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(101341, 5509, 'pageSummary', 'This case involved an application to the Dubai Court of First Instance to recognise and enforce an ICC arbitral award issued in the UK pursuant to the New York Convention. This article will summarise the four court judgments obtained by the parties and will also address the courts’ approach towards the foreign arbitral award.'),
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(101334, 5508, '_yoast_wpseo_metadesc', 'The Dubai Court of Cassation recently clarified when an arbitral award has res judicata effect. In a judgment dated 21 August 2016, the Court held that an award has res judicata effect from the moment it is issued, and will only cease to have that effect if and when it is annulled.'),
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(101335, 5509, 'content', '<p class=\"p1\"><strong>Background</strong></p>\r\n<p class=\"p2\">On 11 November 2012, Fluor Transworld Services, a US based firm, and Petrixo Oil, a UAE company owned by prominent Dubai businessman, entered into a Technical Service Agreement, where Fluor Transworld Services provided Petrixo Oil with technical and consulting services in relation to two projects in Fujairah.</p>\r\n<p class=\"p1\">Fluor Transworld Services (Claimant) provided Petrixo Oil (Defendant) with the consulting technical services as agreed and the latter became liable to pay US$ 11,894,782.15. The Defendant abstained from paying the dues without any justifiable reasons. The Claimant issued arbitration proceedings against the Defendant pursuant to the Rules of Arbitration of the International Chamber of Commerce (ICC). The ICC arbitration was seated in the United Kingdom (UK). After obtaining an arbitral award in 2015, the Claimant filed Commercial Case No.1223-2015 against the Defendant before the Dubai Court of First Instance to recognize and enforce the ICC arbitral award.</p>\r\n<p class=\"p1\"><span class=\"s2\"> The Claimant filed the case to obtain enforcement of the arbitral award to obtain payment of the principal amount of US$ 10,205,004.21 (AED 37,452,365.45), and the accrued simple interest on the amount for a total sum of US$ 650,768.92 (AED 20,388,321.93), the expenses and legal fees totaling GBP 55,192.2 (AED 312,939.77), other arbitration fees incurred by the Claimant amounting to US$ 125,500 (AED 460,585), and simple interest of 3.25% on the amount as of the date of ruling until the full payment, and validating and enforcing a precautionary attachment no. 314 of 2015 (Commercial). </span></p>\r\n<p class=\"p1\"><span class=\"s2\"> In response, the Respondent requested the court to dismiss the arbitration award, not to recognize the award and to invalidate the provisional attachment and declare it void. The Respondent argued that (a) the signatory to the agreement had no right to agree on the arbitration, and the memorandum of association did not confer on it such a right, (b) the record was devoid of UK rules on the enforcement of a UAE award, (c) the award was not final or subject to compulsory enforcement, (d) the Defendant was not given proper notice of the appointment of the arbitrator and of the arbitration proceedings and was unable to present its case, (e) the arbitral tribunal was not appointed in the manner agreed upon by the parties or in accordance with ICC Rules of Arbitration, (f) the terms of reference were not submitted to the Court for approval in accordance with Article 23.1(c) of the ICC Rules of Arbitration, (g) the arbitrator breached Article 3 of the ICC Rules of Arbitration by failing to mention that the Secretariat had received any copies or had been sent a copy of any notification or communication from the arbitral tribunal to the parties. The Respondent also argued that the arbitrator breached Article 33 of the ICC Rules of Arbitration by not submitting the award in draft form, before signing it, to the court for approval, and the Claimant violated the arbitration procedure agreed upon with the arbitrator by not delivering documents by hand and only sent them by email.</span></p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Court of First Instance</strong></span></p>\r\n<p class=\"p2\">At the hearing dated 30 December 2015, the Court of First Instance dismissed the case on the basis that there was no evidence of the court mentioned in Article 1 of the ICC Rules of Arbitration (i.e. International Court of Arbitration) approving the award as to its form, which it considered to be a breach of Article 33 of the ICC Rules of Arbitration (which states that no award shall be rendered until it has been approved by the ICC court as to its form). The Court of First Instance held that there was a breach of the arbitration procedure set out in the ICC Rules and ruled that the Claimant’s action was without merit.</p>\r\n<p class=\"p2\"><strong>Court of Appeal</strong></p>\r\n<p class=\"p2\">The Claimant appealed the ruling pursuant to Commercial Case no. 52-2016. On 30 March 2016, the Court of Appeal dismissed the appeal on the basis that in order for the award to be enforceable in the UAE, both the UAE and the UK would have to be parties to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) or to the Geneva Convention on the execution of foreign arbitral awards (Geneva Convention) in order to enforce the arbitral award. The Court of Appeal stated that there was no proof on record to indicate that the UAE and the UK were parties to “one convention”.</p>\r\n<p class=\"p2\"><strong>Court of Cassation</strong></p>\r\n<p class=\"p2\">The Claimant appealed to the Court of Cassation under Commercial Appeal No. 384-2016. The Court of Cassation held that Article 238 of the Civil Procedure Law (CPC) indicates that international conventions signed between the UAE and other countries, which have been ratified by the UAE, applies to the enforcement of foreign court judgments, orders and arbitral awards. Article III of the New York Convention states that each contracting country must recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the country where the award is relied upon. The UK ratified the New York Convention on 24 September 1975 and the UAE acceded to the New York Convention by Federal Decree No. (43) of 2006. This means that the country where the arbitral award was issued and the country where it is to be enforced are both contracting parties to the New York Convention, which therefore applies to the issue at stake. The Court of Cassation overturned the Court of Appeal’s ruling with remand for a new decision.</p>\r\n<p class=\"p2\"><strong>Court of Appeal (on remand)</strong></p>\r\n<p class=\"p2\">The portion of the ruling which was objected to was quashed and remanded back to the Court of Appeal for a reassessment of the facts. On remand, the Court of Appeal stated that challenges raised by a party against the arbitral award concerning the arbitrator’s judgment or the validity or sufficiency of the justification for his award would be unacceptable, as the court must not address its substantive aspects and the extent of its conformity with the law and facts, according to Articles 212 and 216 of the CPC. An arbitral award may be set aside only in the circumstances specified in Article 216 of the CPC. The Court of Appeal concluded that the previous court rulings were clearly erroneous as a matter of law and are quashed, and has ruled that the ICC arbitral award is confirmed.</p>\r\n<p class=\"p2\"><strong>Commentary</strong></p>\r\n<p class=\"p2\">Since 2010, the UAE has enforced foreign arbitral awards pursuant to the New York Convention. However, with no system of binding precedent in the UAE, the Court of Appeal’s decision contrasted from the recent judgments of enforcing foreign awards and made a contradictory decision on its own motion (it had not been raised in the Defendant’s counterclaim). The Court of Appeal’s decision came as a surprise when it ruled that there was “no evidence” that the UK and the UAE were parties to the New York Convention, without fully acknowledging UAE’s commitments under the New York Convention. Although the decisions by the Court of Cassation and the Court of Appeal (on remand) are in line with the recent trend, it is believed that the courts have missed the important fact that the UAE acceded to the New York Convention without any reservation. This means that the UAE is obliged to enforce all foreign awards, even if the country where the award was issued is not a signatory to the New York Convention.</p>\r\n<p class=\"p1\"><span class=\"s2\"> In respect to foreign arbitral awards, the local courts are to apply the relevant convention’s rules in order to enforce all foreign arbitral awards. In this case, Article III of the New York Convention applied, stating that each contracting country must recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the country where the award is relied upon. </span></p>\r\n<p class=\"p1\">In the recent years, Dubai has made substantial progress and improvements in supporting arbitration as a means of dispute resolution and in applying the New York Convention; the Court of Appeal’s erroneous judgment should not detract from the achieved growth.</p>\r\n<p class=\"p1\">The Claimant was represented by Al Tamimi &amp; Company in the Dubai Court of Cassation Decision, and Al Tamimi &amp; Company supported the Claimant in overturning the incorrect ruling pursuant to the New York Convention.</p>'),
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(101312, 5508, 'pageSummary', 'The Dubai Court of Cassation recently clarified when an arbitral award has res judicata effect. In a judgment dated 21 August 2016 (Commercial Appeal 199 of 2014), the Court held that an award has res judicata effect from the moment it is issued, and will only cease to have that effect if and when it is annulled. The fact that an award was under review by the local court did not mean that the award lacked res judicata effect, or that it would only gain res judicata effect once it had been upheld. This meant that an application to the court for the appointment of a Tribunal was to be rejected whilst there was an extant arbitral award dealing with the issues in dispute. '),
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(101273, 5505, 'content_description', 'In 2014 Kuwait ratified the Berne Convention for the Protection of Literary and Artistic Works. In the same year the Council of Ministers issued Resolution No. 1070 transferring the dependency copyright administration from the Ministry of Trade and Industry to the National Library of Kuwait. The National Library provides services in the area of depository, preservation, and protection of intellectual property rights of authors through the application of the depository System, where the author or publisher registers and deposits the author’s artistic works in the National Library to ensure the conservation of the author’s intellectual property. '),
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(101275, 5505, 'pageSummary', 'In 2014 Kuwait ratified the Berne Convention for the Protection of Literary and Artistic Works. In the same year the Council of Ministers issued Resolution No. 1070 transferring the dependency copyright administration from the Ministry of Trade and Industry to the National Library of Kuwait. The National Library provides services in the area of depository, preservation, and protection of intellectual property rights of authors through the application of the depository System, where the author or publisher registers and deposits the author’s artistic works in the National Library to ensure the conservation of the author’s intellectual property.'),
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(101283, 5505, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Ahmed ElKlatawy'),
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(101291, 5505, '_yoast_wpseo_metadesc', 'The new law (On Copyrights and Related Rights) covers the copyright and related rights of natural and legal entities; Kuwaitis and foreigners permanently resident in the State of Kuwait; and foreign nationals belonging to one of the member States of the Convention or the Organisation and those under their auspices.'),
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(101306, 5508, 'content', '<p class=\"p1\"><strong>The Facts of the Case</strong></p>\r\n<p class=\"p2\">The Claimant entered into a contract with the Respondent for the supply of work.</p>\r\n<p class=\"p2\">The contract contained an ambiguous arbitration clause that did not specify a method for appointing the Tribunal, nor the appointing authority. When a dispute arose between the parties over the outstanding debt, the Claimant approached the Dubai International Arbitration Centre (DIAC) to appoint an arbitrator. The dispute was heard by the arbitrator and an arbitral award was issued disposing of the dispute.</p>\r\n<p class=\"p1\"><span class=\"s2\">Following the issuance of the arbitral award, the Respondent filed Civil Action No. 652 of 2012 to set it aside while the Claimant filed Civil Action No. 584 of 2012 to confirm the award. The Respondent also filed a claim (Commercial Action No. 597-2013) before the Dubai Courts for the appointment of an arbitrator, on the basis that the previous award was invalid and it was for the court to appoint the tribunal, not DIAC. The Claimant argued that this action was beyond the limits of the courts’ jurisdiction as the dispute had previously been determined by the arbitral award. </span></p>\r\n<p class=\"p3\"><span class=\"s3\"><strong>Court of First Instance</strong></span></p>\r\n<p class=\"p2\">The Court of First Instance dismissed the Respondent’s application for an arbitrator to be appointed because an arbitral award existed that had already resolved the dispute matter.</p>\r\n<p class=\"p2\"><strong>Court of Appeal</strong></p>\r\n<p class=\"p4\">The Court of Appeal upheld the decision of the Court of First Instance.</p>\r\n<p class=\"p2\"><strong>Court of Cassation</strong></p>\r\n<p class=\"p2\">The Court of Cassation upheld the decision of the Court of Appeal.</p>\r\n<p class=\"p1\"><span class=\"s2\"> The Court explained that it was well established by the Court of Cassation that arbitral awards become res judicata upon issuance, although their enforcement is subject to a confirmation procedure. The parties therefore have no recourse to the courts to resolve the dispute once the award has been issued. This is so even if there is new factual evidence or legal arguments.</span></p>\r\n<p class=\"p1\"><span class=\"s2\"> In issuing the award, the arbitrator disposes of the issues pursuant to the arbitration clause. The purpose of the arbitration clause is therefore fulfilled irrespective of whether the court then proceeds to confirm the award or set it aside for any reason (including a procedural one). The dispute cannot be brought before the same arbitrator or a different one except in accordance with a new agreement between the parties. </span></p>\r\n<p class=\"p1\"><span class=\"s2\"> An arbitral award does not have res judicata effect only upon confirmation by a final and conclusive decision of the competent court. The situation is similar to the way that court rulings have res judicata effect even if challenged by way of an appeal to the Court of Cassation. </span></p>\r\n<p class=\"p1\"><span class=\"s2\"> As to the contention that DIAC was not competent to appoint the Tribunal, this was rejected because the Respondent had acknowledged and agreed to DIAC arbitration. The action to set aside the arbitral award was dismissed on this basis. </span></p>\r\n<p class=\"p4\"><strong>Comment</strong></p>\r\n<p class=\"p2\">This judgment is important because it puts beyond doubt that arbitral awards have res judicata effect once issued, and that this remains the case even if the award is being challenged in the courts. The idea that an award is in some sense temporary or without effect until upheld by the local courts is wrong. Those that use arbitration can have confidence that once issued an award is effective, and that unless the award is annulled the issues that it resolves cannot be re-argued, even if new evidence or arguments arise.</p>'),
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(101258, 5504, 'content_description', 'This article provides an overview of the principle of document production from an Egyptian Law perspective and also offers a comparison as against the International Bar Association Rules on the Taking of Evidence in International Arbitration.'),
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(101260, 5504, 'pageSummary', 'This article provides an overview of the principle of document production from an Egyptian Law perspective and also offers a comparison as against the International Bar Association Rules on the Taking of Evidence in International Arbitration.'),
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(101262, 5504, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-14/october-6/dispute-resolution-an-overview-of-document-production-in-egypt.html'),
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(101269, 5505, 'content', 'October 2016\r\n\r\n<hr />\r\n<p class=\"p1\">And now Kuwait has issued a new copyright law, Law no. 22 of 2016 (On Copyrights and Related Rights). The new law covers the copyright and related rights of natural and legal entities; Kuwaitis and foreigners permanently resident in the State of Kuwait; and foreign nationals belonging to one of the member States of the Convention or the Organisation and those under their auspices. The old law (No. 64 of 1999 on Intellectual Property Rights) has been revoked.</p>\r\n<p class=\"p1\"><span class=\"s1\"> The protection established by the new law is conferred upon the copyright of original works of literature, arts, sciences, or knowledge, whatever the type of work or the means of its expression, its importance, or the purpose of its authoring or composition.</span></p>\r\n<p class=\"p2\"><strong>Protection of author’s moral and financial rights</strong></p>\r\n<p class=\"p2\">The author and the author’s heir shall enjoy perpetual, inalienable and imprescriptibly moral rights over the work. Also, performance artists, their heirs and successors shall enjoy perpetual, inalienable and imprescriptibly moral rights.</p>\r\n<p class=\"p1\"><span class=\"s3\"> The author, and their heirs and successors are to enjoy the exclusive right to permit or prevent any form of use or exploitation of the work, and for those authors who not have heirs or successors, the Kuwaiti National Council for Culture, Arts &amp; Letters will be responsible to protect the authors’ interests against any infringement. Also, performance artists enjoy some financial rights as per the new law. </span></p>\r\n<p class=\"p1\">For the first time in Kuwait, the new law protects the author’s works, in particular from unauthorised publication, reproduction, public broadcast or rebroadcast, public communication, translation, adaptation, rental, or the making available of the work to the public including via computer, the internet, information networks, communications networks or other means.</p>\r\n<p class=\"p1\"><span class=\"s1\"> The duration of protection endures for the period of the author’s lifetime and fifty years following the author’s death. Also, the duration of protection with regards to audio, visual, audio-visual works and films, collective works of a legal entity, and computer programs shall be fifty years as of the date of the first showing or legitimate publication of the work, regardless of republication.</span></p>\r\n<p class=\"p2\"><strong>Enforcement </strong></p>\r\n<p class=\"p2\">The new law gives an important role to the National Library of Kuwait, as for the library’s staff (who are designated by the competent minister (i.e. the Minister of Information)) have the right to monitor the implementation of the Law by inspecting presses, libraries, publishing houses and public places. If any potential infringement is detected, they are to forward details of this to the relevant authority for further investigation. They have the right to request police assistance in the performance of their duties if needed.</p>\r\n<p class=\"p2\">Furthermore, by a reasoned administrative decision from the competent Minister, any establishment in violation of the law may be closed temporarily for a maximum period of three months and, in case of repetition, may have its license withdrawn and be closed permanently.</p>\r\n<p class=\"p1\"><span class=\"s1\"> The Public Prosecution have the exclusive authority to investigate, act and make prosecutions in relation to all crimes resulting from the application of the provisions of the new law.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> Any infringement of the moral or financial copyright of the author may incur a prison sentence of between six months and two years, and/or a fine of KWD 500 to KWD 50,000. This also applies to anyone found guilty of distributing equipment designed to circumvent the technical protection employed by copyright owners, for which the fine may be as much as KWD 100,000.</span></p>\r\n<p class=\"p2\"><strong>Conclusion</strong></p>\r\n<p class=\"p2\">The new law is a significant step forward for the protection of copyright in Kuwait, and a reflection of how important the subject is to the government. It is hoped that Kuwait will be strong in enforcing compliance with the new law, and that it will continue to revise it to keep pace with technological advancements.</p>\r\n<p class=\"p2\">Ahmed ElKlatawy sadly passed away in September 2016</p>'),
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(101243, 5503, 'content_description', 'During the global financial crisis it became fashionable to identify so-called “Black Swans” – events that apparently came from nowhere often with devastating effect, although in hindsight their causal factors were often hiding in plain sight.'),
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(101245, 5503, 'pageSummary', 'During the global financial crisis it became fashionable to identify so-called “Black Swans” – events that apparently came from nowhere often with devastating effect, although in hindsight their causal factors were often hiding in plain sight.'),
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(101253, 5503, '_yoast_wpseo_metadesc', 'Al Tamimi & Company discusses a number of Black Swans which have implications for Saudi Arabia’s Vision 2030 (the “Vision”), Saudi Arabia’s fifteen year plan to wean itself from its current dependency on oil revenues.'),
(101254, 5504, 'content', 'October 2016\r\n\r\n<hr />\r\n<p class=\"p1\"><strong>Background</strong></p>\r\n<p class=\"p2\">In common law jurisdictions, parties to a dispute disclose the documents or information in their possession that are relevant to the dispute in hand (the specific requirements differ from one jurisdiction to another). Contrary to the common law legal system, civil law jurisdictions do not normally recognise the disclosure and discovery of documents as an element of the pre trial fact-finding process.</p>\r\n<p class=\"p1\"><span class=\"s3\"> The civil legal system approach mainly entails that each party to a dispute shall submit the proof supporting the position set out in the claim or defence (as applicable). </span></p>\r\n<p class=\"p1\"><span class=\"s4\"> However, the development of international arbitration as a mechanism for dispute resolution complicated matters as it frequently involved parties from different legal systems. This drove the international arbitration community to find a common ground for the taking of evidence. Therefore, the International Bar Association Rules on the Taking of Evidence in International Arbitration were adopted in 1999 and revised in 2010 as guidelines for the evidentiary aspect of arbitration proceedings (“IBA Rules”). Although Egypt does not fall far from other civil law countries with relation to the evidence rules, the Egyptian Law No. 25 of Year 1968 on Evidence in Civil and Commercial Procedures (the “Evidence Law”) recognizes “Production of Documents” as an instrument of discovery that exists in the common legal system. </span></p>\r\n<p class=\"p1\">In order to compare the Egyptian principle of document production as against the IBA Rules, it is necessary to first consider the former in some detail.</p>\r\n<p class=\"p2\"><strong>Production of Documents under the Evidence Law</strong></p>\r\n<p class=\"p2\">As constitutionally established, one shall not be compelled to provide an evidence against himself under Egyptian law. Notwithstanding the aforesaid legal principle, Article 20 of the Evidence Law permits the party to a dispute to request that the opposing party produce documents in his possession that may assist the former to evidence his case. With this respect, the Article provides three grounds under which the request for the production of documents may be granted:</p>\r\n\r\n<ul>\r\n 	<li>If the law permits the request for providing or delivery of a document (eg. the Egyptian Trade Law entitles the court to order the trader, even at its own initiative, to produce its commercial books).</li>\r\n 	<li>If the requested document is common between the parties. In other words, if the document is in the interest of the parties or serves as a proof of their obligations and their mutual rights.</li>\r\n 	<li>If the document subject to request was relied on by the opposing party at any stage of the proceedings.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p6\">Furthermore, Article 21 of the Evidence Law sets out the following requirements to be satisfied in order for any request for document production to be considered before the Court:</p>\r\n\r\n<ul>\r\n 	<li>The description of the requested document.</li>\r\n 	<li>The subject of the requested documents in detail.</li>\r\n 	<li>The fact that is alleged to be proved by the requested document.</li>\r\n 	<li>The circumstances which prove that the requested document is under the possession of the opposing party.</li>\r\n 	<li>The reason for which the opposing party shall produce the requested document.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p6\">The judge does not have a discretionary power with relation to a production of documents request and is obliged to order the immediate production of documents in the following three cases: (i) if the requesting party proves that the requested documents do exist under the possession of the counterparty; (ii) if the party requested to produce the documents acknowledges possession; or (iii) the party requested to produce the documents is silent in response to the request and provided that the requested document(s) are specified, detailed, relevant and material. Conversely, if the party requesting production did not provide sufficient proof that the documents were indeed in the counterpart’s possession or if the counterparty denied the possession of such documents he would be ordered to take an oath to the effect that the requested documents do not exist nor he is aware of their existence.</p>\r\n<p class=\"p1\">The judge may, upon failure of a party to produce the ordered documents or taking of the oath (as set out above), consider a copy of the requested document as evidence that it exists, or establish his decision based on the formality and content description provided by the requesting party.</p>\r\n<p class=\"p1\">Article 27 of the Evidence Law has established a wider spectrum for the production of documents that are under the possession of the opponent or a third party, which applies if the circumstances under Article 20 are not satisfied in the production of documents request.</p>\r\n<p class=\"p1\">Under this Article, the Evidence Law widens the scope to include a third party or parties who are in possession of the requested documents. To elaborate, Article 27 compels the production of documents provided it meets it is material to the claim before the court and sufficiently specific. In essence, the requesting party must demonstrate that the document(s) sought would have an impact on the outcome of the case albeit that it does not necessarily have to be constitute absolute proof of the issue at hand. This Article has a broad scope and includes all types of evidence including documents, paintings, pictures etc.</p>\r\n<p class=\"p1\"><span class=\"s5\"> However, Article 27 is limited where it may prejudice a legitimate interest of the party to whom the request has been issued such as the right to confidentiality. Nevertheless, the judge may reconcile between the right to gather evidence and the right to confidentiality through ordering the production of a specific part of the requested document. The judge may also order a party to produce a document that would solely be reviewed by the Court.</span></p>\r\n<p class=\"p1\">Although outside the scope of the Evidence Law, it is also worth mentioning that the Rules of the Cairo Regional for International Commercial Arbitration (“CRCICA”) have provided for the issue of production of documents. The CRCICA does not require the production of documents of documents upon a party’s request. However, Article 27/1 of CRCICA has left the power to order the production of documents to the Arbitral Tribunal whenever it considers it necessary to adjudicate the subject matter. Pursuant to Article 30.4, if the party requested to produce the document(s) does not comply with the order of the Arbitral Tribunal, the latter would be at liberty to make any necessary inferences.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>The IBA Rules</strong></span></p>\r\n<p class=\"p1\">The IBA Rules has empowered Arbitral Tribunals to order a party to a dispute to produce documents or take reasonable steps to obtain such documents whether upon the request of the counterparty or according to its own discretion. The Rules have established three requirements for ordering production of documents, namely;</p>\r\n<p class=\"p1\"><span class=\"s3\"> <em>Specificity</em>, the party requesting production shall provide a sufficient description of the requested document(s). The party shall also provide the reasons that make him assume that such documents are under the possession of the counterparty. </span></p>\r\n<p class=\"p1\"><em>Materiality</em> and <em>Relevance</em>, the party requesting production shall clarify why the requested document(s) are relevant to the dispute and how they would be material to the outcome of the case.</p>\r\n<p class=\"p1\">Finally, the party requesting the documents production shall demonstrate why he believes that such documents are under the possession, custody or control of the counterparty; and why production would not constitute a burden upon on the latter.</p>\r\n<p class=\"p1\">Moreover, the IBA Rules allow the Arbitral Tribunal to order third party to produce documents in accordance with the aforementioned requirements.</p>\r\n<p class=\"p1\">In a nutshell, the standards for production of documents under Article 27 of the Evidence Law are somewhat similar to their homologue under the IBA Rules which are specificity, materiality and relevance. Similar to Article 30.4 of the CRCICA Rules, as a deterrent, if the party ordered to produce document fails to produce this document or did not raise an adequate objection, the Arbitral Tribunal may draw an adverse inference.</p>\r\n<p class=\"p2\"><strong>Conclusion </strong></p>\r\n<p class=\"p2\">The Evidence Law provides for diverse situations where documents require to be produced. Articles 20 and 21 have set an exhaustive list of fairly stringent conditions and standards before a judge is entitled to order a party to produce a specific document(s). However. Article 27 sets out a broader scope whereby production of documents may be ordered to include a third party or parties in possession of the requested documents. Moreover, the wide-ranging scope of Article 27 encompasses any form of evidence that is deemed necessary in order to allow the courts to establish the existence and extent of a claim.</p>\r\n<p class=\"p1\">There is a significant resemblance and cross over between Article 27 and the IBA Rules. There are no legal impediments preventing the parties in Egyptian arbitration in agreeing to rely upon the IBA Rules. Further, it is not uncommon in international arbitral proceedings seated in Egypt that Arbitral Tribunals order that it shall seek guidance from the IBA Rules when the issue of document production arises.</p>'),
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(101197, 5501, 'pageSummary', 'The Kingdom of Saudi Arabia (‘KSA’) enjoys a strategic geographical position on the global sea trade map as reflected by the fact that Jeddah Islamic Port was ranked 33rd on Lloyd’s global list of the busiest ports running bulk docks.'),
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(101215, 5501, '_yoast_wpseo_metadesc', 'The KSA domestic maritime practice has ensured that the arrest of ships in KSA is somewhat of an enigma for many international carriers, insurers, and traders. This article considers, the complex maritime practice for ship arrest in KSA.'),
(101216, 5502, 'content', 'October 2016\r\n\r\n<hr />\r\n<p class=\"p1\">This article highlights some key points introduced by the new law and signposts the new and impending regulations that companies and individuals need to be aware of when registering or operating small vessels.</p>\r\n<p class=\"p2\"><strong>Vessels subject to the new law</strong></p>\r\n<p class=\"p2\">The new law defines a ‘Vessel’ as ‘every floating vehicle operating in maritime navigation or sports or prepared for the same, of which the cargo is less than (200) two hundred tons, even if it does not aim to achieve profit’.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>New conditions</strong></span></p>\r\n<p class=\"p2\">In order for a vessel to be registered with the relevant Department in Qatar, the vessel must meet the following conditions:</p>\r\n\r\n<ul>\r\n 	<li>to be provided with navigational devices, communication devices, colors, lights, distress signals, equipment and tools necessary to achieve safety and security conditions as determined and issued in the competent Minister’s decision;</li>\r\n 	<li>to pass the technical inspection necessary; and</li>\r\n 	<li>to be insured, the vessel’s owner must provide the competent department with an insurance policy issued by a national insurance company guaranteeing third-parties’ compensation for damage incurred.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p6\">The law permits the competent Minister to add other conditions for the registration or to exclude some vessels from the application of some conditions on a permanent or temporary basis.</p>\r\n<p class=\"p1\">If the owner of the vessel is non-Qatari, the owner is required to have a valid residence permit in Qatar. If a vessel is manufactured or is owned be a foreigner, the owner or the importer may be granted a temporary registration certificate to enable him to enter into Qatar and to inspect it, after perusal of the necessary documents.</p>\r\n<p class=\"p1\">The registration of the vessel will be cancelled should the vessel perish or is no longer available in any way for its intended use.</p>\r\n<p class=\"p1\"><span class=\"s3\"> The law also prohibits any vessel from operating unless it is registered and has obtained a valid license for its operation. The law further requires the person operating the vessel to hold a valid licence to do so. </span></p>\r\n<p class=\"p1\"><span class=\"s3\"> Government vessels are exempted from such registration and the competent Minister has authority to exclude scientific research vessels from registration.</span></p>\r\n<p class=\"p2\"><strong>Penalties</strong></p>\r\n<p class=\"p2\">The law provides for financial and criminal penalties for breach. The breaching person will be subject to imprisonment for a period not exceeding three months and/or a fine not exceeding QR 50,000 if that person uses, deliberately facilitates, or participates in the use of any vessel without registration or operates a vessel without obtaining a valid license. The penalties can double in case of repetition.</p>\r\n<p class=\"p1\">The competent Minister may decide the crimes amicably at anytime during the legal procedures so long as there is no final judgment issued on the breach. The competent Minister is empowered to accept in consideration for settlement a financial amount equal to half of the maximum limit of the fine prescribed per breach. In the event of settlement the case would be dismissed.</p>\r\n<p class=\"p2\"><strong>New Implementing Regulations</strong></p>\r\n<p class=\"p2\">The draft implementing the necessary regulations (‘Implementing Regulations’) for the application of new law is ongoing. The final version is expected to be issued in the next few months. We will comment further on the Implementing Regulations when issued.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Interim Period</strong></span></p>\r\n<p class=\"p2\">Article 29 of the new law gives the owners of the vessels 6 months from the law’s effective date to bring their affairs into compliance with the new law. The law would become effective after one month from the date it is issued in the Official Gazette. The competent Minister may extend the 6 months for one or more similar periods.</p>\r\n<p class=\"p2\"><strong>Next Steps</strong></p>\r\n<p class=\"p2\">The new law (once in force) will repeal and replace the old Law No. 19 of 1980. The competent Minister will issue the decisions necessary for the implementation of the provisions of the new law. Until issuance of such decisions, the decisions currently in force remain valid to the extent they do not contradict the provisions of the new Law.</p>\r\n<p class=\"p2\"><strong>Conclusion</strong></p>\r\n<p class=\"p2\">With the numerous new and impending regulations, penalties and conditional changes affecting the owners of the vessels, it is vital that the owners of the vessels make themselves fully aware of the changes introduced by this law. Vessel owners are advised to reconsider the way their vessels are operating and registered in order to bring them in line with the new law.</p>\r\n<p class=\"p2\">We also hope that Maritime Law No. 15 of 1980 will be amended soon.</p>'),
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(101220, 5502, 'content_description', 'His Highness, Sheikh Tamim bin Hamad Al Thani, Emir of Qatar, issued on 23 August 2016 Law regarding Small Vessels Registration (Law No. 8 of 2016). The new law was issued after 36 years of operation of the old law (No. 19 of 1980) and it introduced new conditions and penalties that small vessel owners will have to comply with. The law is not yet into force. It is expected to be published in the Official Gazette in the next couple of months and will come into force one month after being published in the Official Gazette.'),
