives disbursed to their peers at their original work locations shall be paid thereto in addition to what the Ministry of Defense pays therefore for the stay or call period.”\r\n\r\nBecause the law does not stipulate whether reinstatement is obligatory,  even if an employee is on a fixed-term contract that has expired, several questions are raised. Does Article 43 create a new right for the employee and impose a new obligation on the employer? Is Article 43 limited to indefinite-term employment contracts and events where the period of absence for military service does not extend beyond the term of the fixed-term employment contract?\r\n\r\nIt appears from Cassation Court Case no. 876 of the Judicial Year 48 that the Egyptian Court of Cassation does not view Article 43 as a special clause that prevails over the Labour Law and the employee contract. They have adopted the opinion of many scholars that there should be no automatic extension with regard to fixed-term contracts. The undertaking of military service is not a tool to prevail over the nature of terms and conditions of the employment contract.\r\n\r\nIt is a step towards equality between the interests of the employer in relation to those of the employee.\r\n\r\nA version of this article was recently published in International Financial Law Review.'),
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(87961, 4785, 'content', 'October 2013\r\n\r\n<hr />\r\n\r\nThe UAE labour law applies to the majority of employees in the UAE. However employees of governmental or semi-governmental organisations or government companies (“Public Entity or Public Entities”) may be subject to the UAE Labour Law or the appropriate civil service law (either Federal or Emirate level) (“Civil Service Law”). In practice the position in respect of the applicable employment law for Public Entities can often be unclear.\r\n\r\nFrom an employer’s perspective the UAE Labour Law is a much more beneficial legal framework to work within as the Civil Service Law places quite onerous requirements on the employer, particularly in relation to termination of employment.\r\n\r\nIn this article we will identify and discuss the law to be applied to the employees of Public Entities both at a Federal level and at an Emirate level.\r\n\r\n<strong>Federal Level </strong>\r\n\r\n<strong>What are Public Entities?</strong>\r\n\r\nThe UAE Labour Law states that it does not apply to employees of Federal and local public departments and organisations. The terms ‘public department’ and ‘public organisation’ are not defined and are capable of very broad interpretation. Meanwhile the Federal Civil Service Law states that it applies to (i) employees who receive their salary from the Federal budget, and (ii) civil servants working in “public federal institutions and bodies’. The first category is easy to define but the second one is broader and in some cases difficult to discern, particularly in respect of government companies.\r\n\r\nGovernment companies are not specifically excluded by Article 3(1) of the UAE Labour Law and not specifically included in the Federal Civil Service Law. The question therefore is whether the definition of public entities in the UAE Labour Law includes companies established by the government and either fully or partially owned by the government?  To answer this we must look at the court rulings.\r\n\r\nIn Appeal No. 379/2004  (Judicial Year of 25), the Higher Federal Court held that Article 3(1) means that the UAE Labour Law is not applicable to the officials, employees and workers of the federal and local public departments and organisations and that the Civil Service Law applies to these employees instead. In its decision the Court mentioned that provisions of the particular law creating the company in question did not stipulate that the company was to be considered a public entity, but instead that it was a national joint stock company which enjoys an independent legal personality. The Court therefore found that the company was not to be considered a public entity, and accordingly its employees are not considered to be public servants subject to the Civil Service Law\r\n\r\nA further example of this principle can be found in Appeal No.663/2002 (Judicial Year of 23) in which the Federal Supreme Court ruled that Federal Law No. 1 of 1991 (which created the Emirates Telecommunication Corporation (Etisalat), does not contain any provision stating that the entity is to be considered a public entity. The particular law states that the company is to be managed on a commercial and investment basis, but that the government shall own at least 60% of the company and that five members of the board of directors shall be appointed by the Cabinet to represent the Government. Nonetheless the Court concluded that Etisalat is not to be considered a public entity, but a private joint stock company.  This suggests that if the law setting up the company states that the entity shall be managed on a commercial and investment basis, this may indicate that it is to be a private company for the purpose of the applicable law for its employees.\r\n\r\n<strong>Can a government entity use the Labour Law anyway?</strong>\r\n\r\nYes, most of the Court rulings establish that where a Public Entity is not subject to the Civil Service Law then the UAE Labour Law shall apply.\r\n\r\n&nbsp;\r\n\r\n<strong>Emirate Level- Abu Dhabi </strong>\r\n\r\n<strong>What are Public Entities?</strong>\r\n\r\nThe Abu Dhabi Civil Service Law states that it only applies to employees who receive their salaries from the General Budget of the Abu Dhabi government. Accordingly it should be a very simple exercise to establish which Public Entities are subject to the Abu Dhabi Civil Service Law.  However there have been Court judgements that have applied the Civil Service Law to Public Entities whose employees were not paid from the General Budget but whose founding decree defined it as a public body. Caution must be exercised in this area.\r\n\r\n<strong>Can a Public Entity use the Labour Law anyway?</strong>\r\n\r\nIt depends. In most cases it will be clear whether the employees receives their salary from the general budget or whether they are working for a government department, in which case the Public Entity does not have any discretion. However in respect of government companies the position must be considered on a case by case basis. There are many government companies in Abu Dhabi that apply the Labour Law. The key to this is often down to the description of the company in the founding decree as the following case illustrates.\r\n\r\nIn a case last year (Appeal No. 84-2012 (administrative)) the Abu Dhabi Court of Cassation held that although the company’s human resources policy and a contract of employment stated that the UAE Labour Law was to apply, because the founding decree establishing the company provides that it is a public entity the Civil Service Law shall be applied instead\r\n\r\nThis means that if the law establishing the entity states that it is a public company, the Civil Services Law will apply regardless.\r\n\r\n<strong>Possible Exemptions in Abu Dhabi</strong>\r\n\r\nThe Civil Service Law in Abu Dhabi grants the Abu Dhabi Executive Council the authority to issue a resolution implementing its provisions to any entities or authorities or to exempt same from the application of its provisions (see article 2(2)). It is not clear however whether any exemptions have been granted.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nAt a Federal level if the law establishing a government company fails to state that the company is to be considered a public entity, then it is likely that the UAE Labour Law will apply. This is especially so where the law states that the company is to be managed on a commercial and investment basis.\r\n\r\nIn the Emirate of Abu Dhabi, the law applicable for employees of Public Entities is the Civil Service Law unless (i) the founding decree of the government company defines it as public or (ii) the Executive Council issues a resolution granting an exemption.'),
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(87975, 4786, 'content', 'October 2013\r\n\r\n<hr />\r\n\r\nThe Dubai Chamber of Commerce and Industry President and CEO, Hamad Buamim recently confirmed that the Dubai government is currently considering a proposal to tax remittances.  Whilst I think it is unlikely this proposal will come to fruition, it is worth considering how personal and corporate tax will affect the UAE.\r\n\r\nThere is presently no income tax for individuals and limited tax for companies based in the UAE.  Each emirate has its own corporate tax rate and tax is only imposed on the income of oil and gas exploration companies and branches of foreign banks.\r\n\r\nMost countries’ tax systems are based on direct taxation imposed on individuals income and property; and indirect taxation imposed on transactions.  For example, the tax policy in the European Union is made up of direct taxation which is administered solely by the Member States and indirect taxation affecting the free movement of goods and the provision of services.  Other countries are implementing specific purpose taxes such as carbon tax to discourage businesses and industries from emitting greenhouse gases.\r\n\r\nThe UAE government’s expenditure is increasing as it develops the country’s infrastructure.  It is reasonable for the government to introduce fees to maintain the capital investments it has made.  In my opinion, introducing a low level of tax for local and international companies in the UAE is not a bad idea.  Implementing taxation will generate income for local and federal governments.  However, income is not the only driver behind introducing tax.  Taxation will require proper corporate governance for all companies operating within the UAE.  Companies will need to implement accurate accounting and auditing mechanisms.  Many family run businesses do not yet have such practices and they are not standard across the UAE.  It will also increase the demand for local accountants and financial controllers and encourage people to study and develop their skills in these fields.\r\n\r\nRequiring companies to file taxation returns will provide the UAE government with valuable knowledge and insight into the companies operating within the UAE.  It will also be detrimental to shell companies operating with ulterior motives so the government can remove them from the economy.  A number of expatriates contribute minimally to the UAE economy because they send the majority of their income to their home country and so introducing taxation will cause a portion of their income to remain in the UAE.  Additionally, it will encourage investment in NGO’s and charitable organisations because they will be tax deductable and the UAE community will benefit from a rise in non-profit fundraising for humanitarian, cultural, educational and athletic causes.\r\n\r\nA number of countries have double taxation treaties with the UAE.  Paying tax locally would not affect companies from these countries because it will be taken into account when they repatriate income to their home countries.\r\n\r\nThere are a number of negative implications associated with introducing tax and the administrative cost of direct taxation needs to be taken into account.  If the tax is a small amount such as one to two percent, there is a real possibility that the governmental cost of administering the tax may be greater than the income received from the tax.  The administrative cost is therefore likely to dictate the rate of tax payable.\r\n\r\nOne of the main attractions for businesses and individuals to relocate to the UAE is its tax-free status.  The UAE’s financial model and tax free reputation has resulted in most international and multinational companies choosing the UAE as their headquarters for distribution throughout the Middle East and Africa.  Imposing a tax would have a significant impact on emirates such as Dubai and Abu Dhabi which have attracted individuals and businesses based on their low tax profile and tax free zones.  If the UAE becomes more expensive for these businesses and individuals, it may cease to be competitive with other Gulf States, resulting in companies relocating and expats moving elsewhere.\r\n\r\nThe UAE economy was originally based largely on oil and there is concern that its income is too reliant on it.  The income has now diversified and the UAE has found other sectors to boost the economy and encourage the growth of the private sector.  The UAE has been innovative and creative in establishing 26 special purpose zones including the DIFC, RAK Free Trade Zone, Jebel Ali Free Zone, Ajman Free Zone Authority and the recently announced Al Maryah Island financial free zone in Abu Dhabi.  Dubai and Abu Dhabi consistently rank highly as top investment destinations worldwide.\r\n\r\nIn my opinion, it is unlikely that the UAE will introduce tax on repatriation of capital because it goes against everything that the UAE has developed over the past 20 years.  However, introducing a minimum tax rate of one or two percent is worth evaluating because it will benefit the UAE economy by sophisticating its corporate structure as well as earning the government additional income to be invested in the UAE infrastructure.  It is important to have an informed debate about fiscal policy within the UAE to ensure nothing is introduced that adversely affects the UAE’s status or diminishes its competitiveness as a trading nation.'),
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(87994, 4787, 'content', 'October 2013\r\n\r\n<hr />\r\n\r\nHowever, what remains a thorny issue in the construction industry is delay, which is caused by various factors, including lack of funding, local regulations, lack of management and or otherwise.\r\n\r\nSo what does Law No. 6 of 2004 Organising Construction in the Towers Area of Modern Doha (the ‘Dafna Law’) state with regard to the following classic scenario: land in the Dafna Area has been purchased, the required building permits have been obtained, construction work has commenced, and delay in completing construction within the time frame specified under said law occurred.  What action is the relevant authority entitled to take under such law?  And what are the land owners’ options/remedies, if any?\r\n\r\n<strong>General Overview on Property Ownership</strong>\r\n\r\nLaw No. 6 of 1963 restricted freehold estate in Qatar to Qatari nationals (individuals or juristic bodies); however, in 2002 the State of Qatar introduced a new piece of legislation allowing the Gulf Cooperation Council member countries (GCC) to own up to three properties in residential areas subject to certain restrictions.  Furthermore, Ministerial Resolution No. 5 of 2006 permitted nationals of the GCC member states to own properties in the following three areas the Lusail, Al Kharayj and Jabal Thuaileb.  The 2002 legislation was followed by Law No. 17 of 2004 granting non-Qataris the right to own properties in the Pearl, West Bay Lagoon and Al Khor.  The said law also granted non-Qataris the right to hold usufruct rights - restricted to 99 years - renewable in 18 additional areas defined as ‘Investment Areas’.\r\n\r\nAl Dafna Area is one of the 18 Investment Areas listed under Ministerial Resolution No. 6 of 2006 issued in relation with Law No. 17 of 2004.  As such, freehold in Al Dafna is restricted to Qatari nationals unless an exemption is granted by virtue of an Emiri Decree.\r\n\r\n<strong>The Dafna Law </strong>\r\n\r\nArticle 2 of Dafna Law requires land owners to complete construction within five years from the Law’s effective date or from the date of contracting or acquiring the land, with an obligation to obtain the necessary permits and commence construction within three years of the aforementioned period.  A breach of Article 2 entitles the Ministry of Municipality and Agriculture - now being the Municipality and Urban Planning (the ‘MMUP’) with the right to acquire the relevant land upon compensating the land owner for such acquisition.  Compensation under the said law is estimated in accordance with the price list effective at the time of contracting or ownership and within a maximum price of QAR40/sq ft for residential lands and QAR60/sq ft for commercial lands.\r\n\r\nThe said law also prevents land owners from disposing of title to land prior to completing any construction work.  A transfer is only permitted subsequent to (a) the land owner’s payment for the land price in full or after submission of a financial guarantee that is acceptable by the MMUP; and (b) obtaining a construction certificate issued by the competent authority at the MMUP.  The financial guarantee is only acceptable in lieu of cash if the full price of the project cannot be paid in cash for the construction certificate to be issued.  In other words, the financial guarantee cannot be lodged to transfer property before construction is complete.\r\n\r\n<strong>The Current Practice</strong>\r\n\r\nProperty developers often wish to know whether the local authority (herein the MMUP), has been adhering to the time frame requirement of the Dafna Law and whether such authority does actually resort to acquiring land in the event land owners fail to abide by such requirements.\r\n\r\nExperience demonstrates that the MMUP is in fact active in its attempts to adhere to the Dafna Law requirements and has recently approached the Real Estate Registration Department with at least ten acquisition requests resulting from the land owners’ failure to meet the Dafna Law time frame for completing construction.  The Dafna Law remains applicable to all types of lands in the Dafna Area regardless of whether such lands were granted by a special Emiri Decree or otherwise.\r\n\r\n<strong>Summary of the MMUP procedures  </strong>\r\n\r\nIn co-operation with the Real Estate Registration Department, and in the event the MMUP’s records indicate that construction for a certain project has not been completed within a five year period, the Acquisition Department at the MMUP notifies the land owner(s) of the failure to complete construction and of the MMUP’s decision to acquire the land against compensation in compliance with Article 3 of the DAFNA Law.  The said law does not provide for a specific notice period to be observed, therefore, the MMUP has the right to notify the land owner of the same and to immediately proceed with the acquisition procedures thereafter.  The said law also does not provide for a course of action to be taken by affected land owners; however, in practice land owners have been able to complain against the offered compensation.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nAs noted above, in addition to the restriction on ownership transfer before obtaining the relevant construction certificate, land owners in the Towers of Al Dafna Area are subject to the risk of land acquisition in the event of failure to complete construction within the time frame provided for under the Dafna Law.  The said law does not entitle land owners to a grace period in order to complete construction if construction is delayed beyond the five years time frame; nor does the MMUP seem to refrain from enforcing its rights under the said law.\r\n\r\nHowever, it is advisable for land owners to always communicate with the MMUP to keep the latter informed of construction progress and any expected delays before the five years deadline.  Although there is no guarantee that the MMUP will take into account the reasons put before it, it may nevertheless delay its right in executing acquisition if it believes that construction is nearing completion or there are reasonable grounds for any delay.'),
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(88013, 4788, 'content', 'October 2013\r\n\r\n<hr />\r\n\r\nThis media coverage had many people in the UAE talking about the legal risks of using social media in the UAE, and the importance of being aware of the applicable law. In this article, we touch on some of the legal provisions that might make social media users think twice before posting risky content.\r\n\r\n<strong>Photographs</strong>\r\n\r\nCare needs to be taken when posting pictures of others online, including via social media sites. The Cyber Crimes Law (Federal Law No. 5 of 2012) makes it an offence to use any IT means to breach someone else’s privacy, including by taking pictures of others, or publishing or displaying those pictures. The UAE Penal Code (Federal Law No 3 of 1987) makes it an offence to transmit someone’s photograph without their consent. (Our view is that this is likely to extend to moving images, and not only still images.) The Copyright Law (Federal Law No 7 of 2002 in Respect of Author Copyrights and Parallel Rights) states that, in the absence of an agreement to the contrary (and with limited exceptions), a person who takes a picture of another cannot distribute or publish such picture without the consent of the person appearing in the picture.\r\n\r\n<strong>Privacy and confidentiality</strong>\r\n\r\nThe importance of the sanctity of the individual’s private life is recognised in a number of provisions of UAE law. Disclosing secrets relating to someone’s private life, without that person’s consent, can attract liability under the Penal Code and the Cyber Crimes Law. Similarly, the disclosure of confidential information, such as information belonging to an employer, can also attract legal liability in the UAE. Many of the ‘scandals’ involving social media that we read about in the local press involve the unauthorised disclosure of information relating to the private lives of the victims, or the unauthorised release of commercially sensitive information.\r\n\r\n<strong>Defamatory statements</strong>\r\n\r\nThe Penal Code makes it an offence to publish information that exposes another person to public hatred or contempt, or to make a false accusation which dishonours or discredits another person. The Cyber Crimes Law contains similar provisions that prohibit insulting others, or attributing to them conduct that would make them the subject of the contempt. Users who post defamatory statements about another person on a social media platform may find that they breach UAE law.  It is not always essential for the statement to be false in order for it to be considered defamatory. UAE law also protects commercial reputations, so those operating on-line sites or social media pages that allow the public to provide feedback (eg. about poor service and the like) should familiarise themselves with the risks to which they may, as site operators, be subject.\r\n\r\n<strong>Content contrary to morality, social cohesion, etc.</strong>\r\n\r\nThe Cyber Crimes Law makes it an offence to use any IT means for activities which are inconsistent with public morals and good conduct. This could include content that is un-Islamic, blasphemous, lewd, that encourages sinful activity, or that is aimed at corrupting minors, etc. It can also extend to content that might negatively impact on social cohesion and peace, such as content that that stirs sedition or sectarianism, mocks the leaders of the nation, or that hurts national unity or social peace. UAE law contains some interesting provisions relating to the responsibility of site operators for user generated content that is considered to breach these types of prohibitions, and some interesting provisions relating to the extra-territorial application of UAE law in an on-line context. Once again, users of social media should familiarise themselves with the social mores of the UAE, and the applicable law.\r\n\r\nAl Tamimi’s Technology, Media &amp; Telecommunications team regularly advises on a variety of social media issues, ranging from preparing social media policies for corporate use through to removing fraudulent social media profiles and addressing defamatory content. For any assistance with legal issues involving social media, please contact Nick O’Connell  n.oconnell@tamimi.com or Anita Siassios a.siassios@tamimi.com'),
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(88036, 4789, 'content', 'October 2013\r\n\r\n<hr />\r\n\r\n<strong>What is a “spin-off”?</strong>\r\n\r\nA spin-off is the creation of an independent company through the roll-over of an existing business/division of a company to a new legal entity.  A spin-off operation is where a company, which engages in various activities, creates a new company which specialises in one specific area of business.  The company spins-off the business to a newly created company in which the shareholders are identical to the shareholders of the original company spinning-off that business.  Following the transaction, both the original company and the new spun-off company are completely separate and independent legal entities.  The newly-created entity will be specialised in one activity.  Consequently, following the spin-off exercise there would be different specialised activities within one group of entities.\r\n\r\n<strong>Reasons for a Spin-Off</strong>\r\n\r\nSpin-off transactions have the ability to create new opportunities for companies.\r\n\r\nSome reasons why a company would engage in a spin-off include:\r\n<ul>\r\n 	<li>Focus on its core business and present a clearer financial picture of the separate entity;</li>\r\n 	<li>Have a better targeting of investors;</li>\r\n 	<li>Develop and realise full shareholder value;</li>\r\n 	<li>Refocus one activity which creates a positive effect on the valuation of shares;</li>\r\n 	<li>Give a better allocation of internal capital within the conglomerate;</li>\r\n 	<li>Assist in improving the performance of management;</li>\r\n 	<li>Be more responsive to the market’s evolution;</li>\r\n 	<li>Assisting in tax planning;</li>\r\n 	<li>Creating a positive effect on the valuation of a conglomerate and therefore on the value of the securities held by the company’s shareholders ; and (perhaps most importantly)</li>\r\n 	<li>Provide asset protection concerning the debts of one particular business activity. For the original company, perhaps the principal benefit of spinning off a troubled or risk-ridden operation is that the market value of the presumably profitable remaining businesses may be enhanced by the elimination of risk-ridden or under-performing assets.</li>\r\n</ul>\r\nThese reasons explain and justify the rationale for companies using this alternative option as a key solution to improving their financial performance and efficiency.  However, in sophisticated tax jurisdictions, care needs to be taken that the disposal of a part of the business does not trigger tax consequences such as a capital gains tax disposal.  In fact tax consequences such as triggering capital gains tax events, or loss of an ability to utilise losses is perhaps the biggest down-side of a spin-off.\r\n\r\n<strong>Case Studies</strong>\r\n\r\nCorporate spin-off is not a recent phenomenon.  Since the wave of consolidation in the United States and Europe in the 1980s, some academic research has concluded that when a business conglomerate has various economic activities, its value decreases. A company’s value is negatively influenced by the diversification of its activities when it has at least two distinct business sectors.\r\n\r\nSince 2005, there have been significant spin-off transactions:\r\n\r\n• In 2006, creation of Arkema, separated from Total.\r\n\r\n• In 2008, creation of Axway, separated from Sopra Group.\r\n\r\n• In 2011, creation of TripAdvisor, separated from Expedia.\r\n\r\n• In 2011, creation of Aperam, separated from ArcelorMittal.\r\n\r\n• In 2013, creation of Osram, separated from Siemens AG.\r\n\r\nEven Expedia’s board has approved a plan that would break the company into two public companies. One would be a travel agency, focused on selling air, hotel and car rentals and the other one would be TripAdvisor, the travel reviews site that operates in 27 countries and 19 languages.\r\n\r\n<strong>Qatar</strong>\r\n\r\nChapter 9, Section 3 of the Qatari Commercial Companies Law (Law No. 5 of 2002) allows for corporate spin-offs.\r\n\r\nAccording to the Qatari provisions, a company may be divided into two or more companies with either termination or preservation of the company subject to division. Moreover, the companies arising from the spin-off have an independent legal personality with all its respective effects (Article 278).\r\n\r\nThe new company which is spun-off is able to take any of form permitted by law (Article 279).\r\n\r\nCompanies resulting from the spin-off shall be successors to the initial company, and shall be its legal substitute within the limits of what has been transferred to it from the initial company (Article 280).\r\n\r\n<strong>How Corporate Spin-Offs  May Be Useful In Qatar</strong>\r\n\r\nCorporate spin-offs may help attract investment in Qatar. Since the new entity is specialised in one specific sector, the new investor can have a better picture of its economic health.\r\n\r\nIn addition, a spin-off transaction creates a separation of the different companies’ legal status and results in one entity becoming immune from problems of the other. Therefore, a company would not be liable for the debts of another company within the same group. This can also work for carving out toxic assets.  However, factors such as timing and economic specificity of the country are critical to successful spin-off planning.\r\n\r\nGiven the structure of many Qatari companies, especially family businesses that have traditionally developed into multiple-sector operations, a corporate spin-off may prove to be an attractive option to increase financial performance and diversify their activities and concentrate their efforts on one sector; and the market may react positively to announcements of spin-offs.  Furthermore for family business in estate planning and succession it may be an effect mechanism to divide assets amongst family members simply and can be used inter vivos as well.\r\n\r\nFor 100% Qatari-controlled businesses, there are no tax consequences in undertaking a spin-off, but for companies that have foreign shareholding, tax does become a consideration that needs to be taken into account.'),
