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(87684, 4770, 'content_description', 'On July 23 2013, His Highness Sheikh Mohammed bin Rashid Al Maktoum, Vice President and Prime Minister of the UAE, in his capacity of Ruler of Dubai, issued Decree No. (21) of 2013 concerning the formation of a special judicial committee for the liquidation of cancelled real estate projects in the Emirate of Dubai and the settlement of relevant rights (the “New Decree”). '),
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(87686, 4770, 'pageSummary', 'On July 23 2013, His Highness Sheikh Mohammed bin Rashid Al Maktoum, Vice President and Prime Minister of the UAE, in his capacity of Ruler of Dubai, issued Decree No. (21) of 2013 concerning the formation of a special judicial committee for the liquidation of cancelled real estate projects in the Emirate of Dubai and the settlement of relevant rights (the “New Decree”).'),
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(87698, 4770, '_yoast_wpseo_metadesc', 'On July 23 2013, His Highness Sheikh Mohammed bin Rashid Al Maktoum, Vice President and Prime Minister of the UAE, in his capacity of Ruler of Dubai, issued Decree No. (21) of 2013 concerning the formation of a special judicial committee for the liquidation of cancelled real estate projects in the Emirate of Dubai and the settlement of relevant rights (the “New Decree”).'),
(87699, 4771, 'content', 'September 2013\r\n\r\n<hr />\r\n\r\nThis article sheds some light on the taking and enforcement of security (which is always of essence to banking business) in the UAE in comparison with that under the law of the People’s Republic of China (‘PRC’)  .\r\n\r\n<strong>Source of Law</strong>\r\n\r\nSecurity-related matters in PRC were primarily governed by the Security Law of the People’s Republic of China (1995) (‘PRC Security Law’) and the Property Law of the People’s Republic of China (2007) (‘PRC Property Law’) which together set out the main structure of the security legal system under PRC law. In the UAE, unlike that of PRC, while there are a few laws governing the taking and enforcement of a specific type of security (such as Law No. 14 of 2008 Concerning Mortgage in the Emirate of Dubai) no comprehensive laws have been promulgated to govern security-related matters as a whole. In practice, relevant provisions of the Federal Law No. 18 of 1993 issuing the UAE Commercial Transaction Law (‘UAE Commercial Code’) and Federal Law No. 5 of 1985 issuing the Federal Civil Transaction Law (‘UAE Civil Code’) will be taken into account in respect of matters related to the taking of security.\r\n\r\n<strong>Types of Security Interest</strong>\r\n\r\nPRC law generally provides for three types of security, namely mortgage, pledge and lien, the perfection of which enables the secured party to enjoy a priority right over secured property above unsecured creditors and secured creditors subsequent in rank. In comparison, generally under UAE law  security would either be a mortgage or pledge  without necessarily guaranteeing the right of priority (except for registered mortgage and pledge). In practice, six types of security (or documents used for security purpose) are widely used based on the type of property to be secured, which are discussed below.\r\n\r\n<strong>Mortgage over immovable property </strong>\r\n\r\nUnder UAE law, very similarly to that under PRC law, immovable property comprises land, buildings and fixtures and a mortgage over immovable property is perfected by signing a written mortgage contract and registering the same with the relevant authority. Furthermore, once a mortgage is registered, the mortgagee obtains a priority right over the mortgaged property above unsecured creditors and secured creditors subsequent in rank to that of the mortgagee. However, a mortgage over immovable property under UAE law differs from that under PRC law in the following aspects:\r\n<ol>\r\n 	<li>Under UAE law, an interest in land could be freehold, leasehold, usufruct, musataha, granted or gifted, which will dictate what type of mortgage is possible and impacts the interest and value a mortgagee will obtain from the mortgage. But under PRC law, mortgages can only be granted over land use rights because all lands in China are owned by the state while individuals or entities can only hold land use rights (for a limited term);</li>\r\n 	<li>A mortgage over land under UAE law will automatically extend to any building or structure to be constructed on the land in the future, which is not possible under PRC law; and</li>\r\n 	<li>Under UAE law, certain registered leases can be mortgaged, which does not exist under PRC law.</li>\r\n</ol>\r\n<strong>Mortgage/Pledge over movable property </strong>\r\n\r\nThere are two types of mortgages over movable property in the UAE: registered mortgages and unregistered pledges.\r\n\r\nRegistered mortgages under UAE law can be granted over registered properties such as vehicles, ships and aircraft and such registered mortgages are perfected by signing a mortgage contract and registering the same with the relevant authorities. While the perfection requirement of a registered mortgage (or its equivalent) under PRC law is very similar to that under UAE law, the scope of mortgageable properties is more extensive, as registered mortgages can also be granted over machinery, raw materials, semi-finished products and finished products, as well as ships and aircrafts under construction. Furthermore, the PRC Property Law makes the list of mortgageable property nonexclusive by providing that a mortgage can be granted to any property that is not explicitly prohibited by laws and regulations.\r\n\r\nUnder UAE law, very similar to that under PRC law, a possessory pledge can be granted over movable property (i.e. not permanently affixed to an immovable property) and the same can be perfected by signing a written pledge agreement and delivering the relevant property by the pledgor to the pledgee (either actual or constructive). Pledged assets must be in existence and indentified and security cannot be granted to future assets.\r\n\r\n<strong>Mortgage over commercial business </strong>\r\n\r\nUnder UAE law, commercial business comprises tangible elements (goods, tools, machines and equipments) and intangible elements (trade name, goodwill, intellectual property rights, contracts with clients and the right to let and licenses). A mortgage over commercial business can be perfected by signing and notarising an Arabic (or bilingual) mortgage contract and registering the mortgage with the relevant Commercial Registry. For the ease of reference, a mortgage so created is referred to as a “Commercial Business Mortgage”.\r\n\r\nA similar provision can be found in Article 181 of the PRC Property Law which provides that an enterprise, individual industrial and commercial household or agricultural production operator may mortgage the manufacturing facilities, raw materials, half-finished products and products it owns now or in the future, and the mortgagee shall be entitled to enforce the mortgage and seek preferred payments from the chattels that exist at the time of the enforcement. For the ease of reference, a mortgage so created is referred to as a “Chattel Mortgage”.\r\n\r\nIt is worth noting the following fundamental differences between the above-mentioned mortgages:\r\n<ul>\r\n 	<li>a Chattel Mortgage can only be granted over tangible assets such as manufacturing facilities and  inventories, but a Commercial Business Mortgage can also be granted over intangible assets such as intellectual property rights which is secured by way of pledge under PRC law;</li>\r\n 	<li>chattels secured by a  Commercial Business Mortgage (such as goods) should be existing and identified and cannot be changed after the perfection of the mortgage, but the chattels secured by a Chattel Mortgage may include future chattels and are to be identified at the time of enforcement. In China, the Chattel Mortgage has been generally considered as a type of floating charge recognised by law for the first time. The concept of a floating charge is not recognised under UAE law.</li>\r\n</ul>\r\n<strong>Pledge over bank accounts</strong>\r\n\r\nAs a general principal under UAE law, very similarly to that under PRC law, funds in an account subject to an account pledge must be ascertained and identified at the time of perfection of the pledge. Therefore, practically pledges over operating accounts or accounts with fluctuating balances are problematic. To overcome the problem and as a common practice in the UAE, it is preferable to hold cash flows in an account held under the name of the pledgee (i.e. the lender) or look at alternative structures (such as sweep mechanisms, reserve accounts or an offshore account, including the DIFC). In China it is possible to overcome the problem by pledging a deposit certificate or pledging a “special account” pursuant to the Interpretation of the Supreme Court regarding the PRC Security Law.\r\n\r\n<strong>Pledge over shares</strong>\r\n\r\nOnly four types of companies may issue shares in the UAE and can therefore be pledged: public joint stock companies, private joint stock companies, partnerships limited by shares and free zone companies.  One notable feature of share pledges under UAE law is that the equity interest (or quota) in a limited liability company may not be pledged (this will be changed, however, with the introduction of the new companies law).\r\n\r\nHowever, pledges over shares, equity interest and fund units are commonly recognized and widely used in China. Shares or equity interest (as the case may be) in most types of companies under PRC law, including domestic companies, foreign invested enterprises and list companies, are capable of being pledged.\r\n\r\nThe perfection requirements under both jurisdictions are similar to each other which involve the signing of a written agreement and registration of the pledge with the relevant authorities.\r\n\r\n<strong>Assignment of rights</strong>\r\n\r\nUnder UAE law, contractual rights under an underlying agreement, including receivables, are typically secured by way of assignment. For finance transactions, it is common for banks in the UAE to take assignments of customer’s rights to receive rentals from property, insurance proceeds, rights under construction contracts, management contracts, payments under invoices and so on. Perfection of assignment requires a written assignment agreement to be signed, a notice to the counterparty under the underlying agreement and (as the case may be) the consent of such counterparty. In essence, assignment of rights is merely a contractual arrangement between the parties and there is no priority right granted by law that can be enjoyed by the assignee (although in practice, the assignee can secure its rights under assignment by a setting off or sweeping mechanism).\r\n\r\nVery differently, receivables are pledgeable according to PRC Property Law. Perfection of a pledge of receivables requires a written pledge contract and registration of the pledge with the Credit Reference Centre maintained by the China Central Bank.\r\n\r\n<strong>Enforcement of security </strong>\r\n\r\nThe concept of “self help” is not recognized under UAE law and an order from a UAE court will be required to enforce a security. Enforcement involves the secured party filing a claim for the entire amount outstanding on a debt and then requesting the court to both acknowledge the security and confirm the secured party’s preferred position. Following a court order, the security interest can either be realized by way of public auction (in respect of a mortgage) or otherwise.\r\n\r\nIn contrast, enforcement of security in China is much less onerous. In terms of mortgages, the PRC Property Law permits the mortgagee to enter into an agreement with the mortgagor with respect to the method to realize the mortgage, failing which a court order will be required. In terms of pledges, the PRC law encourages the parties to realise a pledge between themselves (either by agreement or by public auction), the court will be involved only when a pledgee refuses to enforce a pledge.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nWhile this article is not intended to be a comprehensive analysis of the taking and enforcement of security in the UAE and China, it does serve to highlight material differences in each jurisdiction, which should be kept in mind when doing business in the UAE. Should you have any inquiry in relation to the issues discussed herein, please feel free to contact us.'),
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(87709, 4771, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Alex Peng Shi'),
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(87721, 4771, '_yoast_wpseo_metadesc', 'In recent years, the market has seen increasing numbers of Chinese banks establishing a presence in the UAE (including the Dubai International Financial Centre). As a Chinese-qualified lawyer practising banking law in the UAE, the author always feels obligated to help ensure that Chinese banks comprehensively understand the local legal environment.'),
(87722, 4772, 'content', 'September 2013\r\n\r\n<hr />\r\n\r\nThe NMC is undergoing a series of changes prompted by Cabinet Resolution No. 9 of 2013 and Cabinet Resolution No. 12 of 2013, both of which come into force on 30 July, 2013.\r\n\r\nResolution No. 9 of 2013 brings about reform to the internal organizational structure of the NMC. The Resolution hence has two functions: (i) it outlines and redefines the role of the NMC itself, and (ii) it outlines the roles and the powers of the NMC’s key representatives. This Resolution revokes the previous Resolution No. 34 of 2011, which concerned the organizational structure of the NMC.\r\n\r\nMost importantly, Article 3 sets out the new powers of the NMC, and is a definitive step in the gradual process of power delegation from the Ministry of Information and Culture to the NMC. The list of powers includes: the power to supervise all media affairs of the UAE (Article 3(2)); to receive newspaper correspondents and international news agencies and provide them with the required information and publications to acquaint the public on the position of the State in various fields (Article 3(3));  to grant media licences to media institutions in the UAE (Article 3(4)); and to follow up media content concerning all matters printed, published and broadcasted in the State and that which is taken from abroad.\r\n\r\nResolution No. 12 of 2013 introduces a fee structure for commercial-based media licenses and for obtaining permits to deal in media materials. The fee schedules resemble the ones provided by the previous law, Cabinet Resolution No. 14 of 1999 which has now been revoked by virtue of this new Resolution. However, Resolution No. 12 of 2013 tackles a more comprehensive and specific list of media materials and services for which licenses are payable. Resolution No. 12 of 2013 lists 49 services which require licences and 13 media materials which require permits. Some notable categories include the newly introduced permit for those practicing as foreign correspondents in the UAE, fees payable for the sale of media materials such as pictures, and licenses for cafés providing internet services to the public.\r\n\r\nWe consider that there is some ambiguity to the scope and application of the licensing fees. While categories under the license provision do not distinguish between media and non-media institutions, in our view, it would be prudent for all organizations which trade or otherwise deal with media materials or services to take note of these licensing categories. Failure to comply and obtain a relevant permit and/or license can attract penalties up to the amount payable for the license, depending on the breach.'),