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(101239, 5503, 'content', 'October 2016\r\n\r\n<hr />\r\n<p class=\"p1\">This article discusses a number of Black Swans which have implications for Saudi Arabia’s Vision 2030 (the “Vision”), Saudi Arabia’s fifteen year plan to wean itself from its current dependency on oil revenues. Before doing that, it also considers the socio-economic backdrop to Vision 2030.</p>\r\n<p class=\"p2\"><span class=\"s1\"><strong>The Oil Paradox</strong></span></p>\r\n<p class=\"p1\"><span class=\"s1\">Saudi Arabia’s consumption of its own oil and gas is growing at around 7% per year<sup>1</sup>. Demand for power is especially high during the scorching heat (in some places well over 50C) of the summer months when power consumption increases significantly in order to run air conditioning but with significant regional variance. The very title of the 2011 Chatham House report “Burning Oil to Keep Cool”<sup>2</sup> captures the essence of the problem. However, air conditioning is only a part of the energy challenge faced by the country. </span></p>\r\n<p class=\"p1\"><span class=\"s1\">Desalinated water production is also a very significant domestic consumer of hydro-carbons. The Saline Water Conversion Company (the “SWCC”) runs its own fleet of coastal IWPP stations which can be called upon by the Saudi Electricity Company (the “SEC”) to help meet peak demand – in 2012, 5.3 percent of the total electricity generated by the Saudi power sector (and transmitted and distributed by the SEC) came from SWCC. In that year SEC power purchases from third parties amounted to 23.8 percent of energy generated. Saudi Aramco also has significant power generation capacity and there is a small but well established IPP market. </span></p>\r\n<p class=\"p1\"><span class=\"s1\">Heavily subsidized power and water have been part of the social compact in Saudi Arabia for decades. Both cool air and potable water are funded by exporting a resource (oil) which is the Kingdom’s primary source of revenue. Those abroad who fill their tanks with Saudi oil have, indirectly, been funding this compact. At the same time, those oil-importing countries have enjoyed the significant benefit of exporting into the Saudi market (everything from consumer goods to military weapons and equipment). The downside of that position is a lack of private sector employment in the Kingdom itself – one of the key challenges which the Vision is intended to address, with a planned 6 million additional jobs by 2030. </span></p>\r\n<p class=\"p1\"><span class=\"s1\">Moving to anything approaching cost-reflective tariffs for electricity and water (and the recently promulgated National Transformation Program sets a target of a 100% tariff to actual water cost by 2020) is likely to be a painful, but ultimately necessary adjustment, if the value in the primary asset of the Kingdom is to be realised and invested (and not dissipated in its own domestic market).  Achieving that goal will require a gradual shift in pricing and subsidy strategy across many sectors (not just power and water). You cannot invest premium oil revenues to pay for future pensions if you burn the oil at a discount to chill air and desalinate water. Worse still, if the water that is produced is then subject to significant leakage (becoming not only “non-revenue water” but actually “anti-revenue water”) then the inefficiency in the system is further exacerbated. The missing element then for SEC (and SWCC, NWC and by extension all other state entities which provide services), is the wherewithal for the end user to actually pay something approaching a market rate. </span></p>\r\n<p class=\"p1\"><span class=\"s1\">Achieving that goal will require a gradual shift in pricing and subsidy strategy across many sectors (not just power and water) including, for instance, the soon-to-be realized metro system in Riyadh. Again, this segues into the key element of the Vision, which relates to private sector employment and employability and as a necessary corollary to both, </span><span class=\"s2\"><em>education</em></span><span class=\"s1\">.  </span></p>\r\n<p class=\"p1\"><span class=\"s3\">It should therefore be no surprise that Saudi Aramco has previously warned (well before the current oil price reduction) that crude </span><span class=\"s4\"><em>export</em></span><span class=\"s3\"> capacity would fall by about 3 mb/d to under 7 mb/d by 2028 unless</span><span class=\"s4\"><em> domestic energy growth demand</em></span><span class=\"s3\"> was checked. In effect, Saudi Arabia risks consuming just over one quarter of its current oil production by 2028. Mr. Khalid Al-Falih (now Energy Minister, in 2010 Chief Executive of Saudi Aramco) was quoted in the Financial Times<sup>4</sup> saying:</span></p>\r\n<p class=\"p1\"><span class=\"s1\">“We estimate that, </span><span class=\"s2\"><em>through improved efficiency</em></span><span class=\"s1\">, while maintaining the same economic growth, the increase in energy demand can be cut in half,” Mr Falih also said... “If no efficiency improvements are achieved, and the business is as usual, the oil availability for exports is likely to decline to less than 7m barrels per day by 2028, a fall of 3m barrels per day, while the global demand for our oil will continue to rise.” </span></p>\r\n<p class=\"p1\">Those were far-sighted comments but, even in 2010, although the challenge was apparent, the full glare of complicating factors was perhaps not so clear. Since that time the advent of shale technology has prompted a return to longer term price trends in the international hydro-carbon markets and opened almost boundless seams of carbon resource to countries which have hitherto lacked energy security. Oxford University economist Dieter Helm, has recently remarked on the situation:</p>\r\n<p class=\"p1\"><span class=\"s1\">“The oil outlook that emerges…is very different from the one envisaged by many in the oil industry, in oil producing countries and forecasters... It is one in which the oil price stabilises in the short run at a much lower level, </span><span class=\"s2\"><em>where the medium term oil price stays subdued by more and more oil supply and not much demand growth, and where in the long run, the oil price declines</em></span><span class=\"s1\">.”<sup>5</sup> </span></p>\r\n<p class=\"p1\"><span class=\"s5\">In 2010, after the financial crisis but before the period of sustained prices above the USD 100 per barrel mark, the price per barrel of oil was around USD80. Helm’s point is that, analyzed over the 150 years or so of the global oil industry, even USD 50 would be a high price. Given that shale technology is only going to become more efficient over the short and medium term (and that renewable energy technology will enjoy similar advances), it is difficult to envisage a situation where countries would sacrifice their own new-found energy security to support the social fabric of other states. </span></p>\r\n<p class=\"p1\"><span class=\"s1\">Unfortunately, it gets worse. </span></p>\r\n<p class=\"p1\"><span class=\"s1\">Dieter Helm cautions that that the low cost labour model for economic development is not necessarily one which will serve in the future:</span></p>\r\n<p class=\"p1\"><span class=\"s1\">“Why should the simplistic model of replicating China’s growth play out in other populous developing countries? Is it really the case that the future lies with cheap labour gaining markets for exports in the developed countries? This assumes that the basic technologies will remain labour-cost driven. Yet the emerging growth story is all about robotics, automation, 3D printing – in other words, the application of information technologies to manufacturing and services, and hence a move from labour to digitalised capital. The new technologies will compete more on skills and intellectual capital, and less on manual labour. These technologies are all electric, not oil based. </span><span class=\"s2\"><em>For electricity, oil is not a preferred fuel source</em></span><span class=\"s1\">. Gas has a much more attractive role to play. As the world electrifies, gas out-competes oil, before next generation solar and the new low carbon generation technologies come on stream.”</span></p>\r\n<p class=\"p1\"><span class=\"s1\">That perspective is not good news for a country with a population 70% of which is aged under 30 and who have grown up under an entirely favourable oil-based economic model (although it should be noted that the Kingdom has extensive gas reserves). </span></p>\r\n<p class=\"p3\"><strong>Black </strong><strong>Swans</strong></p>\r\n<p class=\"p1\"><span class=\"s3\">The global temperature for February 2016 was far above the long-term average and was described by scientists as a “shocker” and signalling “a kind of climate emergency”<sup>6</sup>. March 2016 set a new record temperature for that time of year, according to NASA’s Goddard Institute for Space Studies. The global temperature was 1.28C warmer than the average for March from 1951 to 1980, which is used as a baseline<sup>7</sup>. Figures recently released by NASA show the global temperature of land and sea was 1.11C warmer in April than the average temperature for April during the period 1951-1980<sup>8</sup>. What we do not know is how rapidly change is likely to occur or how bad it will be, but the trend is clear (and since the climate is a dynamic system, prone to mutually and self-reinforcing feedback loops we are unlikely to ever reach a stable position in this regard in any case). It is apparent that change is occurring “faster than anticipated”. </span></p>\r\n<p class=\"p1\"><span class=\"s3\">Former Exxon Mobil economist, Hoesung Lee, new head of the United Nations Intergovernmental Panel on Climate Change (“IPCC”), recently said that the goal of keeping temperature rise under 2C remained “…</span><span class=\"s4\"><em>technically feasible</em></span><span class=\"s3\">, although it could become prohibitively expensive. 2C is achievable, and if we fail to act according to what the IPCC has been advising, the cost will rise phenomenally, the sooner we act, we will be able to achieve 2C stabilisation </span><span class=\"s4\"><em>cost-effectively</em></span><span class=\"s3\">,” he went on. “The longer we wait to take action, the cost will be a lot higher.”<sup>9</sup> </span></p>\r\n<p class=\"p1\"><span class=\"s1\">The next landmark report from the UN climate science panel – due to come out in three stages between 2020 and 2022 – will look more closely at policies for dealing with climate change. That could include studies of the relative effectiveness of carbon taxes in different economies, the impacts of technology standards, government funding for research and development, and policies for protecting cities and rural areas from climate change. As a part of that debate, we can expect to see economic (and philosophical) innovations such as Dieter Helm’s recent work on the pricing of natural capital achieving further prominence, the key question (perhaps in some respects a restatement of Minister Al Falih’s 2010 comment and Hoseung Lee’s more recent comments on cost-effectiveness) being: </span><span class=\"s2\"><em>what would we be willing to give up in order to have more of something else? </em></span></p>\r\n<p class=\"p1\">The Intended Nationally Determined Contribution (“INDC”) of Saudi Arabia under the United Nations Framework Convention on Climate Change (“UNFCCC”) recognises these challenges). Under the INDC two development baseline scenarios are identified – one reliant on the kind of heavy industrialization which (per Dieter Helm above) seems less attractive; the other envisaging economic diversification with a robust contribution from oil and its derivatives with revenues channelled into investments in high value-added sectors such as financial services, medical services, tourism, education, renewable energy and energy efficiency technologies to enhance economic growth. The INDC states that the Kingdom aims to create long-term partnerships with universities, research institutes and the private sector in order to enable utilization of these technologies. The INDC is very clear on what the priorities will be:</p>\r\n<p class=\"p1\">“(a) water saving, recycling, capture, irrigation and sustainable management for agriculture purposes; (b) early warning system against meteorological extreme events (such as floods, storms and droughts); and (c) transportation technologies that are resilient to the adverse effects of climate change while reducing and/or capturing transportation-related emissions.”</p>\r\n<p class=\"p1\"><span class=\"s3\">In relation to the Vision, a rapid acceleration of climate change is a Black Swan. </span></p>\r\n<p class=\"p4\"><strong>Squaring </strong><strong>the </strong><strong>Circle</strong></p>\r\n<p class=\"p1\">Squaring the circle of energy efficiency, cost effectiveness and subsidy is likely to be at the heart of most if not all future PPP/concession arrangements.</p>\r\n<p class=\"p1\"><span class=\"s1\">In the Saudi context, SEC has a fundamental role on the supply side. There have been indications that the government (the 80% shareholder) is considering restructuring it – into generation, transmission and distribution companies. This is a relatively well-trodden path globally – lots of good lessons have been learned and can be applied here. Indeed, there are several dominant players in various utility markets which benefit from home-country golden share investment and support, leveraging off the knowhow garnered in their domestic markets to win market share overseas. The scope for a Saudi player to morph over time into a company with a footprint as extensive as a Veolia or an Engie is very real. Indeed Abunayyan and ACWA Power have already made significant strides. If that path can be based on diversifying into new technologies which create jobs then at least some of the goals in the Vision and the INDC are within reach. </span></p>\r\n<p class=\"p1\"><span class=\"s1\">Others are already implementing a similar strategy -  Italian oil major Eni (in which the Italian state owns around 30% of shares) aims to bring 420 megawatts of mostly solar power generation online by 2022 by reusing derelict land linked to existing fossil fuel operations. Chief Executive Claudio Descalzi expects Eni to invest 1 billion Euros over the next three years in renewable energy projects and research<sup>10</sup>. For the Kingdom, this process has to start with SEC. In the January 2014 prospectus for SEC’s Sukuk Al-Istithmar, the position advanced on generation company restructuring was stated to be as follows:</span></p>\r\n<p class=\"p1\"><span class=\"s1\">“Each GENCO will be incentivized to operate as efficiently as possible, with performance being measured against key performance indicators…the creation of wholly owned GENCOs which are incentivized to operate efficiently and compete against each other should ensure significant improvements in [the] generation business.”</span></p>\r\n<p class=\"p1\"><span class=\"s1\">It may also make sense to have a separate company, tasked with operating as the single buyer for renewable Independent Power Projects, perhaps under a non-negotiable Power Purchase Agreement following the example of the South African Renewable Energy IPP program which made very significant advances in the sector over a comparatively short period of time with explicit selection criteria linked to local socio-economic development and job creation<sup>11</sup>. </span></p>\r\n<p class=\"p1\"><span class=\"s6\">A competitive procurement process for renewable energy is currently under preparation and evaluation. Consistent with the Vision, any scheme of that scale will have to embed local job creation as part of its overall business case. As regards renewables, it should be noted that a new wave of technology is being developed which offers enhanced effectiveness in terms of generation and, crucially, storage. The Kingdom is actively participating in this already – last year it was announced that hot sand concentrated solar power is set to become a commercial reality with significant environmental and cost benefits, especially as regards rural power generation. This is a very significant step forward as existing solar technologies have encountered reliability and degradation issues in conditions of extreme heat and dust.</span></p>\r\n<p class=\"p1\"><span class=\"s3\">The position of nuclear in the overall energy mix cannot be understated. King Abdullah City for Atomic and Renewable Energy (“KACARE”), the body with oversight of the nuclear program in the Kingdom, will have to start delivering on installed capacity sooner rather than later if Vision 2030 is to be accomplished. Given the travails of the global atomic energy market, commissioning the 16 or so planned nuclear stations by 2030 looks increasingly challenging. Minister Al-Falih has recently also assumed charge as the chairman of the board of KACARE<sup>12</sup>. KACARE is targeting the replacement of 50% of the Kingdom’s fossil fuel power generation with renewable (including atomic) generation by 2032. </span></p>\r\n<p class=\"p1\"><span class=\"s1\">In terms of the drive for efficiency highlighted by Minister Al Falih, it is highly likely that having gone through a process of corporatisation, elements of SWCC and/or NWC (and their international contractors) will be subject to increased scrutiny with the underlying aim of curing inefficiencies in the systems and, in particular, leakage rates. The requirement for potable water in the Kingdom is among the highest and most subsidized in the world – transitioning to a position where the subsidy reduces over time will have to be calibrated to private sector job creation. </span></p>\r\n<p class=\"p4\"><strong>Ability </strong><strong>to </strong><strong>Pay</strong></p>\r\n<p class=\"p1\"><span class=\"s3\">The very difficult part in all this will be, of course, getting the public to pay. There is no easy way around this – outsourcing that risk to distribution companies or under some form of concession may be one solution but gearing the introduction of anything approaching cost reflective charging with employment opportunities will be vital (the private sector is not likely to accept that risk without a very high level of confidence in its ability to collect or a copper-bottomed guarantee from the state). </span></p>\r\n<p class=\"p3\"><strong>Job </strong><strong>Creation</strong></p>\r\n<p class=\"p1\"><span class=\"s1\">The climate agenda may provide some of the impetus for job creation. One of the many suggestions in the Chatham House report cited above relates to retro-fitting the built environment of the Kingdom with environmentally sustainable measures. We have seen recently a move to Saudise the telecoms industry – thousands of young Saudis are being trained to perform functions which were previously the preserve of foreign workers. If a similar approach can be adopted as regards the building of new housing stock (and that build program is based around a zero carbon design criteria, or as close as possible) then it should begin to reduce the rate of increase in domestic demand and, longer term, embed benefits which will benefit future generations. There is also genuine scope for enhancing consumer product regulation to incentivise greener outcomes and create fewer burdens on the supply-side – and the Gulf Standards Organization is likely to play a key role policing such enhanced standards over the next period. </span></p>\r\n<p class=\"p1\"><span class=\"s1\">Will these sorts of measures generate the intended 6 million additional jobs for Saudi citizens required by the Vision by 2030? Certainly not on their own. But then the Vision also contemplates contributions in other areas, for example, in tourism and domestic military manufacturing, which would make substantial contributions to the employment piece but will also have to adhere to increasingly stringent energy efficiency standards. </span></p>\r\n<p class=\"p4\"><strong>Investor </strong><strong>Issues</strong></p>\r\n<p class=\"p1\"><span class=\"s5\">As well as a compelling public relations campaign to educate domestic tariff payers, some consideration will also have to be given to large energy users – the kind of concerns who demand secure, consistent supply as a fundamental part of their business platform. In this context there is probably space for developer originated IPPs with a wide range of scaling – from small energy parks in economic cities or even the new resorts intended on the Red Sea through to larger scale schemes for specific industrial plant or natural resource projects (and it should be noted that the Kingdom is replete with resources other than oil). Faced with uncertain supply, users may turn to back-up interim power solutions – and these have a definite role, although given the associated concerns around pollution, it is hoped, a finite one. Transitioning the energy mix away from reliance on oil will bring challenges and the restructured industry will have to maintain a level of resilience based on the older technologies whilst this is in progress. The question is not “if” but “how quickly” this has to be achieved.</span></p>\r\n<p class=\"p1\">All of which understood, we anticipate that the successful future investor is likely to have certain characteristics (and we also anticipate that the same will probably become a driver for the Saudi Arabia General Investment Authority and the Economic City Authority over time). First, high quality job creation and training is likely to be fundamental (and there are already some well-developed mechanisms in this regard). Second, if the investment relates to reducing the overall burden of energy consumption directly or indirectly, this is likely to be encouraged and made a priority. Thirdly, if the investment brings with it manufacturing or construction capacity then this will also be treated as a priority, especially where as a part of the business plan it can be shown that energy efficiency or indeed renewable generation is part of the overall package – a very good example of this is the 3MW solar PV installation at BMW’s robotised MINI plant in the UK (and Morocco’s recently announced plans to retrofit 600 mosques with solar PV technology is also a very welcome precedent). There are many businesses in the green-tech space that fulfill some or all of these criteria. Other businesses (for instance in the hotel sector) will have to consider their energy and water needs especially carefully. Education, which is also generating huge investor interest in the Kingdom, will also have to incorporate energy efficiency in the fabric of its buildings as much as in any revised curriculum.</p>\r\n<p class=\"p4\"><strong>Education </strong><strong>is </strong><strong>the </strong><strong>new </strong><strong>Black </strong><strong>Swan</strong></p>\r\n<p class=\"p1\">Given that the Vision sets out the prospect that the Kingdom will transition to an economy based on investment rather than oil revenue, climate related issues will be embedded in the country’s investment platform. The Public Investment Fund, set to become custodian of the Saudi state’s shares in the soon-to-be partially floated Saudi Aramco, will be fundamental in this drive and it may well find itself inundated with attractive opportunities to incubate such new technologies, as envisaged in the INDC. That is certainly the path on which Bill Gates<sup>13</sup> has embarked - \"There are dozens of things like that [artificial photosynthesis] that are high risk but huge impact if they are successful,\" he was reported saying last year at the Paris climate conference. His Breakthrough Energy Coalition, which includes Prince Alwaleed bin Talal in its line-up of supporters, is to pump seed money into promising ideas that have been shunned by an energy sector pursuing a “business as usual” trajectory. It is hoped that this would help promising innovations make the transition from laboratory proof of concept to fully fledged commercial viability. Questing after the magic bullet which can be harnessed in time to avoid catastrophic habitat loss is certainly essential, but equally should not prevent immediate steps to improve energy efficiency and build resilience. All of the above are required.</p>\r\n<p class=\"p1\"><span class=\"s3\">Globally we are faced with the consequences of our failure to wean ourselves from our “addiction to oil”. The young people of the Kingdom, and their peer group across the world, will inhabit that new reality. But, as will be gleaned from the above, there are many “moving parts”, each of which, to greater or a lesser extent, depends on the others. Ultimately (and sooner rather than later), some hard choices will have to be made (and then probably remade) based on a critical, iterative analysis of what is a fluid, developing and complex situation. The pursuit of educational excellence is therefore perhaps the single most important element of the Vision.</span></p>\r\n<p class=\"p5\">Francis Patalong is a Senior Associate in the Corporate/Commercial Group of Al Tamimi in Riyadh. He has extensive experience in PPPs, IPPs, renewable and social infrastructure projects in Europe, Africa and the GCC region. f.patalong@tamimi.com</p>\r\n<p class=\"p1\"><span class=\"s1\"><strong>References</strong></span></p>\r\n<p class=\"p2\">1 https://www.chathamhouse.org/publications/papers/view/180825</p>\r\n<p class=\"p2\">2 ibid</p>\r\n<p class=\"p2\">3 National Transformation Program 2020, page 48, Ministry of Environment, Water and Agriculture, Strategic Objective #10</p>\r\n<p class=\"p2\">4 http://www.ft.com/cms/s/0/126c7c5e-5156-11df-bed9-00144feab49a.html#ixzz48L18vOYN</p>\r\n<p class=\"p2\">5 “The new normal: oil prices after the crash” Dieter Helm, 9 February 2016</p>\r\n<p class=\"p2\">6 http://www.theguardian.com/environment/2016/apr/15/march-temperature-smashes-100-year-global-record</p>\r\n<p class=\"p2\">7 http://climate.nasa.gov/news/2432/</p>\r\n<p class=\"p2\">8 http://www.theguardian.com/environment/2016/may/16/april-third-month-in-row-to-break-global-temperature-records</p>\r\n<p class=\"p2\">9 Guardian, article by Suzanna Goldenberg, 11 May 2106, UN climate science chief: it\'s not too late to avoid dangerous temperature rise</p>\r\n<p class=\"p2\">10 http://footprint2africa.com/eni-plans-major-moves-renewable-energy/</p>\r\n<p class=\"p2\">11 For further detail see May 2014 World Bank, Public-Private Infrastructure Advisory Facility (PPIAF) Report on the South African Renewable Energy IPP Procurement Programme.</p>\r\n<p class=\"p2\">12 Arab News, 23 May 2016</p>\r\n<p class=\"p2\">13 http://www.telegraph.co.uk/news/earth/paris-climate-change-conference/12026217/Bill-Gates-launches-effort-to-disrupt-energy-sector-with-fund-for-green-technology.html</p>'),
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(101191, 5501, 'content', 'October 2016\r\n\r\n<hr />\r\n<p class=\"p1\">By contrast, the KSA domestic maritime practice has ensured that the arrest of ships in KSA is somewhat of an enigma for many international carriers, insurers, and traders. This article considerss, the complex maritime practice for ship arrest in KSA.</p>\r\n<p class=\"p2\"><strong>Background</strong></p>\r\n<p class=\"p2\">The basic tenets of KSA maritime practice rest on section two of the 1931 Commercial Court Law (‘CCL’). The CCL has been amended over the years most notably by the newly enacted Enforcement Regulations (‘ER’) that now govern the procedure for arresting ships.</p>\r\n<p class=\"p1\"><span class=\"s1\"> Further, amendments by the 2007 promulgated Judiciary Regulations have rendered the Kingdom without a devoted maritime court. Instead the commercial courts (circuits) are delegated with reviewing the merits of substantive maritime claims and ship arrest measures, while the enforcement courts oversee the interlocutory sale of arrested ships. Furthermore, all vessels sailing a predetermined course to KSA, whilst anchored in its territorial waters, are subject to the national jurisdiction of the KSA domestic courts, regardless of the ship’s nationality or flag. However, not all sea going ships are arrested in the same way. Military and official ships, governmental owned vessels and vessels used in port support services are excluded from the subject matter jurisdiction of the KSA commercial and enforcement courts. </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> Although the kingdom is a signatory party to multiple international conventions on regional and international maritime and admiralty law, it has not ratified the 1952 International Convention Relating the Arrest of Seagoing Ships, the 1999 International Convention on the Arrest of Ships, or the International Convention on Maritime Liens and Mortgages of 1993. In abstract the lack of similar safe-harbour laws may be alarming to some, but in reality many of the industry’s safe-guards are put in-check either by domestic law as we demonstrate below, or in private practice as financers and businessmen would be aware of. </span></p>\r\n<p class=\"p3\"><span class=\"s2\"><strong>Treatment and Ranking of Maritime Debts</strong></span></p>\r\n<p class=\"p2\">There are two categories for liens; one for the threshold liability that may extend to cover all of the debtor’s sea going assets, the other is for the hiked liability that attaches the debt or lien to a certain pre-determined asset. Under the general rules of KSA civil liability, debtors are presumed to be personally liable for their own private assets. This concept creates the threshold or minimum standard for securing debt obligations that are naked or fully exposed, namely; lacking backup collateral. By the same token maritime debtors are also presumed liable for debts connected to their ongoing sea trade; however, the standard for treating a lien varies accordingly.</p>\r\n<p class=\"p1\"><span class=\"s1\"> Creditors holding naked or exposed lines may direct arrest actions in-personam against all of their debtor’s sea going assets irrespective of whether they are the owners or charters of the vessel. However, in case of a registered mortgage the standard is elevated to premium collateral in the form of an attached in-rem lien that grants creditors supremacy over the mortgaged vessel itself, without having to establish a personal connection with the debtors or holders of the vessel. Quasi-mortgage liens - liens that are in a position of a mortgage by rule of law - also warrant debtors with an in-rem right on the vessel. Bareboat and time charterer agreements are two extreme examples of quasi mortgage liens that entitle the owners of a ship with a direct claim over their vessel, its machinery, its equipment, its freight allowance and its cargo, ahead of other debtors. </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> The main advantage of establishing in-rem jurisdiction is that it renders creditors immune to subsequent transactions that may produce adverse affects to the value of the underlying vessel, such as taking another mortgage or selling the vessel unless stringent conditions and certain disclosures and procedures are met. For example, creditors holding real mortgages are required to officially register their debts with the Ministry of Transport in order to be benefit from such protection against subsequent creditors. </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> Overall, there are eleven different liens specified in article 154 of CCL in the following order: 1) claim expenses as well as the expenses resulting from the interlocutory sale of the vessel, 2) pilot, anchorage, and docking fees, 3) watchman and custodian charges, 4) storage expenses, 5) expenses for safekeeping, 6) registration and administrative fees and crew charges, 7) pre-voyage resupply loans, 8) the sale price for the vessel as well as monies owed to foreign creditors, 9) in-voyage resupply loans, 10) insurance premium; and 11) salvage and insurance charges for the general average.</span></p>\r\n<p class=\"p4\"><strong>Arrest and Re-arrest</strong></p>\r\n<p class=\"p2\">The court will serve its orders upon a certain ship through delegating the pertinent authorities, i.e. the port director or the coast guard.</p>\r\n<p class=\"p1\"><span class=\"s1\"> Since the arrest procedure is unusually expedited the ER has a number of counter checks and balances that equalise between the claimant’s positions and limit frivolous claims. First, the underlying right should be connected to a maritime debt that is both mature and prima facie credible. Second, creditors should be acting in good faith and are expected to file following substantive claims within a maximum of 10 working days (averaging two weeks) from the date of obtaining the arrest order. Third, creditors are required to deposit a monetary security in the form of a rectified cheque or a bank guarantee with the court. The court enjoys full discretionary powers to determine whether an arrest is possible and the level of security by considering a number of factors. These factors often include one or more of the following: the amount of the debt owed, the ratio of the debt with the value of the vessel, the cost for arresting and maintaining the vessel and/or its cargo in port and the practicality and risk for the arrest. </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> Re-arrest of a ship directly depends on the cause for foregoing the prior action. Re-arresting a ship is not possible when the arrest action was removed by force of law, i.e. neglecting to follow it with a substantive action. That being said, the court will consider re-arresting a ship and even sympathise with the creditor he were to drop his prior action in goodwill with an obvious example being where settlement negotiations have commenced but were unsuccessful. </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> Arresting sister ships reverses the in-rem jurisdiction back to in-personam under exceptional circumstances. If so, then the arrest of a sister ship might be possible (without being guaranteed) providing that both ships are owned by the same debtor, there are valid concerns that the transaction would jeopardise the rights and position of the creditor and that the ship is at real threat of diminishing in value. </span></p>\r\n<p class=\"p2\"><strong>Release and Wrongful Arrest</strong></p>\r\n<p class=\"p2\">Release of a ship can occur in one of three stages; the initial stage, the Court of First Instance stage, and the Court of Appeal stage. Debtors are urged to promptly respond to arrest actions, particularly during the earlier stages of an arrest while they have the better chance for diffusing the action with minimum casualties.</p>\r\n<p class=\"p1\"><span class=\"s1\"> The risk of an arrest in the initial stage can be mitigated by making diligent efforts to verify the threat of arrest by obtaining legal advice followed by efforts to negotiate with the arresting party. However if the ship was in fact arrested, then debtors would be required to seek its release along with personal indemnity from the claim. Prudent debtors are expected to respond within the abovementioned 10 day window as failing to do so would only increase their losses. In order to release the vessel from arrest, debtors should first provide a counter security and then dispute the arrest. The counter security would also be determined by the court, but most likely it would be of an equal amount to that of the arrest security and issued in a similar fashion. If the release was unsuccessful, debtor may contest the court order for arrest by appealing to the Court of Appeal within 30 days from the order of arrest.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> In general, debtors may defend against an arrest by disputing the lack of jurisdictions, lack of conditions to maritime debts, impracticality of an arrest or expiration of the time bar. Intuitively, the better approach is to prevent an arrest action from occurring in the first place by providing creditors with alternative options or collateral to cover the underlying debt. Personal guarantees, such as escrow accounts and Letters of Undertaking (‘LOU’), are not accepted by the court at the moment; however this does not completely rule them out of practice. Escrow accounts are widely used in substantive law suits, rendering it an available recourse at the disposal and mutual agreement of the parties outside the courts scope of review. </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> Wrongful arrests are rarely compensated by courts due to the principle of judicial immunity and the prudency assumption on the end of debtors. However, it would be possible for debtors to recover actual and direct damages if they can prove for certain that the arresting creditor has acted in bad faith and falsified the information or documentation submitted with the request for arrest. </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> In conclusion, in our view KSA maritime practice is healthy and functioning well but there are many nuances that need to be understood by all stakeholders. Going forward we anticipate the potential for further legislative changes and we shall provide an update as they occur and when such changes are effective. In the meantime, we hope this article has unravelled some of the ambiguity shrouding the practice of ship arrest on Saudi shores.</span></p>'),
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(94010, 5106, 'content', 'March 2015\r\n\r\n<hr />\r\n\r\n<strong>Introduction</strong>\r\n\r\nCorporations often seem surprised to be involved in criminal proceedings when their controlling officers had believed that the company was acting in accordance with the law.  However as will be explained below, the fact that corporate officers or employees were not aware of the criminal laws applying to them does not absolve them of potential criminal liability.\r\n\r\nIn this article, we shed some light on issues that may be useful when facing allegations of criminal conduct, by setting out a series of questions and answers related to the criminal procedure in the UAE.\r\n\r\n<strong>The Authorities And Their Roles</strong>\r\n\r\n<strong>Q1. What authorities are involved in a criminal case?</strong>\r\n\r\nThe main authorities involved in criminal proceedings are the Police Department, the Public Prosecution and the Criminal Courts. In addition to the Police and Public Prosecution, various other persons are authorised to gather evidence in criminal investigations. These include:\r\n<ul>\r\n 	<li>Officers of the armed forces.</li>\r\n 	<li>Border Guards and Coastguards.</li>\r\n 	<li>Immigration Officers.</li>\r\n 	<li>Municipalities’ Inspectors.</li>\r\n 	<li>Inspectors of the Ministry of Labour and Social Affairs.</li>\r\n 	<li>Inspectors of the Ministry of Health.</li>\r\n</ul>\r\n<strong>Q2. What are the roles of the Police and the Public Prosecution?</strong>\r\n\r\nThe role of the Police is to safeguard the general public, take initial statements from complainants and witnesses, arrest suspects, carry out investigations and execute orders from the Public Prosecution to assist in the investigation process.\r\n\r\nThe Public Prosecution is part of the Judiciary (see Article 5 of the Criminal Procedures Law (Fed. Law No. 35 of 1992, as amended) (“CrPL”)). The Prosecutor’s role is:\r\n<ul>\r\n 	<li>to oversee and give directions regarding the investigation of crimes, including gathering evidence and questioning witnesses;</li>\r\n 	<li>to review the allegations and evidence comprising the case file; and</li>\r\n 	<li>to assess whether a crime may have been committed.</li>\r\n</ul>\r\nto direct the Police to gather further evidence, where appropriate, such as witness evidence (i.e. further statements from the complainant or existing witnesses and statements from additional witnesses), forensic reports or real evidence (i.e. tangible evidence such as tape recordings, photographs, cash and other items).\r\n\r\nThe criminal investigation is recorded in an official case file, which is passed between the Police and the Prosecution as and when each is performing its function.  Once the case file is finally passed to the Prosecutor, he will decide whether to issue an Indictment Order against the accused and refer the matter to Court, or to dismiss the complaint.\r\n\r\nArticle 7 of the CrPL bestows exclusive jurisdiction on the Public Prosecution to initiate and prosecute criminal proceedings. However, there are specific statutory conditions to this in certain circumstances.  For example, Article 10 of the CrPL provides that criminal action may not be initiated without a written or verbal complaint of the victim or the victim’s legal representative for certain crimes, which include:\r\n<ul>\r\n 	<li>Theft, breach of trust and the concealment of the proceeds thereof, if the victim is a spouse of the perpetrator or one of the perpetrator’s ascendants or descendants and the proceeds are not seized judicially or administratively or encumbered by a lien in favour of another person.</li>\r\n</ul>\r\n<ul>\r\n 	<li>Abstention from delivering a minor to, or taking the minor away from, the authority of the minor’s custodian.</li>\r\n</ul>\r\n<ul>\r\n 	<li>Insult, slander and other crimes as specified by the law.</li>\r\n</ul>\r\n<strong>Q3. How does the Court system operate?</strong>\r\n\r\nThe Criminal Courts of the UAE are comprised of Courts of First Instance, Courts of Appeal and a third tier of courts, which differ depending on the Emirate.  Abu Dhabi and Ras Al Khaimah use a dual system of local courts (Court of First Instance, Court of Appeal and Cassation Court) and Federal courts (Court of First Instance, Court of Appeal and Union Supreme Court). Ajman, Fujairah, Sharjah and Umm al Quwain use the Federal courts system and Dubai uses only the local courts system.\r\n\r\nIn most cases, a criminal complaint will be referred by the Public Prosecutor to the Court of First Instance.  Notable exceptions to this are cases of extradition, which are sent directly to the Court of Appeal.  Other examples include crimes committed abroad but falling within the jurisdiction of the UAE Criminal Courts, which will be heard in the Courts of the Capital, and matters relating to national security, which are sent directly to the Union Supreme Court.\r\n\r\nOnce the Court of First Instance renders its judgment, the parties have 15 days in which to lodge an appeal, except the Attorney General, who has 30 days.  Appeals to the Cassation or Union Supreme Court may be filed within 30 days of the Court of Appeal judgment or its notification to the parties.  In limited circumstances, essentially amounting to the discovery of evidence of innocence, a conviction may be subject to Review, which can be lodged by the Public Prosecutor or the convicted person (via the Public Prosecutor).\r\n\r\n<strong>Governing Laws</strong>\r\n\r\n<strong>Q4. What laws regulate criminal conduct in the UAE?</strong>\r\n\r\nThe Federal sources of the UAE’s criminal law are Federal Law No. 3 of 1987, as amended  (“Federal Penal Code”) and the CrPL. These laws apply throughout the UAE including in the free zones. The Dubai International Financial Centre Courts do not, and the Abu Dhabi Global Market Courts will not (when they become operational), have jurisdiction over criminal matters.\r\n\r\nIn addition to the Federal Penal Code, several laws impose penalties for subject-specific criminal conduct. For example:\r\n<ul>\r\n 	<li>Federal Law No. 4 of 2002 (as amended) on Anti-Money Laundering and Combating the Financing of Terrorism imposes penalties for individuals and institutions that launder money, finance terrorist or other criminal organisations or fail to report known acts of money laundering in their business to the Financial Information Unit of the Central Bank.</li>\r\n 	<li>Federal Law No. 5 of 2012 (known as “the Cyber Crime Law”) tackles IT security, financial and commercial matters along with State Security and Political Stability issues.  This law imposes penalties for, among other things, unauthorised access to networks or data systems, tampering with data, cloning credit cards and using information technology to commit a variety of non-IT offences.</li>\r\n 	<li>Federal Commercial Companies Law No. 8 of 1984 (as amended) which, among other things, imposes penalties on directors if they distribute profits in violation of the provisions of the law or the articles of incorporation or association of the company, or intentionally state false information in relation to the company’s profits and losses.</li>\r\n 	<li>Federal Law No. 18 of 1993 (known as the “Commercial Transactions Law”), imposes a penalty on the board of directors if they committed certain acts at the time of bankruptcy of the company, such as concealing, destroying the company’s books or acknowledging debts that they know are not payable by the company.</li>\r\n 	<li>Federal Law No. 8 of 1980 (known as the “Labour Law”), imposes penalties on employers who hire a foreigner without obtaining a work permit or those who hire a foreigner without sponsoring him.</li>\r\n</ul>\r\nIt is worth bearing in mind that each incident may be criminalised by one or more laws and several of the above-listed laws state that the punishment specified for a particular criminal act is without prejudice to the availability of greater punishment under alternative laws.\r\n\r\n<strong>Q5. What is the legal basis for corporate liability?</strong>\r\n\r\nArticle 65 of the Federal Penal Code provides that juridical persons, with the exception of governmental agencies, are responsible for any criminal act committed for their account or in their name by their representative, director or agent.  Where the penalty for a criminal offence would be non-financial, the penalty that may be imposed against a convicted corporation is limited to a maximum fine of AED 50,000.  However, this does not represent the maximum financial liability of a corporation that is found to have committed a crime.  Article 22 of the CrPL allows the victim to make a claim against the company (and any other perpetrator) for civil compensation in respect of harm suffered as a result of the crime.\r\n\r\nArticle 65 explicitly states that the financial penalty imposed on the corporate offender does not prohibit punishment of the individual offender.\r\n\r\n<strong>Application</strong>\r\n\r\nQ6. What types of crimes can companies be subject to?\r\n\r\nIn theory, a corporate entity may be subject to any crime committed in the circumstances described by Article 65 of the Federal Penal Code (as summarised in the answer to Q5 above). We have had experience assisting clients who have claimed, or been accused of the following:\r\n<ul>\r\n 	<li>Fraud and Breach of Trust</li>\r\n 	<li>Bribery &amp; Corruption</li>\r\n 	<li>Embezzlement of public funds</li>\r\n 	<li>Money Laundering</li>\r\n 	<li>Forgery</li>\r\n 	<li>Dishonoured cheques</li>\r\n 	<li>Director &amp; Officer liability for mismanagement or stating false information in company records</li>\r\n 	<li>Cyber Crimes</li>\r\n 	<li>Labour issues and violations of safety regulations which cause the death of one or more employees</li>\r\n 	<li>Criminal cases against employees for theft, breach of trust or disclosing confidential information.</li>\r\n</ul>\r\n<strong>Conclusion</strong>\r\n\r\nCorporate criminal liability is a real risk in modern business.  As seen from various laws highlighted above, there is wide scope for falling foul of the law and businesses should ensure that measures are in place to mitigate against this possibility.  Where companies have been subject to criminal liability, it has often been because of a failure to implement and properly maintain corporate governance.  Successfully navigating a criminal case, and being aware of the appropriate applications and arguments at each stage, requires detailed knowledge of the relevant laws and procedures.\r\n\r\nFor further information relating to issues of corporate criminal liability, please contact either of the authors.'),
