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(307825, 29371, 'MetaValueOld', '<p dir=\"LTR\" align=\"LEFT\">Qatar is taking extensive positive steps to improve its legislative system. This has been reflected in various new laws, regulations and amendments coming into force during the past year.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In this article, we highlight some of the more interesting recent legislative changes.</p>\r\n\r\n&nbsp;<img class=\"aligncenter wp-image-8267 size-full\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_31_Image_0002d.jpg\" alt=\"\" width=\"1096\" height=\"310\" /> &nbsp;\r\n&nbsp;<h3 dir=\"LTR\" align=\"LEFT\">Consumer Protection Law amendment released</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Law Number 7 of 2018 amending Law 8 of 2008 on Consumer Protection was published in the Qatari Official Gazette Number 11 dated 4 July 2018.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The amendment, as expected, imposes stricter administrative punishments, in addition to the existing administrative and criminal sanctions, which include imprisonment and/or fines.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The amendment extends Article 18 bis, which is the provision that grants the Consumer Protection Department’s the authority to temporary close the infringing shop or place of business for a period not exceeding one month for the first violation, two months for the second violation, and three months for any further violations.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In addition to publishing the closure decision on the Ministry’s website and in two daily newspapers, the amendment imposes a notice of violation to be placed on the offending shop or place of business alerting consumers to the reason of the closure being due to violations of the Consumer Protection Law.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">This amendment adds to the significant role of the Qatari Consumer Protection Department, by further publicising the violation to consumers, making the administrative action more effective and preventive.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">The Issuance of the Patents Implementing Regulation</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Patents Implementing Regulation Number 153 of 2018 was also published in the Qatari Official Gazette Number 11 dated 4 July 2018.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Patents in Qatar are governed by the provisions of Law Number 30 of 2006. This law has not been updated since its issuance, and was put into place without being accompanied by any implementing regulations.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">However, the recent developments, including the issuance of the long awaited implementing regulations, are in line with the Qatar National Vision 2030, including the national strategic plan improving IP enforcement and protection, and are assigned to a specialised committee in accordance with decision Number 45 of 2017. Accordingly, further improvements and regulations are also expected to be issued soon.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The new patents implementing regulation specifies procedures related to registration of patents, including granting the Patent Office the authority to accept submission of supporting documents within a maximum six month period of filing a patent application. In case of non-compliance within the six month period, the patent application shall be considered abandoned, in accordance with Article 2 of the regulation.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">However, the maximum period granted by the Patent Office for filing supporting documents in cases of priority claims is three months, as per Article 3 of the regulation.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Article 8 of the regulations confirm that the Patent Office may use the assistance of experts in the relevant field within the examination process, and the applicant is to cover the cost of such experts.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">These regulations are expected to enhance the efficiency of the patent registration process in Qatar.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\"></h3>\r\n<h3 dir=\"LTR\" align=\"LEFT\">Law on Competitiveness of National Products to be released</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In June 2018, Qatar’s Advisory Council discussed a draft law on supporting the competitiveness of national products and combating harmful practices in international trade. The draft law was referred to the Financial and Economic Affairs Committee for its examination and for the Committee to report back to the Council with their comments.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The draft law confirms complying with Qatar’s international obligations as per the World Trade Organisation (WTO) Agreements signed by Qatar.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">This law also supports Qatar’s aim to achieve self-sufficiency and food security.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Foreign investment and Trade - Agreements signed and further laws under discussion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Qatar launched direct maritime shipping lines with many counties including Kuwait, Oman, India, Pakistan, Turkey and Iraq, in addition to Jordan. This was in line with the entry into bilateral agreements with many countries with the aim of improving trade relationships and encouraging foreign investment.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Furthermore, Qatar has announced that the cabinet had approved draft legislation governing investment of non-Qatari capital in the economy. It is said that the legislation will replace Law No 13 from 2000 to further open up the country to foreign investment in all sectors with several exceptions. The draft under discussion was not disclosed, accordingly, the details of this amendment are still unconfirmed, and it is uncertain when this law will be issued.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Another law closely related to foreign investment is also expected to be released, administering ownership of real estate by non-Qatari citizens. The law is likely to define certain areas on which such ownership is permissible and the conditions to apply to the same, as well as granting heirs of the owner the same ownership rights after the death of the owner.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Encouraging foreign investment is essential for economic development. By providing the needed legal tools to safeguard the interests of domestic industries, consumers, and foreign investors, Qatar would appear to be moving in the right direction, by developing a robust and balanced legal and economic system.</p>\r\n<em>Our <a href=\"https://www.tamimi.com/practice/intellectual-property/\">IP department</a> has a dedicated team of experienced practitioners, who can assist in a wide range of contentious and non-contentious matters related to IP, including legal protection, contractual matters and litigation. For more information about our IP services or if you wish to enquire more about the above reported developments, please contact the author or <a href=\"https://www.tamimi.com/lawyer/omar-obeidat/\">Omar Obeidat</a> (Partner &amp; Head of Intellectual Property) at <a href=\"mailto:o.obeidat@tamimi.com\">o.obeidat@tamimi.com</a>.</em>'),
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(307828, 29371, 'ReportText', '<p dir=\"LTR\" align=\"LEFT\">Qatar is taking extensive positive steps to improve its legislative system. This has been reflected in various new laws, regulations and amendments coming into force during the past year.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In this article, we highlight some of the more interesting recent legislative changes.</p>\r\n\r\n&nbsp;<img class=\"aligncenter wp-image-8267 size-full\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_31_Image_0002d.jpg\" alt=\"\" width=\"1096\" height=\"310\" /> &nbsp;\r\n&nbsp;<h3 dir=\"LTR\" align=\"LEFT\">Consumer Protection Law amendment released</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Law Number 7 of 2018 amending Law 8 of 2008 on Consumer Protection was published in the Qatari Official Gazette Number 11 dated 4 July 2018.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The amendment, as expected, imposes stricter administrative punishments, in addition to the existing administrative and criminal sanctions, which include imprisonment and/or fines.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The amendment extends Article 18 bis, which is the provision that grants the Consumer Protection Department’s the authority to temporary close the infringing shop or place of business for a period not exceeding one month for the first violation, two months for the second violation, and three months for any further violations.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In addition to publishing the closure decision on the Ministry’s website and in two daily newspapers, the amendment imposes a notice of violation to be placed on the offending shop or place of business alerting consumers to the reason of the closure being due to violations of the Consumer Protection Law.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">This amendment adds to the significant role of the Qatari Consumer Protection Department, by further publicising the violation to consumers, making the administrative action more effective and preventive.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">The Issuance of the Patents Implementing Regulation</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Patents Implementing Regulation Number 153 of 2018 was also published in the Qatari Official Gazette Number 11 dated 4 July 2018.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Patents in Qatar are governed by the provisions of Law Number 30 of 2006. This law has not been updated since its issuance, and was put into place without being accompanied by any implementing regulations.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">However, the recent developments, including the issuance of the long awaited implementing regulations, are in line with the Qatar National Vision 2030, including the national strategic plan improving IP enforcement and protection, and are assigned to a specialised committee in accordance with decision Number 45 of 2017. Accordingly, further improvements and regulations are also expected to be issued soon.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The new patents implementing regulation specifies procedures related to registration of patents, including granting the Patent Office the authority to accept submission of supporting documents within a maximum six month period of filing a patent application. In case of non-compliance within the six month period, the patent application shall be considered abandoned, in accordance with Article 2 of the regulation.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">However, the maximum period granted by the Patent Office for filing supporting documents in cases of priority claims is three months, as per Article 3 of the regulation.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Article 8 of the regulations confirm that the Patent Office may use the assistance of experts in the relevant field within the examination process, and the applicant is to cover the cost of such experts.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">These regulations are expected to enhance the efficiency of the patent registration process in Qatar.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\"></h3>\r\n<h3 dir=\"LTR\" align=\"LEFT\">Law on Competitiveness of National Products to be released</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In June 2018, Qatar’s Advisory Council discussed a draft law on supporting the competitiveness of national products and combating harmful practices in international trade. The draft law was referred to the Financial and Economic Affairs Committee for its examination and for the Committee to report back to the Council with their comments.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The draft law confirms complying with Qatar’s international obligations as per the World Trade Organisation (WTO) Agreements signed by Qatar.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">This law also supports Qatar’s aim to achieve self-sufficiency and food security.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Foreign investment and Trade - Agreements signed and further laws under discussion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Qatar launched direct maritime shipping lines with many counties including Kuwait, Oman, India, Pakistan, Turkey and Iraq, in addition to Jordan. This was in line with the entry into bilateral agreements with many countries with the aim of improving trade relationships and encouraging foreign investment.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Furthermore, Qatar has announced that the cabinet had approved draft legislation governing investment of non-Qatari capital in the economy. It is said that the legislation will replace Law No 13 from 2000 to further open up the country to foreign investment in all sectors with several exceptions. The draft under discussion was not disclosed, accordingly, the details of this amendment are still unconfirmed, and it is uncertain when this law will be issued.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Another law closely related to foreign investment is also expected to be released, administering ownership of real estate by non-Qatari citizens. The law is likely to define certain areas on which such ownership is permissible and the conditions to apply to the same, as well as granting heirs of the owner the same ownership rights after the death of the owner.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Encouraging foreign investment is essential for economic development. By providing the needed legal tools to safeguard the interests of domestic industries, consumers, and foreign investors, Qatar would appear to be moving in the right direction, by developing a robust and balanced legal and economic system.</p>\r\n<em>Our <a href=\"https://www.tamimi.com/practice/intellectual-property/\">IP department</a> has a dedicated team of experienced practitioners, who can assist in a wide range of contentious and non-contentious matters related to IP, including legal protection, contractual matters and litigation. For more information about our IP services or if you wish to enquire more about the above reported developments, please contact the author or <a href=\"https://www.tamimi.com/lawyer/omar-obeidat/\">Omar Obeidat</a> (Partner &amp; Head of Intellectual Property) at <a href=\"mailto:o.obeidat@tamimi.com\">o.obeidat@tamimi.com</a>.</em>|<p dir=\"LTR\" align=\"LEFT\">Qatar is taking extensive positive steps to improve its legislative system. This has been reflected in various new laws, regulations and amendments coming into force during the past year.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In this article, we highlight some of the more interesting recent legislative changes.</p> &nbsp;\r\n\r\n&nbsp;<img class=\"aligncenter wp-image-8267 size-full\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_31_Image_0002d.jpg\" alt=\"\" width=\"1096\" height=\"310\" /> &nbsp;\r\n&nbsp;<h3 dir=\"LTR\" align=\"LEFT\">Consumer Protection Law amendment released</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Law Number 7 of 2018 amending Law 8 of 2008 on Consumer Protection was published in the Qatari Official Gazette Number 11 dated 4 July 2018.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The amendment, as expected, imposes stricter administrative punishments, in addition to the existing administrative and criminal sanctions, which include imprisonment and/or fines.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The amendment extends Article 18 bis, which is the provision that grants the Consumer Protection Department’s the authority to temporary close the infringing shop or place of business for a period not exceeding one month for the first violation, two months for the second violation, and three months for any further violations.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In addition to publishing the closure decision on the Ministry’s website and in two daily newspapers, the amendment imposes a notice of violation to be placed on the offending shop or place of business alerting consumers to the reason of the closure being due to violations of the Consumer Protection Law.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">This amendment adds to the significant role of the Qatari Consumer Protection Department, by further publicising the violation to consumers, making the administrative action more effective and preventive.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">The Issuance of the Patents Implementing Regulation</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Patents Implementing Regulation Number 153 of 2018 was also published in the Qatari Official Gazette Number 11 dated 4 July 2018.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Patents in Qatar are governed by the provisions of Law Number 30 of 2006. This law has not been updated since its issuance, and was put into place without being accompanied by any implementing regulations.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">However, the recent developments, including the issuance of the long awaited implementing regulations, are in line with the Qatar National Vision 2030, including the national strategic plan improving IP enforcement and protection, and are assigned to a specialised committee in accordance with decision Number 45 of 2017. Accordingly, further improvements and regulations are also expected to be issued soon.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The new patents implementing regulation specifies procedures related to registration of patents, including granting the Patent Office the authority to accept submission of supporting documents within a maximum six month period of filing a patent application. In case of non-compliance within the six month period, the patent application shall be considered abandoned, in accordance with Article 2 of the regulation.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">However, the maximum period granted by the Patent Office for filing supporting documents in cases of priority claims is three months, as per Article 3 of the regulation.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Article 8 of the regulations confirm that the Patent Office may use the assistance of experts in the relevant field within the examination process, and the applicant is to cover the cost of such experts.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">These regulations are expected to enhance the efficiency of the patent registration process in Qatar.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\"></h3>\r\n<h3 dir=\"LTR\" align=\"LEFT\">Law on Competitiveness of National Products to be released</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In June 2018, Qatar’s Advisory Council discussed a draft law on supporting the competitiveness of national products and combating harmful practices in international trade. The draft law was referred to the Financial and Economic Affairs Committee for its examination and for the Committee to report back to the Council with their comments.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The draft law confirms complying with Qatar’s international obligations as per the World Trade Organisation (WTO) Agreements signed by Qatar.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">This law also supports Qatar’s aim to achieve self-sufficiency and food security.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Foreign investment and Trade - Agreements signed and further laws under discussion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Qatar launched direct maritime shipping lines with many counties including Kuwait, Oman, India, Pakistan, Turkey and Iraq, in addition to Jordan. This was in line with the entry into bilateral agreements with many countries with the aim of improving trade relationships and encouraging foreign investment.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Furthermore, Qatar has announced that the cabinet had approved draft legislation governing investment of non-Qatari capital in the economy. It is said that the legislation will replace Law No 13 from 2000 to further open up the country to foreign investment in all sectors with several exceptions. The draft under discussion was not disclosed, accordingly, the details of this amendment are still unconfirmed, and it is uncertain when this law will be issued.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Another law closely related to foreign investment is also expected to be released, administering ownership of real estate by non-Qatari citizens. The law is likely to define certain areas on which such ownership is permissible and the conditions to apply to the same, as well as granting heirs of the owner the same ownership rights after the death of the owner.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Encouraging foreign investment is essential for economic development. By providing the needed legal tools to safeguard the interests of domestic industries, consumers, and foreign investors, Qatar would appear to be moving in the right direction, by developing a robust and balanced legal and economic system.</p>\r\n<em>Our <a href=\"https://www.tamimi.com/practice/intellectual-property/\">IP department</a> has a dedicated team of experienced practitioners, who can assist in a wide range of contentious and non-contentious matters related to IP, including legal protection, contractual matters and litigation. For more information about our IP services or if you wish to enquire more about the above reported developments, please contact the author or <a href=\"https://www.tamimi.com/lawyer/omar-obeidat/\">Omar Obeidat</a> (Partner &amp; Head of Intellectual Property) at <a href=\"mailto:o.obeidat@tamimi.com\">o.obeidat@tamimi.com</a>.</em>'),
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(307860, 29374, 'PostTitle', 'The Commercial Agency Register: Not as conclusive as you think…'),
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(307871, 29375, 'PostType', 'law_update_articles'),
(307872, 29375, 'PostTitle', 'The Commercial Agency Register: Not as conclusive as you think…'),
(307873, 29375, 'PostStatus', 'publish'),
(307874, 29375, 'PostDate', '2018-09-04 07:54:15'),
(307875, 29375, 'PostUrl', 'https://www.tamimi.com/law-update-articles/the-commercial-agency-register-not-as-conclusive-as-you-think/'),
(307876, 29375, 'EditorLinkPost', 'https://www.tamimi.com/wp-admin/post.php?post=8185&amp;action=edit'),
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(307882, 29376, 'PostID', '8185'),
(307883, 29376, 'PostTitle', 'The Commercial Agency Register: Not as conclusive as you think…'),
(307884, 29376, 'PostStatus', 'publish'),
(307885, 29376, 'PostType', 'law_update_articles'),
(307886, 29376, 'PostDate', '2018-09-04 07:54:15'),
(307887, 29376, 'PostUrl', 'https://www.tamimi.com/law-update-articles/the-commercial-agency-register-not-as-conclusive-as-you-think/'),
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(307890, 29376, 'MetaValueNew', '<img class=\"aligncenter size-full wp-image-8238\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_06_Image_0003.jpg\" alt=\"\" width=\"1188\" height=\"250\" />&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Commercial Agency Register (the \"Register\") is renowned in Qatar for the role it plays when it comes to governing the validity of (or lack of) the relationship between agent and principal. It is a double-edged sword, on the one end allowing registered commercial agents to believe that they can kick back, relax and enjoy their supposedly indissoluble commercial agency rights, and on the other, causing principals to be bound to supposedly inextinguishable agency agreements.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A recent judgment by the Court of First Instance has clarified the laws on commercial agency, potentially stirring up the position of principal and agent. In this case, it was held that registration on the Register is a sign of confirmation, and not creation, of an agency agreement. The determinative factor as to whether or not an agency agreement exists falls on, primarily, the legal and factual existence of the agreement itself.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">The Facts</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Claimant initially entered into a limited duration exclusive agency agreement (the \"Initial Agreement\") as agent for the sale of cars manufactured by the principal mother company (\"Principal\") and was registered as a commercial agent of the Principal on the Register. Subsequently, the Claimant and the Principal entered into a limited duration non-exclusive distribution agreement (\"the Second Agreement\"), in which it was expressly agreed that the Second Agreement terminated and nullified all previous agreements existing between the Claimant and the Principal including the Initial Agreement. The Second Agreement was not renewed at the end of its term and accordingly expired.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Thereafter, the Principal entered into a similar non-exclusive distribution agreement with the Defendant. The Defendant went on to carry out promotional, marketing and sale activities of the Principal’s products, and in doing so, made public announcements about being the new agent of the Principal.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">This came to the attention of the Claimant who brought a case against the Defendant. The Claimant alleged that the Defendant was unlawfully portraying itself as the new distributor of the Principal’s goods and indeed acting as the distributor, when in fact the Claimant was the only registered exclusive agent of the Principal. The Claimant relied solely on the fact that it was still registered as the exclusive agent of the Principal on the Register. The Claimant argued that as long as such registration remained, the Claimant would be the sole party possessing the exclusive agency rights to promote market and sell the Principal’s products, regardless of the existing dispute over the expiry of the Second Agreement.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\"></h3>\r\n<h3 dir=\"LTR\" align=\"LEFT\">Judgment of the Court of First Instance</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Court of First Instance rejected the Claimant’s submissions.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The Court stated that registration on the Register is only the result of an agency agreement created and concluded between the agent and principal in question and it is not the source of such a relationship. Once an agency agreement is entered into between the relevant parties, the registration of the agent on the Register gives it effect from a more official administrative perspective.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In its judgment, the Court, redirected the focus on the contractual relationship between the parties. It emphasised that the determinative basis upon which an agency can be deemed existent or non-existent is the agency agreement entered into between the parties. Once an agency agreement is concluded, this can be registered on the Register as evidence of such an agreement. Consequently, and imperatively, the same applies to the cessation of an agency agreement. Where the agreement in question comes to an end due to termination or expiry, the agency relationship and the effect of the registration on the Register similarly ends. In other words, the fate of the agency, its operation and its cancellation does not depend on the continuing registration of such agency. On the contrary, the status of the registration depends on the terms of the agency agreement.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In noting the above, the Court consequently dismissed the Claimant’s case. The Court explained that in order for the Claimant to assert its rights as the exclusive agent of the Principal’s products, the Claimant would have to prove that the agency agreement itself still exists and remains in force. It is upon the validity of the agency agreement that the Claimant would have to build its case. Only then would the Claimant be able to allege that the Defendant had acted unlawfully and against the Claimant’s rights by acting as the agent of the Principal. Therefore, reliance entirely on the registration of the Claimant as a commercial agent of the Principal on the Register was deemed insufficient.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion: Back to basics</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The judgment, albeit one of the Court of First Instance and hence subject to appeal, may be a promising first step for tackling the current situation concerning commercial agency agreements. Previously, steadfast reliance on the Register suggested to principals that the Register is an inescapable trap, and to agents that it is a safe haven, trumping all else. The judgment discredits this belief by diverting attention back to where it originally, and legally, belongs – the contractual relationship between the relevant parties. The Court re-clarified the purpose of the Register in that it is a mechanism for recording what is agreed between a principal and its agent - it does not on its own create or maintain any commercial agency rights of the registrants. Should the judgment be upheld, the priority governing agency relationships could be re-organised: first comes the agreement, then comes the Register.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In alignment with the judgment is a recent measure adopted by the Ministry of Economy and Commerce (the \"Ministry\"), whereby it was announced that current agents who are registered on the Register but whose commercial agencies are expired must renew their agencies via agency renewal applications and the required documentation for the same. Otherwise, such agencies would be cancelled off the register in accordance with Article 20 of the Commercial Agency Law No. (8) Of 2002. This approach by the Ministry reflects the same principle as that expressly reinstated in the judgment: appearance on the Register did not by default render the agencies of commercial agents as continued or renewed – the agency agreement itself had to be renewed in order for the registrations to be valid.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Of course, that is not to imply that the registration or cancellation of commercial agents from the Register can be done away with altogether, for it still holds vital importance for other reasons. While the judgment does not alter the fundamentals of the same, it clarifies the role of the Register, refocusing the spotlight on the contractual relationship of the relevant parties as the definitive factor for the creation, continuity and cancellation of agency agreements.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Al Tamimi &amp; Company’s litigation team regularly advises on the application of Qatari laws to various legal matters, on both technical application as well as practical implications.</em></p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>For further information please contact <a href=\"https://www.tamimi.com/lawyer/roy-georgiades/\">Roy Georgiades</a> (<a href=\"mailto:r.georgiades@tamimi.com\">r.georgiades@tamimi.com</a>) or Reem Khader (<a href=\"mailto:r.khader@tamimi.com\">r.khader@tamimi.com</a>)</em></p>'),
(307891, 29376, 'MetaValueOld', '<img class=\"aligncenter size-full wp-image-8238\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_06_Image_0003.jpg\" alt=\"\" width=\"1188\" height=\"250\" />\r\n<p dir=\"LTR\" align=\"LEFT\">The Commercial Agency Register (the \"Register\") is renowned in Qatar for the role it plays when it comes to governing the validity of (or lack of) the relationship between agent and principal. It is a double-edged sword, on the one end allowing registered commercial agents to believe that they can kick back, relax and enjoy their supposedly indissoluble commercial agency rights, and on the other, causing principals to be bound to supposedly inextinguishable agency agreements.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A recent judgment by the Court of First Instance has clarified the laws on commercial agency, potentially stirring up the position of principal and agent. In this case, it was held that registration on the Register is a sign of confirmation, and not creation, of an agency agreement. The determinative factor as to whether or not an agency agreement exists falls on, primarily, the legal and factual existence of the agreement itself.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">The Facts</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Claimant initially entered into a limited duration exclusive agency agreement (the \"Initial Agreement\") as agent for the sale of cars manufactured by the principal mother company (\"Principal\") and was registered as a commercial agent of the Principal on the Register. Subsequently, the Claimant and the Principal entered into a limited duration non-exclusive distribution agreement (\"the Second Agreement\"), in which it was expressly agreed that the Second Agreement terminated and nullified all previous agreements existing between the Claimant and the Principal including the Initial Agreement. The Second Agreement was not renewed at the end of its term and accordingly expired.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Thereafter, the Principal entered into a similar non-exclusive distribution agreement with the Defendant. The Defendant went on to carry out promotional, marketing and sale activities of the Principal’s products, and in doing so, made public announcements about being the new agent of the Principal.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">This came to the attention of the Claimant who brought a case against the Defendant. The Claimant alleged that the Defendant was unlawfully portraying itself as the new distributor of the Principal’s goods and indeed acting as the distributor, when in fact the Claimant was the only registered exclusive agent of the Principal. The Claimant relied solely on the fact that it was still registered as the exclusive agent of the Principal on the Register. The Claimant argued that as long as such registration remained, the Claimant would be the sole party possessing the exclusive agency rights to promote market and sell the Principal’s products, regardless of the existing dispute over the expiry of the Second Agreement.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\"></h3>\r\n<h3 dir=\"LTR\" align=\"LEFT\">Judgment of the Court of First Instance</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Court of First Instance rejected the Claimant’s submissions.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The Court stated that registration on the Register is only the result of an agency agreement created and concluded between the agent and principal in question and it is not the source of such a relationship. Once an agency agreement is entered into between the relevant parties, the registration of the agent on the Register gives it effect from a more official administrative perspective.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In its judgment, the Court, redirected the focus on the contractual relationship between the parties. It emphasised that the determinative basis upon which an agency can be deemed existent or non-existent is the agency agreement entered into between the parties. Once an agency agreement is concluded, this can be registered on the Register as evidence of such an agreement. Consequently, and imperatively, the same applies to the cessation of an agency agreement. Where the agreement in question comes to an end due to termination or expiry, the agency relationship and the effect of the registration on the Register similarly ends. In other words, the fate of the agency, its operation and its cancellation does not depend on the continuing registration of such agency. On the contrary, the status of the registration depends on the terms of the agency agreement.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In noting the above, the Court consequently dismissed the Claimant’s case. The Court explained that in order for the Claimant to assert its rights as the exclusive agent of the Principal’s products, the Claimant would have to prove that the agency agreement itself still exists and remains in force. It is upon the validity of the agency agreement that the Claimant would have to build its case. Only then would the Claimant be able to allege that the Defendant had acted unlawfully and against the Claimant’s rights by acting as the agent of the Principal. Therefore, reliance entirely on the registration of the Claimant as a commercial agent of the Principal on the Register was deemed insufficient.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion: Back to basics</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The judgment, albeit one of the Court of First Instance and hence subject to appeal, may be a promising first step for tackling the current situation concerning commercial agency agreements. Previously, steadfast reliance on the Register suggested to principals that the Register is an inescapable trap, and to agents that it is a safe haven, trumping all else. The judgment discredits this belief by diverting attention back to where it originally, and legally, belongs – the contractual relationship between the relevant parties. The Court re-clarified the purpose of the Register in that it is a mechanism for recording what is agreed between a principal and its agent - it does not on its own create or maintain any commercial agency rights of the registrants. Should the judgment be upheld, the priority governing agency relationships could be re-organised: first comes the agreement, then comes the Register.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In alignment with the judgment is a recent measure adopted by the Ministry of Economy and Commerce (the \"Ministry\"), whereby it was announced that current agents who are registered on the Register but whose commercial agencies are expired must renew their agencies via agency renewal applications and the required documentation for the same. Otherwise, such agencies would be cancelled off the register in accordance with Article 20 of the Commercial Agency Law No. (8) Of 2002. This approach by the Ministry reflects the same principle as that expressly reinstated in the judgment: appearance on the Register did not by default render the agencies of commercial agents as continued or renewed – the agency agreement itself had to be renewed in order for the registrations to be valid.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Of course, that is not to imply that the registration or cancellation of commercial agents from the Register can be done away with altogether, for it still holds vital importance for other reasons. While the judgment does not alter the fundamentals of the same, it clarifies the role of the Register, refocusing the spotlight on the contractual relationship of the relevant parties as the definitive factor for the creation, continuity and cancellation of agency agreements.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Al Tamimi &amp; Company’s litigation team regularly advises on the application of Qatari laws to various legal matters, on both technical application as well as practical implications.</em></p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>For further information please contact <a href=\"https://www.tamimi.com/lawyer/roy-georgiades/\">Roy Georgiades</a> (<a href=\"mailto:r.georgiades@tamimi.com\">r.georgiades@tamimi.com</a>) or Reem Khader (<a href=\"mailto:r.khader@tamimi.com\">r.khader@tamimi.com</a>)</em></p>'),
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INSERT INTO `tm_wsal_metadata` (`id`, `occurrence_id`, `name`, `value`) VALUES