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(88059, 4790, 'content', 'October 2013\r\n\r\n<hr />\r\n\r\nBreathtaking projects competed in turn with astounding initiatives to make up what seemed an unending march of economic progress.  In that hectic year, the then Minister of the Economy of the UAE, Shaikha Lubna Qasimi,  was quoted in the media as announcing that the UAE Government was introducing a new Companies Law.\r\n\r\nMuch has changed since 2006, but the UAE Companies Law has not.  The global financial crisis of 2008 was a fiscal asteroid which changed the business landscape.  The crisis is now recognised as a near miss with economic catastrophe, which could well have taken the world to the bottom of an economic abyss almost as deep and black as that which opened in 1929.\r\n\r\nThe 2008 global financial crisis left casualties.  Many of the breathtaking projects and astounding initiatives were scaled back or abandoned altogether.  Likewise, the UAE Companies Law is yet to be enacted.\r\n\r\nThe long delay has not been kind to the draft Law.  Reports circulating in 2006 foreshadowed a new corporate framework with more sophistication and flexibility than any in the region; a Law far more advanced than the 1984 UAE Companies Law which would accommodate the “leading edge” deal making and the sophisticated legal and financial arrangements fashionable before the 2008 crisis.\r\n\r\nAround 2008, the draft Companies Law disappeared into a Bermuda Triangle of opaque government committees and processes.  The draft resurfaced only in 2012.  To the dismay of many, the new draft Law had regressed back to the 1984 law, with an extensive but superficial touch up.  Most provisions have been “fine tuned” but nothing much has changed.  It will be difficult for observers to detect changes in business practices or legal processes when the new law is enacted.\r\n\r\nAlthough the draft Law has now received the approval of Federal National Council it has no force of Law until the UAE Council of Ministers approves it and the Federal Supreme Council enacts it.\r\n\r\nMedia reports on the new Companies Law have until recently speculated it would liberalize the existing 49% limit on foreign investment (possibly in services sectors and in the areas of “mega projects” of national importance). Foreign investment policy issues have been kicked down the road into a new Investment Law, which to date remains unseen.\r\n\r\nThe new Law reflects a conservative and minimalist approach to corporate law reform.  So the problems are not the provisions which were included but the provisions which were not\r\n\r\nBelow is my top five “wish list” of things which are missing from the new Law but which would be welcomed as reforms.\r\n\r\n<strong>1.   No provision for sell-downs in IPOs</strong>\r\n\r\nUnder both the 1984 Law and the new Law, public offerings in public joint stock companies must constitute fresh capital raisings and there is no ability for founding shareholders to sell down.  This restriction on sell-downs reduces the attractiveness of local financial markets to issuers and renders UAE IPOs of limited use as a liquidity exit for private equity players.\r\n\r\n<strong>2.   No differential voting rights and no provision for non-voting shares</strong>\r\n\r\nJust as in the 1984 law, every issued share must be a voting share with the same voting rights attached.\r\n\r\nThis inflexibility inhibits sophisticated financing transactions and also creates problems for family businesses wishing to put in place orderly succession and stewardship.\r\n\r\n<strong>3.   No possibility of removing entrenched statutory pre-emptive rights in LLC companies</strong>\r\n\r\nUnder the 1984 Law every shareholder in an LLC has a statutory right of pre-emption over all the other shares that they do not hold and this regime continues under the new Law.\r\n\r\nIt would be flexible and useful if shareholders could opt in or out of pre-emptive rights in any LLC, according to the terms of the Company’s agreed Memorandum of Association.\r\n\r\n<strong>4.   No takeover code for listed companies</strong>\r\n\r\nThe 1984 Law provides no machinery securing investors in listed companies with an adequate timeframe to consider any proposal for change in control; nor does it specify the type of information which should be provided to investors where a takeover bid is made.  There is no compulsory acquisition machinery to provide a way for successful bidders to “mop up” non-responsive small minorities.\r\n\r\n<strong>5.   No statutory assumptions as to powers of company managers</strong>\r\n\r\nThere would be great benefits to the facilitation of everyday commerce, finance and dealings with government authorities if the new Law specified statutory assumptions which outsiders dealing with general managers of Companies are entitled to make; in particular, outsiders should be able to assume that a general manager of a Company has the power to enter into transactions and sign official documents for and on behalf of the company without viewing notarial powers of attorney given by shareholders.  However, to work to best effect, those provisions would require the back-up of a public and online database of company managers, a public record which presently exists only in relation to the officers of DIFC companies.\r\n\r\nAbove are the top five things which are missing, here are my top five changes which you will notice when the new Law comes into force:\r\n\r\n<strong>1. Abolition of the “two shareholder” rule in the case of LLCs.</strong>\r\n\r\nLLCs continue to be restricted to fifty shareholders but they will be permitted to have only one shareholder.\r\n\r\n<strong>2. Ability to pledge shares in LLCs. </strong>\r\n\r\nThe new law expressly permits shareholdings in limited liability companies to be pledged to secure debts.  It is not clear if only banks licensed by the Central Bank will be able to take the benefit of such pledges as security (a restriction which applies to real estate mortgages).\r\n\r\n<strong>3. The ceiling of five on the number of individuals who can serve on the Board of Managers of an LLC will be removed by the new Law.</strong>\r\n\r\n<strong>4. New prohibition on joint stock companies providing financial assistance in connection with the acquisition of their own shares or bonds </strong>\r\n\r\nThis will be the first time UAE Law has imposed a prohibition on financial assistance in these transactions.\r\n\r\n<strong>5. Strategic placements permitted in joint stock companies without pre-emption rights applying </strong>\r\n\r\nThis allows the issue of new joint stock company shares through placements to particular investors without having to exhaust the statutory pre-emption rights over new issues, provided the placement is made to a strategic investor involved in the same or a related industry as the company.\r\n\r\nAside from the long period taken to deliver a modest degree of change, the other curious thing about the new Law is that it does not incorporate provisions which would facilitate sophisticated financial and legal structures and arrangements commonly used in the UAE.  Ironically, many of these sophisticated structures and arrangements are used by government owned business and investment entities.  The new UAE Law is also less sophisticated and flexible than the DIFC Companies Law and the corporate laws recently enacted in some other GCC countries, including Bahrain, Qatar and Kuwait.\r\n\r\nThe new Law is undoubtedly a step forward, but it is a conservative and carefully measured small step forward, not a great leap for law reform.\r\n\r\n<em>First published in Zawya, September 2013</em>'),
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(88074, 4791, 'content', 'October 2013\r\n\r\n<hr />\r\n\r\nWith a ‘head for figures’ and an interest in finance, New Zealand-born Kevin Hall seemed destined for a career in financial services.  He studied Accountancy at the University of Auckland and his first job was with the National Bank of New Zealand where he worked in general banking and as a branch accountant.  This was followed by a role as the financial controller for Trust Bank – a new bank that was being set up in New Zealand, where Kevin then spent 7 years.\r\n\r\nKevin’s first foray into the world of law firm management came when he joined leading New Zealand law firm Brookfields in 1996 as financial manager.  During the next 11 years, Kevin’s role grew to include managing the IT, marketing and administration functions of the business and he was appointed CEO of the firm.\r\n\r\nIt was in 2007 that Kevin began thinking about the next step in his career and with their children away at university, he and his wife Arlene began thinking about opportunities further afield.   “We originally considered Hong Kong – a lot closer to home than the Middle East!” laughs Kevin.  “But an opportunity arose at Al Tamimi &amp; Company which all of a sudden made Dubai seem like an attractive option.”\r\n\r\nKevin travelled to Dubai to meet with the partners of the firm and was immediately enthused at the prospect of the role at Al Tamimi.  “The firm had a great reputation and an exciting vision for the future.  I was confident my skills were transferable and my meetings with the management team were very positive – I was sure I could bring a lot to the firm and play an important part in its growth.”\r\n\r\nIndeed, since Kevin joined the firm in 2007 Al Tamimi has witnessed phenomenal growth.  The firm has seen new international offices open in Jordan, Qatar, Kuwait and Saudi Arabia and lawyer numbers grow from 99 to over 240.  As General Manager, Kevin is responsible for the firm’s overall business operations, with key functions including developing and executing strategic and operational business initiatives, preparing financial budgets and helping to manage the firm’s overall financial performance. With a regional management team in place, Kevin also keeps a handle on the  firm’s day-to-day operations, including Accounting, HR Management, Marketing/Business Development and IT.\r\n\r\nKevin has been quoted as being ‘instrumental in successfully guiding the firm through unprecedented tumultuous economic times in the Middle East’ and his leadership skills and professionalism have earned him the respect and admiration of many who work with him.  This feeling is entirely mutual as he credits the best part of his job as being “the people I work with – hands down.”  Kevin has nothing but the highest praise for the people he works with – from the partners and lawyers to the support and administrative staff – and considers everyone’s contribution to the success of the firm as invaluable.  “We work in a very multi-cultural environment at Al Tamimi – which is both rewarding and extremely interesting.  As a firm we celebrate Eid, Diwali and Christmas and I think the inclusive, supportive and respectful environment we have created for all of our people – no matter what faith or nationality – speaks volumes about the nature of the firm.”  Kevin goes on to state that “we are without a doubt the most successful firm in the Middle East and it is great that everyone gets to be a part of that.”\r\n\r\nManaging so many people and being involved in so many departments means Kevin’s role is a varied and challenging one.  “No two days are the same,” he says.  Kevin has to be available to deal with the non-routine issues that arise when managing a firm of Al Tamimi’s size but he also has to focus on the long-term strategic plans for the firm.  “It certainly can be challenging,” he notes.  “Law firms are unusual and totally different to standard corporate structures.  Dealing with a partnership where numerous people have an interest means everyone needs to feel included.”\r\n\r\nManaging the business services side of the business means Kevin also has a responsibility for client service – another area that brings an array of challenges.  “The world is constantly changing,” he says.  “The days of writing a letter, sending it by post and waiting a week to receive a response are over.  We constantly need to upgrade our technology and evolve our own internal compliance processes to meet these challenges.  We have an obligation to operate in a way that protects our clients and ourselves and not getting it right would be catastrophic…  Not getting it right is not an option”.\r\n\r\nKevin is quite clearly a man committed to Al Tamimi and someone who speaks extremely proudly of the firm and its achievements.  Happy at work and happy at home – he and his wife ‘love life in Dubai’ – Kevin sees no move back to New Zealand for the foreseeable future and looks forward to being a part of Al Tamimi’s success for quite a while longer.'),
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(88085, 4792, 'content', 'October 2013\r\n\r\n<hr />\r\n\r\nThis concession entitles a creditor the right of priority to approach and obtain his claim from his debtor’s money before any other creditors. Permission for this priority is given when the priority of a debt is being separated from other debts and consideration is given only to a debt that guarantees recovery for creditor or the person whom a judgment is made for.\r\n\r\nAn insurance loan is a contract that earns the creditor dedicated real estate to settle his pledge in kind, and as a result he has the right to approach ordinary creditors and those below him in ranking to settle his right through the value of the estate regardless of who it is held with. Priority is defined as an in kind right in that it entitles the creditor precedence to require consideration because of his quality and as decided by legal text. Debts that have a priority quality are known as preferential debts whereas those without this quality are known as ordinary debts. Priority rights are divided in civil law to public preferential rights and private preferential rights. A public preferential right entitles the creditor to recover his debt prior to any of the other creditors from the whole of the debtor’s money and is similar to the right of the state to recover income tax imposed on the mortgaged real estate. These are rights that are redeemed against the whole of the debtor’s money from moveable assets and real estate in accordance with the provisions of Article 1426 of the Civil Code. Certified listed bonds are paid to the creditors as part of the conditions set out in each of their bonds and in order of sequential priority ranks. A higher ranking creditor has a prevailing right over a lower ranking creditor.\r\n\r\nDiscussion surrounds the situation where there is contention between the state’s rights in settling the moneys, resulting in custody of the mortgaged money from taxes and penalties, with the rights of the pledging creditor in a situation of execution against the mortgaged money and its sale at auction. Here is where a conflict lies between public priority (priority of state funds) and private priority (individual or company priority) and which of those has first claim to the value of the real estate that has been sold at auction, through the transfer of demanded rights from the property to the value. An interpretation of the Jordanian Judicial Council states that contention between the Treasury in settling its public preferential priority rights with a creditor with special priority results in the creditor with final position advancing in recovering his debt from the mortgaged money against the Treasury with a public preferential loan. The Treasury’s public right in recovering its debts and collecting them is a public preferential right, while those creditors pledging a real estate mortgage have a personal priority. Based on that, contention of the Treasury in recovering its preferential rights through public priority with a lender creditor with private priority causes the last creditor to supersede his ranking in recovering his debt from the debtor’s money against the Treasury with public preferential priority.\r\n\r\nThe law makes an exception to a mortgage bond from this priority in only one case – liquidation of a company that owns real estate registered under its name that is subject of an insurance / lien of a mortgage, by virtue of Article 256 of Companies Law No. 22 of 1997 (relating to the debts of a company under liquidation). We find that this Article has arranged ranking of debts against a company under liquidation in the following manner:\r\n<ol>\r\n 	<li>Liquidation expenses including the liquidator’s fees.</li>\r\n 	<li>Amounts owed by the company to the employees.</li>\r\n 	<li>Amounts due to the state Treasury and municipalities.</li>\r\n 	<li>Amounts in lieu of rent due to the owner of real estate rented to the company.</li>\r\n 	<li>Other amounts due in accordance to the order of priority and in accordance with applicable laws.</li>\r\n</ol>\r\nIn accordance with the interpretation of the Jordanian Judicial Council of Article 256 Companies Law, the ranking of a creditor of a mortgaged loan against real estate who is attempting to settle his debt falling custody of the liquidated company follows ranking of priority rights set out in Article 256. Thus, in ranking, his position comes after rental moneys due to a landlord, as long as no other law contains another provision that sets out the advancement any preferential right in recovering against the creditor. The order of priority ranking that a creditor enjoys during liquidation of a company and sale of its assets and funds, including pledged moneys, follows the priority of ranking set out above and in more detail in Article 256 Companies Law No. 22 of 1997.'),
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(88108, 4793, 'content', 'October 2013\r\n\r\n<hr />\r\n\r\nLocal entities are in continuous need to expand their business and engage in new projects in order to keep pace with an ever growing competitive market. Naturally, these expansions and considerable growth are accompanied with a number of legal issues that may turn into legal disputes.\r\n\r\nOne of the main reasons for disputes is a default of payment and the subsequent rescheduling of the debt. Lending banks regularly come across an important question when entering into a rescheduling agreement with their borrowers - does a promise to give security over real estate assets give rise to any property rights over those assets in favor of the secured party?\r\n\r\nUnder Kuwaiti law a promise to give security over assets is considered a ‘promise to enter into a contract’. Under the Kuwait Civil Law, “a promise to enter into a contract” is an agreement between two or more parties according to which one party promises to execute a specific contract in favor of the other party (‘a Promise Agreement’).\r\n\r\nThe Kuwait Civil Law provides for specific formal requirements for the conclusion of a Promise Agreement:\r\n<ol>\r\n 	<li>There must be consent (consent of both parties to enter into the underlying contract);</li>\r\n 	<li>The obligation created by the underlying contract must be valid, applicable and possible; and</li>\r\n 	<li>The cause must be legal.</li>\r\n</ol>\r\nAs long as the formal requirements mentioned above have been met and satisfied with respect to the Promise Agreement, the promise will be considered as a contractual obligation. As such, any failure by the promising party with respect to the execution of the agreed upon contract is considered as a breach of a contractual obligation, entitling the counter party to claim for compensation for any damages and losses sustained as a result of the breach.\r\n\r\nIn this respect, a lender may be in a position to claim for damages arising out of the borrower’s failure to execute a pledge or mortgage on the asset. Nevertheless, a claimant must effectively prove the losses and damages sustained in order to be entitled for compensation.\r\n\r\nIn such cases, a lender may be in a position to file either of the following lawsuits before Kuwaiti Courts:\r\n<ol>\r\n 	<li>A claim requesting the court to execute a mortgage on specific assets of the borrower (if the Promise Agreement specified the properties to be mortgaged in favor of lender);</li>\r\n 	<li>A claim requesting the court to execute a mortgage on any of the borrower’s assets (if the Promise Agreement did not specify which of the properties was to be mortgaged in favor of the lender); and</li>\r\n 	<li>A claim requesting the court to oblige the borrower to pay an amount equivalent to the asset’s value plus compensation (if an asset was specifically determined).</li>\r\n</ol>\r\nGenerally it can be said that in the event the court establishes that specific performance (i.e. the execution or perfection of a mortgage) by the defendant is practically impossible for any reason, the court will likely consider an equivalent payment plus compensation. The compensation under Kuwait Law is calculated according to the damages suffered and loss of profits.\r\n\r\nFinally, the statute of limitations to file a lawsuit for any breach of contract, under Kuwait Law and with respect to a Promise Agreement, is 15 years.\r\n\r\nIn the future, we will discuss how a Promise Agreement may vary on a case by case basis.'),
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(88131, 4794, 'content', 'October 2013\r\n\r\n<hr />\r\n\r\nThe CPC also provides for the necessary procedural rules that UAE Courts should consider when adjudicating lawsuits. The CPC is technically a set of rules that govern and determine the procedures litigants should follow to assert their rights (claims), the process of obtaining and appealing judgments and the method to enforce judgments in the UAE.\r\n\r\nGenerally speaking, there are two types of legal proceedings under the CPC; substantive and summary legal proceedings. However, in practice there is a third type that could be available under the CPC where both summary and substantive proceeds are combined. The third type of legal proceedings is known under the CPC with the name of “Order for Payment” under which a claimant requests payment of money (which is a substantive request) through summary proceedings filed before the summary court.\r\n\r\n<strong>Substantive Proceedings </strong>\r\n\r\nThe CPC provides for a claimant’s right to file substantive legal proceedings before the competent court (e.g. Court of First Instance). According to Article 42 of the CPC, the claimant shall file with the competent court a written statement of its claim stating the facts establishing the dispute. Such statement of claim must also enclose a list of dockets evidencing the facts stated by the claimant. On the other side, the defendant will have to prepare its defense statement and list of supporting documents. Substantive proceedings can last for 1- 2 years.\r\n\r\n<strong>Summary Proceedings </strong>\r\n\r\nThe CPC also provides for a claimant’s right to file summary legal proceedings before the summary court. Summary proceedings are meant to adjudicate disputes, which are subject to fear of losts by passage of time, without affecting the original right, rather by only issuing a temporary order for the purpose of protecting or preserving an existing condition or right. Precautionary attachment and travel ban orders are common examples of summary orders issued pursuant to summary proceedings.\r\n\r\n<strong>Payment Orders</strong>\r\n\r\nAs an exception from the general procedure in Article 40 of the CPC, a creditor may follow a shortcut for obtaining a direct order for payment from the summary court. In other words, the creditor can obtain a court judgment against its debtor within 48 hours from the summary court. This is usually called an “Order for Payment”.\r\n\r\nAccording to Article 143 of the CPC, if the debt owing to the creditor is proved in writing and is immediately due for payment, and if the only thing the creditor is claiming is a money debt of specified amount or a moveable of specified type or amount, the creditor is entitled to file an order for payment application in the summary court requesting immediate payment of its debt.\r\n\r\nClearly, the aforementioned conditions apply to payment instruments generally used by traders, banks and financial institutions. In the UAE, banks and financial institutions are familiar with cheques, bills of exchange and promissory notes which are all valid for establishing the main legal requirement for obtaining orders for payment.\r\n\r\nIn practice, the creditor must notify its debtor to pay the due debt within a stipulated time. This usually occurs by serving a legal notice on the debtor through the notary public in order to evidence the debtor’s nonpayment. Once the grace period given by the creditor lapses, the creditor becomes entitled to file its application for a payment order in the summary court. The summary court shall handle such application on an urgent basis and issue its decision within 48 hours.\r\n\r\n<strong>Summary Judge Decision </strong>\r\n\r\nAccording to Article 145 of the CPC, if the summary judge decides not to grant the order for payment for any reason, the summary judge must refrain from issuing the order for payment, and must fix a hearing to determine the action before the competent court. In other words, the summary judge must transfer the payment order application to the Court of First Instance where the application becomes a substantive claim subject to the usual litigation procedures and formalities.\r\n\r\nAccording to the CPC, the summary judge is prevented from dismissing an application for an order for payment no matter what the grounds of the dismissal are, whether linked to incorrect procedures or lack of jurisdiction, or linked to the debt. In such cases, the summary judge must avoid issuing the order for payment, and shall schedule a hearing for the trial before the competent court.\r\n\r\nIf the summary judge decided to transfer the order for payment application to the competent court, there will be no extra cost on the applicant since (i) the court fee paid to the summary court for granting the order for payment is equivalent to court fee payable to the competent court; and (ii) the summary judge is not considered to have rejected the order for payment application; rather the summary judge has transferred it to another judge who sits in an another court.\r\n\r\n<strong>Challenging Payment Orders </strong>\r\n\r\nA payment order is a judgment and hence is subject to challenge by the defendant (losing party). In practice and in line with Article 147 of the CPC, payment orders are subject to two ways of challenge; grievance and appeal. As explained in the Introduction, an order for payment is a combination of summary and substantive legal proceedings; hence it is challengeable by way of grievance (which is applicable to orders issued by the summary court) and appeal (which is applicable to judgments issued by the substantive judge).\r\n\r\nAccording to the CPC, the defendant has the right to file a grievance within15 days from the date of notifying it with the order for payment. Also, the defendant has 30 days to appeal the order for payment following the end of the grievance time bar (i.e. starting from the end of the15 days).\r\n\r\n<strong>Interest </strong>\r\n\r\nSince orders for payment are meant to oblige a debtor to pay a certain and due amount of money pursuant to a written document, claiming interest is not possible. According to the available UAE case law on orders for payment, if an order for payment application contains the applicant’s request for interest, the summary judge has to transfer such application to the competent court as the summary judge is not authorized to award interest.\r\n\r\n<strong>Precedent</strong>\r\n\r\nUnfortunately, the available UAE case law related to orders for payment is very limited and unsupportive. UAE Courts have been reluctant to accept orders for payment applications. In fact, Dubai Summary Court has refused recently to decide on an order for payment application related to money due under a cheque.\r\n\r\n<strong>In summary</strong>\r\n\r\nAn order for payment is an exception to the general rule for claiming debts in UAE Courts. An order for payment is technically a combination of summary and substantive legal proceedings. In practice, there is limited precedent where orders for payment have been issued by UAE Courts. UAE summary judges tend not to decide on orders for payment applications; they rather transfer such applications to the competent court in line with the provisions of the CPC.'),