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(101126, 5498, 'content_description', 'Until recently, Iran has not been considered as a potential jurisdiction for maritime arrests due to the applicability of the international sanctions and the complexities those sanctions entailed. Now that Iran is beginning to open up for international business, coupled with a sharp downturn in the regional shipping market, the ability to arrest ships to secure maritime claims is a frequent topic of enquiry in the shipping industry once again. This article gives an introductory overview of how a claimant can obtain a vessel arrest in Iran and the procedures to which it must adhere.'),
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(101145, 5499, 'content', 'October 2016\r\n\r\n<hr />\r\n<p class=\"p1\">Due to the risk of the shipper or the consignee failing to return containers back to the shipping carrier empty, all shipping lines have stipulated in their bills of lading (B/L) (which govern the relation between the shipper, carrier, and the consignee) a specific condition concerning demurrage. This condition applies to the merchant (shipper/consignee) and stipulates who shall be charged fees arising from fault or negligence in not returning the containers back empty to the carrier. Shipping lines are keen to impose such a condition because such malpractice by the merchant results in enormous losses to the carrier who will be unable to exploit its containers.</p>\r\n<p class=\"p2\"><span class=\"s2\"><strong>The essential role of the bill of lading</strong></span></p>\r\n<p class=\"p3\">The B/L is a contract of carriage which prescribes the obligations between the shipper, the carrier and the consignee. It is also the document to which the port and the customs authorities refer in their inspections of cargoes.</p>\r\n<p class=\"p1\"><span class=\"s1\"> If a dispute arises out of transportation of goods by sea, the terms and conditions of the B/L shall apply to all the parties to the contract for the purposes of determining the responsibility and liability of the parties.</span></p>\r\n<p class=\"p1\">According to Kuwaiti Law No. 28 of 1980 (Maritime Law), the B/L shall be in writing and has three functions used to prove a shipment’s contents: as evidence of the transportation, as a representation of the goods to which it relates, and as evidence of the information included therein, among the carrier, the consignee and in respect of third parties.</p>\r\n<p class=\"p1\"><span class=\"s1\"> Furthermore, Kuwait has ratified the Brussels Treaty of 1924 for the Unification of Certain Special Rules Relating to Bills of Lading (Hague Rules). Consequently, the Hague Rules are applicable as part of Kuwaiti law and apply to maritime cargo claim disputes.</span></p>\r\n<p class=\"p3\"><strong>The responsibility of the shipper to pay demurrage</strong></p>\r\n<p class=\"p3\">The shipper is the party who starts the route of transportation by the submission of a shipping order (S/O) to the carrier for transportation of consignments to a determined destination. According to Article 176 of the Maritime Law, the carrier issues a B/L upon receipt of the information provided by the shipper, including the consignee’s details. However, in some cases, the shipper shall be obliged to pay the demurrage stipulated by the shipping line when the consignee does not appear at the port of discharge (POD) to take delivery, for the reasons outlined below.</p>\r\n<p class=\"p1\"><span class=\"s1\"> The transfer process is based on the shipper’s S/O in accordance with Article 179(2) of the Maritime Law, which stipulates that ’<em>The shipper shall be responsible before the carrier for compensation of detriment resulting from inaccuracy of the submitted information in respect of commodities. The carrier, may not adhere to inaccuracy of the information stated in the bill of lading before anyone other than the shipper</em>‘.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> Also, Article 4.3 of the Hague Rules stipulates that ’<em>The shipper shall not be responsible for loss or damage sustained by the carrier or the ship arising or resulting from any cause without the act, fault or neglect of the shipper, his agents or his servants</em>’.</span></p>\r\n<p class=\"p1\">Consequently, the shipper is liable to compensate the carrier for damages arising due to inaccurate information relating to the consignment provided by the shipper, or to his and his agents’ fault or negligence. According to the same principle, the shipper will also be responsible for the information related to the consignee at the POD.</p>\r\n<p class=\"p3\"><strong>The responsibility of the consignee to pay the demurrage</strong></p>\r\n<p class=\"p3\">The consignee is the party who shall attend the shipping carrier or its agents to accomplish the procedures required to deliver the cargo. However, in some cases when the consignee accepts consignments and obtains the delivery order (D/O) from the carrier/carrier’s agents, the consignee may delay returning the containers back empty to the carrier, or suddenly stop the customs procedures and leave the consignments inside the container without continuing the procedures required to deliver the cargo. There is no doubt that both actions change the nature of the container from a valuable piece of equipment in the transport operation into just storage for the consignee’s cargo, which potentially causes huge losses to shipping carrier.</p>\r\n<p class=\"p1\"><span class=\"s3\"> The Kuwaiti legislator has counteracted such indecent action in Article 175(2) of the Maritime Law, which declares the rights and obligations of the consignee, who committed to the terms of the B/L as owner of the consignments, and confirmed that once the consignee attends to the carrier holding the B/L, the consignee shall be obliged by the conditions of the B/L. This concept has been clearly stated by the explanatory memorandum of the Maritime Law, which state that the consignee shall bear the obligations arising from the contract of carriage if accepted explicitly or implicitly.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> The consignee who attends to the carrier/carrier’s agents and obtains the D/O will, therefore, be liable to pay demurrage if he delays in returning the containers back empty or does not complete the procedure of delivering the cargo from the containers.</span></p>\r\n<p class=\"p2\"><span class=\"s2\"><strong>The legal recommendation</strong></span></p>\r\n<p class=\"p3\">Having regard to our experience before the courts in the Middle East and North Africa, and due to the specific nature of maritime transportation, it is recommended not only to rely on the demurrage condition stated on the back page of the B/L or through advertising the same on the carrier’s website, but also to mention this clause clearly on the front page of the B/L, by which the merchant (neither shipper nor consignee) will be liable for the demurrage. Calculations of charges should also be stated clearly on the B/L. This will make it easier to convince the court of the carrier’s right to collect the demurrage from the merchant and its exact amount. In addition, it will minimise the number of documents submitted before the court to prove the carrier’s rights, which will surely lead to obtaining the court’s judgment more quickly.</p>'),
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(101168, 5500, 'content', 'October 2016\r\n\r\n<hr />\r\n<p class=\"p1\"><strong>Conservatory arrest procedure under Egyptian Law</strong></p>\r\n<p class=\"p4\">A creditor has the right to apply before the Chief of the Court of First Instance in his capacity as a judge of urgent matters (Competent Judge) for an order to arrest a vessel for security, if such claim is considered to be a ’Maritime Claim’.</p>\r\n<p class=\"p1\"><span class=\"s3\"> The creditor’s application should contain a brief explanation of the debt and reasons why he is applying for security. Furthermore, he must prove that the liabilities giving rise to the claim come within the definition of ’Maritime Claims‘ as defined in the Egyptian Maritime Law and the 1952 Brussels Convention. To do so, the applicant must support his application with sufficient documents to validate his claim.</span></p>\r\n<p class=\"p1\"><span class=\"s3\"> ’Maritime Claims‘ are defined in the Egyptian Maritime law by Article 60, which stipulates that no conservatory arrests may take place unless for settlement of a marine debt. The debt is to be considered as a marine debt if it arises out of one or more of the following reasons: </span></p>\r\n\r\n<ul>\r\n 	<li>Ports and sea channels duties.</li>\r\n 	<li>Expenses concerning removal, picking up, or lifting the ship wrecks and cargo.</li>\r\n 	<li>Damage caused by the ship caused either by collision or pollution or other similar marine casualties.</li>\r\n 	<li>Loss of life or personal injury caused by the ship or occurring in connection with her operation.</li>\r\n 	<li>Contracts related to the use or hire of the ship.</li>\r\n 	<li>Insurance on the ship.</li>\r\n 	<li>Contracts related to the carriage of goods by means of a charterparty or bill of lading.</li>\r\n 	<li>Loss of or damage to goods and baggage carried on the ship.</li>\r\n 	<li>Salvage.</li>\r\n 	<li>General average.</li>\r\n 	<li>Ship’s towage.</li>\r\n 	<li>Pilotage.</li>\r\n 	<li>Supply of goods or materials whether supplied to the ship for her operation or for her maintenance; whichever maybe the source of such supply.</li>\r\n 	<li>Construction, repair or equipment of the ship or dock charges and dues.</li>\r\n 	<li>Wages of Masters, Officers, or crew.</li>\r\n 	<li>Master’s disbursements, and disbursements made by shippers, charterers or agent on behalf of a ship or her owner.</li>\r\n 	<li>Disputes as to the ownership of the ship.</li>\r\n 	<li>Disputes over the common ownership of the ship or her possession, employment, or in common earnings of that ship, resulting from her exploitation.</li>\r\n 	<li>Marine mortgage.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p7\"><span class=\"s3\">This enumeration, as mentioned in the law, is made on an exclusive and exhaustive basis, and appears to be modelled closely on the list of maritime debts set out in the 1952 Brussels Convention.</span></p>\r\n<p class=\"p4\"><strong>The Court’s decision and its effect</strong></p>\r\n<p class=\"p4\">The Competent Judge who is reviewing the application and its accompanying documents has the right to carry out a brief investigation into the grounds upon which the application is made. At his own discretion, he is entitled to allow or reject the order without specifying reasons for his decision.</p>\r\n<p class=\"p4\">If the application is accepted</p>\r\n<p class=\"p4\">No counter-security is required. The applicant is entitled to enforce the conservatory arrest order by arresting the debtor’s assets/vessel as specified in the court order and he is required to file a substantive case within 8 days from affirmation of the conservatory arrest order, otherwise the order will be considered null and void.</p>\r\n<p class=\"p1\"><span class=\"s3\"> In response to an arrest, the debtor shipowner may take the following action:</span></p>\r\n\r\n<ul>\r\n 	<li>Submit an application for the lifting of the arrest against a suitable guarantee, in order to replace the vessel as the form of security with such guarantee. The Egyptian courts do not accept a letter of undertaking in order to release the vessel. They do, however, accept the submission of a bank letter of guarantee, which shall not be cancelled unless a final judgment is issued or a settlement between the parties to the dispute is agreed.</li>\r\n 	<li>File an objection (within 10 days) against the conservatory arrest order. This, in and of itself would, not stop the arrest proceedings and it is important to note that this procedure is lengthy and the matter will be treated as a normal court procedure, which normally takes years to obtain a final judgment from the Court.</li>\r\n</ul>\r\n<p class=\"p7\"><span class=\"s4\">If the application is rejected</span></p>\r\n<p class=\"p4\">The applicant would be entitled to proceed as follows:</p>\r\n\r\n<ul>\r\n 	<li>Submit a new application. The further application will be heard again in absence of the parties and the judge may again reject or accept the application but, in the latter case the judge must state the reasons that the application was accepted after the initial application was rejected.</li>\r\n 	<li>File an opposition before the Court of First Instance. This would result in a full hearing with the attendance of all parties and the Court will issue a judgment either confirming or reversing the decision given by the sole judge.</li>\r\n</ul>\r\nThis procedure follows the normal procedures of filing a lawsuit, namely that the judgment rendered from the Court of First Instance is subject to appeal before the Court of Appeal and before the Court of Cassation.\r\n\r\n&nbsp;\r\n<p class=\"p4\"><strong>Conclusion</strong></p>\r\n<p class=\"p4\">Legally speaking, the application for an arrest order is heard by the Competent Judge in the absence of the parties and the decision is given on the documents. The question of whether to accept or reject the application is left to the discretion of the Competent Judge and no reasons are required to be given in either case.</p>\r\n<p class=\"p1\"><span class=\"s3\"> Consequently, and according to our experience before the Egyptian courts, an application to obtain an arrest order should be supported with sufficient documents, which must be original and official; otherwise the chances of success in obtaining an arrest order will be low.</span></p>'),
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(101122, 5498, 'content', 'October 2016\r\n\r\n<hr />\r\n<p class=\"p1\"><strong>The Two Ways to Arrest a Ship in Iran</strong></p>\r\n<p class=\"p2\">Surprisingly, Iran’s Maritime Code does not contain any specific provisions governing the arrest of vessels to secure maritime claims. Furthermore, Iran is not a signatory to the International Convention Relating to the Arrest of Sea-Going Ships 1952 nor the International Convention on the Arrest of Ships 1999 (together the ’Arrest Conventions‘), which offer a uniform set of laws and procedural rules on all aspects of ship arrests for contracting States. For example, the Arrest Conventions list the nature of debts which a vessel can be arrested against, referred to as ’maritime debts’.</p>\r\n<p class=\"p1\"><span class=\"s1\"> Whilst Iran is a party to the International Convention for the Unification of Certain Rules of Law Relating to Maritime Lien and Mortgages, Brussels 1926, in practice, a legal framework for the enforcement of maritime liens has not been implemented in Iran.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> In the absence of incorporated international law, and the omission from the Iranian Maritime Code of arrest provisions, the Iranian Courts will grant a claimant an arrest order pursuant to two civil law procedural applications, as follows.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> The first method of making an arrest application in Iran is to issue a claim pursuant to Article 108 of the Iranian Civil Procedure Act, which reads as follows:</span></p>\r\n<p class=\"p4\"><span class=\"s1\"><em>[In a civil action] the Claimant, either prior to the commencement of an action and the submission of a statement of claim, or at any time during the proceeding, but prior to a final judgment, may, on the satisfaction of the conditions below, ask the Court for security for judgment and the Court is obligated to order same;</em></span></p>\r\n<p class=\"p5\"><span class=\"s1\"><em>a) The subject matter of the dispute is pursuant to an official document [dispute of title ownership of property where there is a title deed etc],</em></span></p>\r\n<p class=\"p5\"><span class=\"s1\"><em>b) The Respondent may dilute or divert his assets,</em></span></p>\r\n<p class=\"p5\"><span class=\"s1\"><em>c) In respect of commercial documents or such deed of commercial value against which the Court must issue an Order for security,</em></span></p>\r\n<p class=\"p5\"><span class=\"s1\"><em>d) The Claimant must deposit with the Court an amount equal to an estimate of the damages that the Respondent may suffer.</em></span></p>\r\n<p class=\"p5\"><span class=\"s1\"><em>The Court of competent jurisdiction will be responsible to determine the value of the estimate of damages referenced above.</em></span></p>\r\n<p class=\"p6\"><span class=\"s1\">At a high-level view, a claimant can petition the court at any time for an attachment order over a debtor’s assets, including a vessel registered in the debtor’s name, where the debtor owes a sum of money to the claimant. The nature of debt against which the vessel can be arrested is widely construed by the court to include any debt and is not limited to ’maritime debts‘. Under Article 108, if an attachment order is granted by the judge, counter-security must be paid into the court, the sum of which shall be at least 10% of the claim value but determined by the judge in his discretion. The judge will then issue a letter to the relevant port authority where the vessel is located ordering its seizure. The claimant will then have 10 days from the service of the order on the vessel to file its substantive claim against the vessel owner.</span></p>\r\n<p class=\"p1\"><span class=\"s3\"> Although under Article 108 the claimant can apply for an attachment order over the vessel during the course of the main claim itself, as per normal practice, the claimant will most likely seek to secure the attachment prior to filing the main claim.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> The second manner in which an arrest can be obtained is pursuant to Article 310 &amp; 316 of the Iranian Civil Procedure Code, set out below:</span></p>\r\n<p class=\"p4\"><span class=\"s4\"><em>Section 310 - In circumstance where there is an urgency in rendering an expedited interim judgment, at the request of the interested party to the proceeding, the Court may issue an interim Order in an expedited manner. </em></span></p>\r\n<p class=\"p5\"><span class=\"s1\"><em>Section 316 – The Interim Order pursuant to Section 310 can be made in respect of seizure of assets, order to undertake a deed or action, or against a deed or action.</em></span></p>\r\n<p class=\"p6\"><span class=\"s1\">This method involves an ex parte application to the court on an ’urgent‘ basis, which must evidence to the court that there is a risk that 1) the movable asset (vessel) will leave the jurisdiction and 2) there is no alternative asset available which can secure the claimant’s claim. If convinced, the court will issue a provisional attachment order over the ship preventing it from leaving the jurisdiction. As with the Article 108 procedure outlined above, counter-security will be required. From the date of service of the arrest order, the claimant will have 20 days to file its substantive claim, failing which the arrest order will be lifted.</span></p>\r\n<p class=\"p2\"><strong>Other Considerations for Arresting Parties</strong></p>\r\n<p class=\"p2\">Sister-ship arrests are possible under the Iranian legal system but only where the debtor is the legally registered owner of the sister-ship. The courts will not be prepared to lift the corporate veil and order the arrest of a vessel which is group owned, beneficially owned, chartered, managed or operated by the registered owner of the offending ship. For example, if Ship A has not paid for its bunkers and the registered owner is Owner A, the bunker supplier cannot arrest Ship B because it is beneficially owned by Owner A but the registered owner is a shell company called Owner B.</p>\r\n<p class=\"p1\"><span class=\"s1\"> In a similar vein, a claimant cannot arrest a ship as security for charterer debts because the Iranian courts view the debt as a third party debt and will not permit attachment of property under the civil code if not owned by the debtor charterers.</span></p>\r\n<p class=\"p7\"><span class=\"s5\"> Counter-security must be in the form of cash or an acceptable bank guarantee and will usually be in an amount ranging between 10-20% of the claimed sum. The court will not accept a Club Letter of Undertaking (LOU) although there is nothing preventing the claimant accepting a Club LOU and then requesting the court to release the vessel. The vessel can be released on the same day as the counter-security is deposited with the court.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> If a claimant wishes to arrest a vessel in Iran, it should allow a few days for preparation of the documents. In theory, an arrest could be granted on the same day as the application but in practice it usually takes between 1-3 days before an arrest order is actually served on the vessel.</span></p>\r\n<p class=\"p2\"><strong>Restrictions and Risks</strong></p>\r\n<p class=\"p2\">In both Article 108 and 310 actions, the claimant’s claim must be equal to or greater than IR200,000 (approximately USD65,000) in order to obtain a provisional attachment.</p>\r\n<p class=\"p1\"><span class=\"s1\"> In some instances, defendant ship owners are able to raise a wrongful arrest petition. Usually, the court deals with the merits of the wrongful arrest petition at the end of the case. Where the court dismisses the claimant’s claim and the defendant ship owner can prove that damages arose from the arrest, the defendant ship owner shall be entitled to wrongful arrest compensation. Unlike neighbouring jurisdictions in the Gulf region, there is no requirement for the defendant ship owner to prove malicious intent on the part of the claimant. This represents quite a serious risk to claimants and means that they should be convinced of the validity of their claim before proceeding with an arrest application or otherwise risk having to pay wrongful arrest compensation.</span></p>\r\n<p class=\"p2\"><strong>Costs</strong></p>\r\n<p class=\"p2\">Within a period of 10 days from obtaining an attachment order, the claimant must file its submissions on the merits of the claim and at such time a fixed fee of 3.5% of the claim amount is payable. There is no ceiling to the fee payable and it can, therefore, be quite high where large claims are concerned.</p>\r\n<p class=\"p1\"><span class=\"s1\"> The successful party is able to recover the court filing fees and any expert fees incurred. There is, however, a general reluctance by the Iranian courts to allow recovery of professional legal fees.</span></p>\r\n<p class=\"p2\"><strong>Conclusion: Can you arrest?</strong></p>\r\n<p class=\"p2\">Yes, it is possible to arrest a vessel in Iran to secure a claim against the vessel owners. Whilst there is no specific provision in the Iran Maritime Code, attachment of debtor property is routinely achieved to secure claims. These methods are extended to attachment of vessels to secure claims, regardless of whether such claims are ’maritime debts‘. We believe that members of the shipping community will increasingly explore arresting vessels in Iran as trade opens up more with the country, particularly by those who supply services to vessels in the Gulf region. However, arresting parties should be confident that their claims are well supported and valid because of the increased risk of ship owners succeeding in wrongful arrest claims. This, in our view, is positive to the extent that it should filter out spurious claims.</p>\r\n<p class=\"p1\"><span class=\"s1\"> Al Tamimi &amp; Company partners with an experienced maritime organisation in Iran on arrest instructions and has exclusivity for Iran in the Shiparrested.com membership.</span></p>'),
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(101097, 5497, 'content', 'October 2016\r\n\r\n<hr />\r\n<p class=\"p1\">The current state of affairs has encouraged lenders to more carefully assess how they secure the facilities they provide. Lenders are becoming increasingly aware, and concerned, about the effectiveness of their standard securities. Here the authors consider ship finance in an UAE context, with a focus on securing debt financing transactions.</p>\r\n<p class=\"p2\"><strong>Registration of Vessels</strong></p>\r\n<p class=\"p4\">Vessel registration is largely governed by the UAE Commercial Maritime Law No. 26 of 1981 as amended (the ‘Maritime Code’). The UAE maintains a closed register. Only vessels owned by UAE nationals, or majority UAE owned corporate entities, are eligible for registration. The Federal Transport Authority - Land &amp; Maritime (the ‘FTA’) is the body charged with overseeing, and administering, the national ship register. There is continued debate in the UAE surrounding the desirability of establishing of a separate open ship registry, catering to vessels with foreign owners, and bearing features of a convenience registry. At date of publishing this article, such registry had not been established.</p>\r\n<p class=\"p1\">Certain vessels are exempt from federal registration. These include fishing boats, pleasure boats, vessels less than ten tons in total weight, lighters, barges, tugs, cranes, dredgers and diving boats. The Maritime Code further prohibits the registration of oil and gas tankers older than ten years at date of sought registration.</p>\r\n<p class=\"p4\"><strong>Ship Mortgages</strong></p>\r\n<p class=\"p4\">The ship mortgage is arguably the most effective, and robust, security available to lenders. It provides a lender with an in rem right directly against the vessel, granting it priority over unsecured creditors of the vessel and its owner. A lender is afforded powerful rights in the event of any default by the borrower, including; pursuing the sale of the vessel to recover any indebtedness.</p>\r\n<p class=\"p1\">Mortgages registered against UAE flagged vessels are widely accepted and enforced in UAE and foreign courts. Parties are generally free to agree on the structure and contents of the mortgage agreement, and underlying instruments, with relatively intricate and complex arrangements secured through a registered mortgage. Lenders are also permitted to utilise security agents to hold and administer a mortgage.</p>\r\n<p class=\"p1\"><span class=\"s1\"> The Maritime Code does however require a ship mortgage to adhere to certain basic confines. A mortgage must be recorded through an official deed, failing which, it will be considered void. Practically, this requires a mortgage to be in writing, in Arabic, and notarised before a Notary Public. Generally a dual English/Arabic text is filed. Parties should be aware that if enforced before UAE Courts, the Arabic text will prevail over the English text. A good quality translation is accordingly essential. The mortgage must also indicate the following details:</span></p>\r\n\r\n<ul>\r\n 	<li>Amount of debt. If against more than one vessel, details of debts related to each vessel. If against a vessel and other property, it must indicate the amount secured by the vessel;</li>\r\n 	<li>Date and type of contract and details of borrower and lender;</li>\r\n 	<li>Maximum mortgage amount (which should be fixed);</li>\r\n 	<li>Any conditions relating to the debt;</li>\r\n 	<li>Description of mortgaged vessel and confirmation that the vessel is over ten tons (as required);</li>\r\n 	<li>Details of any possible interest.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p7\">The underlying debt instrument does not need to be registered or filed with the mortgage, although it is customary to do so. Parties are required to file any substantive amendments to the mortgage as may arise from time to time.</p>\r\n<p class=\"p1\">A mortgage may be registered against a vessel under construction. A further declaration in this context is required from a local FTA office with jurisdiction over the port where the vessel is being built. Such declaration must provide details of the vessel, including; its length and dimensions, approximate tonnage and details of the yard under which it is being built.</p>\r\n<p class=\"p4\"><strong>Assignment of Earnings or Charterparty Contracts</strong></p>\r\n<p class=\"p4\">In addition to the vessel mortgage, lenders may also take security over the cash flows generated by the mortgaged vessel by way of assignment of earnings or charterparty contracts.</p>\r\n<p class=\"p1\"><span class=\"s3\"> Under UAE law assignment of earnings is considered an assignment of rights or otherwise known as assignment of receivables. The jurisprudence on assignment of rights and receivables has been developed by the judicial decisions of the courts of various Emirates of the UAE including the Emirates of Dubai and Abu Dhabi. It is important to note that the underlying right or receivable needs to be in existence at the time of the assignment. In other words, UAE law may not recognise assignment of future rights or receivables or an assignment of a charterparty contract that will be executed at a later date. </span></p>\r\n<p class=\"p1\"><span class=\"s3\"> It is customary for the lender and borrower to enter into a formal assignment agreement which outlines the relevant perfection requirements and would also reflect the details of the charterparty contract being assigned. The assignment can be perfected by the borrower (as assignor) issuing a notice of assignment to the third party debtor. The mode of delivery of notice can be by registered post, courier and very recently notices by fax and email have been accepted as necessary evidence of delivery of the notice. Whilst the evidence of delivery of notice of assignment is sufficient, cautious lenders generally require the borrower to procure a formal acknowledgment of the assignment from the third party debtor.</span></p>\r\n<p class=\"p2\"><strong>Pledge over Bank Accounts</strong></p>\r\n<p class=\"p4\">The assignment by way of security over earnings is supported by a pledge or security over the bank account where such earnings are deposited by the third party debtor.</p>\r\n<p class=\"p1\">The notice of assignment discussed above generally directs the third party debtor to pay the charter income into a designated bank account. This bank account is ordinarily the borrower’s account, as held with the relevant branch of the lender and is be subject to a pledge or security allowing the lender to exert a certain level of control over the charter income.</p>\r\n<p class=\"p1\">If the charter income or receivables is also the mode of repayment of the loan availed from the lender then such lender may also prescribe a payment waterfall mechanism either in the facility agreement or the account security document. It is also important to note that it is difficult to create security or pledge under UAE law over an account with a fluctuating balance. This is due to the absence of specific law on creating security over fungibles and the application of the law on pledge over movable assets - which requires the underlying assets to be fixed and identifiable. Therefore lenders mostly rely on the set-off clauses in the account pledge agreements which may be considered independent of the pledge by the UAE courts in enforcement. Due to this uncertainty some foreign lenders may also stipulate offshore accounts where such floating security would be recognized.</p>\r\n<p class=\"p4\"><strong>Assignment of Insurances</strong></p>\r\n<p class=\"p4\">In mid market transactions, particularly in the financing of offshore support vessels, lenders usually rely on ‘loss payee’ provisions in the hull and war risk insurances and other insurance policies customarily linked to the financed vessel. It has been observed that lenders generally do not enter into or perfect assignment of insurances discussed above. In the absence of a formal assignment the lender would not be able to ‘step in’ and enforce its rights against the insurer and would have to wait for a claim to be lodged by the insured under the policy. Therefore it is recommended that in addition to the lender being named as loss payee in the policy the borrower should formally assign the policy in favour of the lender. However such assignment may oblige the lender to pay the premium under such policy if the insured fails to fulfill its payment obligations.</p>\r\n<p class=\"p4\"><strong>Guarantees</strong></p>\r\n<p class=\"p4\">It is common to obtain personal and corporate guarantees from the borrower’s shareholders or affiliates respectively. When preparing guarantees it is important to ensure that the guarantee instrument clearly reflects the details of loan availed by the borrower or details of the relevant facility agreement. The absence of the loan or facility details in the guarantee may render it as an ‘all monies guarantee’ which may not be recognized by UAE courts. Further, any claim under guarantee provided by a guarantor needs to be made within six (6) months from the date of default by the borrower under the facility agreement, otherwise such guarantor may rely on the above six (6) month rule provided for in the UAE Civil Code (Federal Law No. 5 of 1985) and exclude its liability on account the above time bar.</p>\r\n<p class=\"p4\"><strong>Share Pledges</strong></p>\r\n<p class=\"p4\">The new UAE Company Code (Federal Law No. 2 of 2015) now recognizes pledges over shares of a limited liability company (‘LLC’). Therefore, as most UAE flagged vessels are owned by LLCs, lenders now have the option to extend their security coverage by taking security / pledge over the shares of the LLC borrower. The parties (i.e. the shareholders of the borrower) and the lender need to enter a bilingual (Arabic/English) share pledge agreement after obtaining initial approval from the relevant Department of Economic Development. The share pledge agreement is signed in the presence of a local notary public and subsequently registered with the Department of Economic Development.</p>\r\n<p class=\"p4\"><strong>Conclusion</strong></p>\r\n<p class=\"p4\">Even though the UAE maintains a closed ship registry, it is a jurisdiction that offers relatively wide-ranging security options to lenders, which are on par with many popular international registries. Despite the poor shipping market conditions, there appears to be an increasing appetite amongst several local, and foreign, banks in the regional ship finance market. It is important that lenders in the region take careful note of the available securities, and their respective requirements, in order to best tailor an efficient security package.</p>'),
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(101086, 5496, 'content_description', 'Whilst all eyes were on the UK this summer regarding the outcome of its forthcoming ’Brexit‘ referendum on whether to remain within the European Union (EU), the implementation of EU aviation law designed to protect air passenger rights has continued apace.'),
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(101088, 5496, 'pageSummary', 'Whilst all eyes were on the UK this summer regarding the outcome of its forthcoming ’Brexit‘ referendum on whether to remain within the European Union (EU), the implementation of EU aviation law designed to protect air passenger rights has continued apace.'),
(101089, 5496, '_pageSummary', 'field_59e59b307dec8'),
(101090, 5496, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-14/october-6/passenger-rights-under-eu-regulation-2612004-new-guidelines-for-gulf-airlines-flights-departing-the.html'),
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(101063, 5495, 'content_description', 'In the United Arab Emirates the insurance brokerage profession is regulated by Insurance Authority Board of Directors resolution No. 15 of 2013 (as amended by resolution No. 20 of 2014) (the “Regulations”) and resolution No. 58 of 2015 in respect of the execution of resolution No. 15 of 2013 (the “Execution Rules”). '),
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(101065, 5495, 'pageSummary', 'In the United Arab Emirates the insurance brokerage profession is regulated by Insurance Authority Board of Directors resolution No. 15 of 2013 (as amended by resolution No. 20 of 2014) (the “Regulations”) and resolution No. 58 of 2015 in respect of the execution of resolution No. 15 of 2013 (the “Execution Rules”).'),
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(101081, 5495, '_yoast_wpseo_metadesc', 'In the United Arab Emirates the insurance brokerage profession is regulated by Insurance Authority Board of Directors resolution No. 15 of 2013 (as amended by resolution No. 20 of 2014) (the “Regulations”) and resolution No. 58 of 2015 in respect of the execution of resolution No. 15 of 2013 (the “Execution Rules”).'),
(101082, 5496, 'content', 'October 2016\r\n\r\n<hr />\r\n<p class=\"p1\">On 10 June 2016, the European Commission (EC) published new guidelines aimed at providing EU National Enforcement Bodies (invariably the Civil Aviation Authority of each EU country) with a blueprint document with the intention of tackling issues most frequently raised by passengers, and in an attempt to give clarity to the enforcement of existing passenger rights legislation.</p>\r\n<p class=\"p1\">All Gulf-based airlines departing from airports within the EU are subject to a wide body of EU air passenger rights legislation, the purpose of which is stated to be to offer a high degree of protection against unforeseen circumstances to people travelling by air to and from the EU. This legislation consists of a series of EC Regulations dealing with subjects such as the rights of persons with reduced mobility, the protection of air passengers, aviation safety and ’black lists‘ of high risk airlines. As part of this body of rules, EC Regulation 261/2004 (EC 261) deals with the denied boarding of passengers, cancellations, delays and subsequent rules on compensation and assistance to passengers.</p>\r\n<p class=\"p1\">The Interpretive Guidelines on EC 261 (The Guidelines) have been welcomed by International Air Transport Association (IATA) as an important stop gap until crucial reform of the passenger rights legislation is implemented, and the International Air Carrier Association (IACA) has called the initiative ’the right step towards legal clarity for both airlines and passengers awaiting the adoption of a balance new legislation by the European institutions.’ The Guidelines are available for all to download from the EC website, and they make important clarifications on interpreting EC 261, and reprise the many case law decisions made by the European Court of Justice (ECJ) over the years since the Regulation has been in force.</p>\r\n<p class=\"p1\">EC 261 has now been in place for more than a decade and, since the date of implementation, there have been inconsistencies and ambiguities in how it has been applied. The Regulation was originally designed to protect passengers who were denied boarding and for cancelled flights, but not specifically delays to the passenger’s flight. However, the scope of EC 261 was extended in 2011 by the European Court of Justice judgment in Case C-402/7 and C-432/7 Sturgeon v Condor [2011] ECR, so that a passenger who suffers a delay in excess of three hours is entitled to compensation under Article 7 of EU 261. A passenger may therefore claim:</p>\r\n\r\n<ul>\r\n 	<li><em>For cancelled flights, denied boarding, and flights delayed by three hours or more at the point of destination, compensation of:</em></li>\r\n</ul>\r\n<p class=\"p4\"><em>- 250 Euros for flights of 1500 kms or less</em></p>\r\n<p class=\"p4\"><em>- 400 Euros for all other intra EU flights, and all other flights between 1500-3500 kms</em></p>\r\n<p class=\"p4\"><em>- 600 Euros for all other flights over 3500 kms</em></p>\r\n\r\n<ul>\r\n 	<li><em>For cancelled flights and flights delayed by five hours or more, rights to reimbursement or re-routing</em></li>\r\n 	<li><em>For cancelled flights and flights delayed by two hours or more (depending on the distance), rights to care (refreshments, meals, accommodation)</em></li>\r\n</ul>\r\n<p class=\"p5\">By Article 7.2 of EC 261, if the carrier offers re-routing in the event of a cancellation, denied boarding or delay then the above amounts can be discounted by 50%.</p>\r\n<p class=\"p5\">The right to compensation is subject to an ’extraordinary circumstances‘ defence, so that the carriers are not obliged to pay compensation if they can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. The Guidelines throw further light on the interpretation of ‘extraordinary circumstances‘ and should be read by all airlines operating from EU airports.</p>\r\n<p class=\"p1\">‘Extraordinary circumstances’ are not defined comprehensively within the legislation, and again, a body of case law has developed to restrict the carrier’s defences, such as there being no defence for the airline for complex engine defects unless they stem from events which are not in adherence to the normal exercise of the activity of the air carrier and beyond its control, such as hidden manufacturing defects (Case C-549/07 Wallentin - Herrmann v Al Italia [2008] ECR).</p>\r\n<p class=\"p1\">Other examples of ‘extraordinary circumstances’ may include sabotage/terrorism, strikes, air traffic control problems and freak weather conditions such as the 2010 Icelandic ash cloud. However, even a technical problem that occurs unexpectedly and that is not attributable to poor maintenance and that was also not detected during routine maintenance checks, does not fall within the definition of ‘extraordinary circumstances’ (Case C-257/14 Van der Lans v KLM [2015] ECR).</p>\r\n<p class=\"p1\">For all the above reasons, as far as Gulf-based carriers are concerned (and indeed any non-EC carriers), it is important to look at the scope of EC 261 and when it will apply to the carrier. This is set out in Article 3.1, which states:</p>\r\n<p class=\"p1\"><em>This Regulation shall apply:</em></p>\r\n\r\n<ul>\r\n 	<li><em>To passengers departing from an airport located in the territory of a Member State to which the [EC] treaty applies</em></li>\r\n 	<li><em>To passengers departing from an airport located in a third country to an airport situated in the territory of a Member State to which the [EC] treaty applies, unless they received benefits or compensation and were given assistance in that third country if the operating air carrier of the flight concerned is a community carrier.</em></li>\r\n</ul>\r\n<p class=\"p5\">Thus, Gulf-based carriers are potentially liable under EC 261 if a flight is delayed or cancelled, or passengers are denied boarding, when leaving any EU airport. Conversely, Gulf-based carriers are not ‘community carriers’ under Article 3.1(b) and therefore they are not liable for flights delayed when the flight starts from a country outside of the EU.</p>\r\n<p class=\"p1\">But what about connecting flights where the flight starts from an EU airport?</p>\r\n<p class=\"p1\">Many operators within the Gulf region are successful, highly organized, new clean sheet business plan model airlines with hub routes providing a worldwide network of connecting flights. Logic would say that, if there is a delay on a flight that starts in the EU and that delay is compensated by the airline in accordance with the EU legislation within the EU, there should not be any consequential effect to connecting flights.</p>\r\n<p class=\"p1\">It is not unusual for a journey starting in the EU and operated by a Gulf carrier to comprise of two or more flights, the first from any EU member state to a non member state (eg London to UAE) and then there is a connecting flight between two non member states (eg UAE to India). Using the example London-UAE-India, it may be the case that a first flight is delayed at the EU airport for long enough for the passenger to miss their connection to India in the UAE, but for a shorter period than their requisite three-hour delay to engage a right to compensation. However, when the passenger eventually reaches the ultimate destination in India, it may be the case that the knock on effect of the original delay gives a delay in the arrival at the final destination of more than three hours.</p>\r\n<p class=\"p1\">Gulf carriers have tended to argue that each flight is a separate unit of their transport and needs to be considered separately for the purposes of compensation under EC 261, whereas the claimant often argues that their journey at all times departed from the Member State in question and that the Regulation applies to the entire journey.</p>\r\n<p class=\"p1\">Case C-173/07 <em>Emirates Airlines</em>, <em>Direktion fur Deutschland v Schenkel</em> [2009] 1 Lloyd’s Rep.1 CJEU and <em>Sanghvi v Cathay Pacific Airways</em> [2012] 1 Lloyd’s Rep 46 ChD support the view that the non EU carrier should only be responsible for the sector which is delayed and which leaves from an EU airport, and is not liable for any subsequent knock-on effect delay at destination. However, there is conflicting case law on this approach and there have been many cases (particularly in the UK) which take the opposite view.</p>\r\n<p class=\"p1\">The Guidelines now address the question of connecting flights specifically, and state that compensation under EC 261 does apply in case of a passenger missing a connection outside the EU with a flight departing from an airport situated within the EU, and where the passengers arrive at their final destination more than three hours late.</p>\r\n<p class=\"p1\"><span class=\"s1\">In the Guidelines there is a section entitled ’Compensation for late arrival in the case of connecting flights‘. The Guidelines indicate that the Regulation must apply to the whole journey including connecting flights and set out the following:</span></p>\r\n<p class=\"p6\"><em>the Court takes the view that a delay must be assessed for the purposes of the compensation provided for under Article 7 of the regulation, in relation to the scheduled time of arrival the passenger’s final destination as defined in Article 2 [h] of the regulation which in the case of directly connecting flights must be understood as the destination of the last flight taken by the passenger.</em></p>\r\n<p class=\"p4\"><span class=\"s1\"> <em>In accordance with Article 3[1] [a] EC 261, passengers who missed the connection within the EU, or outside the EU with a flight coming from an airport situated in the territory of a Member State, should be entitled to compensation if they arrived at final destination with the delay of more than three hours. Whether the carrier operating the connecting flight is an EU carrier or a non EU carrier is not relevant.</em></span></p>\r\n<p class=\"p5\">Clearly, the interpretation as set out in the Guidelines is a concern for Gulf-based airlines operating connecting flights, and the EC view is that compensation does apply in case of a passenger missing a connection outside the EU when the original flight departs from an airport situated within the EU, and the passenger arrives at their final destination more than three hours late.</p>\r\n<p class=\"p1\">Thus whilst the Guidelines provide helpful clarification on many issues, for delay claims airlines need to be aware of the fact that it is being suggested that connecting flights and accumulated journey delay may be compensatable under EC 261. This could mean a spate of claims by delayed passengers for Euro 600 per passenger in the event of an ’accumulated delay‘ at the final destination if the journey commences in the EU.</p>\r\n<p class=\"p1\">The status of the Guidelines is really to assist National Enforcement bodies interpret the legislation. They are not intended to substitute the role of the national and EU court systems, but are there to give guidance. They are viewed as persuasive to the interpretation of EC 261 and should be read accordingly.</p>\r\n<p class=\"p1\"><span class=\"s2\">Although the Guidelines have been welcomed by aviation industry bodies, they are seen as a stop gap measure and it is important to note that a new Regulation to replace EC 261 was proposed by the EC in 2013 in order to address both industry and passenger concerns. We await implementation of that new substitutive Regulation in due course but, in the meantime, Gulf carriers should be aware of the new developments. Given that many of the reported cases on EC 261 emanate from the UK, all parties await the practical implications of the ’Brexit‘ vote by the UK, and whether, as a result, the UK will continue to be bound by EU court decisions in the future. Gulf carriers will await developments with interest.</span></p>'),