(307894, 29376, 'ReportText', '<img class=\"aligncenter size-full wp-image-8238\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_06_Image_0003.jpg\" alt=\"\" width=\"1188\" height=\"250\" />\r\n<p dir=\"LTR\" align=\"LEFT\">The Commercial Agency Register (the \"Register\") is renowned in Qatar for the role it plays when it comes to governing the validity of (or lack of) the relationship between agent and principal. It is a double-edged sword, on the one end allowing registered commercial agents to believe that they can kick back, relax and enjoy their supposedly indissoluble commercial agency rights, and on the other, causing principals to be bound to supposedly inextinguishable agency agreements.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A recent judgment by the Court of First Instance has clarified the laws on commercial agency, potentially stirring up the position of principal and agent. In this case, it was held that registration on the Register is a sign of confirmation, and not creation, of an agency agreement. The determinative factor as to whether or not an agency agreement exists falls on, primarily, the legal and factual existence of the agreement itself.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">The Facts</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Claimant initially entered into a limited duration exclusive agency agreement (the \"Initial Agreement\") as agent for the sale of cars manufactured by the principal mother company (\"Principal\") and was registered as a commercial agent of the Principal on the Register. Subsequently, the Claimant and the Principal entered into a limited duration non-exclusive distribution agreement (\"the Second Agreement\"), in which it was expressly agreed that the Second Agreement terminated and nullified all previous agreements existing between the Claimant and the Principal including the Initial Agreement. The Second Agreement was not renewed at the end of its term and accordingly expired.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Thereafter, the Principal entered into a similar non-exclusive distribution agreement with the Defendant. The Defendant went on to carry out promotional, marketing and sale activities of the Principal’s products, and in doing so, made public announcements about being the new agent of the Principal.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">This came to the attention of the Claimant who brought a case against the Defendant. The Claimant alleged that the Defendant was unlawfully portraying itself as the new distributor of the Principal’s goods and indeed acting as the distributor, when in fact the Claimant was the only registered exclusive agent of the Principal. The Claimant relied solely on the fact that it was still registered as the exclusive agent of the Principal on the Register. The Claimant argued that as long as such registration remained, the Claimant would be the sole party possessing the exclusive agency rights to promote market and sell the Principal’s products, regardless of the existing dispute over the expiry of the Second Agreement.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\"></h3>\r\n<h3 dir=\"LTR\" align=\"LEFT\">Judgment of the Court of First Instance</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Court of First Instance rejected the Claimant’s submissions.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The Court stated that registration on the Register is only the result of an agency agreement created and concluded between the agent and principal in question and it is not the source of such a relationship. Once an agency agreement is entered into between the relevant parties, the registration of the agent on the Register gives it effect from a more official administrative perspective.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In its judgment, the Court, redirected the focus on the contractual relationship between the parties. It emphasised that the determinative basis upon which an agency can be deemed existent or non-existent is the agency agreement entered into between the parties. Once an agency agreement is concluded, this can be registered on the Register as evidence of such an agreement. Consequently, and imperatively, the same applies to the cessation of an agency agreement. Where the agreement in question comes to an end due to termination or expiry, the agency relationship and the effect of the registration on the Register similarly ends. In other words, the fate of the agency, its operation and its cancellation does not depend on the continuing registration of such agency. On the contrary, the status of the registration depends on the terms of the agency agreement.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In noting the above, the Court consequently dismissed the Claimant’s case. The Court explained that in order for the Claimant to assert its rights as the exclusive agent of the Principal’s products, the Claimant would have to prove that the agency agreement itself still exists and remains in force. It is upon the validity of the agency agreement that the Claimant would have to build its case. Only then would the Claimant be able to allege that the Defendant had acted unlawfully and against the Claimant’s rights by acting as the agent of the Principal. Therefore, reliance entirely on the registration of the Claimant as a commercial agent of the Principal on the Register was deemed insufficient.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion: Back to basics</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The judgment, albeit one of the Court of First Instance and hence subject to appeal, may be a promising first step for tackling the current situation concerning commercial agency agreements. Previously, steadfast reliance on the Register suggested to principals that the Register is an inescapable trap, and to agents that it is a safe haven, trumping all else. The judgment discredits this belief by diverting attention back to where it originally, and legally, belongs – the contractual relationship between the relevant parties. The Court re-clarified the purpose of the Register in that it is a mechanism for recording what is agreed between a principal and its agent - it does not on its own create or maintain any commercial agency rights of the registrants. Should the judgment be upheld, the priority governing agency relationships could be re-organised: first comes the agreement, then comes the Register.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In alignment with the judgment is a recent measure adopted by the Ministry of Economy and Commerce (the \"Ministry\"), whereby it was announced that current agents who are registered on the Register but whose commercial agencies are expired must renew their agencies via agency renewal applications and the required documentation for the same. Otherwise, such agencies would be cancelled off the register in accordance with Article 20 of the Commercial Agency Law No. (8) Of 2002. This approach by the Ministry reflects the same principle as that expressly reinstated in the judgment: appearance on the Register did not by default render the agencies of commercial agents as continued or renewed – the agency agreement itself had to be renewed in order for the registrations to be valid.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Of course, that is not to imply that the registration or cancellation of commercial agents from the Register can be done away with altogether, for it still holds vital importance for other reasons. While the judgment does not alter the fundamentals of the same, it clarifies the role of the Register, refocusing the spotlight on the contractual relationship of the relevant parties as the definitive factor for the creation, continuity and cancellation of agency agreements.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Al Tamimi &amp; Company’s litigation team regularly advises on the application of Qatari laws to various legal matters, on both technical application as well as practical implications.</em></p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>For further information please contact <a href=\"https://www.tamimi.com/lawyer/roy-georgiades/\">Roy Georgiades</a> (<a href=\"mailto:r.georgiades@tamimi.com\">r.georgiades@tamimi.com</a>) or Reem Khader (<a href=\"mailto:r.khader@tamimi.com\">r.khader@tamimi.com</a>)</em></p>|<img class=\"aligncenter size-full wp-image-8238\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_06_Image_0003.jpg\" alt=\"\" width=\"1188\" height=\"250\" />&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Commercial Agency Register (the \"Register\") is renowned in Qatar for the role it plays when it comes to governing the validity of (or lack of) the relationship between agent and principal. It is a double-edged sword, on the one end allowing registered commercial agents to believe that they can kick back, relax and enjoy their supposedly indissoluble commercial agency rights, and on the other, causing principals to be bound to supposedly inextinguishable agency agreements.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A recent judgment by the Court of First Instance has clarified the laws on commercial agency, potentially stirring up the position of principal and agent. In this case, it was held that registration on the Register is a sign of confirmation, and not creation, of an agency agreement. The determinative factor as to whether or not an agency agreement exists falls on, primarily, the legal and factual existence of the agreement itself.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">The Facts</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Claimant initially entered into a limited duration exclusive agency agreement (the \"Initial Agreement\") as agent for the sale of cars manufactured by the principal mother company (\"Principal\") and was registered as a commercial agent of the Principal on the Register. Subsequently, the Claimant and the Principal entered into a limited duration non-exclusive distribution agreement (\"the Second Agreement\"), in which it was expressly agreed that the Second Agreement terminated and nullified all previous agreements existing between the Claimant and the Principal including the Initial Agreement. The Second Agreement was not renewed at the end of its term and accordingly expired.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Thereafter, the Principal entered into a similar non-exclusive distribution agreement with the Defendant. The Defendant went on to carry out promotional, marketing and sale activities of the Principal’s products, and in doing so, made public announcements about being the new agent of the Principal.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">This came to the attention of the Claimant who brought a case against the Defendant. The Claimant alleged that the Defendant was unlawfully portraying itself as the new distributor of the Principal’s goods and indeed acting as the distributor, when in fact the Claimant was the only registered exclusive agent of the Principal. The Claimant relied solely on the fact that it was still registered as the exclusive agent of the Principal on the Register. The Claimant argued that as long as such registration remained, the Claimant would be the sole party possessing the exclusive agency rights to promote market and sell the Principal’s products, regardless of the existing dispute over the expiry of the Second Agreement.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\"></h3>\r\n<h3 dir=\"LTR\" align=\"LEFT\">Judgment of the Court of First Instance</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Court of First Instance rejected the Claimant’s submissions.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The Court stated that registration on the Register is only the result of an agency agreement created and concluded between the agent and principal in question and it is not the source of such a relationship. Once an agency agreement is entered into between the relevant parties, the registration of the agent on the Register gives it effect from a more official administrative perspective.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In its judgment, the Court, redirected the focus on the contractual relationship between the parties. It emphasised that the determinative basis upon which an agency can be deemed existent or non-existent is the agency agreement entered into between the parties. Once an agency agreement is concluded, this can be registered on the Register as evidence of such an agreement. Consequently, and imperatively, the same applies to the cessation of an agency agreement. Where the agreement in question comes to an end due to termination or expiry, the agency relationship and the effect of the registration on the Register similarly ends. In other words, the fate of the agency, its operation and its cancellation does not depend on the continuing registration of such agency. On the contrary, the status of the registration depends on the terms of the agency agreement.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In noting the above, the Court consequently dismissed the Claimant’s case. The Court explained that in order for the Claimant to assert its rights as the exclusive agent of the Principal’s products, the Claimant would have to prove that the agency agreement itself still exists and remains in force. It is upon the validity of the agency agreement that the Claimant would have to build its case. Only then would the Claimant be able to allege that the Defendant had acted unlawfully and against the Claimant’s rights by acting as the agent of the Principal. Therefore, reliance entirely on the registration of the Claimant as a commercial agent of the Principal on the Register was deemed insufficient.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion: Back to basics</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The judgment, albeit one of the Court of First Instance and hence subject to appeal, may be a promising first step for tackling the current situation concerning commercial agency agreements. Previously, steadfast reliance on the Register suggested to principals that the Register is an inescapable trap, and to agents that it is a safe haven, trumping all else. The judgment discredits this belief by diverting attention back to where it originally, and legally, belongs – the contractual relationship between the relevant parties. The Court re-clarified the purpose of the Register in that it is a mechanism for recording what is agreed between a principal and its agent - it does not on its own create or maintain any commercial agency rights of the registrants. Should the judgment be upheld, the priority governing agency relationships could be re-organised: first comes the agreement, then comes the Register.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In alignment with the judgment is a recent measure adopted by the Ministry of Economy and Commerce (the \"Ministry\"), whereby it was announced that current agents who are registered on the Register but whose commercial agencies are expired must renew their agencies via agency renewal applications and the required documentation for the same. Otherwise, such agencies would be cancelled off the register in accordance with Article 20 of the Commercial Agency Law No. (8) Of 2002. This approach by the Ministry reflects the same principle as that expressly reinstated in the judgment: appearance on the Register did not by default render the agencies of commercial agents as continued or renewed – the agency agreement itself had to be renewed in order for the registrations to be valid.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Of course, that is not to imply that the registration or cancellation of commercial agents from the Register can be done away with altogether, for it still holds vital importance for other reasons. While the judgment does not alter the fundamentals of the same, it clarifies the role of the Register, refocusing the spotlight on the contractual relationship of the relevant parties as the definitive factor for the creation, continuity and cancellation of agency agreements.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Al Tamimi &amp; Company’s litigation team regularly advises on the application of Qatari laws to various legal matters, on both technical application as well as practical implications.</em></p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>For further information please contact <a href=\"https://www.tamimi.com/lawyer/roy-georgiades/\">Roy Georgiades</a> (<a href=\"mailto:r.georgiades@tamimi.com\">r.georgiades@tamimi.com</a>) or Reem Khader (<a href=\"mailto:r.khader@tamimi.com\">r.khader@tamimi.com</a>)</em></p>'),
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(307914, 29378, 'PostTitle', 'The Commercial Agency Register: Not as conclusive as you think…'),
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(307925, 29379, 'PostTitle', 'The Commercial Agency Register: Not as conclusive as you think…'),
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(307928, 29379, 'PostDate', '2018-09-04 07:54:15'),
(307929, 29379, 'PostUrl', 'https://www.tamimi.com/law-update-articles/the-commercial-agency-register-not-as-conclusive-as-you-think/'),
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(307932, 29379, 'MetaValueNew', '<img class=\"aligncenter size-full wp-image-8238\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_06_Image_0003.jpg\" alt=\"\" width=\"1188\" height=\"250\" />&nbsp;\r\n&nbsp;<p dir=\"LTR\" align=\"LEFT\">The Commercial Agency Register (the \"Register\") is renowned in Qatar for the role it plays when it comes to governing the validity of (or lack of) the relationship between agent and principal. It is a double-edged sword, on the one end allowing registered commercial agents to believe that they can kick back, relax and enjoy their supposedly indissoluble commercial agency rights, and on the other, causing principals to be bound to supposedly inextinguishable agency agreements.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A recent judgment by the Court of First Instance has clarified the laws on commercial agency, potentially stirring up the position of principal and agent. In this case, it was held that registration on the Register is a sign of confirmation, and not creation, of an agency agreement. The determinative factor as to whether or not an agency agreement exists falls on, primarily, the legal and factual existence of the agreement itself.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">The Facts</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Claimant initially entered into a limited duration exclusive agency agreement (the \"Initial Agreement\") as agent for the sale of cars manufactured by the principal mother company (\"Principal\") and was registered as a commercial agent of the Principal on the Register. Subsequently, the Claimant and the Principal entered into a limited duration non-exclusive distribution agreement (\"the Second Agreement\"), in which it was expressly agreed that the Second Agreement terminated and nullified all previous agreements existing between the Claimant and the Principal including the Initial Agreement. The Second Agreement was not renewed at the end of its term and accordingly expired.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Thereafter, the Principal entered into a similar non-exclusive distribution agreement with the Defendant. The Defendant went on to carry out promotional, marketing and sale activities of the Principal’s products, and in doing so, made public announcements about being the new agent of the Principal.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">This came to the attention of the Claimant who brought a case against the Defendant. The Claimant alleged that the Defendant was unlawfully portraying itself as the new distributor of the Principal’s goods and indeed acting as the distributor, when in fact the Claimant was the only registered exclusive agent of the Principal. The Claimant relied solely on the fact that it was still registered as the exclusive agent of the Principal on the Register. The Claimant argued that as long as such registration remained, the Claimant would be the sole party possessing the exclusive agency rights to promote market and sell the Principal’s products, regardless of the existing dispute over the expiry of the Second Agreement.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\"></h3>\r\n<h3 dir=\"LTR\" align=\"LEFT\">Judgment of the Court of First Instance</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Court of First Instance rejected the Claimant’s submissions.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The Court stated that registration on the Register is only the result of an agency agreement created and concluded between the agent and principal in question and it is not the source of such a relationship. Once an agency agreement is entered into between the relevant parties, the registration of the agent on the Register gives it effect from a more official administrative perspective.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In its judgment, the Court, redirected the focus on the contractual relationship between the parties. It emphasised that the determinative basis upon which an agency can be deemed existent or non-existent is the agency agreement entered into between the parties. Once an agency agreement is concluded, this can be registered on the Register as evidence of such an agreement. Consequently, and imperatively, the same applies to the cessation of an agency agreement. Where the agreement in question comes to an end due to termination or expiry, the agency relationship and the effect of the registration on the Register similarly ends. In other words, the fate of the agency, its operation and its cancellation does not depend on the continuing registration of such agency. On the contrary, the status of the registration depends on the terms of the agency agreement.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In noting the above, the Court consequently dismissed the Claimant’s case. The Court explained that in order for the Claimant to assert its rights as the exclusive agent of the Principal’s products, the Claimant would have to prove that the agency agreement itself still exists and remains in force. It is upon the validity of the agency agreement that the Claimant would have to build its case. Only then would the Claimant be able to allege that the Defendant had acted unlawfully and against the Claimant’s rights by acting as the agent of the Principal. Therefore, reliance entirely on the registration of the Claimant as a commercial agent of the Principal on the Register was deemed insufficient.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion: Back to basics</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The judgment, albeit one of the Court of First Instance and hence subject to appeal, may be a promising first step for tackling the current situation concerning commercial agency agreements. Previously, steadfast reliance on the Register suggested to principals that the Register is an inescapable trap, and to agents that it is a safe haven, trumping all else. The judgment discredits this belief by diverting attention back to where it originally, and legally, belongs – the contractual relationship between the relevant parties. The Court re-clarified the purpose of the Register in that it is a mechanism for recording what is agreed between a principal and its agent - it does not on its own create or maintain any commercial agency rights of the registrants. Should the judgment be upheld, the priority governing agency relationships could be re-organised: first comes the agreement, then comes the Register.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In alignment with the judgment is a recent measure adopted by the Ministry of Economy and Commerce (the \"Ministry\"), whereby it was announced that current agents who are registered on the Register but whose commercial agencies are expired must renew their agencies via agency renewal applications and the required documentation for the same. Otherwise, such agencies would be cancelled off the register in accordance with Article 20 of the Commercial Agency Law No. (8) Of 2002. This approach by the Ministry reflects the same principle as that expressly reinstated in the judgment: appearance on the Register did not by default render the agencies of commercial agents as continued or renewed – the agency agreement itself had to be renewed in order for the registrations to be valid.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Of course, that is not to imply that the registration or cancellation of commercial agents from the Register can be done away with altogether, for it still holds vital importance for other reasons. While the judgment does not alter the fundamentals of the same, it clarifies the role of the Register, refocusing the spotlight on the contractual relationship of the relevant parties as the definitive factor for the creation, continuity and cancellation of agency agreements.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Al Tamimi &amp; Company’s litigation team regularly advises on the application of Qatari laws to various legal matters, on both technical application as well as practical implications.</em></p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>For further information please contact <a href=\"https://www.tamimi.com/lawyer/roy-georgiades/\">Roy Georgiades</a> (<a href=\"mailto:r.georgiades@tamimi.com\">r.georgiades@tamimi.com</a>) or Reem Khader (<a href=\"mailto:r.khader@tamimi.com\">r.khader@tamimi.com</a>)</em></p>'),
(307933, 29379, 'MetaValueOld', '<img class=\"aligncenter size-full wp-image-8238\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_06_Image_0003.jpg\" alt=\"\" width=\"1188\" height=\"250\" />&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Commercial Agency Register (the \"Register\") is renowned in Qatar for the role it plays when it comes to governing the validity of (or lack of) the relationship between agent and principal. It is a double-edged sword, on the one end allowing registered commercial agents to believe that they can kick back, relax and enjoy their supposedly indissoluble commercial agency rights, and on the other, causing principals to be bound to supposedly inextinguishable agency agreements.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A recent judgment by the Court of First Instance has clarified the laws on commercial agency, potentially stirring up the position of principal and agent. In this case, it was held that registration on the Register is a sign of confirmation, and not creation, of an agency agreement. The determinative factor as to whether or not an agency agreement exists falls on, primarily, the legal and factual existence of the agreement itself.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">The Facts</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Claimant initially entered into a limited duration exclusive agency agreement (the \"Initial Agreement\") as agent for the sale of cars manufactured by the principal mother company (\"Principal\") and was registered as a commercial agent of the Principal on the Register. Subsequently, the Claimant and the Principal entered into a limited duration non-exclusive distribution agreement (\"the Second Agreement\"), in which it was expressly agreed that the Second Agreement terminated and nullified all previous agreements existing between the Claimant and the Principal including the Initial Agreement. The Second Agreement was not renewed at the end of its term and accordingly expired.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Thereafter, the Principal entered into a similar non-exclusive distribution agreement with the Defendant. The Defendant went on to carry out promotional, marketing and sale activities of the Principal’s products, and in doing so, made public announcements about being the new agent of the Principal.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">This came to the attention of the Claimant who brought a case against the Defendant. The Claimant alleged that the Defendant was unlawfully portraying itself as the new distributor of the Principal’s goods and indeed acting as the distributor, when in fact the Claimant was the only registered exclusive agent of the Principal. The Claimant relied solely on the fact that it was still registered as the exclusive agent of the Principal on the Register. The Claimant argued that as long as such registration remained, the Claimant would be the sole party possessing the exclusive agency rights to promote market and sell the Principal’s products, regardless of the existing dispute over the expiry of the Second Agreement.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\"></h3>\r\n<h3 dir=\"LTR\" align=\"LEFT\">Judgment of the Court of First Instance</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Court of First Instance rejected the Claimant’s submissions.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The Court stated that registration on the Register is only the result of an agency agreement created and concluded between the agent and principal in question and it is not the source of such a relationship. Once an agency agreement is entered into between the relevant parties, the registration of the agent on the Register gives it effect from a more official administrative perspective.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In its judgment, the Court, redirected the focus on the contractual relationship between the parties. It emphasised that the determinative basis upon which an agency can be deemed existent or non-existent is the agency agreement entered into between the parties. Once an agency agreement is concluded, this can be registered on the Register as evidence of such an agreement. Consequently, and imperatively, the same applies to the cessation of an agency agreement. Where the agreement in question comes to an end due to termination or expiry, the agency relationship and the effect of the registration on the Register similarly ends. In other words, the fate of the agency, its operation and its cancellation does not depend on the continuing registration of such agency. On the contrary, the status of the registration depends on the terms of the agency agreement.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In noting the above, the Court consequently dismissed the Claimant’s case. The Court explained that in order for the Claimant to assert its rights as the exclusive agent of the Principal’s products, the Claimant would have to prove that the agency agreement itself still exists and remains in force. It is upon the validity of the agency agreement that the Claimant would have to build its case. Only then would the Claimant be able to allege that the Defendant had acted unlawfully and against the Claimant’s rights by acting as the agent of the Principal. Therefore, reliance entirely on the registration of the Claimant as a commercial agent of the Principal on the Register was deemed insufficient.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion: Back to basics</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The judgment, albeit one of the Court of First Instance and hence subject to appeal, may be a promising first step for tackling the current situation concerning commercial agency agreements. Previously, steadfast reliance on the Register suggested to principals that the Register is an inescapable trap, and to agents that it is a safe haven, trumping all else. The judgment discredits this belief by diverting attention back to where it originally, and legally, belongs – the contractual relationship between the relevant parties. The Court re-clarified the purpose of the Register in that it is a mechanism for recording what is agreed between a principal and its agent - it does not on its own create or maintain any commercial agency rights of the registrants. Should the judgment be upheld, the priority governing agency relationships could be re-organised: first comes the agreement, then comes the Register.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In alignment with the judgment is a recent measure adopted by the Ministry of Economy and Commerce (the \"Ministry\"), whereby it was announced that current agents who are registered on the Register but whose commercial agencies are expired must renew their agencies via agency renewal applications and the required documentation for the same. Otherwise, such agencies would be cancelled off the register in accordance with Article 20 of the Commercial Agency Law No. (8) Of 2002. This approach by the Ministry reflects the same principle as that expressly reinstated in the judgment: appearance on the Register did not by default render the agencies of commercial agents as continued or renewed – the agency agreement itself had to be renewed in order for the registrations to be valid.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Of course, that is not to imply that the registration or cancellation of commercial agents from the Register can be done away with altogether, for it still holds vital importance for other reasons. While the judgment does not alter the fundamentals of the same, it clarifies the role of the Register, refocusing the spotlight on the contractual relationship of the relevant parties as the definitive factor for the creation, continuity and cancellation of agency agreements.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Al Tamimi &amp; Company’s litigation team regularly advises on the application of Qatari laws to various legal matters, on both technical application as well as practical implications.</em></p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>For further information please contact <a href=\"https://www.tamimi.com/lawyer/roy-georgiades/\">Roy Georgiades</a> (<a href=\"mailto:r.georgiades@tamimi.com\">r.georgiades@tamimi.com</a>) or Reem Khader (<a href=\"mailto:r.khader@tamimi.com\">r.khader@tamimi.com</a>)</em></p>'),
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INSERT INTO `tm_wsal_metadata` (`id`, `occurrence_id`, `name`, `value`) VALUES
(307936, 29379, 'ReportText', '<img class=\"aligncenter size-full wp-image-8238\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_06_Image_0003.jpg\" alt=\"\" width=\"1188\" height=\"250\" />&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Commercial Agency Register (the \"Register\") is renowned in Qatar for the role it plays when it comes to governing the validity of (or lack of) the relationship between agent and principal. It is a double-edged sword, on the one end allowing registered commercial agents to believe that they can kick back, relax and enjoy their supposedly indissoluble commercial agency rights, and on the other, causing principals to be bound to supposedly inextinguishable agency agreements.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A recent judgment by the Court of First Instance has clarified the laws on commercial agency, potentially stirring up the position of principal and agent. In this case, it was held that registration on the Register is a sign of confirmation, and not creation, of an agency agreement. The determinative factor as to whether or not an agency agreement exists falls on, primarily, the legal and factual existence of the agreement itself.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">The Facts</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Claimant initially entered into a limited duration exclusive agency agreement (the \"Initial Agreement\") as agent for the sale of cars manufactured by the principal mother company (\"Principal\") and was registered as a commercial agent of the Principal on the Register. Subsequently, the Claimant and the Principal entered into a limited duration non-exclusive distribution agreement (\"the Second Agreement\"), in which it was expressly agreed that the Second Agreement terminated and nullified all previous agreements existing between the Claimant and the Principal including the Initial Agreement. The Second Agreement was not renewed at the end of its term and accordingly expired.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Thereafter, the Principal entered into a similar non-exclusive distribution agreement with the Defendant. The Defendant went on to carry out promotional, marketing and sale activities of the Principal’s products, and in doing so, made public announcements about being the new agent of the Principal.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">This came to the attention of the Claimant who brought a case against the Defendant. The Claimant alleged that the Defendant was unlawfully portraying itself as the new distributor of the Principal’s goods and indeed acting as the distributor, when in fact the Claimant was the only registered exclusive agent of the Principal. The Claimant relied solely on the fact that it was still registered as the exclusive agent of the Principal on the Register. The Claimant argued that as long as such registration remained, the Claimant would be the sole party possessing the exclusive agency rights to promote market and sell the Principal’s products, regardless of the existing dispute over the expiry of the Second Agreement.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\"></h3>\r\n<h3 dir=\"LTR\" align=\"LEFT\">Judgment of the Court of First Instance</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Court of First Instance rejected the Claimant’s submissions.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The Court stated that registration on the Register is only the result of an agency agreement created and concluded between the agent and principal in question and it is not the source of such a relationship. Once an agency agreement is entered into between the relevant parties, the registration of the agent on the Register gives it effect from a more official administrative perspective.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In its judgment, the Court, redirected the focus on the contractual relationship between the parties. It emphasised that the determinative basis upon which an agency can be deemed existent or non-existent is the agency agreement entered into between the parties. Once an agency agreement is concluded, this can be registered on the Register as evidence of such an agreement. Consequently, and imperatively, the same applies to the cessation of an agency agreement. Where the agreement in question comes to an end due to termination or expiry, the agency relationship and the effect of the registration on the Register similarly ends. In other words, the fate of the agency, its operation and its cancellation does not depend on the continuing registration of such agency. On the contrary, the status of the registration depends on the terms of the agency agreement.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In noting the above, the Court consequently dismissed the Claimant’s case. The Court explained that in order for the Claimant to assert its rights as the exclusive agent of the Principal’s products, the Claimant would have to prove that the agency agreement itself still exists and remains in force. It is upon the validity of the agency agreement that the Claimant would have to build its case. Only then would the Claimant be able to allege that the Defendant had acted unlawfully and against the Claimant’s rights by acting as the agent of the Principal. Therefore, reliance entirely on the registration of the Claimant as a commercial agent of the Principal on the Register was deemed insufficient.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion: Back to basics</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The judgment, albeit one of the Court of First Instance and hence subject to appeal, may be a promising first step for tackling the current situation concerning commercial agency agreements. Previously, steadfast reliance on the Register suggested to principals that the Register is an inescapable trap, and to agents that it is a safe haven, trumping all else. The judgment discredits this belief by diverting attention back to where it originally, and legally, belongs – the contractual relationship between the relevant parties. The Court re-clarified the purpose of the Register in that it is a mechanism for recording what is agreed between a principal and its agent - it does not on its own create or maintain any commercial agency rights of the registrants. Should the judgment be upheld, the priority governing agency relationships could be re-organised: first comes the agreement, then comes the Register.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In alignment with the judgment is a recent measure adopted by the Ministry of Economy and Commerce (the \"Ministry\"), whereby it was announced that current agents who are registered on the Register but whose commercial agencies are expired must renew their agencies via agency renewal applications and the required documentation for the same. Otherwise, such agencies would be cancelled off the register in accordance with Article 20 of the Commercial Agency Law No. (8) Of 2002. This approach by the Ministry reflects the same principle as that expressly reinstated in the judgment: appearance on the Register did not by default render the agencies of commercial agents as continued or renewed – the agency agreement itself had to be renewed in order for the registrations to be valid.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Of course, that is not to imply that the registration or cancellation of commercial agents from the Register can be done away with altogether, for it still holds vital importance for other reasons. While the judgment does not alter the fundamentals of the same, it clarifies the role of the Register, refocusing the spotlight on the contractual relationship of the relevant parties as the definitive factor for the creation, continuity and cancellation of agency agreements.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Al Tamimi &amp; Company’s litigation team regularly advises on the application of Qatari laws to various legal matters, on both technical application as well as practical implications.</em></p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>For further information please contact <a href=\"https://www.tamimi.com/lawyer/roy-georgiades/\">Roy Georgiades</a> (<a href=\"mailto:r.georgiades@tamimi.com\">r.georgiades@tamimi.com</a>) or Reem Khader (<a href=\"mailto:r.khader@tamimi.com\">r.khader@tamimi.com</a>)</em></p>|<img class=\"aligncenter size-full wp-image-8238\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_06_Image_0003.jpg\" alt=\"\" width=\"1188\" height=\"250\" />&nbsp;\r\n&nbsp;<p dir=\"LTR\" align=\"LEFT\">The Commercial Agency Register (the \"Register\") is renowned in Qatar for the role it plays when it comes to governing the validity of (or lack of) the relationship between agent and principal. It is a double-edged sword, on the one end allowing registered commercial agents to believe that they can kick back, relax and enjoy their supposedly indissoluble commercial agency rights, and on the other, causing principals to be bound to supposedly inextinguishable agency agreements.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A recent judgment by the Court of First Instance has clarified the laws on commercial agency, potentially stirring up the position of principal and agent. In this case, it was held that registration on the Register is a sign of confirmation, and not creation, of an agency agreement. The determinative factor as to whether or not an agency agreement exists falls on, primarily, the legal and factual existence of the agreement itself.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">The Facts</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Claimant initially entered into a limited duration exclusive agency agreement (the \"Initial Agreement\") as agent for the sale of cars manufactured by the principal mother company (\"Principal\") and was registered as a commercial agent of the Principal on the Register. Subsequently, the Claimant and the Principal entered into a limited duration non-exclusive distribution agreement (\"the Second Agreement\"), in which it was expressly agreed that the Second Agreement terminated and nullified all previous agreements existing between the Claimant and the Principal including the Initial Agreement. The Second Agreement was not renewed at the end of its term and accordingly expired.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Thereafter, the Principal entered into a similar non-exclusive distribution agreement with the Defendant. The Defendant went on to carry out promotional, marketing and sale activities of the Principal’s products, and in doing so, made public announcements about being the new agent of the Principal.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">This came to the attention of the Claimant who brought a case against the Defendant. The Claimant alleged that the Defendant was unlawfully portraying itself as the new distributor of the Principal’s goods and indeed acting as the distributor, when in fact the Claimant was the only registered exclusive agent of the Principal. The Claimant relied solely on the fact that it was still registered as the exclusive agent of the Principal on the Register. The Claimant argued that as long as such registration remained, the Claimant would be the sole party possessing the exclusive agency rights to promote market and sell the Principal’s products, regardless of the existing dispute over the expiry of the Second Agreement.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\"></h3>\r\n<h3 dir=\"LTR\" align=\"LEFT\">Judgment of the Court of First Instance</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Court of First Instance rejected the Claimant’s submissions.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The Court stated that registration on the Register is only the result of an agency agreement created and concluded between the agent and principal in question and it is not the source of such a relationship. Once an agency agreement is entered into between the relevant parties, the registration of the agent on the Register gives it effect from a more official administrative perspective.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In its judgment, the Court, redirected the focus on the contractual relationship between the parties. It emphasised that the determinative basis upon which an agency can be deemed existent or non-existent is the agency agreement entered into between the parties. Once an agency agreement is concluded, this can be registered on the Register as evidence of such an agreement. Consequently, and imperatively, the same applies to the cessation of an agency agreement. Where the agreement in question comes to an end due to termination or expiry, the agency relationship and the effect of the registration on the Register similarly ends. In other words, the fate of the agency, its operation and its cancellation does not depend on the continuing registration of such agency. On the contrary, the status of the registration depends on the terms of the agency agreement.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In noting the above, the Court consequently dismissed the Claimant’s case. The Court explained that in order for the Claimant to assert its rights as the exclusive agent of the Principal’s products, the Claimant would have to prove that the agency agreement itself still exists and remains in force. It is upon the validity of the agency agreement that the Claimant would have to build its case. Only then would the Claimant be able to allege that the Defendant had acted unlawfully and against the Claimant’s rights by acting as the agent of the Principal. Therefore, reliance entirely on the registration of the Claimant as a commercial agent of the Principal on the Register was deemed insufficient.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion: Back to basics</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The judgment, albeit one of the Court of First Instance and hence subject to appeal, may be a promising first step for tackling the current situation concerning commercial agency agreements. Previously, steadfast reliance on the Register suggested to principals that the Register is an inescapable trap, and to agents that it is a safe haven, trumping all else. The judgment discredits this belief by diverting attention back to where it originally, and legally, belongs – the contractual relationship between the relevant parties. The Court re-clarified the purpose of the Register in that it is a mechanism for recording what is agreed between a principal and its agent - it does not on its own create or maintain any commercial agency rights of the registrants. Should the judgment be upheld, the priority governing agency relationships could be re-organised: first comes the agreement, then comes the Register.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In alignment with the judgment is a recent measure adopted by the Ministry of Economy and Commerce (the \"Ministry\"), whereby it was announced that current agents who are registered on the Register but whose commercial agencies are expired must renew their agencies via agency renewal applications and the required documentation for the same. Otherwise, such agencies would be cancelled off the register in accordance with Article 20 of the Commercial Agency Law No. (8) Of 2002. This approach by the Ministry reflects the same principle as that expressly reinstated in the judgment: appearance on the Register did not by default render the agencies of commercial agents as continued or renewed – the agency agreement itself had to be renewed in order for the registrations to be valid.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Of course, that is not to imply that the registration or cancellation of commercial agents from the Register can be done away with altogether, for it still holds vital importance for other reasons. While the judgment does not alter the fundamentals of the same, it clarifies the role of the Register, refocusing the spotlight on the contractual relationship of the relevant parties as the definitive factor for the creation, continuity and cancellation of agency agreements.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Al Tamimi &amp; Company’s litigation team regularly advises on the application of Qatari laws to various legal matters, on both technical application as well as practical implications.</em></p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>For further information please contact <a href=\"https://www.tamimi.com/lawyer/roy-georgiades/\">Roy Georgiades</a> (<a href=\"mailto:r.georgiades@tamimi.com\">r.georgiades@tamimi.com</a>) or Reem Khader (<a href=\"mailto:r.khader@tamimi.com\">r.khader@tamimi.com</a>)</em></p>'),
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(307967, 29382, 'PostTitle', 'The Commercial Agency Register: Not as conclusive as you think…'),
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(307969, 29382, 'PostType', 'law_update_articles'),
(307970, 29382, 'PostDate', '2018-09-04 07:54:15'),
(307971, 29382, 'PostUrl', 'https://www.tamimi.com/law-update-articles/the-commercial-agency-register-not-as-conclusive-as-you-think/'),