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(87726, 4772, 'content_description', 'The National Media Council (NMC) is a federal government body which has been established to oversee and undertake the media affairs of the United Arab Emirates. '),
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(87728, 4772, 'pageSummary', 'The National Media Council (NMC) is a federal government body which has been established to oversee and undertake the media affairs of the United Arab Emirates.'),
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(87732, 4772, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Anita Siassios'),
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(87741, 4773, 'content', 'September 2013\r\n\r\n<hr />\r\n\r\nIn particular this article will attempt to address the following issues.\r\n<ul>\r\n 	<li>What expensesguarantees are requited to submit an offer?</li>\r\n 	<li>What legal presence is required to sign contracts, for foreign entities?</li>\r\n 	<li>What penalties can be imposed by the government with regard to public contracting?</li>\r\n 	<li>How to handle disputes arising before or during contract formation, esp related to public biding and offer acceptance?</li>\r\n 	<li>What are the available Mechanisms for dispute resolution after contract formation? Mediation, Arbitration, litigation?</li>\r\n 	<li>In what language(s) are contracts written? which one prevails in case of difference in interpretation?</li>\r\n 	<li>What’s the definition of “special circumstances” or force majeure effecting timely performance. Can security problems in Iraq excuse non performance?</li>\r\n</ul>\r\nFirst we need an overview of the contracting process. This article concerns official contracts governed by the Public Government Contracts law No 1 for the year 2008 and followup regulations for implementing government contracts. Please note that exceptions can be made where there is a need for confidentiality or speed, or for other reasons such as a market monopoly by one supplier. It should be noted as well that contracts totaling 50 000, 000 IQD (fifty million Iraqi Dinars) and less are also exempt from most of the said procedures. The latter is handled by an acquisition committee.\r\n\r\nFor construction and supply contracts the first step is to buy a tender. This is a requirement to enter public biding and submit offers, this payment can not be refunded. Potential Contractors/Suppliers then submit technical and commercial offers, along with any other documents which may be required for the specific contract. At this stage a guarantee of 1% of the total contract price is required. This is to ensure the seriousness of an offer. This guarantee has to be issued from a CBI – Central Bank of Iraq - certified bank and is refundable. When opening a Letter of Credit the buyer (Public Entity) refunds the fees if it’s opened inside Iraq.\r\n\r\nIf an offer is accepted the government entity will enter negotiations with the offeree to sign a contract. Contracts specify the need for a performance bond of 5% of the total contract price. This is a guarantee for good faith performance and is refunded by the bank after successful contract completion. Requires inspection reports for supply contracts and other similar documents for construction contracts.\r\n\r\nThere are no restrictions on foreign entities wishing to do business in Iraq so generally speaking foreign contractors and suppliers do not have to be registered with the ministry of planing. However to sign contracts a foreign entity needs to either open a branch in Iraq or incorporate an Iraqi company, it can own 100% of its stock in. A representative office does not suffice and needs to be converted to a branch.\r\n\r\nIn case of refusal to sign a contract within 15 days after a valid offer has been accepted the penalty is to liquidate the 1% preliminary guarantee. Other legal measures may be taken in case of other damages. In case of delayed or non performance the Iraqi contracting entity can suggest  inserting the defaulting Contractor/Supplier in the ministry of planing black list. Being blacklisted deprives a party from any future business with the government for a minimum of two years. This does not effect litigation or any other legal actions taken.\r\n\r\nDisputes arising before or during contract formation, complaints about offer acceptance, conditions effecting fair competition and other public biding procedure issues are handled by an administrative court at the ministry of planing, complaints have to be submitted within 7 days of contract formation. The ministry of planing central contracting department oversees this process by following up on the courts decisions with contracting departments in relevant public ministries.\r\n\r\nArticle 11 of the regulation for implementing government contracts No 1 for the year 2008 allows for and encourages Mediation and arbitration, including International arbitration when dealing with a foreign entity. Article 9 states that (a) Contracts shall be written in Arabic, Kurdish and English whenever possible and (b) The tender document shall determine the prevailing version in case of difference in interpretation. This is relatively new in Iraq\r\n\r\nWhen it comes to defining “special circumstances” or force majeure, Iraqi law requires that the impediment causing non performance be unforeseeable to the non performing party. Since 2003 Iraqi courts have ruled that security problems are not considered unforeseeable and that parties assume this risk when contracting. Therefore, it can not excuse non performance.'),
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(87747, 4773, 'pageSummary', 'The Iraqi government is the most prominent business partner in the Iraqi market. To date most of the money flows from public sources. As such it is essential for a foreign entity doing business in Iraq to know the general guidelines for submitting offers, acceptance criteria and contract formation procedure.'),
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(87755, 4773, '_yoast_wpseo_metadesc', 'The Iraqi government is the most prominent business partner in the Iraqi market. To date most of the money flows from public sources. As such it is essential for a foreign entity doing business in Iraq to know the general guidelines for submitting offers, acceptance criteria and contract formation procedure.'),
(87756, 4774, 'content', 'September 2013\r\n\r\n<hr />\r\n\r\nIf the business is in the form of a Kuwait commercial entity, the Kuwaiti partner(s) must own at least 51% of the company. Alternatively, if a foreigner will not engage with a Kuwaiti partner to establish a commercial entity, that foreigner may only do business in Kuwait through the use of a Kuwaiti agent.  Such agents receive favorable treatment under the Commercial Law in respect to termination of the agency relationship and other matters which can act as a disincentive for foreign investors.\r\n\r\n<strong>The Foreign Investment Law </strong>\r\n\r\nIn 2001 Kuwait passed the Foreign Direct Investment Law No. 8 of 2001(the “FDI Law”) to encourage and secure direct foreign investment into the Kuwait market.  The FDI Law was established as part of the Kuwait 2035 Plan which seeks to transform Kuwait into a financial and commercial regional hub by diversifying the economy, reducing its dependence upon the oil industry and inviting the private sector to drive economic activities.\r\n\r\nThe FDI Law created an exception to the Commercial Law by allowing foreigners to own up to 100% of a commercial entity in Kuwait where the entity operates in select industrial sectors such as infrastructure, insurance, hospitals, housing, tourism and entertainment.\r\n\r\nUnder the FDI Law, foreign investors are incentivized to invest in Kuwait including property incentives in the form of a land grant and a tax holiday for up to 10 years.  These incentives are linked to the proportion of Kuwaiti nationals that are employed.\r\n\r\nThe FDI Law was introduced with much anticipation and optimism given its alignment with the 2035 Plan. However, to date, the FDI Law has arguably not had the desired impact that was envisaged at the outset. This is primarily due to the difficulty foreign investors have faced in obtaining a license from the Kuwait Foreign Investment Bureau (KFIB), the entity established to implement the FDI Law.  Further, where a license was granted by the KFIB it can often take many months to process and there have also been delays in obtaining land grants.\r\n\r\nUntil fairly recently, the FDI Law was largely viewed as ineffective by the private sector, leading many to abandon pursuing their own license and instead focusing their efforts on participation in Kuwait through other means (e.g. the use of SPVs within the GCC). This is not entirely attributable to the FDI Law as inward investment has been affected by political turmoil and the delay of many anticipated projects in Kuwait which were also designed to boost economic diversification and foreign investment.\r\n\r\n<strong>Changes to the Foreign Investment Law </strong>\r\n\r\nIn line with the recent modernization of legislation in Kuwait, the KFIB and government officials sought to revise the FDI Law after discussing the various concerns with investors. Due to the critical need for change, the FDI Law was repealed and replaced by Foreign Direct Investment Law No. 116 of 2013(the “New FDI Law”) in June 2013. The intent of the New FDI Law is to address flaws in the repealed FDI Law, encourage more direct investment in Kuwait and make it much easier for investors to obtain a license.\r\n\r\nAs a starting point, the KFIB is replaced with the Direct Investment Promotion Authority (“DIPA”), which is essentially created with the same mandate as the KFIB. DIPA will assume all assets and liabilities attributed to KFIB, which will be subsequently dissolved.  KFIB is enthusiastic about the issuance of the New FDI Law and deems this as a promising step towards achieving the objectives of the 2035 Plan.\r\n\r\nIt should be noted that the New FDI Law will be accompanied by executive regulations (the “Regulations”) which we anticipate will be introduced in December of this year. Accordingly, the New FDI Law will become effective upon the issuance of the Regulations.  The Regulations should shed light and provide further detail as to the implementation of the New FDI Law. Nonetheless, there are a few improvements, which can already be seen in the New FDI Law.\r\n\r\nFirst, the New FDI Law provides a “One-Stop Shop” whereby a DIPA license application is considered by a specialised unit comprising of all relevant officials from the various relevant government departments.  This unit will hopefully deal with the issuance of commercial, employment and all other licenses required for operations and avoid or reduce bureaucratic delays. Additionally, this specialized unit is expected to deal with the grant of land required for many projects, a role typically held by the Public Authority for Industry.  Whilst the concept of a “One-Stop Shop” is not new, the New FDI Law formalizes its creation and should hopefully reduce ‘red tape’ for foreign investors.\r\n\r\nAnother improvement is the use of a “Negative List” in Article 11 of the New FDI Law to identify the sectors available to foreigners for investment. The repealed FDI Law specifically identified 14 available sectors for foreign investment. The New FDI Law expands the available sectors by stating that the Council of Minister shall prepare a list of those sectors which are excluded from foreign investment within the scope of the New FDI Law. This implies that investment in any sector not identified by this list would be permissible.\r\n\r\nAnother likely improvement is the reduction of time required to receive a license from the DIPA. Unlike the KFIB who could take up to 8 months to issue a license, the New FDI Law establishes that the DIPA must respond within 30 days of receipt of the license application. This brings Kuwait closer to its GCC neighbors with respect to the length of time ordinarily required to process a foreign investment license.\r\n\r\nThe New FDI Law is certainly in need of the Regulations in order to be able to establish how the proposed improvements will be implemented.  However, to meet the objectives of the 2035 Plan, we consider it crucial that the New FDI Law proves effective in attracting foreign investment to the Kuwaiti market.\r\n\r\nWe look forward to the introduction of the Regulations to enable a further analysis of the implementation of the New FDI Law and its likely impact.'),
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(87762, 4774, 'pageSummary', 'It is a long held and established business principle under the Commercial Law No. 68 of 1980 (the “Commercial Law”) that foreigners cannot engage in any commercial business without having a Kuwaiti partner.'),
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(87766, 4774, 'lawUpdateArticleNoWriters_0_lawUpdateAuthorName', 'Ramy Shabana'),
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(87772, 4774, 'lawUpdateArticleNoWriters_1_lawUpdateAuthorName', 'Sonia Salah'),