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(101058, 5494, '_yoast_wpseo_metadesc', 'This article is a review of a landmark Federal Supreme Court judgment (Appeal number 304/2016 (Commercial)) regarding ship arrests by virtue of the UAE Law. This judgment overruled the judgments of the Court of First Instance and the Court of Appeal, as the claim was filed in a procedurally unlawful way.'),
(101059, 5495, 'content', 'October 2016\r\n\r\n<hr />\r\n<p class=\"p1\">A company may not practice insurance brokerage in the UAE without obtaining a license from the Insurance Authority. A license is valid for one year and renewable on a yearly basis. It expires at the end of December each year. Companies wishing to obtain a license from the Insurance Authority must meet certain requirements set by the Regulations. Among those requirements, the applicant must be a company incorporated in the UAE under the Commercial Companies Law or a branch of a company incorporated in a foreign country or in a financial free zone in the UAE provided that it is licensed to practice the same types of insurance brokerage. It should also be subject to the same level of regulatory authority and have been in practice for a period not less than five years. The Insurance Authority under the regulations has the power to set additional requirements beside those stipulated in the regulations.</p>\r\n<p class=\"p1\">The technical staff of the insurance broker should also meet certain requirements set by the Regulations. The insurance Broker must have at least a general manager, operation manager, internal auditor and at least one specialized employee for each type of insurance. The Execution Rules further stipulates specific requirements for each of the said employees and the person responsible for the branch.</p>\r\n<p class=\"p1\"><span class=\"s1\"> The insurance broker is required to submit an unconditional bank guarantee payable on demand to the Insurance Authority chairman of the board of directors. This may be liquidated fully or partially at any time in order to guarantee the settlement of the broker’s transactions and obligations arising from his practice toward the insurance companies and his customers. </span></p>\r\n<p class=\"p1\">The insurance broker must obtain an insurance policy in favour of the Insurance Authority chairman of the board of directors covering the broker’s professional liability. The value of this policy must be at least AED 2 million for companies incorporated in UAE and AED 3 million for a branch of a company incorporated in a foreign country or in a financial free zone in the UAE.</p>\r\n<p class=\"p1\">The Regulations set certain obligations which the insurance broker must comply with towards the Insurance Authority, the insurance companies and the broker’s customers. The insurance broker should follow up and collect the premiums on behalf of the insurance companies except those related to life insurance and funds accumulation operation, group health insurance, marine and air transport insurance, vessels hull and petroleum insurances.</p>\r\n<p class=\"p1\">Federal Law No. 6 of 2007 (in respect of the establishment of the Insurance Authority and Regulating the Insurance Practice) (the “Law”) defines an insurance broker as:</p>\r\n<p class=\"p1\">“The person mediating independently in insurance or reinsurance operations between the insurance/reinsurance applicant on one hand and the insurance/reinsurance company on the other, and charging, for his services, a commission from the insurance/reinsurance company with which the insurance/reinsurance policy is concluded.”</p>\r\n<p class=\"p1\">The role of the insurance broker in UAE is not different from that practiced in other jurisdictions. Insurance brokers are not responsible for the default of either the insurance companies or the customers in meeting their financial obligations. The insurance broker is only liable if the broker fails to deliver premiums paid by the customers to the insurance companies, or fails to deliver recoveries paid by the insurance companies to the customers.</p>\r\n<p class=\"p1\">Despite the fact that the laws in the UAE have defined the role of insurance brokers, in a recent case which Al Tamimi was not involved but which has come to our notice, the Dubai courts held that an insurance broker in a reinsurance brokerage transaction was liable to pay recoveries due to an insurance company from a reinsurance company. The facts of the case, as we understand them, were as follows:</p>\r\n\r\n<ul>\r\n 	<li>An Insurance company (the “Insurer”) reinsured the risks which it covers under its motor insurance policies through an insurance broker (the “Broker”) with a reinsurance company (the “Reinsurer”) which signed a cover note issued by the Broker. The Broker issued a second cover note to the Insurer with the same terms of the cover note issued to the Reinsurer and stating the name of the Reinsurer.</li>\r\n 	<li>During the currency of the reinsurance cover, the Insurer paid the due reinsurance premiums through the Broker who was transferring the said payments to the Reinsurer without delay. The Insurer also made claims to the Reinsurer through the Broker for recoveries they had paid to their insured.</li>\r\n 	<li>The Broker did follow up the recovery claims of the Reinsured with the Reinsurer, but the Reinsurer ignored all the claims and failed to meet its obligation to pay any indemnity to the Reinsured.</li>\r\n 	<li>The Reinsured filed a court case against the Reinsurer and the Broker before Dubai Court of First Instance and requested the court to oblige both companies to jointly pay to the Reinsured the amount of the indemnities due under the reinsurance contract.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p1\">The court of First instance appointed an accounting expert who examined the documents including the correspondence exchanged between the Broker and the Reinsured, the accounts and the cover notes. The appointed expert concluded that:</p>\r\n\r\n<ul>\r\n 	<li>The reinsurance contract (second cover note) was concluded between the Broker and the Reinsured;</li>\r\n 	<li>The exchanged correspondences prove that the Broker admitted the amount owed to the Reinsured;</li>\r\n 	<li>The Reinsurer is not liable to pay such amount to the Reinsured jointly with the Broker as the Reinsurer signed the first cover note but did not sign the reinsurance contract (second cover note).</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p4\">The Broker argued that:</p>\r\n\r\n<ul>\r\n 	<li>It met all its obligations as a broker by following up the claims in a timely manner and with due diligence;</li>\r\n 	<li>It is not obliged by the law to indemnify the Reinsured for any claim as long as it did not receive any payment from the Reinsurer in respect of such claims.</li>\r\n 	<li>The Broker may not insure or reinsure any risk as this does not comply with its license and thus it cannot be held liable to pay any indemnity payable under the reinsurance cover.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p4\">The Court of First Instance adopted the findings of the expert and held that the Broker was liable to pay to the Reinsured the recoveries claimed under the reinsurance contract.</p>\r\n<p class=\"p1\">The Broker filed an appeal before the Appeal Court and raised the same arguments. The court appointed an insurance expert who concluded that:</p>\r\n\r\n<ul>\r\n 	<li>The relation between the Reinsured and the Reinsurer was a pure reinsurance relation.</li>\r\n 	<li>The Broker was merely acting as a broker through whom the reinsurance contract was concluded between the parties. The Broker followed up all the claims of the Reinsured but the Reinsurer failed to fulfil its obligations.</li>\r\n 	<li>It was the duty of the Reinsurer to pay the claimed amount.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p4\"><span class=\"s2\">However the Appeal Court rejected the findings of the expert and upheld the Court of First Instance judgement, adopting the same reasons as those detailed in the Court of First Instance’s expert’s report. </span></p>\r\n<p class=\"p4\">The Broker appealed the judgement before the Cassation court. The court rejected the appeal and confirmed the Appeal Court judgment. The reinsurance contract (second cover note) was concluded between the Broker and the Reinsured. Although the Reinsurer had signed the first cover note, it was the Broker who was liable since he issued the second cover note and the signature of the Reinsurer on the first cover note did not constitute an acceptance of coverage of the insured risks.</p>\r\n<p class=\"p6\"><span class=\"s3\"><strong>Conclusion</strong></span></p>\r\n<p class=\"p1\">The findings of the Dubai Courts in this case are surprising. It is likely that the court applied general rules of contract and did not take into account the nature of the reinsurance practice followed by the brokers where cover is made by virtue of a cover note. This case is the first of its kind in the UAE and so its conclusions cannot be said to have a lot of weight. Several cases of the same kind have to be heard before the UAE courts to establish a rule on the liability of the insurance brokers for reinsurance claims where reinsurance cover is made through issuing two separate cover notes. It is hoped that future decisions will depart from the findings in this case and uphold the industry practice.</p>'),
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(101038, 5494, 'content_description', 'This article is a review of a landmark Federal Supreme Court judgment (Appeal number 304/2016 (Commercial)) regarding ship arrests by virtue of the UAE Law. This judgment overruled the judgments of the Court of First Instance and the Court of Appeal, as the claim was filed in a procedurally unlawful way. '),
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(101013, 5493, 'content_description', 'Repossession of aircraft in the United Arab Emirates is a rare event. Gulf Carriers invariably are ‘clean-sheet business plan’ model airlines with modern fleets, supported by sound aircraft financing, leasing, and ownership structures, and the necessity for a creditor to repossess an aircraft is extremely rare. Nevertheless, in circumstances where an airline operator fails in its obligations to pay rent under an aircraft finance lease or continues to default in its obligations to an aircraft lessor or owner of the aircraft, the question arises as to whether there is recourse and remedy in the UAE jurisdiction. It is fair to say that the UAE courts have been reluctant in the past to grant repossessory relief to lessors, but a recent case dealt with by Al Tamimi has demonstrated that UAE courts will grant such relief in certain circumstances. '),
(101014, 5493, '_content_description', 'field_59b641c07f473'),
(101015, 5493, 'pageSummary', 'Repossession of aircraft in the United Arab Emirates is a rare event. Gulf Carriers invariably are ‘clean-sheet business plan’ model airlines with modern fleets, supported by sound aircraft financing, leasing, and ownership structures, and the necessity for a creditor to repossess an aircraft is extremely rare. Nevertheless, in circumstances where an airline operator fails in its obligations to pay rent under an aircraft finance lease or continues to default in its obligations to an aircraft lessor or owner of the aircraft, the question arises as to whether there is recourse and remedy in the UAE jurisdiction. It is fair to say that the UAE courts have been reluctant in the past to grant repossessory relief to lessors, but a recent case dealt with by Al Tamimi has demonstrated that UAE courts will grant such relief in certain circumstances.'),
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(101033, 5493, '_yoast_wpseo_metadesc', 'Aircraft leasing is the most popular transaction structure in the aviation industry and it is important at the outset of any transaction to establish the rights and remedies available to aircraft lessors in the event of default.'),
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(101034, 5494, 'content', 'October 2016\r\n\r\n<hr />\r\n<p class=\"p1\"><strong>Nature of the Claim</strong></p>\r\n<p class=\"p2\">On 18 June 2015, a ship agency (’Claimant‘) obtained an arrest order over a ship (’Ship‘) which was at Khorfakkan Port at the time. The Claimant based the arrest order application on an agency agreement. On 1 July 2015, the Claimant brought a claim before the Khorfakkan Court of First Instance against the Ship (’Defendant‘) seeking the sum of USD5,323,869 (or its equivalent, being AED19,565,219) and legal interest at the rate of 9% as of the date the claim was made until full payment. Interestingly, the Clamant did not include the Ship’s owners in the claim.</p>\r\n<p class=\"p1\"><span class=\"s1\"> The Claimant claimed that in mid-2013, the Ship was in peril (at risk) while it was at sea in the territorial waters of the UAE. The Ship’s master requested the Claimant to rescue the Ship and guide it into Khorfakkan Port and allow her to enter Khorfakkan Port. Therefore, the Claimant did whatever it could do to rescue the Ship as per the agreement, as well as tugged her into Khorfakkan. Moreover, the Claimant claimed that on 20 January 2014 a ship agent agreement was signed between the Ship’s master and the Claimant, where the Claimant was obliged to provide the Ship with support, food, supplies, medication, bunker, oil, money advances, port dues and any other fees and charges concerning the port authority. Although the Claimant carried out all the required support works for the Ship and her marine crew, and paid all the necessary fees and charges (which amounted to USD5,323,869), the Defendant has still has not paid back the said amount to the Claimant.</span></p>\r\n<p class=\"p2\"><strong>The Court of First Instance</strong></p>\r\n<p class=\"p4\">The Ship’s owners did not appear before the Khorfakkan Court of First Instance. On 31 August 2015, the Court handed down its judgment by holding the Defendant liable to pay the Claimant the sum of USD5,323,869 (or its equivalent, being AED 19,565,219) for the all support work that was carried out for the Ship, as well as AED500,000 as damages for breaching obligations and validating the arrest order over the Ship.</p>\r\n<p class=\"p2\"><strong>The Court of Appeal</strong></p>\r\n<p class=\"p2\">On 29 September 2015, the Ship’s owners challenged the judgment of the Court of First Instance before the Khorfakkan Court of Appeal. The Ship’s owners argued that since a ship is deemed to be moveable property according to Article 12 of UAE Federal Law No. 26 of 1981 (Maritime Commercial Law) (’Law‘), the Ship does not have a legal capacity to be sued and the Claimant should have filed the claim against the Ship’s owners rather than the Ship herself. Accordingly, the Claimant’s claim should be dismissed.</p>\r\n<p class=\"p1\"><span class=\"s1\"> In addition, the Ship’s owners contended that the documents that were filed at Court by the Claimant were either photocopies and or produced by the Claimant, as a result they should not be used as evidence in this claim according to Article 45 of Federal Law No. 11 of 1992 (Civil Procedures Law). Therefore, the Ship’s owners argued, the Claim should be rejected for lack of evidence.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> Alternatively, the Ship’s owners argued, the claimed amount was exaggerated and did not reflect the true value of the support work that was carried out for the Ship. Accordingly, the amount awarded should be reduced.</span></p>\r\n<p class=\"p1\"><span class=\"s1\"> On 14 March 2016, the Khorfakkan Court of Appeal rendered its judgment and amended the judgment of the Court of First Instance by holding the Defendant liable to pay the Claimant the sum of AED12,223,158 for the support work that was carried out for the Ship. Apart from the amendment of the amount, the judgment of the Court of First Instance was upheld.</span></p>\r\n<p class=\"p2\"><strong>The Federal Supreme Court</strong></p>\r\n<p class=\"p2\">On 12 May 2016, the Ship’s owners filed an appeal before the Federal Supreme Court in Abu Dhabi. The Ship’s owners argued that the Claimant’s claim should be dismissed on the following grounds:</p>\r\n\r\n<ul>\r\n 	<li>The claim was not filed against the Ship’s owners but rather filed unlawfully against the Ship herself, notwithstanding that she does not have legal capacity to be sued according to Article (12) of the Law; and</li>\r\n 	<li>The Claimant did not file the claim in the required form under Articles 119 and 120 of the Law.</li>\r\n</ul>\r\n<p class=\"p1\"><span class=\"s1\">Article 12 of the Law states: </span></p>\r\n<p class=\"p6\"><span class=\"s1\"><em>A vessel shall be deemed to be moveable property, to which the provisions pertaining to moveable property shall apply, save insofar as there is any stipulation in this Law making any provisions relating to real property applicable thereto.</em></span></p>\r\n<p class=\"p2\">Article 119 of the Law states:</p>\r\n\r\n<ol>\r\n 	<li><em>Copies of the notice of arrest shall be delivered to the master of the vessel or his deputy thereon, a second copy to the relevant maritime authority in the port in which the arrest is effected to prevent the vessel from sailing, and a third copy to the Registration Bureau in the said port.</em></li>\r\n 	<li><em>If the vessel is registered in the State, the Registration Bureau of the port in which the arrest is effected, whether within the State or abroad, shall notify the vessels Registration Bureau of the arrest for endorsement thereof on the register.</em></li>\r\n</ol>\r\n<p class=\"p2\">Article 120 of the Law states:</p>\r\n\r\n<ol>\r\n 	<li><em>The notice of arrest shall contain a summons to attend before the relevant civil court in the area of which the arrest is effected for adjudication on the validity of the debt, of whatever amount.</em></li>\r\n 	<li><em>A time shall be fixed for the hearing not later than thirty days from the date of the notice of arrest. The court shall speedily enquire into the claim, and the time shall not be further extended.</em></li>\r\n</ol>\r\n<p class=\"p2\">Furthermore, the Ship’s owners argued that the claimed amount was exaggerated and did not reflect the true value of the support works that were carried out to the Ship. Accordingly, the amount of the award should be reduced.</p>\r\n<p class=\"p1\"><span class=\"s1\"> On 29 June 2016, the Supreme Court in Abu Dhabi issued its judgment and decided to dismiss the Claimant’s claim, as it was filed against the Ship (the Defendant) and not the Ship’s owners, and it was not filed in the required form under Articles 119 and 120 of the Law.</span></p>\r\n<p class=\"p2\"><strong>Comment</strong></p>\r\n<p class=\"p2\">It is established that any claim arising out of or in connection with a ship must be filed against the ship’s registered owners and not against the ship itself, otherwise the claim will be dismissed, as ships do not have legal capacity to be sued.</p>\r\n<p class=\"p1\"><span class=\"s1\"> Furthermore, the procedures set out in Articles 119 and 120 of the Law have not been followed by the UAE Courts previously. However, this Supreme Court judgment suggests that there has been a change in approach and the procedures set out in Articles 119 and 120 of the Law will start to be applied from now on.</span></p>'),
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(101009, 5493, 'content', 'October 2016\r\n\r\n<hr />\r\n<p class=\"p1\"><strong>Aircraft Leasing –Premier Finance Structure </strong></p>\r\n<p class=\"p2\">Aircraft leasing is the most popular transaction structure in the aviation industry and it is important at the outset of any transaction to establish the rights and remedies available to aircraft lessors in the event of default. On an economic level, if there is certainty for aircraft lessors or creditors in being able to recover aircraft in the event of continued default on the part of a lessee operator, then there is a corresponding ability to predict and plan for the provision of finance. Lessors are able to reduce their costs to account for risk and are able to make greater amounts of financing available to airlines on more attractive terms. Lessees or operators benefit too as these reduced costs will be reflected in fleet leasing rates. Ultimately if a country is a sophisticated jurisdiction with rights and remedies clearly defined, and the country is a party to the relevant international treaties, the airline is in a better position to attract the provision of finance and has the ability to grow its aircraft fleet size. Also, the airline may qualify for other forms of finance. For instance, countries with a significant manufacturing base for aircraft may provide Export Credit Agency (ECA) backed financing, whereby a quasi-governmental or private nominated institution (the ECA) acts as an intermediary between state governments and exporters to provide finance to the airline to purchase aircraft.</p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Brief History and Reasons for the Cape Town Convention 2001</strong></span></p>\r\n<p class=\"p1\"><span class=\"s3\">Because aircraft are constantly flying between borders and landing in different jurisdictions, there has always been a requirement for an international system to codify the rights which the lessor and operator may have in the aircraft, and the Geneva Convention on the International Recognition of Rights in Aircraft 1948 (‘Geneva Convention’) went some way to developing an international system providing for the international recognition of rights in aircraft and for protecting property interests, defining orders of priority, and protection of consensual liens and mortgages. However, the Geneva Convention had a number of flaws which mainly centered on the fact that in many instances lessors were unable to repossess their aircraft after a consistent failure on the part of the lessee to pay lease rent because the laws of the relevant country in which the aircraft was based were inadequate, and relying on procedures regarding the exercise of rights for repossession of aircraft to domestic law of a state produced great uncertainty. As a general consensus , there was a need for a uniform system regarding protection of international interests in aircraft. As a result The Convention on International Interests in Mobile Equipment (2001) (‘Cape Town Convention’) and its Protocol to the Convention in Mobile Equipment on Matters Specific to Aircraft Equipment (2001) (‘Aircraft Protocol’) was concluded at a diplomatic conference organised and promoted by two sponsoring organisations, UNIDROIT, the UN Agency dealing with Private Law Conventions, and the International Civil Aviation Organisation (ICAO).</span></p>\r\n<p class=\"p3\"><span class=\"s4\"><strong>Brief Overview of Cape Town Convention 2001</strong></span></p>\r\n<p class=\"p1\"><span class=\"s5\">The Cape Town Convention supersedes the Geneva Convention with regards to aircraft and aircraft objects, and supersedes the Rome Convention for the Unification of Certain Rules Relating to the Precautionary Attachment of Aircraft 1933. The Cape Town Convention is designed as a multi-equipment treaty with protocols for aircraft equipment, railway rolling stock and space assets, but the only protocol to be adopted so far is the Aircraft Protocol and it applies to airframes, aircraft engines and helicopters: airframes which can carry at least eight persons or goods in excess of 2750 kg; all aircraft engines which have at least 1750 lbs of thrust (if jet powered) or 550 HP (if turbine powered); and helicopters carrying 5 or more passengers. At the time of writing, the Cape Town Convention has been ratified by 64 contracting states, including the UAE, as well as the European Union.</span></p>\r\n<p class=\"p1\">The main aim of the Cape Town Convention is to reduce the cost of raising finance for large high value mobile assets (such as aircraft ) which regularly cross borders, and the main mechanism is to provide for the creation of ‘international interests’ such as a mortgage or an aircraft finance lease which is capable of being recognised in all contracting states, and to provide for international remedies available to creditors should an airline or operator default on repayments relating to an international interest.Additionally the Cape Town Convention creates an electronic international register for the registration of ‘international interests’.</p>\r\n<p class=\"p1\">The Cape Town Convention provides standard remedies in the event of default by a debtor including the ability to:</p>\r\n\r\n<ul>\r\n 	<li>take possession or control of an object;</li>\r\n 	<li>sell or grant a lease of an object;</li>\r\n 	<li>collect or receive income or profits arising from the management or use of an object; and</li>\r\n 	<li>vest an object in satisfaction or redemption.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p6\">There are also remedies available for conditional sellers or lessors and interim relief pending final determination of a claim.</p>\r\n<p class=\"p1\">In addition the Aircraft Protocol provides remedies including :</p>\r\n\r\n<ul>\r\n 	<li>the ability to require the removal of an aircraft from the national civil aircraft register; and</li>\r\n 	<li>the ability to export the aircraft.</li>\r\n</ul>\r\n<p class=\"p1\">Chapter III, Articles 8 to 15 of the Cape Town Convention provide a lessor or financier with a set of remedies in the event of a debtor’s default, and these remedies include taking possession of the equipment.The Aircraft Protocol Article IX (1) expands those remedies to include deregistration, export and physical transfer of the aircraft from the territory in which it is situated, together with a subsequent re-registration of the aircraft. Article 13 of the Cape Town Convention (as modified by Article IX of the Aircraft Protocol) provides the mechanism to make an application to court, and the lessor’s entitlement to request court relief stems from the contractual agreement within the aviation finance lease documentation agreed between the lessor and lessee so that the provisions of the Cape Town Convention and Aircraft Protocol and its remedies will apply, and are agreed in accordance with Article IX of the Aircraft Protocol.</p>\r\n<p class=\"p2\"><strong>Cape Town Covention in the UAE</strong></p>\r\n<p class=\"p1\"><span class=\"s5\">The Cape Town Convention was ratified by the UAE and came into effect in the UAE on 1 August 2009. The benefits to the UAE have been that leasing and finance structures drafted in relation to the UAE have habitually incorporated the rights and remedies available under the Convention, and in turn lessors and financiers have been able to reduce risk and to reflect that in the cost of credit supply.</span></p>\r\n<p class=\"p1\"><span class=\"s2\">However, when ratifying the Cape Town Convention, the UAE made a number of Declarations under the convention, one of which is that where Cape Town Convention remedies are available to the lessor without the need for an application to court (so called self- help remedies); such remedy may only by be exercised by application to court. Thus in the UAE a court application will always be required in a contentious situation where a lessee is in default and is refusing to return the aircraft.</span></p>\r\n<p class=\"p1\">Other points to note specific to the Cape Town Convention in the UAE are that if interests are registered on the international register and create international interests (as defined in the Cape Town Convention) over the aircraft and engines, no other filing, registration, submission or governmental approval is necessary to perfect or protect the rights of the lessor and lessee to the aircraft, and such international interests will be effective against third parties in the UAE. Accordingly the lessor under an aviation finance lease will have the rights and remedies available to a holder of a registered international interest under the Cape Town Convention. The Gulf Civil Aviation Authority (GCAA) recognises the concept of the Irrevocable De-registration and Export Power of Attorney (or IDERA) which allows the person (usually the lessor) in whose favour the document is issued to exercise those rights and remedies contemplated by the Cape Town Convention, as adopted and implemented in the UAE.</p>\r\n<p class=\"p1\"><span class=\"s6\"> The GCAA maintains a national aircraft register in accordance with Article 28(2) of UAE Law regarding Civil Aviation Law (Federal Law no 20 of 1991) (the ‘Aviation Law’), and an aircraft is to be registered according to defined conditions and procedures. According to Article 5(2) of the Aviation Law, no aircraft registered on the aircraft register may be legally disposed of in any way without the prior written consent of the GCAA. Upon the cancellation or termination of an aviation finance lease and subject to the filing of the IDERA with the international register there will be a right, subject to an application to court, (i) to repossess the aircraft, (ii) to de-register the aircraft from the aircraft register and international register and (iii) to export the aircraft from Dubai and the UAE, all without requiring any further consents, approvals or licenses from the GCAA.</span></p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Retrieval Proceedings in the UAE-General Procedure</strong></span></p>\r\n<p class=\"p1\">Although the UAE is a party to the Cape Town Convention and a court application is required in respect of the remedies contained in the Cape Town Convention, it is fair to say that it is extremely rare to make an application for repossession of aircraft in the UAE. Although it is a common procedure in the UAE courts for a creditor to issue an ex parte application and to request the court to attach the assets of the defaulting debtors in contractual disputes, an application for an order for repossession of an aircraft has remained relatively untested.</p>\r\n<p class=\"p1\"><span class=\"s2\"> The UAE Law of Civil Procedures (Federal Law No 11 of 1992) (‘Civil Procedures Law’) allows a creditor, or an owner of an asset or a plaintiff with a valid claim against a defendant to attach an asset in possession of the other party. Therefore in the event of a dispute over the right to possession of the aircraft, in theory the lessor may pursue attachment of the aircraft by court proceedings in the UAE, and in any Emirate of the UAE where the aircraft is situated afterwards to physically retrieve the aircraft. The lessor will have to file the substantive action before the competent court within eight days as of the date of filing the attachment proceedings, and will then have to litigate the matter until a final and conclusive judgment is issued to the effect of returning possession of the aircraft to the lessor. Such proceedings against the aircraft are called retrieval proceedings, and from the lessor’s perspective are usually based on proving that it is the rightful owner claiming ownership of the aircraft from another party who is in actual possession.</span></p>\r\n<p class=\"p1\"><span class=\"s2\"> The basic procedure for an attachment application is to draw up an application and file it in the appropriate UAE court. This is an ex-parte application to a duty judge who makes a prompt decision on the merits of the proposed attachment. The grant of an attachment order is based solely on the documents provided as evidence. There is no scope for affidavits or witnesses. If the attachment application is successful, an attachment order is granted by the judge and sent by the court bailiff for attachment of the aircraft. Within eight days of any successful attachment application, a substantive action needs to be filed in support of the attachment proceedings. Failing this, the attachment order will be considered void. If the substantive action is successful, and all the appeal stages have been exhausted, the lessor can then proceed with the execution of the judgment through the relevant court execution department. In summary, it may be said that the retrieval proceedings based on the Civil Procedures Law is time consuming and it may take years before an executable judgment is rendered and subsequently enforced through the execution department.</span></p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Recent Case Grounding Repossession and Delivery Up in Sharjah Court</strong></span></p>\r\n<p class=\"p1\"><span class=\"s5\">In a recent client case a lessee operator of an aircraft had failed to pay substantial monies owing to the lessor, composed primarily of unpaid aircraft rental arrears and maintenance reserves, and this default had been ongoing for a considerable period of time. The aircraft was not registered in the UAE, but was registered in a foreign jurisdiction, but the lessee operator of the aircraft had a place of business and assets in the UAE. The aircraft was due to land in Sharjah on a certain date known to the lessors, primarily to undertake repair works and was due to enter a workshop for maintenance with a Maintenance Repair and Overhaul (MRO) provider.</span></p>\r\n<p class=\"p1\">Given the sustained and continuing default on the part of lessee, instructions were issued to attempt to ground and repossess the aircraft and secure deregistration and onward release of the aircraft to the lessor in accordance with the terms of the lease agreement between the parties, in addition to attaching the assets of the lessee towards securing the unpaid rent and maintenance charges.</p>\r\n<p class=\"p1\"><span class=\"s2\"> A draft application to the Sharjah Court was prepared on an ex parte basis. The application was firstly for the grounding and repossession of the aircraft, and secondly for the attachment of the UAE assets of the lessee. The application was premised on the provisions of the Cape Town Convention in addition to the provisional attachment provisions available under the Civil Procedures Law. In the first part of the application (grounding/repossession), the relevant provisions under the lease agreement which incorporated available remedies under the Convention were highlighted and exhibited. The several default notices issued by the lessor were explained and the court was taken through the remedies set out under Article 13 of the Cape Town Convention for delivery up, repossession, procurement of de-registration of the aircraft from its home jurisdiction, and the procurement of export of the aircraft once the order was perfected.</span></p>\r\n<p class=\"p1\">The second part of the application included a request to the Sharjah Court to issue a provisional attachment order against the UAE assets of the aircraft operator for the outstanding amounts in default in the payment of the applicable rent and maintenance arrears and exhibited and explained the several notices and demands issued in relation to the relevant aircraft.</p>\r\n<p class=\"p1\"><span class=\"s2\"> An order was granted by the Sharjah court and served on all relevant parties including the debtor, Sharjah Airport, the Sharjah Civil Aviation Department, the GCAA, the MRO provider, the banks and properties identified in the attachment application and the order was also served in relation to all identifiable assets subject to the application. The aircraft was secured and moved to a facility within Sharjah Airport pending finalisation of the deregistration of the aircraft from its home civil aircraft register and re-registration in a new national civil aircraft register arranged by the lessor of the aircraft.</span></p>\r\n<p class=\"p1\"><span class=\"s3\"> In this instance the order was successfully granted and the eventual outcome has been that the aircraft has been flown from the UAE and re-registered on another country’s civil aviation authority aircraft register and the aircraft has been repossessed by the lessor.</span></p>\r\n<p class=\"p1\"><span class=\"s3\"> Nevertheless, a number of factors combined to enable success: the lessee operator’s default in nonpayment of rental payments and maintenance reserves was abundantly clear and prolonged; the ex-parte application to the judge made full and frank disclosure and demonstrated the continuing default; the appended lease documentation was properly drafted so as to incorporate Cape Town Convention remedies; the Sharjah court was fully appraised and had competence in dealing with Cape Town Convention remedies; the lessor was in a position to offer a bond or guarantee if required (albeit this was not required); the application for de-registration of the aircraft from its home civil aircraft register and jurisdiction was made at the same time as the Sharjah court application; the assets for the attachment section of the application were properly researched and identified; the lessor client had made provision for the safe retention of the aircraft with a local MRO and had made provision for onward ferry flights and ultimate re-registration on another country’s register; the defaulting lessee to a certain extent did not contest the substance of the application and, again to a certain extent, entered into negotiation with the lessor.</span></p>\r\n<p class=\"p3\"><span class=\"s1\"><strong>Conclusion and Policy</strong></span></p>\r\n<p class=\"p1\">Policy-wise, UAE courts are not in the habit of regularly granting orders for repossession of aircraft, and UAE courts will deal with applications on a case by case basis. In this instance an order was successfully secured, and in practical terms made sure that the aircraft was re-possessed, de-registered from its own jurisdiction, re-registered in another jurisdiction and returned to the lessor.</p>\r\n<p class=\"p1\">However, there are very few recalcitrant lessees in the UAE region and it is important to note that the overwhelming intention of the Cape Town Convention is to provide certainty in protecting international interests, and to enable the reduction in cost of raising finance for large high value assets such as aircraft, and in turn to promote an environment where airline businesses can grow and increase fleet size. Gulf Carriers have demonstrated that growth in abundance and have utilised the aircraft finance market to achieve this, and such success is a superb example of the commercial benefits which may be obtained by signatory States to the Convention.</p>\r\n<p class=\"p1\">Correspondingly, on the rare occasion in which a lessor must enforce its remedies under the Convention, it is of comfort to note that the UAE jurisdiction will grant the necessary court order if the case is properly argued and the Cape Town</p>\r\n<p class=\"p1\">Convention remedy is appropriate in the circumstances.</p>'),