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(88154, 4795, 'content', 'October 2013\r\n\r\n<hr />\r\n\r\nIn order to pave the way for such expansion states have started to form trade unions and to enter into bilateral agreements with other states for the creation of a more transparent investment legal framework which protects the interests of their respective investors and workers. The focus for investment has been on countries with developing economies and steady growth within a safe environment. The Sultanate of Oman presents itself as one of the options which meets such criteria.\r\n\r\nThis article outlines the regulatory environment for foreign investment in Oman, the investment incentives provided by the government of Oman, the pitfalls associated with such investment and how to avoid them.\r\n\r\n<strong>Investment Legal Framework </strong>\r\n\r\nA combination of regional and international agreements and local laws has formulated the legal framework for GCC and foreign investment in Oman. Examples of agreements which have had a remarkable impact on the size of GCC and foreign investments in Oman are:\r\n<ol>\r\n 	<li>The Unified Economic Agreements Between Countries of GCC signed on 1981 &amp; 2002 (UEA)</li>\r\n 	<li>The Marrakesh Agreement on the Establishment of World Trade Organization (WTO), ratified by Sultani Decree number 112/2000</li>\r\n 	<li>The Free Trade Agreement with the USA (FTA), ratified by Sultani number 109/2006</li>\r\n 	<li>The Free Trade Agreement between the Republic of Singapore and GCC states, ratified by Sultani Decree number 8/2009</li>\r\n 	<li>The Free Trade Agreement between GCC states and the European Free Trade Association (EFTA), ratified by Sultani Decree 43/2010</li>\r\n 	<li>Bilateral Investment Agreement between Oman and other states like Britain, France, Pakistan, Austrian and Yemen.</li>\r\n</ol>\r\nThe obligations in these agreements are reflected in local laws and regulations in the form of Sultani Decrees issued by His Majesty, the Sultan or Ministerial Decisions issued by his ministers.  The main local law which regulates foreign ownership is the Foreign Investment Law (FCIL), promulgated by Sultani Decree number 102/94 as amended.\r\n\r\nThe most common legal form adopted by foreigners to carry out business in Oman is a limited liability company (LLC). An LLC must have at least two shareholders, often referred to as partners in LLCs. One of them must be an Omani national (whether natural or corporate entity) with an ownership of at least a 30% shareholding of the company.\r\n\r\nOman’s accession to the Unified Economic Agreements Between Countries of GCC and the subsequent issuance of high GCC council decisions and ministerial decisions to implement the provisions of the said agreement, has resulted in permission for GCC nationals (whether they are natural persons or corporate entities wholly owned by GCC nationals) to own the 100% shareholding of an Omani corporate entity (with a few exceptions, including by way of an example, commercial agencies).\r\n\r\nAmerican nationals are accorded similar treatment as Omanis following the implementation of the provisions of the Free Trade Agreement with the USA,  with the exception of the activities included in a list enclosed in a separate schedule to the trade agreement. These excluded activities are common to all foreign nationals.\r\n\r\nBy way of examples of excluded activities, ownership and investment in real estate by foreigners is restricted in designated tourist areas. Secondly, foreign nationals can only own up to 70% shareholding in any enterprise established in Oman that provides legal services. Real estate brokerage services can be carried out only by Omanis (pursuant to the provisions of Sultani Decree No 78/2000 which promulgates the Law Organizing Brokerage Profession in Real Estate Activities). There are other activities like employment placement services, investigation and security services, printing and publishing services, and radio and television transmission services. As these activates are regulated by specific laws legal advice should be sought by the foreign investor intending to carry out investment in such activities to identify the best legal mechanism for its investment.\r\n\r\nHowever, there are some practical issues in the implementation of the USA Trade Agreement by various government bodies (including the Royal Oman Police (customs department), Ministry of Commerce and Industry and Ministry of Manpower) because the interpretation of the trade agreement is left for those bodies to adopt. This can create inconsistencies that take time to overcome. By way of an example, the Ministry of Commerce interprets the provision relating to national treatment in terms of investment as giving the right to American nationals to be treated on equal basis with Omanis while Ministry of Manpower still treats American nationals as foreigners when it comes to issuance of labour clearance for Omanization purposes. Would national treatment provisions or any other similar provisions extend to the workforce or not? It is an area which is still under further scrutiny, and as it is the case with many trade or investment agreements not all issues are thought of or considered during the negotiations between the parties or covered expressly in the text of the agreement.\r\n\r\nApart from GCC and American nationals, the practice implemented by the Ministry of Commerce and Industry responsible for the registration of companies in Oman is that a foreign investor may not own more than a 70% shareholding in the share capital of a corporate entity, and the remaining is legally required to be owned by a local Omani partner as mentioned above. However the profit and loss of the business can be split between the foreign and local shareholder on any other percentage, as it does not need to be proportionate to the shareholding ownership. This depends on the partners’ contribution in the business which is entirely a commercial arrangement. Such percentage could, for example, be 80/20 or 99/1.\r\n\r\n<strong>Investment Incentives</strong>\r\n\r\nThe Foreign Investment Law  provides for a number of incentives for foreign investment which includes exemption from payment of income tax subject to the following conditions:\r\n<ul>\r\n 	<li>That the income is realized directly from the main activity of the company in the following fields (except management and projects contracting execution):</li>\r\n</ul>\r\n<ol>\r\n 	<li>Industry in accordance with the provisions of unified industrial regulatory law of GCC states</li>\r\n 	<li>Mining pursuant to the provisions of mining law</li>\r\n 	<li>Export of products manufactured or processed locally</li>\r\n 	<li>Operation of hotels and touristic villages</li>\r\n 	<li>Production of farms and processing of its products</li>\r\n 	<li>Fishing and fish farming</li>\r\n 	<li>Undergraduate studies or colleges or high institutes or private schools or training colleges or nurseries</li>\r\n 	<li>Medical care through establishment of private hospitals.</li>\r\n</ol>\r\nThe exemption period from income tax is five years from the date of commencement of carrying out the activity, and can be renewed for another five years in case of necessity.\r\n\r\nA number of free zones have been established in the last ten years along the coast of Oman which include Sohar Free Zone, Salalah Free Zone and Al Mazyunah Free Zone. Free zone companies are eligible for exemption from income tax, corporate tax, and customs. They also allow for 100% foreign ownership, full repatriation of profit and capital, and low start-up capital.\r\n\r\nIn addition to this is the Public Establishment for Industrial Estates (PEIE), which was established in 1993 through issuance of Sultani Decree number 4/1993. Its main objective is to plan, establish, administer and develop industrial estates across Oman. There are eight industrial estates in total in the Sulanate. These industrial estates all have facilities that an industrial estate requires with investment incentives, which includes exemption from income tax and customs, as well as loans from the government for fisheries, agriculture, health and traditional handicraft activities.\r\n\r\nThe income tax rate is 12% which is applied to all non-freezone companies registered in Oman equally regardless of the percentage of the foreign shareholding.\r\n\r\n<strong>Investment Pitfalls  </strong>\r\n\r\nIt is a common practice for a foreign investor to enter into a private agreement with an Omani local partner or owner of sole proprietorship. A cautious approach must be taken when entering into these types of arrangements as some have been held to be void by the courts in Oman. The owner of a sole proprietorship is considered to be the legal holder of the license and therefore liable for all debts vis-à-vis third parties and it cannot be agreed otherwise with the foreigner who manages and runs the business for his own interest. Another example of void transactions found in the case law are those agreements in which the Omani partner is not entitled to or responsible for any profit or loss generated by the company, but instead receives an agreed fixed monthly or annual amount. Generally, lock-in clauses whereby one or both parties are obliged not to terminate the contract during a particular period or not to sell their shares to a third party are not recognized by Omani courts.\r\n\r\nEntering into arrangements which are subsequently held to be void will result in the closure of the business. Seeking the right legal advice for a foreigner intending to invest in Oman is essential and any agreement must be reviewed before it is entered into to confirm its validity. It should also be noted that the documents registered with the authorities in Oman supersede any private agreements if there is a conflict. As it is often the case that a foreigner manages the LLC, his powers must be outlined clearly in commercial registration documents to avoid acting outside those powers as there is responsibility on managers under the provisions of commercial law to act in the best interest of the company.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nOman remains an attractive investment opportunity for many foreign businesses especially in infrastructure project and the associated services. Care must however be taken to ensure that the arrangements used to facilitate the investment are valid and made the most of the various freezones and incentives that Oman has to offer. It is worth noting that the foreign investment law and commercial companies law are being reviewed by the relevant authorities in Oman with the aim of relaxing the rules relating to foreign investment. A draft of the antitrust law has been finalized by Consumer Protection Authority but has not come to force yet. It is expected that this piece of legislation will promote fair competition, reduce monopoly in the market and remove practices that lead to restraint of trade.'),
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(88173, 4796, 'content', 'October 2013\r\n\r\n<hr />\r\n\r\nThe new law is better served to crack down on infringements and ensure a fair market for Chinese and foreign trademark holders.\r\n\r\nThe main aspects of the law consist of the following:\r\n<ol>\r\n 	<li>The new law has stricter penalties, raising the compensation ceiling for trademark infringement to 3 million Yuan (approximately USD 500,000/-), six times the previous limit.</li>\r\n 	<li>The new law contains a provision that trademark agencies are not allowed to accept designation if they are aware or should be aware that their clients are conducting a malicious registration or infringing on the trademark rights of others.  Agencies violating the law will face fines and a bad credit record filed by the industrial and commercial authorities.  In serious circumstances those involved will have their businesses suspended.</li>\r\n 	<li>The new law offers protection for “well-known” trademarks giving owners the right to ban others from registering their trademarks or using similar ones even if such brand names are not registered.  However, the words “well-known trademark” cannot be used in promotions or advertising.</li>\r\n 	<li>The draft also modified clauses regarding the examination period of applications for trademark registration so that the registration process can be more efficient.  The initial review period should last no more than 9 months.  In case objections are raised, examinations should be completed within 12 months.  On average the current review period is 30 months, however this can take anywhere between seven or eight years in case an appeal is launched.</li>\r\n 	<li>The Chinese Trademark Office also plans on introducing an electronic filing system although the Trademark Office has not provided an estimated time as to when they intend to implement the online filing and search system.</li>\r\n 	<li>Under the new law.  multi-class applications are also allowed. Currently, each application is only allowed to be filed in one class however, it is not clear as to when the Trademark Office will put into practice multi-class applications.</li>\r\n 	<li>The registration of sound marks is permitted under the new law though the examination standard and procedures have not been outlined.</li>\r\n 	<li>Collective assignment of trademarks has now been formally adopted in the law.  Note:  Collective assignment of trademarks is when a trademark owner files a request for the assignment of a trademark; the registrations for all identical and similar trademarks on identical and similar goods/services should be collectively assigned at the same time.</li>\r\n 	<li>As per the new law opposition procedures are shortened.  If the Trademark Office of China decides in favour of the application (i.e. the opposition is refused), the mark will immediately proceed to registration.  The losing opponent will no longer have a right to appeal to the Trademark Review and Adjudication Board and can only challenge the registration by filing an invalidation petition with the Trademark Review and Adjudication Board.  On the other hand, if the Trademark Office decides in favour of the opponent (i.e the party launching the opposition) the applicant of the trademark can appeal within 15 days from the issuance of the decision.  The Trademark Review and Adjudication Board’s decision will still be subject to an appeal before the court.</li>\r\n 	<li>It is hence very important for an opponent to submit full arguments and adequate evidence at the opposition stage.</li>\r\n 	<li>Prior use:  A registered trademark owner is not allowed to prohibit a prior user from continuing to use an identical/similar mark within the original scope of use, but may request the prior user to add appropriate markings to distinguish the marks.</li>\r\n 	<li>Damages:  the highest damages a person can obtain are the amount of actual loss, or the amount the infringer gained, or the amount of the actual royalties.</li>\r\n</ol>\r\nIn summary the new law should bring a certain degree of confidence into the Chinese market though certain aspects like the electronic filing system, multi-class registrations, acceptance of sound marks are still vague.\r\n\r\nAs of June this year, China held the world’s largest number of registered trademarks and valid trademark registrations, at 8.17 million and 6.8 million respectively, according to latest official statistics.'),
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(88196, 4797, 'content', 'October 2013\r\n\r\n<hr />\r\n\r\nUnder the new instructions, No 6 of 2012 (‘the Instructions’), the Organisation has established the ‘Unit for Fighting Counterfeiting, Investigation and Reporting’ (‘the Unit’). This is a specialised unit whose purpose is to follow up complaints received from the Internal Control Directorate, which is a directorate inside the Organisation that deals with complaints received from the owners of affected trademarks.\r\n\r\nArticle 3 of the Instructions details the mechanism by which the Unit is to verify the product holding the trademark. The Unit is to receive the product from the Internal Control Directorate or affected trademark owner, with the following attached:\r\n\r\na) If the product entered Jordan through its borders:\r\n<ol>\r\n 	<li>The serial number of the Customs declaration.</li>\r\n 	<li>The date of the Customs declaration.</li>\r\n 	<li>Import invoice.</li>\r\n</ol>\r\nb) If the product was already in the market:\r\n<ol>\r\n 	<li>The name and address of the shop or the importer who has counterfeited the products.</li>\r\n 	<li>The quantity of the counterfeited products.</li>\r\n</ol>\r\nThe Unit will then photograph the product using high quality cameras and specialised scanners, and send the images to the company who owns the trademark. The trademark owner can then investigate whether the product is original or counterfeit.\r\n\r\nIf the trademark owner is not satisfied with the photographs the Unit will send a sample of the product, thought the trademark owner will have to cover the delivery costs of this.\r\n\r\nOnce the trademark owner verifies the products they must inform the Unit in writing as to whether the product is indeed counterfeit or original.\r\n\r\nIf it is confirmed that the product is counterfeit, then under article 30(c) of the Law of the Organisation No. 22 for 2000, the Unit can do the following:\r\n<ol>\r\n 	<li>If the counterfeit product has entered Jordan through its borders, the Unit in collaboration with the Jordan Customs Department and the importer shall re-export the product.</li>\r\n 	<li>If the forged product was created in Jordan, then it shall be destroyed.</li>\r\n</ol>\r\nFurthermore, article 4 of the Instructions provide a mechanism to protect trademarks. The trademark owner and the Organisation are to reach an agreement detailing the following:\r\n<ul>\r\n 	<li>A mechanism for verifying trademarks</li>\r\n 	<li>A method for corresponding with any parent company should a counterfeit product be found.</li>\r\n 	<li>Providing support to the owner of the trademark through training employees or providing equipment such as specialised scanning machines that can ease the procedures for verifying the trademark.</li>\r\n 	<li>The annual fee to be paid by the trademark owner to protect the trademark. This is to be no less than JOD 20,000 for each trademark. The amount shall be determined based on the size of the company’s work, the amount of its sales, the trademark’s fame and its extensiveness, and the ability of the company to protect its trademarks. This fee is to be paid to the Organisation.</li>\r\n</ul>\r\nWhilst the Unit is new and remains largely untested, it is hoped that it will continue the strengthening of Jordan’s commitment and ability to protect trademarks.'),
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(88219, 4798, 'content', 'October 2013\r\n\r\n<hr />\r\n\r\nWhen an employee is suspected of misconduct or breach of policy, the employer is faced with a number of issues: whether to initiate its formal disciplinary process against the employee; how and when such processes should be implemented; and what mandatory local law requirements it must additionally follow (if any) prior to or upon imposing a disciplinary sanction on the employee, including but not limited to dismissal.\r\n\r\nThis article provides a general overview of the relevant legal requirements employers should be mindful of under Federal Law No.8 of 1980, as amended (UAE Labour Law) – the principal legislation regarding employment matters in the UAE (excluding the DIFC) – when proposing to and ultimately implementing disciplinary action and/or sanctions against its employees*.\r\n\r\n<strong>Disciplinary action – what should an employer do? </strong>\r\n\r\nIn the UAE, the disciplinary process does not vary significantly from procedures across many other jurisdictions such as the UK or Europe, offering some comfort for HR practitioners working for UAE subsidiaries of UK or European companies.  Employees in the UAE have the ability to bring claims for unfair/arbitrary dismissal and, depending upon the manner of termination and subject to various eligibility requirements, potentially also a claim for an end-of-service gratuity payment, which could, for long-serving, senior and/or highly remunerated employees, prove incredibly costly.\r\n\r\nThe statutory requirements governing disciplinaries are themselves fairly minimal but clearly dictate how a disciplinary procedure should be conducted: in accordance with Article 102 of the UAE Labour Law, an employer may impose certain disciplinary penalties on its employees, which include a warning, fine, or dismissal (with or without notice).  Article 110 of the UAE Labour Law imposes on the employer compliance with strict legal formalities, providing that the penalties listed under Article 102 may not be imposed unless:\r\n<ol>\r\n 	<li>The employee has been notified in writing of the allegations against him;</li>\r\n 	<li>The employee has been given an opportunity to comment on the allegations;</li>\r\n 	<li>The employer has investigated any defence provided by the employee in respect of the allegations;</li>\r\n 	<li>The process listed in (1) to (3) above is recorded in the employee’s personnel file, and the penalty noted at the bottom of the report.</li>\r\n</ol>\r\nIt is not possible to impose more than one penalty or to combine a disciplinary penalty with a deduction of part of an employee’s wages. Article 110 also states that the employee must be notified in writing of the nature of the disciplinary penalty, the reasons for the penalty and the action which would be taken against him in the event of repetition of offence (where relevant). There are very strict time limits within which disciplinary action must be taken.  An employer must initiate the disciplinary procedure within 30 calendar days of discovering the misconduct, and any disciplinary sanction within 60 calendar days of the investigation having been concluded and the employee’s guilt established.\r\n\r\nIn contrast to other jurisdictions, there are no statutory provisions or best practice guidelines detailing the notices to be provided to the employee or the conduct of any disciplinary meetings, apart from providing the employee an opportunity to comment on the allegations against him and to provide any relevant explanation or defence.\r\n\r\nGetting the procedure right before implementation of a particular disciplinary sanction (be that dismissal or otherwise) is important – and the implications of a failure to do so was underscored in a case before the UAE Federal Supreme Court (Case No. 208/2003) where the Court, rejected   decisions by the Courts of First Instance and Appeal and held that there was no evidence that disciplinary procedures under Article 110 had been properly followed and therefore held that an employer was not entitled to impose a disciplinary penalty.  Although the UAE (excluding the DIFC) is not a common law jurisdiction, and so judges are not bound by previous decisions, the judgments of the higher courts – such as the Cassation or Supreme Court – do hold persuasive authority.\r\n\r\n<strong>The law of unfair dismissal – a word of caution </strong>\r\n\r\nIt is common in the UAE to find employees engaged under unlimited term contracts, unless they are working on specific short-term based projects or temporary assignments, the nature of which lends themselves more to limited term contracts.  The type of contract an employee is working under will influence and ultimately dictate the degree of financial (or other) exposure an employer will have on imposing a particular disciplinary sanction, such as dismissal.\r\n\r\nAn unlimited term contract may terminate at any time, on written notice, provided at least 30 calendar days prior to termination.  In accordance with the UAE Labour Law, this must be for a “valid reason”.  Although there is no definition of a “valid reason” stated in the UAE Labour Law, an employee’s employment will be deemed to have been arbitrarily terminated if the reason for the termination was “irrelevant to the work”.\r\n\r\nIn our experience, the Labour Court will generally only accept a termination to be “valid” and thus decline to award arbitrary dismissal compensation, either where the employee is guilty of one of the specified (and exhaustive) gross misconduct reasons listed in Articles 88 and 120 of the UAE Labour Law, or where the employee is a poor performer or guilty of some other misconduct (and there is documentary evidence backing up the poor performance or misconduct).  The maximum compensation arising from a finding by the Labour Court of arbitrary termination is three months’ remuneration, based upon the last pay received by the employee prior to dismissal.  For these purposes, “remuneration” is the employee’s full pay (basic salary plus any monthly allowances).  In addition, where the employee receives commission, or regular or guaranteed bonus payments, these may also be taken into account by the Court for the purposes of calculating the employee’s remuneration.  The actual amount of the award, if any, is ultimately determined by the Labour Court.  Whilst the cap on compensation might be perceived from a costs-benefits ratio as fairly low-risk by some employers, what cannot be overlooked or discounted is the inevitable management time and legal costs that will be usurped in defending a claim brought by an aggrieved employee.\r\n\r\n<strong>Best practice </strong>\r\n\r\nIn order to avoid the legal consequences associated with dismissing (or imposing lesser sanctions on) an employee on disciplinary grounds, it is important that the employer follows a fair and reasonable process.  This should apply equally to cases of summary dismissal – if not more so – under Articles 88 and 120 of the UAE Labour Law.  It is recommended that, if not already in place, employers introduce a disciplinary policy (whether as part of the contract of employment, the staff handbook or a free-standing policy), which takes into consideration the minimum requirements set out in the UAE Labour Law. In addition, because each disciplinary situation will quite often be unique in its facts, there should be an element of flexibility embedded within any such policy to permit the employer the ability to exercise its reasonable discretion.  Any disciplinary policy should be communicated to all employees, be readily available for them to access, and serve as a guide throughout the disciplinary process.  It goes without saying that any disciplinary action taken, at any stage, should always be justifiable and considered in light of the specific and particular circumstances of the case, and, of course, the requirements mandated by the UAE Labour Law.\r\n\r\n_________________________________\r\n\r\n<em>* It should be noted that the termination of UAE national employees in the private sector  is regulated by Ministerial Decree No. 176 of 2009, which requires, in  certain circumstances, the consent of the Ministry of Labour prior to any decision by the employer to terminate.  Such  considerations are outside the scope of this article.   </em>'),