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(219522, 7697, 'content', '<img class=\"size-full wp-image-7696 alignright\" src=\"http://www.tamimi.com/wp-content/uploads/2018/06/shutterstock_656669977-1-799x1024-2.jpg\" alt=\"\" width=\"291\" height=\"373\" />\r\n<p class=\"p1\">The purpose of this article is to provide developers, investors and other stakeholders with an overview of the main laws and regulations affecting the real estate practice in the Kingdom of Saudi Arabia, as well as the practical issues to consider.</p>\r\n&nbsp;\r\n<p class=\"p3\"><b>Who can Own Property in Saudi Arabia?</b></p>\r\n<p class=\"p1\"><span class=\"s1\">Gulf Cooperation Council (‘GCC’) nationals and GCC companies (with shareholders who are all GCC nationals) have certain rights to own land, subject to a number of restrictions. A GCC company or a GCC national may lease or purchase land to use it to conduct any licensed business activity from the land, and may own residential properties in Saudi Arabia, except for properties within the vicinity of Mecca and Medina.</span></p>\r\n<p class=\"p1\">Foreigners (being non-GCC nationals or companies who are not 100 percent owned by GCC nationals) have certain rights to own land and property in Saudi Arabia. The Foreign Ownership of Real Estate Regulation (enacted by Royal Decree No. M/15 dated 17/04/1421H, corresponding to 19 July 2000) regulates the acquisition by foreign, non-GCC nationals, of real estate in Saudi Arabia. Under this regulation, the ownership and investment in real estate by a foreign investor is permitted, subject to obtaining a foreign investment licence from the Saudi Arabian General Investment Authority (‘SAGIA’).</p>\r\n<p class=\"p1\">A non-GCC development company may, subject to certain licencing conditions by SAGIA, own real estate in connection with a particular project for property development provided that the construction of buildings is for investment purposes (whether through sale or lease), and is carried out by a Saudi Arabia licensed contractor.</p>\r\n<p class=\"p1\">A non-GCC entity may own Saudi Arabian real estate that is reasonably required for (i) the conduct of its professional, technical or economic activities, including for its headquarters and warehouses, or (ii) private residences for housing employees of licensed projects, or (iii) residential use by individuals with normal legal residency status.</p>\r\n<p class=\"p1\">Foreign owned entities are restricted from acquiring any right of property in real estate within the borders of the cities of Mecca and Madina. There are also ownership restrictions whereby other resolutions of the Saudi Council of Ministers, and royal decisions expressly prohibit the acquisition of real estate in specified locations.</p>\r\n<p class=\"p1\">There are other rules whereby a foreign individual may own property in Saudi Arabia if he has normal legal residency status and has a permit from the Ministry of the Interior.</p>\r\n<p class=\"p1\">It must be pointed out that Saudi Arabia has a strict anti-fronting law, which must be carefully considered when structuring investments through an entity.</p>\r\n&nbsp;\r\n<p class=\"p3\"><b>Titling and the Registration System</b></p>\r\n<p class=\"p1\">The Realty in Kind Registration Law, issued by Royal Decree No. 6 on 9/21423H, creates an efficient and transparent land identification, ownership and registration system which will ultimately cover all real estate in the Kingdom. This law is also supported by the following laws relating to surveying of land and the sale of units in a building:</p>\r\n\r\n<ul>\r\n 	<li class=\"p4\">The Law of General Survey Authority; and</li>\r\n 	<li class=\"p4\">The System of Ownership of Units, Estates, units, apartments and their Sorting, issued by Royal Decree No. 5 on 11/2/1423H, corresponding to 24/4/2002.</li>\r\n</ul>\r\n<p class=\"p6\"><span class=\"s1\">In practice, however, the system remains less structured than as set out in the above laws and the practice could be compared with a “deeds system” whereby ownership was traced through the various contractual agreements between buyer and seller, with the “First Notary Public” completing a change in ownership and recording such details in a register retained by the Ministry of Justice. The practice may vary in different regions and separate rules may apply in the Economic Cities. </span></p>\r\n&nbsp;\r\n<p class=\"p3\"><b>Economic Cities</b></p>\r\n<p class=\"p1\">There are a number of economic cities which are at development stage in Saudi Arabia, namely the King Abdullah Economic City, the Knowledge Economic City, the Prince Abdulaziz bin Mousaed Economic City and the Jazan Economic City.</p>\r\n<p class=\"p1\"><span class=\"s1\"> Regulations have been issued by the Economic Cities Authority for the registration of all foreign companies established in the economic cities, the registration of all land title deeds in the name of foreign entities established in the economic cities and the issuance of licences and other approvals to service providers such as district cooling, warehousing, logistics, etc in the economic cities.</span></p>\r\n&nbsp;\r\n<p class=\"p3\"><b>REITs</b></p>\r\n<p class=\"p1\">In 2016, the Capital Market Authority introduced new rules allowing the formation of Real Estate Investment Traded Funds (‘REITs’) on the Saudi Stock Exchange (Tadawul), in an effort to open the real estate market to investment by a wider range of investors. The rules cover the management, operation, and ownership of the REITs.</p>\r\n<p class=\"p1\">Subscription in a REIT is open not only to Saudis, but also GCC citizens and non-Saudi residents in Saudi Arabia. Non-resident foreign investors are also allowed to trade in the units of the REITs on the Tadawul.</p>\r\n&nbsp;\r\n<p class=\"p3\"><b>Off Plan Sales </b></p>\r\n<p class=\"p1\">On 6 September 2016, Resolution No. 56 concerning the Regulations on the Sale of Off Plan Real Property was passed to provide added consumer protection in relation to off-plan sales.</p>\r\n<p class=\"p1\"><span class=\"s1\"> Prior to making any off-plan sales, a developer will have to register the project with the Off-plan Sale Committee at the Ministry of Housing. The developer will have to show that it has the financial ability to carry out the project and that it has put sufficient guarantees in place, in particular, opening an escrow account to ensure that collections from unit purchasers for a particular project are properly channelled towards that project in question and not spent on other unrelated projects.</span></p>\r\n<p class=\"p1\">The regulation also provides for the supervision of the construction progress by a consultation office (accredited by the Organisation of Saudi Engineers), which will provide quarterly technical reports on the project status until completion.</p>\r\n&nbsp;\r\n<p class=\"p3\"><b>Mortgage of Real Estates</b></p>\r\n<p class=\"p1\">The Registered Real Estate Mortgage Law was issued in 2012.</p>\r\n<p class=\"p1\">This new law is to create certainty over the priority of a debt secured by a registered mortgage and to do away with the practice whereby banks would cause the borrower to make an outright transfer of title to the real estate to a nominee named by the banks for the duration of the financing, with title reverting back to borrower once the financing is repaid.</p>\r\n<p class=\"p1\">An important aspect of the law is that the debt being secured by the mortgage must not relate to a conventional finance whereby interest in payable, but must be pursuant to a Sharia’ compliant financing transaction under KSA laws.</p>\r\n&nbsp;\r\n<p class=\"p3\"><b>Jointly Owned Property</b></p>\r\n<p class=\"p1\">The Law of Proprietorship and Sorting of Real Estate Units promulgated under the Council of Ministers Resolution No. 40 dated 09/02/1423 AH and endorsed by Royal Decree No. M/5 dated 11/2/1423 AH, as amended, and the Executive Regulations promulgated under Ministerial Resolution No. (11985) dated 21/2/1424 (the “Jointly Owned Property Laws”) governs the formation of homeowner’s associations and the management of jointly owned property.</p>\r\n<p class=\"p1\"><span class=\"s1\"> The Jointly Owned Property Laws lay down the foundation to ensure that the jointly owned property is managed in accordance with good industry practice, including maintenance of the common areas and management of the homeowner’s association funds and shared assets. The level of implementation of such homeowner’s association laws is variable and often developers retain a management role in such buildings. </span></p>\r\n<p class=\"p1\">As the popularity of ownership of apartments is likely to grow, the Ministry of Housing has taken a greater role in supporting and regulating homeowners associations and has recently published a “Bylaw” setting out best practices in relation to the internal operations of homeowners associations.</p>\r\n&nbsp;\r\n<p class=\"p3\"><b>Value Added Tax</b></p>\r\n<p class=\"p1\">The Kingdom of Saudi Arabia along with the United Arab Emirates (“UAE”) were the first countries in the GCC to introduce Value Added Tax (“VAT”). VAT has been implemented and is payable from 1 January 2018.</p>\r\n<p class=\"p1\">As with the UAE, supplies of commercial real estate will be standard rated at five percent (5%) per annum. Unlike the UAE, however, where the first supply is zero-rated, supplies of residential real estate will also be standard rated, except for supplies by way of lease which shall be exempt.</p>\r\n<p class=\"p1\">Sales of occupied commercial buildings may also constitute sales of a business and therefore fall outside the scope of the VAT law.</p>\r\n&nbsp;\r\n<p class=\"p3\"><b>Etmam</b></p>\r\n<p class=\"p1\">Etmam (Developers Services Centre) is a government initiative aimed at facilitating real estate developers through various stages of their development projects.</p>\r\n<p class=\"p1\"><span class=\"s1\"> Etmam has, as its permanent members, the Ministry of Housing, the Ministry of Municipal and Rural Affairs, the Ministry of Justice and others. </span></p>\r\n<p class=\"p1\"><span class=\"s1\"> In essence, Etmam acts as liaison centre by following up with the relevant authorities to avoid inordinate delays in the licencing and approval process for real estate developments, in particular, residential and commercial projects comprising more than 50,000 square metres.</span></p>\r\n<p class=\"p1\">Among other things, Etmam facilitates the developer in respect of the following:</p>\r\n\r\n<ul>\r\n 	<li class=\"p4\">Approval for subdivision of land;</li>\r\n 	<li class=\"p4\">Approval for comprehensive development schemes;</li>\r\n 	<li class=\"p4\">Issuance of building permits;</li>\r\n 	<li class=\"p4\">Issuance of building completion certificates;</li>\r\n 	<li class=\"p4\">Issuance of off-plan sales licences; and</li>\r\n 	<li class=\"p4\">Issuance of off-plan marketing licences within Saudi Arabia for off-plan projects outside Saudi Arabia.</li>\r\n</ul>\r\n<p class=\"p6\">Etmam also welcomes communications from developers and holds periodic meetings in an attempt to overcome unnecessary project obstacles and ensure continuous improvement of Etmam’s services.</p>\r\n&nbsp;\r\n<p class=\"p3\"><b>Ejar</b></p>\r\n<p class=\"p1\">The Ministry of Housing in Saudi Arabia recently launched its Ejar rental service e-network. Landlords and tenants (including expatriates) can now download an app, which allows the user to:</p>\r\n\r\n<ul>\r\n 	<li class=\"p4\">search for licensed real estate agents for renting property;</li>\r\n 	<li class=\"p4\">check the landlord’s or tenant’s identity prior to the conclusion of the tenancy agreement;</li>\r\n 	<li class=\"p4\">check the unit ownership and authority of the landlord’s representative;</li>\r\n 	<li class=\"p4\">report violations to the supervisory team at Ejar, including brokers charging excessive commissions, brokers charging commissions on renewal of tenancy agreements, brokers colluding with the aim of manipulating the rent, and landlords failing to register the tenancy agreements on the Ejar network.</li>\r\n</ul>\r\n&nbsp;\r\n<p class=\"p3\"><b>Real Estate General Authority</b></p>\r\n<p class=\"p1\">The Real Estate General Authority was established by the Council of Ministers Decision No. 239 of 25/4/1438. The purpose of the Authority is to enhance transparency, stimulate investment and provide consumer protection in the real estate industry.</p>\r\n<p class=\"p1\">The Authority has already started working on enhancing transparency by developing price indicators (selling and rental) and other indicators pertaining to construction progress.</p>\r\n<p class=\"p1\">To incentivise investments, the Authority has conducted several local and international comparisons with the aim of implementing the best practices based on the global experiences from reputable real estate regulators in Australia, the United States, Hong Kong, Singapore and the United Arab Emirates. It is understood that the Authority will also be coming up with proposed changes in the regulations in order to reduce the number of property disputes and their processing time.</p>\r\n<p class=\"p1\">Further, the Authority aims at organising various training programs and accredited courses in an endeavour to increase skills and quality among the various stakeholders in the real estate market.</p>\r\n&nbsp;\r\n<p class=\"p3\"><b>Idle/ White Land Tax Law</b></p>\r\n<p class=\"p1\">The government of Saudi Arabia has introduced a tax on undeveloped urban land, the so-called “white lands”.</p>\r\n<p class=\"p1\">The Tax Law on vacant lands is purported to achieve the following:</p>\r\n\r\n<ul>\r\n 	<li class=\"p4\">increase the availability of land for development in order to achieve a balance between supply and demand;</li>\r\n 	<li class=\"p4\">provide residential land at a reasonable cost; and</li>\r\n 	<li class=\"p4\">encourage fair competition and combat monopolistic practices.</li>\r\n</ul>\r\n<p class=\"p6\">The tax rate levied on vacant lands owned by non-government persons is at the rate of 2.5% of the value of the land, payable per annum.</p>\r\n<p class=\"p1\">Though not an unreasonably high amount in itself (when compared to other similar land taxes in other jurisdictions), when vacant land remains non-income producing, there is less incentive on the land owner to hold the undeveloped land.</p>\r\n<p class=\"p1\">This new tax is consistent with the Saudi Arabian Government’s policies for stimulating development and increasing affordable housing across the Kingdom.</p>\r\n&nbsp;\r\n<p class=\"p3\"><b>Conclusion</b></p>\r\n<p class=\"p1\">It is clear that Vision 2030 will create many opportunities in the real estate sector and will be an impetus for the issuance of additional regulations and guidelines to adopt best international practices and make the Kingdom of Saudi Arabia a leading real estate jurisdiction of choice.</p>\r\n&nbsp;\r\n\r\n<img class=\"wp-image-7513 aligncenter\" src=\"http://www.tamimi.com/wp-content/uploads/2018/06/shutterstock_679218187-1024x298.jpg\" alt=\"\" width=\"1345\" height=\"391\" />'),