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(307974, 29382, 'MetaValueNew', '<img class=\"aligncenter size-full wp-image-8238\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_06_Image_0003.jpg\" alt=\"\" width=\"1188\" height=\"250\" />\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Commercial Agency Register (the \"Register\") is renowned in Qatar for the role it plays when it comes to governing the validity of (or lack of) the relationship between agent and principal. It is a double-edged sword, on the one end allowing registered commercial agents to believe that they can kick back, relax and enjoy their supposedly indissoluble commercial agency rights, and on the other, causing principals to be bound to supposedly inextinguishable agency agreements.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A recent judgment by the Court of First Instance has clarified the laws on commercial agency, potentially stirring up the position of principal and agent. In this case, it was held that registration on the Register is a sign of confirmation, and not creation, of an agency agreement. The determinative factor as to whether or not an agency agreement exists falls on, primarily, the legal and factual existence of the agreement itself.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">The Facts</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Claimant initially entered into a limited duration exclusive agency agreement (the \"Initial Agreement\") as agent for the sale of cars manufactured by the principal mother company (\"Principal\") and was registered as a commercial agent of the Principal on the Register. Subsequently, the Claimant and the Principal entered into a limited duration non-exclusive distribution agreement (\"the Second Agreement\"), in which it was expressly agreed that the Second Agreement terminated and nullified all previous agreements existing between the Claimant and the Principal including the Initial Agreement. The Second Agreement was not renewed at the end of its term and accordingly expired.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Thereafter, the Principal entered into a similar non-exclusive distribution agreement with the Defendant. The Defendant went on to carry out promotional, marketing and sale activities of the Principal’s products, and in doing so, made public announcements about being the new agent of the Principal.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">This came to the attention of the Claimant who brought a case against the Defendant. The Claimant alleged that the Defendant was unlawfully portraying itself as the new distributor of the Principal’s goods and indeed acting as the distributor, when in fact the Claimant was the only registered exclusive agent of the Principal. The Claimant relied solely on the fact that it was still registered as the exclusive agent of the Principal on the Register. The Claimant argued that as long as such registration remained, the Claimant would be the sole party possessing the exclusive agency rights to promote market and sell the Principal’s products, regardless of the existing dispute over the expiry of the Second Agreement.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\"></h3>\r\n<h3 dir=\"LTR\" align=\"LEFT\">Judgment of the Court of First Instance</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Court of First Instance rejected the Claimant’s submissions.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The Court stated that registration on the Register is only the result of an agency agreement created and concluded between the agent and principal in question and it is not the source of such a relationship. Once an agency agreement is entered into between the relevant parties, the registration of the agent on the Register gives it effect from a more official administrative perspective.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In its judgment, the Court, redirected the focus on the contractual relationship between the parties. It emphasised that the determinative basis upon which an agency can be deemed existent or non-existent is the agency agreement entered into between the parties. Once an agency agreement is concluded, this can be registered on the Register as evidence of such an agreement. Consequently, and imperatively, the same applies to the cessation of an agency agreement. Where the agreement in question comes to an end due to termination or expiry, the agency relationship and the effect of the registration on the Register similarly ends. In other words, the fate of the agency, its operation and its cancellation does not depend on the continuing registration of such agency. On the contrary, the status of the registration depends on the terms of the agency agreement.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In noting the above, the Court consequently dismissed the Claimant’s case. The Court explained that in order for the Claimant to assert its rights as the exclusive agent of the Principal’s products, the Claimant would have to prove that the agency agreement itself still exists and remains in force. It is upon the validity of the agency agreement that the Claimant would have to build its case. Only then would the Claimant be able to allege that the Defendant had acted unlawfully and against the Claimant’s rights by acting as the agent of the Principal. Therefore, reliance entirely on the registration of the Claimant as a commercial agent of the Principal on the Register was deemed insufficient.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion: Back to basics</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The judgment, albeit one of the Court of First Instance and hence subject to appeal, may be a promising first step for tackling the current situation concerning commercial agency agreements. Previously, steadfast reliance on the Register suggested to principals that the Register is an inescapable trap, and to agents that it is a safe haven, trumping all else. The judgment discredits this belief by diverting attention back to where it originally, and legally, belongs – the contractual relationship between the relevant parties. The Court re-clarified the purpose of the Register in that it is a mechanism for recording what is agreed between a principal and its agent - it does not on its own create or maintain any commercial agency rights of the registrants. Should the judgment be upheld, the priority governing agency relationships could be re-organised: first comes the agreement, then comes the Register.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In alignment with the judgment is a recent measure adopted by the Ministry of Economy and Commerce (the \"Ministry\"), whereby it was announced that current agents who are registered on the Register but whose commercial agencies are expired must renew their agencies via agency renewal applications and the required documentation for the same. Otherwise, such agencies would be cancelled off the register in accordance with Article 20 of the Commercial Agency Law No. (8) Of 2002. This approach by the Ministry reflects the same principle as that expressly reinstated in the judgment: appearance on the Register did not by default render the agencies of commercial agents as continued or renewed – the agency agreement itself had to be renewed in order for the registrations to be valid.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Of course, that is not to imply that the registration or cancellation of commercial agents from the Register can be done away with altogether, for it still holds vital importance for other reasons. While the judgment does not alter the fundamentals of the same, it clarifies the role of the Register, refocusing the spotlight on the contractual relationship of the relevant parties as the definitive factor for the creation, continuity and cancellation of agency agreements.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Al Tamimi &amp; Company’s litigation team regularly advises on the application of Qatari laws to various legal matters, on both technical application as well as practical implications.</em></p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>For further information please contact <a href=\"https://www.tamimi.com/lawyer/roy-georgiades/\">Roy Georgiades</a> (<a href=\"mailto:r.georgiades@tamimi.com\">r.georgiades@tamimi.com</a>) or Reem Khader (<a href=\"mailto:r.khader@tamimi.com\">r.khader@tamimi.com</a>)</em></p>'),
(307975, 29382, 'MetaValueOld', '<img class=\"aligncenter size-full wp-image-8238\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_06_Image_0003.jpg\" alt=\"\" width=\"1188\" height=\"250\" />&nbsp;\r\n&nbsp;<p dir=\"LTR\" align=\"LEFT\">The Commercial Agency Register (the \"Register\") is renowned in Qatar for the role it plays when it comes to governing the validity of (or lack of) the relationship between agent and principal. It is a double-edged sword, on the one end allowing registered commercial agents to believe that they can kick back, relax and enjoy their supposedly indissoluble commercial agency rights, and on the other, causing principals to be bound to supposedly inextinguishable agency agreements.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A recent judgment by the Court of First Instance has clarified the laws on commercial agency, potentially stirring up the position of principal and agent. In this case, it was held that registration on the Register is a sign of confirmation, and not creation, of an agency agreement. The determinative factor as to whether or not an agency agreement exists falls on, primarily, the legal and factual existence of the agreement itself.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">The Facts</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Claimant initially entered into a limited duration exclusive agency agreement (the \"Initial Agreement\") as agent for the sale of cars manufactured by the principal mother company (\"Principal\") and was registered as a commercial agent of the Principal on the Register. Subsequently, the Claimant and the Principal entered into a limited duration non-exclusive distribution agreement (\"the Second Agreement\"), in which it was expressly agreed that the Second Agreement terminated and nullified all previous agreements existing between the Claimant and the Principal including the Initial Agreement. The Second Agreement was not renewed at the end of its term and accordingly expired.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Thereafter, the Principal entered into a similar non-exclusive distribution agreement with the Defendant. The Defendant went on to carry out promotional, marketing and sale activities of the Principal’s products, and in doing so, made public announcements about being the new agent of the Principal.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">This came to the attention of the Claimant who brought a case against the Defendant. The Claimant alleged that the Defendant was unlawfully portraying itself as the new distributor of the Principal’s goods and indeed acting as the distributor, when in fact the Claimant was the only registered exclusive agent of the Principal. The Claimant relied solely on the fact that it was still registered as the exclusive agent of the Principal on the Register. The Claimant argued that as long as such registration remained, the Claimant would be the sole party possessing the exclusive agency rights to promote market and sell the Principal’s products, regardless of the existing dispute over the expiry of the Second Agreement.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\"></h3>\r\n<h3 dir=\"LTR\" align=\"LEFT\">Judgment of the Court of First Instance</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Court of First Instance rejected the Claimant’s submissions.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The Court stated that registration on the Register is only the result of an agency agreement created and concluded between the agent and principal in question and it is not the source of such a relationship. Once an agency agreement is entered into between the relevant parties, the registration of the agent on the Register gives it effect from a more official administrative perspective.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In its judgment, the Court, redirected the focus on the contractual relationship between the parties. It emphasised that the determinative basis upon which an agency can be deemed existent or non-existent is the agency agreement entered into between the parties. Once an agency agreement is concluded, this can be registered on the Register as evidence of such an agreement. Consequently, and imperatively, the same applies to the cessation of an agency agreement. Where the agreement in question comes to an end due to termination or expiry, the agency relationship and the effect of the registration on the Register similarly ends. In other words, the fate of the agency, its operation and its cancellation does not depend on the continuing registration of such agency. On the contrary, the status of the registration depends on the terms of the agency agreement.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In noting the above, the Court consequently dismissed the Claimant’s case. The Court explained that in order for the Claimant to assert its rights as the exclusive agent of the Principal’s products, the Claimant would have to prove that the agency agreement itself still exists and remains in force. It is upon the validity of the agency agreement that the Claimant would have to build its case. Only then would the Claimant be able to allege that the Defendant had acted unlawfully and against the Claimant’s rights by acting as the agent of the Principal. Therefore, reliance entirely on the registration of the Claimant as a commercial agent of the Principal on the Register was deemed insufficient.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion: Back to basics</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The judgment, albeit one of the Court of First Instance and hence subject to appeal, may be a promising first step for tackling the current situation concerning commercial agency agreements. Previously, steadfast reliance on the Register suggested to principals that the Register is an inescapable trap, and to agents that it is a safe haven, trumping all else. The judgment discredits this belief by diverting attention back to where it originally, and legally, belongs – the contractual relationship between the relevant parties. The Court re-clarified the purpose of the Register in that it is a mechanism for recording what is agreed between a principal and its agent - it does not on its own create or maintain any commercial agency rights of the registrants. Should the judgment be upheld, the priority governing agency relationships could be re-organised: first comes the agreement, then comes the Register.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In alignment with the judgment is a recent measure adopted by the Ministry of Economy and Commerce (the \"Ministry\"), whereby it was announced that current agents who are registered on the Register but whose commercial agencies are expired must renew their agencies via agency renewal applications and the required documentation for the same. Otherwise, such agencies would be cancelled off the register in accordance with Article 20 of the Commercial Agency Law No. (8) Of 2002. This approach by the Ministry reflects the same principle as that expressly reinstated in the judgment: appearance on the Register did not by default render the agencies of commercial agents as continued or renewed – the agency agreement itself had to be renewed in order for the registrations to be valid.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Of course, that is not to imply that the registration or cancellation of commercial agents from the Register can be done away with altogether, for it still holds vital importance for other reasons. While the judgment does not alter the fundamentals of the same, it clarifies the role of the Register, refocusing the spotlight on the contractual relationship of the relevant parties as the definitive factor for the creation, continuity and cancellation of agency agreements.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Al Tamimi &amp; Company’s litigation team regularly advises on the application of Qatari laws to various legal matters, on both technical application as well as practical implications.</em></p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>For further information please contact <a href=\"https://www.tamimi.com/lawyer/roy-georgiades/\">Roy Georgiades</a> (<a href=\"mailto:r.georgiades@tamimi.com\">r.georgiades@tamimi.com</a>) or Reem Khader (<a href=\"mailto:r.khader@tamimi.com\">r.khader@tamimi.com</a>)</em></p>'),
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INSERT INTO `tm_wsal_metadata` (`id`, `occurrence_id`, `name`, `value`) VALUES
(307978, 29382, 'ReportText', '<img class=\"aligncenter size-full wp-image-8238\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_06_Image_0003.jpg\" alt=\"\" width=\"1188\" height=\"250\" />&nbsp;\r\n&nbsp;<p dir=\"LTR\" align=\"LEFT\">The Commercial Agency Register (the \"Register\") is renowned in Qatar for the role it plays when it comes to governing the validity of (or lack of) the relationship between agent and principal. It is a double-edged sword, on the one end allowing registered commercial agents to believe that they can kick back, relax and enjoy their supposedly indissoluble commercial agency rights, and on the other, causing principals to be bound to supposedly inextinguishable agency agreements.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A recent judgment by the Court of First Instance has clarified the laws on commercial agency, potentially stirring up the position of principal and agent. In this case, it was held that registration on the Register is a sign of confirmation, and not creation, of an agency agreement. The determinative factor as to whether or not an agency agreement exists falls on, primarily, the legal and factual existence of the agreement itself.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">The Facts</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Claimant initially entered into a limited duration exclusive agency agreement (the \"Initial Agreement\") as agent for the sale of cars manufactured by the principal mother company (\"Principal\") and was registered as a commercial agent of the Principal on the Register. Subsequently, the Claimant and the Principal entered into a limited duration non-exclusive distribution agreement (\"the Second Agreement\"), in which it was expressly agreed that the Second Agreement terminated and nullified all previous agreements existing between the Claimant and the Principal including the Initial Agreement. The Second Agreement was not renewed at the end of its term and accordingly expired.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Thereafter, the Principal entered into a similar non-exclusive distribution agreement with the Defendant. The Defendant went on to carry out promotional, marketing and sale activities of the Principal’s products, and in doing so, made public announcements about being the new agent of the Principal.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">This came to the attention of the Claimant who brought a case against the Defendant. The Claimant alleged that the Defendant was unlawfully portraying itself as the new distributor of the Principal’s goods and indeed acting as the distributor, when in fact the Claimant was the only registered exclusive agent of the Principal. The Claimant relied solely on the fact that it was still registered as the exclusive agent of the Principal on the Register. The Claimant argued that as long as such registration remained, the Claimant would be the sole party possessing the exclusive agency rights to promote market and sell the Principal’s products, regardless of the existing dispute over the expiry of the Second Agreement.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\"></h3>\r\n<h3 dir=\"LTR\" align=\"LEFT\">Judgment of the Court of First Instance</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Court of First Instance rejected the Claimant’s submissions.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The Court stated that registration on the Register is only the result of an agency agreement created and concluded between the agent and principal in question and it is not the source of such a relationship. Once an agency agreement is entered into between the relevant parties, the registration of the agent on the Register gives it effect from a more official administrative perspective.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In its judgment, the Court, redirected the focus on the contractual relationship between the parties. It emphasised that the determinative basis upon which an agency can be deemed existent or non-existent is the agency agreement entered into between the parties. Once an agency agreement is concluded, this can be registered on the Register as evidence of such an agreement. Consequently, and imperatively, the same applies to the cessation of an agency agreement. Where the agreement in question comes to an end due to termination or expiry, the agency relationship and the effect of the registration on the Register similarly ends. In other words, the fate of the agency, its operation and its cancellation does not depend on the continuing registration of such agency. On the contrary, the status of the registration depends on the terms of the agency agreement.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In noting the above, the Court consequently dismissed the Claimant’s case. The Court explained that in order for the Claimant to assert its rights as the exclusive agent of the Principal’s products, the Claimant would have to prove that the agency agreement itself still exists and remains in force. It is upon the validity of the agency agreement that the Claimant would have to build its case. Only then would the Claimant be able to allege that the Defendant had acted unlawfully and against the Claimant’s rights by acting as the agent of the Principal. Therefore, reliance entirely on the registration of the Claimant as a commercial agent of the Principal on the Register was deemed insufficient.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion: Back to basics</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The judgment, albeit one of the Court of First Instance and hence subject to appeal, may be a promising first step for tackling the current situation concerning commercial agency agreements. Previously, steadfast reliance on the Register suggested to principals that the Register is an inescapable trap, and to agents that it is a safe haven, trumping all else. The judgment discredits this belief by diverting attention back to where it originally, and legally, belongs – the contractual relationship between the relevant parties. The Court re-clarified the purpose of the Register in that it is a mechanism for recording what is agreed between a principal and its agent - it does not on its own create or maintain any commercial agency rights of the registrants. Should the judgment be upheld, the priority governing agency relationships could be re-organised: first comes the agreement, then comes the Register.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In alignment with the judgment is a recent measure adopted by the Ministry of Economy and Commerce (the \"Ministry\"), whereby it was announced that current agents who are registered on the Register but whose commercial agencies are expired must renew their agencies via agency renewal applications and the required documentation for the same. Otherwise, such agencies would be cancelled off the register in accordance with Article 20 of the Commercial Agency Law No. (8) Of 2002. This approach by the Ministry reflects the same principle as that expressly reinstated in the judgment: appearance on the Register did not by default render the agencies of commercial agents as continued or renewed – the agency agreement itself had to be renewed in order for the registrations to be valid.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Of course, that is not to imply that the registration or cancellation of commercial agents from the Register can be done away with altogether, for it still holds vital importance for other reasons. While the judgment does not alter the fundamentals of the same, it clarifies the role of the Register, refocusing the spotlight on the contractual relationship of the relevant parties as the definitive factor for the creation, continuity and cancellation of agency agreements.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Al Tamimi &amp; Company’s litigation team regularly advises on the application of Qatari laws to various legal matters, on both technical application as well as practical implications.</em></p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>For further information please contact <a href=\"https://www.tamimi.com/lawyer/roy-georgiades/\">Roy Georgiades</a> (<a href=\"mailto:r.georgiades@tamimi.com\">r.georgiades@tamimi.com</a>) or Reem Khader (<a href=\"mailto:r.khader@tamimi.com\">r.khader@tamimi.com</a>)</em></p>|<img class=\"aligncenter size-full wp-image-8238\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_06_Image_0003.jpg\" alt=\"\" width=\"1188\" height=\"250\" />\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Commercial Agency Register (the \"Register\") is renowned in Qatar for the role it plays when it comes to governing the validity of (or lack of) the relationship between agent and principal. It is a double-edged sword, on the one end allowing registered commercial agents to believe that they can kick back, relax and enjoy their supposedly indissoluble commercial agency rights, and on the other, causing principals to be bound to supposedly inextinguishable agency agreements.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A recent judgment by the Court of First Instance has clarified the laws on commercial agency, potentially stirring up the position of principal and agent. In this case, it was held that registration on the Register is a sign of confirmation, and not creation, of an agency agreement. The determinative factor as to whether or not an agency agreement exists falls on, primarily, the legal and factual existence of the agreement itself.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">The Facts</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Claimant initially entered into a limited duration exclusive agency agreement (the \"Initial Agreement\") as agent for the sale of cars manufactured by the principal mother company (\"Principal\") and was registered as a commercial agent of the Principal on the Register. Subsequently, the Claimant and the Principal entered into a limited duration non-exclusive distribution agreement (\"the Second Agreement\"), in which it was expressly agreed that the Second Agreement terminated and nullified all previous agreements existing between the Claimant and the Principal including the Initial Agreement. The Second Agreement was not renewed at the end of its term and accordingly expired.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Thereafter, the Principal entered into a similar non-exclusive distribution agreement with the Defendant. The Defendant went on to carry out promotional, marketing and sale activities of the Principal’s products, and in doing so, made public announcements about being the new agent of the Principal.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">This came to the attention of the Claimant who brought a case against the Defendant. The Claimant alleged that the Defendant was unlawfully portraying itself as the new distributor of the Principal’s goods and indeed acting as the distributor, when in fact the Claimant was the only registered exclusive agent of the Principal. The Claimant relied solely on the fact that it was still registered as the exclusive agent of the Principal on the Register. The Claimant argued that as long as such registration remained, the Claimant would be the sole party possessing the exclusive agency rights to promote market and sell the Principal’s products, regardless of the existing dispute over the expiry of the Second Agreement.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\"></h3>\r\n<h3 dir=\"LTR\" align=\"LEFT\">Judgment of the Court of First Instance</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The Court of First Instance rejected the Claimant’s submissions.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The Court stated that registration on the Register is only the result of an agency agreement created and concluded between the agent and principal in question and it is not the source of such a relationship. Once an agency agreement is entered into between the relevant parties, the registration of the agent on the Register gives it effect from a more official administrative perspective.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In its judgment, the Court, redirected the focus on the contractual relationship between the parties. It emphasised that the determinative basis upon which an agency can be deemed existent or non-existent is the agency agreement entered into between the parties. Once an agency agreement is concluded, this can be registered on the Register as evidence of such an agreement. Consequently, and imperatively, the same applies to the cessation of an agency agreement. Where the agreement in question comes to an end due to termination or expiry, the agency relationship and the effect of the registration on the Register similarly ends. In other words, the fate of the agency, its operation and its cancellation does not depend on the continuing registration of such agency. On the contrary, the status of the registration depends on the terms of the agency agreement.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In noting the above, the Court consequently dismissed the Claimant’s case. The Court explained that in order for the Claimant to assert its rights as the exclusive agent of the Principal’s products, the Claimant would have to prove that the agency agreement itself still exists and remains in force. It is upon the validity of the agency agreement that the Claimant would have to build its case. Only then would the Claimant be able to allege that the Defendant had acted unlawfully and against the Claimant’s rights by acting as the agent of the Principal. Therefore, reliance entirely on the registration of the Claimant as a commercial agent of the Principal on the Register was deemed insufficient.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion: Back to basics</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The judgment, albeit one of the Court of First Instance and hence subject to appeal, may be a promising first step for tackling the current situation concerning commercial agency agreements. Previously, steadfast reliance on the Register suggested to principals that the Register is an inescapable trap, and to agents that it is a safe haven, trumping all else. The judgment discredits this belief by diverting attention back to where it originally, and legally, belongs – the contractual relationship between the relevant parties. The Court re-clarified the purpose of the Register in that it is a mechanism for recording what is agreed between a principal and its agent - it does not on its own create or maintain any commercial agency rights of the registrants. Should the judgment be upheld, the priority governing agency relationships could be re-organised: first comes the agreement, then comes the Register.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">In alignment with the judgment is a recent measure adopted by the Ministry of Economy and Commerce (the \"Ministry\"), whereby it was announced that current agents who are registered on the Register but whose commercial agencies are expired must renew their agencies via agency renewal applications and the required documentation for the same. Otherwise, such agencies would be cancelled off the register in accordance with Article 20 of the Commercial Agency Law No. (8) Of 2002. This approach by the Ministry reflects the same principle as that expressly reinstated in the judgment: appearance on the Register did not by default render the agencies of commercial agents as continued or renewed – the agency agreement itself had to be renewed in order for the registrations to be valid.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Of course, that is not to imply that the registration or cancellation of commercial agents from the Register can be done away with altogether, for it still holds vital importance for other reasons. While the judgment does not alter the fundamentals of the same, it clarifies the role of the Register, refocusing the spotlight on the contractual relationship of the relevant parties as the definitive factor for the creation, continuity and cancellation of agency agreements.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Al Tamimi &amp; Company’s litigation team regularly advises on the application of Qatari laws to various legal matters, on both technical application as well as practical implications.</em></p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>For further information please contact <a href=\"https://www.tamimi.com/lawyer/roy-georgiades/\">Roy Georgiades</a> (<a href=\"mailto:r.georgiades@tamimi.com\">r.georgiades@tamimi.com</a>) or Reem Khader (<a href=\"mailto:r.khader@tamimi.com\">r.khader@tamimi.com</a>)</em></p>'),
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(308070, 29391, 'MetaValueNew', '<p dir=\"LTR\" align=\"LEFT\">The General Data Protection Regulations (\"GDPR\") came into effect on 25 May 2018. The <a href=\"https://www.tamimi.com/law-update-articles/minding-your-own-business-the-extra-territorial-application-of-the-eus-data-protection-regulation/\">GDPR</a>, which replaced the EU’s Data Protection Directive of 1995, represents a significant expansion of personal privacy rights for EU residents.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The politically challenging task of escalating privacy protection from a directive to a binding regulation began in 2009 and involved protracted negotiations among the European Commission (the EU executive body) and its two legislative chambers, the Council of the European Union and the European Parliament. This was partially motivated by the desire for uniform protections for all EU residents and partially necessitated by the needs of regulated entities for consistent compliance requirements across the EU.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Why should Middle East institutions pay attention to GDPR?</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><img class=\"wp-image-8219 alignright\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/8.jpg\" alt=\"\" width=\"482\" height=\"369\" /> It is widely known that the GDPR has more enforceable legal status in comparison to the previous Data Protection Directive, and it is also substantively more robust in a number of significant ways. The most notable of these for entities located in the Middle East is that, unlike the Data Protection Directive (which mandated compliance by entities with a physical EU presence, such as a processing center or even a server), the GDPR’s coverage extends to entities with no physical EU footprint if they process personal data of EU data subjects residing in the EU. This limited extraterritoriality, while a significant expansion of the reach of EU law to entities outside the EU, does not attach to EU citizens abroad. As such, a Middle East entity involved in a data transaction with an EU resident in the Middle East, for instance, would not be subject to the GDPR; the same entity engaging in significant and intentional cyber-transactions with EU residents would be.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Why education providers should pay attention to the GDPR?</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Middle East-based Education institutions newly affected by the extraterritorial reach of GDPR are those that target distance education programmes to EU residents who are physically located in one of the member states. Such programmes were not initially subject to EU privacy law under the Data Protection Directive if they did not have infrastructure within the EU, but are now covered under the GDPR, even if they have no physical presence within the EU. However, Article 3 of the GDPR suggests that incidental transactions, such as the mere availability of goods or services via a website, are not automatic grounds for subjecting non-EU entities to the GDPR.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">On the face of it, it is tempting to believe that Education institutions that enrol EU residents in the Middle East are entirely exempt from compliance with the GDPR. This would certainly be true for EU residents who initiate their admission application process from outside the EU. In the case where EU applicants start the admissions process from their home countries and obtain visas to enter the Middle East after gaining admission to eligible programmes, the GDPR will apply and such institutions would need to demonstrate compliance. In essence, active student recruitment campaigns targeting EU residents could subject the data collected from such students, whether via automated or non-automated means, to compliance requirements under the GDPR. It may take a few years for a more precise understanding of how the GDPR will be further defined, interpreted, and enforced by the EU and national data protection authorities of its member states. At such early stage, it is probably unlikely that the most expansive interpretation of the regulation’s extraterritorial application would be immediately enforced against non-EU entities. It is clear however that institutions with significant engagement with the EU, either in the form of physical presence or of distance-delivered services, should take immediate steps to ensure compliance with the GDPR.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Whose data does GDPR protect?</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Personal data of all living individuals physically within the EU (\"EU data subjects\") are covered by the GDPR. The regulation makes no distinctions based on individual’s permanent places of residence or nationality. The GDPR applies to all such individual’s personal data, defined as any information that can be used to, directly or indirectly, identify a person. These include not only such obvious information as educational, financial, employment-related, and health data, but also photographs, personal phone numbers, and IP addresses.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">How should the education sector prepare for GDPR?</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Education providers in the Middle East should consider a number of action points as part of their GDPR compliance preparations as follows:</p>\r\n<p dir=\"LTR\" align=\"LEFT\"><strong>Data Review</strong>: A comprehensive review should be undertaken to determine (i) what personal data is currently held, (ii) how that data was acquired, and (iii) for what purpose it was acquired. Education providers should consider whether they have obtained and hold such personal data in accordance with the requirements of GDPR. If they have not, such data should be deleted, or consideration should be given as to how its continued storage / use may be rendered GDPR-compliant.</p>\r\n<p dir=\"LTR\" align=\"LEFT\"><strong>Privacy policies</strong>: privacy policies are a key element of the new regime. Education providers should review their existing privacy policies, and make all amendments necessary to bring them into line with the GDPR’s requirements.</p>\r\n<p dir=\"LTR\" align=\"LEFT\"><strong>Consent</strong>: this is unlikely to be the most appropriate lawful basis for the processing of personal data by Education providers going forward. The GDPR requires that consent must be able to be withdrawn as easily as it is given and processing must immediately stop. Clearly, this is not practical given Education providers’ obligations to protect the safety and welfare of their students. Education establishments will need to look to other bases provided in the GDPR to ensure that their processing activities are lawful. This is a more complex legal question, and will be based on a case-by-case basis, the operation of the education provider in relation to the data.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Consent must be given for the processing or flow of personal data to third-parties, so in order to become GDPR compliant, education providers must be aware of where various pieces of data are going and why.</p>\r\n<p dir=\"LTR\" align=\"LEFT\"><strong>Data Security and Third-Party Agreements</strong>: a comprehensive, written information security programme should be developed and implemented to protect the security, confidentiality and integrity of personal data held. A review of arrangements with all third-parties engaged to handle, store or otherwise process personal data collected and/or stored by the institution should be undertaken. The GDPR requires all data controllers to have binding contracts with the parties that process data on their behalf. For education providers, it is important that all current service level agreements and other contracts with third-party suppliers are carefully reviewed and amended to ensure they are GDPR-compliant.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\"><img class=\"aligncenter wp-image-8220\" style=\"font-size: 16px; font-weight: 400;\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/9.jpg\" alt=\"\" width=\"944\" height=\"160\" /></h3>&nbsp;\r\n&nbsp;<h3 dir=\"LTR\" align=\"LEFT\">Supervisory authorities and penalties</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Under the GDPR, EU member states have to designate qualified supervisory authorities with specified oversight, investigatory, and enforcement powers to implement its requirements . These authorities will oversee compliance, provide consultation and prior approvals, and receive and administratively adjudicate complaints against controllers and processors. They can also impose fines of up to two percent of the global revenues for certain penalties, and up to four percent of such revenues for more serious ones.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Just as important as the supervisory authorities’ power to impose penalties is the consultative role they are assigned in reviewing mandatory data protection impact assessments that data controllers and processors must regularly perform in connection with high-risk processing activities prior to implementing them.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The GDPR took years to be adopted, and it may be safe to assume that it will take years before its real impact and practical compliance requirements become fully settled.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Education providers in the Middle East with EU-based operations and those with significant numbers of EU residents as students — particularly those delivering distance education programmes to such students within the EU — should start to map out a strategy of implementing GDPR-compliant practices now.</p>'),
(308071, 29391, 'MetaValueOld', '<p dir=\"LTR\" align=\"LEFT\">The General Data Protection Regulations (\"GDPR\") came into effect on 25 May 2018. The <a href=\"https://www.tamimi.com/law-update-articles/minding-your-own-business-the-extra-territorial-application-of-the-eus-data-protection-regulation/\">GDPR</a>, which replaced the EU’s Data Protection Directive of 1995, represents a significant expansion of personal privacy rights for EU residents.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The politically challenging task of escalating privacy protection from a directive to a binding regulation began in 2009 and involved protracted negotiations among the European Commission (the EU executive body) and its two legislative chambers, the Council of the European Union and the European Parliament. This was partially motivated by the desire for uniform protections for all EU residents and partially necessitated by the needs of regulated entities for consistent compliance requirements across the EU.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Why should Middle East institutions pay attention to GDPR?</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><img class=\"wp-image-8219 alignright\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/8.jpg\" alt=\"\" width=\"482\" height=\"369\" /> It is widely known that the GDPR has more enforceable legal status in comparison to the previous Data Protection Directive, and it is also substantively more robust in a number of significant ways. The most notable of these for entities located in the Middle East is that, unlike the Data Protection Directive (which mandated compliance by entities with a physical EU presence, such as a processing center or even a server), the GDPR’s coverage extends to entities with no physical EU footprint if they process personal data of EU data subjects residing in the EU. This limited extraterritoriality, while a significant expansion of the reach of EU law to entities outside the EU, does not attach to EU citizens abroad. As such, a Middle East entity involved in a data transaction with an EU resident in the Middle East, for instance, would not be subject to the GDPR; the same entity engaging in significant and intentional cyber-transactions with EU residents would be.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Why education providers should pay attention to the GDPR?</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Middle East-based Education institutions newly affected by the extraterritorial reach of GDPR are those that target distance education programmes to EU residents who are physically located in one of the member states. Such programmes were not initially subject to EU privacy law under the Data Protection Directive if they did not have infrastructure within the EU, but are now covered under the GDPR, even if they have no physical presence within the EU. However, Article 3 of the GDPR suggests that incidental transactions, such as the mere availability of goods or services via a website, are not automatic grounds for subjecting non-EU entities to the GDPR.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">On the face of it, it is tempting to believe that Education institutions that enrol EU residents in the Middle East are entirely exempt from compliance with the GDPR. This would certainly be true for EU residents who initiate their admission application process from outside the EU. In the case where EU applicants start the admissions process from their home countries and obtain visas to enter the Middle East after gaining admission to eligible programmes, the GDPR will apply and such institutions would need to demonstrate compliance. In essence, active student recruitment campaigns targeting EU residents could subject the data collected from such students, whether via automated or non-automated means, to compliance requirements under the GDPR. It may take a few years for a more precise understanding of how the GDPR will be further defined, interpreted, and enforced by the EU and national data protection authorities of its member states. At such early stage, it is probably unlikely that the most expansive interpretation of the regulation’s extraterritorial application would be immediately enforced against non-EU entities. It is clear however that institutions with significant engagement with the EU, either in the form of physical presence or of distance-delivered services, should take immediate steps to ensure compliance with the GDPR.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Whose data does GDPR protect?</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Personal data of all living individuals physically within the EU (\"EU data subjects\") are covered by the GDPR. The regulation makes no distinctions based on individual’s permanent places of residence or nationality. The GDPR applies to all such individual’s personal data, defined as any information that can be used to, directly or indirectly, identify a person. These include not only such obvious information as educational, financial, employment-related, and health data, but also photographs, personal phone numbers, and IP addresses.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">How should the education sector prepare for GDPR?</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Education providers in the Middle East should consider a number of action points as part of their GDPR compliance preparations as follows:</p>\r\n<p dir=\"LTR\" align=\"LEFT\"><strong>Data Review</strong>: A comprehensive review should be undertaken to determine (i) what personal data is currently held, (ii) how that data was acquired, and (iii) for what purpose it was acquired. Education providers should consider whether they have obtained and hold such personal data in accordance with the requirements of GDPR. If they have not, such data should be deleted, or consideration should be given as to how its continued storage / use may be rendered GDPR-compliant.</p>\r\n<p dir=\"LTR\" align=\"LEFT\"><strong>Privacy policies</strong>: privacy policies are a key element of the new regime. Education providers should review their existing privacy policies, and make all amendments necessary to bring them into line with the GDPR’s requirements.</p>\r\n<p dir=\"LTR\" align=\"LEFT\"><strong>Consent</strong>: this is unlikely to be the most appropriate lawful basis for the processing of personal data by Education providers going forward. The GDPR requires that consent must be able to be withdrawn as easily as it is given and processing must immediately stop. Clearly, this is not practical given Education providers’ obligations to protect the safety and welfare of their students. Education establishments will need to look to other bases provided in the GDPR to ensure that their processing activities are lawful. This is a more complex legal question, and will be based on a case-by-case basis, the operation of the education provider in relation to the data.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Consent must be given for the processing or flow of personal data to third-parties, so in order to become GDPR compliant, education providers must be aware of where various pieces of data are going and why.</p>\r\n<p dir=\"LTR\" align=\"LEFT\"><strong>Data Security and Third-Party Agreements</strong>: a comprehensive, written information security programme should be developed and implemented to protect the security, confidentiality and integrity of personal data held. A review of arrangements with all third-parties engaged to handle, store or otherwise process personal data collected and/or stored by the institution should be undertaken. The GDPR requires all data controllers to have binding contracts with the parties that process data on their behalf. For education providers, it is important that all current service level agreements and other contracts with third-party suppliers are carefully reviewed and amended to ensure they are GDPR-compliant.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\"></h3>\r\n<h3 dir=\"LTR\" align=\"LEFT\">Supervisory authorities and penalties</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Under the GDPR, EU member states have to designate qualified supervisory authorities with specified oversight, investigatory, and enforcement powers to implement its requirements . These authorities will oversee compliance, provide consultation and prior approvals, and receive and administratively adjudicate complaints against controllers and processors. They can also impose fines of up to two percent of the global revenues for certain penalties, and up to four percent of such revenues for more serious ones.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Just as important as the supervisory authorities’ power to impose penalties is the consultative role they are assigned in reviewing mandatory data protection impact assessments that data controllers and processors must regularly perform in connection with high-risk processing activities prior to implementing them.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The GDPR took years to be adopted, and it may be safe to assume that it will take years before its real impact and practical compliance requirements become fully settled.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Education providers in the Middle East with EU-based operations and those with significant numbers of EU residents as students — particularly those delivering distance education programmes to such students within the EU — should start to map out a strategy of implementing GDPR-compliant practices now.</p>\r\n<p dir=\"LTR\" align=\"LEFT\"><img class=\"aligncenter wp-image-8220\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/9.jpg\" alt=\"\" width=\"944\" height=\"160\" /></p>'),