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(100994, 5492, 'content', 'October 2016\r\n\r\n<hr />\r\n<p class=\"p1\">Earlier this year, extensive meetings took place at the DDED to review strategy and discuss new ways of improving the current IP system in Dubai, including adopting best practice methods to enforce IP and trademark rights for both the DDED and brand owners.</p>\r\n<p class=\"p1\">The IP Gateway, which was implemented by the Commercial Compliance and Consumer Protection (“CCCP”) Department of the DDED, is the first of its kind in the world. It allows complaints relating to trademark infringement to be received via the department’s website.</p>\r\n<p class=\"p1\">The IP Gateway first started receiving complaints in September 2016 and its main function is to automate all procedures relating to IP issues, from receiving complaints and opening files, to receiving reports from field officers and submitting them to trademark owners. The IP Gateway also allows lawyers to track cases and complaints electronically on behalf of brand owners.</p>\r\n<p class=\"p1\"><span class=\"s1\"> The launch of the IP Gateway is a key objective and part of the DDED’s strategy to strengthen the business sector through: </span></p>\r\n\r\n<ul>\r\n 	<li>sustainable economic development;</li>\r\n 	<li>building trust between the public and private sectors; and</li>\r\n 	<li>protecting the economic interests of dealers, suppliers and trademark owners.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p1\">With the launch of the IP Gateway, the DDED is seeking to implement government guidance to transition from manual to electronic/smart procedures and to provide a platform to achieve sustainable economic development at the highest levels of global competitiveness.</p>\r\n<p class=\"p1\">Mohammed Ali Rashed Lootah, CEO of the CCCP Department, said that the:</p>\r\n<p class=\"p4\">‘<em>IP Gateway will help achieve the goal of reducing government auditors in Dubai by 80 per cent by the year 2018, as the smart system can completely eliminate the need for review visits from law firms and brand owners.</em>’</p>\r\n<p class=\"p1\"><span class=\"s2\">One of the positive new features of the IP Gateway is that brand owners’ legal representatives can be notified electronically of goods/products which have been seized by the DDED based on regular investigations conducted by its inspectors. Legal representatives will have the opportunity to enquire about the temporarily-seized goods/products and obtain further information from the DDED should the brand owner wish to pursue a case and file a complaint against the trader which was in possession of the infringing goods/products. </span></p>\r\n<p class=\"p1\">Adoption of the new IP Gateway is hoped will provide a reliable and efficient online service which reduces paperwork and provides a streamlined process for lodging and completing IP and trademark applications by brand owners and for policing their infringement.</p>\r\n<p class=\"p6\">A version of this article has been previously published in <em>World Trademark Review</em> on 15 September 2016.</p>'),
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(100968, 5490, 'content_description', 'The Chairman of the Securities and Commodities Authority of the United Arab Emirates (SCA) issued on 28 April 2016 the Resolution No. (7/R.M) of 2016 Concerning Corporate Discipline and Governance Standards of Public Joint Stock Companies (New Governance Rules) in order to:'),
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(100970, 5490, 'pageSummary', 'The Chairman of the Securities and Commodities Authority of the United Arab Emirates (SCA) issued on 28 April 2016 the Resolution No. (7/R.M) of 2016 Concerning Corporate Discipline and Governance Standards of Public Joint Stock Companies (New Governance Rules) in order to:'),
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(100972, 5490, 'currentURL', 'http://www.tamimi.com/en/magazine/law-update/section-14/october-6/an-overview-of-the-new-governance-rules-in-the-uae-part-i.html'),
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(100978, 5490, '_yoast_wpseo_metadesc', 'The Chairman of the Securities and Commodities Authority of the United Arab Emirates (SCA) issued on 28 April 2016 the Resolution No. (7/R.M) of 2016 Concerning Corporate Discipline and Governance Standards of Public Joint Stock Companies (New Governance Rules)'),
(100979, 5491, 'content', 'October 2016\r\n\r\n<hr />\r\n<p class=\"p1\"><span class=\"s1\">In addition, some provisions of the law served to create uncertainty in the minds of lawyers. </span></p>\r\n<p class=\"p1\">One such provision was Article 104 which states: “<em>In respect of matters not specifically provided herein, the provisions concerning Joint Stock Companies shall apply to the Limited Liability Company; and the words “Competent Authority” shall replace the term “Authority” wherever it appears.</em>”</p>\r\n<p class=\"p1\"><span class=\"s2\"> The precise operation of this provision was not spelled out in the CCL. Therefore, confusion developed in determining which provisions concerning public joint stock companies (“PJSCs”) may or may not apply in respect of limited liability companies (“LLCs”). Even expert legal practitioners disagreed on the best and most feasible interpretations. </span></p>\r\n<p class=\"p1\">In order to assist the business and legal community the UAE Ministry of Economy recently issued Ministerial Resolution No. (272) of 2016 entitled ‘Application of Some Provisions of Public Shareholding Companies to Limited Liability Companies’ (“Resolution”). This Resolution serves to clarify the precise scope of operation of Article 104.</p>\r\n<p class=\"p1\">In this article, we have addressed key points the Resolution covers.</p>\r\n<p class=\"p2\"><span class=\"s3\"><strong>Which CCL provisions affecting PJSCs now apply to LLCs? </strong></span></p>\r\n<p class=\"p3\">The following PJSC provisions are now confirmed as applying to LLC’s:</p>\r\n\r\n<ul>\r\n 	<li>The Articles of Association shall: (i) appoint the company directors and the Board members; (ii) fill vacant positions in the Board; and (iii) set the number, powers and term of office of directors. The General Meeting shall be in charge of any of these matters, if the Articles of Association remain silent (Article 4).</li>\r\n 	<li>A majority of votes by the Board is needed for a resolution to be passed. Before calling a General Meeting, the Board must hold its meeting at least 30 days earlier and must send all shareholders a notice with all relevant information of the General Meeting. Details of the General Meeting shall be noted in meeting minutes, which shall be signed by members attending the meeting and the rapporteur (Article 5).</li>\r\n 	<li>The Board and all relevant directors must put the interest of the company first and must act in line with what is authorized to them. The functions of the Board and executive management must be set in the Articles of Association (Article 6).</li>\r\n 	<li>The company shall appoint one or more auditors who shall comply with the CCL. These auditors shall be appointed for one renewable year. The auditors have the right of access to all Company books, registers and documents etc. and if the company’s directors or management fail to enable the auditor to perform its duties, the auditor is required to send a copy of the report to the competent authority (Articles 7 &amp; 8).</li>\r\n 	<li>The auditors shall present an annual report to the General Meeting, and shall be responsible for the correctness of all information presented (Article 9).</li>\r\n 	<li>The company shall prepare regular accounts in accordance with the international accounting principles and standards (Article 10).</li>\r\n 	<li>A shareholder holding 50% or more of the capital of the company may submit an offer to acquire the remaining shares of the company, which may be accepted or rejected by the shareholders (Article 11).</li>\r\n 	<li>Any shareholder holding more than 20% of the company capital may submit an application for the calling of the General Meeting, which must be called within 5 days. Any shareholder holding 10% of the company shares may submit an application for the calling of the General Meeting to an urgent meeting and shall accompany the application by supporting documents (Article 12).</li>\r\n 	<li>The company must deposit the cash dividends of the shareholders within 30 days from the date of issuance of a resolution approving the profit distribution (Article 13).</li>\r\n 	<li>The inclusion of an issue during the General Meeting must be made through an inclusion application, which must be made in writing, signed by shareholders representing 10% of the company and submitted to the chairperson who shall approve or reject it. The inclusion of an issue before the General Meeting can be made by shareholders holding 5% of the company profit within 5 business days from the date they are notified about the General Meeting. The issuance must include relevant documents and must be approved by the competent authority (Article 14).</li>\r\n 	<li>Under certain cases, such as an increase or decrease of the company capital, the General Meeting must issue a special resolution (Article 15).</li>\r\n 	<li>Any breach of the provisions shall be subject to penalties (Article 16).</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p6\"><span class=\"s3\"><strong>Which provisions affecting PJSCs do not apply to LLC’s?</strong></span></p>\r\n<p class=\"p3\">The key provisions affecting PJSCs which do not operate in the running of LLCs are provisions concerning the election of Board members, the number of members (minimum and maximum), or nationalities of the Board Chairman and members and their annual remuneration (Articles 143, 144, 145, 147, 149, 151 and 169), provisions governing related party transactions (Article 152) and restrictions concerning financial assistance (Article 222).</p>\r\n<p class=\"p3\"><strong>How has the Resolution served stakeholders in the UAE?</strong></p>\r\n<p class=\"p3\">The Resolution has provided the legal and business community with some much needed clarity particularly in clarifying that the restriction on companies providing financial assistance connected to the purchase of their own shares applies only to PJSC’s and not to LLC’s. This major clarification alone is a welcome development in resolving a key question in construing Article 104 of the new Law.</p>'),
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(93576, 5083, 'content_description', 'Abu Dhabi Global Market (“ADGM”), the UAE’s latest financial free zone, unveiled its draft employment regulations (“Regulations”) in January.'),
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(93578, 5083, 'pageSummary', 'Abu Dhabi Global Market (“ADGM”), the UAE’s latest financial free zone, unveiled its draft employment regulations (“Regulations”) in January.'),
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(93587, 5084, 'content', 'February 2015\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">The city offers a variety of exciting visions and cultural blends, ready to feature as a backdrop in international and local film and television productions.</p>\r\n<p class=\"MsoNormal\">The Dubai government is keen to establish Dubai as a leading production destination with landmark buildings and state-of-the-art production facilities.  The Dubai Film and TV Commission (<strong>DFTC</strong>) was established in recent times to facilitate shooting and production in the city, with a primary goal of the DFTC being to increase the number of film and television productions that are shot and produced in Dubai.</p>\r\n<p class=\"MsoNormal\">In December 2014, the Executive Council issued <em>Resolution No. 50 of 2014 Concerning the Dubai Film and TV Commission</em> (the “<strong>Resolution</strong>”) to substitute <em>Resolution No. 16 of 2012</em> (and its amendments) which set up the DFTC.  The Resolution defines the objectives of the DFTC, with a key objective to increase local and international film and television production in Dubai.</p>\r\n<p class=\"MsoNormal\">DFTC has always been the sole body authorised to issue all audio and visual media production permits and to obtain related approvals from all government departments, free zones and private sector entities in Dubai.  This still remains the position under the Resolution, however, it although the Resolution presents a new permit and fee structure, briefly summarised as follows:</p>\r\n\r\n<ul>\r\n 	<li>There are now nine types of permits available to production companies, which are categorised by production type (e.g. TV or film production for films and documentaries is one category; filming for advertisements is another).</li>\r\n 	<li>Most fees are now AED 3,000 (inclusive of a AED 500 application fee) and with some categories of permits now being valid for up to 30 days.  Compared to the previous permit fees which could be as high as AED 25,000 for a 24-hour period, this is a notable reduction in the fees payable under the Resolution.</li>\r\n 	<li>Ddepending on the location, additional daily fees may be payable to the location operator.  This is at the location operator’s discretion, noting that the Resolution clearly caps these fees at AED 25,000 per day.  Any overcharge is to be refunded to the production company.</li>\r\n 	<li>Failure to obtain the appropriate permit may result in a fine, which can range between AED 15,000 to AED 25,000 depending on the description of the penalty.</li>\r\n</ul>\r\n<p class=\"MsoNormal\">Ahead of filming in Dubai, production companies are required to liaise with the DFTC and submit an application for a permit.  Production companies should allow some time for this process, as they are also required to also submit scripts for film and television series for review by the DFTC (presumably, so that the DFTC can ensure that the cultural and social mores of Dubai are not compromised in the script).</p>\r\n<p class=\"MsoNormal\">The permit fees, and any additional location fees, are upfront costs that need to be factored in to the overall cost of production.  This may be a deterrent for some production companies and other entities wishing to film in Dubai with small production budgets.  DFTC is conscious of this, and one of the DFTC’s objectives in the new 2014 Resolution is to decrease the cost of media production in Dubai.</p>\r\nIn the absence of any tax or other rebates or incentives, the reduction in permit costs no doubt places the DFTC in good stead for achieving this objective.  In addition, the DFTC does remain available to discuss ways to reduce the cost of filming in Dubai and to provide financial incentives, whether through special arrangement with key industry partners, licensing and fee rebates, or negotiations with service providers.'),
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(93591, 5084, 'content_description', 'From the glittering night lights to the serene desert landscape, it is easy to see how Dubai can appeal to film and television producers.  '),
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(93593, 5084, 'pageSummary', 'From the glittering night lights to the serene desert landscape, it is easy to see how Dubai can appeal to film and television producers.'),
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(93597, 5084, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Anita Siassios'),
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(93606, 5085, 'content', 'February 2015\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">With such activities on the increase, the Ministry of Commerce and Industry (“the Ministry”) has recently issued a new Foreign Property Marketing Licence and has set out the requirements to market foreign property off-the-plan in KSA.</p>\r\n<p class=\"MsoNormal\">The purpose of introducing the Foreign Property Marketing Licence is to put in place requirements that protect Saudi nationals concerning foreign real estate marketed to them within KSA.  It is also consistent with the consumer protection policies behind the requirement for the Licence for the Sale of Units On-the-Map, which applies to the sale of property off-the-plan <em>within</em> KSA.</p>\r\n<p class=\"MsoNormal\">The Ministry has recently issued a circular confirming that, without obtaining an approval for a Foreign Property Marketing Licence, it is prohibited within KSA to offer any foreign real estate units for sales off-the-plan or to publish advertisements or to market foreign real estate units through the media or by any exhibitions.</p>\r\n<p class=\"MsoNormal\"><strong>REQUIREMENTS &amp; CONDITIONS OF A FOREIGN PROPERTY MARKETING LICENCE</strong></p>\r\n<p class=\"MsoNormal\">Some of the requirements to obtain a Foreign Property Marketing Licence include:</p>\r\n\r\n<ul>\r\n 	<li>there must be a contract between the foreign developer and a licensed Saudi real estate broker;</li>\r\n 	<li>the Saudi broker must hold a valid commercial registration permitting “property marketing” and must have existing business premises in KSA;</li>\r\n 	<li>no sum of money may be received in KSA from the buyer;</li>\r\n 	<li>no contracts for the sale of foreign property units off-the-plan shall be concluded in KSA;</li>\r\n 	<li>the foreign developer must hold a valid licence in the jurisdiction where the property is located; and</li>\r\n 	<li>an official document from the relevant authorities in the foreign jurisdiction where the property is located must be provided to the Ministry allowing Saudi ownership of property units and must be attested by the relevant authorities in both jurisdictions.</li>\r\n</ul>\r\n<p class=\"MsoNormal\">To achieve a certain level of disclosure and transparency and to ‘level the playing field’ between buyers and marketers of foreign property, some of the conditions imposed on licence holders include:</p>\r\n\r\n<ul>\r\n 	<li>no verbal promises or assurances can be given to the buyer by the marketer;</li>\r\n 	<li>all conditions for the resale of the property and any other conditions or restrictions must be explained to the buyer;</li>\r\n 	<li>the process of property registration and the extent of available utilities and services to the property must be clarified; and</li>\r\n 	<li>the applicable laws, fees and taxes must be explained to the buyer before the contract is made.</li>\r\n</ul>\r\n<p class=\"MsoNormal\"></p>\r\n<p class=\"MsoNormal\"><strong>CARRYING OUT MARKETING AND ADVERTISING OF FOREIGN REAL ESTATE</strong></p>\r\n<p class=\"MsoNormal\">Unsurprisingly then, it is a requirement to first have a Foreign Property Marketing Licence before commencing marketing activities, advertisements, seminars or exhibitions to promote any foreign real estate.</p>\r\n<p class=\"MsoNormal\">Some of the Ministry’s stipulations include that any advertisement:</p>\r\n\r\n<ul>\r\n 	<li>cannot be published unless it has first been approved by the Ministry’s Off-Plan Property Sale Committee;</li>\r\n 	<li>must not be misleading or contrary to public morals and must be in Arabic;</li>\r\n 	<li>must include certain detailed information and specifics on the property that is to be marketed;</li>\r\n 	<li>must state: <em>“Payments are to be made and contracts signed in the jurisdiction where the property is located”</em>;</li>\r\n 	<li>can only be published through channels licensed by the relevant authorities;</li>\r\n 	<li>must include full details of the broker and his contact details; and</li>\r\n 	<li>must include the number under which the licence was issued by the Ministry’s Off-Plan Property Sales Committee.</li>\r\n</ul>\r\n<p class=\"MsoNormal\"></p>\r\n<p class=\"MsoNormal\"><strong>Conclusion</strong></p>\r\n<p class=\"MsoNormal\">The stability, growth and opportunities in the Kingdom of Saudi Arabia attract many, including property marketers.  The Foreign Property Marketing Licence applies directly to the sale off-the-plan of foreign property of any type to nationals within KSA.  A failure to obtain a Licence will leave both the developer and any promoter in KSA open to a range of penalties.</p>\r\n<p class=\"MsoNormal\">The contents of the agreement between the foreign developer and the KSA marketing agent needs to be drafted carefully to protect each party’s interests, to set out the necessary procedures for introducing Saudi buyers and to comply with the Foreign Property Marketing Licence requirements and other relevant laws that apply.</p>\r\n<p class=\"MsoNormal\"></p>\r\n<p class=\"MsoNormal\">With increased interest in the Kingdom of Saudi Arabia, it is prudent for the KSA authorities to issue regulations which clarify the requirements for the sale of foreign property for buyers, Saudi real estate brokers and for foreign developers, especially at a time when such sales in KSA are so strong.</p>'),
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(93625, 5086, 'content', 'February 2015\r\n\r\n<hr />\r\n<p class=\"MsoNormal\"><strong>Background and Market Practice</strong></p>\r\n<p class=\"MsoNormal\">Factoring is a financing technique that enables an exporter to collect the purchase price of the goods relating to an export transaction prior to the due date of payment. Typically, banks in Qatar act as factors and purchase receivables relating to the export transaction. The same technique is also used for financing contractors and sub-contractors, where works have been performed or goods and services have been supplied and payment under the corresponding invoice is payable after a period of time (e.g. 90 days). This latter technique is referred to as ‘invoice discounting’.</p>\r\n<p class=\"MsoNormal\"><strong>Balance Sheet Treatment</strong></p>\r\n<p class=\"MsoNormal\">One key commercial consideration for companies seeking to sell their receivables is for the receivables to be removed from their balance sheet as a debt and to appear as revenue that has been collected. This treatment is possible if the receivables are sold on a ‘without recourse’ basis. Auditors usually require a legal opinion to confirm that a ‘true sale’ of the receivables has been effected.</p>\r\n<p class=\"MsoNormal\">While under Qatari law factoring (in respect of invoices and contracts) can occur on a ‘with recourse’ or ‘without recourse’ basis, as a result of certain legal issues, banks typically opt to structure their invoice discounting product on a ‘limited recourse’ basis. Therefore, once the invoice or agreement has been validly assigned to the bank, the bank would have direct recourse to the debtor under the invoice or contract (the “<strong>Debtor</strong>”), however, in the event of a dispute over the performance of the invoice or contract the bank will have recourse to the exporter or contractor (the “<strong>Seller</strong>”). In other words, the only risk being assumed by the bank is that of the bankruptcy of the Debtor. The bank does not assume the risk of performance by the Seller under the discounted invoice or contract.</p>\r\n<p class=\"MsoNormal\">In Qatar, especially in the context of contractor receivables, the assignment perfection procedures are difficult to complete. Therefore, the Seller will also provide a representation relating to the assignment having been perfected and a breach of this representation is included as a recourse event. Our view is that the inclusion of certain representations as recourse events should not impact the ‘true sale’ nature of the transaction.</p>\r\n<p class=\"MsoNormal\"><strong>Assignment of Invoices and Contracts (Legal Considerations)</strong></p>\r\n<p class=\"MsoNormal\">Each invoice or contract that is subject to the factoring arrangement should be assigned to the bank.</p>\r\n<p class=\"MsoNormal\">The Civil Code (Law No. 22 of 2004) (the “<strong>Civil Code</strong>”) sets out specific provisions relating to the assignment of rights. Article 324 of the Civil Code states that a creditor may assign its rights except where a specific provision of law or contract restricts such assignment.</p>\r\n<p class=\"MsoNormal\">Article 326 of the Civil Code requires that the assignor should notify the debtor (i.e. the Government Authority) of the assignment in order for the assignment of receivables to take effect against the Government Authority. While the requirement for such a notification is not unusual, Article 326 goes on to state that the effectiveness of assignment vis-à-vis third parties shall only occur if the acknowledgement or acceptance of the notice of assignment from the debtor is “date certain”. Date certainty effectively gives priority to the assignee (bank) in respect of the assigned receivables. However, effecting date certainty is an administrative burden and requires the acknowledgement or consent received from the Debtor to be date certified by the Authentication Department at the Ministry of Justice.</p>\r\n<p class=\"MsoNormal\"><strong>Ministry of Economy and Finance Regulations</strong></p>\r\n<p class=\"MsoNormal\">In addition to the requirements under the Civil Code, the Ministry of Economy and Finance has also issued regulations relating to the assignment of receivables where the receivables emanate from a ‘government authority’ (the “Regulations”). It is understood that the Regulations would be applicable to various Ministries and other bodies such as Ashghal (Public Works Authority) and KAHRAMAA (Qatar General Electricity and Water Corporation)</p>\r\n<p class=\"MsoNormal\">The Regulations impose a higher standard of compliance. The significant additional requirements are:</p>\r\n\r\n<ol>\r\n 	<li>the Government Authority and the assignee bank are required to notify the Government Auditing Department at the Ministry of Economy and Finance of the assignment;</li>\r\n 	<li>the assignment agreement is required to be notarised at the Authentication Department (note that this is not a requirement under the Civil Code); and</li>\r\n 	<li>banks are required to verify that the Government Authority has not agreed to assign the proceeds to any other party including to a sub-contractor.</li>\r\n</ol>\r\n<p class=\"MsoNormal\"><em>This article first appeared in IFLR International Briefings – February 2015</em><strong><em> </em></strong></p>'),
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(93643, 5087, 'content', 'February 2015\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">The National Innovation Strategy was first announced by His Highness Sheikh Mohammed bin Rashid Al Maktoum, Vice President and Prime Minister of the UAE, on 19 October 2014.  Later on 30 November 2014, the UAE Federal Cabinet of Ministers met to approve the designation of 2015 as the Year of Innovation in a plan to make the UAE a world innovative leader.</p>\r\n<p class=\"MsoNormal\">“Announcing 2015 as the Year of Innovation comes to support federal government efforts, attract national skills, increase distinguished research, as well as boost efforts to build a national cadre who are able to lead our future in this field towards more progress, prosperity and innovation” said His Highness Sheikh Khalifa bin Zayed Al Nahyan, President of the UAE.  “We live today in a world witnessing rapid changes and continuous developments, full of opportunities, discoveries and inventions” he added.</p>\r\n<p class=\"MsoNormal\"> “This innovation strategy is a national priority for our programme of development and progress.  It is a primary tool to achieve Vision 2021 and an engine for the growth of distinctive skills and capabilities across the nation.  We have always called for creativity in every field: this strategy is a concrete step to implement that vision.  These initiatives around innovation will enhance quality of life in the UAE and take our economy to new horizons… We want our public and private sectors to explore new horizons to develop our economy. Innovation is our only way to build a great history of the UAE… the future will be for those who adopt innovation” Sheikh Mohammed said.</p>\r\n<p class=\"MsoNormal\">The National Innovation Strategy will focus on fostering innovation in seven main sectors, renewable energy, transport, education, health, technology, water and space.  Thirty governmental initiatives are aimed to be taken within a three-year period in the optic of fostering innovations in these sectors, including new legislation, innovation incubators, investment in specialized skills, private-sector incentives, international research partnerships and an innovation drive within government.</p>\r\n<p class=\"MsoNormal\">The National Innovation Strategy sets out four tracks of action:</p>\r\n\r\n<ul>\r\n 	<li>Anchoring a simulating environment for innovation in the form of supportive institutions and laws;</li>\r\n 	<li>Developing government innovation by institutionalizing innovative practices with the support of an integrated system of modern tools, requiring all government entities to reduce spending by 1 percent and to dedicate the savings to research and innovation projects;</li>\r\n 	<li>Encouraging private sector innovation by stimulating companies to establish innovation and scientific research centres, to adopt new technologies and to develop innovative products and services;</li>\r\n 	<li>Qualifying individuals with highly innovative skills by concentrating on science, technology, engineering and mathematics, including the creation of educational material for schools and universities.</li>\r\n</ul>\r\n<p class=\"MsoNormal\"></p>\r\n<p class=\"MsoNormal\"><strong>Dubai Innovation Hub &amp; Creative Community </strong></p>\r\n<p class=\"MsoNormal\">As a concrete step towards the transformation towards an innovation and knowledge based ecosystem, Sheikh Mohammed bin Rashid issued Law No. 15 for the Year 2014 entitled the “Creative Community Law in the Emirate of Dubai” setting the legal basis for the establishment of two new projects, an “Innovation Hub” and a “Creative Community”, in the Dubai Technology and Media Free Zone (known as TECOM Free Zone).</p>\r\n<p class=\"MsoNormal\">The new law opens the door for innovation-based companies operating in certain activities defined under the law to benefit from the 100% ownership, tax free and other benefits regulated by the TECOM Free Zone.  In order to be eligible, the company’s activities “must include a degree of creation and innovation and must depend on intellectual property as a main source of revenue, including among others products and services in the field of media, technology, education, life sciences, energy, fashion &amp; design”<a class=\"msocomanchor\" href=\"#_msocom_1\">[a1]</a> . As started in Arabian Business http://www.arabianbusiness.com/uae-launches-plan-be-among-most-innovative-nations-in-world-within-7yrs-568451.html#.VNxRIFIcSic</p>\r\n<p class=\"MsoNormal\">The Innovation Hub is planned to be located in the Dubai Internet City focusing on sectors such as technology, new media, smart education and sciences, whereas the Creative Community is planned to be located in the new Dubai Design District and will aim to inspire creative flair among emerging designers and artists and encourage innovation within people more generally, acting as an incubator for emerging local designers, artists, house art galleries and studios.</p>\r\n<p class=\"MsoNormal\">The Innovation Hub is expected to house a workforce of around 15,000 companies of all sizes including start-ups, SMEs, multinationals and infrastructure services including innovation complexes, creative spaces, technology laboratories and smart buildings.</p>\r\n<p class=\"MsoNormal\">According to the TECOM authorities, the first phase of the Innovation Hub aims to establish around 1 million square feet of workspace by Q1 2017, whereas the first phase of the Creative Community aims establish around 1.6 million square feet of workspace by 2016.   A start-up fund and competition will be launched by Q2 2015 for attracting businesses in these industries.  More than AED4.5 billion have been allocated for these new projects.</p>\r\n<p class=\"MsoNormal\"><strong>UAE Vision 2021 National Agenda</strong></p>\r\n<p class=\"MsoNormal\">The 2021 Vision seeks to place the UAE among the top countries in the world through, <em>inter alia</em>, transitioning to a knowledge-based economy and promoting innovation and research &amp; development. The relevant key indicators set for 2021 Vision have placed targets for 2021 that include the following:</p>\r\n\r\n<ul>\r\n 	<li>Global Innovation Index to rank UAE among top 20 countries up from rank 35 in 2013;</li>\r\n 	<li>R&amp;D expenditures of 1.5% from GDP as opposed to its current rate of 0.5%; and</li>\r\n 	<li>Non-Oil Real GDP Growth of 5% up from 3.5%.</li>\r\n</ul>\r\n<p class=\"MsoNormal\"></p>\r\n<p class=\"MsoNormal\"><strong>The Way Forward</strong></p>\r\n<p class=\"MsoNormal\">Strengthening the IP system is a key starting point to pave the way for an IP Eco System that supports innovation. This includes improved administrative processes in the registration of patents and doing away with formalities that may impede the smoothness of a registration process. This also entails reviewing the legislation and improving the enforcement system to enable right holders enough strength to make patent protection and litigation worthwhile. Also, R&amp;D activities normally require long term investments which involve in some cases the implementation of plants and the recruitment and training of a large amount of human capital. The operation of R&amp;D activities can take a certain number of years before it starts to be profitable and generate revenues. Therefore, the legal system has to provide sufficient security and stability to the new players including knowledge creators, diffusers and investors to deploy their businesses and money inside the country.</p>\r\n<p class=\"MsoNormal\">The new initiatives taken by the UAE authorities are designed to accelerate the rate of innovation to move towards a sustainable knowledge-based economy. The UAE’s economy, so far dominated by Oil &amp; Gas, will require new sets of capabilities to function as a knowledge based economy, including physical, social and human capital.  An innovation based economy will need to have the right infrastructure to create knowledge in the first place and then to diffuse, exploit and absorb the knowledge.  In order to create knowledge, the UAE will have to focus on attracting new talents and innovation-based businesses inside the country, in addition to strengthening its existing local capabilities for producing knowledge.</p>\r\n<p class=\"MsoNormal\">The creation of free zones specially designed for innovation based companies, such as the Dubai Innovation Hub, is certainly an important step forward to achieve this goal.  However it is believed that this initiative will need to be supported by direct investments in order to achieve a rapid change. The UAE government will need to invest heavily in research &amp; development activities in both the public and private sectors and deploy accelerator and incubator bodies throughout the country for funding and supporting the creation of start-ups in the field of innovation.  As SMEs are the engine of any successful economy, it is believed that these businesses should be placed at the centre of the government’s attention.</p>\r\n<p class=\"MsoNormal\">Funding such activities will indeed be costly on the UAE government and adequate return on investment strategies will have to be put in place based on the socio-economical reality of the country. For example, the government can require the funded entities to reinvest a certain percentage of their revenues generated using the governmental funds for instance the creation of new lines of innovative products and services or for the commercialization of the generated products inside the country.</p>\r\n<p class=\"MsoNormal\">The creation of knowledge will then need to be followed by adequate measures for allowing the diffusion, absorption and exploitation of new technologies within the country.  The UAE market is considered to be a small market which generally does not provide sufficient incentives for large businesses for protecting their intellectual property and commercializing their innovations inside the country.  The UAE will have to work out new economical strategies to change this reality in order to attract not only knowledge creators but also to enhance knowledge diffusion and exploitation inside the country.  The UAE can for example work out new trade agreements with neighbouring countries, perhaps beginning with the GCC countries, for facilitating the free trade of innovations within these countries.  A recommended scheme would be to allow the free trade of innovative products developed and patented within one of the member countries.  It is believed that such an action would have a rapid impact in attracting technology players to the UAE.</p>'),