(87804, 4776, 'content', 'September 2013\r\n\r\n<hr />\r\n\r\nWelsh-born Andrea grew up with childhood ambitions of becoming a doctor.  She studied sciences at school and had intended to embark upon a career in medicine, when a 6 month work experience placement at the age of 18 caused her to have a complete change of heart.  “I did work experience for a judge and absolutely loved it,” recalls Andrea.  “The work was really interesting, and from then on, I wanted to become a lawyer.”\r\n\r\nAndrea embarked on a law degree at the leading Aberystwyth University, followed by Guildford Law College and then entered into a training contract at UK law firm Morgan Cole.  It was there that Andrea gained experience in a number of practice areas before deciding to qualify into the litigation department, the hub of the firm’s healthcare practice, which focused mainly on contentious healthcare disputes and clinical negligence claims.  It was there that she was able to put her interest in medical law to use and healthcare law became the sector into which she later specialised.\r\n\r\nEver keen to combine the two subjects, Andrea later went on to complete a Master’s Degree in Medical Law.  “My dissertation focused on the legal aspects of medical practice in light of the Woolf reforms and I was able to use real-life examples, as one of my own cases was before Lord Woolf in the Court of Appeal at that time” notes Andrea.\r\n\r\nAfter spending 7 years at Morgan Cole focusing on healthcare and clinical negligence cases, Andrea was head-hunted by international law firm Osborne Clarke to work on a high-profile case acting for a UK children’s hospital where the procedures for conducting cardiac paediatric surgery had come under intense regulatory scrutiny (and public interest) following the deaths of a significant number of babies and young children undergoing very complex heart surgery.  “At that time, the inquiry into the activities of the cardiac paediatric surgeons at the hospital was the longest-ever running General Medical Council inquiry” Andrea explains.\r\n\r\nOn completion of the inquiry and seeking a new challenge, Andrea was offered an opportunity to expand her practice to include a broader range of regulatory work.  This then led to her developing expertise across the regulatory landscape, spending the next decade working on some of the most high profile cases in the UK, including the London Underground tunnel collapse and the first ever arbitration before the Department of Trade &amp; Industry relating to regulations governing high-voltage electricity.\r\n\r\nFollowing her husband’s move to the UAE last year, Andrea remained in the UK whilst deciding on the next step in her career.  Monthly commutes to Abu Dhabi to visit her husband soon saw her fall in love with the UAE and the Middle East, in particular “the weather and the promise of sunshine every day” laughs Andrea.\r\n\r\nWith the decision to move to Abu Dhabi made, Andrea set about enquiring into the opportunities available for a regulatory lawyer in the UAE.  At the top of her list was Al Tamimi &amp; Company, having previously been aware of them at her firm in the UK when referring work to the Middle East.  “Al Tamimi were ahead of the curve and they saw the importance of developing a Regulatory practice, not only in the UAE but across the GCC” explains Andrea.\r\n\r\nSupported by partners Essam Al Tamimi, James MacCallum and Stephen Forster, Andrea remains impressed with the Firm’s commitment to addressing both the current needs of its clients and anticipating their future needs.   “This is a highly regulated country but with huge scope for regulatory change as the economy grows and moves away from traditional revenue streams.  I remember being very excited at the prospect of the challenge ahead and inspired by Essam and James’ enthusiasm at building a Regulatory practice at the Firm” recalls Andrea.\r\n\r\nThree months in at Al Tamimi and Andrea is pleased with how well the new practice area is being received.  “We have already helped so many clients and it is a great way for me to meet and interact with lawyers from across the firm as regulation interacts across so many sectors,” says Andrea.  “For example, foreign investors and healthcare companies are looking at the UAE as a home for healthcare businesses, pharmaceutical production and medical research.  I also anticipate that there will be significant developments in the way the UAE manages its energy and waste needs. This will inevitably lead to regulation governing more sustainable ways of managing these needs.  With this in mind, we are looking forward to the Abu Dhabi Sustainability Week in January 2014 and raising the profile of the regulatory services that Al Tamimi is able to offer.”\r\n\r\nA true regulatory lawyer at heart, Andrea finds her natural interest in all things ‘regulatory’ sometimes spills over into her personal life.  “I love sailing” she explains, but not content with just being out on the water, her affinity with rules and regulations has also led her to become the Director for Safety at her local yacht club and a qualified race officer.\r\n\r\nWith the sailing season in the UAE set to start this month and a number of projects in the pipeline on the regulatory front, Andrea is looking forward to a busy few months ahead both in and out of the office.'),
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(87814, 4776, '_yoast_wpseo_metadesc', 'Andrea Tithecott joined Al Tamimi’s Abu Dhabi office in June 2013 with the aim of building the Firm’s Regulatory practice. As the UAE enters a new phase of growth and development, Andrea brings with her a wealth of experience and expertise in tackling the increasing regulatory issues it will face.'),
(87815, 4777, 'content', 'September 2013\r\n\r\n<hr />\r\n\r\nThis is a welcome development by Tunisia, which had previously withdrawn from the Madrid Agreement in 1988.\r\n\r\nAccordingly, Tunisia will become the 91st state to join the Madrid system, which provides trademark protection for its member states across multiple jurisdictions.\r\n\r\nThe Madrid Protocol (1989) will enter into force, with respect to the Republic of Tunisia, on October 16, 2013.\r\n\r\n<strong>About the Madrid Protocol</strong>\r\n<ul>\r\n 	<li>The Madrid Protocol is an international treaty, administered by the International Bureau of the World Intellectual Property Organization (WIPO), which has the aim of facilitating the procurement and maintenance of trademark registrations.</li>\r\n 	<li>Adopted in 1989, the system provides an efficient method of achieving expanded international protection for a trademark that has already been applied for or registered in the applicant’s home country (the country of origin).</li>\r\n 	<li>In a nutshell, the Madrid Protocol (1989) is a vehicle to obtain and maintain registration of trademarks in multiple jurisdictions through a single trademark office.</li>\r\n</ul>'),
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(87819, 4777, 'content_description', 'The Republic of Tunisia on July 16, 2013 acceded to the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, adopted at Madrid on June 27, 1989 (‘Madrid Protocol (1989)’), as amended on October 3, 2006, and on November 12, 2007.  '),
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(87821, 4777, 'pageSummary', 'The Republic of Tunisia on July 16, 2013 acceded to the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, adopted at Madrid on June 27, 1989 (‘Madrid Protocol (1989)’), as amended on October 3, 2006, and on November 12, 2007.'),
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(87833, 4777, '_yoast_wpseo_metadesc', 'The Republic of Tunisia on July 16, 2013 acceded to the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, adopted at Madrid on June 27, 1989 (‘Madrid Protocol (1989)’), as amended on October 3, 2006, and on November 12, 2007.'),
(87834, 4778, 'content', 'September 2013\r\n\r\n<hr />\r\n\r\n<strong>What</strong>\r\n\r\nTrade Mark Cancellation Action\r\n\r\n<strong>Who</strong>\r\n\r\nThe Complainant, Caterpillar, is a MNC with a stellar reputation built in heavy equipment and construction.\r\n\r\nThe Respondent is the registrant of Trade Mark Registration No. 85220 in Class 3 for Cat Wax in relation to “shoe cream, shoe accessories and shoe wax” (“the Registration”).\r\n\r\n<strong>Why</strong>\r\n\r\nCAT is the Complainant’s house mark, which it has cultivated over decades to become a household name in heavy equipment and construction machinery. The Complainant enjoys substantial goodwill and reputation in its CAT mark.\r\n\r\nThe Registration is unauthorised and detrimental to the Complainant as its registration is likely to create confusion amongst consumers that the registration is authorised by or belongs to the Complainant or is somehow related to the Complainant. Such registration is damaging to the Complainant’s goodwill and reputation and results in brand dilution of its CAT mark.\r\n\r\n<strong>Where</strong>\r\n\r\nTrade Mark Registry of the Ministry of Industry &amp; Trade in Jordan (“the Ministry”)\r\n\r\n<strong>Facts of the Case</strong>\r\n\r\nThe Respondent had registered the disputed trade mark Registration in 2006.\r\n\r\nThe Complainant has trade mark registrations for Caterpillar &amp; CAT in a number of countries including Jordan and has been using both trade marks for decades.\r\n\r\nThe Complainant argued, inter alia, that the disputed Registration was confusingly similar to marks in which the Complainant has rights, and the Respondent has no rights or legitimate interests in the registration of the disputed Registration.\r\n\r\n<strong>Ministry’s Findings</strong>\r\n<ol>\r\n 	<li>Importantly, the Ministry found that the Complainant’s CAT and CATERPILLAR trade marks satisfied the threshold for well known marks in Jordan. In reaching its finding, the Ministry referred to the extensive evidence filed by the Complainant.  The Complainant had adduced voluminous evidence through affidavits to substantiate its claim of goodwill and reputation in its well known CAT and CATERPILLAR trade marks. Evidence of trade mark registrations in multiple classes in Jordan and abroad as well as reams of evidence demonstrating the vast amounts of advertising and promotion of its CAT and CATERPILLAR trade marks was filed in the course of the proceedings to highlight the vault of goodwill and reputation, which the Complainant had painstakingly cultivated over decades of use.</li>\r\n 	<li>The Ministry compared the Registration to the Complainant’s well known trade marks and found that the most distinctive element of the Registration i.e. CAT was identical to the Complainant’s well known CAT trade mark. The Ministry agreed with the Complainant that the disputed Registration had incorporated its CAT trade mark in its entirety and that the addition of the word, “wax”, had done nothing to remove the confusion likely to be caused by the Respondent’s use of the Complainant’s CAT mark in the disputed Registration. Specifically, the Ministry found the word, “wax”, to be a common word.</li>\r\n</ol>\r\nAccordingly, the Ministry found that the disputed Registration was confusingly similar to the Complainant’s CAT mark.\r\n\r\nIn conclusion, the Ministry was satisfied that the Complainant had succeeded in proving its case and ordered that the disputed Registration be struck out from the register of trade marks in its decision dated 3 July 2013.\r\n\r\n<strong>Learnings</strong>\r\n\r\nCaterpillar was able to leverage on its well known CAT trade mark to strike out the registration of  Cat Wax Caterpillar had argued successfully that Caterpillar was more than yellow iron and is highly diversified with broad ranging businesses.\r\n\r\nThis important case demonstrates Caterpillar’s far reaching fame.\r\n\r\nIt is important to build brand equity in your trade mark as it will pay dividends in the years to come in arresting unauthorised use of your mark in similar trade marks, which seek to capitalize on the goodwill and reputation subsisting in your mark.\r\n\r\nBrand owners ought to be vigilant in monitoring any unauthorised usage of their trade marks and to act swiftly and decisively in rooting out the problem by engaging trade mark counsel to keep watches of offending trade marks. The fact that Caterpillar had been vigilant in enforcing its rights against offenders was important in shoring up its arguments that any attempt to free ride on its substantial goodwill and reputation was damaging to its brand integrity and likely to cause brand dilution.\r\n\r\nThis significant case represents yet another decisive victory for the ATCO IP Dispute Resolution practice, part of our award winning IP practice which continues to counsel clients in ensuring that their valuable goodwill and reputation is well protected.'),