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(308074, 29391, 'ReportText', '<p dir=\"LTR\" align=\"LEFT\">The General Data Protection Regulations (\"GDPR\") came into effect on 25 May 2018. The <a href=\"https://www.tamimi.com/law-update-articles/minding-your-own-business-the-extra-territorial-application-of-the-eus-data-protection-regulation/\">GDPR</a>, which replaced the EU’s Data Protection Directive of 1995, represents a significant expansion of personal privacy rights for EU residents.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The politically challenging task of escalating privacy protection from a directive to a binding regulation began in 2009 and involved protracted negotiations among the European Commission (the EU executive body) and its two legislative chambers, the Council of the European Union and the European Parliament. This was partially motivated by the desire for uniform protections for all EU residents and partially necessitated by the needs of regulated entities for consistent compliance requirements across the EU.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Why should Middle East institutions pay attention to GDPR?</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><img class=\"wp-image-8219 alignright\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/8.jpg\" alt=\"\" width=\"482\" height=\"369\" /> It is widely known that the GDPR has more enforceable legal status in comparison to the previous Data Protection Directive, and it is also substantively more robust in a number of significant ways. The most notable of these for entities located in the Middle East is that, unlike the Data Protection Directive (which mandated compliance by entities with a physical EU presence, such as a processing center or even a server), the GDPR’s coverage extends to entities with no physical EU footprint if they process personal data of EU data subjects residing in the EU. This limited extraterritoriality, while a significant expansion of the reach of EU law to entities outside the EU, does not attach to EU citizens abroad. As such, a Middle East entity involved in a data transaction with an EU resident in the Middle East, for instance, would not be subject to the GDPR; the same entity engaging in significant and intentional cyber-transactions with EU residents would be.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Why education providers should pay attention to the GDPR?</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Middle East-based Education institutions newly affected by the extraterritorial reach of GDPR are those that target distance education programmes to EU residents who are physically located in one of the member states. Such programmes were not initially subject to EU privacy law under the Data Protection Directive if they did not have infrastructure within the EU, but are now covered under the GDPR, even if they have no physical presence within the EU. However, Article 3 of the GDPR suggests that incidental transactions, such as the mere availability of goods or services via a website, are not automatic grounds for subjecting non-EU entities to the GDPR.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">On the face of it, it is tempting to believe that Education institutions that enrol EU residents in the Middle East are entirely exempt from compliance with the GDPR. This would certainly be true for EU residents who initiate their admission application process from outside the EU. In the case where EU applicants start the admissions process from their home countries and obtain visas to enter the Middle East after gaining admission to eligible programmes, the GDPR will apply and such institutions would need to demonstrate compliance. In essence, active student recruitment campaigns targeting EU residents could subject the data collected from such students, whether via automated or non-automated means, to compliance requirements under the GDPR. It may take a few years for a more precise understanding of how the GDPR will be further defined, interpreted, and enforced by the EU and national data protection authorities of its member states. At such early stage, it is probably unlikely that the most expansive interpretation of the regulation’s extraterritorial application would be immediately enforced against non-EU entities. It is clear however that institutions with significant engagement with the EU, either in the form of physical presence or of distance-delivered services, should take immediate steps to ensure compliance with the GDPR.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Whose data does GDPR protect?</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Personal data of all living individuals physically within the EU (\"EU data subjects\") are covered by the GDPR. The regulation makes no distinctions based on individual’s permanent places of residence or nationality. The GDPR applies to all such individual’s personal data, defined as any information that can be used to, directly or indirectly, identify a person. These include not only such obvious information as educational, financial, employment-related, and health data, but also photographs, personal phone numbers, and IP addresses.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">How should the education sector prepare for GDPR?</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Education providers in the Middle East should consider a number of action points as part of their GDPR compliance preparations as follows:</p>\r\n<p dir=\"LTR\" align=\"LEFT\"><strong>Data Review</strong>: A comprehensive review should be undertaken to determine (i) what personal data is currently held, (ii) how that data was acquired, and (iii) for what purpose it was acquired. Education providers should consider whether they have obtained and hold such personal data in accordance with the requirements of GDPR. If they have not, such data should be deleted, or consideration should be given as to how its continued storage / use may be rendered GDPR-compliant.</p>\r\n<p dir=\"LTR\" align=\"LEFT\"><strong>Privacy policies</strong>: privacy policies are a key element of the new regime. Education providers should review their existing privacy policies, and make all amendments necessary to bring them into line with the GDPR’s requirements.</p>\r\n<p dir=\"LTR\" align=\"LEFT\"><strong>Consent</strong>: this is unlikely to be the most appropriate lawful basis for the processing of personal data by Education providers going forward. The GDPR requires that consent must be able to be withdrawn as easily as it is given and processing must immediately stop. Clearly, this is not practical given Education providers’ obligations to protect the safety and welfare of their students. Education establishments will need to look to other bases provided in the GDPR to ensure that their processing activities are lawful. This is a more complex legal question, and will be based on a case-by-case basis, the operation of the education provider in relation to the data.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Consent must be given for the processing or flow of personal data to third-parties, so in order to become GDPR compliant, education providers must be aware of where various pieces of data are going and why.</p>\r\n<p dir=\"LTR\" align=\"LEFT\"><strong>Data Security and Third-Party Agreements</strong>: a comprehensive, written information security programme should be developed and implemented to protect the security, confidentiality and integrity of personal data held. A review of arrangements with all third-parties engaged to handle, store or otherwise process personal data collected and/or stored by the institution should be undertaken. The GDPR requires all data controllers to have binding contracts with the parties that process data on their behalf. For education providers, it is important that all current service level agreements and other contracts with third-party suppliers are carefully reviewed and amended to ensure they are GDPR-compliant.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\"></h3>\r\n<h3 dir=\"LTR\" align=\"LEFT\">Supervisory authorities and penalties</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Under the GDPR, EU member states have to designate qualified supervisory authorities with specified oversight, investigatory, and enforcement powers to implement its requirements . These authorities will oversee compliance, provide consultation and prior approvals, and receive and administratively adjudicate complaints against controllers and processors. They can also impose fines of up to two percent of the global revenues for certain penalties, and up to four percent of such revenues for more serious ones.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Just as important as the supervisory authorities’ power to impose penalties is the consultative role they are assigned in reviewing mandatory data protection impact assessments that data controllers and processors must regularly perform in connection with high-risk processing activities prior to implementing them.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The GDPR took years to be adopted, and it may be safe to assume that it will take years before its real impact and practical compliance requirements become fully settled.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Education providers in the Middle East with EU-based operations and those with significant numbers of EU residents as students — particularly those delivering distance education programmes to such students within the EU — should start to map out a strategy of implementing GDPR-compliant practices now.</p>\r\n<p dir=\"LTR\" align=\"LEFT\"><img class=\"aligncenter wp-image-8220\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/9.jpg\" alt=\"\" width=\"944\" height=\"160\" /></p>|<p dir=\"LTR\" align=\"LEFT\">The General Data Protection Regulations (\"GDPR\") came into effect on 25 May 2018. The <a href=\"https://www.tamimi.com/law-update-articles/minding-your-own-business-the-extra-territorial-application-of-the-eus-data-protection-regulation/\">GDPR</a>, which replaced the EU’s Data Protection Directive of 1995, represents a significant expansion of personal privacy rights for EU residents.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The politically challenging task of escalating privacy protection from a directive to a binding regulation began in 2009 and involved protracted negotiations among the European Commission (the EU executive body) and its two legislative chambers, the Council of the European Union and the European Parliament. This was partially motivated by the desire for uniform protections for all EU residents and partially necessitated by the needs of regulated entities for consistent compliance requirements across the EU.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Why should Middle East institutions pay attention to GDPR?</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><img class=\"wp-image-8219 alignright\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/8.jpg\" alt=\"\" width=\"482\" height=\"369\" /> It is widely known that the GDPR has more enforceable legal status in comparison to the previous Data Protection Directive, and it is also substantively more robust in a number of significant ways. The most notable of these for entities located in the Middle East is that, unlike the Data Protection Directive (which mandated compliance by entities with a physical EU presence, such as a processing center or even a server), the GDPR’s coverage extends to entities with no physical EU footprint if they process personal data of EU data subjects residing in the EU. This limited extraterritoriality, while a significant expansion of the reach of EU law to entities outside the EU, does not attach to EU citizens abroad. As such, a Middle East entity involved in a data transaction with an EU resident in the Middle East, for instance, would not be subject to the GDPR; the same entity engaging in significant and intentional cyber-transactions with EU residents would be.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Why education providers should pay attention to the GDPR?</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Middle East-based Education institutions newly affected by the extraterritorial reach of GDPR are those that target distance education programmes to EU residents who are physically located in one of the member states. Such programmes were not initially subject to EU privacy law under the Data Protection Directive if they did not have infrastructure within the EU, but are now covered under the GDPR, even if they have no physical presence within the EU. However, Article 3 of the GDPR suggests that incidental transactions, such as the mere availability of goods or services via a website, are not automatic grounds for subjecting non-EU entities to the GDPR.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">On the face of it, it is tempting to believe that Education institutions that enrol EU residents in the Middle East are entirely exempt from compliance with the GDPR. This would certainly be true for EU residents who initiate their admission application process from outside the EU. In the case where EU applicants start the admissions process from their home countries and obtain visas to enter the Middle East after gaining admission to eligible programmes, the GDPR will apply and such institutions would need to demonstrate compliance. In essence, active student recruitment campaigns targeting EU residents could subject the data collected from such students, whether via automated or non-automated means, to compliance requirements under the GDPR. It may take a few years for a more precise understanding of how the GDPR will be further defined, interpreted, and enforced by the EU and national data protection authorities of its member states. At such early stage, it is probably unlikely that the most expansive interpretation of the regulation’s extraterritorial application would be immediately enforced against non-EU entities. It is clear however that institutions with significant engagement with the EU, either in the form of physical presence or of distance-delivered services, should take immediate steps to ensure compliance with the GDPR.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Whose data does GDPR protect?</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Personal data of all living individuals physically within the EU (\"EU data subjects\") are covered by the GDPR. The regulation makes no distinctions based on individual’s permanent places of residence or nationality. The GDPR applies to all such individual’s personal data, defined as any information that can be used to, directly or indirectly, identify a person. These include not only such obvious information as educational, financial, employment-related, and health data, but also photographs, personal phone numbers, and IP addresses.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">How should the education sector prepare for GDPR?</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Education providers in the Middle East should consider a number of action points as part of their GDPR compliance preparations as follows:</p>\r\n<p dir=\"LTR\" align=\"LEFT\"><strong>Data Review</strong>: A comprehensive review should be undertaken to determine (i) what personal data is currently held, (ii) how that data was acquired, and (iii) for what purpose it was acquired. Education providers should consider whether they have obtained and hold such personal data in accordance with the requirements of GDPR. If they have not, such data should be deleted, or consideration should be given as to how its continued storage / use may be rendered GDPR-compliant.</p>\r\n<p dir=\"LTR\" align=\"LEFT\"><strong>Privacy policies</strong>: privacy policies are a key element of the new regime. Education providers should review their existing privacy policies, and make all amendments necessary to bring them into line with the GDPR’s requirements.</p>\r\n<p dir=\"LTR\" align=\"LEFT\"><strong>Consent</strong>: this is unlikely to be the most appropriate lawful basis for the processing of personal data by Education providers going forward. The GDPR requires that consent must be able to be withdrawn as easily as it is given and processing must immediately stop. Clearly, this is not practical given Education providers’ obligations to protect the safety and welfare of their students. Education establishments will need to look to other bases provided in the GDPR to ensure that their processing activities are lawful. This is a more complex legal question, and will be based on a case-by-case basis, the operation of the education provider in relation to the data.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Consent must be given for the processing or flow of personal data to third-parties, so in order to become GDPR compliant, education providers must be aware of where various pieces of data are going and why.</p>\r\n<p dir=\"LTR\" align=\"LEFT\"><strong>Data Security and Third-Party Agreements</strong>: a comprehensive, written information security programme should be developed and implemented to protect the security, confidentiality and integrity of personal data held. A review of arrangements with all third-parties engaged to handle, store or otherwise process personal data collected and/or stored by the institution should be undertaken. The GDPR requires all data controllers to have binding contracts with the parties that process data on their behalf. For education providers, it is important that all current service level agreements and other contracts with third-party suppliers are carefully reviewed and amended to ensure they are GDPR-compliant.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\"><img class=\"aligncenter wp-image-8220\" style=\"font-size: 16px; font-weight: 400;\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/9.jpg\" alt=\"\" width=\"944\" height=\"160\" /></h3>&nbsp;\r\n&nbsp;<h3 dir=\"LTR\" align=\"LEFT\">Supervisory authorities and penalties</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Under the GDPR, EU member states have to designate qualified supervisory authorities with specified oversight, investigatory, and enforcement powers to implement its requirements . These authorities will oversee compliance, provide consultation and prior approvals, and receive and administratively adjudicate complaints against controllers and processors. They can also impose fines of up to two percent of the global revenues for certain penalties, and up to four percent of such revenues for more serious ones.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Just as important as the supervisory authorities’ power to impose penalties is the consultative role they are assigned in reviewing mandatory data protection impact assessments that data controllers and processors must regularly perform in connection with high-risk processing activities prior to implementing them.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The GDPR took years to be adopted, and it may be safe to assume that it will take years before its real impact and practical compliance requirements become fully settled.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Education providers in the Middle East with EU-based operations and those with significant numbers of EU residents as students — particularly those delivering distance education programmes to such students within the EU — should start to map out a strategy of implementing GDPR-compliant practices now.</p>'),
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(308230, 29407, 'MetaValueNew', '<p dir=\"LTR\" align=\"LEFT\">Most business transactions involve degrees of risk, which can never be eliminated entirely. An additional layer of risk inevitably accompanies any cross-border deal, and this article addresses the best way to manage these particular risks.</p>\r\n&nbsp;\r\n\r\n<img class=\"wp-image-8240 alignleft\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_09_Image_0001.jpg\" alt=\"\" width=\"444\" height=\"343\" />\r\n<h3 dir=\"LTR\" align=\"LEFT\">Cross-Border Deals and Legal Risks</h3>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">a. Choice of Law and Forum:</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In cross-border deals, choice of law and forum clauses deserve enhanced scrutiny and negotiation. If any dispute flares up, you will find that these choices will have already been locked in. Suddenly, they will loom large, and poor choices may cost you considerable money and time. Choice of law is quite distinct from the choice of forum. The choice of law is the set of laws which governs the substance of the contract, whilst forum is concerned with the dispute resolution body and the processes for final resolution.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(i) Choice of Law:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">The main factor in deciding which governing law should govern a contract is ease of enforcement of those contractual terms allocating risks between the parties. Some jurisdictions have less developed substantive legal rules and their laws do not fit comfortably with sophisticated transaction structures commonly seen in major financial centres. In such instances, local law may either override or fail to support the agreed contract terms, rendering the outcome of any dispute unpredictable.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Ideally, parties to a contract should choose a jurisdiction with a well-developed body of legal rules. Many international players prefer common law systems, mainly because they are accustomed to working within these legal systems. Moreover, common law systems carry with them a wealth of recognised precedents which can render dispute outcomes more predictable.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(ii) Choice of Forum:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Selecting a forum involves two different choices. Firstly, whether the parties wish to submit to arbitration or a court process. Secondly, a choice as to the legal environment in which the dispute process will be conducted, a choice which needs to take into account supervision of the arbitration and/or access to an appellate court system.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Resolution by official courts can save the parties substantial costs associated with arbitration. Any arbitration has to be funded privately, including the fees of the arbitrators. Also, it is usually quicker and easier for courts to secure interim remedies and to compel disclosure of documents or information; in arbitrations, it is often necessary to go to court to secure these remedies anyway. Courts also allow for appeal processes from their judgements, a safeguard against capricious findings or error. Arbitration, on the other hand, gives the parties an opportunity to ensure that a dispute is determined by a technical expert, rather than a legally trained judge. The expert can act as the arbitrator and resolve the dispute without the successful party being exposed to drawn-out appeals. Nevertheless, the possibility of the arbitrator requiring correction or supervision will also be relevant to any choice of forum. In some jurisdictions, arbitrations move faster than court processes, in others they move more slowly.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">When choosing the legal environment for the forum, a neutral jurisdiction has advantages, and usually gives confidence to foreign-based counterparties, particularly in cases where one of the transaction parties is a governmental entity or has strong ties to the government. Meanwhile, selecting the jurisdiction which hosts the deal assets also has its advantages, as the dispute resolution forum will have power to make orders affecting those assets and may be convenient and accessible for involved experts or witnesses. Decisions of a court where the deal assets are located are usually more readily enforceable against those assets.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A key point to consider in advance is whether a court of the jurisdiction hosting the deal assets will recognize and respect the parties’ contractual choice of forum. For example, courts in GCC countries sometimes consider it appropriate to assume jurisdiction over a case filed before them which involves local assets (particularly land); and to apply local law regardless.</p>\r\n&nbsp;\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.\"</h2>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">b. Enforcement of Securities</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Lenders must carefully study and assess the enforceability of their security in the event of default. In some jurisdictions which impose fees or taxes, taking security over the deal assets, especially real property, may be costly. In these cases, a more practical security may take the form of a preferential claim to cash balances and revenues of the target/assets.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\"><img class=\"alignright wp-image-8268 size-large\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/shutterstock_755088883-488x1024.jpg\" alt=\"\" width=\"488\" height=\"1024\" />c. Force Majeure Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Force majeure is a legal term of art describing the occurrence of an unexpected event outside the control of the affected party, as a result of which it becomes difficult or impossible for that party to perform obligations under a contract. Examples of force majeure include wars, riots, fires, floods and hurricanes. Such events also affect domestic deals, but force majeure events are less predictable for foreign counterparties in any cross-border deal.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Common law jurisdictions usually refuse to grant relief for force majeure events unless this is expressly provided for in the contract. In contrast, civil law jurisdictions usually grant the court the authority to alter the contract to restore its balance where there is a force majeure event. In all cases, courts in both systems will be influenced by, and consider, the express terms of the contract before making a decision.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Some force majeure risks are commercially insurable events. Others are uninsurable events. Commercially insurable events include fires, floods or storms and in these scenarios their risk may be mitigated by obtaining the necessary insurance policies. In contrast, riots and political disruptions are usually uninsurable. Hence, the parties should take into account insurance cover and allocate contractual risks accordingly, particularly as the inclusion of an indemnity in the deal contract can sometimes nullify insurance arrangements.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">d. Currency Fluctuations</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Currency fluctuations are common risks encountered with international transactions. Even with the most careful monitoring, fluctuations can be unpredictable and can greatly affect the economics of a project, the business and its profits. To mitigate this risk, it is ideal to contract with all parties in the transaction chain in the same currency, if possible. Another way to mitigate any exchange risk, is to hedge the currency risk. This method may incur hedging costs and also sacrifice gains from favourable fluctuations – but, if the tables are turned, it also mitigates any significant losses.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">e. Sovereign Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Sovereign risk is an inherit risk that is more heightened in some countries. One way to mitigate sovereign risk is by structuring investments in such a way that investment protection treaties with the host country can be triggered. An example of such is the use of acquisition vehicles to which investment protection treaties apply.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">f. Market Demand Risks</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">A product or service which proves successful in one country may not be successful in another. Many businesses have had to adapt their products or services significantly in order to conform to the cultural, religious traditions or realities of a new market. For example, online sales platforms work only if a large percentage of the target market holds credit cards. A thorough market study must be conducted before introducing a new product or service fresh to a jurisdiction to validate the introduction, assumptions or projections made by the party introducing it.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The deal \"risk list\" above is by no means exhaustive. But it highlights the fact that risk allocations between the parties in any cross-border deal should be clearly documented and the main risks addressed. Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.</p>&nbsp;\r\n&nbsp;<img class=\"aligncenter wp-image-8269 size-full\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/Screen-Shot-2018-09-05-at-2.38.31-PM.png\" alt=\"\" width=\"4096\" height=\"1522\" />&nbsp;\r\n&nbsp;<p dir=\"LTR\" align=\"LEFT\"><em>Al Tamimi &amp; Company’s Corporate Commercial team regularly advises on commercial matters. For further information please contact <a href=\"https://www.tamimi.com/lawyer/alex-saleh/\">Alex Saleh</a> (<a href=\"mailto:alex.saleh@tamimi.com\">alex.saleh@tamimi.com</a>) or <a href=\"https://www.tamimi.com/lawyer/rana-el-nahal/\">Rana Elnahal</a> (<a href=\"mailto:r.elnahal@tamimi.com\">r.elnahal@tamimi.com</a>).</em></p>');
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(308231, 29407, 'MetaValueOld', '<p dir=\"LTR\" align=\"LEFT\">Most business transactions involve degrees of risk, which can never be eliminated entirely. An additional layer of risk inevitably accompanies any cross-border deal, and this article addresses the best way to manage these particular risks.</p>\r\n&nbsp;\r\n\r\n<img class=\"wp-image-8240 alignleft\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_09_Image_0001.jpg\" alt=\"\" width=\"444\" height=\"343\" />\r\n<h3 dir=\"LTR\" align=\"LEFT\">Cross-Border Deals and Legal Risks</h3>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">a. Choice of Law and Forum:</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In cross-border deals, choice of law and forum clauses deserve enhanced scrutiny and negotiation. If any dispute flares up, you will find that these choices will have already been locked in. Suddenly, they will loom large, and poor choices may cost you considerable money and time. Choice of law is quite distinct from the choice of forum. The choice of law is the set of laws which governs the substance of the contract, whilst forum is concerned with the dispute resolution body and the processes for final resolution.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(i) Choice of Law:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">The main factor in deciding which governing law should govern a contract is ease of enforcement of those contractual terms allocating risks between the parties. Some jurisdictions have less developed substantive legal rules and their laws do not fit comfortably with sophisticated transaction structures commonly seen in major financial centres. In such instances, local law may either override or fail to support the agreed contract terms, rendering the outcome of any dispute unpredictable.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Ideally, parties to a contract should choose a jurisdiction with a well-developed body of legal rules. Many international players prefer common law systems, mainly because they are accustomed to working within these legal systems. Moreover, common law systems carry with them a wealth of recognised precedents which can render dispute outcomes more predictable.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(ii) Choice of Forum:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Selecting a forum involves two different choices. Firstly, whether the parties wish to submit to arbitration or a court process. Secondly, a choice as to the legal environment in which the dispute process will be conducted, a choice which needs to take into account supervision of the arbitration and/or access to an appellate court system.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Resolution by official courts can save the parties substantial costs associated with arbitration. Any arbitration has to be funded privately, including the fees of the arbitrators. Also, it is usually quicker and easier for courts to secure interim remedies and to compel disclosure of documents or information; in arbitrations, it is often necessary to go to court to secure these remedies anyway. Courts also allow for appeal processes from their judgements, a safeguard against capricious findings or error. Arbitration, on the other hand, gives the parties an opportunity to ensure that a dispute is determined by a technical expert, rather than a legally trained judge. The expert can act as the arbitrator and resolve the dispute without the successful party being exposed to drawn-out appeals. Nevertheless, the possibility of the arbitrator requiring correction or supervision will also be relevant to any choice of forum. In some jurisdictions, arbitrations move faster than court processes, in others they move more slowly.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">When choosing the legal environment for the forum, a neutral jurisdiction has advantages, and usually gives confidence to foreign-based counterparties, particularly in cases where one of the transaction parties is a governmental entity or has strong ties to the government. Meanwhile, selecting the jurisdiction which hosts the deal assets also has its advantages, as the dispute resolution forum will have power to make orders affecting those assets and may be convenient and accessible for involved experts or witnesses. Decisions of a court where the deal assets are located are usually more readily enforceable against those assets.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A key point to consider in advance is whether a court of the jurisdiction hosting the deal assets will recognize and respect the parties’ contractual choice of forum. For example, courts in GCC countries sometimes consider it appropriate to assume jurisdiction over a case filed before them which involves local assets (particularly land); and to apply local law regardless.</p>\r\n&nbsp;\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.\"</h2>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">b. Enforcement of Securities</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Lenders must carefully study and assess the enforceability of their security in the event of default. In some jurisdictions which impose fees or taxes, taking security over the deal assets, especially real property, may be costly. In these cases, a more practical security may take the form of a preferential claim to cash balances and revenues of the target/assets.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">c. Force Majeure Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Force majeure is a legal term of art describing the occurrence of an unexpected event outside the control of the affected party, as a result of which it becomes difficult or impossible for that party to perform obligations under a contract. Examples of force majeure include wars, riots, fires, floods and hurricanes. Such events also affect domestic deals, but force majeure events are less predictable for foreign counterparties in any cross-border deal.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Common law jurisdictions usually refuse to grant relief for force majeure events unless this is expressly provided for in the contract. In contrast, civil law jurisdictions usually grant the court the authority to alter the contract to restore its balance where there is a force majeure event. In all cases, courts in both systems will be influenced by, and consider, the express terms of the contract before making a decision.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Some force majeure risks are commercially insurable events. Others are uninsurable events. Commercially insurable events include fires, floods or storms and in these scenarios their risk may be mitigated by obtaining the necessary insurance policies. In contrast, riots and political disruptions are usually uninsurable. Hence, the parties should take into account insurance cover and allocate contractual risks accordingly, particularly as the inclusion of an indemnity in the deal contract can sometimes nullify insurance arrangements.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">d. Currency Fluctuations</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Currency fluctuations are common risks encountered with international transactions. Even with the most careful monitoring, fluctuations can be unpredictable and can greatly affect the economics of a project, the business and its profits. To mitigate this risk, it is ideal to contract with all parties in the transaction chain in the same currency, if possible. Another way to mitigate any exchange risk, is to hedge the currency risk. This method may incur hedging costs and also sacrifice gains from favourable fluctuations – but, if the tables are turned, it also mitigates any significant losses.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">e. Sovereign Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Sovereign risk is an inherit risk that is more heightened in some countries. One way to mitigate sovereign risk is by structuring investments in such a way that investment protection treaties with the host country can be triggered. An example of such is the use of acquisition vehicles to which investment protection treaties apply.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">f. Market Demand Risks</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">A product or service which proves successful in one country may not be successful in another. Many businesses have had to adapt their products or services significantly in order to conform to the cultural, religious traditions or realities of a new market. For example, online sales platforms work only if a large percentage of the target market holds credit cards. A thorough market study must be conducted before introducing a new product or service fresh to a jurisdiction to validate the introduction, assumptions or projections made by the party introducing it.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The deal \"risk list\" above is by no means exhaustive. But it highlights the fact that risk allocations between the parties in any cross-border deal should be clearly documented and the main risks addressed. Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Al Tamimi &amp; Company’s Corporate Commercial team regularly advises on commercial matters. For further information please contact <a href=\"https://www.tamimi.com/lawyer/alex-saleh/\">Alex Saleh</a> (<a href=\"mailto:alex.saleh@tamimi.com\">alex.saleh@tamimi.com</a>) or <a href=\"https://www.tamimi.com/lawyer/rana-el-nahal/\">Rana Elnahal</a> (<a href=\"mailto:r.elnahal@tamimi.com\">r.elnahal@tamimi.com</a>).</em></p>'),