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(88234, 4799, 'content', 'October 2013\r\n\r\n<hr />\r\n\r\n<strong>Medical Complaints  </strong>\r\n\r\nThe Authority deals with medical complaints against healthcare providers and medical practioners working in the public and private sectors in Dubai. A medical complaint is any written or spoken expression of dissatisfaction with a healthcare service in the Emirate of Dubai.\r\n\r\nAll medical complaints are handled by the Health Regulation Department of the Authority. Medical complaints filed against healthcare professionals or entities are dealt with in a timely, professional and consistent manner by the Health Regulation Department. The Department will only accept complaints related to a health service or its quality.\r\n\r\nAll medical complaints will be considered, whether they are formal written complaints or a concern expressed towards a healthcare professional or institution in a customer feedback survey.\r\n\r\nThe Department will investigate the complaint and determine whether or not a healthcare professional’s actions or inactions constitute malpractice.\r\n\r\nMalpractice is an error that occurs due to a practitioner’s unfamiliarity with the technical aspects of a procedure being undertaken, or due to his negligence (see Article 14 of Federal Law No. 10 of 2008 (“The Medical liability Law”).\r\n\r\nHowever, a medical practitioner will not be liable in the following circumstances:\r\n<ol>\r\n 	<li>If the damage was sustained due to the action of the patient (i.e. refusing receiving treatment, failing to follow the medical instructions provided by persons supervising the patient’s treatment or due to an external cause).</li>\r\n 	<li>Where the physician followed a certain medical method when administering the treatment other than the generally accepted method, there will be no liability if the method nonetheless followed recognized medical principles.</li>\r\n 	<li>If the medical side effects and complications are known in the medical practice.</li>\r\n</ol>\r\n<strong>Complaint Procedure</strong>\r\n\r\nA medical complaint can be made by a patient affected by the actions or inactions of a healthcare provider. Medical complaints can also be made by someone acting on behalf of the complainant, provided that the complainant’s consent is obtained.\r\n\r\nA typed summary of the complaint with the Authority complaint form (which can be found on the Authority’s website) must be personally submitted by the complainant to the Department. Once a complaint is filed, all members of hospital staff who can provide information about the complaint (I.e. patient’s medical file) will be contacted.\r\n\r\nIf a complaint requires investigation, a panel of medical specialists will be formed to review the complaint. The final outcome of the investigation will be communicated to the complainant, the physician and the healthcare facility.\r\n\r\n<strong>Investigation Process</strong>\r\n\r\nThe Department deals with each complaint separately based on the severity of a complaint.  A thorough investigation of each complaint will be conducted and the Department will determine the causal link between the actions of the healthcare professional and the harm sustained by a complainant.\r\n\r\nThe investigation process at the Authority is as follows:\r\n<ol>\r\n 	<li>Department will contact the health care institutions involved in the complaint to obtain the complainant’s medical files,</li>\r\n 	<li>The Department will then separately invite the medical practioner/s and the complainant to the investigation;</li>\r\n 	<li>The panel will examine the complainant’s medical file, the complaint itself, and the testimonials from doctors, staff and other information before presenting their decision.</li>\r\n</ol>\r\nThe Department will then prepare a report on its findings and communicate their decision to the parties.\r\n\r\nThe Department will ensure that the complainant receives an apology, if appropriate, and will further assess the steps that need to be taken to avoid the issue from occurring again.\r\n\r\n<strong>Appeal Process</strong>\r\n\r\nThe appeal process is as follows:\r\n<ol>\r\n 	<li>The complainant can appeal the Department’s decision within 15 days of receiving the final result of the investigation.</li>\r\n 	<li>The appeal will be reviewed by another panel of medical specialists at the Department as well as the legal department of the Authority, and finally by the director general of the Authority who will render a final decision on the complaint.</li>\r\n 	<li>Appeals will be accepted if complainants have new evidence to support their appeal.</li>\r\n 	<li>The appeal will be reviewed and the parties (i.e. patient/healthcare provider) will be notified of the Authority’s final decision.</li>\r\n 	<li>Only one appeal is accepted per case.</li>\r\n 	<li>The Authority’s final decision will not be subject to any further appeals.</li>\r\n</ol>\r\n<strong>Disciplinary actions</strong>\r\n\r\nThe Authority is empowered to take the following actions should a complaint be upheld:\r\n<ol>\r\n 	<li>To reprimand the healthcare professional or facility;</li>\r\n 	<li>To send warning letters that similar violations in the future will result in temporary or permanent suspension of the physician licensee; revocation or refusal to renew the licensee’s Authority license;</li>\r\n 	<li>Further training for the licensee and supervision by another licensed healthcare professional.</li>\r\n</ol>\r\n<strong>Time Frame</strong>\r\n\r\nThe Authority normally takes between 6-12 months to render final decisions on complaints.\r\n\r\n<strong>The Dubai Healthcare City Authority </strong>\r\n\r\nDubai Healthcare City was established in 2002 to provide the best patient healthcare.\r\n\r\nThe DHCC hears medical complaints filed against hospitals and healthcare professionals within the healthcare city only.\r\n\r\n<strong>The Centre for Planning and Quality at the DHCC.</strong>\r\n\r\nThe Centre for Planning and Quality is an independent regulatory body with the role of setting and maintaining international best practice in healthcare delivery and patient care at the DHCC.\r\n\r\nEvery healthcare provider and professional within DHCC must meet stringent standards in order to be licensed by the Centre.\r\n\r\nHealthcare quality and patient safety are of the utmost priority for the Centre, and it ensures that standards are maintained through a series of ongoing requirements and inspections.\r\n\r\n<strong>Medical Complaints before the Customer Protection Unit </strong>\r\n\r\nThe Customer Protection Unit is responsible for all complaints against Centre licensees, healthcare professionals and facilities, public health and non-clinical facilities.\r\n\r\nThe Unit is responsible for managing the investigation of each complaint and presenting the complaints to the Health Professionals Council, Licensing Board and the Facility Committee at the DHCC, according to the Dubai Health Care City Authority’s Governing Regulation No.1 of 2008.\r\n\r\n<strong>Complaints Procedure </strong>\r\n\r\nThe procedure for complaints made to the Unit is as follows:\r\n<ol>\r\n 	<li>Complaints are reviewed and analyzed to determine whether the facts alleged by complainant constitute a violation of any of the DHCC regulations, rules, and policies.</li>\r\n 	<li>An investigation is then conducted, including on-site investigations, witness statements or interviews, visual inspections, etc.</li>\r\n 	<li>Panels of medical experts may be formed to provide their opinion on the complaint.</li>\r\n 	<li>Fitness to practice panels may also be formed to ensure that a Licensed Healthcare Professional (“Licensee”) continues to meet the required standard of competence and has not engaged or is not engaging in professional misconduct;</li>\r\n 	<li>A complete file is then presented to the Customer Protection Unit Committee for review.</li>\r\n 	<li>The Committee’s proposed findings on evidence; opinion regarding the occurrence of violations; and recommendations for penalties, are then presented to the Licensing Board for review and final decision.</li>\r\n 	<li>Following a thorough review, the Licensing Board will issue a final decision, including findings of facts and conclusions of law as well as a decision for either dismissal or for disciplinary action.</li>\r\n 	<li>The complaints process will be concluded within 3-6months and the  unit will be responsible for communicating the final decision to the licensee and the complaint.</li>\r\n</ol>\r\n<strong>The Licensee’s role in the complaints process</strong>\r\n\r\nThe licensee must respond to allegations in the complaints within 10 working days of receiving the complaint. Their response to each allegation must be supported with documents, such as complete medical records (if possible). The Licensee must fully cooperate with the Unit in its investigation, within a reasonable time frame.\r\n\r\n<strong>The Licensing Board’s Decision</strong>\r\n\r\nThe Licensing Board’s final decision is not subject to appeal unless further relevant facts become known after the board has rendered its decision that was not available to the complainant or the licensee in the course of the investigation process.\r\n\r\n<strong>Disciplinary Actions</strong>\r\n\r\nThe disciplinary actions that the Licensing Board can take range from:\r\n<ol>\r\n 	<li>The imposition of financial penalties</li>\r\n 	<li>A reprimand against healthcare professionals or facilities</li>\r\n 	<li>Warning letters stating that similar violations in the future will result in temporary or permanent suspension of the licensee; revocation or refusal to renew the licensee’s DHCC license</li>\r\n 	<li>Further training for the licensee and supervision by another licensed healthcare professional</li>\r\n 	<li>A refund to the complainant with expenses for the treatment or service acquired at a healthcare facility</li>\r\n</ol>\r\nAlthough various complaints are made against medical practioners and hospitals before the health authorities in Dubai, healthcare professionals and entities are not always found to have committed malpractice or negligence by the health authorities in practice. Sometimes patients file complaints against physicians for injuries sustained following surgical procedures which are in fact well known and common side effects which were communicated to them in advance of the treatment (often by way of consultation on the treatment plan, with a consent form being signed by the patient on the date of the surgery).\r\n\r\nOther common complaints relate to the method or technique used by medical practioners in certain procedures that differ from the methods followed by doctors in the same field of specialty. The fact that a doctor followed a certain technique that was not common in treatments performed by other doctors specialized in the same field does not mean that the physician was negligent in the treatment of a patient, provided that the technique followed acceptable and recognized medical standards. The above mentioned departments at the health authorities allow the complainant, healthcare professional or institution, the right to be heard equally in the complaints process to ensure the investigation procedure is conducted fairly for both parties.\r\n\r\nThe inception of the health authorities have improved the healthcare management sector in Dubai by implementing advanced mechanisms for tackling medical complaints efficiently in accordance with the law and the acceptable medical standards of practice.'),
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(88253, 4800, 'content', 'October 2013\r\n\r\n<hr />\r\n\r\nThe same level of experience should apply to all parties involved with maritime work and industry, including the courts which often must decide on the complex disputes that can arise. The courts generally appoint maritime experts to assist them when deciding such cases, and this article examines whether the UAE courts are too reliant on such experts.\r\n\r\nThe UAE courts, and the Dubai courts in particular, have reached a high level of proficiency in handling maritime claims. However, with (a) the large number of cases referred to individual experts or expert panels by courts, and (b) the wide scope of tasks given to the experts by the court, experts are given a level of responsibility which far exceeds the normal scope of work for experts in other jurisdictions. They are often empowered to consider evidence, determine liability and apportion compensation between the parties. This means that parties effectively have to plead their case twice: first to the expert, and then to the court.\r\n\r\nThis is an additional burden imposed on the parties. It also requires them to rely on not only the expert’s technical expertise, but also the expert’s legal reasoning (which may be limited). Although the expert’s report will be reviewed by the court, the problem is that the expert will usually tell the court that he has reached the “legal” conclusion about who is liable based on his technical expertise and background, which is a matter that the court will have to trust the expert on, since they depend on the expert on technical matters.\r\n\r\nThe experts appointed by the court are chosen from a list and are described as either a ‘maritime expert’ or as a ‘maritime engineer’. There are no subcategories to reflect the various specialized aspects relating to maritime affairs. This is unsatisfactory given how exceptionally complicated and technologically advanced vessels and everything surrounding a vessel can be. In the author’s view the list should be replaced with a specialized maritime list of experts, which should contain a detailed and regularly updated background for each expert. The list should also include international parties which the court can rely on for additional advice if the expert list does not include the required expertise needed by the court. Finally, in light of how onerous a maritime case can be, the expert should submit a detailed plan for the work to the court and the parties before starting. This report will demonstrate to the court and the parties that the expert actually has the required knowledge, background and experience to handle the technical task entrusted to him.\r\n\r\nThe UAE is rapidly becoming a regional icon and the preferred destination for many major businesses worldwide. Jebel Ali port as one of the largest ports in the world, and there are many other ports on the way. There is therefore a real need for specialized and internationally recognized court maritime experts. This will make the courts more effective when resolving maritime disputes, and therefore give the local and international maritime community more confidence in the UAE. This is a natural development stemming out of the continuous development and specialisation of the courts and the increasing demands of the growing maritime sector. The courts should also consider creating admiralty courts, night courts and courts available during the weekends and public holidays, to further support the sector’s growth and enable the UAE to remain competitive.'),
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(88272, 4801, 'content', 'October 2013\r\n\r\n<hr />\r\n\r\nThis method of cooling is commonly used in large residential projects across the GCC and replaces the need for individual air conditioning units or traditional in-building chillers.\r\n\r\nA key advantage of district cooling is the relatively small space it takes up (thus increasing the total sellable/lettable area of a plot of land) and this also brings aesthetic benefits. Water and energy use is also less than alternative forms of air conditioning, which has both pricing and environmental benefits.\r\n\r\nGiven the popularity of district cooling as a means of cooling large developments in the region, together with rapid population growth, it is an opportune time to touch on some of the key issues in a typical district cooling arrangement/concession agreement.\r\n\r\nThe GCC’s district cooling industry is subject to little law and regulation. This means that the rights and obligations of stakeholders need to be addressed in a clear and integrated contractual framework.\r\n\r\nOn account of the high cost of constructing a district cooling plant and associated pipe network and infrastructure, district cooling services are usually procured under a long-term concession agreement that authorises the provider to exclusively provide district cooling services to a development for an agreed period of time (i.e. 25 years but sometimes as long as 50 years) in accordance with certain benchmarks and standards, particularly regarding quality and availability.  These benchmarks are commonly know in the industry as key performance indicators and are usually abbreviated to KPIs.\r\n\r\nAdherence to KPIs is especially important as exclusivity prevents end-users from obtaining air conditioning from an alternative source if they are dissatisfied with the provider’s performance.  To incentivise performance, financial penalties are often levied against a provider if it fails to comply with KPIs, while the concession agreement may contain a right to terminate for persistent or fundamental breach. To avoid this, providers must diligently operate and maintain both the plant and network.\r\n\r\nA key risk in a district cooling arrangement is demand and it is imperative, from the provider’s (and any funder’s) perspective, that end-users are contractually required to enter into agreements for the provision of cooling services and that this obligation is rigorously policed.  Allocation of demand risk is a matter for negotiation between the developer and provider, but the provider often seeks that the master developer underwrites a portion of demand. Master developers, however, do not like to provide any demand guarantee and will generally only agree to this if a considerable portion of end-user agreements have been entered into. This subject is normally a key element of negotiation in these types of agreements.\r\n\r\nClosely connected to demand is the issue of billing and collection. Payments can either be made to the provider by the developer (as a single point of collection for all end-users) or by each end-user.  Providers unsurprisingly prefer that they are paid by the developer, which avoids the time and expense of seeking payment from each individual end-user.  This can be considerable if there are many end-users (i.e. individual unit owners in a high-rise tower).\r\n\r\nIf the developer is responsible for the collection of district cooling charges, a provider may require the developer to provide security to guarantee these payment obligations and, as a last resort, the provider typically seeks a right to disconnect the service if non-payment passes a particular threshold.  A hefty penalty is usually charged for reconnection.\r\n\r\nAlthough there is no independent regulator of the industry, tariffs usually consist of a connection charge, an availability/capacity charge and a consumption charge.  Given the length of district cooling concessions, tariffs should be subject to clear and periodically applied adjustment mechanisms to allow the charge to vary on account of such things as the fluctuating cost of providing district cooling services (i.e. water, power and labour), inflation and the consequences of changes in law. The benchmarking of the tariff regime is obviously a subject that parties need to carefully negotiate when entering into long-term agreements.'),
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(88291, 4802, 'content', 'October 2013\r\n\r\n<hr />\r\n\r\nIt is this brand association that most corporations rely on in order to maintain the goodwill associated with their name. Since brand association is a crucial catalyst for a corporation’s growth, corporations want to build up brand association as much as possible to earn market share.\r\n\r\nIn order to maintain a strong and consistent corporate identity, corporations with well-known brands are faced with the daily challenge of stopping third parties from infringing their brands, designs, and trademarks. In other words, they must prevent third parties from “piggy-backing” on their brands hard-won reputation. The strongest form of protection for a brand is by registering the trademark or design element. A trademark helps identify and distinguish the products or services of one trader from all the other traders. To this end, Federal Law No. 37 of 1992 on Trademarks and as amended by Federal Law No. 8 of 2002. states:\r\n\r\n(2) The following shall be considered a trade mark:\r\n\r\nNames, worlds, signatures, letters, numbers, drawings, symbols, addresses, hallmarks, stamps, pictures, vignettes, notices, packages or any other mark or combination of marks having a distinctive form and used or meant to be used in distinguishing goods or products of whatever origin, or in showing that the goods or products are owned by the owner of the trade mark because he manufactured it or selected it or traded in it, or rendered a service under it.\r\n\r\nA sound shall be considered part of the trade mark if it was accompanying it.\r\n\r\nTherefore a brand containing words, designs, letters, numerals and even a slogan can satisfy the test of trademark, so long as the proposed trademark is distinguishable from others in the market. The challenge faced by most corporations is that they are unaware of what may be subject to intellectual property right protection. Legal advice is necessary to determine whether a brand or a newly developed concept can be subject to registered rights. Protecting a brand owner’s right is important, but it is equally important to ensure that the brand owner is not infringing on another’s right. Once a brand has been selected it is necessary to proceed with the necessary due diligence (such as trademark searches) to determine whether another business is using or trading under the same or similar brand.\r\n\r\nCorporations operating in the Middle East recognize the “power of the brand” and a large portion of their annual budget is invested into marketing, branding and protecting their ideas.  To this end the UAE has emerged as the MENA regions top-brand building country, with Saudi Arabia coming in second. In the report released by Brand Finance and Gulf Marketing review, out of the 50 top regional brands, 15 out of those belong to the UAE.  According to the study, the value of UAE brands accounts for 37% of the total value of $39.33 billion of the top 50 MENA brands. Emirates Airlines leads the list with a brand value of $4 billion, followed by Etisalat comprising of a brand value of $3.4 billion. The top five brands are as follows:\r\n\r\n[image src=\"http://www.tamimi.com/en/media/get/20131022_Screen-shot-2013-10-08-at-2.04.11-PM.png\" class=\"__image__\" imageId=\"2503\"]\r\n\r\nAccording to a special report prepared by Thomson Reuters and released in 2012, the UAE, Saudi Arabia, Jordan and Egypt were amongst the top trademark publishing countries in the Middle East. Overall the study reports a 600% increase over the last 22 years.\r\n\r\nThese two reports show that with regional brand development, corporations have become more aware of protecting their developed ideas. Although the MENA region is still in the developing stages of building its own brands, there has been some tremendous growth in the past years, and top brands such as Emirates and Etisalat are well underway in becoming global brands. Much like the top worldwide brands and their western counterparts, the common thread among these Middle Eastern corporations is that they all have a unique brand, either a trademark, design or even a catchy slogan that immediately sets off a trigger in the consumer’s mind. They have also taken measures to register and protect their brands to prevent third parties from taking advantage of them.\r\n\r\nFor a complete list of the top 50 brands in the MENA region please visit http://brandfinance.com/images/upload/gmr_article_final.pdf'),
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(88295, 4802, 'content_description', 'Much of today’s advertising is defined by the use of distinct and unique brands that resonate in the minds of consumers. '),
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(88314, 4803, 'content', 'October 2013\r\n\r\n<hr />\r\n\r\nThe New Decree does the following:\r\n<ol>\r\n 	<li>substitutes Decree No. 2 of 1993 which established a special judicial committee called the Rent Committee to settle disputes of any nature between landlords and tenants;</li>\r\n 	<li>substitutes Law No. 15 of 2009 pertaining to the hearing of rent disputes inside the free zones; and</li>\r\n 	<li>repeals any other legislative provisions that contradicts the provisions in the New Decree.</li>\r\n</ol>\r\nThe New Decree has been published in the Official Gazette as at 18 September 2013. According to Article 31 of the New Decree, it shall come into force 60 days after it is published in the Official Gazette. This provides a two month transition period for the New Decree to be implemented from 18 September 2013.  This means that the current regime remains in place pending the New Decree is implemented.\r\n\r\n<strong>The Current Regime</strong>\r\n\r\nUnder the current regime disputes arising between landlords and tenants are referred to the Special Judicial Committee for Dispute Settlement between Landlords and Tenants, better known as the Rent Committee. The Rent Committee has exclusive authority under Decree No. 2 of 1993 to consider and decide all tenancy disputes.  Such authority was extended by Law No. 15 of 2009 to include the determination of rental disputes arising within the free zones, except for rental disputes:\r\n<ol>\r\n 	<li>to which any free zone authorities in the Emirate of Dubai is a party; and</li>\r\n 	<li>arising within the free zones which have their own special judicial committees or special courts (for example the Dubai International Financial Centre).</li>\r\n</ol>\r\nThe Rent Committee comprises of various sub-committees.  Although it is a judicial committee, the members are not judges.\r\n\r\nIf either a landlord or tenant files a claim with the Rent Committee, before the dispute can be heard the Rent Committee is required to first serve a notice to the other party (and to publish another notice in a newspaper if the party fails to attend the hearing on the first notice). Once adequate notices are served and published, the hearing will usually take place after a period of one to two weeks. The Rent Committee’s decisions must be passed by a majority resolution and such decisions are final and non-appealable.\r\n\r\nDespite the completion of the final hearing and a decision being passed, a written judgment will not usually be made available to the landlord and tenant until after a lengthy period of time.  This means that the enforcement of a judgment by the Rent Committee and by the Execution Division of the Dubai Court is usually delayed.\r\n\r\n<strong>The New Decree</strong>\r\n\r\nThe New Decree aims to establish a judicial system and develop a quick and simple adjudication procedure for all tenancy disputes (article 3). When the New Decree comes into force it will abolish the Rent Committee and replace it with the Tenancy Disputes Settlement Centre, which some may refer to as a Rent Disputes Settlement Centre, (the ‘Centre’).  The Centre will be based in the Dubai Land Department and it is consisting of a judicial section and an administrative section.  It will be headed by a judge (of the Appeal Court level) to be appointed by a decree to be issued in due course.\r\n\r\nAccording to article 6 of the New Decree, the Centre shall settle all:\r\n<ol>\r\n 	<li>tenancy disputes in the Emirate of Dubai except for tenancy disputes in relation to finance lease contracts (Ijara) and long term lease contracts; and</li>\r\n 	<li>rental disputes inside the free zones except if the free zones are under the jurisdiction of special judicial committees or courts, such as the Dubai International Financial Centre.</li>\r\n</ol>\r\nThe judicial section of the Centre will consist of four departments. A summary of each of the four departments and their respective structures and functions is set out below.\r\n\r\n[image src=\"http://www.tamimi.com/en/media/get/20131022_Property-Rent-Disputes-Settlement-Center-Alex-Foo-3.jpg\" class=\"__image__\" imageId=\"2506\"]\r\n\r\nAs for the fees payable to the Centre, this will be determined and set by the Chairman of the Executive Council of the Emirate.  Prior to such determination, the fees structure for the Rent Committee under Local Order No. 1 of 2004 remains applicable.\r\n\r\n<strong>Current Regime vs The New Decree – A Comparative Study</strong>\r\n\r\nThe differences between the current regime and the New Decree are emphasised by its objectives set out in Article 3. The New Decree emphasises the need for:\r\n<ol>\r\n 	<li>a fast and simple mechanism;</li>\r\n 	<li>judicial involvement; and</li>\r\n 	<li>an adjudication procedure, to resolve tenancy disputes between landlords and tenants.</li>\r\n</ol>\r\n<strong>Fast and simple mechanism</strong>\r\n\r\nAs explained earlier, the Centre will be established to expedite tenancy disputes settlement.  As opposed to the situation under the current regime, a time frame is provided under the New Decree where the Centre is required to facilitate amicable settlement between landlords and tenants or to issue a judgment within a time frame set out in Article 10 and Article 16 respectively.\r\n\r\n<strong>Judicial involvement</strong>\r\n\r\nUnlike the current practice where members of the Rent Committee are not judges, the New Decree expressly emphasises the need for:\r\n<ol>\r\n 	<li>a judge at the Appeal Court level to be the Head of the Centre;</li>\r\n 	<li>supervision of tenancy disputes settlement by a judge at the Reconciliation Department;</li>\r\n 	<li>a judge in each committee of the First Instance Department and two judges in each committee of the Appeal Department; and</li>\r\n 	<li>a judge to chair the committee for each tenancy dispute at the First Instance Department and Appeal Department.</li>\r\n</ol>\r\n<strong>Adjudication procedure for appeal</strong>\r\n\r\nAlso unlike the current regime where the Rent Committee’s decisions cannot be appealed, the New Decree allows appeals.  According to Articles 17 and 18, a judgment issued by the First Instance Department may be appealed within 15 days from the date of issuance of the judgment provided that the tenancy disputes are for a value of AED 100,000 or more. Any tenancy disputes for a value less than the required monetary threshold can only be appealed if the judgment issued:\r\n<ol>\r\n 	<li>involves an eviction judgment;</li>\r\n 	<li>is in violation of the jurisdiction rules;</li>\r\n 	<li>involves something not requested by the parties, or is more than what the parties requested, or disregards some of the parties’ requests;</li>\r\n 	<li>is against a person who is not properly represented or where a notice is not properly served;</li>\r\n 	<li>is based on forged documents discovered after the judgment or a false testimony determined after the judgment; or</li>\r\n 	<li>would have been different because a party has hidden data or documents from the First Instance Department.</li>\r\n</ol>\r\n<strong>Conclusion and Future Developments</strong>\r\n\r\nThere is no doubt that the New Decree aims to improve the current regime by introducing a quick and simple adjudication procedure for all tenancy disputes in the Emirate of Dubai. As is the case for all proposed new legislation, some aspects of the New Decree still require clarification:\r\n<ol>\r\n 	<li>What constitutes a long term lease such that the dispute cannot be heard by the Centre?  Is it a lease for a period longer than five years in accordance with the lease (or Ejari) registration practice or between 10 years and 99 years according to Law No.14 of 2008 concerning mortgages in the Emirate of Dubai?</li>\r\n 	<li>Is it compulsory for landlords and tenants to attend the amicable settlement hearing of their tenancy dispute at the Reconciliation Department before their disputes can be heard in the First Instance Department?</li>\r\n 	<li>When can the Head of the Centre rely on the Execution Department of the Dubai Court to enforce the judgments issued by the Centre?</li>\r\n 	<li>What are the adjudication procedures for each of the Reconciliation Department, First Instance Department and Appeal Department?</li>\r\n 	<li>Should the recognition of arbitration awards be dealt with by the Centre or the Dubai Court?</li>\r\n</ol>\r\nArticle 8 of the New Decree suggests that the Head of the Centre will propose regulations and resolutions to regulate the work of the judicial section. The implementation of such regulations and resolutions may address the questions raised above. We will report further on the implementation of the New Decree when the questions raised above are answered, the Centre has been established, the Head of the Centre is appointed and details of the Centre’s methods of operating are available.'),