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(87849, 4779, 'content', 'September 2013\r\n\r\n<hr />\r\n\r\nBy way of background, Ms Al Herz and Mr Lutfi were both employed and subsequently dismissed by the DIFC Authority (“DIFCA”).  A key factor which impacted on the employees’ relationships with the DIFCA and appeared to influence its decision to dismiss the individuals was that Ms Al Herz and Mr Lutfi married on 27 July 2011.\r\n\r\nIn particular, given their respective senior positions in the DIFCA, it was determined that a potential conflict of interest had arisen in the workplace pursuant to the marriage and that certain internal policies had been breached.  Both individuals pursued claims again the DIFCA arising out of the termination of their employment and although the claims were heard at separate hearings, both cases were heard before Deputy Chief Justice Sir Anthony Colman.\r\n\r\n<strong>Hana Al Herz and DIFCA</strong>\r\n\r\nMs Al Herz was dismissed on 31 January 2012 because the DIFC Authority had determined that her conduct “had not been in line with the DIFCA Code of Values and Ethics and the DIFCA Employee Policies and Procedures”.   Consequently, Ms Al Herz was dismissed in accordance with the notice provisions contained in her contract of employment with the DIFCA.\r\n\r\nAs there is no statutory protection against unfair dismissal in the DIFC Employment Law No.4 of 2005 (as amended) (the “Law”), Ms Al Herz’s primary claim was that notwithstanding the absence of a concept of unfair dismissal within the Law, her dismissal should be deemed unfair on the basis that DIFCA had acted in breach of the following implied terms:\r\n<ul>\r\n 	<li>good faith;</li>\r\n 	<li>reasonableness; and</li>\r\n 	<li>a requirement that DIFCA does not conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the parties.</li>\r\n</ul>\r\nIn rejecting her claim, Justice Colman set out the following key points:\r\n<ol>\r\n 	<li>There is no concept of unfair dismissal or constructive dismissal in the DIFC;</li>\r\n 	<li>Employers are entitled to dismiss employees in accordance with the express notice provisions set out in the contract of employment.  It is not possible or appropriate to imply terms into employment contracts, which fetter the right of an employer to terminate the employment contract in accordance with the express contractual notice provisions; and</li>\r\n 	<li>Only where an employer purports to dismiss an employee for “cause” (as defined in the Law) will the Court assess whether the dismissal was conducted in accordance with the employer’s disciplinary procedure.</li>\r\n</ol>\r\nIn dismissing the notion that the concept of unfair dismissal should effectively be introduced via terms being implied into the employment contract, Justice Colman stated that “if any such principle of unfair dismissal is to be introduced, it should be by legislation and not by judicial innovation”.\r\n\r\nAs a side note, Ms Al Herz had also brought a claim for discrimination on the grounds of marital status and a claim for end of service gratuity.  The Court also dismissed Ms Al Herz’s claim for discrimination on the basis that the decision to dismiss her was not because of or on the grounds of her marriage.  The end of service gratuity claim was dismissed on the grounds that she was not entitled to such a payment on the basis that she was a UAE national who had been enrolled by the DIFCA into the statutory UAE pension scheme.\r\n\r\n<strong>Marwan Ahmad Lutfi and DIFCA</strong>\r\n\r\nMr Lutfi was dismissed on 4 December 2011 because the DIFCA had determined that there had been a failure to comply with the DIFCA’s policies and procedures.  In particular, following his marriage to Ms Al Herz, the DIFCA determined that Mr Lutfi’s continuing employment was in breach of its policy which provided that “employment of relatives is generally not allowed” and specifically, that relatives should not work within the same department and/or have direct or indirect supervision for each other.  Mr Lutfi was paid in lieu of his three month notice period and received all other contractual entitlements on termination.\r\n\r\nMr Lutfi presented similar claims to those set out by Ms Al Herz above, which were considered by Justice Colman.  In dismissing Mr Lutfi’s claim that the dismissal was unfair, Justice Colman referred to passages from the Hana Al Herz judgment and confirmed that the DIFCA’s “express power to terminate was not fettered by any implied terms”.\r\n\r\nIn addition, Justice Colman dismissed Mr Lutfi’s claim for end of service gratuity for reasons similar to those set out in the Hana Al Herz judgment.  Justice Colman also dismissed Mr Lutfi’s claim for defamation as being untenable insofar as there was no evidence of any damage to his reputation arising from the manner in which he was dismissed.\r\n\r\nThe two judgments are unambiguous and absolute insofar as they confirm that employers may dismiss employees in accordance with the express contractual notice provisions and no additional obligations should be implied on employers in this respect.  They are certainly positive judgments for DIFC employers and further reduce the ability of employees to pursue claims arising from the termination of their employment.'),
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(87886, 4782, 'content', 'October 2013\r\n\r\n<hr />\r\n\r\n<strong>Summary</strong>\r\n\r\nThe law itself will usually state by which method the law is to come into force. Laws do not apply retrospectively unless this is stated in the law.  The exception is that if the law relates to issues of public policy, then the law will apply retrospectively regardless of whether the law itself states this.\r\n\r\nFor this purpose, ‘law’ is defined widely to  include orders issued by HH the Ruler of Dubai, whether in the form of a law, decree, or directive (written or verbal), all being equally enforceable as acts of the Ruler who has the power to pass all legislation for the Emirate of Dubai.\r\n\r\n<strong>The Facts of the Claim</strong>\r\n\r\nIn an action filed before the Dubai courts, the Claimant sought an order for specific performance and requested the courts to confirm the validity of a sale contract involving land in the Shindagha area in Dubai.  In 1989, the Claimant paid the purchase price for a plot of land to one of the heirs of the owner of the land (since deceased).  The heir had an irrevocable power of attorney on behalf of all the heirs of the deceased owner. Ownership of the land was not formally transferred but simply recorded at the Dubai Notary Public.\r\n\r\nIn 2000, the Ruler of Dubai issued an order prohibiting the disposition of Shindagha property which prevented the creation and conveyance of title and the attestation of simple contracts between the parties that had not been attested by the Land Department or were not accompanied by an attested title deed. This order was deemed mandatory and related to public policy because it involves property wealth and individual ownership in the Emirate of Dubai.  As a result, the order had to be observed and unregistered contracts of sale for land located in Shindagha were considered unenforceable.  Following the issuance of this order, compensation from the Land Department (on behalf of the Dubai government) was awarded to the heirs of the deceased owner and not the Claimant.  As a result, the Claimant commenced proceedings, claiming that the compensation was his since he had bought the land from the heir before the prohibition came into force.\r\n\r\n<strong>Summary of Judgment</strong>\r\n\r\nThe Court of Cassation held that it is well established by the courts that in accordance with Article 3 of the UAE Civil Code, provisions relating to the circulation of wealth and rules of individual ownership are part of public policy.  Article 3 of the UAE Civil Code provides:\r\n\r\n<em>“Public order shall be deemed to include matters relating to personal status such as marriage, inheritance, and lineage and matters relating to systems of government, freedom of trade, the circulation of wealth, rules of individual ownership and the other rules and foundations upon which society is based, in such a manner as not to conflict with the definitive provisions and fundamental principles of the Islamic sharia.”</em>\r\n\r\nAs the new order concerned property, it was therefore a matter of public policy and must be applied retrospectively. Consequently, it affected the Claimant and his right to own the land. The transaction between the Claimant and the heir was deemed effective but the conditions for its validity (registration) were not satisfied and as a result the courts considered the contract not properly concluded.  The Claimant argued that despite the sale contract not being registered with the Land Department, he was still entitled to the benefits of ownership (i.e. he was entitled to the compensation awarded by the Land Department, not the heir, as he was the true owner).  However, the order issued by the Ruler of Dubai specifically stated that customary contracts (unregistered contracts) should not be approved unless approved by the Land Department or a title deed is issued. The Claimant’s sale of land located in Shindigha was therefore deemed unenforceable and he was not entitled to the compensation.\r\n\r\n<strong>Comments</strong>\r\n\r\nArticle 112 of the UAE Constitution provides that “No laws may be applied except from the date they become in force and no retrospective effect shall result in such laws.  The law may, however, stipulate the contrary in matters other than criminal matters, if necessity so requires.” It is settled law under the principles of Islamic sharia and general constitutional principles that laws will not have retrospective effect and the effect thereof will not cover past event or things that happened prior to them. That would be contrary to the principles of justice and legality and the need to protect acquired rights. This is also necessary in the public interest in order that the transactions of individuals should have stability. However, there are exceptions to the general rule when issues of public policy are concerned and the Order of 2000 specifically mentioned that it would have retrospective effect. The Order issued in 2000 was intended to apply with retrospective effect to contracts that had not been perfected prior to the Order coming into force. Individuals that entered into transactions (that took place prior to that Order) that had been perfected were entitled to compensation. The Claimant, however, could file a separate action against the heirs of the deceased owner for unjust enrichment.\r\n\r\n&nbsp;'),
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(87913, 4783, 'content', 'October 2013\r\n\r\n<hr />\r\n\r\nThis provision provides that a person who is convicted of embezzling or damaging public property shall be sentenced to pay restitution plus a fine equivalent to the proceeds of their crimes. In other words, a person who is convicted of embezzling or damaging public property potentially faces a total of three penalties. The first penalty shall be the principal penalty of imprisonment. The second penalty is restitution of the proceeds of the crime which shall be payable to the victim. The third penalty is a fine equivalent to the proceeds of the crime which is payable to the Public Treasury of the Government of the UAE.\r\n\r\nIn the Dubai Cassation Court case below, the question arose: who is the “victim” who shall benefit from the court order of restitution in accordance with Article 230?\r\n\r\n<strong>Summary of facts</strong>\r\n\r\nThe Dubai Public Prosecution (the “Prosecution”) referred the accused to the Criminal Court on the basis that he was alleged to have misappropriated commissions totaling approximately AED 17 million. The accused was a sales manager for a public entity who was responsible for executing sale and lease transactions of land owned by the public entity. The Prosecution argued that the accused committed a crime by requesting kickbacks from clients in order to sell and lease lands owned by his employer. The Prosecution argued that the accused succeeded in misappropriating the commissions through depositing cheques and bank transfers to the bank account of a private company owned by his family. The Prosecution requested that the accused be punished in accordance with Articles 228 and 230 of the Penal Law.\r\n\r\nArticle 228 of the Penal Law is concerned with public officers who work with preparation, administration or execution of contracting, supply or public works in relation to any UAE public entity. When a public officer obtains for himself or for another person a commission in contradiction with his duties at the public entity, such officer shall be sentenced to temporary imprisonment. A person convicted of obtaining commissions according to Article 228 of the Penal Law has embezzled public property. In that regard, Article 228 relates to Article 230 of the Penal Law in application.\r\n\r\nThe Dubai Court of First Instance sentenced the accused to three years’ imprisonment and he was ordered to restitute the misappropriated monies and also pay the same amount as a fine. This decision was upheld on appeal to the Appeal Court.  The accused challenged the judgment on the basis that it was ambiguous as to whether restitution should be paid to the Public Treasury or be paid back to the clients of his ex employer.\r\n\r\nThe lower court considered matters and ordered the individual to pay the restitution amount to the clients of the public entity rather than to the Public Treasury.\r\n\r\nThe Prosecution filed an appeal before the Dubai Court of Cassation. The Prosecution argued that the lower court erred in the application of the law as restitution should be paid to the Public Treasury on the basis that the individual was guilty of malfeasance in public office (misuse of public office) and the real “victim” of the committed crime was the public entity (and in turn the Treasury) rather than its clients.\r\n\r\nFurthermore, the Prosecution argued that the monies should be paid to the Public Treasury to compensate it for the damages suffered by reason of the individual’s misuse of his public office.\r\n\r\n<strong>Cassation Court</strong>\r\n\r\nThe Dubai Court of Cassation determined that restitution is a mandatory punishment. The punishment intends to return misused funds to their rightful owner and restore the status quo prior to the crime taking place. To that extent, restitution shall always be paid to the victim of the crime which it deemed to be the UAE Government in this case.\r\n\r\nThe Cassation Court considered that the clients of the public entity who had paid commissions to this public official who in turn misused his office should not to be considered as victims of the crime. The Court considered that these clients had demonstrated bad faith in that the commissions were intended to enable them to own or lease lands while disregarding the interests of those who had legitimately joined waiting lists with a view to owning or leasing land. The Court went further and considered these clients as bribers who acted as an accessory to the crime.  The judgment stated “Doing so [compensating the clients] will urge others dealing with public officials to take the same devious course of action as long as whatever they pay will be returned back to them once their shameful behavior is discovered”. The Court took the view that this was certainly not the intent of the legislator and should not be an approach adopted by the courts.\r\n\r\nTherefore, the Cassation Court declared that the Appeal Court misapplied the law and ordered the payment of the amount of restitution to be paid to the Public Treasury.\r\n\r\nHowever, in cases where the victim of the crime is a person or entity other than the government, restitution shall be paid to that victim. The Court used an example of increased taxes or other sums of monies being collected by a public official.  Notwithstanding that a public official committed the crime, the Court noted that the “victim” is the person that surrenders more money that what he owes to the public official and restitution should properly be paid to that person.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nPublic officials are entrusted to act and represent the government that employs them. They have vast powers that are tailored to enable them to perform their functions and carry out important roles. Generally the laws of the UAE, including the Penal Law, strive to protect the integrity and honesty of public offices whilst seeking to enhance the trust of people towards public offices and officials.\r\n\r\nThis approach is reflected by the above decision of the Cassation Court which widely interprets the articles of the Penal Law to hand down tough sentences and effectively deter public officials from abusing their powers.\r\n\r\nThis judgment also clarifies the approach of the Court when identifying the appropriate “victim” of such crimes and ensuring that the appropriate person or entity is the beneficiary of a restitution order.\r\n\r\nFinally, although this is not addressed in the above judgment, we would like to draw to your attention that sometimes the “victim” in similar cases is an entity comprising of a mixture of public and private ownership like a Public Joint Stock Company as opposed to the above judgment where the “victim” was an entity wholly owned by the government. When a Public Joint Stock Company is a victim to a crime, the restitution order shall be issued in favor of that Public Joint Stock Company and not in favor of the Public Treasury. The aim of the legislation and the Courts is to preserve the rights of private shareholders in such companies who are deemed to be the “victim” for the purposes of the legislation.'),