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(308234, 29407, 'ReportText', '<p dir=\"LTR\" align=\"LEFT\">Most business transactions involve degrees of risk, which can never be eliminated entirely. An additional layer of risk inevitably accompanies any cross-border deal, and this article addresses the best way to manage these particular risks.</p>\r\n&nbsp;\r\n\r\n<img class=\"wp-image-8240 alignleft\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_09_Image_0001.jpg\" alt=\"\" width=\"444\" height=\"343\" />\r\n<h3 dir=\"LTR\" align=\"LEFT\">Cross-Border Deals and Legal Risks</h3>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">a. Choice of Law and Forum:</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In cross-border deals, choice of law and forum clauses deserve enhanced scrutiny and negotiation. If any dispute flares up, you will find that these choices will have already been locked in. Suddenly, they will loom large, and poor choices may cost you considerable money and time. Choice of law is quite distinct from the choice of forum. The choice of law is the set of laws which governs the substance of the contract, whilst forum is concerned with the dispute resolution body and the processes for final resolution.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(i) Choice of Law:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">The main factor in deciding which governing law should govern a contract is ease of enforcement of those contractual terms allocating risks between the parties. Some jurisdictions have less developed substantive legal rules and their laws do not fit comfortably with sophisticated transaction structures commonly seen in major financial centres. In such instances, local law may either override or fail to support the agreed contract terms, rendering the outcome of any dispute unpredictable.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Ideally, parties to a contract should choose a jurisdiction with a well-developed body of legal rules. Many international players prefer common law systems, mainly because they are accustomed to working within these legal systems. Moreover, common law systems carry with them a wealth of recognised precedents which can render dispute outcomes more predictable.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(ii) Choice of Forum:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Selecting a forum involves two different choices. Firstly, whether the parties wish to submit to arbitration or a court process. Secondly, a choice as to the legal environment in which the dispute process will be conducted, a choice which needs to take into account supervision of the arbitration and/or access to an appellate court system.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Resolution by official courts can save the parties substantial costs associated with arbitration. Any arbitration has to be funded privately, including the fees of the arbitrators. Also, it is usually quicker and easier for courts to secure interim remedies and to compel disclosure of documents or information; in arbitrations, it is often necessary to go to court to secure these remedies anyway. Courts also allow for appeal processes from their judgements, a safeguard against capricious findings or error. Arbitration, on the other hand, gives the parties an opportunity to ensure that a dispute is determined by a technical expert, rather than a legally trained judge. The expert can act as the arbitrator and resolve the dispute without the successful party being exposed to drawn-out appeals. Nevertheless, the possibility of the arbitrator requiring correction or supervision will also be relevant to any choice of forum. In some jurisdictions, arbitrations move faster than court processes, in others they move more slowly.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">When choosing the legal environment for the forum, a neutral jurisdiction has advantages, and usually gives confidence to foreign-based counterparties, particularly in cases where one of the transaction parties is a governmental entity or has strong ties to the government. Meanwhile, selecting the jurisdiction which hosts the deal assets also has its advantages, as the dispute resolution forum will have power to make orders affecting those assets and may be convenient and accessible for involved experts or witnesses. Decisions of a court where the deal assets are located are usually more readily enforceable against those assets.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A key point to consider in advance is whether a court of the jurisdiction hosting the deal assets will recognize and respect the parties’ contractual choice of forum. For example, courts in GCC countries sometimes consider it appropriate to assume jurisdiction over a case filed before them which involves local assets (particularly land); and to apply local law regardless.</p>\r\n&nbsp;\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.\"</h2>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">b. Enforcement of Securities</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Lenders must carefully study and assess the enforceability of their security in the event of default. In some jurisdictions which impose fees or taxes, taking security over the deal assets, especially real property, may be costly. In these cases, a more practical security may take the form of a preferential claim to cash balances and revenues of the target/assets.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">c. Force Majeure Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Force majeure is a legal term of art describing the occurrence of an unexpected event outside the control of the affected party, as a result of which it becomes difficult or impossible for that party to perform obligations under a contract. Examples of force majeure include wars, riots, fires, floods and hurricanes. Such events also affect domestic deals, but force majeure events are less predictable for foreign counterparties in any cross-border deal.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Common law jurisdictions usually refuse to grant relief for force majeure events unless this is expressly provided for in the contract. In contrast, civil law jurisdictions usually grant the court the authority to alter the contract to restore its balance where there is a force majeure event. In all cases, courts in both systems will be influenced by, and consider, the express terms of the contract before making a decision.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Some force majeure risks are commercially insurable events. Others are uninsurable events. Commercially insurable events include fires, floods or storms and in these scenarios their risk may be mitigated by obtaining the necessary insurance policies. In contrast, riots and political disruptions are usually uninsurable. Hence, the parties should take into account insurance cover and allocate contractual risks accordingly, particularly as the inclusion of an indemnity in the deal contract can sometimes nullify insurance arrangements.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">d. Currency Fluctuations</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Currency fluctuations are common risks encountered with international transactions. Even with the most careful monitoring, fluctuations can be unpredictable and can greatly affect the economics of a project, the business and its profits. To mitigate this risk, it is ideal to contract with all parties in the transaction chain in the same currency, if possible. Another way to mitigate any exchange risk, is to hedge the currency risk. This method may incur hedging costs and also sacrifice gains from favourable fluctuations – but, if the tables are turned, it also mitigates any significant losses.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">e. Sovereign Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Sovereign risk is an inherit risk that is more heightened in some countries. One way to mitigate sovereign risk is by structuring investments in such a way that investment protection treaties with the host country can be triggered. An example of such is the use of acquisition vehicles to which investment protection treaties apply.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">f. Market Demand Risks</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">A product or service which proves successful in one country may not be successful in another. Many businesses have had to adapt their products or services significantly in order to conform to the cultural, religious traditions or realities of a new market. For example, online sales platforms work only if a large percentage of the target market holds credit cards. A thorough market study must be conducted before introducing a new product or service fresh to a jurisdiction to validate the introduction, assumptions or projections made by the party introducing it.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The deal \"risk list\" above is by no means exhaustive. But it highlights the fact that risk allocations between the parties in any cross-border deal should be clearly documented and the main risks addressed. Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Al Tamimi &amp; Company’s Corporate Commercial team regularly advises on commercial matters. For further information please contact <a href=\"https://www.tamimi.com/lawyer/alex-saleh/\">Alex Saleh</a> (<a href=\"mailto:alex.saleh@tamimi.com\">alex.saleh@tamimi.com</a>) or <a href=\"https://www.tamimi.com/lawyer/rana-el-nahal/\">Rana Elnahal</a> (<a href=\"mailto:r.elnahal@tamimi.com\">r.elnahal@tamimi.com</a>).</em></p>|<p dir=\"LTR\" align=\"LEFT\">Most business transactions involve degrees of risk, which can never be eliminated entirely. An additional layer of risk inevitably accompanies any cross-border deal, and this article addresses the best way to manage these particular risks.</p>\r\n&nbsp;\r\n\r\n<img class=\"wp-image-8240 alignleft\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_09_Image_0001.jpg\" alt=\"\" width=\"444\" height=\"343\" />\r\n<h3 dir=\"LTR\" align=\"LEFT\">Cross-Border Deals and Legal Risks</h3>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">a. Choice of Law and Forum:</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In cross-border deals, choice of law and forum clauses deserve enhanced scrutiny and negotiation. If any dispute flares up, you will find that these choices will have already been locked in. Suddenly, they will loom large, and poor choices may cost you considerable money and time. Choice of law is quite distinct from the choice of forum. The choice of law is the set of laws which governs the substance of the contract, whilst forum is concerned with the dispute resolution body and the processes for final resolution.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(i) Choice of Law:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">The main factor in deciding which governing law should govern a contract is ease of enforcement of those contractual terms allocating risks between the parties. Some jurisdictions have less developed substantive legal rules and their laws do not fit comfortably with sophisticated transaction structures commonly seen in major financial centres. In such instances, local law may either override or fail to support the agreed contract terms, rendering the outcome of any dispute unpredictable.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Ideally, parties to a contract should choose a jurisdiction with a well-developed body of legal rules. Many international players prefer common law systems, mainly because they are accustomed to working within these legal systems. Moreover, common law systems carry with them a wealth of recognised precedents which can render dispute outcomes more predictable.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(ii) Choice of Forum:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Selecting a forum involves two different choices. Firstly, whether the parties wish to submit to arbitration or a court process. Secondly, a choice as to the legal environment in which the dispute process will be conducted, a choice which needs to take into account supervision of the arbitration and/or access to an appellate court system.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Resolution by official courts can save the parties substantial costs associated with arbitration. Any arbitration has to be funded privately, including the fees of the arbitrators. Also, it is usually quicker and easier for courts to secure interim remedies and to compel disclosure of documents or information; in arbitrations, it is often necessary to go to court to secure these remedies anyway. Courts also allow for appeal processes from their judgements, a safeguard against capricious findings or error. Arbitration, on the other hand, gives the parties an opportunity to ensure that a dispute is determined by a technical expert, rather than a legally trained judge. The expert can act as the arbitrator and resolve the dispute without the successful party being exposed to drawn-out appeals. Nevertheless, the possibility of the arbitrator requiring correction or supervision will also be relevant to any choice of forum. In some jurisdictions, arbitrations move faster than court processes, in others they move more slowly.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">When choosing the legal environment for the forum, a neutral jurisdiction has advantages, and usually gives confidence to foreign-based counterparties, particularly in cases where one of the transaction parties is a governmental entity or has strong ties to the government. Meanwhile, selecting the jurisdiction which hosts the deal assets also has its advantages, as the dispute resolution forum will have power to make orders affecting those assets and may be convenient and accessible for involved experts or witnesses. Decisions of a court where the deal assets are located are usually more readily enforceable against those assets.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A key point to consider in advance is whether a court of the jurisdiction hosting the deal assets will recognize and respect the parties’ contractual choice of forum. For example, courts in GCC countries sometimes consider it appropriate to assume jurisdiction over a case filed before them which involves local assets (particularly land); and to apply local law regardless.</p>\r\n&nbsp;\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.\"</h2>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">b. Enforcement of Securities</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Lenders must carefully study and assess the enforceability of their security in the event of default. In some jurisdictions which impose fees or taxes, taking security over the deal assets, especially real property, may be costly. In these cases, a more practical security may take the form of a preferential claim to cash balances and revenues of the target/assets.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\"><img class=\"alignright wp-image-8268 size-large\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/shutterstock_755088883-488x1024.jpg\" alt=\"\" width=\"488\" height=\"1024\" />c. Force Majeure Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Force majeure is a legal term of art describing the occurrence of an unexpected event outside the control of the affected party, as a result of which it becomes difficult or impossible for that party to perform obligations under a contract. Examples of force majeure include wars, riots, fires, floods and hurricanes. Such events also affect domestic deals, but force majeure events are less predictable for foreign counterparties in any cross-border deal.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Common law jurisdictions usually refuse to grant relief for force majeure events unless this is expressly provided for in the contract. In contrast, civil law jurisdictions usually grant the court the authority to alter the contract to restore its balance where there is a force majeure event. In all cases, courts in both systems will be influenced by, and consider, the express terms of the contract before making a decision.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Some force majeure risks are commercially insurable events. Others are uninsurable events. Commercially insurable events include fires, floods or storms and in these scenarios their risk may be mitigated by obtaining the necessary insurance policies. In contrast, riots and political disruptions are usually uninsurable. Hence, the parties should take into account insurance cover and allocate contractual risks accordingly, particularly as the inclusion of an indemnity in the deal contract can sometimes nullify insurance arrangements.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">d. Currency Fluctuations</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Currency fluctuations are common risks encountered with international transactions. Even with the most careful monitoring, fluctuations can be unpredictable and can greatly affect the economics of a project, the business and its profits. To mitigate this risk, it is ideal to contract with all parties in the transaction chain in the same currency, if possible. Another way to mitigate any exchange risk, is to hedge the currency risk. This method may incur hedging costs and also sacrifice gains from favourable fluctuations – but, if the tables are turned, it also mitigates any significant losses.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">e. Sovereign Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Sovereign risk is an inherit risk that is more heightened in some countries. One way to mitigate sovereign risk is by structuring investments in such a way that investment protection treaties with the host country can be triggered. An example of such is the use of acquisition vehicles to which investment protection treaties apply.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">f. Market Demand Risks</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">A product or service which proves successful in one country may not be successful in another. Many businesses have had to adapt their products or services significantly in order to conform to the cultural, religious traditions or realities of a new market. For example, online sales platforms work only if a large percentage of the target market holds credit cards. A thorough market study must be conducted before introducing a new product or service fresh to a jurisdiction to validate the introduction, assumptions or projections made by the party introducing it.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The deal \"risk list\" above is by no means exhaustive. But it highlights the fact that risk allocations between the parties in any cross-border deal should be clearly documented and the main risks addressed. Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.</p>&nbsp;\r\n&nbsp;<img class=\"aligncenter wp-image-8269 size-full\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/Screen-Shot-2018-09-05-at-2.38.31-PM.png\" alt=\"\" width=\"4096\" height=\"1522\" />&nbsp;\r\n&nbsp;<p dir=\"LTR\" align=\"LEFT\"><em>Al Tamimi &amp; Company’s Corporate Commercial team regularly advises on commercial matters. For further information please contact <a href=\"https://www.tamimi.com/lawyer/alex-saleh/\">Alex Saleh</a> (<a href=\"mailto:alex.saleh@tamimi.com\">alex.saleh@tamimi.com</a>) or <a href=\"https://www.tamimi.com/lawyer/rana-el-nahal/\">Rana Elnahal</a> (<a href=\"mailto:r.elnahal@tamimi.com\">r.elnahal@tamimi.com</a>).</em></p>'),
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Choice of law is quite distinct from the choice of forum. The choice of law is the set of laws which governs the substance of the contract, whilst forum is concerned with the dispute resolution body and the processes for final resolution.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(i) Choice of Law:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">The main factor in deciding which governing law should govern a contract is ease of enforcement of those contractual terms allocating risks between the parties. Some jurisdictions have less developed substantive legal rules and their laws do not fit comfortably with sophisticated transaction structures commonly seen in major financial centres. In such instances, local law may either override or fail to support the agreed contract terms, rendering the outcome of any dispute unpredictable.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Ideally, parties to a contract should choose a jurisdiction with a well-developed body of legal rules. Many international players prefer common law systems, mainly because they are accustomed to working within these legal systems. Moreover, common law systems carry with them a wealth of recognised precedents which can render dispute outcomes more predictable.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(ii) Choice of Forum:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Selecting a forum involves two different choices. Firstly, whether the parties wish to submit to arbitration or a court process. Secondly, a choice as to the legal environment in which the dispute process will be conducted, a choice which needs to take into account supervision of the arbitration and/or access to an appellate court system.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Resolution by official courts can save the parties substantial costs associated with arbitration. Any arbitration has to be funded privately, including the fees of the arbitrators. Also, it is usually quicker and easier for courts to secure interim remedies and to compel disclosure of documents or information; in arbitrations, it is often necessary to go to court to secure these remedies anyway. Courts also allow for appeal processes from their judgements, a safeguard against capricious findings or error. Arbitration, on the other hand, gives the parties an opportunity to ensure that a dispute is determined by a technical expert, rather than a legally trained judge. The expert can act as the arbitrator and resolve the dispute without the successful party being exposed to drawn-out appeals. Nevertheless, the possibility of the arbitrator requiring correction or supervision will also be relevant to any choice of forum. In some jurisdictions, arbitrations move faster than court processes, in others they move more slowly.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">When choosing the legal environment for the forum, a neutral jurisdiction has advantages, and usually gives confidence to foreign-based counterparties, particularly in cases where one of the transaction parties is a governmental entity or has strong ties to the government. Meanwhile, selecting the jurisdiction which hosts the deal assets also has its advantages, as the dispute resolution forum will have power to make orders affecting those assets and may be convenient and accessible for involved experts or witnesses. Decisions of a court where the deal assets are located are usually more readily enforceable against those assets.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A key point to consider in advance is whether a court of the jurisdiction hosting the deal assets will recognize and respect the parties’ contractual choice of forum. For example, courts in GCC countries sometimes consider it appropriate to assume jurisdiction over a case filed before them which involves local assets (particularly land); and to apply local law regardless.</p>\r\n&nbsp;\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.\"</h2>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">b. Enforcement of Securities</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Lenders must carefully study and assess the enforceability of their security in the event of default. In some jurisdictions which impose fees or taxes, taking security over the deal assets, especially real property, may be costly. In these cases, a more practical security may take the form of a preferential claim to cash balances and revenues of the target/assets.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\"><img class=\"alignright wp-image-8268 \" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/shutterstock_755088883-488x1024.jpg\" alt=\"\" width=\"310\" height=\"650\" />c. Force Majeure Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Force majeure is a legal term of art describing the occurrence of an unexpected event outside the control of the affected party, as a result of which it becomes difficult or impossible for that party to perform obligations under a contract. Examples of force majeure include wars, riots, fires, floods and hurricanes. Such events also affect domestic deals, but force majeure events are less predictable for foreign counterparties in any cross-border deal.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Common law jurisdictions usually refuse to grant relief for force majeure events unless this is expressly provided for in the contract. In contrast, civil law jurisdictions usually grant the court the authority to alter the contract to restore its balance where there is a force majeure event. In all cases, courts in both systems will be influenced by, and consider, the express terms of the contract before making a decision.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Some force majeure risks are commercially insurable events. Others are uninsurable events. Commercially insurable events include fires, floods or storms and in these scenarios their risk may be mitigated by obtaining the necessary insurance policies. In contrast, riots and political disruptions are usually uninsurable. Hence, the parties should take into account insurance cover and allocate contractual risks accordingly, particularly as the inclusion of an indemnity in the deal contract can sometimes nullify insurance arrangements.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">d. Currency Fluctuations</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Currency fluctuations are common risks encountered with international transactions. Even with the most careful monitoring, fluctuations can be unpredictable and can greatly affect the economics of a project, the business and its profits. To mitigate this risk, it is ideal to contract with all parties in the transaction chain in the same currency, if possible. Another way to mitigate any exchange risk, is to hedge the currency risk. This method may incur hedging costs and also sacrifice gains from favourable fluctuations – but, if the tables are turned, it also mitigates any significant losses.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">e. Sovereign Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Sovereign risk is an inherit risk that is more heightened in some countries. One way to mitigate sovereign risk is by structuring investments in such a way that investment protection treaties with the host country can be triggered. An example of such is the use of acquisition vehicles to which investment protection treaties apply.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">f. Market Demand Risks</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">A product or service which proves successful in one country may not be successful in another. Many businesses have had to adapt their products or services significantly in order to conform to the cultural, religious traditions or realities of a new market. For example, online sales platforms work only if a large percentage of the target market holds credit cards. A thorough market study must be conducted before introducing a new product or service fresh to a jurisdiction to validate the introduction, assumptions or projections made by the party introducing it.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The deal \"risk list\" above is by no means exhaustive. But it highlights the fact that risk allocations between the parties in any cross-border deal should be clearly documented and the main risks addressed. Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.</p>\r\n\r\n<img class=\"aligncenter wp-image-8269 size-full\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/Screen-Shot-2018-09-05-at-2.38.31-PM.png\" alt=\"\" width=\"4096\" height=\"1522\" />\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Al Tamimi &amp; Company’s Corporate Commercial team regularly advises on commercial matters. For further information please contact <a href=\"https://www.tamimi.com/lawyer/alex-saleh/\">Alex Saleh</a> (<a href=\"mailto:alex.saleh@tamimi.com\">alex.saleh@tamimi.com</a>) or <a href=\"https://www.tamimi.com/lawyer/rana-el-nahal/\">Rana Elnahal</a> (<a href=\"mailto:r.elnahal@tamimi.com\">r.elnahal@tamimi.com</a>).</em></p>');
INSERT INTO `tm_wsal_metadata` (`id`, `occurrence_id`, `name`, `value`) VALUES
(308285, 29411, 'MetaValueOld', '<p dir=\"LTR\" align=\"LEFT\">Most business transactions involve degrees of risk, which can never be eliminated entirely. An additional layer of risk inevitably accompanies any cross-border deal, and this article addresses the best way to manage these particular risks.</p>\r\n&nbsp;\r\n\r\n<img class=\"wp-image-8240 alignleft\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_09_Image_0001.jpg\" alt=\"\" width=\"444\" height=\"343\" />\r\n<h3 dir=\"LTR\" align=\"LEFT\">Cross-Border Deals and Legal Risks</h3>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">a. Choice of Law and Forum:</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In cross-border deals, choice of law and forum clauses deserve enhanced scrutiny and negotiation. If any dispute flares up, you will find that these choices will have already been locked in. Suddenly, they will loom large, and poor choices may cost you considerable money and time. Choice of law is quite distinct from the choice of forum. The choice of law is the set of laws which governs the substance of the contract, whilst forum is concerned with the dispute resolution body and the processes for final resolution.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(i) Choice of Law:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">The main factor in deciding which governing law should govern a contract is ease of enforcement of those contractual terms allocating risks between the parties. Some jurisdictions have less developed substantive legal rules and their laws do not fit comfortably with sophisticated transaction structures commonly seen in major financial centres. In such instances, local law may either override or fail to support the agreed contract terms, rendering the outcome of any dispute unpredictable.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Ideally, parties to a contract should choose a jurisdiction with a well-developed body of legal rules. Many international players prefer common law systems, mainly because they are accustomed to working within these legal systems. Moreover, common law systems carry with them a wealth of recognised precedents which can render dispute outcomes more predictable.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(ii) Choice of Forum:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Selecting a forum involves two different choices. Firstly, whether the parties wish to submit to arbitration or a court process. Secondly, a choice as to the legal environment in which the dispute process will be conducted, a choice which needs to take into account supervision of the arbitration and/or access to an appellate court system.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Resolution by official courts can save the parties substantial costs associated with arbitration. Any arbitration has to be funded privately, including the fees of the arbitrators. Also, it is usually quicker and easier for courts to secure interim remedies and to compel disclosure of documents or information; in arbitrations, it is often necessary to go to court to secure these remedies anyway. Courts also allow for appeal processes from their judgements, a safeguard against capricious findings or error. Arbitration, on the other hand, gives the parties an opportunity to ensure that a dispute is determined by a technical expert, rather than a legally trained judge. The expert can act as the arbitrator and resolve the dispute without the successful party being exposed to drawn-out appeals. Nevertheless, the possibility of the arbitrator requiring correction or supervision will also be relevant to any choice of forum. In some jurisdictions, arbitrations move faster than court processes, in others they move more slowly.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">When choosing the legal environment for the forum, a neutral jurisdiction has advantages, and usually gives confidence to foreign-based counterparties, particularly in cases where one of the transaction parties is a governmental entity or has strong ties to the government. Meanwhile, selecting the jurisdiction which hosts the deal assets also has its advantages, as the dispute resolution forum will have power to make orders affecting those assets and may be convenient and accessible for involved experts or witnesses. Decisions of a court where the deal assets are located are usually more readily enforceable against those assets.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A key point to consider in advance is whether a court of the jurisdiction hosting the deal assets will recognize and respect the parties’ contractual choice of forum. For example, courts in GCC countries sometimes consider it appropriate to assume jurisdiction over a case filed before them which involves local assets (particularly land); and to apply local law regardless.</p>\r\n&nbsp;\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.\"</h2>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">b. Enforcement of Securities</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Lenders must carefully study and assess the enforceability of their security in the event of default. In some jurisdictions which impose fees or taxes, taking security over the deal assets, especially real property, may be costly. In these cases, a more practical security may take the form of a preferential claim to cash balances and revenues of the target/assets.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\"><img class=\"alignright wp-image-8268 size-large\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/shutterstock_755088883-488x1024.jpg\" alt=\"\" width=\"488\" height=\"1024\" />c. Force Majeure Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Force majeure is a legal term of art describing the occurrence of an unexpected event outside the control of the affected party, as a result of which it becomes difficult or impossible for that party to perform obligations under a contract. Examples of force majeure include wars, riots, fires, floods and hurricanes. Such events also affect domestic deals, but force majeure events are less predictable for foreign counterparties in any cross-border deal.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Common law jurisdictions usually refuse to grant relief for force majeure events unless this is expressly provided for in the contract. In contrast, civil law jurisdictions usually grant the court the authority to alter the contract to restore its balance where there is a force majeure event. In all cases, courts in both systems will be influenced by, and consider, the express terms of the contract before making a decision.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Some force majeure risks are commercially insurable events. Others are uninsurable events. Commercially insurable events include fires, floods or storms and in these scenarios their risk may be mitigated by obtaining the necessary insurance policies. In contrast, riots and political disruptions are usually uninsurable. Hence, the parties should take into account insurance cover and allocate contractual risks accordingly, particularly as the inclusion of an indemnity in the deal contract can sometimes nullify insurance arrangements.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">d. Currency Fluctuations</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Currency fluctuations are common risks encountered with international transactions. Even with the most careful monitoring, fluctuations can be unpredictable and can greatly affect the economics of a project, the business and its profits. To mitigate this risk, it is ideal to contract with all parties in the transaction chain in the same currency, if possible. Another way to mitigate any exchange risk, is to hedge the currency risk. This method may incur hedging costs and also sacrifice gains from favourable fluctuations – but, if the tables are turned, it also mitigates any significant losses.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">e. Sovereign Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Sovereign risk is an inherit risk that is more heightened in some countries. One way to mitigate sovereign risk is by structuring investments in such a way that investment protection treaties with the host country can be triggered. An example of such is the use of acquisition vehicles to which investment protection treaties apply.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">f. Market Demand Risks</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">A product or service which proves successful in one country may not be successful in another. Many businesses have had to adapt their products or services significantly in order to conform to the cultural, religious traditions or realities of a new market. For example, online sales platforms work only if a large percentage of the target market holds credit cards. A thorough market study must be conducted before introducing a new product or service fresh to a jurisdiction to validate the introduction, assumptions or projections made by the party introducing it.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The deal \"risk list\" above is by no means exhaustive. But it highlights the fact that risk allocations between the parties in any cross-border deal should be clearly documented and the main risks addressed. Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.</p>&nbsp;\r\n&nbsp;<img class=\"aligncenter wp-image-8269 size-full\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/Screen-Shot-2018-09-05-at-2.38.31-PM.png\" alt=\"\" width=\"4096\" height=\"1522\" />&nbsp;\r\n&nbsp;<p dir=\"LTR\" align=\"LEFT\"><em>Al Tamimi &amp; Company’s Corporate Commercial team regularly advises on commercial matters. For further information please contact <a href=\"https://www.tamimi.com/lawyer/alex-saleh/\">Alex Saleh</a> (<a href=\"mailto:alex.saleh@tamimi.com\">alex.saleh@tamimi.com</a>) or <a href=\"https://www.tamimi.com/lawyer/rana-el-nahal/\">Rana Elnahal</a> (<a href=\"mailto:r.elnahal@tamimi.com\">r.elnahal@tamimi.com</a>).</em></p>'),
(308286, 29411, 'MetaLink', 'content'),
(308287, 29411, 'EditorLinkPost', 'https://www.tamimi.com/wp-admin/post.php?post=8187&amp;action=edit'),
(308288, 29411, 'ReportText', '<p dir=\"LTR\" align=\"LEFT\">Most business transactions involve degrees of risk, which can never be eliminated entirely. An additional layer of risk inevitably accompanies any cross-border deal, and this article addresses the best way to manage these particular risks.</p>\r\n&nbsp;\r\n\r\n<img class=\"wp-image-8240 alignleft\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_09_Image_0001.jpg\" alt=\"\" width=\"444\" height=\"343\" />\r\n<h3 dir=\"LTR\" align=\"LEFT\">Cross-Border Deals and Legal Risks</h3>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">a. Choice of Law and Forum:</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In cross-border deals, choice of law and forum clauses deserve enhanced scrutiny and negotiation. If any dispute flares up, you will find that these choices will have already been locked in. Suddenly, they will loom large, and poor choices may cost you considerable money and time. Choice of law is quite distinct from the choice of forum. The choice of law is the set of laws which governs the substance of the contract, whilst forum is concerned with the dispute resolution body and the processes for final resolution.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(i) Choice of Law:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">The main factor in deciding which governing law should govern a contract is ease of enforcement of those contractual terms allocating risks between the parties. Some jurisdictions have less developed substantive legal rules and their laws do not fit comfortably with sophisticated transaction structures commonly seen in major financial centres. In such instances, local law may either override or fail to support the agreed contract terms, rendering the outcome of any dispute unpredictable.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Ideally, parties to a contract should choose a jurisdiction with a well-developed body of legal rules. Many international players prefer common law systems, mainly because they are accustomed to working within these legal systems. Moreover, common law systems carry with them a wealth of recognised precedents which can render dispute outcomes more predictable.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(ii) Choice of Forum:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Selecting a forum involves two different choices. Firstly, whether the parties wish to submit to arbitration or a court process. Secondly, a choice as to the legal environment in which the dispute process will be conducted, a choice which needs to take into account supervision of the arbitration and/or access to an appellate court system.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Resolution by official courts can save the parties substantial costs associated with arbitration. Any arbitration has to be funded privately, including the fees of the arbitrators. Also, it is usually quicker and easier for courts to secure interim remedies and to compel disclosure of documents or information; in arbitrations, it is often necessary to go to court to secure these remedies anyway. Courts also allow for appeal processes from their judgements, a safeguard against capricious findings or error. Arbitration, on the other hand, gives the parties an opportunity to ensure that a dispute is determined by a technical expert, rather than a legally trained judge. The expert can act as the arbitrator and resolve the dispute without the successful party being exposed to drawn-out appeals. Nevertheless, the possibility of the arbitrator requiring correction or supervision will also be relevant to any choice of forum. In some jurisdictions, arbitrations move faster than court processes, in others they move more slowly.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">When choosing the legal environment for the forum, a neutral jurisdiction has advantages, and usually gives confidence to foreign-based counterparties, particularly in cases where one of the transaction parties is a governmental entity or has strong ties to the government. Meanwhile, selecting the jurisdiction which hosts the deal assets also has its advantages, as the dispute resolution forum will have power to make orders affecting those assets and may be convenient and accessible for involved experts or witnesses. Decisions of a court where the deal assets are located are usually more readily enforceable against those assets.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A key point to consider in advance is whether a court of the jurisdiction hosting the deal assets will recognize and respect the parties’ contractual choice of forum. For example, courts in GCC countries sometimes consider it appropriate to assume jurisdiction over a case filed before them which involves local assets (particularly land); and to apply local law regardless.</p>\r\n&nbsp;\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.\"</h2>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">b. Enforcement of Securities</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Lenders must carefully study and assess the enforceability of their security in the event of default. In some jurisdictions which impose fees or taxes, taking security over the deal assets, especially real property, may be costly. In these cases, a more practical security may take the form of a preferential claim to cash balances and revenues of the target/assets.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\"><img class=\"alignright wp-image-8268 size-large\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/shutterstock_755088883-488x1024.jpg\" alt=\"\" width=\"488\" height=\"1024\" />c. Force Majeure Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Force majeure is a legal term of art describing the occurrence of an unexpected event outside the control of the affected party, as a result of which it becomes difficult or impossible for that party to perform obligations under a contract. Examples of force majeure include wars, riots, fires, floods and hurricanes. Such events also affect domestic deals, but force majeure events are less predictable for foreign counterparties in any cross-border deal.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Common law jurisdictions usually refuse to grant relief for force majeure events unless this is expressly provided for in the contract. In contrast, civil law jurisdictions usually grant the court the authority to alter the contract to restore its balance where there is a force majeure event. In all cases, courts in both systems will be influenced by, and consider, the express terms of the contract before making a decision.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Some force majeure risks are commercially insurable events. Others are uninsurable events. Commercially insurable events include fires, floods or storms and in these scenarios their risk may be mitigated by obtaining the necessary insurance policies. In contrast, riots and political disruptions are usually uninsurable. Hence, the parties should take into account insurance cover and allocate contractual risks accordingly, particularly as the inclusion of an indemnity in the deal contract can sometimes nullify insurance arrangements.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">d. Currency Fluctuations</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Currency fluctuations are common risks encountered with international transactions. Even with the most careful monitoring, fluctuations can be unpredictable and can greatly affect the economics of a project, the business and its profits. To mitigate this risk, it is ideal to contract with all parties in the transaction chain in the same currency, if possible. Another way to mitigate any exchange risk, is to hedge the currency risk. This method may incur hedging costs and also sacrifice gains from favourable fluctuations – but, if the tables are turned, it also mitigates any significant losses.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">e. Sovereign Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Sovereign risk is an inherit risk that is more heightened in some countries. One way to mitigate sovereign risk is by structuring investments in such a way that investment protection treaties with the host country can be triggered. An example of such is the use of acquisition vehicles to which investment protection treaties apply.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">f. Market Demand Risks</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">A product or service which proves successful in one country may not be successful in another. Many businesses have had to adapt their products or services significantly in order to conform to the cultural, religious traditions or realities of a new market. For example, online sales platforms work only if a large percentage of the target market holds credit cards. A thorough market study must be conducted before introducing a new product or service fresh to a jurisdiction to validate the introduction, assumptions or projections made by the party introducing it.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The deal \"risk list\" above is by no means exhaustive. But it highlights the fact that risk allocations between the parties in any cross-border deal should be clearly documented and the main risks addressed. Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.</p>&nbsp;\r\n&nbsp;<img class=\"aligncenter wp-image-8269 size-full\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/Screen-Shot-2018-09-05-at-2.38.31-PM.png\" alt=\"\" width=\"4096\" height=\"1522\" />&nbsp;\r\n&nbsp;<p dir=\"LTR\" align=\"LEFT\"><em>Al Tamimi &amp; Company’s Corporate Commercial team regularly advises on commercial matters. For further information please contact <a href=\"https://www.tamimi.com/lawyer/alex-saleh/\">Alex Saleh</a> (<a href=\"mailto:alex.saleh@tamimi.com\">alex.saleh@tamimi.com</a>) or <a href=\"https://www.tamimi.com/lawyer/rana-el-nahal/\">Rana Elnahal</a> (<a href=\"mailto:r.elnahal@tamimi.com\">r.elnahal@tamimi.com</a>).</em></p>|<p dir=\"LTR\" align=\"LEFT\">Most business transactions involve degrees of risk, which can never be eliminated entirely. An additional layer of risk inevitably accompanies any cross-border deal, and this article addresses the best way to manage these particular risks.</p>\r\n&nbsp;\r\n\r\n<img class=\"wp-image-8240 alignleft\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_09_Image_0001.jpg\" alt=\"\" width=\"444\" height=\"343\" />\r\n<h3 dir=\"LTR\" align=\"LEFT\">Cross-Border Deals and Legal Risks</h3>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">a. Choice of Law and Forum:</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In cross-border deals, choice of law and forum clauses deserve enhanced scrutiny and negotiation. If any dispute flares up, you will find that these choices will have already been locked in. Suddenly, they will loom large, and poor choices may cost you considerable money and time. Choice of law is quite distinct from the choice of forum. The choice of law is the set of laws which governs the substance of the contract, whilst forum is concerned with the dispute resolution body and the processes for final resolution.