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(93670, 5088, 'content', 'February 2015\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">The economies in the Arabian Gulf continue to grow rapidly, despite instability and unrest afflicting their neighbouring countries in the Middle East. The Arabian Gulf countries are the members of the Gulf Cooperation Council (“the GCC”) namely Saudi Arabia, the United Arab Emirates, Kuwait, Qatar, Bahrain and Oman. These GCC countries are collectively important for any business with global aspirations and ambitions.</p>\r\n<p class=\"MsoNormal\">According to the International Monetary Fund (“IMF”), in the five year period following the financial crisis of 2008, the real gross domestic product of the GCC countries grew by 24 per cent – a stark contrast to negative growth experienced over the same period in the UK and in the Eurozone countries.</p>\r\n<p class=\"MsoNormal\"><strong>Growth Drivers in the Arabian Gulf</strong></p>\r\n<p class=\"MsoNormal\">This impressive growth in the Gulf was made possible by high oil and gas reserves and prices over most of the period since 2008, coupled with a willingness on the part of governments in the region to increase spending and to move aggressively to diversify their economies away from energy production. High rates of government expenditure continue in most GCC countries, as governments invest these significant oil and gas reserves to boost social services and infrastructure. At the time of writing the outlook for oil prices was uncertain, but the major producers have built significant reserves from big surpluses over recent years, so in the short-term public spending should not be affected.</p>\r\n<p class=\"MsoNormal\">Aside from these advantages, all GCC countries have rapidly increasing populations. The IMF also reported that between 2008 and 2013 the population of the GCC countries grew by a staggering 18.9 per cent, emphasising the youthful demographic.</p>\r\n<p class=\"MsoNormal\">Importantly, most of the Gulf countries are zero tax or low tax jurisdictions. Labour markets are flexible, and local businesses import and deploy expatriate workers across a wide spectrum of skilled and unskilled occupations (literally from labourers to rocket scientists). Under the GCC legal systems, residency visas are linked to employment contacts and are generally weighted in favour of employers.</p>\r\n<p class=\"MsoNormal\">Despite the political unrest across the wider Middle East, all the GCC countries seem politically stable at present, with only Bahrain having a recent history of civil disorder and sectarian political issues.</p>\r\n<p class=\"MsoNormal\"><strong>What are the Critical Issues for Foreign Investors in the GCC?</strong></p>\r\n<p class=\"MsoNormal\">All GCC countries impose restrictions on the level of foreign ownership and control in local businesses. These restrictive rules often pose a challenge for foreign investors when setting up companies or businesses in the GCC; or when investing in established GCC companies.</p>\r\n<p class=\"MsoNormal\">The foreign investment rules are intended to protect national entrepreneurs and to limit foreigners to minority ownership positions. Foreign investors usually have two options.</p>\r\n\r\n<ul>\r\n 	<li>pursue the path of joint venture – the investor identifies a local company which will contribute to the business, share any financial risk and facilitate business development and operations on the ground; or</li>\r\n 	<li>conclude arrangements with a local businessman (or company) who will become a partner in name only; even where such a local partner owns 51% of the company, the foreign investor will put in place side agreements which allow the foreign partner to retain almost all the profit, carry all the risk and exercise full control over the business.</li>\r\n</ul>\r\n<p class=\"MsoNormal\"></p>\r\n<p class=\"MsoNormal\">Both types of arrangements are extremely common throughout the region.</p>\r\n<p class=\"MsoNormal\">The restrictions on foreign ownership go hand in hand with a prescriptive business licensing regime which prevails in all the GCC countries. Any business must obtain a “<em>gateway</em>” licence to carry on business from the government authorities. This is a substantive approval process and applicants must demonstrate that they have employed staff with appropriate skills and experience and track record to operate the business. Highly regulated types of business (e.g. healthcare and education) also require further regulatory approvals and licences to be obtained, in addition to basic “<em>gateway</em>” licences.</p>\r\n<p class=\"MsoNormal\"><strong>What is the best way to conduct due diligence on potential investment targets?</strong></p>\r\n<p class=\"MsoNormal\">Foreign investors find it difficult to identify targets for acquisition or partnership in the Middle East, let alone conduct detailed due diligence on their targets. In Western countries it is normal to elicit considerable background information about target companies from corporate registers, real estate registers, court registers, credit checks and other public sources. However, in the GCC countries, not much information is recorded on public registers, there is no accessible credit reporting system (except in Bahrain) and most of the information maintained is not available is not available to the public or to any third party.</p>\r\n<p class=\"MsoNormal\">This lack of publicly available records makes it difficult to source or corroborate reliable information from public sources to verify basic facts about the target. It is usually necessary to rely wholly on information and documents furnished by the prospective seller.</p>\r\n<p class=\"ET1Bodytext\"><strong>SAUDI ARABIA</strong></p>\r\n<p class=\"MsoNormal\"><strong>Deals in Saudi Arabia – Mixed Messages</strong></p>\r\n<p class=\"MsoNormal\">Saudi Arabia is the biggest economy and market in the GCC. So it offers the greatest rewards but also presents significant challenges in making investments. Politically, Saudi Arabia is stable at present and business activity is strong, although a major crackdown on expatriate workers without proper visas has led to labour shortages in some sectors, particularly in the building industry.</p>\r\n<p class=\"MsoNormal\">The gateway to foreign investments is the Saudi Arabian General Investment Authority (“<strong>SAGIA</strong>”), a regulatory body which must approve any foreign investment application from outside the GCC countries.</p>\r\n<p class=\"MsoNormal\">SAGIA was established in 2000.  It administers a foreign investment regime dependent on the issue of foreign investment licences by SAGIA.</p>\r\n<p class=\"MsoNormal\">For those foreign businesses wanting to carry on a business activity in Saudi Arabia, they can only do so if they have a legal presence in Saudi Arabia and they have a foreign investment licence which authorises that activity to be conducted.</p>\r\n<p class=\"MsoNormal\">Foreign investors may acquire ownership of business in all sectors of the economy subject to two broad qualifications:</p>\r\n\r\n<ul>\r\n 	<li>Foreign investment is not allowed in oil exploration, drilling and production (although there is no prohibition on foreign investment in refining and petrochemical development).</li>\r\n 	<li>The Foreign Investment Law identifies a number of business activities reserved for Saudi owners. This is referred to as the “Negative List”.</li>\r\n</ul>\r\n<p class=\"MsoNormal\">After a liberal beginning to the SAGIA administration about three years ago there was a change in leadership at SAGIA which led to a tightening of foreign investment rules. SAGIA is now selective about the applications it approves. Nevertheless, for many business activities it is feasible to achieve foreign ownership up to 75%. Foreign investors may be allowed to own up to 100% of the capital of the enterprise.  However, there are some business activities where at least some level of Saudi ownership would be required.</p>\r\n<p class=\"MsoListParagraph\">But it is easier to secure approval if your investment is large; or is viewed as bringing new technology or significant job creation to Saudi Arabia.</p>\r\n<p class=\"MsoNormal\">Foreign players can often gain access to the Saudi market without carrying on a business in Saudi Arabia.  In many cases, the restrictions on foreign ownership encourage companies to enter into distribution, commercial agency and franchise arrangements with parties allowed to carry on those businesses in Saudi Arabia.  The foreign company will not need a foreign investment licence to enter into these arrangements and won’t need to establish a legal presence in Saudi Arabia.</p>\r\n<p class=\"ET1Bodytext\"><strong>THE UNITED ARAB EMIRATES</strong></p>\r\n<p class=\"MsoNormal\"><strong>Deals in the United Arab Emirates (Dubai and Abu Dhabi) – Business is Brisk</strong></p>\r\n<p class=\"MsoNormal\">Business in the UAE is extremely positive. Dubai in particular has reinforced its position as the leading financial centre in the region as a result of its superior lifestyle and infrastructure, coupled with its unequalled air transport connections with the region and the rest of the world. Dubai is a major beneficiary of the difficulties elsewhere in the Middle East. It is now the major tourist destination and focus for property investment in the region.</p>\r\n<p class=\"MsoNormal\">Abu Dhabi is likewise constructing the first offshoot of the iconic Louvre Museum and a new Guggenheim Museum, has built theme parks and significantly upgraded its hospitality and transport infrastructure (including the beginning of a trans-Arabian railway network). There is also a major port and industrial zone being developed in Abu Dhabi near the main freeway between Abu Dhabi and Dubai.</p>\r\n<p class=\"MsoNormal\">The UAE has pioneered the development of economic free zones, which are designated areas within urban or industrial precincts where foreign investors are permitted to set up 100 per cent owned companies and businesses. UAE free zones, particularly those in Dubai and Ras Al Khaimah, have been very successful and a staggering array of businesses operates from the free zones, ranging from manufacturers to banks and consulting firms. However, there are strict limitations on the types of business activities which can be conducted from free zones. Also, to set up in a free zone, it is necessary to buy or lease premises in the free zone areas.</p>\r\n<p class=\"MsoNormal\">One sector that is currently seeing exceptional growth in the UAE, particularly in Abu Dhabi, is the healthcare industry.  It is forecast that over the next few years, due to factors such as the rapidly expanding population, greater public awareness of medical conditions and treatment available, higher incidence of lifestyle diseases and deeper insurance penetration, this sector will continue to grow exponentially (becoming a $12bn industry by 2015 according to the Dubai Chamber of Commerce &amp; Industry).</p>\r\n<p class=\"MsoNormal\">The UAE seeks to promote itself through the development of healthcare tourism, attracting patients to its premium facilities from around the region.  The Government and the government-subsidized insurance schemes also recognize the opportunity to save costs by treating the national population at home, rather than paying for expensive treatment abroad as has been common previously.  This forecast growth has fuelled a significant increase in both public and private sector investment in healthcare facilities with high-profile names, such as Cleveland Clinic, John Hopkins and Mayo Clinic now operating in the UAE.</p>\r\n<p class=\"MsoNormal\">The UAE’s non-oil sectors expect continued growth in 2015, driven by strong real estate development activity, tourism, leisure and retailing buoyancy and a continuation of major infrastructure projects.</p>\r\n<p class=\"ET1Bodytext\"><strong>KUWAIT</strong></p>\r\n<p class=\"ET1Bodytext\"><strong>Deals in Kuwait – Building Infrastructure is the Key</strong></p>\r\n<p class=\"ET1Bodytext\">Of all the GCC countries, Kuwait is closest geographically to the serious ongoing violence in the region, as it has a long land border with Iraq. However, the GCC’s only parliamentary democracy remains relatively stable and prosperous. It retains significant oil reserves.</p>\r\n<p class=\"ET1Bodytext\">The government of Kuwait has vast foreign assets, but much of the local infrastructure is overdue for overhaul and enhancement. However, it continues to take time for the political processes to work through how Kuwaiti’s plentiful sovereign resources will be spent. This long-delayed “<em>makeover</em>” of Kuwait and its infrastructure will act as a major stimulus as it emerges over time.</p>\r\n<p class=\"ET1Bodytext\">In response to its growing need for robust local infrastructure projects, the Kuwait government passed the country’s first PPP (Public Private Partnership) and IWPP (Independent Water Power Plant) laws in 2008 and 2010 respectively.  On the heels of the passing these laws, Kuwait embarked on a mission to procure numerous midsize and large infrastructure projects under a PPP regime.  The PPP projects anticipated by the issuance of these laws cross a business areas that include (but are not limited to) electricity and power, waste water management, transportation, communications, hospitality, healthcare and land development within the State of Kuwait.</p>\r\n<p class=\"ET1Bodytext\">The aim of the PPP Law is to create wider ownership in larger projects (i.e. to shift the development cost burden away from the government and toward private investors), while giving the investor management control of the joint stock company and the project. Since the PPP Law was passed in 2008, over $25 billion worth of projects have been announced and significantly more are expected to be announced over the next few years as Kuwait sets out to expand and diversify its economy.</p>\r\n<p class=\"ET1Bodytext\">In January 2014, Kuwait reached financial close on the Az Zour North Independent Water &amp; Power Project, Kuwait’s groundbreaking PPP/IWPP project.  Considered as Kuwait’s flagship infrastructure project under the PPP and IWPP laws, the $1.8 billion project will result in the construction of combined cycle power plant and associated water desalination plant.</p>\r\n<p class=\"ET1Bodytext\">To improve upon gaps in the PPP regime and lessons learned following the success of the Az Zour North project, Kuwait recently passed a new PPP law, which is more flexible and conducive to attracting foreign private investment.  As such, Kuwait believes large infrastructure projects to gain momentum, including projects such as the Umm Al Hayman Wastewater Treatment Plant, Az Zour North Phase 2 IWPP, Al Abdaliyah Integrated Solar Combined Cycle Plant and Al Khiran IWPP amongst many others in the pipeline.</p>\r\n<p class=\"ET1Bodytext\"><strong>QATAR</strong></p>\r\n<p class=\"ET1Bodytext\"><strong>Deals in Qatar – Countdown to the World Cup</strong></p>\r\n<p class=\"MsoNormal\">Qatar is the wealthiest country in the GCC per capita and enjoys vast gas reserves. There have been major new developments in Doha and important cultural attractions established (such as the magnificent Islamic Art Museum). However the real stimulus to activity in Qatar is expected to be the major infrastructure which must be built to permit the staging of the 2022 World Cup.</p>\r\n<p class=\"MsoNormal\">The country’s economic progress has slowed following a change in leadership in 2013 (the old Emir stepped down in favour of his son) as the government and the publicly owned businesses continue to digest the implications of the change.  However, the World Cup infrastructure has an implacable deadline for completion, so significantly increased activity is expected in the near future.</p>\r\n<p class=\"MsoNormal\">The Qatar railway project is also underway with contracts now filtering downstream.  The Msheireb “Heart of Doha” project re-vamping the old central business district is making significant progress; and development of the new Doha satellite city of Lusail is expected to move up a gear during the next 12 months.</p>\r\n<p class=\"MsoNormal\">Whilst infrastructure works are proceeding, the policy of attracting industrial activity to the country has not achieved significant success.  Difficulties with registration of businesses with over 49% foreign-ownership and slow paced industrial licensing are proving to be significant hurdles and the under-developed state of Qatar’s industrial zones are hampering efforts to attract the larger players in the manufacturing industry.</p>\r\n<p class=\"MsoNormal\">Significant mergers and joint ventures in Qatar are still largely driven by governmental initiatives.  The Qatar Exchange is now wholly-owned by the sovereign wealth fund entity - Qatar Holding. There are still proposed mergers and strategic consolidations being considered by government entities and Qatar Petroleum and its subsidiary organisations are involved in joint ventures with a number of global companies.  Despite encouragement from various sources, new listings on the Qatar Exchange are few and far between and the capital markets lag behind largely more buoyant regional financial markets such as the UAE and Saudi Arabia.</p>\r\n<p class=\"ET1Bodytext\"><strong>BAHRAIN</strong></p>\r\n<p class=\"ET1Bodytext\"><strong>Deals in Bahrain – All Investors Welcome</strong></p>\r\n<p class=\"MsoNormal\">Bahrain has long established roots in international trade and in 1932 it was the first GCC country to discover significant oil reserves. Over the past 40 years Bahrain has put in the place foundations for a modern economy. As Bahrain no longer has significant oil reserves like some of its GCC neighbours, is has moved away from dependence on oil, diversifying into other sectors. During the 1980s and 90s, it was seen as the banking hub of the GCC.</p>\r\n<p class=\"MsoNormal\">Bahrain has close ties with the US and is the first and only GCC state to have a bilateral Free Trade Agreement with the US, which came into force in 2006. As a result, there are few restrictions for US individuals and companies wanting to do business in Bahrain. Bahrain is also home to the US Navy’s Fifth Fleet.</p>\r\n<p class=\"MsoNormal\">There are many advantages to doing business in Bahrain. It has a relatively liberal lifestyle compared to some other countries in the GCC, e.g. Saudi Arabia and Kuwait. It is strategically positioned between Saudi Arabia (to which it is connected to by a causeway), Qatar and Kuwait. It has a well developed legal system with relatively advanced companies law, financial services laws and even a trust law. It has well developed sectors in financial services, manufacturing, professional services, logistics and ICT. It has a relatively liberal foreign investment ownership regime with no restrictions on foreign investors in certain sectors and no restrictions on US investors at all. Bahrain also has an educated and diversified work force comprising both expatriates and Bahrainis. Like all other GCC states, Bahrain is tax free in most sectors of industry.</p>\r\n<p class=\"MsoNormal\">Bahrain’s Economic Development Board is responsible for attracting inward investment into Bahrain and is charged with leading implementation of the Government’s 2030 Economic Vision.</p>\r\n<p class=\"MsoNormal\">Bahrain was affected adversely by the Arab Spring and in 2011 an attempted uprising took place as a result of a latent sectarian divide between the Shia majority and the Sunni monarchy. The uprising expressed in some civil disorder and a degree of political violence. The situation has however stabilised in recent months. Bahrain is acutely aware of the loss of business and investor interest which has been a side effect of the recent disorder and as a result it has become increasingly investor and business friendly, whilst also trying to address its political issues.</p>\r\n<p class=\"MsoNormal\"><strong>OMAN</strong></p>\r\n<p class=\"ET1Bodytext\"><strong>Deals in Oman – An Oasis of Stability</strong></p>\r\n<p class=\"MsoNormal\">The Sultanate of Oman has a long record of political stability under the dynasty of Sultan Qaboos and continues to be on good terms with all its neighbours. Major industrial development is occurring at Sohar, whilst near the capital Muscat there is outstanding hospitality infrastructure on the coast, catering to travellers who prefer five star resorts.</p>\r\n<p class=\"MsoNormal\">The legal infrastructure is likewise good and the Government has made a comprehensive assessment of the investment sector to define the obstacles and challenges faced by the existing legal framework.  Oman offers attractive investment concessions to US nationals and US companies under treaty arrangements designed to create a more market friendly environment for US investors.</p>\r\n<p class=\"MsoNormal\">Oman was ranked above Saudi Arabia, Bahrain and the United States of America in the 2014 Global Peace Index put together by the Institute of Economics and Peace, ranking 59th out of a total of 162 countries.  The Index of Economic Freedom 2014, an indicator of ease of doing business, ranked Oman 48th out of 178 countries.  Moody’s and Standard and Poor’s both view Oman’s investment outlook as stable and have reaffirmed Oman’s A1 and A/A1 sovereign credit rating respectively.</p>\r\n<p class=\"MsoNormal\">Oil exports remain the major source of foreign earnings and significant revenue earnersfor the Sultanate; the impact of depressed oil prices towards the end of 2014 on the economic health of the Sultanate is yet to be seen.  It is likely that marginal infrastructure projects will re-evaluate or postponed whilst the oil price continues to fluctuate.</p>\r\n<p class=\"MsoNormal\">The Sultanate’s finite oil resources have propelled the Government of Oman to embark on a strategy of economic diversification to lead the Sultanate away from an economy driven by oil to one more reliant on tourism, real estate and trade (through better utilisation of its geographic positioning as the gateway to Asia).  World Bank projections indicate growth in GDP of 5% during 2015, making the Sultanate an attractive market for investment.</p>\r\n<p class=\"MsoNormal\"><em>This article was originally published in The American Lawyer’s Global M&amp;A Guide, 2015</em></p>'),
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(93707, 5091, 'content', 'March 2015\r\n\r\n<hr />\r\n\r\nThe Plaintiff insured a cargo of pipes, which were shipped by the First Defendant. However, 238 pipes of the cargo were damaged when they arrived at their destination. The judgment of Abu Dhabi Court of First Instance was issued in favour of the Plaintiff and against the Third Defendant only, but it was then reversed by Abu Dhabi Court of Appeal in December 2014. Al Tamimi &amp; Company represented the Appellant (the Third Defendant) in the successful appeal.\r\n\r\n<strong>Background: </strong>\r\n\r\nOn 26 September 2013 the Plaintiff brought an action against the Defendants seeking damages in the sum of USD 191,330 for the damaged pipes, AED 31,484 for the costs and fees of loss adjusters and 12% as legal interest from the date of the claim until the full payment is made.\r\n\r\n<strong>The Nature of the Claim: </strong>\r\n\r\nThe Plaintiff insured a cargo of pipes which were shipped from China to Zayed Port in Abu Dhabi by the Defendants. When the cargo arrived at Zayed Port, 238 pipes were damaged.  Moreover, the Plaintiff, as the insurer of the cargo, compensated and paid the insured (the consignee) for the damaged pipes. Therefore, the insured provided the Plaintiff with a subrogation letter which gives the Plaintiff the right to file a claim against the responsible parties for the damaged pipes and recover the compensation amount. The Plaintiff estimated its loss at USD 237,788; however, it managed to mitigate its losses by selling the damaged pipes in the amount of USD 46,458.\r\n\r\nAccordingly, the Plaintiff filed an action with Abu Dhabi Court against the Defendants seeking compensation and asking the Court to order the Defendants to pay the sum of USD 191,330 in additional to 12% interest from the date of the claim until the full payment is made, as well as AED 31,484 as the loss adjusters’ fees.\r\n\r\n<strong>The Plaintiff based its claim on the following Articles:</strong>\r\n\r\n<strong>Article (275/1) of the UAE Maritime Commercial Law 198 which provides:</strong>\r\n\r\n“The carrier shall be responsible for loss or damage sustained by the goods during the period from the time he takes delivery of the goods at the port of loading to the time he delivers the same to the person having the right to them at the port of discharge…”\r\n\r\n<strong>Article (1030) of the Civil Transactions Law which provides:</strong>\r\n\r\n“It shall be permissible for the insurer to take the place of the assured in respect of any indemnity paid to him for loss, in bringing the claim of the assured against the person who caused the loss out of which the liability of the insurer arose, unless the person who caused the loss was an ascendant or descendant of the assured, or his spouse, or somebody living in one household with him, or a person for whose acts the assured is responsible.”\r\n\r\n<strong>Article (398) of the UAE Maritime Commercial Law 198 which provides:</strong>\r\n\r\n“The insurer shall be subrogated up to the extent of the payment of compensation that he has made to rights and claims which the insured may have arising out of losses included in the insurance.”\r\n\r\n<strong>Abu Dhabi Court of First Instance:</strong>\r\n\r\nAbu Dhabi Court of First Instance found the Third Defendants to be responsible for compensating the Plaintiff for the damaged pipes, and the Court reached its decision on the following grounds:\r\n<ul>\r\n 	<li>The carrier shall be responsible for loss or damage sustained by the goods during the period from the time he takes delivery of the goods at the port of loading to the time he delivers the same to the person having the right to them at the port of discharge, unless it is proven that the said damage or destruction is not attributable to default of the carrier or those working under him or his representative (Article 275 of the UAE Maritime Commercial Law);</li>\r\n 	<li>It is established that the carrier by sea might be the owner, the charter or the operator of the vessel that signs, issues, stamps the bill of lading and undertakes to carry the goods from one port to another in consideration of freight. (Article 256 of the UAE Maritime Commercial Law);</li>\r\n 	<li>The bill of lading shall be the evidence of the contact of carriage, as it contains all the terms that determine the obligations of the parties, including the obligations of the carrier.  Moreover, the bill of lading shall be deemed to be evidence of the particulars contained therein (including the name of the carrier) as between the carrier and the shipper and with regard to third parties. Also, it shall not be permissible to the carrier to prove the contrary of what is stated in the bill of lading against third parties including the consignee of the goods who is acting in good faith. (Articles 257 and 266 of the Maritime Commercial Law); and</li>\r\n 	<li>The bill of lading shows that the Third Defendant is the carrier that undertook to deliver the pipes to the consignee, as the said bill of lading was issued on the Third Defendant’s papers. (It is worth nothing that the bill of lading in this case was a clean bill of lading and there were no reservations endorsed by the carrier).</li>\r\n</ul>\r\nAccordingly, Abu Dhabi Court of First Instance rendered its judgment in favour of the Plaintiff and ordered the Third Defendant to pay damage to the Plaintiff in the amount of AED 702,181, in addition to a legal interest at the rate of 5% from the date the judgment becomes final and until the full payment is made including all expenses and fees.\r\n\r\nA<strong>bu Dhabi Court of Appeal:</strong>\r\n\r\nThe Third Defendant filed an appeal to challenge the Court of First Instance’s judgment. The Third Defendant argued that the case of the Plaintiff shall be dismissed, as the Plaintiff filed his claim with the Court after the expiry of a period of one year from the date of delivery of the goods by virtue of Article (287) of the UAE Maritime Commercial Law.\r\n\r\nAlternatively, the Plaintiff did not provide the Court with any evidence to prove that the pipes were damaged during the shipment of the goods.\r\n\r\nAdditionally, the pre-shipment survey report and the consultancy survey report that were submitted by the Plaintiff did not prove that the pipes were damaged during the shipment of the goods by the carrier.\r\n\r\nAlso, such reports confirmed that some of pipes were rusty, scratched, bent and some parts of the pipes were missing and broken before the shipment.\r\n\r\nMoreover, although the presumption under Article (275) of UAE Maritime Commercial Law is that the carrier shall be responsible for loss or damage sustained by the goods during the period from the time he takes delivery of the goods at the port of loading to the time he delivers the same to the person having the right to them at the port of discharge, Article 281 of the said Law requires the recipient of the damaged goods to give a written notice to the carrier or his representative at the port of discharge before or during delivery of the damaged goods. Otherwise, it will be presumed that the goods have been delivered to him in the condition as set out in the bill of lading, unless evidence to the contrary is presented.  Since the bill of lading was clean and did not contain any reservations, as well as the Plaintiff didn’t submit to the Court any evidence that some pipes in the cargo were damaged at the port of delivery, the case should be dismissed for lack of evidence.\r\n\r\nAbu Dhabi Court of Appeal accepted the Third Defendant’s appeal, cancelled the Court of First Instance’s judgment and dismissed the Plaintiff’s case.\r\n\r\nAbu Dhabi Court of Appeal ruled that it is established by Article (281) of the UAE Maritime Commercial Law that in the event that part of the goods is lost or damaged the recipient of the same must give written notice to the carrier or his representative at the port of discharge before or during delivery of the destruction or loss of the goods, otherwise it will be presumed that they have been delivered to him in the condition set out in the bill of lading until evidence to the contrary is given.\r\n\r\nFurthermore, Abu Dhabi Court of Appeal pointed out that the pre-shipment survey report shows that some pipes were rusty, scratched, bent and some parts of the pipes were missing and broken before the shipment. The consultancy report that was submitted by the Plaintiff before Abu Dhabi  Court of First Instance also does not confirm that the cause of the damage to the pipes was attributable to the Third Defendant (“Carrier”) rather that it mentions the value of the damaged pipes.\r\n\r\nAccordingly, the Third Defendant is not liable for the damage to the pipes.\r\n\r\n<strong>Comment:</strong>\r\n\r\nThe presumption under the UAE Maritime Law is that the carrier shall be responsible for loss or damage sustained by the goods during the period from the time he takes delivery of the goods at the port of loading to the time he delivers the same to the person having the right to them at the port of discharge, unless it is evidenced that the said damage is attributable to force majeure factors or not attributable to default of the carrier or his workers and/or representatives.\r\n\r\nAdditionally, if the recipient of the damaged goods does not give written notice of the damage sustained to the goods to the carrier or his/her representative at the unloading port before or during delivery of the damaged goods, the presumption will be that the goods have been delivered to him in the conditions set out in the bill of lading, unless evidence to the contrary is presented or if the damaged goods have been inspected at the time of delivery in presence of the acrrier or his representitive and the person taking delivery of the good.\r\n\r\nTherefore, if a clean bill of lading is issued by a carrier and the shipped goods by the carrier arrive at the port of discharge damaged, and yet the recipient of the damaged goods does not give written notice to the carrier or his/her representative at the unloading port confirming that the goods are damaged and/or lost, the assumption shall be that the goods arrived at the port of discharge in the conditions set out in the bill of lading (undamaged). Furthermore, the assumption that the carrier is responsible for the damage sustained to the goods under Article (275) of UAE Maritime Commercial Law, shall be vulnerable and rejected. Unless the recipient of the goods proves that the damage sustained to the goods is attributable to the carrier.\r\n\r\nNotwithstanding the above, it is worth mentioning that the judgment of the Court of Appeal has been appealed by the Plaintiff before the Cassation Court.'),
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(93730, 5092, 'content', 'March 2015\r\n\r\n<hr />\r\n\r\nThe Dubai Courts have dealt with thousands of cases of off plan purchasers suing developers about the delays and either seeking to get their money back or to get compensation for those delays.\r\n\r\nBut how long of delay must there be before a purchaser has the right to terminate? In Dubai Court 41/2012 Cassation court the court discussed the time at which the right for the purchaser to seek termination is acquired and the materiality of the breach by the developer in not handing over the unit in the agreed date.\r\n\r\n<strong>Background</strong>\r\n\r\nThe Claimant bought a villa from the Defendant (a developer) on in 2006 for AED 4 million to be paid in installments. It was agreed in the contract that the villa would be delivered in December 2007.\r\n\r\nIn September 2007, the Defendant asked the Claimant to delay the next installment because the project’s delivery date was delayed to June 2008. The Claimant sent a notice to the Defendant stating that if they did not honor the new delivery date, he would terminate the contract and claim reimbursement.\r\n\r\nThe Defendant did not deliver the villa by June 2008, and the Claimant filed a claim in the Court of First Instance. The Claimant relied on Articles 246(1) of the Civil Code which states:\r\n\r\n<em>(1) The contract must be performed in accordance with its contents, and in a manner consistent with the requirements of good faith.</em>\r\n\r\nThe Court of First Instance ruled in favor of the Claimant, citing that the Defendant failed to deliver the villa on the date that was agreed upon, and ordered the termination of the contract and for the Defendant to pay the Claimant AED 3,477,701 plus 9% interest from the time the claim was filed until the Claimant is fully reimbursed.\r\n\r\nThe Defendant then appealed the decision in the Court of Appeal. The Court appointed an expert to the case. After receiving the expert’s report, the Court of Appeal issued its judgment overturning the Court of First Instance’s decision. The Court of Appeal cited the following reasons for its decision:\r\n<ul>\r\n 	<li>The expert’s report concluded that the Villa would be completed in 2012</li>\r\n 	<li>After the Defendant concluded its disputes with the governmental entities, it completed 70% of the villa, which the Court did not regard as a delay worthy of annulling the contract; and</li>\r\n 	<li>The Defendant’s failure to handover the villa on the agreed delivery date did not amount to a material breach of the contract</li>\r\n</ul>\r\n<strong>Cassation Ruling</strong>\r\n\r\nThe Claimant appealed the decision to the Court of Cassation. The Court of Cassation overturned the Court of Appeal judgment and issued the same ruling as the Court of First Instance.\r\n\r\nThe Court stated that grounds that the Court of Appeal relied upon were invalid as the court contradicted itself in its judgment. The Court of Appeal stated in its reasoning that the developer failed to deliver and handover the unit in June 2008, which meant that the developer breached his obligations in the contract. This should not be affected by the fact that the expert concluded that the project would be completed by 2012 in breach of the completion date that the parties agreed upon in the agreement.\r\n\r\nThe Court found that a default by the developer in the handover of the unit would entitle the purchaser to terminate the contract. In response to the developer’s argument that the purchaser did not pay the whole purchase price, the Court stated  that the purchaser may withhold payment of the balance of the purchase price even if the payment is due if there is good reason to suspect that the seller will not perform his obligation to deliver the thing sold. The Court relied on Article 247 of the Civil Code which states:\r\n\r\nIn contracts which are binding on the parties, the performance of reciprocal obligations is tied to mutual commitments. Either party may withhold performance of an obligation if the other party fails to perform his own reciprocal obligation on time\r\n\r\nThe Court also stated that a developer’s dispute with governmental entities does not excuse the developer from fulfilling its contractual duties. The right of a purchaser to withhold any payment and seek termination of the contract is established on the next day following the handover date. As such, the Court found it to be the Claimant’s right to claim reimbursement and annulment of the contract the day after the Defendant failed to deliver the villa in June 2008.\r\n\r\n<strong>Conclusion </strong>\r\n\r\nThe decision issued by the Court of Cassation has significant implications for developers who fail to deliver projects on an agreed delivery date. Proving that the project will be completed in the future may not be enough to prevent termination, and purchasers may have the right to withhold payments whilst the delay continues. Disputes with local authorities may also not be sufficient to excuse the delay in handover.\r\n\r\n<em>This article has been co authored by Khalifa Al Ansari, trainee lawyer at Al Tamimi &amp; Company.</em>'),
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(93749, 5093, 'content', 'March 2015\r\n\r\n<hr />\r\n\r\n<strong>Introduction to the UAE Federal Nuclear Regulatory Regime </strong>\r\n\r\nThis article provides an introduction to the current UAE federal regulatory framework established in preparation of the first nuclear power plant project in the Middle East.\r\n\r\n<strong>Building a nuclear power plant in the Oil-Rich UAE: Why?</strong>\r\n\r\nIn 2008, the UAE government projected its national electricity demand to grow from 15,000 MW’s in 2008 to exceed 40,000 MW’s by 2020.  Although the UAE was still counted as the 8th largest oil producing country in the world in 2014, energy sources such as oil, gas and coal are no longer viewed as viable options from a commercial and environmental perspective.  The UAE’s energy sector is viewed insufficient to meet future demand for electricity, providing adequate fuel for only 20,000-25,000 MW’s of power generation capacity by 2020.  While burning crude oil was found to be viable, the projected cost was deemed extremely high from an environmental perspective. The UAE government concluded in 2008 that nuclear power would be an acceptable alternative to meet growing domestic demand and released a policy white paper on the “Evaluation and Potential Development of Peaceful Nuclear Energy” (the “White Paper”). The UAE government currently projects that a successful nuclear scheme would reduce CO2 emissions by 12 million tonnes by 2020.\r\n\r\nIn 2009, the UAE government awarded the Korea Electric Power Corporation (“KEPCO”) led by a consortium of four KEPCO subsidiaries the project to construct and operate four nuclear power plant units in Barakah, Abu Dhabi.  The construction contract to build the four nuclear reactors was commissioned to Hyundai Engineering and Construction and Samsung C&amp;T Joint Venture.\r\n\r\nFor the past six years the UAE government has been setting up a new regulatory regime in preparation of the anticipated operation of the nuclear power plants by 2017.\r\n\r\n<strong>International Agreements for Nuclear Non Proliferation, Safety and Liability</strong>\r\n\r\nBy 2008 the UAE was already part of major international nuclear treaties related to nuclear accidents and safety, non-proliferation of nuclear weapons, test bans and suppression of acts of nuclear terrorism.  As set out in the White Paper,the UAE’s new peaceful nuclear program involved its commitment to several additional international treaties to provide assurances that the implementation of the nuclear power plant project would not pose a concern or risk to the international community.\r\n\r\nIn July 2009, the UAE signed its acceptance of the IAEA Amendment to the Convention on the Physical Protection (the “Convention”) making it legally binding for states parties to 1) protect its nuclear facilities and material for peaceful domestic use, storage as well as transport; and 2) allow expanded cooperation and rapid measures to locate and recover stolen or smuggled nuclear material, mitigate any radiological consequences of sabotage, and prevent any combat related offences.  The amendments will take effect once they have been ratified by two-thirds of the states parties of the Convention.\r\n\r\nFor the commitment to the safety of nuclear facilities and nuclear waste, the UAE acceded to the two remaining major IAEA agreements in October 2009, the IAEA Convention on Nuclear Safety and the IAEA Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management.  The UAE also ratified the IAEA Additional Protocol to Safeguards Agreement in 2010 covering the IAEA inspections of nuclear plants, facilities and operations in the UAE.\r\n\r\nIn 2012, with respect to the nuclear liability regime, the UAE ratified the Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage of 1997 and the Joint Protocol Relating to the Application of the Vienna Convention and the Paris Convention of 1988.   The Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage of 1997  expands the scope of nuclear damage to include environmental damage and preventive measures, extends the geographical scope and extends the period during which claims may be brought for loss of life and personal injury.\r\n\r\nIn July 2014, the UAE ratified the IAEA Convention on Supplementary Compensation for Nuclear Damage which is coming into force in 15 April 2015.\r\n\r\nFor the nuclear export control regime, the UAE plans to participate in the Nuclear Suppliers Group (NSG) and implement import and export control rules for nuclear equipment and technology.\r\n\r\n<strong>Establishment of the federal authority on nuclear regulations (the “Authority”)</strong>\r\n\r\nUnder the Federal Law by Decree No. (6) of 2009 Concerning the Peaceful Use of Nuclear Energy (the “Decree”), Article (4), the Federal Authority on Nuclear Regulations was established on 4 October 2009. The Authority guarantees the implementation of the responsibilities imposed on the UAE by virtues of its standing as a party to the nuclear conventions and agreements connected to the duties of the Authority by regulating the UAE nuclear sector through establishing proper security and operational conditions, accident prevention and mitigation of accidental consequences.\r\n\r\nIn addition, the Authority regulates the safe disposal and transportation of radioactive materials and oversees safety procedures for the protection of the public and the environment from unnecessary radiation risks.\r\n\r\n<strong>FANR Regulations</strong>\r\n\r\nThe Authority has so far published 21 regulations focusing on the operational needs of the Barakah nuclear facilities and continues to review and amend the regulations over a 5-year review period.  All published regulations can be accessed through the FANR official website. (www.fanr.gov.ae)\r\n\r\nThe Authority is still developing regulations for radioactive waste management and decommissioning process and is making further amendments to existing regulations to address Fukushima accident findings.  The specific regulations in development are as follows:\r\n<ul>\r\n 	<li>Decommissioning and Decommissioning Trust Fund</li>\r\n 	<li>Amendments to Design of Nuclear Power Plants</li>\r\n 	<li>Application for Operating License Extension for a Nuclear Facility</li>\r\n 	<li>Emergency Preparedness at a Nuclear Facility</li>\r\n 	<li>Regulated Material Waste Disposal and Spent Nuclear Fuel Disposal</li>\r\n</ul>\r\n<strong>Transparency: Article (9) of the Decree</strong>\r\n\r\nThe authority is required to observe the highest standards of transparency under Article (9) of the Decree and to make available to the public all information related to its work including:\r\n<ul>\r\n 	<li>all licenses and amendments, suspensions or cancellations;</li>\r\n 	<li>all valid regulations and amendments that may occur in their regard and all guidelines issued by the Authority in accordance with the Decree; and</li>\r\n 	<li>results of any investigation or inspection processes carried out by the Authority in respect to testing of materials.</li>\r\n</ul>\r\n<strong>FANR Licenses</strong>\r\n\r\nThe Authority has issued licenses for the construction of the Barakah nuclear facilities as follows:\r\n<ul>\r\n 	<li>License for Selection of a Site for the Construction of a Nuclear Facility</li>\r\n 	<li>License for preparation for a site for the Construction of a Nuclear Facility (Rev. 1)</li>\r\n 	<li>License for the Construction of Units One and Two of the Barakah Nuclear Facility and Related Regulated Activities (Rev. 1)</li>\r\n 	<li>License for the Construction of Units Three and Four of the Barakah Nuclear Facility and Related Regulated Activities</li>\r\n</ul>\r\nAs mentioned under Article (9) of the Decree as part of the transparency requirement, the Authority has issued Safety Evaluation Reports which provide review of the applications for the construction of all four reactors.\r\n\r\n<strong>Establishment of the emirates Nuclear Energy Corporation (“ENEC”)</strong>\r\n\r\nLaw No. (21) of 2009 Establishing Emirates Nuclear Energy Corporation.\r\n\r\nAs stated in Article (4) of the Decree, the Emirates Nuclear Energy Corporation (“ENEC”) was established in December 2009 with a capital of AED 370 million.  Its mandate is to develop, build, finance, operate, maintain, manage and possess nuclear reactors to be used for the peaceful purpose of energy generation, water desalination and all other relevant necessary activities including the establishment of companies for practicing such activities and commercial and industrial activities inside and outside the UAE within the scope of legally determined objectives of the Corporation subject to theDecree.\r\n\r\nAt the end of 2014, ENEC grew into an organization with over 1,300 employees, up from 64 in 2009 and is currently in cooperation with over 1,000 companies in the UAE, with the first reactor over 60% complete and on track to begin supply in 2017.\r\n\r\nIn the State of Energy Report UAE 2015, UAE’s plan is to generate 24% of its power supply needed through clean energy by 2020.   The commercial operation of Unit One is planned to commence in 2017, Unit Two in 2018, Unit Three in 2019 and Unit Four in 2020.  Once all four reactors become operative, ENEC will provide 25% of the UAE’s then anticipated electricity demand.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nWith the ratification of these major international treaties, the UAE continues to develop its domestic legal framework in compliance with its commitment to nuclear security and the physical protection of materials and facilities for its nuclear power supply commencing in 2017.  The Integrated Regulatory Review Service (“IRRS”) mission of the IAEA conducted a review of the UAE regulatory system in February 2015 concluding that FANR continues to improve the regulatory system for providing nuclear and radiation safety to the general public. Further recommendations by the IRRS included developing a national policy and strategy for the management and disposal of spent nuclear fuel and radioactive waste, and to further implement regulations for the safe transport of radioactive materials.  FANR is also developing regulations regarding administrative liabilities, decommissioning, import and export controls and operational testing surveillance and reporting procedures.\r\n\r\nThe successful establishment of a sound legal framework will prove vital to the UAE’s emerging nuclear power sector and bolster the country’s energy plan for long-term sustainable growth.'),