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(87942, 4784, 'content', 'October 2013\r\n\r\n<hr />\r\n\r\nThis judgment supports international commercial arbitration and reiterates the UAE’s commitment to international conventions and agreements entered into by the UAE, particularly when they conflict with domestic laws that were passed before the international conventions/agreements were ratified by the UAE.\r\n\r\nIn Commercial Appeal No. 679-2010 (issued on 16.06.11), the Abu Dhabi Court of Cassation overturned and remanded the Abu Dhabi Court of Appeal decision which refused to recognize and enforce a foreign arbitral award issued pursuant to the ICC Rules on the basis that the award conflicts with a criminal verdict issued in the UAE (in which the Appellant was ordered to pay a fine).  The Abu Dhabi Court of Appeal ruled that the conflict was within the meaning of paragraph 2(e) of Article 235 of the Civil Procedure Law (Law No. 11 of 1992 as amended by Law No. 30 of 2005) which provides:\r\n\r\n<em>“2)  An enforcement order shall be applied for in the normal manner of filing proceedings to the Court of First Instance within whose jurisdiction the enforcement is required. Enforcement may not be ordered until the following has been verified: </em>\r\n\r\n<em>e) that it does not conflict with a decision or order previously issued by a court in the UAE and contains nothing in breach of public morals or order in the UAE.”</em>\r\n\r\nThe Court of Cassation, however, accepted the Appellant’s argument that the Court of Appeal failed to apply the rules of Article III of the New York Convention on the Recognition and Enforcement of Arbitral Awards 1958 and cited 235, 236 and 238 of the Civil Procedure Law. A detailed summary of the case is set out below:\r\n\r\n<strong>Background </strong>\r\n\r\nThe Appellant brought Abu Dhabi Commercial Case No. 410-2008 against the Respondent to enforce the arbitral award issued in Action No. 13534 as a domestic award in the UAE.\r\n\r\nA final arbitral award was issued in the Appellant’s favor by the ICC International Court of Arbitration in Paris. The award was issued by a court of jurisdiction and had the authority of res judicata when it was notified to the Respondent.\r\n\r\nThe Respondent argued that the arbitral award ruled contrary to a criminal verdict issued by a domestic court in AD Misdemeanors Case No. 3257-2005 in which the Appellant was ordered to pay a fine of AED 5,000 for committing contract fraud.\r\n\r\n<strong>Summary of Case</strong>\r\n\r\nThe Court of Cassation dismissed the Respondent’s argument that the arbitral award issued in the Appellant’s favor was in conflict with a local criminal verdict issued in absentia against the Appellant (on the basis of paragraph 2(e) of Article 235 of the Civil Procedure Law). The Court of Cassation held that the argument was inconsistent with the provisions of the New York Convention 1958 (the UAE is a party pursuant to Federal Decree No. 43 of 2006), particularly Article III of the Convention which mandates that a foreign award must be enforceable without unnecessary inconvenience or excessive fees, and the conditions must not be more onerous than those for domestic awards. The Court of Cassation further cited Articles 235, 236 and 238 of the Civil Procedure Law which provides that the provisions of international conventions between the UAE and foreign countries or international agreements to which the UAE is party shall apply to the enforcement of foreign judgments and arbitral awards notwithstanding the conditions of Article 235 of the Civil Procedure Law which would apply only if the UAE is not party to a bilateral convention or international agreement. Having acceded to the New York Convention, the UAE must implement it as domestic law notwithstanding any principles of conflicts of law. By becoming party to the New York Convention, the UAE has agreed to recognize foreign arbitral awards as binding and enforce them in accordance with the procedural rules applicable in the UAE and the requirements of Article V of the Convention. The New York Convention has simplified the enforcement of foreign awards and harmonized the national rules for the enforcement of foreign awards in the UAE.\r\n\r\nIn summary, the importance of this decision is that it reinforces the UAE’s commitment to comply with international conventions and agreements, especially those concerned with the enforcement of foreign arbitral awards. The other important aspect is that the decision above makes a distinction between domestic arbitration and international arbitration in the UAE. The purpose of this distinction is to clarify that the arbitration provisions of the Civil Procedure Law, particularly those relating to enforcement, apply only to domestic arbitral awards while the provisions of the New York Convention apply to foreign arbitral awards, notwithstanding any conflict they may arise in respect of previously enacted domestic legislation.\r\n\r\nIn light of these important principles, I feel that it is now time for the UAE legislature to introduce an independent arbitration law to ensure there is no ambiguity with respect to the enforcement of foreign arbitral awards. There should be no confusion as to which provisions the courts should apply when faced with a particular arbitration situation. The provisions of the New York Convention appear much easier to apply than the applicable arbitration provisions in the Civil Procedure Law. This is because the relevant provisions of the Civil Procedure Law are outdated and insufficient.  In view of the accelerated pace at which arbitration has evolved over the last two decades, there is therefore a pressing need for a new comprehensive modern law.'),
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(86942, 4732, 'content', 'June 2013\r\n\r\n<hr />\r\n\r\nNot only does this dissuade potential investors investing in a country, but it also undermines the rule of law and weakens trust in public and private institutions.\r\n\r\nIn recent years Emirati legislators have enacted several laws to fight corruption. These include laws combating money laundering, laws criminalizing fronting (which is where a local resident acts as a front to allow a foreigner to undertake activities he would not otherwise be allowed to do) and others suppressing fraud in commercial transactions. There have also been several amendments to the penal code.\r\n\r\nThe most recent effort by the UAE government to further combat corruption is a proposed new federal law to establish an anti-corruption authority named “The Federal Authority for Combating Corruption”. The law is currently in the form of a bill being scrutinized by the relevant authorities and it is hoped that it will be passed later this year. We have been able to review the bill and this article highlights some of the key features of it.\r\n\r\n<strong>The Federal Authority for Combating Corruption</strong>\r\n\r\nThe Federal Authority for Combating Corruption will be based in Abu Dhabi but will be entitled to branch out into any of the other emirates and has the full capacity and a number of powers needed to combat corruption. The bill defines corruption as comprising of various crimes including money laundering; embezzlement; bribery; breach of trust; abuse of public functions or authorities; damage to public property; and the concealment of the proceeds of any of these crimes.\r\n\r\nThe authority will be tasked with developing strategies to effectively combat corruption while taking into account the federal law and the United Nations Convention Against Corruption which was signed by the UAE on 10 August 2005. The authority will monitor the implementation of its strategies, and liaise with national, regional and international authorities and organizations to help eliminate corruption in public and private sectors. It will create a database to log acts of corruption and may exchange this information with national and international authorities. The authority will participate in international conferences relating to corruption and is expected to liaise with the media to raise awareness amongst the public regarding the serious harm caused by corruption and how it can be eradicated.\r\n\r\nThe bill explicitly orders all legal bodies to cooperate with the Federal Authority for Combating Corruption. Such legal bodies include: federal and local authorities; the public and private sector; banks and financial institutions; and other natural or juridical persons in the UAE. While forms of cooperation with the authority are numerous, they include complying with its requests; providing it with any information necessary to achieve its goals; and refraining from acts that hinder such goals. Acts that may be considered a hindrance to the performance of the authority and its goals include not only refraining from providing the authority with any data, information, accounts, records, papers or documents; but also procrastinating, stalling or delaying the supply of any of these materials. The bill provides a strict time limit of 15 days for the requested legal body to provide the authority with the required support unless a reasonable excuse is provided for the delay. In urgent matters the time limit may be reduced. In all cases overdue performance is penalized with a sentence of up to six months imprisonment; a fine between AED 30,000 and AED 200,000; or both.\r\n\r\nIt is expected that much of the work to be undertaken in implementing the strategies devised by the new authority will fall to local and federal public bodies but under the authority’s supervision and instructions. This may involve investigating allegations of corruption, gathering evidence, speaking to witnesses, and tracing and recovering the proceeds of the corrupt practice. They will also need to keep the authority informed of the actions they have taken.\r\n\r\n<strong>Whistle Blowing</strong>\r\n\r\nWhistle-blowing occurs when a person speaks up about an illegal activity or injustice to authorities, executives within an organization or directly to the media. Each year around the world many illegal activities are exposed by whistle-blowers. Although they help in bringing injustice into the light and enable perpetrators to be held accountable, whistle-blowers can also be subject to intimidation, harassment, and even threats of violence.\r\n\r\nHowever, due to the importance of whistle-blowing to combating corruption, the bill states that the Federal Authority for Combating Corruption, once established, will issue regulations to protect whistle-blowers. Such regulations shall guarantee the freedom, security and well-being of whistle-blowers and protect them from being prosecuted criminally, civilly or administratively.\r\n\r\nThe bill defines a whistle-blower as a person who reveals information - in good faith – pertaining to a crime relating to corruption (as defined above) without being a principal or accessory to the reported crime. In addition to this, a witness, expert or victim will also be considered as whistle-blowers. Whistle-blowers report actions that come to their knowledge regarding allegedly dishonest or illegal activities occurring in a government department or private company or organization. The bill creates a general presumption that a whistleblower is acting in good faith if the whistleblower reports the crime for the apparent benefit of the public interest and in the belief that there is enough information or proof to justify reporting it.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThe bill is still being deliberated by Emirati legislators and is in the process of being passed. However, given the previous approach of the legislators and their dedication to combating corruption we expect it to be passed before the end of 2013. Ever since the ratification by the UAE of the United Nations Convention Against Corruption, serious reforms have been taken to eradicate corruption in public and private sectors.\r\n\r\nCorruption has always been frowned upon in the region, and the steps discussed in this article show that the UAE is further strengthening its anti-corruption regime in order to secure the integrity and dignity of transactions and dealings before different legal bodies. The bill encourages the whole of UAE society to support the proposed Federal Authority for Combating Corruption, and by doing so it is hoped that society will become more aware of the perils and threats of corruption to private and public welfare.\r\n<div></div>'),