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(i) Choice of Law:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">The main factor in deciding which governing law should govern a contract is ease of enforcement of those contractual terms allocating risks between the parties. Some jurisdictions have less developed substantive legal rules and their laws do not fit comfortably with sophisticated transaction structures commonly seen in major financial centres. In such instances, local law may either override or fail to support the agreed contract terms, rendering the outcome of any dispute unpredictable.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Ideally, parties to a contract should choose a jurisdiction with a well-developed body of legal rules. Many international players prefer common law systems, mainly because they are accustomed to working within these legal systems. Moreover, common law systems carry with them a wealth of recognised precedents which can render dispute outcomes more predictable.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(ii) Choice of Forum:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Selecting a forum involves two different choices. Firstly, whether the parties wish to submit to arbitration or a court process. Secondly, a choice as to the legal environment in which the dispute process will be conducted, a choice which needs to take into account supervision of the arbitration and/or access to an appellate court system.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Resolution by official courts can save the parties substantial costs associated with arbitration. Any arbitration has to be funded privately, including the fees of the arbitrators. Also, it is usually quicker and easier for courts to secure interim remedies and to compel disclosure of documents or information; in arbitrations, it is often necessary to go to court to secure these remedies anyway. Courts also allow for appeal processes from their judgements, a safeguard against capricious findings or error. Arbitration, on the other hand, gives the parties an opportunity to ensure that a dispute is determined by a technical expert, rather than a legally trained judge. The expert can act as the arbitrator and resolve the dispute without the successful party being exposed to drawn-out appeals. Nevertheless, the possibility of the arbitrator requiring correction or supervision will also be relevant to any choice of forum. In some jurisdictions, arbitrations move faster than court processes, in others they move more slowly.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">When choosing the legal environment for the forum, a neutral jurisdiction has advantages, and usually gives confidence to foreign-based counterparties, particularly in cases where one of the transaction parties is a governmental entity or has strong ties to the government. Meanwhile, selecting the jurisdiction which hosts the deal assets also has its advantages, as the dispute resolution forum will have power to make orders affecting those assets and may be convenient and accessible for involved experts or witnesses. Decisions of a court where the deal assets are located are usually more readily enforceable against those assets.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A key point to consider in advance is whether a court of the jurisdiction hosting the deal assets will recognize and respect the parties’ contractual choice of forum. For example, courts in GCC countries sometimes consider it appropriate to assume jurisdiction over a case filed before them which involves local assets (particularly land); and to apply local law regardless.</p>\r\n&nbsp;\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.\"</h2>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">b. Enforcement of Securities</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Lenders must carefully study and assess the enforceability of their security in the event of default. In some jurisdictions which impose fees or taxes, taking security over the deal assets, especially real property, may be costly. In these cases, a more practical security may take the form of a preferential claim to cash balances and revenues of the target/assets.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\"><img class=\"alignright wp-image-8268 \" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/shutterstock_755088883-488x1024.jpg\" alt=\"\" width=\"310\" height=\"650\" />c. Force Majeure Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Force majeure is a legal term of art describing the occurrence of an unexpected event outside the control of the affected party, as a result of which it becomes difficult or impossible for that party to perform obligations under a contract. Examples of force majeure include wars, riots, fires, floods and hurricanes. Such events also affect domestic deals, but force majeure events are less predictable for foreign counterparties in any cross-border deal.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Common law jurisdictions usually refuse to grant relief for force majeure events unless this is expressly provided for in the contract. In contrast, civil law jurisdictions usually grant the court the authority to alter the contract to restore its balance where there is a force majeure event. In all cases, courts in both systems will be influenced by, and consider, the express terms of the contract before making a decision.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Some force majeure risks are commercially insurable events. Others are uninsurable events. Commercially insurable events include fires, floods or storms and in these scenarios their risk may be mitigated by obtaining the necessary insurance policies. In contrast, riots and political disruptions are usually uninsurable. Hence, the parties should take into account insurance cover and allocate contractual risks accordingly, particularly as the inclusion of an indemnity in the deal contract can sometimes nullify insurance arrangements.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">d. Currency Fluctuations</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Currency fluctuations are common risks encountered with international transactions. Even with the most careful monitoring, fluctuations can be unpredictable and can greatly affect the economics of a project, the business and its profits. To mitigate this risk, it is ideal to contract with all parties in the transaction chain in the same currency, if possible. Another way to mitigate any exchange risk, is to hedge the currency risk. This method may incur hedging costs and also sacrifice gains from favourable fluctuations – but, if the tables are turned, it also mitigates any significant losses.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">e. Sovereign Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Sovereign risk is an inherit risk that is more heightened in some countries. One way to mitigate sovereign risk is by structuring investments in such a way that investment protection treaties with the host country can be triggered. An example of such is the use of acquisition vehicles to which investment protection treaties apply.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">f. Market Demand Risks</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">A product or service which proves successful in one country may not be successful in another. Many businesses have had to adapt their products or services significantly in order to conform to the cultural, religious traditions or realities of a new market. For example, online sales platforms work only if a large percentage of the target market holds credit cards. A thorough market study must be conducted before introducing a new product or service fresh to a jurisdiction to validate the introduction, assumptions or projections made by the party introducing it.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The deal \"risk list\" above is by no means exhaustive. But it highlights the fact that risk allocations between the parties in any cross-border deal should be clearly documented and the main risks addressed. Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.</p>\r\n\r\n<img class=\"aligncenter wp-image-8269 size-full\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/Screen-Shot-2018-09-05-at-2.38.31-PM.png\" alt=\"\" width=\"4096\" height=\"1522\" />\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Al Tamimi &amp; Company’s Corporate Commercial team regularly advises on commercial matters. For further information please contact <a href=\"https://www.tamimi.com/lawyer/alex-saleh/\">Alex Saleh</a> (<a href=\"mailto:alex.saleh@tamimi.com\">alex.saleh@tamimi.com</a>) or <a href=\"https://www.tamimi.com/lawyer/rana-el-nahal/\">Rana Elnahal</a> (<a href=\"mailto:r.elnahal@tamimi.com\">r.elnahal@tamimi.com</a>).</em></p>'),
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(308350, 29416, 'MetaValueNew', '<p dir=\"LTR\" align=\"LEFT\">Most business transactions involve degrees of risk, which can never be eliminated entirely. An additional layer of risk inevitably accompanies any cross-border deal, and this article addresses the best way to manage these particular risks.</p>\r\n&nbsp;\r\n\r\n<img class=\"wp-image-8240 alignleft\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_09_Image_0001.jpg\" alt=\"\" width=\"444\" height=\"343\" />\r\n<h3 dir=\"LTR\" align=\"LEFT\">Cross-Border Deals and Legal Risks</h3>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">a. Choice of Law and Forum:</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In cross-border deals, choice of law and forum clauses deserve enhanced scrutiny and negotiation. If any dispute flares up, you will find that these choices will have already been locked in. Suddenly, they will loom large, and poor choices may cost you considerable money and time. Choice of law is quite distinct from the choice of forum. The choice of law is the set of laws which governs the substance of the contract, whilst forum is concerned with the dispute resolution body and the processes for final resolution.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(i) Choice of Law:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">The main factor in deciding which governing law should govern a contract is ease of enforcement of those contractual terms allocating risks between the parties. Some jurisdictions have less developed substantive legal rules and their laws do not fit comfortably with sophisticated transaction structures commonly seen in major financial centres. In such instances, local law may either override or fail to support the agreed contract terms, rendering the outcome of any dispute unpredictable.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Ideally, parties to a contract should choose a jurisdiction with a well-developed body of legal rules. Many international players prefer common law systems, mainly because they are accustomed to working within these legal systems. Moreover, common law systems carry with them a wealth of recognised precedents which can render dispute outcomes more predictable.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(ii) Choice of Forum:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Selecting a forum involves two different choices. Firstly, whether the parties wish to submit to arbitration or a court process. Secondly, a choice as to the legal environment in which the dispute process will be conducted, a choice which needs to take into account supervision of the arbitration and/or access to an appellate court system.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Resolution by official courts can save the parties substantial costs associated with arbitration. Any arbitration has to be funded privately, including the fees of the arbitrators. Also, it is usually quicker and easier for courts to secure interim remedies and to compel disclosure of documents or information; in arbitrations, it is often necessary to go to court to secure these remedies anyway. Courts also allow for appeal processes from their judgements, a safeguard against capricious findings or error. Arbitration, on the other hand, gives the parties an opportunity to ensure that a dispute is determined by a technical expert, rather than a legally trained judge. The expert can act as the arbitrator and resolve the dispute without the successful party being exposed to drawn-out appeals. Nevertheless, the possibility of the arbitrator requiring correction or supervision will also be relevant to any choice of forum. In some jurisdictions, arbitrations move faster than court processes, in others they move more slowly.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">When choosing the legal environment for the forum, a neutral jurisdiction has advantages, and usually gives confidence to foreign-based counterparties, particularly in cases where one of the transaction parties is a governmental entity or has strong ties to the government. Meanwhile, selecting the jurisdiction which hosts the deal assets also has its advantages, as the dispute resolution forum will have power to make orders affecting those assets and may be convenient and accessible for involved experts or witnesses. Decisions of a court where the deal assets are located are usually more readily enforceable against those assets.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A key point to consider in advance is whether a court of the jurisdiction hosting the deal assets will recognize and respect the parties’ contractual choice of forum. For example, courts in GCC countries sometimes consider it appropriate to assume jurisdiction over a case filed before them which involves local assets (particularly land); and to apply local law regardless.</p>\r\n&nbsp;\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.\"</h2>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">b. Enforcement of Securities</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Lenders must carefully study and assess the enforceability of their security in the event of default. In some jurisdictions which impose fees or taxes, taking security over the deal assets, especially real property, may be costly. In these cases, a more practical security may take the form of a preferential claim to cash balances and revenues of the target/assets.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\"><img class=\"alignright wp-image-8268 \" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/shutterstock_755088883-488x1024.jpg\" alt=\"\" width=\"260\" height=\"545\" />c. Force Majeure Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Force majeure is a legal term of art describing the occurrence of an unexpected event outside the control of the affected party, as a result of which it becomes difficult or impossible for that party to perform obligations under a contract. Examples of force majeure include wars, riots, fires, floods and hurricanes. Such events also affect domestic deals, but force majeure events are less predictable for foreign counterparties in any cross-border deal.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Common law jurisdictions usually refuse to grant relief for force majeure events unless this is expressly provided for in the contract. In contrast, civil law jurisdictions usually grant the court the authority to alter the contract to restore its balance where there is a force majeure event. In all cases, courts in both systems will be influenced by, and consider, the express terms of the contract before making a decision.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Some force majeure risks are commercially insurable events. Others are uninsurable events. Commercially insurable events include fires, floods or storms and in these scenarios their risk may be mitigated by obtaining the necessary insurance policies. In contrast, riots and political disruptions are usually uninsurable. Hence, the parties should take into account insurance cover and allocate contractual risks accordingly, particularly as the inclusion of an indemnity in the deal contract can sometimes nullify insurance arrangements.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">d. Currency Fluctuations</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Currency fluctuations are common risks encountered with international transactions. Even with the most careful monitoring, fluctuations can be unpredictable and can greatly affect the economics of a project, the business and its profits. To mitigate this risk, it is ideal to contract with all parties in the transaction chain in the same currency, if possible. Another way to mitigate any exchange risk, is to hedge the currency risk. This method may incur hedging costs and also sacrifice gains from favourable fluctuations – but, if the tables are turned, it also mitigates any significant losses.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">e. Sovereign Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Sovereign risk is an inherit risk that is more heightened in some countries. One way to mitigate sovereign risk is by structuring investments in such a way that investment protection treaties with the host country can be triggered. An example of such is the use of acquisition vehicles to which investment protection treaties apply.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">f. Market Demand Risks</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">A product or service which proves successful in one country may not be successful in another. Many businesses have had to adapt their products or services significantly in order to conform to the cultural, religious traditions or realities of a new market. For example, online sales platforms work only if a large percentage of the target market holds credit cards. A thorough market study must be conducted before introducing a new product or service fresh to a jurisdiction to validate the introduction, assumptions or projections made by the party introducing it.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The deal \"risk list\" above is by no means exhaustive. But it highlights the fact that risk allocations between the parties in any cross-border deal should be clearly documented and the main risks addressed. Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.</p>\r\n&nbsp;<img class=\"aligncenter wp-image-8269 size-full\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/Screen-Shot-2018-09-05-at-2.38.31-PM.png\" alt=\"\" width=\"4096\" height=\"1522\" />&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Al Tamimi &amp; Company’s Corporate Commercial team regularly advises on commercial matters. For further information please contact <a href=\"https://www.tamimi.com/lawyer/alex-saleh/\">Alex Saleh</a> (<a href=\"mailto:alex.saleh@tamimi.com\">alex.saleh@tamimi.com</a>) or <a href=\"https://www.tamimi.com/lawyer/rana-el-nahal/\">Rana Elnahal</a> (<a href=\"mailto:r.elnahal@tamimi.com\">r.elnahal@tamimi.com</a>).</em></p>');
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(308351, 29416, 'MetaValueOld', '<p dir=\"LTR\" align=\"LEFT\">Most business transactions involve degrees of risk, which can never be eliminated entirely. An additional layer of risk inevitably accompanies any cross-border deal, and this article addresses the best way to manage these particular risks.</p>\r\n&nbsp;\r\n\r\n<img class=\"wp-image-8240 alignleft\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_09_Image_0001.jpg\" alt=\"\" width=\"444\" height=\"343\" />\r\n<h3 dir=\"LTR\" align=\"LEFT\">Cross-Border Deals and Legal Risks</h3>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">a. Choice of Law and Forum:</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In cross-border deals, choice of law and forum clauses deserve enhanced scrutiny and negotiation. If any dispute flares up, you will find that these choices will have already been locked in. Suddenly, they will loom large, and poor choices may cost you considerable money and time. Choice of law is quite distinct from the choice of forum. The choice of law is the set of laws which governs the substance of the contract, whilst forum is concerned with the dispute resolution body and the processes for final resolution.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(i) Choice of Law:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">The main factor in deciding which governing law should govern a contract is ease of enforcement of those contractual terms allocating risks between the parties. Some jurisdictions have less developed substantive legal rules and their laws do not fit comfortably with sophisticated transaction structures commonly seen in major financial centres. In such instances, local law may either override or fail to support the agreed contract terms, rendering the outcome of any dispute unpredictable.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Ideally, parties to a contract should choose a jurisdiction with a well-developed body of legal rules. Many international players prefer common law systems, mainly because they are accustomed to working within these legal systems. Moreover, common law systems carry with them a wealth of recognised precedents which can render dispute outcomes more predictable.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(ii) Choice of Forum:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Selecting a forum involves two different choices. Firstly, whether the parties wish to submit to arbitration or a court process. Secondly, a choice as to the legal environment in which the dispute process will be conducted, a choice which needs to take into account supervision of the arbitration and/or access to an appellate court system.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Resolution by official courts can save the parties substantial costs associated with arbitration. Any arbitration has to be funded privately, including the fees of the arbitrators. Also, it is usually quicker and easier for courts to secure interim remedies and to compel disclosure of documents or information; in arbitrations, it is often necessary to go to court to secure these remedies anyway. Courts also allow for appeal processes from their judgements, a safeguard against capricious findings or error. Arbitration, on the other hand, gives the parties an opportunity to ensure that a dispute is determined by a technical expert, rather than a legally trained judge. The expert can act as the arbitrator and resolve the dispute without the successful party being exposed to drawn-out appeals. Nevertheless, the possibility of the arbitrator requiring correction or supervision will also be relevant to any choice of forum. In some jurisdictions, arbitrations move faster than court processes, in others they move more slowly.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">When choosing the legal environment for the forum, a neutral jurisdiction has advantages, and usually gives confidence to foreign-based counterparties, particularly in cases where one of the transaction parties is a governmental entity or has strong ties to the government. Meanwhile, selecting the jurisdiction which hosts the deal assets also has its advantages, as the dispute resolution forum will have power to make orders affecting those assets and may be convenient and accessible for involved experts or witnesses. Decisions of a court where the deal assets are located are usually more readily enforceable against those assets.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A key point to consider in advance is whether a court of the jurisdiction hosting the deal assets will recognize and respect the parties’ contractual choice of forum. For example, courts in GCC countries sometimes consider it appropriate to assume jurisdiction over a case filed before them which involves local assets (particularly land); and to apply local law regardless.</p>\r\n&nbsp;\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.\"</h2>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">b. Enforcement of Securities</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Lenders must carefully study and assess the enforceability of their security in the event of default. In some jurisdictions which impose fees or taxes, taking security over the deal assets, especially real property, may be costly. In these cases, a more practical security may take the form of a preferential claim to cash balances and revenues of the target/assets.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\"><img class=\"alignright wp-image-8268 \" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/shutterstock_755088883-488x1024.jpg\" alt=\"\" width=\"310\" height=\"650\" />c. Force Majeure Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Force majeure is a legal term of art describing the occurrence of an unexpected event outside the control of the affected party, as a result of which it becomes difficult or impossible for that party to perform obligations under a contract. Examples of force majeure include wars, riots, fires, floods and hurricanes. Such events also affect domestic deals, but force majeure events are less predictable for foreign counterparties in any cross-border deal.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Common law jurisdictions usually refuse to grant relief for force majeure events unless this is expressly provided for in the contract. In contrast, civil law jurisdictions usually grant the court the authority to alter the contract to restore its balance where there is a force majeure event. In all cases, courts in both systems will be influenced by, and consider, the express terms of the contract before making a decision.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Some force majeure risks are commercially insurable events. Others are uninsurable events. Commercially insurable events include fires, floods or storms and in these scenarios their risk may be mitigated by obtaining the necessary insurance policies. In contrast, riots and political disruptions are usually uninsurable. Hence, the parties should take into account insurance cover and allocate contractual risks accordingly, particularly as the inclusion of an indemnity in the deal contract can sometimes nullify insurance arrangements.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">d. Currency Fluctuations</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Currency fluctuations are common risks encountered with international transactions. Even with the most careful monitoring, fluctuations can be unpredictable and can greatly affect the economics of a project, the business and its profits. To mitigate this risk, it is ideal to contract with all parties in the transaction chain in the same currency, if possible. Another way to mitigate any exchange risk, is to hedge the currency risk. This method may incur hedging costs and also sacrifice gains from favourable fluctuations – but, if the tables are turned, it also mitigates any significant losses.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">e. Sovereign Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Sovereign risk is an inherit risk that is more heightened in some countries. One way to mitigate sovereign risk is by structuring investments in such a way that investment protection treaties with the host country can be triggered. An example of such is the use of acquisition vehicles to which investment protection treaties apply.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">f. Market Demand Risks</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">A product or service which proves successful in one country may not be successful in another. Many businesses have had to adapt their products or services significantly in order to conform to the cultural, religious traditions or realities of a new market. For example, online sales platforms work only if a large percentage of the target market holds credit cards. A thorough market study must be conducted before introducing a new product or service fresh to a jurisdiction to validate the introduction, assumptions or projections made by the party introducing it.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The deal \"risk list\" above is by no means exhaustive. But it highlights the fact that risk allocations between the parties in any cross-border deal should be clearly documented and the main risks addressed. Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.</p>\r\n\r\n<img class=\"aligncenter wp-image-8269 size-full\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/Screen-Shot-2018-09-05-at-2.38.31-PM.png\" alt=\"\" width=\"4096\" height=\"1522\" />\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Al Tamimi &amp; Company’s Corporate Commercial team regularly advises on commercial matters. For further information please contact <a href=\"https://www.tamimi.com/lawyer/alex-saleh/\">Alex Saleh</a> (<a href=\"mailto:alex.saleh@tamimi.com\">alex.saleh@tamimi.com</a>) or <a href=\"https://www.tamimi.com/lawyer/rana-el-nahal/\">Rana Elnahal</a> (<a href=\"mailto:r.elnahal@tamimi.com\">r.elnahal@tamimi.com</a>).</em></p>'),
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(308354, 29416, 'ReportText', '<p dir=\"LTR\" align=\"LEFT\">Most business transactions involve degrees of risk, which can never be eliminated entirely. An additional layer of risk inevitably accompanies any cross-border deal, and this article addresses the best way to manage these particular risks.</p>\r\n&nbsp;\r\n\r\n<img class=\"wp-image-8240 alignleft\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_09_Image_0001.jpg\" alt=\"\" width=\"444\" height=\"343\" />\r\n<h3 dir=\"LTR\" align=\"LEFT\">Cross-Border Deals and Legal Risks</h3>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">a. Choice of Law and Forum:</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In cross-border deals, choice of law and forum clauses deserve enhanced scrutiny and negotiation. If any dispute flares up, you will find that these choices will have already been locked in. Suddenly, they will loom large, and poor choices may cost you considerable money and time. Choice of law is quite distinct from the choice of forum. The choice of law is the set of laws which governs the substance of the contract, whilst forum is concerned with the dispute resolution body and the processes for final resolution.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(i) Choice of Law:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">The main factor in deciding which governing law should govern a contract is ease of enforcement of those contractual terms allocating risks between the parties. Some jurisdictions have less developed substantive legal rules and their laws do not fit comfortably with sophisticated transaction structures commonly seen in major financial centres. In such instances, local law may either override or fail to support the agreed contract terms, rendering the outcome of any dispute unpredictable.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Ideally, parties to a contract should choose a jurisdiction with a well-developed body of legal rules. Many international players prefer common law systems, mainly because they are accustomed to working within these legal systems. Moreover, common law systems carry with them a wealth of recognised precedents which can render dispute outcomes more predictable.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(ii) Choice of Forum:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Selecting a forum involves two different choices. Firstly, whether the parties wish to submit to arbitration or a court process. Secondly, a choice as to the legal environment in which the dispute process will be conducted, a choice which needs to take into account supervision of the arbitration and/or access to an appellate court system.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Resolution by official courts can save the parties substantial costs associated with arbitration. Any arbitration has to be funded privately, including the fees of the arbitrators. Also, it is usually quicker and easier for courts to secure interim remedies and to compel disclosure of documents or information; in arbitrations, it is often necessary to go to court to secure these remedies anyway. Courts also allow for appeal processes from their judgements, a safeguard against capricious findings or error. Arbitration, on the other hand, gives the parties an opportunity to ensure that a dispute is determined by a technical expert, rather than a legally trained judge. The expert can act as the arbitrator and resolve the dispute without the successful party being exposed to drawn-out appeals. Nevertheless, the possibility of the arbitrator requiring correction or supervision will also be relevant to any choice of forum. In some jurisdictions, arbitrations move faster than court processes, in others they move more slowly.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">When choosing the legal environment for the forum, a neutral jurisdiction has advantages, and usually gives confidence to foreign-based counterparties, particularly in cases where one of the transaction parties is a governmental entity or has strong ties to the government. Meanwhile, selecting the jurisdiction which hosts the deal assets also has its advantages, as the dispute resolution forum will have power to make orders affecting those assets and may be convenient and accessible for involved experts or witnesses. Decisions of a court where the deal assets are located are usually more readily enforceable against those assets.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A key point to consider in advance is whether a court of the jurisdiction hosting the deal assets will recognize and respect the parties’ contractual choice of forum. For example, courts in GCC countries sometimes consider it appropriate to assume jurisdiction over a case filed before them which involves local assets (particularly land); and to apply local law regardless.</p>\r\n&nbsp;\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.\"</h2>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">b. Enforcement of Securities</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Lenders must carefully study and assess the enforceability of their security in the event of default. In some jurisdictions which impose fees or taxes, taking security over the deal assets, especially real property, may be costly. In these cases, a more practical security may take the form of a preferential claim to cash balances and revenues of the target/assets.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\"><img class=\"alignright wp-image-8268 \" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/shutterstock_755088883-488x1024.jpg\" alt=\"\" width=\"310\" height=\"650\" />c. Force Majeure Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Force majeure is a legal term of art describing the occurrence of an unexpected event outside the control of the affected party, as a result of which it becomes difficult or impossible for that party to perform obligations under a contract. Examples of force majeure include wars, riots, fires, floods and hurricanes. Such events also affect domestic deals, but force majeure events are less predictable for foreign counterparties in any cross-border deal.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Common law jurisdictions usually refuse to grant relief for force majeure events unless this is expressly provided for in the contract. In contrast, civil law jurisdictions usually grant the court the authority to alter the contract to restore its balance where there is a force majeure event. In all cases, courts in both systems will be influenced by, and consider, the express terms of the contract before making a decision.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Some force majeure risks are commercially insurable events. Others are uninsurable events. Commercially insurable events include fires, floods or storms and in these scenarios their risk may be mitigated by obtaining the necessary insurance policies. In contrast, riots and political disruptions are usually uninsurable. Hence, the parties should take into account insurance cover and allocate contractual risks accordingly, particularly as the inclusion of an indemnity in the deal contract can sometimes nullify insurance arrangements.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">d. Currency Fluctuations</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Currency fluctuations are common risks encountered with international transactions. Even with the most careful monitoring, fluctuations can be unpredictable and can greatly affect the economics of a project, the business and its profits. To mitigate this risk, it is ideal to contract with all parties in the transaction chain in the same currency, if possible. Another way to mitigate any exchange risk, is to hedge the currency risk. This method may incur hedging costs and also sacrifice gains from favourable fluctuations – but, if the tables are turned, it also mitigates any significant losses.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">e. Sovereign Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Sovereign risk is an inherit risk that is more heightened in some countries. One way to mitigate sovereign risk is by structuring investments in such a way that investment protection treaties with the host country can be triggered. An example of such is the use of acquisition vehicles to which investment protection treaties apply.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">f. Market Demand Risks</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">A product or service which proves successful in one country may not be successful in another. Many businesses have had to adapt their products or services significantly in order to conform to the cultural, religious traditions or realities of a new market. For example, online sales platforms work only if a large percentage of the target market holds credit cards. A thorough market study must be conducted before introducing a new product or service fresh to a jurisdiction to validate the introduction, assumptions or projections made by the party introducing it.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The deal \"risk list\" above is by no means exhaustive. But it highlights the fact that risk allocations between the parties in any cross-border deal should be clearly documented and the main risks addressed. Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.</p>\r\n\r\n<img class=\"aligncenter wp-image-8269 size-full\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/Screen-Shot-2018-09-05-at-2.38.31-PM.png\" alt=\"\" width=\"4096\" height=\"1522\" />\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Al Tamimi &amp; Company’s Corporate Commercial team regularly advises on commercial matters. For further information please contact <a href=\"https://www.tamimi.com/lawyer/alex-saleh/\">Alex Saleh</a> (<a href=\"mailto:alex.saleh@tamimi.com\">alex.saleh@tamimi.com</a>) or <a href=\"https://www.tamimi.com/lawyer/rana-el-nahal/\">Rana Elnahal</a> (<a href=\"mailto:r.elnahal@tamimi.com\">r.elnahal@tamimi.com</a>).</em></p>|<p dir=\"LTR\" align=\"LEFT\">Most business transactions involve degrees of risk, which can never be eliminated entirely. An additional layer of risk inevitably accompanies any cross-border deal, and this article addresses the best way to manage these particular risks.</p>\r\n&nbsp;\r\n\r\n<img class=\"wp-image-8240 alignleft\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_09_Image_0001.jpg\" alt=\"\" width=\"444\" height=\"343\" />\r\n<h3 dir=\"LTR\" align=\"LEFT\">Cross-Border Deals and Legal Risks</h3>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">a. Choice of Law and Forum:</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In cross-border deals, choice of law and forum clauses deserve enhanced scrutiny and negotiation. If any dispute flares up, you will find that these choices will have already been locked in. Suddenly, they will loom large, and poor choices may cost you considerable money and time. Choice of law is quite distinct from the choice of forum. The choice of law is the set of laws which governs the substance of the contract, whilst forum is concerned with the dispute resolution body and the processes for final resolution.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(i) Choice of Law:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">The main factor in deciding which governing law should govern a contract is ease of enforcement of those contractual terms allocating risks between the parties. Some jurisdictions have less developed substantive legal rules and their laws do not fit comfortably with sophisticated transaction structures commonly seen in major financial centres. In such instances, local law may either override or fail to support the agreed contract terms, rendering the outcome of any dispute unpredictable.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Ideally, parties to a contract should choose a jurisdiction with a well-developed body of legal rules. Many international players prefer common law systems, mainly because they are accustomed to working within these legal systems. Moreover, common law systems carry with them a wealth of recognised precedents which can render dispute outcomes more predictable.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(ii) Choice of Forum:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Selecting a forum involves two different choices. Firstly, whether the parties wish to submit to arbitration or a court process. Secondly, a choice as to the legal environment in which the dispute process will be conducted, a choice which needs to take into account supervision of the arbitration and/or access to an appellate court system.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Resolution by official courts can save the parties substantial costs associated with arbitration. Any arbitration has to be funded privately, including the fees of the arbitrators. Also, it is usually quicker and easier for courts to secure interim remedies and to compel disclosure of documents or information; in arbitrations, it is often necessary to go to court to secure these remedies anyway. Courts also allow for appeal processes from their judgements, a safeguard against capricious findings or error. Arbitration, on the other hand, gives the parties an opportunity to ensure that a dispute is determined by a technical expert, rather than a legally trained judge. The expert can act as the arbitrator and resolve the dispute without the successful party being exposed to drawn-out appeals. Nevertheless, the possibility of the arbitrator requiring correction or supervision will also be relevant to any choice of forum. In some jurisdictions, arbitrations move faster than court processes, in others they move more slowly.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">When choosing the legal environment for the forum, a neutral jurisdiction has advantages, and usually gives confidence to foreign-based counterparties, particularly in cases where one of the transaction parties is a governmental entity or has strong ties to the government. Meanwhile, selecting the jurisdiction which hosts the deal assets also has its advantages, as the dispute resolution forum will have power to make orders affecting those assets and may be convenient and accessible for involved experts or witnesses. Decisions of a court where the deal assets are located are usually more readily enforceable against those assets.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A key point to consider in advance is whether a court of the jurisdiction hosting the deal assets will recognize and respect the parties’ contractual choice of forum. For example, courts in GCC countries sometimes consider it appropriate to assume jurisdiction over a case filed before them which involves local assets (particularly land); and to apply local law regardless.</p>\r\n&nbsp;\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.\"</h2>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">b. Enforcement of Securities</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Lenders must carefully study and assess the enforceability of their security in the event of default. In some jurisdictions which impose fees or taxes, taking security over the deal assets, especially real property, may be costly. In these cases, a more practical security may take the form of a preferential claim to cash balances and revenues of the target/assets.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\"><img class=\"alignright wp-image-8268 \" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/shutterstock_755088883-488x1024.jpg\" alt=\"\" width=\"260\" height=\"545\" />c. Force Majeure Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Force majeure is a legal term of art describing the occurrence of an unexpected event outside the control of the affected party, as a result of which it becomes difficult or impossible for that party to perform obligations under a contract. Examples of force majeure include wars, riots, fires, floods and hurricanes. Such events also affect domestic deals, but force majeure events are less predictable for foreign counterparties in any cross-border deal.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Common law jurisdictions usually refuse to grant relief for force majeure events unless this is expressly provided for in the contract. In contrast, civil law jurisdictions usually grant the court the authority to alter the contract to restore its balance where there is a force majeure event. In all cases, courts in both systems will be influenced by, and consider, the express terms of the contract before making a decision.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Some force majeure risks are commercially insurable events. Others are uninsurable events. Commercially insurable events include fires, floods or storms and in these scenarios their risk may be mitigated by obtaining the necessary insurance policies. In contrast, riots and political disruptions are usually uninsurable. Hence, the parties should take into account insurance cover and allocate contractual risks accordingly, particularly as the inclusion of an indemnity in the deal contract can sometimes nullify insurance arrangements.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">d. Currency Fluctuations</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Currency fluctuations are common risks encountered with international transactions. Even with the most careful monitoring, fluctuations can be unpredictable and can greatly affect the economics of a project, the business and its profits. To mitigate this risk, it is ideal to contract with all parties in the transaction chain in the same currency, if possible. Another way to mitigate any exchange risk, is to hedge the currency risk. This method may incur hedging costs and also sacrifice gains from favourable fluctuations – but, if the tables are turned, it also mitigates any significant losses.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">e. Sovereign Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Sovereign risk is an inherit risk that is more heightened in some countries. One way to mitigate sovereign risk is by structuring investments in such a way that investment protection treaties with the host country can be triggered. An example of such is the use of acquisition vehicles to which investment protection treaties apply.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">f. Market Demand Risks</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">A product or service which proves successful in one country may not be successful in another. Many businesses have had to adapt their products or services significantly in order to conform to the cultural, religious traditions or realities of a new market. For example, online sales platforms work only if a large percentage of the target market holds credit cards. A thorough market study must be conducted before introducing a new product or service fresh to a jurisdiction to validate the introduction, assumptions or projections made by the party introducing it.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The deal \"risk list\" above is by no means exhaustive. But it highlights the fact that risk allocations between the parties in any cross-border deal should be clearly documented and the main risks addressed. Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.</p>\r\n&nbsp;<img class=\"aligncenter wp-image-8269 size-full\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/Screen-Shot-2018-09-05-at-2.38.31-PM.png\" alt=\"\" width=\"4096\" height=\"1522\" />&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Al Tamimi &amp; Company’s Corporate Commercial team regularly advises on commercial matters. For further information please contact <a href=\"https://www.tamimi.com/lawyer/alex-saleh/\">Alex Saleh</a> (<a href=\"mailto:alex.saleh@tamimi.com\">alex.saleh@tamimi.com</a>) or <a href=\"https://www.tamimi.com/lawyer/rana-el-nahal/\">Rana Elnahal</a> (<a href=\"mailto:r.elnahal@tamimi.com\">r.elnahal@tamimi.com</a>).</em></p>'),