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(88347, 4806, 'content', 'November 2013\r\n\r\n<hr />\r\n\r\n<strong>The Facts of the Case</strong>\r\n\r\nA Dubai real estate developer entered into a sale and purchase agreement with an individual. The agreement contained a clause that the parties agreed to resolve their disputes in relation to the purchased real estate unit to arbitration before the Dubai International Arbitration Centre (‘DIAC’). However the clause also stated that before doing so a party would need to give 20 days notice.\r\n\r\nA dispute arose between the parties due to the performance of the agreement and the purchaser filed for arbitration before DIAC.\r\n\r\nBefore the arbitration tribunal, the developer argued that the tribunal lacked jurisdiction since the Claimant to the arbitration filed the case before the DIAC after the twenty days period set out in their agreement. The arbitral tribunal issued an interim arbitral award confirming its jurisdiction to hear the dispute.\r\n\r\nThe developer therefore filed a case before the Dubai Court of First Instance seeking to set aside the interim arbitral award issued by the DIAC arbitral tribunal.\r\n\r\nThe Claimant argued, amongst other things, that the arbitral award is null and void on public policy grounds since it was issued based on an arbitration clause included in a sale of an-off plan construction unit agreement.\r\n\r\n<strong>First Instance Court:</strong>\r\n\r\nThe court dismissed the case for being premature. It held that the tribunal’s award on jurisdiction did not resolve the case, and so could not be subject to annulment proceedings. Only a final award can be subject to such proceedings.\r\n\r\n<strong>Dubai Appeal Court: </strong>\r\n\r\nBefore the appeal court, the developer submitted a new argument to support its request to set aside the arbitral award. It argued that the arbitral award violated public order because it related to the registration of an off-plan unit in the interim register, which the courts have already held is a public order issue and not a matter to be arbitrated.\r\n\r\nThe appeal court found that this argument was inadmissible and dismissed the case. Although the Court accepted that issues concerning the registration of real estate units were matters of public order and so not arbitrable, the court noted that the purchaser was not seeking to terminate the sale and purchase agreement on the basis that it was not registered. The claim was based on the developers failure to construct the unit. The arbitral tribunal therefore had jurisdiction to hear the dispute.\r\n\r\nThe Court referred to the judgment of the Dubai Court of Cassation, real estate appeal no. 282/2012, in which it was held that:\r\n\r\n“An arbitration clause in an off-plan contract for the sale of a property unit is unenforceable where an action is brought to annul the sale contract for non-registration on public order grounds, as the subject matters falls outside the realm of conciliation and is not therefore capable of settlement by arbitration. However, if the claimant merely sought to terminate the contract for non performance because the developer has failed to fulfill his obligation to build the property unit, the arbitration clause would be deemed valid and enforceable. As such, an award issued – for termination of the contract- pursuant to arbitration conducted on the basis of that arbitration clause is not void, as would be the case if the Claimant had sought to annul the sale contract for non registration of the off-plan sale in the interim property register“.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThere has been some confusion in the past as to what extent real estate disputes are arbitrable. The earlier decision of the Dubai Court of Cassation made it clear that real estate disputes are generally arbitrable, but that the specific issue concerning the registration of units on the property registers is a matter of public policy that cannot be decided by the parties (and by extension an arbitrator appointed by them). The Court of Appeal judgment reported above helpfully confirms this, and has recognized the importance of the earlier Court of Cassation judgment. Though it may be appealed it nonetheless bodes well.\r\n\r\nArbitration clauses are widely used in the property sector and this judgment will give greater confidence that they will be upheld. It remains the case however that claimants must be careful to avoid basing any part of their claim on issues of registration.'),
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(88376, 4807, 'content', 'November 2013\r\n\r\n<hr />\r\n\r\nThe terms in this other document are then incorporated by reference and become part of the contract. One of these standard terms may be an arbitration clause.\r\n\r\nSuch practices can create problems under UAE law because arbitration is considered a special form of dispute resolution which takes away the jurisdiction of the national courts. As such, parties must be shown to have consciously agreed to arbitration (usually evidenced by their signature on the contract), and this may not be the case if the clause is found embedded in a separate list of standard terms referred to in the main body of the contract.\r\n\r\nIn the case reported below, the Dubai Court of Cassation held that an arbitration clause in a charter party (which is a contract between a ship owner and merchant for the hire of a ship and delivery of cargo) that was referred to in a bill of lading (the document listing the goods to be transported) was sufficiently clear to enable the arbitration clause to be incorporated by reference.\r\n\r\n<strong>Background</strong>\r\n\r\nThe Appellant (an insurance company) initiated civil court proceedings against the Respondent (a ship owner) seeking judgment for US$ 2,364,065 (AED 8,676,120.2). Pursuant to a Bill of Lading, the Respondent had agreed to transport and ship a consignment of sulfur fuel oil on board the Respondent’s vessel from Yanbu Port, Saudi Arabia, to Khorfakkan Port, UAE, to be delivered to a third party. Upon the arrival of the vessel at Khorfakkan Port, the third party discovered that the consignment had become contaminated in transit.\r\n\r\nThe Insured (the consignment owners) had an insurance policy whereby the Appellant agreed to indemnify the third party or its subsidiaries) against any damage arising from the transport or shipment of any quantity of crude fuel oil, gas, diesel, or any other petroleum products specified in the bill of lading. On that basis, the Appellant proceeded to appoint loss adjustors to inspect the consignment and assess the quantum of damages sustained by the Appellent. The loss adjustors’ survey concluded that the Respondent was liable for the contamination of the consignment and assessed the damages at US$ 2,340,065.45. The Appellant paid this amount to the third party and then brought the claim against the Respondent for compensation.\r\n\r\nThe Respondent objected to the proceedings on the basis of an arbitration clause. The charter party stated that all disputes and differences arising out of the charter party shall be referred to arbitration. This clause was incorporated into the bill of lading because the bill stated that “arbitration clauses contained in the vessel’s charter party are herewith incorporated and form part hereof”.\r\n\r\n<strong>Court of First Instance </strong>\r\n\r\nThe Court of First Instance ordered the Respondent to pay to the Appellant the sum of AED 8,676,120.2 plus interest. The Court dismissed the objection against the proceedings and held there was no arbitration clause.\r\n\r\n<strong>Court of Appeal </strong>\r\n\r\nThe Respondent appealed in Civil Appeal No. 325-2011. The Court of Appeal overturned the decision of the Court of First Instance and held that there was an arbitration clause.\r\n\r\n<strong>Court of Cassation </strong>\r\n\r\nThe Appellant appealed to the Court of Cassation.\r\n\r\nThe Appellant (the Insurer) argued that the bill of lading did not contain any explicit or implicit agreement showing intent on the part of the parties to have any dispute arising between them in relation to the consignment resolved through arbitration. The bill of lading (an original English copy of which was submitted to the Court) was a printed form that contained, amongst other things, sections dealing with the details of the charter party that had been left blank. Since there was no charter party for the vessel among the documents and the bill of lading itself does not establish the intent of the parties to refer any disputes between them to arbitration, there was no arbitration clause.\r\n\r\nThe Court of Cassation disagreed. It held that arbitration clauses in charter party agreements are often incorporated by reference to the bill of lading. While mere reference in a bill of lading to the validity of all the conditions of a charter party is not sufficient to incorporate the arbitration provisions into the bill of lading, a charter party arbitration clause that is clearly referred to in the bill of lading will be incorporated into the bill of lading. It follows that the parties to the bill of lading intended to refer their dispute to arbitration according to the arbitration clause contained in the charter party.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThe important aspect of the Court of Cassation’s judgment is that the arbitral clause was incorporated because it was explicitly referred to in the bill of lading as existing in the charter party. Had the bill of lading merely referred simply to the charter party terms, the arbitral clause would not have been upheld. This is consistent with the court’s longstanding view that arbitration is a special form of dispute resolution and parties will only be held to have agreed to arbitration if there is some evidence that they are aware of having done so.\r\n\r\nIt is advisable then when incorporating standard terms by reference which contain an arbitration clause, either the arbitration clause should be explicitly mentioned in the main contract, or the standard terms should themselves be signed so there is some evidence that the parties were both aware of their terms and the arbitration clause within.'),
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(88405, 4808, 'content', 'November 2013\r\n\r\n<hr />\r\n\r\nMost people are closely attached to their mobile numbers and some people even pay a considerable sum for a distinctive number, usually one which is memorable.  Over time, a mobile number seems to become a part of a person’s identity.\r\n\r\nThe Telecommunications Regulatory Authority (‘TRA’) reported in July 2013 that the UAE mobile services market had almost 15 million active mobile subscribers with approximately 1.8 mobile subscriptions per person.\r\n\r\nCurrently, if a person wishes to change operator they will lose their mobile number. This makes people reluctant to change operators and so stifles competition. The TRA  however has now announced measures that will allow a person to keep their mobile number despite changing operators. This article looks at these new measures and the likely impact they will have.\r\n\r\n<strong>The Telecommunications Market</strong>\r\n\r\nTraditionally, telecommunication markets have one large operator (usually the original Government-owned telephone company, also known as the ‘incumbent’ operator), smaller operators, a well developed local and international infrastructure and a large customer base.  In the UAE, the incumbent operator is Etisalat and the smaller operator in the mobile services market is du.\r\n\r\nIn order to stimulate competition in the mobile services market, barriers that hinder competition need to be removed or their impact reduced.  In some markets, the solution may be the introduction of more mobile operators, or the licensing of Mobile Virtual Network Operators (‘MVNO’) e.g. FRiENDi in Oman.  MVNOs do not own their own physical telecommunications networks but have agreements with the other telecoms operators to use their networks.\r\n\r\nFurther, as mobile numbers are a limited resource, the management of the numbering system needs to be closely regulated so that the competing operators are treated fairly and equitably in the issuing of mobile numbering blocks.\r\n\r\nThe TRA has carefully considered the various approaches to increasing competition in the mobile market at this time of the technology cycle.  It has decided that now is an appropriate time to introduce “Mobile Number Portability” (‘MNP’) to pursue this goal.\r\n\r\n<strong>The mobile telephone numbering system</strong>\r\n\r\nMobile telephone numbers are given out by the TRA, in large blocks, to each of the mobile operators.  The operators then effectively have exclusive control over those particular numbers for a lengthy period.\r\n\r\nAt present, if someone has an account and a mobile phone number with one operator and sees a better offer from another operator, moving the account is generally a time consuming and sometimes costly endeavour.  The subscriber will need to cancel the existing mobile contract and give up the mobile number to the original operator. The subscriber will then need to open a new account with the new operator and receive a new number. All the subscriber’s previous contacts will need to be informed of the new number, with the risk that some contacts will be lost as a result of the change.\r\n\r\n<strong>What is happening?</strong>\r\n\r\nThe situation described above is about to change. After discussions between the TRA and the two mobile operators in the UAE, the TRA plans to introduce Mobile Number Portability to the market, possibly as soon as December this year.  This will allow subscribers to move from one operator to another operator and keep their original mobile number (also known as ‘porting’ the number).\r\n\r\n<strong>How will it work?</strong>\r\n\r\nMNP can be a difficult technical solution for operators to introduce, and requires close collaboration between regulators and operators on matters such as the technical architecture, guidelines on cost allocation, recovery, tariffs, rules for porting numbers and the ability for the solution to integrate with future technologies.\r\n\r\nPorting mobile numbers in the UAE will be a ‘recipient-led’ process.  This means that if a subscriber wants to change to a new operator, all they will need to do is contact the new operator.  That operator will then contact the old operator on behalf of the subscriber and make arrangements for the mobile number to be ported to the new operator’s network.  This avoids the need for the subscriber to make contact with the original operator.\r\n\r\nIn every case where MNP is introduced there is a debate about the “porting time”, or the time it takes to switch over the number from one operator to another.  Regulators seek to keep this to a minimum, in some cases to a few hours, to give the greatest benefit to the consumer.  Such short turnaround times can be challenging for the operators and the MNP service provider (who typically will run the MNP system on behalf of the operators and the TRA), especially in dealing with surge periods such as weekends and evenings.  It will not be until the system is operational that we will have a true indication as to the porting time in the UAE.\r\n\r\n<strong>The rationale for MNP</strong>\r\n\r\nThere are many arguments for the introduction of MNP:\r\n<ul>\r\n 	<li>From a regulator’s perspective, it will increase competition in the mobile market and ultimately result in better services and choices for consumers between two strong competitors (Etisalat and du).  It should also make the market more attractive for future investors.</li>\r\n 	<li>From an operator’s perspective, it may be an opportunity to increase market share, offer new services and increase the loyalty of existing customers.  These opportunities are driven by the knowledge that an operator’s subscribers can more easily switch to another operator under MNP.  There is every incentive for operators to become more competitive in holding on to existing customers and attracting new ones.</li>\r\n 	<li>From the consumer’s perspective, MNP will lead to better value products, better quality solutions and eliminate previous problems such as losing the original number and needing to advise all contacts of a new mobile number, reprinting business cards and so on.</li>\r\n</ul>\r\n<strong>Impact on operators</strong>\r\n\r\nIt is expected that MNP will increase customer “churn” (one operator losing customers to another operator) which, depending on the position of the particular operator, will either benefit it if it gains more customers, or will be detrimental if it loses customers to a competitor.\r\n\r\nIn order to attract or keep customers, it is expected that operators will become more competitive by launching products at attractive prices and further developing their product offerings.\r\n\r\nAnother factor which impacts operators is the cost of developing and maintaining a MNP system and the porting process.  Despite this cost, it is expected that the prices for mobile services will decrease.\r\n\r\n<strong>MNP and the UAE</strong>\r\n\r\nThere are a high proportion of prepaid subscribers in the UAE and, if experience in other countries can be a guide, it is expected that those subscribers are generally less concerned about retaining their mobile numbers than post-paid subscribers.  The flip side of this is that pre-paid subscribers may be more sensitive to price, service and quality and as such, may continue to churn without using MNP despite its introduction.  It will be interesting to see what impact, in any, MNP will have on how prepaid subscribers behave.\r\n\r\nAs with any major IT project and particularly one which requires complex new technical solutions, it would not be surprising if there were some teething problems when MNP is launched.  This may range from how quickly the porting process takes place to how a person’s bad debt with an operator may delay the porting of a number.\r\n\r\nRegardless of this, the TRA is confident that MNP will ultimately improve the level of service available to customers.'),
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(88424, 4809, 'content', 'November 2013\r\n\r\n<hr />\r\n\r\nThe Land Department Law is groundbreaking in terms of its scope for two main reasons:\r\n<ol>\r\n 	<li>It is the first law since the formation of Dubai Land Department in 1960 which sets out, amongst other matters, the objectives and competencies of the Land Department; and</li>\r\n 	<li>It paves the way for the introduction of a new fee structure for real estate transactions, as it specifically states that any legislation which contradicts the Land Department Law is repealed (Article 15), which includes Law No. 7 of 1997 (concerning Land Registration Fees).</li>\r\n</ol>\r\nThe new fee structure itself is set out in Executive Council Resolution No. 30 of 2013, which was also published in Issue No. 371 of the Official Gazette and came into force on September 18 2013 (‘the Fees Resolution’).\r\n\r\nPart One of this article will highlight the main provisions of the Land Department Law, and Part Two will discuss the main provisions of the Fees Resolution.\r\n\r\n<strong>PART ONE:  The Land Department Law</strong>\r\n\r\n<em>Objectives</em>\r\n\r\nArticle 5 sets out the nine objectives of the Dubai Land Department:\r\n<ol>\r\n 	<li>To create an environment of an international standard to attract real estate investment;</li>\r\n 	<li>To achieve the Government’s strategic goals in relation to the registration of real estate;</li>\r\n 	<li>To keep up to date on all the latest global systems for the registration of real estate;</li>\r\n 	<li>To enhance the efficiency of real estate monitoring and regulation in Dubai;</li>\r\n 	<li>To develop and manage the leasing sector in Dubai;</li>\r\n 	<li>To update and develop the real estate registration systems to keep up to date with the latest global systems in this regard;</li>\r\n 	<li>To encourage real estate investment by establishing a suitable environment for real estate investors;</li>\r\n 	<li>To promote the real estate sector as a contributor to the overall development of Dubai; and</li>\r\n 	<li>To plan and develop an integrated strategic plan for real estate development in Dubai with the aim of setting an international standard.</li>\r\n</ol>\r\n<em>Competencies </em>\r\n\r\nArticle 6 of the Land Department Law gives 22 specific ‘tasks’ which the Land Department is to handle. It also provides for a general (or catch-all) competency of ‘any other tasks necessary to achieve the Objectives’, thus emphasising that all of the Competencies are a tool to be used by the Land Department to meet the Objectives enshrined in Article 5.\r\n\r\nSome of the specific Competencies set out in the Land Department Law are as follows:\r\n<ol>\r\n 	<li>Formulate policies and strategic plans and follow up on the implementation of Dubai’s strategic plan for the development and regulation of Dubai’s real estate sector (Competency 1);</li>\r\n 	<li>Regulate real estate by setting up regulation in relation to trust accounts of real property project executions, mortgage brokerage  and joint ownership (Competency 3);</li>\r\n 	<li>Propose legislation regulating the real estate sector in Dubai, measure the effectiveness of legislation after it has been applied, as well as regulate the relationship between landlords and tenants, and register lease contracts of real estate units (Competency 6);</li>\r\n 	<li>License the real estate activities in Dubai, supervise and monitor its operation and those responsible for it (Competency 7);</li>\r\n 	<li>Through cooperation and contribution from the competent authorities, to develop precautionary measures to ensure the protection and stability of the real estate market in Dubai (Competency 8);</li>\r\n 	<li>Review real estate investment applications in relation to obtaining the benefits prescribed by legislation and policies adopted by the Land Department (Competency 10);</li>\r\n 	<li>Provide real estate valuation services (Competency 13);</li>\r\n 	<li>Conduct survey and re-surveys of lands, and issue the maps to these lands (Competency 14)</li>\r\n 	<li>Provide specialized real estate consultations for developers, brokers, real estate investors and others (Competency 16); and</li>\r\n 	<li>Prepare, develop and update a unified central database for real estate activities in Dubai and regularly provide data services, to planning and decision makers (Competency 20).</li>\r\n</ol>\r\nInterestingly, the Land Department Law also provides for the Land Department to prepare, develop and up-date a unified central database for ‘Real Estate Activities’. The term ‘Real Estate Activities’ is defined in the law and is far reaching. It includes ‘all the financial activities and legal proceedings in relation to the development, sale, purchase, registration as well as regulation and leasing of properties in Dubai, in addition to other real estate activities and services of which the Land Department and the organizations affiliated with it, are specialized in providing, regulating and supervising’.\r\n\r\n<em>Appointment of Key Personnel </em>\r\n\r\nArticles 7 – 9 provide that the Land Department is to have a Chairman appointed by Decree. The Chairman is to generally take decisions necessary for accomplishing the Objectives and in addition certain specific powers are detailed in the Land Department Law.\r\n\r\nThe department is also to have a Director General appointed by Decree. The Chairman may delegate any of his powers to the Director General. The role of the Director General is to supervise the department’s affairs in relation to administrative, financial and technical matters. Certain specific powers in this regard are listed in the Land Department Law.\r\n\r\nThe Land Department Law also provides for an Executive Body of the Land Department to be established composed of a number of administrative and technical employees. The Land Department Law also envisages that the department will have specialised institutions operating in the fields of organisation, provision and development of Real Estate Activities.\r\n\r\n<em>Financial</em>\r\n\r\nArticles 11 – 14 of the Land Department Law provide that the financial resources of the department are composed of:\r\n<ol>\r\n 	<li>Funding allocated to it by the Government’s general budget.</li>\r\n 	<li>Fees and allowances for services provided by it (including fees collected in exchange for registration).</li>\r\n 	<li>Any other resources approved by the Executive Body.</li>\r\n</ol>\r\nThe fiscal year of the department runs from 1st January to 31st December each year.\r\n\r\n<strong>PART TWO:  The Fees Resolution</strong>\r\n\r\n<em>Adoption of Fees </em>\r\n\r\nArticle 2 provides that fees are to be paid for the registration of Real Estate Transactions including those where properties are already built, under construction or off plan.  Fees are also to be paid in exchange for certain services being provided by the Land Department.\r\n\r\n‘Real Estate Transactions’ are defined in the Fees Resolution as:\r\n\r\n‘Any legal act which transfers the ownership or possession of a property, including but not limited to, contracts which deal with the transfer of the right of usufruct and long-term leasing rights […] and rent to own contracts.’\r\n\r\nThe fees to be paid are set out in Schedule 1 to the Fees Resolution and some fees are discussed more fully below.\r\n\r\n<em>Collection </em>\r\n\r\nArticle 3 deals with the collection of fees, which is different depending on the type of agreement\r\n\r\n<em>Sale &amp; Purchase:</em>\r\n\r\nThe Fees Resolution provides that the applicable fee in relation to the sale of a property shall be collected from both the seller and the buyer equally, unless otherwise agreed by them. The fee prescribed for registration of a sale and purchase contract is 4% of the total value of the agreement.  This is double the previous fee.\r\n\r\nThe impetus for the 100% increase from the previous fee is thought to be to reduce ‘flipping’ – the process whereby a property is bought and held only for a short while before being sold on.  To date ‘flipping’ has been particularly prevalent with regard to off-plan purchases where for example a broker may buy speculatively in the hope that an end purchaser willing to pay a higher price can be found.  While the increase in the fee may go some way to making ‘flipping’ less attractive the higher fee would equally be levied on a homeowner who had lived in their property as a family home for several years.  In a particularly buoyant market would-be purchasers would probably be willing to pay the total 4% fee (as opposed to the seller also paying 2%) in an attempt to secure their chosen property.\r\n\r\nFor those who are familiar with UK property transactions the 4% fee is similar to the 4% rate levied by the UK Government’s tax department on properties with a purchase price of £500,000 to £1,000,000 (AED 3,000,000 to AED 6,000,000). In the UK, top end properties can attract a rate of 7% or in some cases 15% (if purchased by certain persons, including corporate bodies).\r\n\r\nWarehouses are treated differently and registration of a sale and purchase contract for a warehouse is AED 10 per sq. m. of land on which the warehouse sits subject to a minimum fee of AED 10,000.\r\n\r\n<em>Long Term and Usufruct Leases:</em>\r\n\r\nArticle 3(2) of the Fees Resolution provides that for usufruct and long-term leases, registration fees shall be collected from the owner, beneficiary or lessor at 2% of the property value and 2% of the property value is to be collected from the beneficiary or the lessee, unless otherwise agreed i.e. a total 4% is to be paid.\r\n\r\nOn the other hand, Items 14 &amp; 16 of the Schedule to the Fees Resolution stipulates registration fees of 4% of the total value of the rent contract for long-term leases and 2% of the property value for usufruct leases respectively.\r\n\r\nWe understand that the Land Department will shortly issue clarification as to this discrepancy.\r\n\r\n<em>Musataha:</em>\r\n\r\nThe fees applied to Musataha contracts are 1% of annual rental and are to be collected from the tenant (unless agreed otherwise). The reasoning behind the Land Department’s reduced fee treatment towards Musataha contracts stems from the fact that they are comparatively shorter contracts (i.e. 50 years) than Long Term Leases and Usufruct contracts.\r\n\r\nThe divergence in the registration fees applied to long-terms leases, usufruct and Musataha contracts is interesting and certainly unexpected given all such lease contracts are long term contracts which give a real right to the lessee upon registration. We believe there will be an increase in use of Musataha contracts due to their reduced registration fees.\r\n\r\n<em>Rent-to-Own Contracts:</em>\r\n\r\nFees applicable to the registration of rent-to-own contracts are 4.25% in total, to be collected at 2% of the property value from the lessor, 2% of the property value from the lessee and 0.25% of the rent value from the lessee (if applicable) unless agreed otherwise.\r\n\r\nIjarah finance is subject to similar fees – 0.25% of the value of the debt is to be collected from the lessee unless otherwise agreed.\r\n\r\n<em>Common Property:</em>\r\n\r\nThe owners of common and non-removable property are to pay 1% on a division of property transaction, based on the value of the share owned by each co-owner prior to the division.\r\n\r\n<em>Other Fees:</em>\r\n\r\nIt is the person in whose favour the right is registered (unless otherwise agreed) who is required to pay the applicable fee on the registration of each of the below:\r\n<table class=\"MsoTableGrid\" border=\"1\" cellspacing=\"0\" cellpadding=\"0\">\r\n<tbody>\r\n<tr>\r\n<td valign=\"top\" width=\"240\">Takharoj contracts</td>\r\n<td valign=\"top\" width=\"239\">1% of the value of the property</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"240\">Donation in kind contracts</td>\r\n<td valign=\"top\" width=\"239\">0.125% of the value of the gifted/donated property subject to a minimum of AED 2,000</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"240\">Wills</td>\r\n<td valign=\"top\" width=\"239\">0.125% of the value of the bequeathed property</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"240\">Mortgages</td>\r\n<td valign=\"top\" width=\"239\">0.25% of the value of the debt</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"240\">Transfers of debt</td>\r\n<td valign=\"top\" width=\"239\">0.25% of the value of the debt</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"240\">Family endowments</td>\r\n<td valign=\"top\" width=\"239\">AED 2,000 per property</td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"240\">Registration of the rights of the lessee’s heirs</td>\r\n<td valign=\"top\" width=\"239\">AED 1,000 per property<em> </em></td>\r\n</tr>\r\n</tbody>\r\n</table>\r\n<em>Evaluation</em>\r\n\r\nArticle 5 states that for the purposes of calculating the fees payable the Land Department may:\r\n<ol>\r\n 	<li>Verify the value of the property which is the subject of the transaction; and</li>\r\n 	<li>Estimate the value of Real Estate Transactions which have an undefined value, have been undervalued in comparison to their market value, or those transactions which have had incorrect information submitted in relation to them.</li>\r\n</ol>\r\n<em>Evasion &amp; Fines</em>\r\n\r\nArticles 6 – 8 provide that the following are specifically considered to be acts of fee evasion:\r\n<ol>\r\n 	<li>Providing false information in relation to the value of the Real Estate Transaction.</li>\r\n 	<li>Using fraud or methods of whatever nature to evade the payment of Fees.</li>\r\n</ol>\r\nIn addition the Fees Resolution also states that ‘committing any other act to evade the payment of Fees’ will be deemed to be fee evasion, thus giving the DLD an almost unfettered discretion. Article 8 specifically states that Land Department employees (as delegated by a decision of the Director General) will have capacity as judicial officers to identify acts of fee evasion.\r\n\r\nThe Fees Resolution provides that the penalty for fee evasion will be payment of double the prescribed fees for the transaction but harsher penalties may also be imposed. In addition a developer or real estate agent who assists will also be liable to pay double the prescribed fee for the transaction as a penalty.  While the Fees Resolution does not specifically provide for such an act to be treated as a crime, it would be open to the Land Department to refer any fraud to the Police and for the party committing the fraud to be liable to criminal proceedings.\r\n\r\nThe test for the effectiveness of this penalty provision and the Fees Resolution in general is how the framework will be implemented in practice, and this remains to be seen.'),