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(86969, 4733, 'content', 'June 2013\r\n\r\n<hr />\r\n\r\n<em>Instead it exists in electronic format on computers located on corporate and government networks which can be accessed via the internet. The advent of electronic storage of information has removed the need for people to be physically present to perform transactions; instead they can trade shares or book an airline ticket from their living room over the computer. It has also given rise to an entire generation of computer savvy criminals who have turned hacking into a highly lucrative criminal pursuit. As a result, information security has emerged as a new discipline which serves to ensure the confidentiality, integrity and availability of data, and the availability of technology that enables delivery and processing of that data.</em>\r\n\r\nThis article presents an overview of the laws impacting information security in the UAE and generally provides tips based on industry standards that may be considered when evaluating an entity’s information security regime.\r\n\r\n<strong>Information security obligations under UAE law</strong>\r\n\r\nGenerally information security breaches result in one or more parties incurring loss or damage that can range from minor to catastrophic. Although the UAE has no consolidated information security law, the following pieces of legislation generally govern information security in the UAE:\r\n\r\n<em>Cyber Crimes Law </em>\r\n\r\nFederal Law No. 5 of 2012 (“Cyber Crimes Law”) provides for a range of offences committed online including issues like hacking into IT networks to steal data, hindering access to an IT system and distributing viruses. Generally, the relevant information security related provisions of the Cyber Crimes Law prohibit the following:\r\n<ul>\r\n 	<li>Unauthorized access to an IT system resulting in access to personal data;</li>\r\n 	<li>Unauthorized access to an IT system to obtain government data;</li>\r\n 	<li>Hindering access to an IT system;</li>\r\n 	<li>Disabling an IT system by introducing spam email and virus programs; and</li>\r\n 	<li>Hacking into an IT system.</li>\r\n</ul>\r\n<em>DIFC Data Protection Law</em>\r\n\r\nThe DIFC Data Protection Law 2007 and its Regulations (together referred to as the “DIFC Data Protection Law”) regulate the processing and transfer of personal data including sensitive personal data located in the Dubai International Financial Centre (a free zone hereinafter referred to as the “DIFC”). Specifically, the DIFC Data Protection Law requires all data controllers (i.e. any person in the DIFC who alone or jointly with others determines the purposes and means of the processing of personal data) to implement appropriate technical and organizational measures to protect personal data.\r\n\r\nAdditionally, obligations to properly secure information arise in a range of other laws and regulations, including the Dubai Healthcare City (“DHCC”) Governing Regulations and the Federal Credit Information Law which require data holders to institute appropriate information security policies to protect health and credit related data.\r\n\r\n<strong>Government security standards</strong>\r\n\r\nMeanwhile, the governments of Abu Dhabi and Dubai are in the process of developing their own information security standards in an effort to maintain the security of critical government information.\r\n\r\n<strong>AD Information Security Policy</strong>\r\n\r\nThe Abu Dhabi Government Information Security Policy and related Abu Dhabi Government Information Security Standards (together referred to as the “AD Information Security Policy”) constitute the most comprehensive regulation addressing government data in the Emirate of Abu Dhabi. The AD Information Security Policy defines requirements for ensuring that critical government information is secure regardless of the medium in which the information resides.\r\n\r\nGenerally, pursuant to the AD Information Security Policy, all Abu Dhabi government entities are required to:\r\n<ul>\r\n 	<li>categorize their information assets (including information systems) based on the importance and critical nature of the relevant asset;</li>\r\n 	<li>develop an Information Security Program Plan;</li>\r\n 	<li>build the required capabilities to monitor the information systems and manage information security incidents in the entity; and</li>\r\n 	<li>regularly report to the Abu Dhabi Systems and Information Center (“ADSIC”) – responsible for assisting the government entities in implementing their respective Information Security Program Plans.</li>\r\n</ul>\r\nAll Abu Dhabi government entities must comply with the obligations set out in the AD Information Security Policy to ensure the confidentiality, integrity, and availability of government information. Additionally, Abu Dhabi government entities must ensure that suppliers engaged by them adhere to the applicable obligations of the AD Information Security Policy.\r\n\r\n<em>Dubai Information Security Policy</em>\r\n\r\nWith the passing of the Executive Council Resolution No. 13 of 2012 – Regarding the Information in the Government of Dubai (“Dubai Information Security Resolution”), the Dubai e-Government Department is now set to develop an information security policy for the government of Dubai. Pursuant to the Dubai Information Security Resolution, such policy will include:\r\n<ul>\r\n 	<li>governance of information security;</li>\r\n 	<li>incident and risk management;</li>\r\n 	<li>access control;</li>\r\n 	<li>process, system and communication management;</li>\r\n 	<li>development and management of information systems; and</li>\r\n 	<li>legislative regulation.</li>\r\n</ul>\r\nThe 2012 Dubai Information Security Resolution is Dubai’s first step towards facilitating a further exchange of information between the private sector and government entities in Dubai.\r\n\r\n<strong>Corporate security standards</strong>\r\n\r\nThere is no uniform standard that may be used as a benchmark against which the adequacy of an information security regime may be assessed. Instead various industry standards have developed which can be used as a basis for implementing ‘reasonable’ measures in the context of information security.\r\n\r\n<strong>ISO/IEC 27001</strong>\r\n\r\nISO 27001 relates to the development and maintaining of an Information Security Management System (“ISMS”) within an organization. The system constitutes an integrated set of documented policies and procedures. The fundamental approach of ISO 27001 can be expressed as follows:\r\n<ul>\r\n 	<li>Establish ISMS policy, objectives, processes and procedures relevant to managing risk and improving information security to deliver results in accordance with an organization’s overall policies and objectives.</li>\r\n 	<li>Implement and operate the ISMS policy, controls, processes and procedures.</li>\r\n 	<li>Assess and, where applicable, measure process performance against ISMS policy, objectives and practical experience and report the results to management for review.</li>\r\n 	<li>Take corrective and preventive actions, based on the results of the internal ISMS audit and management review or other relevant information, to achieve continual improvement of the ISMS.</li>\r\n</ul>\r\nThe standard does not provide any detailed operational direction as to how to actually implement these processes; that is left up to each organization to work out for itself, on the basis that there can be no “one size fits all” information security management system. However, the standard does provide overall requirements in terms of the approach to be taken when developing and managing an ISMS.\r\n\r\n<strong>PCI DSS</strong>\r\n\r\nThe Payment Card Industry Data Security Standard (“PCI DSS”) is a security standard developed and administered collectively by the leading credit card companies (including American Express, Visa and Mastercard). The PCI DSS is globally applicable, and applies to any person, business or organization that handles credit card data – from the small retailer through to the multinational organization. The PCI DSS standard contains 12 overall requirements which need to be satisfied in order to establish compliance. The PCI DSS standards are significantly more granular than the ISO 27001 standard - for example one of the 12 requirements of the PCI DSS standard is to “Install and maintain a firewall configuration to protect cardholder data”.\r\n\r\nWhile PCI DSS is confined in scope to organizations handling credit card transactions, in practice its detailed provisions provide general practical advice on a number of security issues for organizations that are considering their information security regimes (particularly the more technical aspects of those regimes).\r\n\r\nAl Tamimi &amp; Company’s Technology, Media &amp; Telecommunications team regularly advises clients with respect to information security management policies in a corporate context. For further information please contact Chris Appleby at c.appleby@tamimi.com or Sana Saleem at s.saleem@tamimi.com.'),
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(86984, 4734, 'content', 'June 2013\r\n\r\n<hr />\r\n\r\nWith the GCC region tipped as being the world’s fastest-growing market for e-commerce, it is easy to understand how many traditional “bricks and mortar” stores are establishing an online presence alongside the ever-increasing number of online outlets. However, there are some legal issues that should be considered when engaging in e-commerce in the UAE, and set out below is an overview of these issues below.\r\n\r\n<strong>ONLINE CONTRACTING</strong>\r\n\r\nThe development of new technologies has meant that commercial transactions and contracts can now be entered into via a variety of electronic means. The most common methods of contracting with a customer are by ‘click-to-accept’ means (i.e. a physical act by the customer to indicate their consent to the contract) and deeming consent by a customer’s general use of a website.\r\n\r\nIn the UAE, the Electronic Transactions and E-Commerce Law (Federal Law No 1 of 2006) generally permits the execution of contracts between two parties via electronic means, and expressly states that the consent and acceptance of contracts may be expressed via electronic communications.\r\n\r\nThe risk of contracting in this manner is that the way in which the terms and conditions are delivered to the customer permits scope for the customer to dispute that any agreement ever occurred. Steps should be taken to ensure that there is as little scope as possible for there to be any dispute as to whether or not the terms and conditions of the contract have been considered and accepted by the customer. For example, have the customer ‘click-to-accept’ the terms which relate to his/her purchase of goods as opposed to just having the terms placed in the ‘legal’ section on the website where the customer may or may not see them.\r\n\r\n<strong>PRIVACY</strong>\r\n\r\nIf a website owner is collecting and using personal data, then it is essential that the collection and in particular use of the personal data is in accordance with applicable law.\r\n\r\nAlthough there is no specific data protection legislation in the UAE (with the exception of some of the UAE’s free zones where specific legislation governs data protection in those free zones) data protection is governed and regulated by a combination of legislative and practical measures, including the UAE Penal Code.   Specifically, Article 379 prohibits the use or disclosure of ‘secret’ information without the consent of the person to whom the secret relates.\r\n\r\nIn an online setting it is essential that the basis upon which personal information is submitted by this “consent” take the form of an electronic contract between the user and the owner of the site. This electronic contract generally takes the form of a privacy policy of the website.\r\n\r\n<strong>CONTENT</strong>\r\n\r\nContent is the material that makes up a website, and includes all things such as images, text, audio-visual material, advertisements, graphics and user generated content.  Whether the content is owned by the owner of the website, or licensed to the website owner by a third party, the website owner should ensure that it has the necessary right to display the content on their website, and also regulate how users of the website use such content.  This is best achieved through the website terms and conditions.\r\n\r\nIf a website allows users to interact and upload comments, material, etc., it is necessary to consider whether or not the website terms and conditions adequately provide for this and appropriately address what users can/cannot upload. In addition, a website owner should consider what rights it is granted to the content uploaded by its users. For example, will the website owner require the right to edit, remove, copy, and/or share the content uploaded by users?\r\n\r\nFinally, alongside all of this sits the UAE regulatory regime which governs content (including digital content).  The key laws and regulations are the Publications and Publishing Law – UAE Federal Law No 15 of 1980, the Cyber Crimes Law – UAE Federal Decree No 5 of 2012 on Combating Cybercrimes and the National Media Council Resolution No. 20 of 2010 on the Criteria for Media Content.  For entities either set up in TECOM in Dubai or in 2454 in Abu Dhabi, the TECOM Codes of Guidance 2003 and the Media Zone Authority Content Code apply to these entities respectively.\r\n\r\nEntities based in the UAE, and to some extent, entities based outside of the UAE specifically targeting customers within the UAE need to ensure they comply with these laws and regulations or else risk receiving any of the penalties prescribed in these laws and regulations.  Some of the penalties are quite severe, particularly under the new Cyber Crimes Law (fines can reach up to 1m dirhams, depending on the infringement).\r\n\r\n<strong>PROMOTIONS</strong>\r\n\r\nRetailers often conduct promotional campaigns to drive consumer traffic to their stores. In the UAE, promotional campaigns offering incentives or benefits in the form of instant prizes are categorized as sales promotions. Sales promotions are regulated on an emirate-by-emirate basis by the relevant Department of Economic Development. (The relevant authority in Dubai is the Dubai Department of Economic Development, for example.)\r\n\r\nThe issue of whether on-line sales promotions are subject to this requirement raises an interesting issue, particularly for promotions operated from off-shore. Ultimately, however, for entities based outside of the UAE and targeting consumers in the UAE, compliance with the local regulatory regime cannot be discounted and can still require consideration.\r\n\r\n<strong>SOCIAL MEDIA</strong>\r\n\r\nMany entities, whether online or otherwise, are more and more frequently using social media to reach a wider audience and promote their business.  We regularly advise our clients to ensure that they have effective social media policies in place to regulate their employees’ use of social media and to ensure that there is a consistent approach with how the business is promoted. More importantly, the social media policy will (hopefully) raise awareness to the individual employees that the regulatory regime governing content also applies to content displayed on social media platforms.  Simply posting comments on behalf of an employer does not exonerate an employee of any liability under this regulatory regime.\r\n\r\n<strong>TECHNICAL</strong>\r\n\r\nE-commerce transactions generally require some form of an online payment gateway to facilitate the transaction. There are a range of such providers operating in the UAE. The website owner will generally enter into an agreement with the gateway provider, to provide certain services for the payment of a fee. For e-commerce businesses that rely on online payments, it is necessary to carefully consider the terms of agreements with gateway providers, and in particular ensure that the gateway providers provide adequate assurances that the transactions facilitated by their systems will be completed.'),