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(308410, 29421, 'MetaValueNew', '<p dir=\"LTR\" align=\"LEFT\">Most business transactions involve degrees of risk, which can never be eliminated entirely. An additional layer of risk inevitably accompanies any cross-border deal, and this article addresses the best way to manage these particular risks.</p>\r\n&nbsp;\r\n\r\n<img class=\"wp-image-8240 alignleft\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_09_Image_0001.jpg\" alt=\"\" width=\"444\" height=\"343\" />\r\n<h3 dir=\"LTR\" align=\"LEFT\">Cross-Border Deals and Legal Risks</h3>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">a. Choice of Law and Forum:</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In cross-border deals, choice of law and forum clauses deserve enhanced scrutiny and negotiation. If any dispute flares up, you will find that these choices will have already been locked in. Suddenly, they will loom large, and poor choices may cost you considerable money and time. Choice of law is quite distinct from the choice of forum. The choice of law is the set of laws which governs the substance of the contract, whilst forum is concerned with the dispute resolution body and the processes for final resolution.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(i) Choice of Law:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">The main factor in deciding which governing law should govern a contract is ease of enforcement of those contractual terms allocating risks between the parties. Some jurisdictions have less developed substantive legal rules and their laws do not fit comfortably with sophisticated transaction structures commonly seen in major financial centres. In such instances, local law may either override or fail to support the agreed contract terms, rendering the outcome of any dispute unpredictable.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Ideally, parties to a contract should choose a jurisdiction with a well-developed body of legal rules. Many international players prefer common law systems, mainly because they are accustomed to working within these legal systems. Moreover, common law systems carry with them a wealth of recognised precedents which can render dispute outcomes more predictable.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(ii) Choice of Forum:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Selecting a forum involves two different choices. Firstly, whether the parties wish to submit to arbitration or a court process. Secondly, a choice as to the legal environment in which the dispute process will be conducted, a choice which needs to take into account supervision of the arbitration and/or access to an appellate court system.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Resolution by official courts can save the parties substantial costs associated with arbitration. Any arbitration has to be funded privately, including the fees of the arbitrators. Also, it is usually quicker and easier for courts to secure interim remedies and to compel disclosure of documents or information; in arbitrations, it is often necessary to go to court to secure these remedies anyway. Courts also allow for appeal processes from their judgements, a safeguard against capricious findings or error. Arbitration, on the other hand, gives the parties an opportunity to ensure that a dispute is determined by a technical expert, rather than a legally trained judge. The expert can act as the arbitrator and resolve the dispute without the successful party being exposed to drawn-out appeals. Nevertheless, the possibility of the arbitrator requiring correction or supervision will also be relevant to any choice of forum. In some jurisdictions, arbitrations move faster than court processes, in others they move more slowly.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">When choosing the legal environment for the forum, a neutral jurisdiction has advantages, and usually gives confidence to foreign-based counterparties, particularly in cases where one of the transaction parties is a governmental entity or has strong ties to the government. Meanwhile, selecting the jurisdiction which hosts the deal assets also has its advantages, as the dispute resolution forum will have power to make orders affecting those assets and may be convenient and accessible for involved experts or witnesses. Decisions of a court where the deal assets are located are usually more readily enforceable against those assets.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A key point to consider in advance is whether a court of the jurisdiction hosting the deal assets will recognize and respect the parties’ contractual choice of forum. For example, courts in GCC countries sometimes consider it appropriate to assume jurisdiction over a case filed before them which involves local assets (particularly land); and to apply local law regardless.</p>\r\n&nbsp;\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.\"</h2>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">b. Enforcement of Securities</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Lenders must carefully study and assess the enforceability of their security in the event of default. In some jurisdictions which impose fees or taxes, taking security over the deal assets, especially real property, may be costly. In these cases, a more practical security may take the form of a preferential claim to cash balances and revenues of the target/assets.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\"><img class=\"alignright wp-image-8268 \" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/shutterstock_755088883-488x1024.jpg\" alt=\"\" width=\"226\" height=\"475\" />c. Force Majeure Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Force majeure is a legal term of art describing the occurrence of an unexpected event outside the control of the affected party, as a result of which it becomes difficult or impossible for that party to perform obligations under a contract. Examples of force majeure include wars, riots, fires, floods and hurricanes. Such events also affect domestic deals, but force majeure events are less predictable for foreign counterparties in any cross-border deal.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Common law jurisdictions usually refuse to grant relief for force majeure events unless this is expressly provided for in the contract. In contrast, civil law jurisdictions usually grant the court the authority to alter the contract to restore its balance where there is a force majeure event. In all cases, courts in both systems will be influenced by, and consider, the express terms of the contract before making a decision.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Some force majeure risks are commercially insurable events. Others are uninsurable events. Commercially insurable events include fires, floods or storms and in these scenarios their risk may be mitigated by obtaining the necessary insurance policies. In contrast, riots and political disruptions are usually uninsurable. Hence, the parties should take into account insurance cover and allocate contractual risks accordingly, particularly as the inclusion of an indemnity in the deal contract can sometimes nullify insurance arrangements.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">d. Currency Fluctuations</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Currency fluctuations are common risks encountered with international transactions. Even with the most careful monitoring, fluctuations can be unpredictable and can greatly affect the economics of a project, the business and its profits. To mitigate this risk, it is ideal to contract with all parties in the transaction chain in the same currency, if possible. Another way to mitigate any exchange risk, is to hedge the currency risk. This method may incur hedging costs and also sacrifice gains from favourable fluctuations – but, if the tables are turned, it also mitigates any significant losses.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">e. Sovereign Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Sovereign risk is an inherit risk that is more heightened in some countries. One way to mitigate sovereign risk is by structuring investments in such a way that investment protection treaties with the host country can be triggered. An example of such is the use of acquisition vehicles to which investment protection treaties apply.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">f. Market Demand Risks</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">A product or service which proves successful in one country may not be successful in another. Many businesses have had to adapt their products or services significantly in order to conform to the cultural, religious traditions or realities of a new market. For example, online sales platforms work only if a large percentage of the target market holds credit cards. A thorough market study must be conducted before introducing a new product or service fresh to a jurisdiction to validate the introduction, assumptions or projections made by the party introducing it.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The deal \"risk list\" above is by no means exhaustive. But it highlights the fact that risk allocations between the parties in any cross-border deal should be clearly documented and the main risks addressed. Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.</p>\r\n <img class=\"aligncenter wp-image-8269 size-full\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/Screen-Shot-2018-09-05-at-2.38.31-PM.png\" alt=\"\" width=\"4096\" height=\"1522\" />\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Al Tamimi &amp; Company’s Corporate Commercial team regularly advises on commercial matters. For further information please contact <a href=\"https://www.tamimi.com/lawyer/alex-saleh/\">Alex Saleh</a> (<a href=\"mailto:alex.saleh@tamimi.com\">alex.saleh@tamimi.com</a>) or <a href=\"https://www.tamimi.com/lawyer/rana-el-nahal/\">Rana Elnahal</a> (<a href=\"mailto:r.elnahal@tamimi.com\">r.elnahal@tamimi.com</a>).</em></p>');
INSERT INTO `tm_wsal_metadata` (`id`, `occurrence_id`, `name`, `value`) VALUES
(308411, 29421, 'MetaValueOld', '<p dir=\"LTR\" align=\"LEFT\">Most business transactions involve degrees of risk, which can never be eliminated entirely. An additional layer of risk inevitably accompanies any cross-border deal, and this article addresses the best way to manage these particular risks.</p>\r\n&nbsp;\r\n\r\n<img class=\"wp-image-8240 alignleft\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_09_Image_0001.jpg\" alt=\"\" width=\"444\" height=\"343\" />\r\n<h3 dir=\"LTR\" align=\"LEFT\">Cross-Border Deals and Legal Risks</h3>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">a. Choice of Law and Forum:</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In cross-border deals, choice of law and forum clauses deserve enhanced scrutiny and negotiation. If any dispute flares up, you will find that these choices will have already been locked in. Suddenly, they will loom large, and poor choices may cost you considerable money and time. Choice of law is quite distinct from the choice of forum. The choice of law is the set of laws which governs the substance of the contract, whilst forum is concerned with the dispute resolution body and the processes for final resolution.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(i) Choice of Law:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">The main factor in deciding which governing law should govern a contract is ease of enforcement of those contractual terms allocating risks between the parties. Some jurisdictions have less developed substantive legal rules and their laws do not fit comfortably with sophisticated transaction structures commonly seen in major financial centres. In such instances, local law may either override or fail to support the agreed contract terms, rendering the outcome of any dispute unpredictable.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Ideally, parties to a contract should choose a jurisdiction with a well-developed body of legal rules. Many international players prefer common law systems, mainly because they are accustomed to working within these legal systems. Moreover, common law systems carry with them a wealth of recognised precedents which can render dispute outcomes more predictable.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(ii) Choice of Forum:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Selecting a forum involves two different choices. Firstly, whether the parties wish to submit to arbitration or a court process. Secondly, a choice as to the legal environment in which the dispute process will be conducted, a choice which needs to take into account supervision of the arbitration and/or access to an appellate court system.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Resolution by official courts can save the parties substantial costs associated with arbitration. Any arbitration has to be funded privately, including the fees of the arbitrators. Also, it is usually quicker and easier for courts to secure interim remedies and to compel disclosure of documents or information; in arbitrations, it is often necessary to go to court to secure these remedies anyway. Courts also allow for appeal processes from their judgements, a safeguard against capricious findings or error. Arbitration, on the other hand, gives the parties an opportunity to ensure that a dispute is determined by a technical expert, rather than a legally trained judge. The expert can act as the arbitrator and resolve the dispute without the successful party being exposed to drawn-out appeals. Nevertheless, the possibility of the arbitrator requiring correction or supervision will also be relevant to any choice of forum. In some jurisdictions, arbitrations move faster than court processes, in others they move more slowly.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">When choosing the legal environment for the forum, a neutral jurisdiction has advantages, and usually gives confidence to foreign-based counterparties, particularly in cases where one of the transaction parties is a governmental entity or has strong ties to the government. Meanwhile, selecting the jurisdiction which hosts the deal assets also has its advantages, as the dispute resolution forum will have power to make orders affecting those assets and may be convenient and accessible for involved experts or witnesses. Decisions of a court where the deal assets are located are usually more readily enforceable against those assets.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A key point to consider in advance is whether a court of the jurisdiction hosting the deal assets will recognize and respect the parties’ contractual choice of forum. For example, courts in GCC countries sometimes consider it appropriate to assume jurisdiction over a case filed before them which involves local assets (particularly land); and to apply local law regardless.</p>\r\n&nbsp;\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.\"</h2>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">b. Enforcement of Securities</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Lenders must carefully study and assess the enforceability of their security in the event of default. In some jurisdictions which impose fees or taxes, taking security over the deal assets, especially real property, may be costly. In these cases, a more practical security may take the form of a preferential claim to cash balances and revenues of the target/assets.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\"><img class=\"alignright wp-image-8268 \" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/shutterstock_755088883-488x1024.jpg\" alt=\"\" width=\"260\" height=\"545\" />c. Force Majeure Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Force majeure is a legal term of art describing the occurrence of an unexpected event outside the control of the affected party, as a result of which it becomes difficult or impossible for that party to perform obligations under a contract. Examples of force majeure include wars, riots, fires, floods and hurricanes. Such events also affect domestic deals, but force majeure events are less predictable for foreign counterparties in any cross-border deal.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Common law jurisdictions usually refuse to grant relief for force majeure events unless this is expressly provided for in the contract. In contrast, civil law jurisdictions usually grant the court the authority to alter the contract to restore its balance where there is a force majeure event. In all cases, courts in both systems will be influenced by, and consider, the express terms of the contract before making a decision.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Some force majeure risks are commercially insurable events. Others are uninsurable events. Commercially insurable events include fires, floods or storms and in these scenarios their risk may be mitigated by obtaining the necessary insurance policies. In contrast, riots and political disruptions are usually uninsurable. Hence, the parties should take into account insurance cover and allocate contractual risks accordingly, particularly as the inclusion of an indemnity in the deal contract can sometimes nullify insurance arrangements.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">d. Currency Fluctuations</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Currency fluctuations are common risks encountered with international transactions. Even with the most careful monitoring, fluctuations can be unpredictable and can greatly affect the economics of a project, the business and its profits. To mitigate this risk, it is ideal to contract with all parties in the transaction chain in the same currency, if possible. Another way to mitigate any exchange risk, is to hedge the currency risk. This method may incur hedging costs and also sacrifice gains from favourable fluctuations – but, if the tables are turned, it also mitigates any significant losses.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">e. Sovereign Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Sovereign risk is an inherit risk that is more heightened in some countries. One way to mitigate sovereign risk is by structuring investments in such a way that investment protection treaties with the host country can be triggered. An example of such is the use of acquisition vehicles to which investment protection treaties apply.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">f. Market Demand Risks</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">A product or service which proves successful in one country may not be successful in another. Many businesses have had to adapt their products or services significantly in order to conform to the cultural, religious traditions or realities of a new market. For example, online sales platforms work only if a large percentage of the target market holds credit cards. A thorough market study must be conducted before introducing a new product or service fresh to a jurisdiction to validate the introduction, assumptions or projections made by the party introducing it.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The deal \"risk list\" above is by no means exhaustive. But it highlights the fact that risk allocations between the parties in any cross-border deal should be clearly documented and the main risks addressed. Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.</p>\r\n&nbsp;<img class=\"aligncenter wp-image-8269 size-full\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/Screen-Shot-2018-09-05-at-2.38.31-PM.png\" alt=\"\" width=\"4096\" height=\"1522\" />&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Al Tamimi &amp; Company’s Corporate Commercial team regularly advises on commercial matters. For further information please contact <a href=\"https://www.tamimi.com/lawyer/alex-saleh/\">Alex Saleh</a> (<a href=\"mailto:alex.saleh@tamimi.com\">alex.saleh@tamimi.com</a>) or <a href=\"https://www.tamimi.com/lawyer/rana-el-nahal/\">Rana Elnahal</a> (<a href=\"mailto:r.elnahal@tamimi.com\">r.elnahal@tamimi.com</a>).</em></p>'),
(308412, 29421, 'MetaLink', 'content'),
(308413, 29421, 'EditorLinkPost', 'https://www.tamimi.com/wp-admin/post.php?post=8187&amp;action=edit'),
(308414, 29421, 'ReportText', '<p dir=\"LTR\" align=\"LEFT\">Most business transactions involve degrees of risk, which can never be eliminated entirely. An additional layer of risk inevitably accompanies any cross-border deal, and this article addresses the best way to manage these particular risks.</p>\r\n&nbsp;\r\n\r\n<img class=\"wp-image-8240 alignleft\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_09_Image_0001.jpg\" alt=\"\" width=\"444\" height=\"343\" />\r\n<h3 dir=\"LTR\" align=\"LEFT\">Cross-Border Deals and Legal Risks</h3>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">a. Choice of Law and Forum:</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In cross-border deals, choice of law and forum clauses deserve enhanced scrutiny and negotiation. If any dispute flares up, you will find that these choices will have already been locked in. Suddenly, they will loom large, and poor choices may cost you considerable money and time. Choice of law is quite distinct from the choice of forum. The choice of law is the set of laws which governs the substance of the contract, whilst forum is concerned with the dispute resolution body and the processes for final resolution.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(i) Choice of Law:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">The main factor in deciding which governing law should govern a contract is ease of enforcement of those contractual terms allocating risks between the parties. Some jurisdictions have less developed substantive legal rules and their laws do not fit comfortably with sophisticated transaction structures commonly seen in major financial centres. In such instances, local law may either override or fail to support the agreed contract terms, rendering the outcome of any dispute unpredictable.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Ideally, parties to a contract should choose a jurisdiction with a well-developed body of legal rules. Many international players prefer common law systems, mainly because they are accustomed to working within these legal systems. Moreover, common law systems carry with them a wealth of recognised precedents which can render dispute outcomes more predictable.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(ii) Choice of Forum:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Selecting a forum involves two different choices. Firstly, whether the parties wish to submit to arbitration or a court process. Secondly, a choice as to the legal environment in which the dispute process will be conducted, a choice which needs to take into account supervision of the arbitration and/or access to an appellate court system.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Resolution by official courts can save the parties substantial costs associated with arbitration. Any arbitration has to be funded privately, including the fees of the arbitrators. Also, it is usually quicker and easier for courts to secure interim remedies and to compel disclosure of documents or information; in arbitrations, it is often necessary to go to court to secure these remedies anyway. Courts also allow for appeal processes from their judgements, a safeguard against capricious findings or error. Arbitration, on the other hand, gives the parties an opportunity to ensure that a dispute is determined by a technical expert, rather than a legally trained judge. The expert can act as the arbitrator and resolve the dispute without the successful party being exposed to drawn-out appeals. Nevertheless, the possibility of the arbitrator requiring correction or supervision will also be relevant to any choice of forum. In some jurisdictions, arbitrations move faster than court processes, in others they move more slowly.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">When choosing the legal environment for the forum, a neutral jurisdiction has advantages, and usually gives confidence to foreign-based counterparties, particularly in cases where one of the transaction parties is a governmental entity or has strong ties to the government. Meanwhile, selecting the jurisdiction which hosts the deal assets also has its advantages, as the dispute resolution forum will have power to make orders affecting those assets and may be convenient and accessible for involved experts or witnesses. Decisions of a court where the deal assets are located are usually more readily enforceable against those assets.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A key point to consider in advance is whether a court of the jurisdiction hosting the deal assets will recognize and respect the parties’ contractual choice of forum. For example, courts in GCC countries sometimes consider it appropriate to assume jurisdiction over a case filed before them which involves local assets (particularly land); and to apply local law regardless.</p>\r\n&nbsp;\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.\"</h2>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">b. Enforcement of Securities</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Lenders must carefully study and assess the enforceability of their security in the event of default. In some jurisdictions which impose fees or taxes, taking security over the deal assets, especially real property, may be costly. In these cases, a more practical security may take the form of a preferential claim to cash balances and revenues of the target/assets.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\"><img class=\"alignright wp-image-8268 \" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/shutterstock_755088883-488x1024.jpg\" alt=\"\" width=\"260\" height=\"545\" />c. Force Majeure Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Force majeure is a legal term of art describing the occurrence of an unexpected event outside the control of the affected party, as a result of which it becomes difficult or impossible for that party to perform obligations under a contract. Examples of force majeure include wars, riots, fires, floods and hurricanes. Such events also affect domestic deals, but force majeure events are less predictable for foreign counterparties in any cross-border deal.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Common law jurisdictions usually refuse to grant relief for force majeure events unless this is expressly provided for in the contract. In contrast, civil law jurisdictions usually grant the court the authority to alter the contract to restore its balance where there is a force majeure event. In all cases, courts in both systems will be influenced by, and consider, the express terms of the contract before making a decision.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Some force majeure risks are commercially insurable events. Others are uninsurable events. Commercially insurable events include fires, floods or storms and in these scenarios their risk may be mitigated by obtaining the necessary insurance policies. In contrast, riots and political disruptions are usually uninsurable. Hence, the parties should take into account insurance cover and allocate contractual risks accordingly, particularly as the inclusion of an indemnity in the deal contract can sometimes nullify insurance arrangements.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">d. Currency Fluctuations</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Currency fluctuations are common risks encountered with international transactions. Even with the most careful monitoring, fluctuations can be unpredictable and can greatly affect the economics of a project, the business and its profits. To mitigate this risk, it is ideal to contract with all parties in the transaction chain in the same currency, if possible. Another way to mitigate any exchange risk, is to hedge the currency risk. This method may incur hedging costs and also sacrifice gains from favourable fluctuations – but, if the tables are turned, it also mitigates any significant losses.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">e. Sovereign Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Sovereign risk is an inherit risk that is more heightened in some countries. One way to mitigate sovereign risk is by structuring investments in such a way that investment protection treaties with the host country can be triggered. An example of such is the use of acquisition vehicles to which investment protection treaties apply.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">f. Market Demand Risks</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">A product or service which proves successful in one country may not be successful in another. Many businesses have had to adapt their products or services significantly in order to conform to the cultural, religious traditions or realities of a new market. For example, online sales platforms work only if a large percentage of the target market holds credit cards. A thorough market study must be conducted before introducing a new product or service fresh to a jurisdiction to validate the introduction, assumptions or projections made by the party introducing it.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The deal \"risk list\" above is by no means exhaustive. But it highlights the fact that risk allocations between the parties in any cross-border deal should be clearly documented and the main risks addressed. Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.</p>\r\n&nbsp;<img class=\"aligncenter wp-image-8269 size-full\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/Screen-Shot-2018-09-05-at-2.38.31-PM.png\" alt=\"\" width=\"4096\" height=\"1522\" />&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Al Tamimi &amp; Company’s Corporate Commercial team regularly advises on commercial matters. For further information please contact <a href=\"https://www.tamimi.com/lawyer/alex-saleh/\">Alex Saleh</a> (<a href=\"mailto:alex.saleh@tamimi.com\">alex.saleh@tamimi.com</a>) or <a href=\"https://www.tamimi.com/lawyer/rana-el-nahal/\">Rana Elnahal</a> (<a href=\"mailto:r.elnahal@tamimi.com\">r.elnahal@tamimi.com</a>).</em></p>|<p dir=\"LTR\" align=\"LEFT\">Most business transactions involve degrees of risk, which can never be eliminated entirely. An additional layer of risk inevitably accompanies any cross-border deal, and this article addresses the best way to manage these particular risks.</p>\r\n&nbsp;\r\n\r\n<img class=\"wp-image-8240 alignleft\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_09_Image_0001.jpg\" alt=\"\" width=\"444\" height=\"343\" />\r\n<h3 dir=\"LTR\" align=\"LEFT\">Cross-Border Deals and Legal Risks</h3>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">a. Choice of Law and Forum:</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In cross-border deals, choice of law and forum clauses deserve enhanced scrutiny and negotiation. If any dispute flares up, you will find that these choices will have already been locked in. Suddenly, they will loom large, and poor choices may cost you considerable money and time. Choice of law is quite distinct from the choice of forum. The choice of law is the set of laws which governs the substance of the contract, whilst forum is concerned with the dispute resolution body and the processes for final resolution.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(i) Choice of Law:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">The main factor in deciding which governing law should govern a contract is ease of enforcement of those contractual terms allocating risks between the parties. Some jurisdictions have less developed substantive legal rules and their laws do not fit comfortably with sophisticated transaction structures commonly seen in major financial centres. In such instances, local law may either override or fail to support the agreed contract terms, rendering the outcome of any dispute unpredictable.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Ideally, parties to a contract should choose a jurisdiction with a well-developed body of legal rules. Many international players prefer common law systems, mainly because they are accustomed to working within these legal systems. Moreover, common law systems carry with them a wealth of recognised precedents which can render dispute outcomes more predictable.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(ii) Choice of Forum:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Selecting a forum involves two different choices. Firstly, whether the parties wish to submit to arbitration or a court process. Secondly, a choice as to the legal environment in which the dispute process will be conducted, a choice which needs to take into account supervision of the arbitration and/or access to an appellate court system.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Resolution by official courts can save the parties substantial costs associated with arbitration. Any arbitration has to be funded privately, including the fees of the arbitrators. Also, it is usually quicker and easier for courts to secure interim remedies and to compel disclosure of documents or information; in arbitrations, it is often necessary to go to court to secure these remedies anyway. Courts also allow for appeal processes from their judgements, a safeguard against capricious findings or error. Arbitration, on the other hand, gives the parties an opportunity to ensure that a dispute is determined by a technical expert, rather than a legally trained judge. The expert can act as the arbitrator and resolve the dispute without the successful party being exposed to drawn-out appeals. Nevertheless, the possibility of the arbitrator requiring correction or supervision will also be relevant to any choice of forum. In some jurisdictions, arbitrations move faster than court processes, in others they move more slowly.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">When choosing the legal environment for the forum, a neutral jurisdiction has advantages, and usually gives confidence to foreign-based counterparties, particularly in cases where one of the transaction parties is a governmental entity or has strong ties to the government. Meanwhile, selecting the jurisdiction which hosts the deal assets also has its advantages, as the dispute resolution forum will have power to make orders affecting those assets and may be convenient and accessible for involved experts or witnesses. Decisions of a court where the deal assets are located are usually more readily enforceable against those assets.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A key point to consider in advance is whether a court of the jurisdiction hosting the deal assets will recognize and respect the parties’ contractual choice of forum. For example, courts in GCC countries sometimes consider it appropriate to assume jurisdiction over a case filed before them which involves local assets (particularly land); and to apply local law regardless.</p>\r\n&nbsp;\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.\"</h2>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">b. Enforcement of Securities</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Lenders must carefully study and assess the enforceability of their security in the event of default. In some jurisdictions which impose fees or taxes, taking security over the deal assets, especially real property, may be costly. In these cases, a more practical security may take the form of a preferential claim to cash balances and revenues of the target/assets.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\"><img class=\"alignright wp-image-8268 \" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/shutterstock_755088883-488x1024.jpg\" alt=\"\" width=\"226\" height=\"475\" />c. Force Majeure Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Force majeure is a legal term of art describing the occurrence of an unexpected event outside the control of the affected party, as a result of which it becomes difficult or impossible for that party to perform obligations under a contract. Examples of force majeure include wars, riots, fires, floods and hurricanes. Such events also affect domestic deals, but force majeure events are less predictable for foreign counterparties in any cross-border deal.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Common law jurisdictions usually refuse to grant relief for force majeure events unless this is expressly provided for in the contract. In contrast, civil law jurisdictions usually grant the court the authority to alter the contract to restore its balance where there is a force majeure event. In all cases, courts in both systems will be influenced by, and consider, the express terms of the contract before making a decision.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Some force majeure risks are commercially insurable events. Others are uninsurable events. Commercially insurable events include fires, floods or storms and in these scenarios their risk may be mitigated by obtaining the necessary insurance policies. In contrast, riots and political disruptions are usually uninsurable. Hence, the parties should take into account insurance cover and allocate contractual risks accordingly, particularly as the inclusion of an indemnity in the deal contract can sometimes nullify insurance arrangements.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">d. Currency Fluctuations</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Currency fluctuations are common risks encountered with international transactions. Even with the most careful monitoring, fluctuations can be unpredictable and can greatly affect the economics of a project, the business and its profits. To mitigate this risk, it is ideal to contract with all parties in the transaction chain in the same currency, if possible. Another way to mitigate any exchange risk, is to hedge the currency risk. This method may incur hedging costs and also sacrifice gains from favourable fluctuations – but, if the tables are turned, it also mitigates any significant losses.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">e. Sovereign Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Sovereign risk is an inherit risk that is more heightened in some countries. One way to mitigate sovereign risk is by structuring investments in such a way that investment protection treaties with the host country can be triggered. An example of such is the use of acquisition vehicles to which investment protection treaties apply.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">f. Market Demand Risks</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">A product or service which proves successful in one country may not be successful in another. Many businesses have had to adapt their products or services significantly in order to conform to the cultural, religious traditions or realities of a new market. For example, online sales platforms work only if a large percentage of the target market holds credit cards. A thorough market study must be conducted before introducing a new product or service fresh to a jurisdiction to validate the introduction, assumptions or projections made by the party introducing it.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The deal \"risk list\" above is by no means exhaustive. But it highlights the fact that risk allocations between the parties in any cross-border deal should be clearly documented and the main risks addressed. Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.</p>\r\n <img class=\"aligncenter wp-image-8269 size-full\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/Screen-Shot-2018-09-05-at-2.38.31-PM.png\" alt=\"\" width=\"4096\" height=\"1522\" />\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Al Tamimi &amp; Company’s Corporate Commercial team regularly advises on commercial matters. For further information please contact <a href=\"https://www.tamimi.com/lawyer/alex-saleh/\">Alex Saleh</a> (<a href=\"mailto:alex.saleh@tamimi.com\">alex.saleh@tamimi.com</a>) or <a href=\"https://www.tamimi.com/lawyer/rana-el-nahal/\">Rana Elnahal</a> (<a href=\"mailto:r.elnahal@tamimi.com\">r.elnahal@tamimi.com</a>).</em></p>'),