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(93768, 5094, 'content', 'March 2015\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">Dubai has created a number of options to encourage innovation-based companies to set up entities in Dubai in an environment that is both supportive and dynamic.</p>\r\n<p class=\"MsoNormal\">This article sets out how and why you may wish to set up an innovation-based company in Dubai.</p>\r\n<p class=\"MsoNormal\"><strong>Introduction to setting up an entity in Dubai </strong></p>\r\n<p class=\"MsoNormal\">Dubai offers multi-jurisdictional corporate setting-up opportunities. Subject to business objectives and preferred shareholding structure, businesses proposing to set up in Dubai can register in the Dubai mainland under the UAE Commercial Companies Law 1984 (“<strong>the Companies Law</strong>”), or in one of the numerous free zones available which operate under self-regulated legal regimes. If a business proposes to set up an office in mainline Dubai, it needs to comply with provisions of the Companies Law and the procedures set by the Dubai Department of Economic Development (“<strong>DED</strong>”).</p>\r\n<p class=\"MsoNormal\"><strong>Forms of corporate entities that can be set up in Dubai</strong></p>\r\n<p class=\"MsoNormal\">Generally speaking, a corporate presence can be established in Dubai (UAE mainland or a free zone) through either setting up a limited liability company (“<strong>LLC</strong>”) or a branch office. The following table sets out the differences between these two corporate entities:</p>\r\n\r\n<table class=\"MsoTableGrid\" border=\"1\" cellspacing=\"0\" cellpadding=\"0\">\r\n<tbody>\r\n<tr>\r\n<td valign=\"top\" width=\"226\"><address class=\"MsoNormal\"><strong>Limited Liability Company</strong></address></td>\r\n<td valign=\"top\" width=\"242\"><address class=\"MsoNormal\"><strong>Branch </strong></address></td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"226\"><address class=\"MsoNormal\">Provides the comfort of limited liability</address></td>\r\n<td valign=\"top\" width=\"242\"><address class=\"MsoNormal\">A branch office is an extension of its parent and is not an independent corporate entity. The liabilities of the branch are that of its parent.</address></td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"226\"><address class=\"MsoNormal\">Can set up branches</address></td>\r\n<td valign=\"top\" width=\"242\"><address class=\"MsoNormal\">A branch office cannot set up its branches</address></td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"226\"><address class=\"MsoNormal\">Can be a vehicle for directly introducing investment</address></td>\r\n<td valign=\"top\" width=\"242\"><address class=\"MsoNormal\">A branch has no share capital has cannot be a vehicle for direct investment</address></td>\r\n</tr>\r\n<tr>\r\n<td valign=\"top\" width=\"226\"><address class=\"MsoNormal\">Can have its own balance sheet and retain profits</address></td>\r\n<td valign=\"top\" width=\"242\"><address class=\"MsoNormal\">Profits made by the branch business are normally considered as the profits of its parent, and can be taxable in the jurisdiction where the parent is set up. This however is an issue you may wish to discuss with your tax advisors in the parent company’s jurisdiction.</address></td>\r\n</tr>\r\n</tbody>\r\n</table>\r\n<p class=\"MsoNormal\"><strong>Free zone versus company set up under the Companies Law in Dubai mainland</strong></p>\r\n<p class=\"MsoNormal\">The most commonly known advantage of having an entity in a free zone is the ability of foreigners to own 100 percent shares the company. This is in contrast to companies formed under the UAE Companies Law which limits foreign investments in LLCs in Dubai mainland (and also in the entire UAE) to 49 percent, where 51 percent of the shares in the company should be owned by UAE nationals (individuals) or a corporate entity wholly owned by UAE nationals.</p>\r\n<p class=\"MsoNormal\">Although there are contractual arrangements by which 100 percent beneficial ownership in shares of the subsidiary can be retained by the foreigner, the foreign entity remains shareholder of 49 percent of the LLC.</p>\r\n<p class=\"MsoNormal\">Other advantages of setting up in a free zone are as follows:</p>\r\n\r\n<ul>\r\n 	<li>No local sponsor or partner required</li>\r\n 	<li>Permitted corporate structure includes branch of a foreign company and free zone incorporated companies, with one or more than one shareholder;</li>\r\n 	<li>A simple employee sponsorship system</li>\r\n 	<li>The option to lease land and to develop it according to one’s own needs</li>\r\n 	<li>Modern and updated communication and infrastructure and facilities</li>\r\n</ul>\r\n<p class=\"MsoNormal\">Please note that strictly speaking, a free zone company cannot “carry on” activities outside the free zone. All licenses issued by a free zone authority are only valid for activities in the free zone. However, this restriction would arguably not apply where the entity in the free zone is providing services that do not involve any movement of material goods transporting out of the geographical territory of the free zone.</p>\r\n<p class=\"MsoNormal\"><strong>Establishing an entity in the innovation sector </strong></p>\r\n<p class=\"MsoNormal\"><em>Phase 1 – Research and Development </em></p>\r\n<p class=\"MsoNormal\"><em>R&amp;D activities in the mainland</em></p>\r\n<p class=\"MsoNormal\">It is possible to set up a business conducting Research &amp;Development (<strong>R&amp;D</strong>) activities in Dubai mainland. For example, the DED, which is the licensing authority in Dubai mainland, offers the opportunity to set up entities with R&amp;D activities in the life sciences sector, such as “<em>Research and Experimental Development of Natural Science</em>” which includes firms, centers or institutes specialized in elaborating studies and experimental and development research in social sciences (economics, psychology, sociology, legal sciences etc.) and human sciences (languages, arts, etc.).</p>\r\n<p class=\"MsoNormal\">As another example, the DED also offers the opportunity to set up entities with R&amp;D activities in the education sector, such as “<em>Education Technologies Research and Development</em>” which includes centers or institutes specialized in elaborating studies and experimental and development research on learning technologies.</p>\r\n<p class=\"MsoNormal\"><em>R&amp;D activities in the free zone</em></p>\r\n<p class=\"MsoNormal\">There are multiple free zones, each one being suited for specific types of businesses depending on the nature of their activities.</p>\r\n<p class=\"MsoNormal\">For example, the Dubai Biotechnology and Research Park (“<strong>Dubiotech</strong>”) is a free zone that attracts innovative activities in the life sciences sector. The park is divided into zones dedicated to various initiatives, including R&amp;D and manufacturing. The R&amp;D activities offered by DuBiotech includes entities involved with the investigation or experimentation and/or the process of transforming a scientific discovery into a commercial product, and companies that undertake methodical investigations in improving and developing scientific technologies in the relevant fields in the following sectors:</p>\r\n\r\n<ul>\r\n 	<li>Therapeutics</li>\r\n 	<li>Food</li>\r\n 	<li>Agricultural, Forestry, Horticulture</li>\r\n 	<li>Environment</li>\r\n 	<li>Medical/Scientific Devices or Equipment</li>\r\n 	<li>Specialty Supplies</li>\r\n 	<li>Diagnostics and Analysis</li>\r\n 	<li>Life Sciences Services</li>\r\n 	<li>Renewable Energy</li>\r\n 	<li>Energy Generation</li>\r\n 	<li>Energy Transmission and Distribution</li>\r\n 	<li>Energy Efficiency Equipments</li>\r\n 	<li>Air and Environment</li>\r\n 	<li>Water and Waste Water</li>\r\n 	<li>Recycling and Solid Waste</li>\r\n 	<li>Transportation</li>\r\n 	<li>Green Building</li>\r\n 	<li>Organic Products</li>\r\n</ul>\r\n<p class=\"MsoNormal\">As another example, Dubai Internet City (“<strong>DIC</strong>”) hosts approximately 1,400 companies in media and telecommunications many of which are key players in the technology industry, such as IBM, Google, Microsoft, Facebook, MasterCard and LinkedIn. Their R&amp;D activities in the telecommunications and network sector are aimed at companies that create, customize or modify networks and/or operate networks or provide relevant services designed for operating network based applications or services for themselves or third parties. Another R&amp;D activity in the Internet and Media and IT Service sector is catered to companies that create or customize discrete content, components, applications or programs for themselves or third parties.</p>\r\n<p class=\"MsoNormal\">Dubai Design District (“<strong>D3</strong>”) is a free zone catered to R&amp;D activities in the design, fashion, art and luxury sector. It is located in the heart of Dubai, adjacent to downtown Dubai<a class=\"msocomanchor\" href=\"#_msocom_1\">[r1]</a> . An interesting feature about D3 is that entities intending to set up in this free zone can apply for two licenses enabling them to operate within D3 as well as in the mainland; however the requirements for acquiring each license will remain the same.</p>\r\n<p class=\"MsoNormal\">Though there may be some similarities, there are no set standard requirements to set up a corporate entity in the R&amp;D field. The legal requirements for setting up a corporate entity for R&amp;D in Dubai would normally depend on:</p>\r\n\r\n<ul>\r\n 	<li>the type of R&amp;D activity proposed to be conducted by the corporate entity in Dubai;</li>\r\n</ul>\r\n<ul>\r\n 	<li>the jurisdiction in which the foreign innovator decides to set up the entity; either, in Dubai mainland or free zone and whether or not this activity requires any external approvals; and</li>\r\n</ul>\r\n<ul>\r\n 	<li>if the entity can be set up in one of the free zones, which free zone is chosen by the parent to set up the corporate entity. Costs associated with each set up would differ also depending on the jurisdiction.</li>\r\n</ul>\r\n<p class=\"MsoNormal\"><em>Phase 2 – Commercialization of products</em></p>\r\n<p class=\"MsoNormal\">In order to transform innovative ideas into tangible products, innovators will need to develop their new product by acquiring a license to manufacture. Depending on the subject field in question, innovators can establish their manufacturing entity in the mainland or in certain free zones which facilitate the issuance of manufacturing licenses and provide the appropriate facilities, such as a warehouse etc. The Jebel Ali Free Zone offers an industrial license, which allows innovators to import raw materials, carry out the manufacture of specified products and export the finished product outside of the free zone.</p>\r\n<p class=\"MsoNormal\">Due to the legal restrictions of doing business outside of the free zone, in order to export the finished product into mainland Dubai, the free zone entity will need to engage a distributor which is licensed in the mainland in order to distribute the product on behalf of the free zone entity.</p>\r\n<p class=\"MsoNormal\"><em>Phase 3 – Incorporation of a holding company to hold Intellectual Property (“IP”) rights</em></p>\r\n<p class=\"MsoNormal\">Intellectual property assets are generally the most valuable assets of innovation based entities.  These can include patents, trade marks, copyright, industrial designs and trade secrets.  It is fundamental for a innovation based entity to seek intellectual property protection for its assets so as to prevent competitors  exploiting or misappropriating them without its authorization.</p>\r\n<p class=\"MsoNormal\">The legal protection of intellectual property also provides their owners with a range of commercial options enabling them to license or sell these rights.  The incorporation of a holding company is a popular vehicle for owning and maintaining intellectual property. The most cost-efficient corporate vehicle for this purpose is a limited liability company in an offshore jurisdiction. However this option would only be suitable in a situation whereby the IP rights would be licensed to entities outside the UAE, since offshore companies are not issued with a license at the time of incorporation, and are not permitted to conduct any commercial activity within the UAE.</p>\r\n<p class=\"MsoNormal\">The most common free zones which offer the incorporation of offshore companies in the UAE is the Jebel Ali Free Zone (“JAFZ”) and the Ras Al Khaimah Free Zone (“RAKFZ”). An offshore company cannot maintain an office or sponsor employees. There is also no paid up capital requirement, which makes it a cost and time efficient structure to establish. Such companies are also permitted to open local bank accounts onshore in the UAE.</p>\r\n<p class=\"MsoNormal\">Offshore companies must also appoint a registered agent in the UAE, to act as the company’s registered office.  Such appointment is a statutory requirement<a href=\"#_ftn2\">[2]</a> and the registered agent is required to maintain a copy of the constitutional documents and the corporate registers of the company, which the offshore company’s registry may require to inspect from time to time.  The agent will also liaise with the registry to pay the annual maintenance fee.</p>\r\n<p class=\"MsoNormal\">This is an ideal structure for a quick and easy set up with minimum costs, for a particular purpose such as owning IP rights and licensing those rights outside of the UAE. If the intention is to license the IP rights to entities within the UAE, the proposed entity will need to acquire the relevant holding company license, either within the mainland or a free zone.</p>\r\n<p class=\"MsoNormal\"><strong>Future expectations</strong></p>\r\n<p class=\"MsoNormal\">With the UAE’s new initiative of accelerating innovation in the region, we expect a rise in investors wishing to set up their innovative business within the Emirates. For any comments or queries regarding the establishment of a corporate vehicle in the UAE, please contact Mr. Samer Qudah, Partner and Regional Head of Corporate Structuring (s.qudah@tamimi.com).   For any comments or queries regarding research &amp; development, innovations and intellectual property rights management and protection, please contact Mr. Ahmad Saleh, Regional Head of Patents &amp; Designs (ah.saleh@tamimi.com).</p>'),
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(93801, 5095, 'content', 'March 2015\r\n\r\n<hr />\r\n\r\nWhether you like it or not, if you have a brand worth protecting, it is worth hijacking and nowhere is it easier to misappropriate than in cyberspace.\r\n\r\nThe fact is that the entire world has gone digital.  Even if you have not established a strong internet presence in branding for whatever reason, it is very likely that the first thing potential consumers do upon learning of your brand is to jump on a search engine to conduct research on your brand. Your brand reputation will precede you in cyberspace. Peer review publications, industry publication, blogs, news and popular media channels. All of these media outlets are hungry for content and more likely than not, they will discover you on the internet whether you have established an active online presence or not.\r\n\r\nWith a brand reputation existing in cyberspace, enter the cybersquatter or competitor eager to misappropriate your brand wholesale or devise brands close to yours via “me – too” brands in a bid to usurp the vault of goodwill and reputation inherent in your brand.\r\n\r\nWith the proliferation of generic Top Level domains (“gLTDS”) such as .money, .party, .wtf, .fund, .legal, .poker, .dad, .cash etc. , the threat of your brand being misappropriated and appearing as a domain name of another is apparent.\r\n\r\n<strong>Strategies</strong>\r\n\r\nWe have set out a proposed two pronged strategy to combat such possible misappropriation namely:-\r\n<ul>\r\n 	<li>Registering trade marks at the Trademark Clearinghouse</li>\r\n 	<li>Maintain a watching service</li>\r\n</ul>\r\n<strong>TMCH Registration </strong>\r\n\r\nBrand owners are advised to attempt to reduce the misappropriation of their trademarks in new domains as they are released by taking advantage of the Trademark Clearinghouse (TMCH).\r\n\r\nThe TMCH is a centralized database devised by the Internet Corporation for Assigned Names and Numbers (ICANN) as part of a regime to protect brands and intellectual property rights. Basically, it comprises a central repository, which is managed by Deloitte wherein brand owners may submit their trademarks for validation. As of 22 January 2015, the TMCH has received trademarks from over 104 countries and covering 118 jurisdictions.\r\n\r\nThe trademarks that are eligible for registration include:-\r\n<ul>\r\n 	<li>Nationally or regionally registered trademarks</li>\r\n 	<li>Court validated trademarks</li>\r\n 	<li>Statute or treaty protected trademarks</li>\r\n</ul>\r\nThus, unregistered trademarks, which might be protected under the common law can only be filed at the TMCH if there is a court decision validating such trademark rights.\r\n\r\nTrademark registrations with the TMCH will be valid for one, three or five years and may be re-validated once per year or registered for multiple years in advance.\r\n\r\nThe principal advantages of this service for brand owners are twofold:\r\n\r\n<strong>Sunrise Period</strong>\r\n\r\nEach new gTLD will have a Sunrise period usually about 30 days before the actual launch i.e. a pre-launch phase during which a holder of a mark registered at the TMCH will have priority to register domain names corresponding exactly to their marks in the new gTLDs. The domain name sought to be registered must match identically to the trademark registered at the TMCH. Thus, the owner of the trademark APPLE has priority to register apple.solutions before others. Once a trademark is registered with the TMCH, trademark holders should monitor the various Sunrise periods of the different gLTDs entering into operation and use their active registrations for all new gTLD Sunrise periods to register their trademarks as domain names.\r\n\r\nBrand owners who have not registered their trademarks at the TMCH will not be able to register domain names during this Sunrise period and will need to wait until the opening of the general registration period and compete with the masses on a first come first serve basis.\r\n\r\n<strong>Claims Notification</strong>\r\n\r\nTrademark holders who have registered their trademarks with the TMCH will be provided a trademark claim notification service where the TMCH will notify a registered right holder about any new domain registration that is identical to their registered trademark(s) in the TMCH. The TMCH will also notify a potential registrant when its proposed domain name conflicts with a registered right.\r\n\r\nSuch warning notices will only be issued during the first 90 days following the launch of the gLTD to the general public.\r\n\r\nIt must be noted that the warning notices are only triggered by an identical match between the proposed domain name registration and the trademark registered at the TMCH. This means that applications by others for variants or merely similar domain names will not be notified to the brand owner.\r\n\r\n<strong>Watching</strong>\r\n\r\nThus, these TMCH services will allow brand owners preliminary monitoring advantages. However, the TMCH will not detect if someone applies for a domain name that is confusingly similar but not identical to a deposited trademark.\r\n\r\nConsequently, such a strategy needs to be complemented by a watching service for variants or merely similar domain names applied for by third parties. By engaging such a watching service, you would then be notified by the watch service provider of domain names, which may be considered to be confusingly similar to your trademarks. Such watching services are highly expert services drawing upon the skills of trademark specialists proficient in the nuances of trademark comparison rules and methodologies.\r\n\r\nBrand owners are advised to employ this two pronged strategy in combating potential misappropriation in the high seas of cyberspace as cyberspace continues to be ever increasingly populated with gLTDs. The registration of your trademarks with the TMCH will provide brand owners with benefits. Coupling this strategy with a robust watching service will bode well for brand owners as they brave cyberspace.'),
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(93820, 5096, 'content', 'March 2015\r\n\r\n<hr />\r\n<p class=\"MsoNormal\">This article considers the legal framework and some of the challenges associated with acquisitions/disposals within the pharmaceutical sector.</p>\r\n<p class=\"MsoNormal\">It is important to note that acquisitions of retail pharmacies in the United Arab Emirates (“<strong>UAE</strong>”) are subject to onerous legal licensing restrictions.  Information on pharmacy ownership structures in the UAE is not publically available and there are no published policies and practices adopted in this regard by the various local authorities.</p>\r\n<p class=\"MsoNormal\">Historically, the Ministry of Economy was the primary health/pharmaceutical authority in the UAE responsible for approving change to the ownership of all pharmacies in all the Emirates, with the exception of Abu Dhabi which is under the authority of the Health Authority Abu Dhabi.  Recently, Dubai is also no longer under the authority of Ministry of Economy, but rather the Dubai Health Authority.  The Department of Economic Development (“<strong>DED</strong>”) in each Emirate, the authority which issues the general business registration license of pharmacies, is also involved in the transfer process for pharmacies.  In the event of an acquisition or disposal, an application to transfer the license from the existing owner to the new owner must be completed and ownership may only be transferred with the consent of the relevant DED.</p>\r\n<p class=\"MsoNormal\">Each authority has its own set of policies and practices, and such policies and practices are not always publically available and change from time to time without public pronouncement. Investors should always seek to obtain updated information from the local and federal authorities at the time they envisage investing, or acquiring an entity or business in the pharmaceutical sector.</p>\r\n<p class=\"MsoNormal\">UAE Commercial Companies Law no. 8 of 1984 applies to any company established in the UAE (“<strong>Companies Law</strong>”) and UAE Federal Law no. 4 of 1983 is the primary law governing the pharmaceutical professions and institutions in the UAE (“<strong>Pharmacy Law</strong>”).  These two laws contain the primary rules and regulations that are applicable to the pharmaceutical industry and include several statutory ownership restrictions.</p>\r\n<p class=\"MsoNormal\">There are generally two types of ownership restrictions that apply to the pharmaceutical industry and are relevant to any acquisition or disposal, (1) those related to general UAE foreign ownership restrictions; and (2) those that are particular to such industry.  The local authorities permit investors to structure their investments in this sector within the limits of these ownership restrictions.</p>\r\n<p class=\"MsoNormal\"><strong>1. General Foreign Ownership Restrictions</strong></p>\r\n<p class=\"MsoNormal\">Under Article 22 of the Companies Law, foreign investors cannot own more than 49% of the share capital of a UAE company (other than in a free zone).  This is commonly referred to as the “UAE Ownership Requirement”. As a result, foreign investors usually enter into an arrangement (usually referred to as nominee arrangement) with a UAE national individual(s) or a wholly owned UAE corporate entity, whereby such UAE partner (referred to as nominee) holds 51% of a company for and on behalf of the foreign investor in a trust-like arrangement.</p>\r\n<p class=\"MsoNormal\">Such nominee arrangements are commonly used in the UAE; in fact more than half of limited liability companies in the UAE are held by foreigners in this way to comply with the mandatory UAE Ownership Requirement.  It is highly unlikely that such nominee arrangements are brought into question except in the event of a dispute between the shareholders.  Case law to date has, in most instances, enforced nominee agreements as between its parties by acknowledging the beneficial ownership of the foreign shareholder.  That said, there is also a risk that the Anti-Concealment Law no. 17 for 2004) in force is implemented strictly by the UAE authorities to prohibit nominee agreements in this sector, albeit we consider this unlikely.</p>\r\n<p class=\"MsoNormal\">As a result, a foreign investor cannot be the registered owner of more than 49% of the shares of a company that owns retail pharmacies in the UAE and will have to hold 51% of the shares through a nominee arrangement if it wishes to own more than 49%, even through a merger or acquisition.</p>\r\n<p class=\"MsoNormal\"><strong>2. Restrictions Under the Pharmacy Law</strong></p>\r\n<p class=\"MsoNormal\">When anticipating an acquisition or disposal of an entity engaged in pharmaceutical activity, investors must carefully consider the restrictions under the Pharmacy Law for (1) non-UAE nationals and (2) the number of pharmacies an individual may own.</p>\r\n<p class=\"L2\"><strong>2.1.    Foreign Ownership Restrictions</strong></p>\r\n<p class=\"Le1\">Article 19 of the Pharmacy Law explicitly states that “[…] the applicant for the [pharmacy] license should be a UAE national […]”.  The use of the term ‘applicant’ has led the various health authorities to distinguish between the “applicant of the license” (i.e. the license holder, owner of the license) from the shareholders/owners of the concerned company operating the pharmacy.  The ownership of the health license was hence separated from the shareholding in the company operating the business.  Moreover, the term “national\" has been generally interpreted by the health authorities to mean natural persons rather than corporate entities.</p>\r\n<p class=\"Le1\">Consequently, in practice, generally UAE health authorities issue the health license of a pharmacy in the name of the individual(s) local partner(s) in the concerned company or to list the said partner(s) as “owner” or “holder” of the license.  In other words, the local partner(s) is listed as the “owner” and the legal ownership of the other foreign partner(s) in the concerned company is disregarded for the purposes of the health license.  However, this practice is not applied across the board consistently by the various health authorities.  We have come across health licenses listing the concerned company as the “owner” or “holder” of the license with the local partner as its representative.  That said, the above mentioned practice remains the most common one in use.</p>\r\n<p class=\"Le1\">The risks with the approach of listing a natural person holding a UAE nationality as the “owner” on the health license, in practical terms, arise from the fact that an entity is operating under a health license they do not technically own, even if they are listed as a beneficiary or covered under the “establishment name” on the said health license. Further, the holder of the health license being a natural person enhances the risk of business operations being interrupted in the event of his incapacity or demise.</p>\r\n<p class=\"Le1\">As a result, when purchasing or disposing of any company carrying out pharmaceutical activities, whether the foreign investor enters into a real partnership with the existing UAE national partner or engages a new UAE national as its nominee, the health licenses of any of the pharmacies it operates must mention the name of the UAE national who is a direct or indirect partner in the business.</p>\r\n<p class=\"L2\"><strong>2.2.    Restrictions on the Number of Pharmacies</strong></p>\r\n<p class=\"MsoNormal\">Article 26 of the Pharmacy Law explicitly states that a UAE national is permitted to operate no more than two pharmacies in the UAE.  From a strict legal perspective, a person cannot hold more than two health licenses to operate a pharmacy.</p>\r\n<p class=\"MsoNormal\">The Abu Dhabi Health Authority, strictly enforce this provision. However, the health authorities in other Emirates are more flexible on this issue, and grant more than two health licenses to the same person. In some instances, an exemption is sought and a “chain” approval is obtained to facilitate the conduct of merged pharmacy business. We have encountered multiple instances where more than two health licenses have been issued to the same individual.</p>\r\n<p class=\"ET4\">Even though having more than two health licenses issued in the name of the same person is not in strict compliance with Pharmacy Law, the Pharmacy Law does not provide for any explicit sanction for the breach of the above provision. The sanction for a general violation of the said law is limited to a fine of a maximum of AED 5,000.  The fact that the health authorities are granting multiple licenses to the same person reduces the risk of such health authorities cancelling the multiple licenses they have granted or applying sanctions.  However, there is no guarantee that these authorities will continue to authorize such practice.<strong><em> </em></strong></p>\r\n<p class=\"MsoNormal\">Hence, when considering the acquisition of or merging with a company carrying out pharmacy activities, an investor must consider the restrictions set out in the Pharmacy Law concerning the ownership of the health license and the number of health licenses which may be issued to a UAE national.</p>\r\nIn conclusion, whilst it is possible for an investor to acquire a retail pharmacy business in the UAE, there are intricate regulatory and legal steps which require careful consideration and planning.'),
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(93835, 5097, 'content', 'March 2015\r\n\r\n<hr />\r\n\r\nThe annual Arab Health Conference, which takes place each January in Dubai, is undoubtedly the most well attended healthcare sector conference in the GCC.\r\n\r\nFollowing the DHA announcement that ‘Smart Clinics’ would be at the center of healthcare strategy for 2015,  the legal aspects of e-health and telemedicine were again at the center of the discussion.   Many practitioners welcomed the progress in this space which enables quality of care to be improved by the use of technology.  However, concerns were raised  around determining where clinical responsibility for the patient lay, and to what extent malpractice liability would attach to  doctors who perform telemedicine services from outside the UAE as well as for visiting doctors inside the UAE working on the new ‘visiting doctor’ licenses.  Also discussed was the need for a better understanding of the telemedicine business model, and how the services would be reimbursed by insurance companies.  As ever, the differences in the approaches taken by Dubai Health Authority and by the Health Authority-Abu Dhabi, revealed a large measure of uncertainty as to how a telemedicine provider trying to implement a business strategy UAE-wide would easily be able to do so, particularly bearing in mind the difference in both emirates with regard to arrangements for data security, the transmitting of encrypted patient data.\r\n\r\nThe progress being made towards a unified licensing scheme for healthcare practitioners was a key topic of conversation, following a Dubai Healthcare City (DHCC) announcement that they would start putting place a process for unified licensing scheme and add 34 countries to the list of pre-approved countries that meet DHCC’s licensing qualifications.  It remains unclear as to how the unified approach fits into the existing immigration and visa structure, so as to enable practitioners to move freely between emirates and employers.  We are pressing the regulator for more clarity on this important issue.\r\n\r\nA surprise new development which will be welcomed by many healthcare practitioners, is the progress made towards new regulations which will permit ‘Do Not Resuscitate’ orders in the UAE.  Our sources reveal that the Ministry of Health (MOH) may give approval to withdrawing treatment options for some patients, which is likely to follow the approach taken in the Kingdom of Saudi Arabia, but with some additional restrictions, which we predict will including the requirement to discuss such matters with the patient’s family.  We will dedicate an article to this topic in a forthcoming edition of Law Update once formal announcements by the MOH have been made.'),
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(93850, 5098, 'content', 'March 2015\r\n\r\n<hr />\r\n<p class=\"MsoNormal\"><strong>I. INTRODUCTION</strong></p>\r\n<p class=\"MsoNormal\">Qatar has witnessed very significant accomplishments within the last ten years in the direction of updating and modifying its national laws in the field of international commercial arbitration. On 30 December 2002<strong>, </strong>Qatar acceded to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and has since applied the unified rules contained in the Convention to foreign arbitral awards being enforced in Qatar.  However, some legislative and judicial obstacles hindered the development of international commercial arbitration in Qatar.  The courts in Qatar held a hostile attitude towards international commercial arbitration and erroneously interpreted the scope of the New York Convention<em>.</em></p>\r\n<p class=\"MsoNormal\">Recently, an important new development has taken place with respect to international commercial arbitration in Qatar, which is the preparation of a new law on arbitration based on the UNCITRAL Model Law (“Model Law”). This new draft law will likely abolish the current arbitration law contained in articles 190 to 210 of the Code of the Civil and Commercial Procedures (Law No. 13 of 1990).</p>\r\n<p class=\"MsoNormal\">This article sets out some of the key provision in the draft law. Please note that I am not addressing QFC arbitration in this article as it has its own arbitration rules and is essentially a separate jurisdiction to the rest of Qatar.</p>\r\n<p class=\"MsoNormal\"><strong>II. SCOPE OF APPLICATION</strong></p>\r\n<p class=\"MsoNormal\"><strong><em>(a) Date of Coming into Force</em></strong></p>\r\n<p class=\"MsoNormal\">Pursuant to Article 1 of the draft Law on Arbitration in Civil and Commercial Matters (“Draft Law”), the Draft Law is to apply to the following cases:</p>\r\n\r\n<ul>\r\n 	<li>Any ongoing or pending arbitration on the date of the draft law coming into force.</li>\r\n 	<li>All arbitrations commenced after the draft law comes into force, even if based upon an arbitration agreement made before that date.</li>\r\n</ul>\r\n<p class=\"MsoNormal\">It is currently unclear when the Draft Law will be issued and come into force, but it is expected to be issued by the end of this year.</p>\r\n<p class=\"MsoNormal\"><strong><em>(b) </em><em>Scope of Applicability to the Parties</em></strong></p>\r\n<p class=\"MsoNormal\">The scope of application of the draft law includes arbitrations held between public or private legal entities irrespective of the nature of the legal relationship between the contesting parties. This broad scope provides new breakthrough possibilities as to settling disputes arising from administrative contracts by arbitration. Accordingly, administrative authorities may now submit to arbitration proceedings subject to the approval of the prime minister or the person delegated with his authorities.</p>\r\n<p class=\"MsoNormal\"><strong><em>(c) Territorial Scope of Applicability</em></strong></p>\r\n<p class=\"MsoNormal\">The Draft Law applies to all the arbitration disputes having their seat in Qatar (but not the QFC) as well as to arbitrations having venues outside Qatar so long as the parties agree to submit themselves to the rules and provisions of the Draft Law. It is noteworthy that the provisions of the Draft Law may not be mandatorily applied to all the arbitrations conducted in Qatar. Hence, the parties may agree to the application of a procedural foreign law to an arbitration seated in Qatar.</p>\r\n<p class=\"MsoNormal\"><strong><em>(d) </em><em>Arbitrability</em></strong></p>\r\n<p class=\"MsoNormal\">The Draft Law has adopted a definition for \"commercial arbitration\" which resembles the definition set out in the Model Law. Article 1(2) of the Draft Law provides that “an arbitration shall be considered “commercial” pursuant to the provisions of this Draft Law if the dispute arises out of a legal relationship having an economic nature.”</p>\r\n<p class=\"MsoNormal\"><strong><em>(e) The applicability of Draft Law on International and Domestic Arbitrations</em></strong></p>\r\n<p class=\"MsoNormal\">The provisions of the Draft law will apply to international and domestic arbitrations. The Draft Law prescribes the cases where an arbitration shall be considered as ‘international’:</p>\r\n\r\n<ul>\r\n 	<li>Where the parties agree to submit their dispute to an arbitration center either in Qatar or outside.</li>\r\n 	<li>If the subject matter of the dispute is linked to more than one country.</li>\r\n 	<li>If the principal places of business of the two parties to the arbitration are located in two different states at the time of the conclusion of the arbitration agreement.</li>\r\n 	<li>If one of the following places is located outside Qatar where the principal places of business of the parties are located: a) the place of arbitration as determined in the arbitration agreement; b) the place where a substantial part of the obligations emerging from the commercial relationship between the parties are to be performed; or (c) the place with which the subject matter of the dispute is most closely connected.</li>\r\n</ul>\r\n<p class=\"MsoNormal\">Whether an arbitration is international or domestic is important for how the arbitral award will be enforced, as explained further below.</p>\r\n<p class=\"MsoNormal\"><strong>III. THE ARBITRATION AGREEMENT</strong></p>\r\n<p class=\"MsoNormal\">The Draft Law expressly places emphasis on the significance of the desire of the parties to submit to arbitration. The parties may agree to submit to arbitration to settle any potential dispute between them arising from their legal relationship as long as the dispute is arbitrable in a number of ways. The parties may agree to proceed with arbitration either before the occurrence of the dispute or after, even if the dispute is under adjudication before a national court. The arbitration agreement may exist in the same contractual instrument or in an independent document.</p>\r\n<p class=\"MsoNormal\">Moreover, recourse to arbitration may be made by means of reference to a contract including an arbitration agreement if the reference explicitly provides that the arbitration agreement must be considered part of that contract.</p>\r\n<p class=\"MsoNormal\">The arbitration agreement must be in writing, and this condition may be satisfied by any written means such as electronic emails or letters.</p>\r\n<p class=\"MsoNormal\">As a result of the parties\' agreement to arbitration, the national courts may not hear a case subject to a valid arbitration agreement. Article 8 of the Draft Law provides that if a party files a law suit before the court with regard to a dispute which must be settled by arbitration, then the court, based on the objection of the other party to the arbitration agreement, shall consider the case inadmissible on the grounds of a valid arbitration agreement.</p>\r\n<p class=\"MsoNormal\">Nevertheless, the Draft Law grants the national courts a controlling power to determine the legitimacy and enforceability of the arbitration clause. But this authority does not extend to give the courts the right to review the arbitration clause unless the arbitration clause is prima facie null and void or ineffective.</p>\r\n<p class=\"MsoNormal\"><strong>IV. THE FORMATION OF THE ARBITRAL TRIBUNAL</strong></p>\r\n<p class=\"MsoNormal\">Pursuant to the Draft Law, the parties are free to determine the procedures by which the Tribunal may be appointed. The parties may elect to authorize an arbitration institution or a third party to appoint an arbitrator or the chairman in case the patties fail to reach an agreement.</p>\r\n<p class=\"MsoNormal\">The Draft Law stipulates certain requirements that must be met in in appointing the Tribunal such as that the number of the arbitrators must be an odd number and the arbitrator must have the capacity to act as an arbitrator.</p>\r\n<p class=\"MsoNormal\">The Draft Law also enables the parties to challenge the selection of an arbitrator and apply for the recusal of such arbitrator.  However, Article 13(6) provides that a challenge is inadmissible if made by a party who has challenged that same arbitrator during the same arbitration proceedings unless that party discovers a new ground for challenging the arbitrator provided that such new ground is different from the ground of previous challenge or that such new ground was unknown by that party after applying the first challenge. The Draft Law also notably stipulates that the challenge must be submitted to the arbitral tribunal. If the challenged arbitrator decides to continue to serve as an arbitrator despite the recusal request against him, the arbitral tribunal will decide on the recusal request.</p>\r\n<p class=\"MsoNormal\">The party applying for the recusal request may appeal the decision rendered by arbitral tribunal before the court in accordance with Article 5 within 30 days from the date the party is notified of the refusal of the recusal request. The decision rendered by court is final and if the court or the arbitral tribunal uphold the recusal request, all the arbitration procedures (including the arbitral award if issued) are deemed not to have existed. Consequently, all the arbitral procedures must be repeated again before the newly constituted arbitral tribunal after the removal of the challenged arbitrator.</p>\r\n<p class=\"MsoNormal\"><strong>V. THE ARBITRAL PROCEDURE</strong></p>\r\n<p class=\"MsoNormal\">One very significant doctrine adopted by the Draft Law is that of “competence- competence”<em>, </em>whereby the tribunal is entitled to decide its own jurisdiction. The adoption of this doctrine indicates an attitude that seeks to limit  the intervention of national courts in the arbitral proceedings and support the fast resolution of disputes settled by arbitration.<strong><em> </em></strong></p>\r\n<p class=\"MsoNormal\">Another doctrine recognized by the Draft Law is the severability of the arbitral agreement. Therefore, if any one of the parties to an arbitration agreement challenges the legality and integrity of the contract of which the arbitration agreement forms part, the challenge will not affect the arbitration agreement.</p>\r\n<p class=\"MsoNormal\">Article 16(3) of the Draft Law does not allow the party who challenges the jurisdiction of the arbitral tribunal to appeal the interlocutory decision, but instead requires the party to wait until the final decision of the tribunal is rendered before challenging the decision.</p>\r\n<p class=\"MsoNormal\">The Draft Law also authorizes the parties to empower the arbitral tribunal to render interim measures. If the party, against whom the interim decision is rendered, refuses to voluntarily comply with it, the other party may request the president of the court of competent jurisdiction to issue an injunction to comply with the interim award.</p>\r\n<p class=\"MsoNormal\">However, this authority bestowed to the arbitral tribunal by the parties does not prevent the courts from ordering such interim measures if one of the parties so requests the court.  Prior to the formation of the arbitration tribunal, the parties have no recourse to obtain the interim measures unless by resorting for the national courts. Conversely, after the formation of the arbitral tribunal, the parties may freely elect whether to request the competent court or the arbitral tribunal to decide such interim measures.</p>\r\n<p class=\"MsoNormal\"><strong>VI. THE AWARD</strong></p>\r\n<p class=\"MsoNormal\">Unless agreed otherwise between the parties, the decision issued by an arbitral tribunal comprising more than one arbitrator must be rendered by the majority of the arbitrators.</p>\r\n<p class=\"MsoNormal\">In case parties reach an amicable settlement before the arbitral tribunal renders its final award, then the arbitral tribunal may terminate the arbitration proceedings based on the request of the parties. In such eventuality, the arbitral tribunal must include the terms of settlement in its award terminating the proceedings. This award will be executed and enforced in the same manner as any other arbitral award.</p>\r\n<p class=\"MsoNormal\">The Draft Law stipulates that the award must include the following information:</p>\r\n<p class=\"MsoListParagraphCxSpFirst\">(a)   the names and addresses of the parties</p>\r\n<p class=\"MsoListParagraphCxSpMiddle\">(b)  the names, addresses and nationalities of the arbitrators</p>\r\n<p class=\"MsoListParagraphCxSpMiddle\">(c)   a copy of the arbitration agreement</p>\r\n<p class=\"MsoListParagraphCxSpMiddle\">(d)  a summary of the parties\' claims, statements and supporting documents#</p>\r\n<p class=\"MsoListParagraphCxSpMiddle\">(e)   the date of the award</p>\r\n<p class=\"MsoListParagraphCxSpMiddle\">(f)   the place of  issuance of the award</p>\r\n<p class=\"MsoListParagraphCxSpLast\">(g)   the reasoning for the award.</p>\r\n<p class=\"MsoNormal\">In addition, the Draft Law expressly precludes the publication of the arbitral award partially or wholly, unless both parties have agreed otherwise.</p>\r\n<p class=\"MsoNormal\">Pursuant to Article 32(3) of the Draft Law, in the absence of any agreement to the contrary between the parties, the arbitral tribunal is under an obligation to render its final award on the merits of the dispute within 12 months from the commencement of the arbitration proceedings. However, the tribunal is authorized to extend this deadline a further six months unless agreed between the parties otherwise. If the arbitral award is not rendered within the agreed upon timeframe, then each party may request from the president of the court having jurisdiction an order for an extension of the timeframe or the termination of the arbitral proceedings. If terminated, each party may resort to the national court having the ultimate jurisdiction over the dispute to settle the dispute.</p>\r\n<p class=\"MsoNormal\">The Draft Law also contemplates the finality of the arbitral awards. All the arbitral awards rendered under the rules of this Draft Law are final and are not susceptible to challenges pursuant to the Code of Civil &amp; Commercial Procedures<strong>. </strong>The only available means for challenging the arbitral award would be to file an application for annulment, which is generally based on the principles of procedural integrity of the award rather than a substantive review of it. Applications for annulment are permitted under limited circumstances which have been specifically enumerated in Article 34 of the Draft Law. The application of annulment must be submitted within 90 days after the date of notification of the arbitral award to the challenging party.</p>\r\n<p class=\"MsoNormal\">The arbitral award may not be enforceable until the time limit for requesting an annulment has lapsed or the request for annulment has been denied by the competent court. This means that the winning party will have to wait at least 3 months before starting the enforcement process, unless the losing party seeks annulment. No publication of the award or parts thereof shall be authorized except with the approval of both parties to the arbitration</p>\r\n<p class=\"MsoNormal\"><strong>CONCLUSION</strong></p>\r\n<p class=\"MsoNormal\">These pivotal alterations to the rules governing arbitration procedures proposed by the Draft Law will dispel the drawbacks which undermine arbitration practice in Qatar (but not the QFC). The promulgation of this Draft Law will significantly impact international commerce and investment on Qatar. One may expect a remarkable development in the volume of investments involving Qatar in the near future. Moreover, the promulgation of the Draft Law will benefit the Qatar International Centre for Conciliation and Arbitration by increasing its exposure as a credible venue for international commercial arbitration among the GCC countries.</p>'),