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(87381, 4755, 'content', 'July - August 2013\r\n\r\n<hr />\r\n\r\n<strong>Concept Origin and Rationale</strong>\r\n\r\nThe concept of responsabilité décennale originated in the French Civil Code and evolved from a desire to protect building owners, who could not ordinarily be expected to possess the technical expertise required to identify defects in design or construction at the point of delivery of a project, particularly where such defects are latent.\r\n\r\n<strong>Benefits to Owners, Risks for Contractors</strong>\r\n\r\nAs we will see below, decennial liability is a form of strict liability and, accordingly, offers significantly more security to real estate investors than collateral warranties, which will only be triggered by breach or negligence on the part of the contractor. Furthermore, the breadth of the pool of potential defendants lessens the risk that an owner or investor would be left out of pocket in the event that defects are discovered after one of the parties involved in the construction is adjudged insolvent. Many civil law jurisdictions worldwide – including most Middle Eastern countries – have codified decennial liability in their civil laws; the position in Qatar is set out at Articles 711 to 715 of the Civil Code (Law No. 22 of 2004).\r\n\r\nHowever, despite the topicality of this issue, and notwithstanding the high levels of commercial sophistication and industry experience they likely possess, foreign contractors entering the Qatari market are often ignorant of the potentially devastating implications of decennial liability. Accustomed to standard forms of contract, such as FIDIC or JCT, and to being obliged to address issues arising during the defects liability period following practical completion, contractors may not realise that their existing risk management structures are often insufficient to cover their potential exposure under decennial liability, nor has the significant cost of insuring against that risk been priced into their tender for the works in Qatar. Where the contract and the structure it produces are of high value, the application of decennial liability could pose a catastrophic threat to the liquidity of even the most prominent of international contractors.\r\n\r\n<strong>Fast Facts</strong>\r\n\r\n• Projects Covered\r\n\r\nDecennial liability applies to all buildings and fixed installations constructed in Qatar. Interestingly however, while contracts having a Qatari State entity as employer will in most instances be subject to local law (including decennial liability), the position is less clear where the parties have chosen to have their contract governed by the laws of another jurisdiction - which law may not recognise the concept of decennial liability, or may not consider it to be of mandatory application.\r\n\r\n• Parties Responsible\r\n\r\nDepending on the type of defect and the extent of their respective involvements in the particular project in question, decennial liability can apply to main contractors, design consultants (architects) and those acting in a supervisory capacity (such as engineers and project managers). As liability is imposed on a joint and several basis, the building owner can proceed against any or all of the parties involved for the full amount of the claim. Accordingly, if one such party becomes insolvent, the other(s) will shoulder the burden of making good all damage incurred by the owner as a result of the defect(s).\r\n\r\nHowever, a design consultant having no involvement in the execution or supervision of the works will be liable only for defects attributable to his design. Architects who undertake to approve a contractor’s shop drawings should be mindful of the risk that such activities may represent involvement in contract administration. Similarly, contractors will be excused from liability for pure design defects, but only where those defects would not have been apparent to a competent contractor exercising due diligence in the performance of his obligations.\r\n\r\nHowever, contractors or project consultants may not seek to avoid the imposition of decennial liability on the basis that fault in relation to the relevant defect(s) lies with a sub-contractor or sub-consultant.\r\n\r\n• Owners’ Options\r\n\r\nBuilding owners with a claim for decennial liability may demand specific performance by the contractor or designer of his obligations to repair or rebuild the structure, or the damaged part thereof. Alternatively, with the permission of the Court (required in all but urgent cases), the owner could opt to perform the necessary remedial works himself (or to engage a third party to do so), and could then recover from the original contractor or designer the monies expended. As such, actual loss and any loss of profit incurred will always be recoverable, provided same is a direct and foreseeable consequence of the defect(s) at the time of entering into the contract – for example, personal injuries suffered by a building’s occupants as a result of its collapse, or a retail outlet’s loss of profit due to temporary closure.\r\n\r\n• Burden of Proof\r\n\r\nLiability is strict, meaning that the occurrence of damage or discovery of a defect generates an automatic presumption of liability, and there is no onus on the owner/employer to prove fault or negligence on the part of the contractor.\r\n\r\n• Limitation or Waiver of Liability\r\n\r\nAs decennial liability is a mandatory provision of Qatari law, any contractual attempt to limit its scope or exclude or waive its application will be void and unenforceable as a matter of public policy. However, in accordance with general principles of Qatari law, once the collapse occurs or the defect is discovered – and the right to claim for the resulting damage has crystallised – the building owner can then validly waive that right.\r\n\r\n• Liability and Prescription Periods\r\n\r\nThe liability period commences at project handover, and runs for the lesser of ten years or the intended life cycle of the building or structure. If various individual elements of a project are capable of being operated independent of one another – such as may be the case with regard to a power plant consisting of a number of generators, constructed on a phased basis – decennial liability will attach to each part separately; if they are linked, the ten year period will begin to run from the delivery of the final phase.\r\n\r\nThe prescription period for filing claims on the basis of decennial liability in Qatar is three years from the date of occurrence of the collapse or actual discovery of the defect. Thus, in theory, a contractor or consultant could find themselves facing a claim under decennial liability some thirteen years after practical completion of the works.\r\n\r\nIf the contractor carries out repairs to any defect discovered during that initial ten year period, his liability in respect of that element of the structure which required repair or reinforcement will remain in force for a further ten years from completion of those remedial works.\r\n\r\n• Other Salient Points\r\n\r\nDecennial liability attaches notwithstanding that the collapse or defect resulted from geotechnical deficiencies, such as poor soil quality or subsidence. Contractors are therefore advised to carry out thorough site investigations prior to commencing work.\r\n\r\nThe fact that the building’s owner approved or supervised the design or method of construction, or accepted delivery of the building (even with knowledge of the existence of defects), will not protect the contractor, unless he can establish that the owner has technical knowledge or industry experience to equal or better his own. Thus, if faced with persistent instructions from an employer to perform the work in a manner which the contractor knows or believes to be ill-advised, the latter should refrain from acquiescing to the former’s demands, as the employer’s consent will not necessarily protect the contractor from the imposition of decennial liability later on.\r\n\r\nOf course, no liability will attach where the damage to the building or structure was caused by an extraneous event, such as an event of force majeure.\r\n\r\n<strong>Managing the Risk through Insurance</strong>\r\n\r\nIn France and Egypt, on whose Civil Codes Qatar’s own law is modelled, specific insurance for decennial liability is mandatory and failure to carry appropriate cover is punishable by law; this is not the case in Qatar, where insurance requirements are primarily governed by the contract. However, in light of the risks outlined above, contractors and consultants considering entering the Qatari market should be acutely aware of any shortcomings in the scope of the protection offered by their existing insurance policy.\r\n\r\nOf particular concern to architects and engineers is that fact that traditional Professional Indemnity insurance policies are usually invoked where there is negligence on the part of the insured – rather than having a broader ‘legal or civil liability’ trigger - and thus do not cover decennial liability.\r\n\r\nFor their part, contractors looking to add decennial liability to the laundry list of risks insured under their standard Contractors’ All Risks policy may be met with a hefty upwards adjustment of their premium, in addition to higher deductibles, extended limitation and exclusion clauses and stricter reporting requirements. Project-specific cover may be available, but often at a prohibitive cost and on the condition that the insurer becomes intimately involved with activities on site during the currency of the works. There have been some developments in recent years in relation to the availability of latent defects insurance; contractors availing of such cover should ensure that it is properly maintained for the full period of liability.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nOf course, harmonisation of the approaches of different jurisdictions to liability for latent defects would provide greater certainty for construction industry participants, may reduce the need for extensive collateral warranties, and would drive down the cost of insuring against such liability, whilst weeding out serial offenders from the market. However, unless and until such time as a consistent approach is adopted internationally, contractors and consultants of all disciplines eyeing the opportunities presented by Qatar’s booming construction market would be ill-advised to underestimate the potentially far-reaching implications of decennial liability.\r\n\r\nThis article first appeared in the June 2013 edition of Ta’ameen Qatar magazine.\r\n<div></div>'),
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(87407, 4755, '_yoast_wpseo_metadesc', 'Decennial liability is a strict form of liability imposed by law on construction contractors and design professionals for the total or partial collapse of buildings they designed and/or constructed, or for the discovery of latent structural defects which imperil the safety or stability of such buildings, for a period of ten years after their completion and handover.'),
(87408, 4756, 'content', 'July - August 2013\r\n\r\n<hr />\r\n\r\nArticle 141 of the UAE Commercial Transactions Law (Federal Law 18 of 1993) states: ’A CIF sale is one concluded against a lump sum price covering the price of the item sold, the maritime insurance charges and freight by vessel to the port of destination.’\r\n\r\nThis article explains the essential features of a CIF contract. A CIF contract requires the vendor to ship at the port of shipment the agreed goods in the underlying contract of sale, to procure a contract of carriage (bill of lading) under which the goods will be delivered to the agreed destination, to arrange for insurance which will be available for the benefit of the purchaser, to make out a commercial invoice and finally to tender these documents to the buyer who must be ready and willing to pay the price of the shipped goods. In such a case, the title of the goods may pass either on shipment or on tender of the documents. The risk generally passes on shipments or as from shipments, but possession does not pass until the documents which represent the goods are handed over in exchange for the price.  As a result, the buyer, after receipt of the documents, can claim against the carrier for breach of the contract of carriage and against the underwriter for any loss covered by the policy.\r\n\r\nUnder a CIF contract, the purchaser is obliged to pay against the tender of a clean bill of lading that covers the goods contracted to be sold, an insurance policy and a commercial invoice that shows the price. The purchaser is obliged to pay against the tender of the documents notwithstanding of fact that the goods have been lost or damaged at sea after the shipment. In the event of loss, the purchaser must pay the price on tender of the documents and his remedies, if any, will be against the carrier as per the bill of lading or against the underwriter as per the insurance policy, but not against the vendor under the contract of sale. If the purchaser refuses to pay against the documents without any legitimate reason, he shall be liable to compensate the vendor for damage that may result, as per Article 150 of the Commercial Transactions Law.\r\n\r\nEnglish case law, which forms the basis for many international shipping contracts, has established that it is irrelevant whether both buyer and seller knew of the loss of the ship before the latter tendered the documents; the buyer must pay the price. Hence, the vendor can tender the documents even though he possesses, at the time of tender, actual knowledge of the loss of the ship or the goods. Consequently, in the event of loss, the purchaser will receive the documents rather than the goods for which he contracted. Even if the purchaser had already paid the price, he cannot demand its return. In addition, a vendor under a CIF contract for the sale of goods who has shipped the agreed goods under a clean bill of lading and obtained the proper documents, can tender those documents to the purchaser notwithstanding he knows at the time of such tender of the loss of the goods.\r\n\r\nUnder a CIF contract, the vendor performs his obligations by tendering the documents to the purchaser. He is not obliged to deliver the goods to the agreed destination but he is under a negative duty not to prevent the goods from being delivered to the purchaser at their destination. This might done by preventing the carrier from delivering them to the purchaser or by sending them to a different destination. However, if the contract contains a clause that imposes on the vendor an obligation to deliver the goods to the agreed destination, it is not considered as a CIF contract, even if the letters of ‘CIF’ appear in the contract.  Not every contract which is expressed to be a CIF contract is such. Article 155 of the Commercial Transactions Law states that ’a contract which contains such conditions as will render the seller liable for the perishing of the goods after shipment, or makes the performance of the contract conditional on the safe arrival of the vessel, or which vests the buyer with an option to accept the goods according to the contract or according to the pro-forma delivered to him at the time of contracting, shall neither be a CIF nor a FOB sale, but shall be deemed to be a sale conditional upon delivery at the place of arrival.’\r\n\r\nIn a CIF contract, the documents which must be tendered by the vendor to the purchaser will include a bill of lading. However, the contract may stipulate for tender of a delivery order or give the vendor the option of tendering a delivery order. It has been recognised, since the English case of Re Denbigh Cowan &amp; Co and R Atcherley &amp; Co [1921] 90 LJKB 836, that the mere substitution of a delivery order for a bill of lading under the terms of the contracts does not impart any obligation to deliver the actual goods, so as to prevent the contract from being a true CIF contract. Nevertheless, in another English case, The Julia [1949] AC 293, a contract for the sale of rye ‘CIF Antwerp’ gave the seller the option of tendering bills of lading or delivery orders. The seller shipped the rye in bulk and tendered a delivery order in respect of a quantity smaller than the entire shipment. This order was directed to the seller’s agent in Antwerp. Accordingly, it was held that the contract was not a CIF contract but one for the delivery of the goods in Antwerp. As the goods were not so delivered, there was a total failure of consideration. Here it can be said that if the seller in the Julia case had chosen to tender a bill of lading, he would have performed his obligations and it would have been a CIF contract.\r\n\r\nFurther, if a contract gives the purchaser the option of tendering documents or goods, it is not a CIF contract, so the seller is not bound to tender the documents. A true CIF contract does not give the seller this option; the seller must tender the documents and cannot perform by instead tendering goods alone.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nIn light of the above, it can be concluded that under a CIF contract the purchaser cannot refuse the documents and demand from the vendor the actual goods. Nor can the vendor withhold the documents and tender the goods. Furthermore, the performance of a CIF contract is fulfilled by delivery of the documents and not by the actual delivery of the goods by the vendor. Accordingly, it has been argued that a CIF contract is not a sale of goods but a sale of documents. As a result, the feature of an ordinary CIF contract is to be fulfilled by delivery of the documents and not by the actual physical delivery of the goods by the vendor. On the other hand, it could be argued that although under CIF contracts shipping documents are very important for the performance of these contracts, CIF contracts cannot be deemed as a sale of documents. Otherwise Book Two, Part Two, Chapter Two of the Commercial Transactions Law, which deals with the ‘certain types of commercial sales’ including CIF contracts, would not govern such contracts.'),
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(87423, 4757, 'content', 'July - August 2013\r\n\r\n<hr />\r\n\r\nIn the spirit of the Holy month of Ramadan, we focus on charity, goodwill and the need to help those less fortunate than ourselves.  Stephen Forster, Head of Al Tamimi’s Pro Bono Committee, talks about the importance of giving back to the communities in which we operate and having a positive impact on those we are able to help.\r\n\r\nThe Al Tamimi Pro Bono Committee was formed in November 2011 and was the brainchild of Founding Partner Essam Al Tamimi.  Both Essam and Managing Partner Husam Hourani are driving forces behind the initiative and their vision of providing legal services to disadvantaged individuals and charitable organisations is one that Stephen wholeheartedly believes in.\r\n\r\nTo establish the programme, a committee was formed comprising of lawyers in the firm with an interest in pro bono work with Stephen as its Chairman.  “We recognise the positive benefits not only to those receiving our help but also to the personal and professional development of the lawyers involved,” says Stephen.  Al Tamimi lawyers see it as both their responsibility and a privilege to be able to use their skills, training and experience to provide legal services to those whose interests would otherwise remain unrepresented and this is something the firm is keen to support.\r\n\r\n“We actively encourage our lawyers to become involved in pro bono initiatives” says Stephen, “We see it an as essential part of our professional responsibility and it allows them to work together while making a difference to the communities in which they live and work.”\r\n\r\nAl Tamimi lawyers have donated and devoted their time to approximately 20 pro bono projects across a number of practice areas including employment, arbitration and IP in the past 18 months, acting for disadvantaged individuals who would not otherwise have access to legal services.   However, the firm is still keen to do more and has a targeted plan to raise awareness of the services on offer and help ensure that the programme reaches even further to those in need.\r\n\r\n“The Pro Bono Programme is also designed to help charities and institutions whose aim is to help the disadvantaged, particularly if the institution is not very wealthy and/or tries to distribute as many of its funds as possible to help the disadvantaged,” explains Stephen.  “We are therefore putting together a list of such organisations with a view to going to visit them to make them aware of our services. “\r\n\r\nIn addition to the firm’s own pro bono work, Al Tamimi lawyers from the firm’s litigation department are also actively involved in the pro bono programmes run by Dubai Courts, the Abu Dhabi Courts and the DIFC Courts, whereby they provide free initial counsel to individuals before proceeding with litigation.  Ahmed Allouz, Partner and Head of Litigation (Dubai), says it is an “honour” to be of service to the community in this way.\r\n\r\n<em><strong>“A man’s true wealth is the good he does in this world.”</strong></em>\r\n\r\n— Prophet Muhammad (PBUH)\r\n\r\nIt is said that one of the most meaningful forms of giving is the giving of our time and our talents.  It is with this in mind that Al Tamimi is proud of our pro bono programme and our commitment to improving the lives of individuals in our communities who are in need.  The Holy month of Ramadan and all it teaches about charitable giving serves as a reminder to us all of the importance of helping others.\r\n\r\nIf you know of any organisations that may need our services or an individual in need of legal assistance, please do contact us.   The Pro Bono Committee looks upon all applications sensitively with a view to trying to help if it falls within the terms of the programme.'),
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(87434, 4758, 'content', 'July - August 2013\r\n\r\n<hr />\r\n\r\nThe raid was conducted on behalf of our clients Wahl Clipper Corporation and Wahl GmbH, the owners of the well-known brands WAHL and MOSER for hair clippers and shavers.\r\n\r\nWe received information from our client on the availability of counterfeit products bearing the WAHL brand in a warehouse in Ajman. Acting on this information, Al Tamimi and Company conducted further investigations and identified more details of the warehouse and the available counterfeit products.\r\n\r\nUpon the confirmation of the availability of the counterfeit products, a complaint was immediately filed with the Ajman Police.  Al Tamimi &amp; Company was able to work with the Ajman Police to arrange a raid of the warehouse on the same day that the complaint was filed.\r\n\r\nThe Ajman Police, accompanied by the Al Tamimi &amp; Company team, raided the warehouse and seized more than 5,600 counterfeit products bearing the brands WAHL and more than 100 counterfeit products bearing the MOSER brand.\r\n\r\nMoreover, during the raid the son of the owner of the warehouse attended at the warehouse. The fact that this person was involved in dealing with counterfeit products was brought to the attention of the police officers and after the police obtained the required permission, the person was arrested immediately.\r\n\r\nThe warehouse located in Ajman was related to a company with its main business in Dubai. Indications are that many businesses in Dubai use warehousing facilities in other emirates. It should be encouraging to brand owners that the enforcement authorities in Ajman have been very cooperative in taking actions in the fight against counterfeiting in the Emirate.\r\n\r\nAl Tamimi and Company’s Intellectual Property Department continues to works with the enforcement authorities in the various Emirates in order to effectively protect our clients’ valuable intellectual property rights.'),
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(87453, 4759, 'content', 'July - August 2013\r\n\r\n<hr />\r\n\r\nIran deposited its instrument of ratification on 4 July 2013 and will be bound by the PCT from 4 October 2013. Accordingly, this entitles Iran to be automatically designated for any international patent applications filed on or after 4 October 2013. As Iran will be subject to Chapter II of PCT, it will also be automatically designated in any demand for international preliminary examination which has been filed by an Applicant from 4 October 2013 onwards. The nationals and residents of Iran will also be allowed to file international applications from 4 October 2013.\r\n\r\nIran has now become the 148th contracting state of the PCT and the 13th country in the Middle East and North Africa (MENA) region to accede to the PCT. Other countries in the region include Algeria, Bahrain, Egypt, Libya, Morocco, Oman, Qatar, Saudi Arabia, Sudan, Syria, Tunisia and the UAE.\r\n\r\nIran has been a member of the Paris Convention for the Protection of Industrial Property since 1998. Iran is also signatory to various WIPO treaties related to intellectual property rights such as the Madrid Agreement and Madrid Protocol for Trademarks, Locarno Agreement for International Classification of Industrial Designs, Lisbon Agreement for the Protection of Appellations of Origin and their International Registration  and the Strasbourg Agreement concerning the International Patent Classification.'),
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(87459, 4759, 'pageSummary', 'The Islamic Republic of Iran has become the latest member to join the WIPO administered Patent Cooperation Treaty (PCT).'),