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(308464, 29425, 'MetaValueNew', '<p dir=\"LTR\" align=\"LEFT\">Most business transactions involve degrees of risk, which can never be eliminated entirely. An additional layer of risk inevitably accompanies any cross-border deal, and this article addresses the best way to manage these particular risks.</p>\r\n&nbsp;\r\n\r\n<img class=\"wp-image-8240 alignleft\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_09_Image_0001.jpg\" alt=\"\" width=\"444\" height=\"343\" />\r\n<h3 dir=\"LTR\" align=\"LEFT\">Cross-Border Deals and Legal Risks</h3>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">a. Choice of Law and Forum:</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In cross-border deals, choice of law and forum clauses deserve enhanced scrutiny and negotiation. If any dispute flares up, you will find that these choices will have already been locked in. Suddenly, they will loom large, and poor choices may cost you considerable money and time. Choice of law is quite distinct from the choice of forum. The choice of law is the set of laws which governs the substance of the contract, whilst forum is concerned with the dispute resolution body and the processes for final resolution.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(i) Choice of Law:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">The main factor in deciding which governing law should govern a contract is ease of enforcement of those contractual terms allocating risks between the parties. Some jurisdictions have less developed substantive legal rules and their laws do not fit comfortably with sophisticated transaction structures commonly seen in major financial centres. In such instances, local law may either override or fail to support the agreed contract terms, rendering the outcome of any dispute unpredictable.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Ideally, parties to a contract should choose a jurisdiction with a well-developed body of legal rules. Many international players prefer common law systems, mainly because they are accustomed to working within these legal systems. Moreover, common law systems carry with them a wealth of recognised precedents which can render dispute outcomes more predictable.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(ii) Choice of Forum:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Selecting a forum involves two different choices. Firstly, whether the parties wish to submit to arbitration or a court process. Secondly, a choice as to the legal environment in which the dispute process will be conducted, a choice which needs to take into account supervision of the arbitration and/or access to an appellate court system.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Resolution by official courts can save the parties substantial costs associated with arbitration. Any arbitration has to be funded privately, including the fees of the arbitrators. Also, it is usually quicker and easier for courts to secure interim remedies and to compel disclosure of documents or information; in arbitrations, it is often necessary to go to court to secure these remedies anyway. Courts also allow for appeal processes from their judgements, a safeguard against capricious findings or error. Arbitration, on the other hand, gives the parties an opportunity to ensure that a dispute is determined by a technical expert, rather than a legally trained judge. The expert can act as the arbitrator and resolve the dispute without the successful party being exposed to drawn-out appeals. Nevertheless, the possibility of the arbitrator requiring correction or supervision will also be relevant to any choice of forum. In some jurisdictions, arbitrations move faster than court processes, in others they move more slowly.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">When choosing the legal environment for the forum, a neutral jurisdiction has advantages, and usually gives confidence to foreign-based counterparties, particularly in cases where one of the transaction parties is a governmental entity or has strong ties to the government. Meanwhile, selecting the jurisdiction which hosts the deal assets also has its advantages, as the dispute resolution forum will have power to make orders affecting those assets and may be convenient and accessible for involved experts or witnesses. Decisions of a court where the deal assets are located are usually more readily enforceable against those assets.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A key point to consider in advance is whether a court of the jurisdiction hosting the deal assets will recognize and respect the parties’ contractual choice of forum. For example, courts in GCC countries sometimes consider it appropriate to assume jurisdiction over a case filed before them which involves local assets (particularly land); and to apply local law regardless.</p>\r\n&nbsp;\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.\"</h2>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">b. Enforcement of Securities</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Lenders must carefully study and assess the enforceability of their security in the event of default. In some jurisdictions which impose fees or taxes, taking security over the deal assets, especially real property, may be costly. In these cases, a more practical security may take the form of a preferential claim to cash balances and revenues of the target/assets.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\"><img class=\"alignright wp-image-8268 \" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/shutterstock_755088883-488x1024.jpg\" alt=\"\" width=\"226\" height=\"475\" />c. Force Majeure Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Force majeure is a legal term of art describing the occurrence of an unexpected event outside the control of the affected party, as a result of which it becomes difficult or impossible for that party to perform obligations under a contract. Examples of force majeure include wars, riots, fires, floods and hurricanes. Such events also affect domestic deals, but force majeure events are less predictable for foreign counterparties in any cross-border deal.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Common law jurisdictions usually refuse to grant relief for force majeure events unless this is expressly provided for in the contract. In contrast, civil law jurisdictions usually grant the court the authority to alter the contract to restore its balance where there is a force majeure event. In all cases, courts in both systems will be influenced by, and consider, the express terms of the contract before making a decision.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Some force majeure risks are commercially insurable events. Others are uninsurable events. Commercially insurable events include fires, floods or storms and in these scenarios their risk may be mitigated by obtaining the necessary insurance policies. In contrast, riots and political disruptions are usually uninsurable. Hence, the parties should take into account insurance cover and allocate contractual risks accordingly, particularly as the inclusion of an indemnity in the deal contract can sometimes nullify insurance arrangements.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">d. Currency Fluctuations</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Currency fluctuations are common risks encountered with international transactions. Even with the most careful monitoring, fluctuations can be unpredictable and can greatly affect the economics of a project, the business and its profits. To mitigate this risk, it is ideal to contract with all parties in the transaction chain in the same currency, if possible. Another way to mitigate any exchange risk, is to hedge the currency risk. This method may incur hedging costs and also sacrifice gains from favourable fluctuations – but, if the tables are turned, it also mitigates any significant losses.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">e. Sovereign Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Sovereign risk is an inherit risk that is more heightened in some countries. One way to mitigate sovereign risk is by structuring investments in such a way that investment protection treaties with the host country can be triggered. An example of such is the use of acquisition vehicles to which investment protection treaties apply.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">f. Market Demand Risks</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">A product or service which proves successful in one country may not be successful in another. Many businesses have had to adapt their products or services significantly in order to conform to the cultural, religious traditions or realities of a new market. For example, online sales platforms work only if a large percentage of the target market holds credit cards. A thorough market study must be conducted before introducing a new product or service fresh to a jurisdiction to validate the introduction, assumptions or projections made by the party introducing it.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The deal \"risk list\" above is by no means exhaustive. But it highlights the fact that risk allocations between the parties in any cross-border deal should be clearly documented and the main risks addressed. Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.</p>\r\n &nbsp;<img class=\"aligncenter wp-image-8269 size-full\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/Screen-Shot-2018-09-05-at-2.38.31-PM.png\" alt=\"\" width=\"4096\" height=\"1522\" />&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Al Tamimi &amp; Company’s Corporate Commercial team regularly advises on commercial matters. For further information please contact <a href=\"https://www.tamimi.com/lawyer/alex-saleh/\">Alex Saleh</a> (<a href=\"mailto:alex.saleh@tamimi.com\">alex.saleh@tamimi.com</a>) or <a href=\"https://www.tamimi.com/lawyer/rana-el-nahal/\">Rana Elnahal</a> (<a href=\"mailto:r.elnahal@tamimi.com\">r.elnahal@tamimi.com</a>).</em></p>');
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(308465, 29425, 'MetaValueOld', '<p dir=\"LTR\" align=\"LEFT\">Most business transactions involve degrees of risk, which can never be eliminated entirely. An additional layer of risk inevitably accompanies any cross-border deal, and this article addresses the best way to manage these particular risks.</p>\r\n&nbsp;\r\n\r\n<img class=\"wp-image-8240 alignleft\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_09_Image_0001.jpg\" alt=\"\" width=\"444\" height=\"343\" />\r\n<h3 dir=\"LTR\" align=\"LEFT\">Cross-Border Deals and Legal Risks</h3>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">a. Choice of Law and Forum:</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In cross-border deals, choice of law and forum clauses deserve enhanced scrutiny and negotiation. If any dispute flares up, you will find that these choices will have already been locked in. Suddenly, they will loom large, and poor choices may cost you considerable money and time. Choice of law is quite distinct from the choice of forum. The choice of law is the set of laws which governs the substance of the contract, whilst forum is concerned with the dispute resolution body and the processes for final resolution.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(i) Choice of Law:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">The main factor in deciding which governing law should govern a contract is ease of enforcement of those contractual terms allocating risks between the parties. Some jurisdictions have less developed substantive legal rules and their laws do not fit comfortably with sophisticated transaction structures commonly seen in major financial centres. In such instances, local law may either override or fail to support the agreed contract terms, rendering the outcome of any dispute unpredictable.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Ideally, parties to a contract should choose a jurisdiction with a well-developed body of legal rules. Many international players prefer common law systems, mainly because they are accustomed to working within these legal systems. Moreover, common law systems carry with them a wealth of recognised precedents which can render dispute outcomes more predictable.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(ii) Choice of Forum:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Selecting a forum involves two different choices. Firstly, whether the parties wish to submit to arbitration or a court process. Secondly, a choice as to the legal environment in which the dispute process will be conducted, a choice which needs to take into account supervision of the arbitration and/or access to an appellate court system.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Resolution by official courts can save the parties substantial costs associated with arbitration. Any arbitration has to be funded privately, including the fees of the arbitrators. Also, it is usually quicker and easier for courts to secure interim remedies and to compel disclosure of documents or information; in arbitrations, it is often necessary to go to court to secure these remedies anyway. Courts also allow for appeal processes from their judgements, a safeguard against capricious findings or error. Arbitration, on the other hand, gives the parties an opportunity to ensure that a dispute is determined by a technical expert, rather than a legally trained judge. The expert can act as the arbitrator and resolve the dispute without the successful party being exposed to drawn-out appeals. Nevertheless, the possibility of the arbitrator requiring correction or supervision will also be relevant to any choice of forum. In some jurisdictions, arbitrations move faster than court processes, in others they move more slowly.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">When choosing the legal environment for the forum, a neutral jurisdiction has advantages, and usually gives confidence to foreign-based counterparties, particularly in cases where one of the transaction parties is a governmental entity or has strong ties to the government. Meanwhile, selecting the jurisdiction which hosts the deal assets also has its advantages, as the dispute resolution forum will have power to make orders affecting those assets and may be convenient and accessible for involved experts or witnesses. Decisions of a court where the deal assets are located are usually more readily enforceable against those assets.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A key point to consider in advance is whether a court of the jurisdiction hosting the deal assets will recognize and respect the parties’ contractual choice of forum. For example, courts in GCC countries sometimes consider it appropriate to assume jurisdiction over a case filed before them which involves local assets (particularly land); and to apply local law regardless.</p>\r\n&nbsp;\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.\"</h2>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">b. Enforcement of Securities</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Lenders must carefully study and assess the enforceability of their security in the event of default. In some jurisdictions which impose fees or taxes, taking security over the deal assets, especially real property, may be costly. In these cases, a more practical security may take the form of a preferential claim to cash balances and revenues of the target/assets.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\"><img class=\"alignright wp-image-8268 \" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/shutterstock_755088883-488x1024.jpg\" alt=\"\" width=\"226\" height=\"475\" />c. Force Majeure Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Force majeure is a legal term of art describing the occurrence of an unexpected event outside the control of the affected party, as a result of which it becomes difficult or impossible for that party to perform obligations under a contract. Examples of force majeure include wars, riots, fires, floods and hurricanes. Such events also affect domestic deals, but force majeure events are less predictable for foreign counterparties in any cross-border deal.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Common law jurisdictions usually refuse to grant relief for force majeure events unless this is expressly provided for in the contract. In contrast, civil law jurisdictions usually grant the court the authority to alter the contract to restore its balance where there is a force majeure event. In all cases, courts in both systems will be influenced by, and consider, the express terms of the contract before making a decision.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Some force majeure risks are commercially insurable events. Others are uninsurable events. Commercially insurable events include fires, floods or storms and in these scenarios their risk may be mitigated by obtaining the necessary insurance policies. In contrast, riots and political disruptions are usually uninsurable. Hence, the parties should take into account insurance cover and allocate contractual risks accordingly, particularly as the inclusion of an indemnity in the deal contract can sometimes nullify insurance arrangements.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">d. Currency Fluctuations</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Currency fluctuations are common risks encountered with international transactions. Even with the most careful monitoring, fluctuations can be unpredictable and can greatly affect the economics of a project, the business and its profits. To mitigate this risk, it is ideal to contract with all parties in the transaction chain in the same currency, if possible. Another way to mitigate any exchange risk, is to hedge the currency risk. This method may incur hedging costs and also sacrifice gains from favourable fluctuations – but, if the tables are turned, it also mitigates any significant losses.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">e. Sovereign Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Sovereign risk is an inherit risk that is more heightened in some countries. One way to mitigate sovereign risk is by structuring investments in such a way that investment protection treaties with the host country can be triggered. An example of such is the use of acquisition vehicles to which investment protection treaties apply.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">f. Market Demand Risks</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">A product or service which proves successful in one country may not be successful in another. Many businesses have had to adapt their products or services significantly in order to conform to the cultural, religious traditions or realities of a new market. For example, online sales platforms work only if a large percentage of the target market holds credit cards. A thorough market study must be conducted before introducing a new product or service fresh to a jurisdiction to validate the introduction, assumptions or projections made by the party introducing it.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The deal \"risk list\" above is by no means exhaustive. But it highlights the fact that risk allocations between the parties in any cross-border deal should be clearly documented and the main risks addressed. Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.</p>\r\n <img class=\"aligncenter wp-image-8269 size-full\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/Screen-Shot-2018-09-05-at-2.38.31-PM.png\" alt=\"\" width=\"4096\" height=\"1522\" />\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Al Tamimi &amp; Company’s Corporate Commercial team regularly advises on commercial matters. For further information please contact <a href=\"https://www.tamimi.com/lawyer/alex-saleh/\">Alex Saleh</a> (<a href=\"mailto:alex.saleh@tamimi.com\">alex.saleh@tamimi.com</a>) or <a href=\"https://www.tamimi.com/lawyer/rana-el-nahal/\">Rana Elnahal</a> (<a href=\"mailto:r.elnahal@tamimi.com\">r.elnahal@tamimi.com</a>).</em></p>'),
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(308468, 29425, 'ReportText', '<p dir=\"LTR\" align=\"LEFT\">Most business transactions involve degrees of risk, which can never be eliminated entirely. An additional layer of risk inevitably accompanies any cross-border deal, and this article addresses the best way to manage these particular risks.</p>\r\n&nbsp;\r\n\r\n<img class=\"wp-image-8240 alignleft\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_09_Image_0001.jpg\" alt=\"\" width=\"444\" height=\"343\" />\r\n<h3 dir=\"LTR\" align=\"LEFT\">Cross-Border Deals and Legal Risks</h3>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">a. Choice of Law and Forum:</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In cross-border deals, choice of law and forum clauses deserve enhanced scrutiny and negotiation. If any dispute flares up, you will find that these choices will have already been locked in. Suddenly, they will loom large, and poor choices may cost you considerable money and time. Choice of law is quite distinct from the choice of forum. The choice of law is the set of laws which governs the substance of the contract, whilst forum is concerned with the dispute resolution body and the processes for final resolution.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(i) Choice of Law:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">The main factor in deciding which governing law should govern a contract is ease of enforcement of those contractual terms allocating risks between the parties. Some jurisdictions have less developed substantive legal rules and their laws do not fit comfortably with sophisticated transaction structures commonly seen in major financial centres. In such instances, local law may either override or fail to support the agreed contract terms, rendering the outcome of any dispute unpredictable.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Ideally, parties to a contract should choose a jurisdiction with a well-developed body of legal rules. Many international players prefer common law systems, mainly because they are accustomed to working within these legal systems. Moreover, common law systems carry with them a wealth of recognised precedents which can render dispute outcomes more predictable.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(ii) Choice of Forum:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Selecting a forum involves two different choices. Firstly, whether the parties wish to submit to arbitration or a court process. Secondly, a choice as to the legal environment in which the dispute process will be conducted, a choice which needs to take into account supervision of the arbitration and/or access to an appellate court system.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Resolution by official courts can save the parties substantial costs associated with arbitration. Any arbitration has to be funded privately, including the fees of the arbitrators. Also, it is usually quicker and easier for courts to secure interim remedies and to compel disclosure of documents or information; in arbitrations, it is often necessary to go to court to secure these remedies anyway. Courts also allow for appeal processes from their judgements, a safeguard against capricious findings or error. Arbitration, on the other hand, gives the parties an opportunity to ensure that a dispute is determined by a technical expert, rather than a legally trained judge. The expert can act as the arbitrator and resolve the dispute without the successful party being exposed to drawn-out appeals. Nevertheless, the possibility of the arbitrator requiring correction or supervision will also be relevant to any choice of forum. In some jurisdictions, arbitrations move faster than court processes, in others they move more slowly.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">When choosing the legal environment for the forum, a neutral jurisdiction has advantages, and usually gives confidence to foreign-based counterparties, particularly in cases where one of the transaction parties is a governmental entity or has strong ties to the government. Meanwhile, selecting the jurisdiction which hosts the deal assets also has its advantages, as the dispute resolution forum will have power to make orders affecting those assets and may be convenient and accessible for involved experts or witnesses. Decisions of a court where the deal assets are located are usually more readily enforceable against those assets.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A key point to consider in advance is whether a court of the jurisdiction hosting the deal assets will recognize and respect the parties’ contractual choice of forum. For example, courts in GCC countries sometimes consider it appropriate to assume jurisdiction over a case filed before them which involves local assets (particularly land); and to apply local law regardless.</p>\r\n&nbsp;\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.\"</h2>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">b. Enforcement of Securities</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Lenders must carefully study and assess the enforceability of their security in the event of default. In some jurisdictions which impose fees or taxes, taking security over the deal assets, especially real property, may be costly. In these cases, a more practical security may take the form of a preferential claim to cash balances and revenues of the target/assets.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\"><img class=\"alignright wp-image-8268 \" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/shutterstock_755088883-488x1024.jpg\" alt=\"\" width=\"226\" height=\"475\" />c. Force Majeure Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Force majeure is a legal term of art describing the occurrence of an unexpected event outside the control of the affected party, as a result of which it becomes difficult or impossible for that party to perform obligations under a contract. Examples of force majeure include wars, riots, fires, floods and hurricanes. Such events also affect domestic deals, but force majeure events are less predictable for foreign counterparties in any cross-border deal.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Common law jurisdictions usually refuse to grant relief for force majeure events unless this is expressly provided for in the contract. In contrast, civil law jurisdictions usually grant the court the authority to alter the contract to restore its balance where there is a force majeure event. In all cases, courts in both systems will be influenced by, and consider, the express terms of the contract before making a decision.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Some force majeure risks are commercially insurable events. Others are uninsurable events. Commercially insurable events include fires, floods or storms and in these scenarios their risk may be mitigated by obtaining the necessary insurance policies. In contrast, riots and political disruptions are usually uninsurable. Hence, the parties should take into account insurance cover and allocate contractual risks accordingly, particularly as the inclusion of an indemnity in the deal contract can sometimes nullify insurance arrangements.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">d. Currency Fluctuations</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Currency fluctuations are common risks encountered with international transactions. Even with the most careful monitoring, fluctuations can be unpredictable and can greatly affect the economics of a project, the business and its profits. To mitigate this risk, it is ideal to contract with all parties in the transaction chain in the same currency, if possible. Another way to mitigate any exchange risk, is to hedge the currency risk. This method may incur hedging costs and also sacrifice gains from favourable fluctuations – but, if the tables are turned, it also mitigates any significant losses.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">e. Sovereign Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Sovereign risk is an inherit risk that is more heightened in some countries. One way to mitigate sovereign risk is by structuring investments in such a way that investment protection treaties with the host country can be triggered. An example of such is the use of acquisition vehicles to which investment protection treaties apply.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">f. Market Demand Risks</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">A product or service which proves successful in one country may not be successful in another. Many businesses have had to adapt their products or services significantly in order to conform to the cultural, religious traditions or realities of a new market. For example, online sales platforms work only if a large percentage of the target market holds credit cards. A thorough market study must be conducted before introducing a new product or service fresh to a jurisdiction to validate the introduction, assumptions or projections made by the party introducing it.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The deal \"risk list\" above is by no means exhaustive. But it highlights the fact that risk allocations between the parties in any cross-border deal should be clearly documented and the main risks addressed. Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.</p>\r\n <img class=\"aligncenter wp-image-8269 size-full\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/Screen-Shot-2018-09-05-at-2.38.31-PM.png\" alt=\"\" width=\"4096\" height=\"1522\" />\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Al Tamimi &amp; Company’s Corporate Commercial team regularly advises on commercial matters. For further information please contact <a href=\"https://www.tamimi.com/lawyer/alex-saleh/\">Alex Saleh</a> (<a href=\"mailto:alex.saleh@tamimi.com\">alex.saleh@tamimi.com</a>) or <a href=\"https://www.tamimi.com/lawyer/rana-el-nahal/\">Rana Elnahal</a> (<a href=\"mailto:r.elnahal@tamimi.com\">r.elnahal@tamimi.com</a>).</em></p>|<p dir=\"LTR\" align=\"LEFT\">Most business transactions involve degrees of risk, which can never be eliminated entirely. An additional layer of risk inevitably accompanies any cross-border deal, and this article addresses the best way to manage these particular risks.</p>\r\n&nbsp;\r\n\r\n<img class=\"wp-image-8240 alignleft\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_09_Image_0001.jpg\" alt=\"\" width=\"444\" height=\"343\" />\r\n<h3 dir=\"LTR\" align=\"LEFT\">Cross-Border Deals and Legal Risks</h3>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">a. Choice of Law and Forum:</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">In cross-border deals, choice of law and forum clauses deserve enhanced scrutiny and negotiation. If any dispute flares up, you will find that these choices will have already been locked in. Suddenly, they will loom large, and poor choices may cost you considerable money and time. Choice of law is quite distinct from the choice of forum. The choice of law is the set of laws which governs the substance of the contract, whilst forum is concerned with the dispute resolution body and the processes for final resolution.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(i) Choice of Law:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">The main factor in deciding which governing law should govern a contract is ease of enforcement of those contractual terms allocating risks between the parties. Some jurisdictions have less developed substantive legal rules and their laws do not fit comfortably with sophisticated transaction structures commonly seen in major financial centres. In such instances, local law may either override or fail to support the agreed contract terms, rendering the outcome of any dispute unpredictable.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Ideally, parties to a contract should choose a jurisdiction with a well-developed body of legal rules. Many international players prefer common law systems, mainly because they are accustomed to working within these legal systems. Moreover, common law systems carry with them a wealth of recognised precedents which can render dispute outcomes more predictable.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>(ii) Choice of Forum:</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Selecting a forum involves two different choices. Firstly, whether the parties wish to submit to arbitration or a court process. Secondly, a choice as to the legal environment in which the dispute process will be conducted, a choice which needs to take into account supervision of the arbitration and/or access to an appellate court system.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Resolution by official courts can save the parties substantial costs associated with arbitration. Any arbitration has to be funded privately, including the fees of the arbitrators. Also, it is usually quicker and easier for courts to secure interim remedies and to compel disclosure of documents or information; in arbitrations, it is often necessary to go to court to secure these remedies anyway. Courts also allow for appeal processes from their judgements, a safeguard against capricious findings or error. Arbitration, on the other hand, gives the parties an opportunity to ensure that a dispute is determined by a technical expert, rather than a legally trained judge. The expert can act as the arbitrator and resolve the dispute without the successful party being exposed to drawn-out appeals. Nevertheless, the possibility of the arbitrator requiring correction or supervision will also be relevant to any choice of forum. In some jurisdictions, arbitrations move faster than court processes, in others they move more slowly.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">When choosing the legal environment for the forum, a neutral jurisdiction has advantages, and usually gives confidence to foreign-based counterparties, particularly in cases where one of the transaction parties is a governmental entity or has strong ties to the government. Meanwhile, selecting the jurisdiction which hosts the deal assets also has its advantages, as the dispute resolution forum will have power to make orders affecting those assets and may be convenient and accessible for involved experts or witnesses. Decisions of a court where the deal assets are located are usually more readily enforceable against those assets.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">A key point to consider in advance is whether a court of the jurisdiction hosting the deal assets will recognize and respect the parties’ contractual choice of forum. For example, courts in GCC countries sometimes consider it appropriate to assume jurisdiction over a case filed before them which involves local assets (particularly land); and to apply local law regardless.</p>\r\n&nbsp;\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.\"</h2>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">b. Enforcement of Securities</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Lenders must carefully study and assess the enforceability of their security in the event of default. In some jurisdictions which impose fees or taxes, taking security over the deal assets, especially real property, may be costly. In these cases, a more practical security may take the form of a preferential claim to cash balances and revenues of the target/assets.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\"><img class=\"alignright wp-image-8268 \" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/shutterstock_755088883-488x1024.jpg\" alt=\"\" width=\"226\" height=\"475\" />c. Force Majeure Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Force majeure is a legal term of art describing the occurrence of an unexpected event outside the control of the affected party, as a result of which it becomes difficult or impossible for that party to perform obligations under a contract. Examples of force majeure include wars, riots, fires, floods and hurricanes. Such events also affect domestic deals, but force majeure events are less predictable for foreign counterparties in any cross-border deal.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Common law jurisdictions usually refuse to grant relief for force majeure events unless this is expressly provided for in the contract. In contrast, civil law jurisdictions usually grant the court the authority to alter the contract to restore its balance where there is a force majeure event. In all cases, courts in both systems will be influenced by, and consider, the express terms of the contract before making a decision.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Some force majeure risks are commercially insurable events. Others are uninsurable events. Commercially insurable events include fires, floods or storms and in these scenarios their risk may be mitigated by obtaining the necessary insurance policies. In contrast, riots and political disruptions are usually uninsurable. Hence, the parties should take into account insurance cover and allocate contractual risks accordingly, particularly as the inclusion of an indemnity in the deal contract can sometimes nullify insurance arrangements.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">d. Currency Fluctuations</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Currency fluctuations are common risks encountered with international transactions. Even with the most careful monitoring, fluctuations can be unpredictable and can greatly affect the economics of a project, the business and its profits. To mitigate this risk, it is ideal to contract with all parties in the transaction chain in the same currency, if possible. Another way to mitigate any exchange risk, is to hedge the currency risk. This method may incur hedging costs and also sacrifice gains from favourable fluctuations – but, if the tables are turned, it also mitigates any significant losses.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">e. Sovereign Risk</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Sovereign risk is an inherit risk that is more heightened in some countries. One way to mitigate sovereign risk is by structuring investments in such a way that investment protection treaties with the host country can be triggered. An example of such is the use of acquisition vehicles to which investment protection treaties apply.</p>\r\n&nbsp;\r\n<h4 dir=\"LTR\" align=\"LEFT\">f. Market Demand Risks</h4>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">A product or service which proves successful in one country may not be successful in another. Many businesses have had to adapt their products or services significantly in order to conform to the cultural, religious traditions or realities of a new market. For example, online sales platforms work only if a large percentage of the target market holds credit cards. A thorough market study must be conducted before introducing a new product or service fresh to a jurisdiction to validate the introduction, assumptions or projections made by the party introducing it.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The deal \"risk list\" above is by no means exhaustive. But it highlights the fact that risk allocations between the parties in any cross-border deal should be clearly documented and the main risks addressed. Transactions always carry risks, but they can be managed successfully if the right care and judgment is exercised.</p>\r\n &nbsp;<img class=\"aligncenter wp-image-8269 size-full\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/Screen-Shot-2018-09-05-at-2.38.31-PM.png\" alt=\"\" width=\"4096\" height=\"1522\" />&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Al Tamimi &amp; Company’s Corporate Commercial team regularly advises on commercial matters. For further information please contact <a href=\"https://www.tamimi.com/lawyer/alex-saleh/\">Alex Saleh</a> (<a href=\"mailto:alex.saleh@tamimi.com\">alex.saleh@tamimi.com</a>) or <a href=\"https://www.tamimi.com/lawyer/rana-el-nahal/\">Rana Elnahal</a> (<a href=\"mailto:r.elnahal@tamimi.com\">r.elnahal@tamimi.com</a>).</em></p>'),
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(308588, 29439, 'PostID', '8189'),
(308589, 29439, 'PostTitle', 'Corporate Governance in Action in UAE Companies: Issues with Management Authorities'),
(308590, 29439, 'PostStatus', 'publish'),
(308591, 29439, 'PostType', 'law_update_articles'),
(308592, 29439, 'PostDate', '2018-09-04 07:49:10'),
(308593, 29439, 'PostUrl', 'https://www.tamimi.com/law-update-articles/corporate-governance-in-action-in-uae-companies-issues-with-management-authorities/'),
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(308596, 29439, 'MetaValueNew', '<p dir=\"LTR\" align=\"LEFT\"><img class=\"aligncenter size-full wp-image-8241\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/August-Edition-DPS_Page_10_Image_0001.jpg\" alt=\"\" width=\"1595\" height=\"352\" /></p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The UAE Companies Law (Fed. Law 2 of 2015) mandates that the management of a limited liability company (\"LLC\") to be undertaken by one or more managers as determined by the partners (i.e. the shareholders) in the memorandum of association. Such managers can be selected from either the partners or from third parties. We receive plenty of questions from UAE LLCs asking us about the powers of their managers. This article explores the most common questions we receive in respect of the methods of appointing managers, their powers and authorities, the instruments needed to effect the aforementioned and the method of revoking said instruments.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Without a delegation instrument which grants powers to managers to manage the businesses and sign on behalf of LLCs, managers may not be able to perform their roles. Third parties, including courts, regulators and other contracting parties regularly query whether managers have the requisite authority to sign applicable documents or make decisions on behalf of the company.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Appointing Managers of LLCs</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">The most common method to appoint LLC managers and define their authorities is to embed provisions in the company’s memorandum of association (\"MOA\").</p>\r\n<p dir=\"LTR\" align=\"LEFT\">If the MOA does not list the managers of the LLC, the partners should appoint managers under a general assembly resolution or another delegation instrument of the partners.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Powers of LLC Managers</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Managers of LLC shall hold a duly notarized document evidencing their powers and authorities. This document may be the MOA itself, a partner/general assembly resolution and/or a power of attorney (\"POA\"). Generally, an LLC manager is authorised to assume full powers of the company’s management and their actions bind the company, unless their powers are restricted by an appointment contract, the MOA or the LLC’s bylaws.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The Dubai Court of Cassation in its judgment in its Case 164 of 2008 confirmed that unless explicitly prohibited in the MOA \"<em>The manager of an LLC is the person having full authority of the management of the company, and he/she has competence to make dispositions over the rights relating to its activities, including an agreement to arbitrate</em>\". Also, Article (4)(e) of Ministerial Resolution No. (272) of 2016 concerning the Application of Some Provisions of Public Joint Stock Companies to Limited Liability Companies (\"Resolution\") provides that the powers and authorities of manager(s) shall be determined by the MOA or by a general assembly meeting resolution.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">POAs as a Delegation Instrument</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Delegation instruments are instruments used to delegate powers and authorities from one party to another. They come in different forms such as POAs (a notarized delegation instrument), proxies and delegation letters.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">The principal (party issuing the POA) must have the power it wishes to grant to the attorney. A POA in the UAE must specify the powers given to the attorney to have legal effect. There is also no specific form required for the validity of a POA. It should, however, be notarized and certified by the relevant authorities and should contain the following information:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">the details of the principal;</li>\r\n 	<li dir=\"LTR\">the details of the attorney;</li>\r\n 	<li dir=\"LTR\">the powers being delegated;</li>\r\n 	<li dir=\"LTR\">date of issuance;</li>\r\n 	<li dir=\"LTR\">capacity of the principal (for example: \"in my capacity as manager of X company\");</li>\r\n 	<li dir=\"LTR\">duration of POA, if any;</li>\r\n 	<li dir=\"LTR\">any other requirements made by the notary public.</li>\r\n</ul>\r\n<p dir=\"LTR\" align=\"LEFT\">It is also worth noting that in the UAE, POAs are not capable of being irrevocable i.e. the principal can cancel the attorney’s authority at any time.</p>\r\n&nbsp;\r\n<h2 dir=\"LTR\" align=\"LEFT\">\"Managers of limited liability companies shall hold a duly notarized document which evidences their powers and authorities.\"</h2>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\"><img class=\"alignright wp-image-8270 size-large\" src=\"https://www.tamimi.com/wp-content/uploads/2018/09/Screen-Shot-2018-09-05-at-2.50.22-PM-695x1024.png\" alt=\"\" width=\"640\" height=\"943\" />Cancellation of Power of Attorney, Delegations and General Assembly Resolutions</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Powers of Attorney</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Among other less common situations, there are situations that arise in which the POA granted to an attorney is mutually or automatically terminated and others in which the principal dismisses the attorney and wishes to revoke the POA.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>i. The termination of the POA</em></p>\r\n<p dir=\"LTR\" style=\"padding-left: 30px;\" align=\"LEFT\">Article 954 of the Civil Code provides the circumstances in which a POA may be terminated, as follows:</p>\r\n\r\n<ul>\r\n 	<li dir=\"LTR\">upon the completion of the work which was delegated;</li>\r\n 	<li dir=\"LTR\">upon the expiration of the term of the POA;</li>\r\n 	<li dir=\"LTR\">upon the death of the principal or his/her ceasing to have legal capacity; or</li>\r\n 	<li dir=\"LTR\">upon the death of the attorney or his/her ceasing to be of legal capacity.</li>\r\n</ul>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>ii. Dismissal of the Manager and revocation of POA</em></p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">Generally, a principal may dismiss or restrict the powers of an attorney at its discretion, unless (i) third party rights have arisen by virtue of the POA; or (ii) if the POA was granted for the benefit of the attorney, in which case the principal may not terminate or restrict the POA without the consent of the person for whose benefit it was created. If the POA is issued in favor of the attorney, i.e,. it provides the attorney with some beneficial rights, the principal may not terminate or limit the POA without the consent of the attorney. The principal may be liable for any harm caused to the attorney as a result of termination/revocation of the POA at an inappropriate time without an acceptable reason. In practice, for the principal to dismiss an attorney (i.e. revoke the POA), the principal must sign and notarize a revocation instrument before the notary public. The revocation is then reflected in the notary public’s system and notified to the attorney by the principal by way of registered mail. The attorney must cease acting on behalf of the principal upon receipt of said notification. Even though not required by law, as a precautionary measure, principals should publish the revocation of the POA in the newspaper.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>Delegations</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">Written delegations which have not been notarized may be revoked simply by written notification to the delegate.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">Additional steps should be taken to revoke delegations granted to attend general assembly/board meetings, such as notifying the company concerned.</p>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\"><em>General Assembly Resolutions</em></p>\r\n<p dir=\"LTR\" align=\"LEFT\">General Assembly resolutions cannot be revoked or cancelled.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">They may, however, be superseded by general assembly resolution, which rectifies, alters, replaces, revokes, cancels or amends the previous partners’ resolution.</p>\r\n<p dir=\"LTR\" align=\"LEFT\">As there is no legal requirement to notarize general assembly resolutions, a notarized partners’ resolution may only be replaced/revoked by way of a notarized partners’ resolution.</p>\r\n&nbsp;\r\n<h3 dir=\"LTR\" align=\"LEFT\">Conclusion</h3>\r\n&nbsp;\r\n<p dir=\"LTR\" align=\"LEFT\">As previously mentioned, managers of LLCs perform their roles through a delegation instrument which grants powers to them to manage the businesses and sign on behalf of LLCs. The most common delegation instrument is the MOA. In circumstances where the MOA does not provide such delegation, a general assembly resolution or a POA is resorted to. Determining the method of delegating powers to managers of LLCs will be dependent on the circumstances applicable to each particular case.</p>\r\n&nbsp;\r\n\r\n<em>Al Tamimi &amp; Company’s corporate commercial team regularly advises on ECM, M&amp;As, and corporate commercial matters. For further information please contact <a href=\"https://www.tamimi.com/lawyer/sarah-tomy/\">Sarah Mohamed Tomy</a> (<a href=\"mailto:s.tomy@tamimi.com\">s.tomy@tamimi.com</a>) or <a href=\"https://www.tamimi.com/lawyer/mohamed-khodeir/\">Mohamed Khodeir</a> (<a href=\"mailto:m.khodeir@tamimi.com\">m.khodeir@tamimi.com</a>).</em>');