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(93869, 5099, 'content', 'March 2015\r\n\r\n<hr />\r\n\r\nTherefore, you find yourself with little option other than to commence arbitration proceedings, but you are not really sure what this will entail.\r\n\r\nThis article provides an overview of arbitrating a construction dispute. It is not intended to be exhaustive of the whole process, and clients should take advice from specialist construction arbitration practitioners when making or facing such a claim.\r\n\r\n<strong>Introduction</strong>\r\n\r\nWhilst arbitration may have its critics due to its duration and cost, commercial clients should not overlook the clear benefits, e.g. the flexibility of the process, option to choose the place (seat), confidential nature of the proceedings, detailed analysis of claims and defences, recoverability of legal costs (as a general rule), the perception that the parties will have their dispute heard in a neutral arena by specially selected arbitrators who have the appropriate level of experience and knowledge to handle complex construction disputes and that arbitral awards will be more readily enforced around the world than court judgments.\r\n\r\n<strong>Starting the arbitration</strong>\r\n\r\nTo avoid a jurisdictional challenge at the very outset that arbitration proceedings have been commenced prematurely it is imperative that the initiating party ensures that: (i) the claim has crystalised into a dispute; and (ii) the dispute has met with all the pre-conditions to arbitrate (e.g. consider Clause 67 of FIDIC 1987 and Clause 20 of FIDIC 1999).\r\n\r\nAll too often we come across situations whereby an arbitration has been commenced but, upon investigation, the claim is either a new one which has not yet been disputed or has not yet run through the tiered dispute resolution process. This latter issue can become extremely complex when interim claims have been previously made and are then supplemented or superseded by ‘new’ claims, which may be said to be an embellishment of the previous claims, or are inextricably linked to them.\r\n\r\nIf the above criteria are met then careful regard must be had to the wording of the contract to see how arbitration should be commenced.\r\n\r\nThe agreement to arbitrate should be checked to ensure it is binding (for example, was it signed by persons who had express authority to bind the respective contracting parties to arbitration?).  Careful consideration should be given whether the arbitration clause provides for an institutional or ad hoc arbitration. Whilst most experienced arbitration lawyers would generally like to work with institutional rules, this often depends on the particular institutional rules themselves, because some of them are not exactly comprehensive, comprehensible or user friendly, and uncertainty offers leads to disputes; hence, even more costs.  Some inexperienced arbitration lawyers may be sceptical of ad hoc arbitrations, but experienced practitioners should be able to work with the tribunal in agreeing on the process and will often seek to adopt the UNCITRAL Rules to govern the process.\r\n\r\nSo the above checks have been made and you are now ready to start your arbitration, what next?\r\n\r\nThe arbitration is started when the claiming party (the Claimant) issues a ‘Notice to Arbitrate’ (often referred to in institutional proceedings as a ‘Request for Arbitration’).  Some arbitration laws may be vague or even silent on when proceedings are formally commenced, so careful regard may be needed to this issue if the expiry of a limitation period is looming.\r\n\r\nThe Notice to Arbitrate should clearly state that it is a demand to arbitrate the dispute. It should also provide some basic details; e.g. names of parties and their contact details, inclusion and reference to the arbitration clause, reference to underlying contract, description of dispute, relief sought, details of compliance with pre-conditions, choice of arbitrator (if appropriate), details of language, law and seat of the arbitration.\r\n\r\nIf it is to be an institutional arbitration then registration fees for filing the Request for Arbitration will have to be paid.\r\n\r\nWhilst institutional arbitrations allow for the responding party (the Respondent) to issue a response (by way of an Answer or Reply) and possible counterclaim, ad hoc proceedings generally do not cater for such a document (unless the arbitration clause has been drafted in considerable detail or the UNCITRAL Rules have been incorporated).\r\n\r\nThe next stage is the constitution of the arbitral tribunal.  The arbitral tribunal may comprise a sole arbitrator, or, as is more usual for construction disputes, a three-person tribunal.  If the mechanics for appointing a tribunal have not been set out in the arbitration clause, and if the parties fail to subsequently so agree (which may very well be likely once they are in dispute), the relevant provisions of the UAE’s arbitration law will apply.\r\n\r\nAlong with retaining experienced arbitration lawyers, choosing a suitable arbitrator is crucial to the success of the overall process.  As mentioned above, arbitration is a flexible process and the parties should take advantage of this flexibility by appointing suitably qualified and experienced arbitrators.  Unfortunately, leaving institutions to appoint can sometimes lead to unsuitable arbitrators being involved in the process.  Unlike the legal profession, there is little control or regulation over who may qualify and sit as an arbitrator in the region.\r\n\r\nIn our experience, the process of constituting the tribunal can sometimes become protracted due to challenges to party nominated and chairman arbitrators.\r\n\r\nWhilst in an institutional arbitration the tribunal will be appointed by the institution, in an ad hoc arbitration the parties will be required to enter into a tri-partite arbitration agreement with each arbitrator.\r\n\r\nIn the case of an institutional arbitration advance fees for the institution’s administration and tribunal’s fees will have to be paid before the case file will be transferred to the tribunal.\r\n\r\nThe UAE’s arbitration law provides that within 30 days of its constitution the tribunal is required to give notice of the date for the first (preliminary) meeting.\r\n\r\nThe parties and the tribunal will before, at, or after the preliminary meeting execute a document entitled the ‘Terms of Reference’.  This document is extremely important because it will set out the parties’ respective claims and the issues to be decided by the tribunal, thereby defining the scope of the tribunal’s jurisdiction.  It will also with ancillary issues, such as what rules of evidence will apply, what expert evidence is required, whether the witness statements are to stand as evidence-in-chief, etc.\r\n\r\nAt the preliminary meeting, or shortly thereafter, the tribunal will issue a ‘Procedural Directions Order’ which will map out what each party is expected to do and when.  One criticism of arbitration is that these timetables are often rescheduled leading to lengthy proceedings.  However, there are often genuine reasons why the timetable may need to change.\r\n\r\nIt is quite usual for the tribunal to request the lawyers to present their respective ‘Powers of Attorney’ at the preliminary meeting.\r\n\r\n<strong>The Team</strong>\r\n\r\nParties who are about to embark on a substantive construction arbitration should be aware that a team will be needed to handle the dispute.\r\n\r\nThe arbitration team will comprise: (i) the legal team (including possibly external counsel, more of which is discussed below); (ii) the experts (likely to include delay and quantum and possibly, technical, valuation, forensic accounting, and maybe legal); (iii) the client (including its in-house counsel,  commercial and contracting staff); and (iv) witnesses of fact.\r\n\r\nPicking the right legal team is crucial for several reasons.\r\n\r\nClients should be choosing their lawyers based not only on fees, but also on experience, knowledge and recommendations.\r\n\r\nConstruction arbitrations are legally and technically complex. It is essential, therefore, that the client carries out its own due diligence when appointing its lawyers.  They should be wary of lawyers with little hands-on experience of arbitrating construction disputes, or those who are generalists who dabble in construction disputes from time to time.\r\n\r\nThe best due diligence a client can do is by carefully reading CVs/profiles, interviewing and obtaining references/recommendations. Watch out for words like “assisted”, “involved”, or “managed” in CVs/profiles; ask what these words actually mean.\r\n\r\nFurther, when choosing the law firm clients may wish to have regard to how the firm usually handles such disputes. For example, it may be alien to some firms to instruct senior English barristers (QCs) to advocate at a final hearing; whilst some firms may instruct external counsel as a matter of course for almost everything.\r\n\r\nMost of the above apply to appointing experts and external counsel.  In terms of both external counsel and experts, a crucial factor will be at what stage in the process should they be appointed.\r\n\r\n<strong>Preparing for the Hearing</strong>\r\n\r\nSo the tribunal is constituted and the directions timetable leading to the final evidentiary hearing has been issued, what next?\r\n\r\nIn short, your appointed lawyers should lead in handling the process from start to finish.\r\n\r\nYour lawyers will need to marshal the evidence, both documentary and witness (factual and expert).\r\n\r\nIt is not unusual for requests to be made for disclosure of documents from the other party (usually set out in the form of a Redfern Schedule).  This is an extremely important facet of arbitration, because ordinarily in the UAE parties will only seek to disclose documents which support their own case.\r\n\r\nThe issues that the experts will be required to provide their opinion on need to be identified relatively quickly by the legal team and instructions issued accordingly.\r\n\r\nWitness statements, if not taken already, should also be taken relatively quickly.  Construction projects have definitive start and finish dates, so project staff will move on.  Therefore, it is imperative that the key witnesses are identified early on and interviewed so that their evidence will not be lost.\r\n\r\nThe pleadings will need to be prepared and these can run to hundreds of pages, with volumes of exhibits, schedules and appendices attached to them.\r\n\r\nAs well as managing fees and other issues relating to the experts and external counsel, the lawyers will be involved in assisting the experts in the preparation of their reports (i.e. obtaining important documents, giving instructions on matters of law/contract interpretation, etc.).  Sometimes, and especially with quantum and forensic accounting experts, confidentiality agreements may need to be executed to allow experts to review sensitive information.\r\n\r\nIn the build-up to the final hearing (which may involve a split hearing between liability and quantum (bi-furcated proceedings)), practical aspects such as finding a suitable venue, translators and transcribers will need to be arranged.\r\n\r\nImmediately prior to the hearing the parties will usually be required to file written opening submissions.  The tribunal will also likely fix the agenda for the hearing and deal with issues relating to the order of witnesses, whether experts should be allowed to sit in during the evidence of factual witnesses, whether experts will be required to give their evidence together, etc. All of this will normally be dealt with during a pre-hearing review.\r\n\r\nAt the end of the hearing the tribunal will normally state that proceedings are closed, subject to any final written closing submissions.  Sometimes, but not very often, proceedings may be re-opened.\r\n\r\nIn substantive construction arbitrations closing submissions will usually be dealt with in two rounds, the first dealing with a party’s substantive closings and claim for legal costs (if legal costs are an issue to be decided by the tribunal), followed by a second round which comments on the closing submissions (including claim for legal costs) made by the opposing party.\r\n\r\n<strong>The Award and Enforcement</strong>\r\n\r\nWhilst under UAE law the tribunal is bound to issue its award within the 6 months, the parties usually agree to grant the tribunal an extension to this period.\r\n\r\nIf there is a sole arbitrator then an award can usually be expected fairly quickly after the final hearing.  However, if there is a three-person tribunal, with some or all of the arbitrators residing overseas, it can often take several months to receive an award.  If there is an institutional body like the ICC involved, then there will be further time involved because the ICC will need to scrutinize the award before the award can be issued.\r\n\r\nAt some point the award will be issued to the parties.  It is essential that once received it is carefully reviewed to check that it complies with the formalities of the UAE arbitration law, e.g. it is signed on every page, states the place where it was issued, includes the arbitration agreement.  It should also be checked for arithmetical and typographical errors.\r\n\r\nThe dispositive part of the award will set out which party has won and what the losing party must do.  Sometimes, the losing party will act on this and that will be the end of the matter.  Unfortunately, that is not always the case.  If the award is not complied with the winning party will have to take steps to recover its entitlements.\r\n\r\nWhether the award is a foreign (seated and issued outside the UAE) or domestic (seated and issued within the UAE) will determine what laws apply to the enforcement process.\r\n\r\nIn the UAE, the enforcement of a domestic award involves: (i) the ratification of the award; and (ii) the execution of the ratified award.\r\n\r\nIn terms of the appropriate forum for enforcement, and following recent case law, the DIFC Courts now seemingly offer a viable alternative to having domestic awards (both ‘on-shore’ and ‘off-shore’) enforced and then taken across to the Dubai Courts for execution, thereby possibly by-passing the legal arguments that could otherwise be deployed in the defence of ratification proceedings (e.g. consider Article 216 of the UAE Civil Procedures Code) in the local courts.  However, this is a new development in this area of law and it remains to be seen how the Dubai Courts will act in the future.\r\n\r\n<strong>Summary</strong>\r\n\r\nArbitrating construction disputes can be a lengthy process, which inevitably leads to greater cost, but this is due to the fact that construction disputes are technically and legally complex, involve multiple parties, involve projects which span many years and involve the review of thousands of documents and numerous witnesses (factual and expert).\r\n\r\nTherefore, it is imperative that a party gives careful consideration to the process, the applicable laws and its team.'),
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(93894, 5100, 'content', 'March 2015\r\n\r\n<hr />\r\n\r\nThe Committee voted on (and unanimously supported) a wide-ranging plan put forward by IOC President, Thomas Bach, referred to as “Agenda 2020”.  Agenda 2020 is a set of rules that substantially change the way the IOC conducts its business, outlines how it interacts with stakeholders and sets new parameters for the very structure of the Olympic Games (the “Games”) themselves.  The reforms reach the core of the Games, opening the possibility for new competitions to be included (provided a total agreed number of events is maintained), for greater community engagement and education to be promoted as well as increasing transparency and good governance in management, to name but a few.\r\n\r\nThis bold step amounts to a comprehensive roadmap for reform that is characterised by engagement and flexibility.  At a time when we have seen increased criticism of the processes and the organisations holding rights to major global sporting events, this marks a welcome change.  On examination, Agenda 2020 should be welcomed as the IOC’s significant step towards greater transparency and responsiveness, each of which will ultimately be crucial elements of the IOC’s continued relevance.\r\n\r\nEach of the 40-points adopted in the plan are worthy of independent consideration; however, for the scope of the current article, the liberalisation of the bid process to potentially include joint bids by cities (or even countries) is an area we should consider more closely, particularly in the face of a potential bid from the Middle East.   Qatar has voiced a clear desire to host the Games, as recently re-iterated by the Secretary General of the Qatar Olympic Committee ; however, with the recent rule changes, the possibility of an Abu Dhabi/Dubai bid could also prove a compelling possibility.  The new system of flexibility in approach to bidding allows for interaction between the IOC and potential host bidders prior to the host cities embarking on what has become a highly demanding and expensive two-year process of launching a formal bid.\r\n\r\nIt is to be hoped that this change in the rules will lead to improved communication with a preliminary exchange of information between the class of exploratory hosts and the IOC that should ultimately increase the likelihood of the best suited and motivated candidates proceeding through the process  at a mutually advantageous time (i.e., when they will be best able to host and showcase the Games to a high standard and when the Games would be most beneficial for them ).\r\n\r\nThere are growing signs that Dubai may be considering an Olympic bid in the near to medium term.   As has been noted previously, there would be great inherent strength in a United Arab Emirates bid that combines the resources of the UAE Capital and Dubai in an Abu Dhabi/Dubai Games. Whereas we could not previously consider such a combination because of the rules, the IOC’s adoption of Agenda 2020 has thrown open the door to a formal joint bid.  There are compelling reasons to believe that the combined transportation, hard and soft infrastructure and resources of these dynamic powers – not to mention the growing track record of excellence in regularly hosting successful sporting events to the highest global standards - could be combined to stage a potentially sensational Summer Olympics.\r\n\r\nWe can go a step further in recognising that IOC Vice-President John Coates noted that despite the new possibility of joint bids, the compactness of the bid is always an important component.  Given the proximity and excellent transportation between Abu Dhabi and Dubai, a joint Abu Dhabi/Dubai bid could arguably be as geographically compact as a number of past Games held at venues across a single expansive urban area.  In effect, a case could be made that an Abu Dhabi/Dubai bid could be one of the least logistically disruptive combinations for a joint bid imaginable.  This would be a prudent way for the IOC to stress-test the first run out of a joint Summer Games bid under the new rules.\r\n\r\nRegardless of the status on a potential bid for the first ever Games in the Middle East, the Agenda 2020 IOC reforms are a welcome step.  The package of reforms will require implementation and there could be slips along the way with such an ambitious plan but where the alternatives include minor incremental adjustment or inaction, this is a show of leadership at just the right time.\r\n\r\nSteve Bainbridge is the Regional Head of the Sports Law practice and is based in the firm’s Abu Dhabi office.  Steve has significant experience in relation to sponsorship agreements and packages of all types; athlete endorsement agreements; anti-ambush marketing strategies and enforcement; player contracts; broadcasting agreements and copyright protection; IP registration and enforcement; merchandising and licensing agreements; player disciplinary issues; sports event management; ticketing arrangements and a wide array of venue/facilities management arrangements.\r\n\r\n<em>This article first appeared in the Gulf News on 23 February 2015. </em>'),
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(93909, 5101, 'content', 'March 2015\r\n\r\n<hr />\r\n\r\n<strong>Introduction </strong>\r\n\r\nUnder the UAE Civil Code, there is no obligation on the designer to take out and maintain an insurance cover. Similarly, no such requirement is mandated by Law No. 6 of 1997 in relation to Contracts with Government Departments in the Emirate of Dubai.\r\n\r\nThe situation is different in Abu Dhabi where design consultants need to be conscious of the requirements of classification pursuant to Regulation No.2 of 2009 (Concerning Contractor Classification in the Emirate of Abu Dhabi) and its associated instructions under Administrative Resolution No.58 of 2010.\r\n\r\nPursuant to these regulations, all contractors and consultants operating in Abu Dhabi need to apply for classification before the government authority. One of the pre-requisites of classification is adducing evidence of the existing insurance policies.\r\n\r\nIrrespective of the requirements of any law, it is in the interests of both employers and designers that appropriate insurance cover is in place that reflects, and covers, the level of the risk involved in the project.\r\n\r\nFor example, if, under the terms of an agreement, a designer indemnifies the employer for any loss, damage or injury arising as a result of the designer’s performance, the employer should ensure that the designer has the type and level of insurance necessary for it to pay any claim made under the indemnity.\r\n\r\nAs a designer, it is also best to ensure that appropriate insurance is in place to protect your business.\r\n\r\nHere are a few insurance options which employers and designers must consider, not only as matter of good practice, but also to minimise risks.\r\n\r\n<strong>Professional Indemnity Insurance</strong>\r\n\r\nProfessional indemnity insurance is a must for any designer especially when the liability for design defects can be particularly onerous for designers in the UAE. This sentiment is echoed by Administrative Resolution No.58 of 2010 which, for the purposes of classification, requires engineering consultants operating in Abu Dhabi to maintain professional indemnity cover from an insurance company based in the UAE.\r\n\r\nThe amount of professional indemnity insurance cover the designer is required to have in place is generally determined on a case by case basis, depending on the extent and the complexity of the design works in question.\r\n\r\nAs an employer this insurance is essential, especially if you have concerns about the accessible assets of the designer in the event the design is defective.\r\n\r\nIt should be kept in mind that professional indemnity insurance might not respond to a claim made under Article 880 (dealing with decennial liability) of the Civil Code for any major design defects which threaten the safety and stability of the building.\r\n\r\n<strong>Decennial Liability Insurance</strong>\r\n\r\nUnder the Civil Code, designers and contractors are jointly liable for any total or partial collapse of a building and for any defect affecting stability or safety of a structure for 10 years (starting from the completion of the works). Provided the designer is not also responsible for supervision of the works, the designer’s liability is limited to defects caused by its design.\r\n\r\nManaging the risk of a decennial liability claim for designers can be difficult as decennial liability falls outside the scope of the standard cover provided by Contractors’ All Risks (CAR) and Professional Indemnity (PI) insurance.\r\n\r\nCAR policies typically cover physical loss or damage to the works being executed, and will typically exclude liability for repair or replacement of property which is defective in design, specification, materials or workmanship. These policies are normally effected by the employer or the contractor.\r\n\r\nProfessional liability insurance typically covers loss caused by the negligent omissions or fault of the designer. Moreover, the coverage of professional indemnity insurance will usually be inadequate to cover for the loss of a partial or total building collapse.\r\n\r\nOne of the ways to manage decennial liability is to spread out the risk by way of collateral warranties. Contractors, architects and engineers within the first tier of the supply chain can exchange collateral warranties. Such collateral warranties enable an innocent party, caught by the decennial liability regime, to seek to recover the loss under the terms of the warranty from that party who actually is at fault.\r\n\r\nConsultants should also be aware of the precise nature of their role, that is, whether they are operating in a supervisory-only category or are actually responsible for the full design of the structure.\r\n\r\nThe consultancy agreement should also be checked to ensure that any decennial liability clause reflects the obligation imposed by law and does not impose a wider obligation. If this wider obligation is imposed by the agreement, a consultant’s insurance cover may not apply to it.\r\n\r\n<strong>Legal Costs Cover</strong>\r\n\r\nDesigners should also consider insurance to cover legal expenses to defend an action by the employer or other claimant in relation to loss or damage covered by a faulty design.\r\n\r\nThere is a possibility that the insurance companies might refuse to provide cover for defending a claim that does not have reasonable prospects of success and they may seek to investigate this prior to providing the cover. However, this should not deter the designers from seeking such insurance cover on a case to case basis.\r\n\r\n<strong>General Recommendation</strong>\r\n\r\nIt is recommended that both employers and designers consider the insurance and indemnity provisions of each contract.\r\n\r\nDepending on the risk allocation resulting from negotiations, the employer/developer may take out its own all risk insurance in relation to the project and/or site of the works.\r\n\r\nIn relation to insurance cover, consideration should be given as to whether a party should be an insured under that policy (for example, a consultant being covered under a contractor’s or owner’s CAR policy).\r\n\r\nThe level of cover will depend on the value of, and the type of works that will be performed under the construction contract (for example the level of dangerous activities being performed and the likelihood of damage or injury resulting from the works).\r\n\r\nIf a variety of insurance policies are taken out, there is a risk of overlap of insurance. Although not specifically provided under the Code, policies invariably do not allow recovery of the same insured loss more than once.  If the policies are checked to remove duplication, the insurance premiums will be kept to a minimum.\r\n\r\nIn any event, designers should always be required, and have in place, appropriate professional indemnity cover.\r\n\r\n<strong>Final Note</strong>\r\n\r\nIt is advisable that designers maintain adequate insurance cover for their design obligations to protect against claims from employers, contractors and third parties.\r\n\r\nLastly, it should be ensured that the insurance cover reflects the contractually agreed insurance obligations and decennial liability.'),
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(93934, 5102, 'content', 'March 2015\r\n\r\n<hr />\r\n\r\nThe Property Lease Law introduces a new legislative framework for real property leases in the Kingdom of Bahrain and repeals the following laws, which previously applied to real property leases:\r\n<ul>\r\n 	<li>Lease Act issued under Declaration No. 29 of 1363 A.H. on 9 July 1944</li>\r\n 	<li>Lease Act issued under Declaration No. 43 of 1365 A. H. on 25 August 1946 and its amendments</li>\r\n 	<li>Defining Commercial Stores Rent in Manama of 1955 issued under Declaration No. 42 of 1374 A.H.</li>\r\n 	<li>Decree-law No. 9 of 1970 with respect of modifying some lease rules and amendments</li>\r\n 	<li>Decree-law No. 8 of 1984 with respect of setting property rent before January 1970.</li>\r\n</ul>\r\n<strong>Application</strong>\r\n\r\nThe Property Lease Law applies to real estate premises that are intended for residential, industrial, commercial, professional and craftsmanship purposes. However, the Property Lease Law does not apply to:\r\n<ul>\r\n 	<li>fixed and non-fixed industrial lands and construction subject to Decree-law No. 28 of 1999 with respect to industrial zones establishment and organisation</li>\r\n 	<li>agricultural lands</li>\r\n 	<li>lands leased for hotels and tourist purposes</li>\r\n 	<li>furnished flats leased for periods not exceeding one month</li>\r\n 	<li>residential units occupied for work conditions</li>\r\n 	<li>lands leased under musataha agreements for development.</li>\r\n</ul>\r\nThe Property Lease Law applies to both new leases and leases that were in existence on the Effective Date.\r\n\r\n<strong>Lease formalities and registration</strong>\r\n\r\nAll leases subject to the Property Lease Law must be in writing and must specify the lease period and the rent payable by the lessee. If a lease does not specify the lease period, the lease will be valid for the period specified in the lease for payment of rent. Further, if the rent is not specified, the rent will be determined on commencement of the lease by taking into account the condition, size and purpose of the leased premises, and the prevailing rent in the area in which the leased premises are situated.\r\n\r\nThe Property Lease Agreement Registration Office will be established by the Ministry of Justice in cooperation with the Ministry of Municipality for the registration of leases that are subject to the Property Lease Law. All new leases and their amendments must be registered with the Property Lease Agreement Registration Office within one month from the date of issue. Leases that existed when the Property Lease Law came into force must be issued in writing and registered within six months from the Effective Date.\r\n\r\nThe registration procedures and fees for registration will be issued by the Minister of Justice, subject to the fees being not less than 1 Dinar and not more than 5 Dinars for residential properties and not less than 5 Dinars and not more than 10 Dinars for other properties.\r\n\r\nIt is the lessor’s responsibility to register its lease and to pay the registration fees. However, if the lessor refuses to pay the fees, the lessee may register the lease and deduct the registration fees from the rent.\r\n\r\n<strong>Rent, security deposit and rent increases</strong>\r\n\r\nA lessor of residential premises can receive a maximum of 3 months’ rent paid by cash in advance. For other types of premises, the parties can agree on a different amount. The maximum security deposit that a lessor can require from a lessee is 1 month’s rent.\r\n\r\nThe lessee must pay the rent to the lessor within a maximum period of one week from the due date stated in the lease. If a lease does not specify the due dates for payment of rent, the rent will be due at the beginning of each month.\r\n\r\nA lessor may not increase the rent under a lease until two years from the lease commencement date or the previous rent increase (whichever is earlier). The rent increase is capped at 5% for residential properties and 7% for commercial, industrial, professional, craftsmanship or other properties. Additionally, the rent can only be increased a maximum of 5 times throughout the lease term, unless the parties agree otherwise in writing. If the lessor wishes to increase the rent, it must give the lessee written notice at least 3 months before expiry of the second year.\r\n\r\nThese restrictions also apply when existing leases are renewed or re-entered after the expiry of 3 years from the Effective Date.\r\n\r\n<strong>Leased premises condition, maintenance and alterations</strong>\r\n\r\nThe lessor is required to deliver the leased premises to the lessee in a condition suitable for the lessee’s intended purpose as agreed by the parties.\r\n\r\nThe lessor is obliged to perform urgent, necessary maintenance works that are required for keeping the leased premises in a safe condition and useable for the intended purpose. The lessee is obliged to maintain the leased premises through normal due care and to perform minor maintenance that is required for the lessee to use the leased premises for its intended purpose.\r\n\r\nThe lessee must not make any changes to the leased premises without obtaining the lessor’s written consent unless the changes will not be detrimental to the lessor. Upon vacating the leased premises, the lessee must return the premises to the lessor in the same condition as they were in when the lease commenced except for any improvements made by the lessee, which must remain in the premises unless the parties agree otherwise.\r\n\r\n<strong>Expiry and renewal</strong>\r\n\r\nAll leases will expire at the end of their term. If a lessee continues to use its leased premises after expiry of the lease with no objection from the lessor, the lease will be deemed to be extended for a similar period to the expired lease and on the same terms and conditions. However, the lessee’s continued occupation of the leased premises will not be deemed an extension of the lease after it receives a notice of eviction from the lessor.\r\n\r\nIf the lessee intends to leave the premises on expiry of the lease, it must give the lessor written notice of its intention at least 3 months before the lease expires.\r\n\r\nSimilarly, if a lessee wishes to renew its lease, it must give the lessor written notice at least 3 months before the lease expires. The lessee is entitled to renew for a period up to 3 years for residential premises and 7 years for commercial, industrial, professional, craftsmanship or other premises.\r\n\r\nThe Property Lease Law also provides that leases that are subject to the provisions of Decree-law No. 9 of 1970 will expire after 3 years from the Effective Date.\r\n\r\n<strong>Eviction of lessees</strong>\r\n\r\nFor leases signed after the Effective Date, a lessor cannot require a lessee to vacate leased premises until after a period of 3 years from the date of handover for residential premises and 7 years for commercial, industrial, professional, craftsmanship or other premises. However, the parties are entitled to agree in writing to a different period.\r\n\r\nThis restriction on evicting a lessee does not apply where:\r\n<ul>\r\n 	<li>the lessee has not paid the rent on the due date specified in the lease or by a decision of the Lease Disputes Committee for 2 consecutive months</li>\r\n 	<li>the lessee has sub-leased or allowed a third party to use all or part of the leased premises without obtaining the lessor’s consent</li>\r\n 	<li>the lessee or sub-lessee has allowed the number of people occupying the leased premises to exceed the normal limit</li>\r\n 	<li>the lessee has used or allowed the leased premises to be used in a way that violates the lease conditions, the intended purpose or public order and morals, or is detrimental to the financial interests of the lessor</li>\r\n 	<li>the condition of the property endangers the lives of residents, or a final demolition order has been issued by the relevant municipality</li>\r\n 	<li>at least 25 years has passed since the property was constructed, or the area in which the property is located was re-classified, and the lessor wishes to demolish and rebuild the property (which must occur within 1 year from the date of eviction)</li>\r\n 	<li>the lessor or its immediate relatives wish to occupy the leased premises for residency, subject to obtaining the lessee’s written agreement and provided that the lessor gives the lessee at least 6 months’ written notice prior to eviction and the lessor or its immediate relatives occupy the leased premises for at least 1 year</li>\r\n 	<li>the lessor wishes to live in the leased premises in circumstances where the lessor has not been living in the area where the leased premises are located or has been living out of Bahrain and owns no other property. In this case, the lessor can only evict the lessee if this intention was stated in the lease</li>\r\n 	<li>the lessee used or allowed the leased premises to be used for a purpose other than the intended purpose or made changes to the leased premises that have endangered its safety</li>\r\n 	<li>the lessee has abandoned the leased premises for at least 1 year.</li>\r\n</ul>\r\nIn these situations, a lessor can request the lessee to vacate the leased premises. However, if the circumstances under items 6, 7 or 8 above apply, the lessee may be entitled to a grace period of not more than 3 months for residential premises or 6 months for other premises.\r\n\r\n<strong>Sub-leasing and assignment</strong>\r\n\r\nA lessee may not transfer or sub-lease all or part of its leased premises without obtaining the written consent of the lessor. Further, a transfer or sub-lease to a third party is only effective against third parties after it has been registered.\r\n\r\nIf the lessor transfers ownership of the leased premises to a new owner, the new owner must give the lessee written notice of the ownership transfer within 30 days from the date of registration of the transfer. The new owner is bound by any leases existing at the date of transfer.<strong> </strong>\r\n\r\n<strong>Lease Disputes Committee</strong>\r\n\r\nThe Property Lease Law provides for a Lease Disputes Committee, which is affiliated to the Ministry of Justice, to be established to settle:\r\n<ul>\r\n 	<li>lawsuits and disputes arising from leases under the Property Lease Law</li>\r\n 	<li>lawsuits and disputes stipulated in clauses 6 and 7 in Article 8, as well as Article 8 (repeated) of the Code of Civil and Commercial Procedure</li>\r\n 	<li>preventative decisions with respect to the above lawsuits and disputes.</li>\r\n</ul>\r\nHowever, the Committee will not hear disputes arising from leases that are not registered with the Property Lease Agreement Registration office.\r\n\r\nA party to a dispute can appeal a decision of the Committee to the High Civil Court within 15 days from the date of judgement. The High Civil Court’s decision in relation to the matter will be final.\r\n\r\nThe Courts will continue to hear and determine cases relating to lease disputes that were filed with the Courts before the Property Lease Law came into effect.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThe new legislative regime for real property leases in Bahrain introduces a number of new requirements that lessors and lessees need to comply with, including the requirement to register their leases. The new law should put an end to the conflicts between the previous laws and the Civil Code, and the resulting disputes between lessees and lessors. The new rules in relation to lease renewals will also be a welcome relief to lessors.\r\n\r\nWhile the Property Lease Law prescribes a number of lease conditions, the law also allows some flexibility by giving the parties the option to agree in their leases to provisions contrary to some of the prescribed conditions, which will be particularly beneficial in a commercial context. Parties contemplating entering into new leases or reviewing their existing leases should obtain legal advice on the application of the Property Lease Law.'),
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