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(87476, 4760, 'content', 'July - August 2013\r\n\r\n<hr />\r\n\r\nThis means that the ability to take effective action against the trade in counterfeit goods within the market in Kuwait is of critical importance.\r\n\r\nIn addition to the regular civil and criminal proceedings that a brand owner may bring against counterfeiters in order to enforce their intellectual property rights, the Commercial Control Department (the “CCD”) at the Ministry of Commerce and Industry in Kuwait provides a highly effective administrative mechanism through which enforcement actions can be taken. The CCD is the government authority within the Ministry of Commerce and Industry in Kuwait that is responsible for inter alia protecting intellectual property rights within the market.\r\n\r\nIn order for the CCD to take administrative action against a suspected trader dealing in counterfeit goods, the CCD requires the relevant brand owner to file an appropriate complaint.  The purpose of the complaint is to provide the CCD with all relevant details, including that of the target, that of the goods being counterfeited and the relevant rights that are infringed.\r\n\r\nThe preparation for a complaint to the CCD should include the following:\r\n<ul>\r\n 	<li>The identity of the target dealing in the counterfeit goods;</li>\r\n 	<li>A sample of the counterfeit goods sold or offered for sale and a receipt of its sale (if this can be obtained); and</li>\r\n 	<li>A comparison of the counterfeit product with the authentic product confirming that the counterfeit product is in fact counterfeit.</li>\r\n</ul>\r\nOnce the above steps have been taken, a complaint can be filed with the CCD, providing it with the details obtained in the above mentioned preparatory steps as well as copies of the certificates of registration for the relevant trade mark rights that are being infringed. Further, it is very important to note that the CCD will also require samples of the authentic products that are being counterfeited.  The CCD will consider a complaint and refer it for further action to the investigation department within the CCD that is responsible for the specific area where the infringement is taking place.\r\n\r\nAl Tamimi &amp; Company recently assisted a manufacturer of a well-known brand of mobile and smart phone handsets in filing a complaint with the CCD and in conducting a very successful raid against an establishment offering counterfeit handsets for sale.  This particular matter commenced when Al Tamimi &amp; Company received information from a client’s distributor on the sale of suspected counterfeit goods.  Al Tamimi &amp; Company supported the client in preparing and filing the required complaint, and followed up on the complaint and accompanied the CCD on the raid.\r\n\r\nThe CCD conducted the raid and found approximately 240 counterfeit mobile phone and smart phone handsets with an estimated value of more than US$ 35,000.   The counterfeit goods were seized by the CCD and the CCD also obtained an undertaking from the store owner not to deal in the offending goods again.  The powers of the CCD are not limited to seizing goods and it also has certain investigative powers allowing it to obtain information on the supply and distribution of goods.  In this particular CCD action, valuable information regarding the source of the counterfeit products was also obtained.\r\n\r\nThe CCD will submit samples of the seized goods, along with the authentic samples provided by the complainant, to the Criminal Evidence Department of the police to conduct an independent comparison of the goods.  The Criminal Evidence Department shall issue a report on the comparison of the counterfeit and authentic goods and if it confirms that the confiscated products are counterfeit, the matter will be transferred to the Commercial Public Prosecutor and the criminal courts of Kuwait.  The report prepared by the Criminal Evidence Department represents good evidence that the confiscated goods are counterfeit.  As the criminal prosecution authorities base their decision on whether to prosecute on the reports from the Criminal Evidence Department, there is a very high level of successful prosecution based on such evidence from the Criminal Evidence Department.\r\n\r\nThe CCD provides an effective mechanism to address the trade in counterfeit goods in the Kuwaiti market with the high level of detail required in complaints playing an important role in the criminal prosecution of counterfeit traders. If you require any assistance in respect of taking action against counterfeit trade in Kuwait, please contact Tarek Abu Mariam in the Kuwait office of Al Tamimi &amp; Company at t.abumariam@tamimi.com.'),
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(87509, 4763, 'content', 'September 2013\r\n\r\n<hr />\r\n\r\nIn this case, the Main Contractor was unable to pay an outstanding amount owed to the Subcontractor as a result of not receiving his payment from the Project Owner.\r\n\r\nA ‘pay when paid’ clause in a back to back agreement is a provision making payment under a construction contract conditional on the payer receiving payment from a third person (typically the project owner).\r\n\r\nIn this case, the Main Contractor argued that the action be stayed or dismissed pending the resolution of the arbitration matter which they brought against the Project Owner.\r\n\r\n<strong>Facts of the case</strong>\r\n\r\nThe Claimant (a subcontractor) was a company specialized in the installation of glass and aluminum who initiated legal action before the Dubai Court of First Instance against the Respondent (the Main Contractor) seeking a court order obligating the latter to pay the amounts due  to the Claimant plus legal interest.\r\n\r\nThe Claimant agreed to undertake all aluminum and glass works for the project within ten days from the date of meeting with the Respondent on the understanding that the former would not incur any fines and that all amounts due to the Claimant would be released.\r\n\r\nAfter completing the work, the Claimant informed the Respondent of the completion and the project consultant issued a completion certificate.\r\n\r\nWhile the Respondent paid part of the outstanding amounts owed to the Claimant for the completed work, the Respondent did not settle the outstanding balance due as a result of their inability to pay.  The Respondent had not received payment from the project owner.\r\n\r\n<strong>Procedural History</strong>\r\n\r\n<em>The Court of First Instance</em>\r\n\r\nBefore the Court of First Instance, the Respondent pleaded lack of capacity and requested that the court dismiss the case or alternatively, to stay the action pending a decision in the arbitration case brought by the Respondent against the Project Owner.\r\n\r\nThe Court of First Instance appointed an expert, who examined the case.  The expert gave his decision and the Court ordered the Respondent to pay the outstanding amount calculated by the expert in his report in addition to payment of legal interest.\r\n\r\nThe Respondent appealed before the Dubai Court of Appeal seeking to overturn the lower court’s decision on the following grounds:\r\n\r\nThe appealed judgment in its reasoning relied on a flawed expert report that did not examine the payment mechanism agreed upon between the Claimant and the Respondent and separately between the Respondent and the Project Owner. The Claimant and the Respondent agreed that the amount owed to the Claimant will be paid by the Respondent when the latter’s dues are paid by the Project owner i.e. pay when paid.\r\n\r\nAs the Respondent’s dues were not settled by the Project Owner, the Respondent argued that the Court of First Instance erred by rejecting their plea in relation to lack of capacity.  The Respondent also argued that filing the case was premature because of the non-fulfillment of the condition precedent.\r\n\r\nThe Respondent further argued that they had a direct relationship with the Project owner and the case is conditional upon the Respondent receiving payment from the latter. In this regard, the appealed judgment erred by not ordering that the action be dismissed or stayed pending the court’s decision in the case between the Respondent and the Project owner.\r\n\r\nFurthermore, the appealed judgment erred in rejected the Respondent’s request to join the Project owner to the proceedings.\r\n\r\nThe Respondent concluded their argument before the appeal court by requesting that the lower court’s decision be overturned or alternatively for the matter to be referred to a different court appointed expert to establish the existence of a ‘pay when paid’ clause in the agreement concluded between the Respondent and the Claimant.\r\n\r\n<em>The Court of Appeal </em>\r\n\r\nThe appeal court appointed a different engineering expert, and after submitting his report the court held that:\r\n\r\nIt has been established by the cassation court that a clause allowing the main contractor to pay his subcontractor only when the former has been paid by the project owner renders the obligation of the main contractor subject to a condition precedent. Such condition must be fulfilled before the subcontractor has the right to be paid by the main contractor. As such, the burden of proving that the condition has been fulfilled rests with the creditor.\r\n\r\nIn this case, the Claimant and the Respondent concluded in their agreement that all terms of the subcontract shall be performed back to back with the main contact (between the Project Owner and the Main Contractor). Additionally, the Claimant did not object to the clause and did acknowledge that they received the project progress payments on a ‘pay when paid’ basis.\r\n\r\nIn light of the above, the Respondent (a main contractor) made payments to the Claimant conditional on receipt of payment by the Project Owner. The Respondent’s obligation therefore is subject to a condition precedent and consequently the Claimant cannot claim outstanding payments as long as that condition has not been fulfilled.\r\n\r\nThe appeal court found that the lower court is contrary to the sound interpretation of the agreement between the disputing parties and the clauses included therein.\r\n\r\nConsequently, the appeal court overturned the lower court’s decision and dismissed the action as premature.\r\n\r\n<em>Practice note:</em>\r\n\r\nIn this case the court classified a ‘pay when paid’ clause as a condition precedent. The sub contractor can claim any outstanding payment owed to him by the main contractor only when the condition precedent is fulfilled.\r\n\r\nAny legal action initiated before the fulfillment of a pay when paid clause can be dismissed as premature.'),
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(87538, 4764, 'content', 'September 2013\r\n\r\n<hr />\r\n\r\nIn accordance with Article 267 of the UAE Civil Code unilateral termination of a contract can have no legal effect in the UAE, but the practice of the UAE Courts show that the employer in construction cases can be entitled to unilaterally terminate a contract. In a recent Court of Appeal judgment it was held that “the reason behind this exception is that muqawala contracts often take a long time to complete and circumstances may change in the period between contract formation and completion of the contract work”.  This exception has its roots in Egyptian law.  In this case, the court held that when a main contractor gives notice of termination to the subcontractor, the muqawala contract terminates and the main contractor must compensate the subcontractor for the expenses incurred, any work already performed and loss of profit which the subcontractor expected to earn by undertaking the work.\r\n\r\nThis decision applies a provision found in Egyptian law which is not available under UAE law.  Pursuant to Article 663 of the Egyptian Civil Code:\r\n\r\n“(1) An employer may terminate the contract and stop the work at any time before the completion of the works, provided that he compensates the contractor for all expenses he has incurred, for the work that he has done and the profit that he would have made if he had completed the work.\r\n\r\n(2) The Court may, however, reduce the compensation due to the contractor for loss of profit if the circumstances justify such reduction.  In particular, the court shall deduct from such compensation any savings realized by the contractor as a result of the rescission of the contract by the employer and any profit which the contractor could have made by employing his time otherwise.”\r\n\r\nIn the UAE, the primary source of law is statutory code and judges, therefore, do not make law. However, the UAE legal system has been influenced to a large extent by the Egyptian legal system, courts and practice.  In this case, the UAE Court looked to the practice of the Egyptian courts because of the absence of a provision in the UAE Civil Code specifically dealing with the unilateral termination of muqawala contracts.\r\n\r\n<strong>Background</strong>\r\n\r\nThe claimant (a subcontractor) sued the defendant (the main contractor) seeking judgment against them for AED 8,739,230 plus 12% interest per annum from the due date until payment.  According to the contract, the parties agreed that the subcontractor was to supply lights and their accessories for AED 10,378,800. The subcontractor commenced manufacturing, and produced a batch of items in accordance with the conditions and specifications agreed upon and prepared them for delivery to the main contractor in accordance with the timetable. The subcontractor also purchased the necessary quantity of raw materials to manufacture all the items agreed upon. The main contractor received a batch as scheduled in the delivery timetable on site but did not receive a further batch that was ready for delivery so the main contractor asked the subcontractor to store the items until further notice.  The main contractor paid AED 544,928 out of the total cost of the contract items and AED 8,739,230 remained outstanding. The subcontractor argued that the main contractor’s unwarranted breach of contract harmed the subcontractor who was unable to meet their commitments towards their raw material suppliers, to the detriment of their business reputation.\r\n\r\n<strong>Main contractor’s arguments for termination</strong>\r\n\r\nThe main contractor argued that production, delivery and payment were conditional on the approval of the project consultant and the employer and that the contract in question, a subcontract, was back-to-back with the main contract which, having been terminated, meant that the subcontractor could not assert any claims against the Main Contractor.  The Main Contractor argued that he repeatedly notified the subcontractor to stop production and deliveries due to financial difficulties experienced in the project, but to no avail.\r\n\r\nThe Court subsequently appointed an engineering expert who submitted a report concluding that the subcontractor had obtained the necessary approvals from the main contractor for the materials that were to be used in the project as the Main Contractor would send confirmation to the subcontractor via inspection requests.\r\n\r\n<strong>The Court’s final decision</strong>\r\n\r\nThe judgment referred to Article 872 of the Civil Code which provides that a “muqawala is a contract by which one of the parties thereto undertakes to make a thing or to carry out work for consideration which the other party agrees to provide.”\r\n\r\nThe Court also held that it is judicially established that the employer may, for any reason, terminate the muqawala contract before it has been fully performed. This is an exception to the rule that the contract is binding on its parties and may only be revoked or varied by mutual agreement. As mentioned in the introduction, the reason behind this exception is that muqawala contracts often take a long time to complete and circumstances may change in the period between contract formation and completion of the contract work. In the interests of ensuring that the employer (or main contractor) does not have to bear unnecessary costs, the courts have given the employer the legal option of unilaterally terminating the muqawala contract while at the same time safeguarding the subcontractor’s interests by requiring the employer to compensate the subcontractor for expenses incurred, work already performed as well as loss of profit which the contractor expected to earn by undertaking the work. This applies where the main contractor has subcontracted work such that the main contractor is considered the employer in the relationship with the subcontractor and thus is entitled to terminate the subcontract before completion of the work. This option may be exercised regardless of the method of payment involved (whether lump sum or unit prices under an itemized list).\r\n\r\nIn this particular case it was clear from the main contractor’s correspondence that they had notified the subcontractor to stop production and deliveries. This was followed up with a letter giving notice of termination of the master project and requesting from the subcontractor a list of manufactured items to support the main contractor’s claims for compensation against the employer. The muqawala terminated upon notice of termination.  As a result, the main contractor’s responsibility to continue making payments under the contract and the subcontractor’s obligation to complete the work ceased as well. However, the main contractor would have to compensate the subcontractor as mentioned above.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nUnilateral termination (or termination-for-convenience) can be an attractive option where grounds for termination are uncertain or the project is no longer feasible. The terminating party is not faced with making the argument that a material or fundamental breach giving rise to termination rights has occurred, but must be prepared to compensate the subcontractor for loss of profit and the expenses incurred at the date of termination.'),
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(87567, 4765, 'content', 'September 2013\r\n\r\n<hr />\r\n\r\nThe Court of Cassation held that:\r\n\r\n“decisions rendered by the Land Department in disputes that arise between developers and investors are strictly administrative decisions which, unlike court decisions, are not binding and final and are only of a conciliatory nature; they do not impose any limitations on the court’s discretion to hear such disputes”.\r\n\r\n<strong>Background </strong>\r\n\r\nThe plaintiffs in this case were two developers that sold an off-plan unit located in their project to the respondent, a real estate company.\r\n\r\nIt was agreed that the respondent would pay 10% of the unit price and the remainder of the price in installments. The agreement stated that in the event the agreement was terminated, the deposited amount would be retained by the seller (the plaintiffs).\r\n\r\nThe respondent paid the 10% deposit, thereafter; the plaintiffs fulfilled their obligation and deposited the paid 10% amount in an escrow account for the project under the respondent’s name. They also registered the contract under the respondent’s name in the Interim Property Register. 77.6% of the project works was completed.\r\n\r\nThe respondent however did not pay any other installments after the initial 10% with no acceptable reason. The plaintiffs filed an application to the Dubai Land Department to cancel the interim registration and for a declaration that they were entitled to retain 40% of the total price (as provided by Article 11 of Law No. 13 of 2008 regulating the interim property register in Dubai).\r\n\r\nThe Land Department agreed with the plaintiffs and issued a decision cancelling the registration of the unit and stating that the plaintiffs’ were entitled to terminate the contract and retain 40% of the total price of the sold unit.\r\n\r\nIn light of the Land Department’s decision, the plaintiffs filed a case before the Dubai Court of First Instance seeking a court order in the terms of the decision rendered by the Land Department.\r\n\r\n<strong>Procedural History </strong>\r\n\r\nThe Dubai Court of First Instance issued its judgment ordering the respondent to pay the remaining amount of the 40% of the unit price with legal interest. The respondent was not satisfied by the court’s order and filed an appeal. The Dubai Court of Appeal rendered a decision lowering the amount adjudicated by the lower court but otherwise upholding the appealed judgment.\r\n\r\nThe respondent challenged the appeal court’s decision before the Dubai Court of Cassation, requesting the appealed judgment be overturned. The plaintiffs also challenged the appeal court’s decision in the part relating to the lowering of the amount previously awarded by the Court of First Instance\r\n\r\n<strong>The Court of Cassation  </strong>\r\n\r\n<em>The respondent’s challenge</em>\r\n\r\nThe respondent argued that the appealed judgment erred in terminating the contract based on Article 11 of Law No. 13 of 2008. Additionally, the appealed judgment erred when it disregarded the respondent’s plea that its breach was due to the plaintiffs’ failure to deliver the final sale contract of the unit. Furthermore, the percentage ordered by the court to be paid to the plaintiffs should have been calculated based on the amounts paid to the plaintiffs to date and not based on the full amount of the price.\r\n\r\nThe court in response of the above argument decided a crucial principal that “decisions rendered by the Land Department in disputes that arise between developers and investors are strictly administrative decisions which, unlike court decisions, are not binding and final and are only of a conciliatory nature; they do not impose any limitations on the court’s discretion to hear such disputes”.\r\n\r\nSimultaneously, it is concluded from reading of Article 11 of Law No. 13 of 2008 and Articles 15,16 and 17 of the Executive Council Decision no. 6 of 2010, that where a dispute arises between a developer and a purchaser in relation to a contract for the sale of an off-plan unit and the developer wishes to terminate the contract for reasons attributed to the purchaser, the following conditions must apply.\r\n\r\nthe developer should have commenced work on the project. The criteria in measuring the commencement is if the developer has completed the infrastructure work of the project\r\n\r\nthe developer should have fulfilled all his contractual obligations towards the purchaser and the delay in construction should not be due to any negligence on the side of the developer\r\n\r\nthe developer should notify the purchaser to fulfill his contractual obligations, either by appearing in person before the Land Department or in writing by means of registered mail or by an email provided that a copy of such communication is provided to the Land Department. Thereafter, the Land Department shall grant the purchaser a period of 30 days to perform his contractual obligations failing which the following apply …… (ii) if the developer has completed at least 60% of the project, he may terminate the contract and keep a maximum of 40% of the unit’s purchase price.\r\n\r\nIn the event that the payment received by the developer in the escrow account is less than the respective percentage set out in the above clause, the developer may apply to the competent court seeking recovery of the balance owed by the purchaser.\r\n\r\nThe court noted from the documents prepared by the lower court that the respondent had paid 10% of the price and it was also proven that the plaintiffs has completed 77.6% of the project. Therefore as per Article 11 of Law No. 13 of 2008, the plaintiffs were entitled to 40% of the price amount.  The Cassation court concluded that the lower court’s decision was sound and upheld it.\r\n\r\n<strong>The plaintiffs’ challenge </strong>\r\n\r\nThe plaintiffs argued that the appealed judgment erred when it reduced the adjudicated amount below the 40% provided in Article 11 of Law No. 13 of 2008. The Court of Cassation found that this argument was sound and overturned the appealed judgment in this part.\r\n\r\n<em>Practice Note </em>\r\n\r\nThe above judgment helpfully clarifies both the status of decisions made by the Land Department, and how relief under Article 11 of Law No. 13 of 2008 works.\r\n\r\nThe judgment will lend confidence to both developers and investors, since it ensures that both now know the consequences should there be a breach by the purchaser of the payment obligations.  Developers will be keen to progress projects in the confidence that the more they progress, the more they can keep of the purchase price should the investor default; where investors have an incentive to maintain instalments, else they risk losing a significant amount on default.'),
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(87596, 4766, 'content', 'September 2013\r\n\r\n<hr />\r\n\r\nMost family businesses have governance structures in place for their commercial matters, but fewer have formal ownership structures.\r\n\r\nUnfortunately, corporate governance is often given a lesser status than profitability. It is important that a well defined succession plan or good corporate governance is implemented before the business passes to the next generation.\r\n\r\nWhy does a family business need restructuring? Arab families are large and continue to grow with each generation. The increase of family members calls for transparency and accountability.  There may not be direct communication about the business within the family so it is important to ensure that business information is provided to all family members.  The ownership responsibilities will inevitably pass from one generation to the next and conflict may result if strong policies are not in place. Corporate governance defines the members’ roles and responsibilities, thereby reducing uncertainty and opportunity for conflict.  Family businesses may function sufficiently under the founders with few formal procedures, but the lack of formality is likely to create conflict with succession.\r\n\r\nIn other parts of the world, family trusts are established to hold and regulate shares.  Similar trust structures are not used in the Middle East.  A number of models are available ranging from Western to Islamic Sharia that propose ways which family business can be structured and a family constitution drafted with the new generation in management. Families must instruct a competent advisor who understands their culture, family history and inner problems and can consequently propose the right model for the family.  Respect for elders, a desire for privacy and exclusivity are common factors.  There is no model tailored to suit a particular family and families must invest time in determining the structure most suitable to them. In my opinion, it would be wrong to try and fit one model to all families irrespective of whether it is Sharia compliant or not, because all families are unique.  The model must live up to the expectations of the family and promote sustainability and continuity.\r\n\r\nThere are a number of considerations to take into account when restructuring a family business.  For example, is there a clear and set criteria for family members joining the business or taking on senior roles? Will performance appraisal mechanisms and remuneration fixing processes be applied to family members? Is the business willing to have board members from outside the family?  Will female family members be included on the board? The value of independent directors is becoming more recognised, particularly when they bring skills the board is lacking such as legal or financial expertise.  Some families may prefer to include an independent member in a purely operational role so it is therefore important to define their role clearly.\r\n\r\nIn my opinion, it is fundamental that the founder carries out the restructure whilst he is still in control or at least while he is still an authoritative figure among the family.  It is important that the new generation is given an opportunity to experience running the business while the founder is still alive. Any family business restructure requires stability, at least initially while the changes are implemented. The founder must continue to have some authority and autonomy, at least for the first few years until the younger members are given more responsibility.  A number of the changes may not affect the business commercially, but are instead cultural changes. Without the founder being there to oversee the implementation of the restructure, it may collapse.\r\n\r\nThe purpose of the restructuring is to avoid turbulence or conflict that will affect the continuity of the management and to sustain the wealth and benefits of the business for future generations. It is important to consider the drive of the next generation to be engaged in the restructuring and invest in creating a drive if it does not exist. If the next generation is not involved in the restructuring process they may challenge the structure and it will have a weaker foundation.\r\n\r\nThe laws of the Middle East are lacking for encouraging family businesses to restructure at the right time. There is an absence of developed corporate or trust law which could facilitate a founder of a family business choosing the right option to restructure the business during his lifetime. In my opinion, the absence of developed corporate or trust law discourages founders from handing over the levels of power to non-family members or young family members during their lifetime.  This may be due to there being no guarantee that the restructure will be sustainable or doubts as to whether the founder can retain control during his lifetime.\r\n\r\nA relaxing of the requirements for listing family businesses will be beneficial as it will introduce public shareholdings, which in turn are likely to promote better management with a blend of private, public and family members.  There is a need to raise awareness of governance issues, structures and policies among family businesses so that family businesses undergo restructure during the founder’s lifetime.  Founders desire to pass on a healthy organisation to the next generation.  Strong corporate governance leads to greater professionalism, confidence during succession and may enhance the international standing and competitiveness of the business.'),
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(87600, 4766, 'content_description', 'Along with oil, family businesses are the backbone of the Arab economies. The majority of family businesses in the Middle East are now transferring to the second generation and it is important that they have succession plans in place to ensure that the business survives and prospers following this transition. '),
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(87602, 4766, 'pageSummary', 'Along with oil, family businesses are the backbone of the Arab economies. The majority of family businesses in the Middle East are now transferring to the second generation and it is important that they have succession plans in place to ensure that the business survives and prospers following this transition.'),
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(87615, 4767, 'content', 'September 2013\r\n\r\n<hr />\r\n\r\nOn 21 August 2013, the MoJ distributed Circular No. 2 of 2013 on Anti-Money Laundering (AML) and Combating Financing of Terrorism (CFT) Regulations for Lawyers and Other Legal Professionals and Public Notaries dated 11 August 2013 (the ‘Circular’).\r\n\r\nThe Circular reminds lawyers, other legal professionals and public notaries that they are subject to certain obligations in accordance with:\r\n<ul>\r\n 	<li>Federal Law No. 2 of 2002 regarding the criminalization of money laundering (‘AML Law’);</li>\r\n 	<li>Federal Law No. 1 of 2004 on combating terrorism offences (‘CT Law’); and</li>\r\n 	<li>Financial Action Task Force (FATF) Recommendations.</li>\r\n</ul>\r\nWhereas the AML Law and the CT Law do not make specific reference to the obligations imposed on legal professionals, The Circular makes it clear that the obligations under those laws and the Circular apply to lawyers, legal professionals and public notaries in the conduct of the following activities by them:\r\n<ul>\r\n 	<li>Transactions in real estate.</li>\r\n 	<li>Management of client money, securities and other assets.</li>\r\n 	<li>Management of bank, savings or securities accounts.</li>\r\n 	<li>Organisation of contributions for the creation, operation or management of companies legal persons or other arrangements, and the buying and selling of business entities.</li>\r\n</ul>\r\nA key requirement of the Circular is that Senior Management and owners of law firms must ensure that the firm’s policies, procedures, systems and controls appropriately and adequately address the requirements of the AML and CT Laws and the Circular.\r\n\r\nThis bulletin is intended to bring the Circular to the attention of those persons to whom it applies. If you have any queries regarding the Circular or the areas of law it addresses, please contact Ibtissam Lassoued, Partner, Financial Crime Department at: i.lassoued@tamimi.com and Andrew Hudson at: a.hudson@tamimi.com.'),
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(87619, 4767, 'content_description', 'The UAE Ministry of Justice (‘MoJ’) has recently issued the latest initiative by the UAE to ensure that it adheres to the highest international standards of practice in the important areas of Anti-Money Laundering (AML) and Combating Financing of Terrorism (CFT).'),
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(87621, 4767, 'pageSummary', 'The UAE Ministry of Justice (‘MoJ’) has recently issued the latest initiative by the UAE to ensure that it adheres to the highest international standards of practice in the important areas of Anti-Money Laundering (AML) and Combating Financing of Terrorism (CFT).'),
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(87641, 4767, '_yoast_wpseo_metadesc', 'The UAE Ministry of Justice (‘MoJ’) has recently issued the latest initiative by the UAE to ensure that it adheres to the highest international standards of practice in the important areas of Anti-Money Laundering (AML) and Combating Financing of Terrorism (CFT).'),
(87642, 4768, 'content', 'September 2013\r\n\r\n<hr />\r\n\r\nSuch policies also aim to reduce the damaging effects money laundering and terrorism financing have on a global, local, economic, social and political level.\r\n\r\n<strong>New and improved governing principles and standards to protect local financial institutions </strong>\r\n\r\nAlthough not a widespread problem in Kuwait, the Government has taken steps to address the aforementioned issues by passing Law No. 106 of 2013 Regarding the Combating of Money Laundering and Financing of Terrorism (’New Law’).  The New Law supersedes the previous Law No. 35 of 2002 (’Old Law’) and establishes new and improved governing principles and standards to protect local financial institutions from being used to launder money and finance terrorism. There were numerous issues with the Old Law, which were highlighted by the Middle East &amp; North Africa Financial Action Task Force (MENAFATF) in their 2011 Mutual Evaluation of the 2002 Kuwaiti Anti Money Laundering Law.\r\n\r\nThe most pressing issue for the MENAFATF and the international community was that the Old Law failed to criminalise terrorist financing. Further, there were no measures in place that enabled the identification and freezing of terrorist assets. This was of great concern, especially when taking into consideration the plans of the Kuwaiti Government to create an international financial centre, along with the expected growth in their domestic economy as global economic recovery boosts the demand for oil. Adhering to the advice given by MENAFATF, terrorist financing has been criminalised under Article 3 of the New Law, which states:\r\n\r\nA person who can be said to have committed a terrorist financing crime is any person that has directly or indirectly, willingly and illicitly, collected funds with the intention to use these funds for committing a terrorist act.\r\n\r\nMeasures were also put in place that enable the freezing of terrorist assets, implemented under Article 22 of the New Law. Article 22 gives power to the public prosecutor or his authorised public lawyers to freeze or confiscate funds or instruments, if sufficient evidence exists to suggest that they were obtained or used with regards money laundering or terrorism financing.\r\n\r\nAdditionally, The Central Bank of Kuwait has supplemented the New Law by issuing circulars and instructions to local financial institutions, instructing them on measures that should be taken to ensure that customer due diligence practices are adhered to, in order to give the new law the best possible chance of succeeding.\r\n\r\nDue diligence was something that MENAFATF put great emphasis on in their analysis of the Old Law, as this was not provided for. Customer due diligence measures, if implemented correctly, act as a valuable whistle-blowing mechanism by which the relevant authorities are notified by the banks of transactions or persons they deem suspicious. The new due diligence measures are provided for under Article 5 of the New Law and detail the specific due diligence measures that should be undertaken by all banks and financial institutions in Kuwait. Emphasis is placed on making sure that banks have suitable safeguards in place to ensure no accounts are opened for the purpose of terrorist financing or money laundering and that staff are trained to identify suspicious behaviour and transactions.\r\n\r\nThe Kuwaiti Government also implemented a fully independent Financial Intelligence Unit (‘FIU’). The creation of the FIU was sanctioned under Article 16 of the New Law. The FIU will serve as the main investigative body and, as stipulated under Article 16, will be responsible for receiving, applying for, analysing and transferring information related to what is suspected of being the proceeds of money laundering or monies used to finance terrorism, either in part or in whole.\r\n\r\nThe introduction of the FIU demonstrates the Kuwaiti Government’s level of commitment to combating both terrorist financing and money laundering and sends a strong message to the criminal and terrorist organizations that prey on the relatively new and inexperienced banking systems in the Middle East.\r\n\r\nWith new laws come new sanctions and penalties, something the New Law has covered quite thoroughly. Article 28 refers to the punishment for a breach of Article 2 and provides for a prison sentence not exceeding ten years and a financial penalty not exceeding the funds laundered in breach of Article 2. The punishment for breach of Article 3 (financing of terrorism) is not dissimilar and is provided for by Article 29. Article 29 states that any person found guilty of financing terrorism shall be subject to a prison sentence not exceeding 15 years and a fine of no less than the funds subject to the crime and no more than double their value. Both these penalties mark a stricter stance on money laundering and the financing of terrorism for Kuwait, something which the Kuwait Government recognised was an issue that needed to be addressed.\r\n\r\nIt is relevant to note that one of the biggest barriers to combating money laundering and the financing of terrorism in the Middle East are Hawaladars or ‘Hawala’ agents. These agents provide a no-questions-asked cross border cash courier service. Whilst the UAE have implemented a system of registration, whereby they require all Hawala agents to register themselves with the relevant authority in order to better regulate the service, Kuwait has gone one step further by including restrictive provisions covering such issues in the New Law. For example, as per Article 20 of the New Law, any person wishing to leave the State of Kuwait with currency or other negotiable financial instruments, whether they are in their possession for themselves or on behalf of another, is required to disclose to the Kuwaiti Customs Authority the value of these currencies or negotiable financial instruments. The FIU may also review this information whenever required.\r\n\r\n<strong>A positive step </strong>\r\n\r\nUnder the New Law there have been implemented a number of key, important provisions that were worryingly absent from the law it superseded. As the law is still new, an evaluation of its effectiveness cannot yet be given. However, it is important to note that the recommendations made by MENAFATF have been acknowledged and taken on board by the Kuwaiti Government and thus included in the New Law. We will continue to monitor the application of the New Law and to report any related developments.\r\n\r\nFor any queries in relation to this topic, please contact Ibtissam Lassoued, Partner, Financial Crime Department (Dubai) at i.lassoued@tamimi.com and Fatema Fathnezhad, Associate (Kuwait Office) at f.fathnezad@tamimi.com.\r\n\r\n&nbsp;\r\n\r\n&nbsp;\r\n\r\n&nbsp;'),
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(87646, 4768, 'content_description', 'Two major sources of concern for governments and financial institutions worldwide are money laundering and terrorism financing transactions.  In order to curb the instances and effects of such transactions, the international financial community has made significant efforts to introduce policies aimed at setting certain criteria and recommendations related to raising awareness of money laundering and terrorism financing transactions.  '),
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(87648, 4768, 'pageSummary', 'Two major sources of concern for governments and financial institutions worldwide are money laundering and terrorism financing transactions. In order to curb the instances and effects of such transactions, the international financial community has made significant efforts to introduce policies aimed at setting certain criteria and recommendations related to raising awareness of money laundering and terrorism financing transactions.'),
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(87656, 4768, '_yoast_wpseo_metadesc', 'Two major sources of concern for governments and financial institutions worldwide are money laundering and terrorism financing transactions. In order to curb the instances and effects of such transactions, the international financial community has made significant efforts to introduce policies aimed at setting certain criteria and recommendations related to raising awareness of money laundering and terrorism financing transactions.'),
(87657, 4769, 'content', 'September 2013\r\n\r\n<hr />\r\n\r\n<strong>Early legislation</strong>\r\n\r\nThe introduction of the Insurance Companies Law No. 74 of 1936 and its relevant regulations, namely the Regulation for the Insurance Company Permits No. 25 of 1936 mark the introduction of legislation that deal solely with the insurance industry in the country.\r\n\r\nWith the introduction of the Insurance Firms and Agents Law No. 49 of 1960, the aforementioned Law No. 74 of 1936 as well as Regulation No. 25 of 1936 were abolished.\r\n\r\nFurthermore, the aforementioned law no. 49 of 1960 was repealed by a decision granting the Iraqi Ministry of Finance the authority to proceed with activities in insurance and reinsurance for the purposes of the Iraqi Companies Law No. 21 of 1997. In accordance with this law, an insurance agent is the natural person or legal entity granted a license to practise insurance agency by the Minister of Finance under the law.\r\n\r\nAdditionally, several regulations and instructions have been enacted in relation to the work of the insurance agency license. These include the Rules of Procedure of the National Insurance Company Law No. 1 of 1987 and the Rules of Procedure of the Iraqi Public Insurance Company Law of 1999.\r\n\r\n<strong>Permitted activities</strong>\r\n\r\nIn accordance with the Instructions to Exercise Insurance and Re-Insurance No. 12 of 1999, the Iraqi legislator has classified the types of insurance which may be practiced by insurance and reinsurance companies in Iraq. Some of these include the following:\r\n<ul>\r\n 	<li>Life insurance;</li>\r\n 	<li>Insurance against risks of all types of transportation, ships and aviation;</li>\r\n 	<li>Fire insurance and additional risks attached to it;</li>\r\n 	<li>Vehicle insurance;</li>\r\n 	<li>Different kinds of engineering insurance; and</li>\r\n 	<li>Personal accident insurance and work accidents, theft, security guaranteeing, civil liability and other types of insurance against accidents.</li>\r\n</ul>\r\n<strong>Licensing body</strong>\r\n\r\nOrder No. 10 of 2005 for Regulating the Insurance Business has identified the Iraqi Insurance Diwan (IID) as the sole authority capable of granting such licenses to practice insurance activities in the country. In this capacity, the IID has issued instructions identifying the requirements and qualifications that have to be met by companies before being granted a license to practice insurance-related activities. Furthermore, the IID has issued further instructions identifying the responsibilities of any such company licensed for the same.\r\n\r\n<strong>Permitted practitioners</strong>\r\n\r\nIn accordance with the aforementioned instructions issued by the IID, insurance activities in Iraq should only be practiced by the following:\r\n<ul>\r\n 	<li>Iraqi public companies;</li>\r\n 	<li>Iraqi joint stock corporations (private/ mixed);</li>\r\n 	<li>Branches of foreign insurers registered in Iraq;</li>\r\n 	<li>Takaful or retakaful entities; and</li>\r\n 	<li>Insurers or reinsurers considered by the Head of Diwan eligible and with the financial capacity.</li>\r\n</ul>\r\nIn accordance with Iraqi legislation, any natural person wishing to perform any insurance-related activities in Iraq should be a holder of a high school diploma as a minimum requirement. Furthermore, the aforementioned person wishing to conduct insurance activities in Iraq has to have experience in the insurance business, or, in the case where no experience is attained, the same should prove that he has passed a training course specialised in insurance business not less than 15 days from the date of the application.\r\n\r\n<strong>Cases where licences may not be granted</strong>\r\n\r\nAdditionally, Article 19 of the aforementioned order grants the IID the right to refuse granting a license to all or some of the insurance branches stated in the application, based on one of the following reasons:\r\n<ul>\r\n 	<li>The application does not satisfy the specified conditions, some of the required documents are missing or the documents do not satisfy the required conditions;</li>\r\n 	<li>The technical basis is not compatible with the costs of the operations that the insurer carries out, the reserves or the investment funds; or</li>\r\n 	<li>Non-compliance with insurance-related laws, orders, regulations or instructions currently in force.</li>\r\n</ul>\r\n&nbsp;\r\n\r\n<strong>Obligations of insurance branches</strong>\r\n\r\nWhen it comes to the functions and obligations of Iraqi insurance branches, Iraqi legislation has provided for this to include claims, paying insurance reimbursements prepared by the insurer, issuing insurance policies under an agreement with the insurer, tackling any queries regarding the insurance policies, and much more.\r\n\r\nFurther, it is provided for by the order that no insurer may reinsure insurance contracts with another insurer for any of the branches of insurance that are practised, unless the reinsurer is licensed to practice in that branch. As for any financial obligations, it is important to note that no insurer may practise insurance business unless it adheres to the minimum level of capital as specified by the relevant Iraqi legislation at hand.\r\n\r\n<strong>Role of the IID</strong>\r\n\r\nEstablished under the order above, the aim of the IID is to regulate the insurance sector, supervise it to ensure its development and to secure an open market, and strengthen the role of the insurance industry to insure people and property against risks.\r\n\r\nIn accordance with the order, the IID shall be administered by a President. This President shall be appointed on the basis of a recommendation by the Minister of Trade for a period of four years, renewable for one term only. Additionally, the order requires that certain requirements be met for a person to be eligible for the position of IID President. Some of these requirements include:\r\n<ul>\r\n 	<li>That the President be no less than 24 years of age;</li>\r\n 	<li>That the President have, as a minimum, a degree in law or public accounting or any other specialisation related to the insurance business; and</li>\r\n 	<li>That the President has no less than five years’ experience in insurance or any related field.</li>\r\n</ul>\r\n<strong>Other instructions and regulations </strong>\r\n\r\nFinally, it is important to note that several instructions and regulations have been issued on the organizing of insurance and reinsurance business in Iraq, such as:\r\n<ul>\r\n 	<li>Instructions No. 8 of 2006 on granting insurance and reinsurance business licenses;</li>\r\n 	<li>Instructions No. 9 of 2006 - types and branches of insurance;</li>\r\n 	<li>Instructions No. 10 of 2006 - organizing the work and determining the responsibilities of insurance brokers; and</li>\r\n 	<li>Instructions No. 11 of 2008 - any natural person or legal entity can practise as an insurance agent after obtaining a license by the IID.</li>\r\n</ul>\r\n<strong>Progress report</strong>\r\n\r\nAfter decades of economic stagnation, wars and economic boycott, the organisational development of the laws and regulations of insurance and reinsurance in Iraq and of Law No. 5 for the year 2005 has broadened the scope of the insurance industry in Iraq. Additionally, it has provided for scope to help attract international insurance and reinsurance companies, thereby developing competitiveness and supporting the development and revival plans of the economy.\r\n\r\nMoreover, the Security Council recently unanimously adopted Resolution 2017 (2013), which removed Iraq from its Chapter VII obligations of the United Nations Charter. This significant step will lead to positively generating a number of gains to the insurance sector of Iraq, as it contributes to a reduction in insurance costs for air freight &amp; passenger flights, shipping and sea cargo costs. In addition, change will grow the insurance industry by the opening and creation of local and international insurance agencies in Iraq.\r\n\r\n<em>First published in “Middle East Insurance Review” October 2012 issue.</em>'),
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(87679, 4769, '_yoast_wpseo_metadesc', 'The insurance industry in Iraq, in its modern form, was not founded as a result of economic or social need to protect the locals and their assets, as was the case in other Western countries. In reality, insurance was introduced into Iraq through the establishment of agencies and branches of Western insurers.'),
(87680, 4770, 'content', 'September 2013\r\n\r\n<hr />\r\n\r\nAccording to Article 9 of the New Decree, it shall come into force from the date of its publication in the Official Gazette. As at the date of preparing this article, the New Decree has not been published.\r\n\r\n<strong>Background</strong>\r\n\r\nArticle 11(5) of Law No. (13) of 2008 Regulating the Interim Real Estate Register in the Emirate of Dubai, as amended by Law No. (9) of 2009, gave the Real Estate Regulatory Authority (“RERA”) authority to cancel a real estate project based on a reasoned technical report.\r\n\r\nExecutive Council Resolution No. (6) of 2010 approving the executive regulation of Law No. (13) of 2008 (the “Resolution”) sets out further details of the manner in which RERA is authorised to cancel a real estate project. In particular:\r\n\r\nArticle 23 of the Resolution sets out the nine (9) grounds pursuant to which RERA may resolve to cancel a real estate project, as follows:\r\n<ol>\r\n 	<li>If the developer fails, without any good reason, to commence the construction works although the developer has already obtained all the required approvals from the relevant authorities;</li>\r\n 	<li>If the developer commits any of the crimes as provided under Article 16 of Law No. 8 of 2007 concerning the escrow accounts for real estate developments in the Emirate of Dubai;</li>\r\n 	<li>If RERA confirms that the developer has no serious intention to perform the project;</li>\r\n 	<li>If the plot for the intended project is withdrawn due to the breach by the sub developer of any of its contractual obligations with the master developer;</li>\r\n 	<li>If the plot is fully affected by planning or re-planning projects undertaken by the relevant authorities in the Emirate;</li>\r\n 	<li>If the developer fails to perform the project due to its gross negligence;</li>\r\n 	<li>If the developer expresses its intention not to perform the project for reasons satisfactory to RERA;</li>\r\n 	<li>If the developer declares its bankruptcy; or</li>\r\n 	<li>Any other reasons as determined by RERA.</li>\r\n</ol>\r\n<ul>\r\n 	<li>Article 24 of the Resolution gives the developer of a real estate project seven (7) working days to appeal a resolution by RERA to cancel the project.  RERA has a further seven (7) working days to determine the appeal. If RERA accepts the appeal and allows the project to proceed, it may establish terms and conditions that the developer must meet, which terms and conditions the developer must accept in writing, in order to annul the resolution to cancel the project. However, if RERA rejects the developer’s appeal, the determination is final and RERA shall proceed to cancel the project.</li>\r\n 	<li>Article 25 of the Resolution sets out the steps that RERA must follow immediately after resolving to cancel a real estate project. Accordingly, RERA must first prepare a technical report setting out the reasons for the cancellation and notify the developer of the cancellation resolution. Next, RERA must appoint an auditor, at the cost of the developer, to review the financial position of the project to confirm the amounts paid to the developer or deposited in the project’s escrow account, as well as the amounts spent. Any funds available in the escrow account are to be refunded to purchasers within fourteen (14) days of the date of cancellation of the project.</li>\r\n 	<li>Article 26 of the Resolution provides that if there are insufficient funds in the escrow account to fully refund the purchasers, the developer must pay the shortfall to purchasers within sixty (60) days from the date of cancellation of the project, which period can be extended at the discretion of RERA.</li>\r\n</ul>\r\nFinally, Article 27 of the Resolution provides that if the developer fails to repay purchasers within the period established pursuant to Article 26, then RERA “shall take all the required procedures to secure the rights of the purchasers, including the reference of the issue to the competent judicial authorities”.\r\n\r\nThe special judicial committee (the “New Judicial Committee”) that is to be established pursuant to the New Decree will be the ‘competent judicial authority’ referred to in Article 27 of the Resolution.\r\n\r\n<strong>Provisions of the New Decree</strong>\r\n\r\nFirstly, it is important to note that the New Judicial Committee will only be concerned with real estate projects that have been cancelled by RERA pursuant to the procedures outlined above – the New Judicial Committee will not be involved at all in disputes arising between developers and purchasers in relation to real estate projects that have not been cancelled.  In particular, Article 2A of the New Decree provides the New Judicial Committee the following powers:\r\n<ol>\r\n 	<li>To consider and decide such issues, demands and claims that may arise between the real estate developers and the purchasers, whose subject matter or cause is cancelled real estate projects.</li>\r\n 	<li>To liquidate real estate projects cancelled under a final resolution to be issued by the Real Estate Regulatory Authority, in accordance with the provisions of the Law No. 13 of 2008 and its executive regulation, and to settle the relevant rights upon deducting the liquidation expenses.</li>\r\n 	<li>To consider all executive proceedings, complaints and grievances whose subject matter or cause is cancelled real estate projects.</li>\r\n</ol>\r\nTo assist in the performance of its duties, Article 2B of the New Decree provides that the New Judicial Committee may do any of the following without limitation:\r\n<ol>\r\n 	<li>Seek the assistance of experts and consultants and in particular from the Dubai Lands Department.</li>\r\n 	<li>To appoint auditors at the cost of the developer to audit the financial position of the cancelled real estate project and to verify the amounts paid to the developer by the purchasers or deposited in the escrow account of such project and the amounts spent.</li>\r\n 	<li>To issue such orders to the trustee of the escrow account of the project or the developer, in any issue in connection with the liquidation of the project, including refunding the amounts deposited in the account or paid by the developer to the relevant persons.</li>\r\n 	<li>To take all the required procedures to secure the rights of the purchasers.</li>\r\n</ol>\r\nThe New Judicial Committee will consist of one or more panels of judges from Dubai Courts. Each panel must have at least three (3) members (Article 1).\r\n\r\nArticle 3 of the New Decree establishes the exclusive authority of the New Judicial Committee in relation to cancelled real estate projects in the Emirate of Dubai. In particular:\r\n<ol>\r\n 	<li>All courts in the Emirate of Dubai, including the Dubai International Financial Centre Courts, are prohibited from hearing any matter concerning a cancelled real estate project, and any existing cases are to be referred to the New Judicial Committee to handle; and</li>\r\n 	<li>Judgments issued prior to the effective date of the New Decree by any court in the Emirate of Dubai, including the Dubai International Financial Centre Courts, in connection with the liquidation of a cancelled real estate project must be referred to the New Judicial Committee for consideration.</li>\r\n</ol>\r\nJudgments, orders and resolutions issued by the New Judicial Committee shall be final and binding, not subject to appeal and can be enforced by the Execution Section of the Dubai Courts (Article 5).\r\n\r\nFinally, it is worth noting that the liquidation procedures of real estate projects together with all demands, claims and issues handled by the New Judicial Committee are exempt from court fees (Article 7).\r\n\r\n<strong>Future Developments</strong>\r\n\r\nWe will report further on the implementation of the New Decree when the New Judicial Committee has been established and further details of its modus operandi are available.'),
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