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(87003, 4735, 'content', 'June 2013\r\n\r\n<hr />\r\n\r\n<strong>Introduction</strong>\r\n\r\nUnder UAE Law, Bank Guarantees are considered a commercial activity regardless of the capacity of the person to whom the Bank Guarantee is issued or the purpose for which it is issued, hence they are governed under the CTL. But on some points reference may also be made to the Civil Transactions Law No. 5 of 1985.\r\n\r\nIn a Bank Guarantee, the obligation of the issuing bank (the “Guarantor”) is separate from that of the principal debtor (“Principal Debtor”). It is an independent obligation by the Guarantor to the creditor of the Principal Debtor (“Beneficiary”). A Bank Guarantee is independent from the underlying contract or transaction between the Principal Debtor and the Beneficiary. The Guarantor is bound by the Bank Guarantee irrespective of the position of the Beneficiary or the nature of the contracts between the Guarantor and the Principal Debtor, or between the Principal Debtor and the Beneficiary. In issuing the Bank Guarantee, the Guarantor is not acting as a representative, agent or surety of the Principal Debtor but as a principal debtor itself.  Both the Guarantor and the Principal Debtor owe an independent obligation to the Beneficiary since a Bank Guarantee gives rise to joint and several obligations. In this way a Bank Guarantee can be distinguished from other guarantees under UAE Law which create incidental obligations dependent on the enforceability of the underlying obligations of the debtor.\r\n\r\n<strong>Amount and Time Limit of Bank Guarantee</strong>\r\n\r\nA Bank Guarantee under UAE law cannot be for an undefined amount and should contain the fixed amount for which the Bank Guarantee is being provided.\r\n\r\nThere is no requirement under UAE Law to provide a time limit in the Bank Guarantee. However, if included a Bank Guarantee will expire automatically upon the expiration of such limit.  As per Article 418 of the CTL, unless it had been expressly agreed to renew the said term of the Bank Guarantee prior to its expiry and provided no request for payment has been received from Beneficiary during the validity period of the Bank Guarantee, the Guarantor shall be discharged from liability vis-à-vis the Beneficiary upon the expiry of the validity period of the Bank Guarantee.\r\n\r\nHowever, in the event there is no time limit specified in the Bank Guarantee, then the general limitation periods (time bars) provided under UAE Law will be applicable. UAE Law does not provide for a limitation period specifically for Bank Guarantees, therefore the general limitation period of ten (10) years shall be applicable for Bank Guarantees.\r\n\r\n<strong>Assignment of Bank Guarantee</strong>\r\n\r\nUnder Article 416 of the CTL it has been prescribed that the Beneficiary shall not assign its rights under a Bank Guarantee to any third party without the consent of the Guarantor. Therefore all assignments by the Beneficiary shall be with the prior consent of the Guarantor which should be in writing. A right to assignment can however be provided to the Beneficiary at the time of signing of the Bank Guarantee by making the right a part of the Bank Guarantee and the Guarantor agreeing to it at the outset.\r\n\r\nOnce the Beneficiary has assigned its rights under the Guarantee the assignee steps into the shoes of the Beneficiary and all rights of the Beneficiary vest in the assignee. The Guarantor shall be liable only to the assignee, and shall be duly discharged from its obligations under the Bank Guarantee once it has made the payment under the Bank Guarantee to the assignee upon invocation by the assignee. The Beneficiary will have no right to make any further claims on the Guarantor under such assigned Bank Guarantee.\r\n\r\n<strong>Invocation of Bank Guarantee</strong>\r\n\r\nEven though the issuance of a Bank Guarantee results in joint and several obligations of the Guarantor and the Principal Debtor, the Guarantor is only liable to pay to the Beneficiary upon an invocation of the Bank Guarantee by the Beneficiary and not upon a default or act or omission by the Principal Debtor. Principally, a Bank Guarantee should be unconditional, however if it is subject to conditions or submission of any documents by the Beneficiary and such conditions are provided within the text of the Bank Guarantee. The Beneficiary shall not be able to invoke the Bank Guarantee unless such conditions are met or the required documents are submitted. It is the responsibility of the Guarantor to prove that the Bank Guarantee is subject to such conditions.\r\n\r\nUpon the successful invocation of the Bank Guarantee, the Guarantor is required to make all payments due under the Bank Guarantee and can not decline to make such payment except if it is pursuant to a court order.\r\n\r\nThere has been no time limit prescribed under the laws of UAE for the Guarantor to make payment post invocation of the Bank Guarantee. This is governed by the terms of the Bank Guarantee and the Guarantor will have to comply with the time limit provided in the Bank Guarantee for making payment. Therefore it is between the Guarantor, Beneficiary and the Principal Debtor to decide at the time of signing of the Bank Guarantee, the time limit to be provided to the Guarantor for making payments under the Bank Guarantee upon its invocation.\r\n\r\nIn expectional cases, the court may levy a seizure on the Bank Guarantee amount with the Guarantor. Article 417 of the CTL lays down that an interim injunction over the Bank Guarantee amount is only possible when the Principal Debtor requests for an injunction on serious and exceptional grounds, in the opinion of the courts.  The Dubai Commercial Court of Cassation held in Appeal No. 247/2007 that a court will not stop the bank from paying the money under the Bank Guarantee to the Beneficiary unless there are exceptional and compelling reasons to do so, the claim is fully ascertained and provided that there are no previous judgments in favour of the Principal Debtor against the Beneficiary based on the same documentation.\r\n\r\nIn the event the Guarantor fails to make payments under the Bank Guarantee in absence of a court order, it shall amount to a breach of the Bank Guarantee, permitting the Beneficiary to file proceedings against the Guarantor claiming the value of the Bank Guarantee and any other damages arising from such a breach. Since this is an independent obligation of the Guarantor, the Beneficiary is not required to file a claim against the Principal Debtor prior to filing a case against the Guarantor for breach of a Bank Guarantee.'),
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(87018, 4736, 'content', 'June 2013\r\n\r\n<hr />\r\n\r\n<strong>Introduction</strong>\r\n\r\nOf pressing concern to all contractors is the extent and duration of their liability in respect of the works they agree to perform. Parties to a construction contract will routinely agree to allow for the payment of liquidated damages (‘LDs’) by the Contractor in the event that he breaches certain of his contractual obligations thereunder. The Contractor derives some comfort from being able to estimate his potential exposure to the Employer in such circumstances (and to price the risk accordingly); for his part, the Employer benefits from having a mechanism to quickly recover pre-agreed amounts to compensate for losses flowing from such breach, without having to prove his actual damage in the context of costly and time-consuming formal legal proceedings. While liquidated damages are generally enforceable as a matter of Qatari law, this article will examine the scope for their imposition to be refuted in certain circumstances.\r\n\r\nFurthermore, where the Employer is a state entity whose contracting activities come within the scope of Law No. 26 of 2005 (‘the Tender Law’) – as is almost invariably the case in relation to the most high-profile and valuable infrastructure projects currently being let in Qatar – we will also see that pre-agreement as to compensation in the form of an LDs clause might not be sufficient to limit a contractor’s exposure to the Employer in respect of delay.\r\n\r\n<strong>The Mechanism in Practice</strong>\r\n\r\nWhile liquidated damages clauses can be used to regulate various contractual breaches – such as the failure of a power station, constructed under a Design and Build, to meet specified target outputs for a particular period; or where agreed noise tolerances are exceeded in transport infrastructure contracts – they are most commonly used in the context of delayed completion of the whole works or, in a multi-phase project, to compensate for a contractor’s failure to achieve sectional completion milestones. Indeed, in the 1999 version of the FIDIC Red Book, the term “liquidated damages” was replaced with the more specific “delay damages”.\r\n\r\nDelay damages are commonly calculated on the basis of a specific amount for each day that the Employer is deprived of the use of the works for their intended purpose - usually the period between the contractual completion date(s), (adjusted to take account of any Extension of Time granted), and actual handover. In practice this amount might equate to the daily cost of financing the contract price, together with an element of loss of profit. All of the FIDIC Books allow for an upper limit to be placed on the Contractor’s liability to compensate for delay – in practice, usually in the range of 5-15% of the value of the contract.\r\n\r\nWhile many common law jurisdictions require that liquidated damages represent a genuine and reasonable pre-estimate of the Employer’s probable loss in the event of delay – or risk being construed as penalties and rendered unenforceable on that basis – Qatari law simply empowers the court (or tribunal) of competent jurisdiction to reduce the compensation payable to a level more reflective of the Employer’s actual loss in such circumstances.\r\n\r\n<strong>The Qatari Law Context</strong>\r\n\r\n<strong>1. General Principles under the Civil Code (Law No. 22 of 2004)</strong>\r\n\r\nThe general principle enunciated at Article 171 of the Civil Code is that of pacta sunt servanda, often referred to as ‘freedom of contract’. As such, contracting parties can agree to structure their relationship on any terms which do not contravene the law, and will be bound accordingly. More specifically, pre-agreement as to the amount of compensation due for specified instances of breach – the purpose of a liquidated damages clause - is expressly permitted by Article 265 of the Civil Code: “if the subject matter of the obligation is not a sum of money, the contracting parties may agree in advance to the value of the compensation, whether in the contract or in a later agreement.”\r\n\r\n<strong>2. Challenging the Imposition of Liquidated Damages</strong>\r\n\r\n(i) The Employer’s Actual Loss is Non-Existent, or is Greatly Outweighed by the LDs\r\n\r\nLiquidated Damages clauses, by their very nature, obviate the need for a creditor to prove his damage; instead, a debtor who breaches his obligations will be liable, upon default, to pay the prescribed amount of compensation. However, unlike many other jurisdictions, Qatari law provides for a contractor to wholly resist the imposition of delay damages where he can establish that the Employer suffered no damage whatsoever as a result of the delay; the law also grants the local courts (and by extension, a tribunal applying Qatari law) discretion to reduce the amount payable if it finds the agreed rate to be vastly disproportionate to the Employer’s actual loss in the circumstances. The operative provision of the Civil Code in this context, Article 266, provides as follows:\r\n\r\n“The agreed upon compensation shall not be due if the debtor proves that the creditor did not suffer any damage. The court may reduce the compensation from the one agreed upon if the debtor proves that the assessment was exaggerated to a high degree, or that the obligation has been partially performed. Any agreement to the contrary shall be null and void.”\r\n\r\nAs a mandatory provision of Qatari law, Article 266 will prevail over any provision of the contract which purports to render LDs payable irrespective of the actual loss to the Employer.\r\n\r\nIt is noteworthy that where the amount of the LDs is insufficient to discharge the full loss occasioned to the Employer as a result of the Contractor’s delay, there is no scope under Qatari law – absent the presence of ‘deceit or gross mistake’ - for a court or tribunal to intervene in order to increase the amount of damages payable by the Contractor in respect of such breach.\r\n\r\nThe foregoing interpretation of the provisions of Article 266 is consistent with reported case law emanating from the Qatari courts, including the decision of the Court of Cassation in Case No. 70 of 2006, and the more recent Court of Appeal Judgment in Joint Case Nos. 1612 of 2012 and 90 of 2013.\r\n\r\n<strong>(ii) The Delay is Attributable to Extraneous Causes</strong>\r\n\r\nA contractor who finds himself faced with payment of LDs, but without grounds to rely on Article 266, may look to more generally to other provisions of the Civil Code to support an argument that the delay was totally or partially caused by another party, and the Contractor’s liability for any resultant losses to the Employer should be eliminated or proportionately reduced as a result.\r\n\r\nArticle 256 of the said law stipulates that “if a debtor does not perform the obligation specifically, or is delayed in its performance, he is obliged to compensate for the damage caused to the creditor, unless it is proved that the non-performance or the delay was for an extraneous cause for which the debtor is not responsible” (emphasis added).\r\n\r\nSuch ‘extraneous cause’ can take one or more of only three forms, as follows:\r\n\r\na) Force majeure, or an ‘exceptional incident’\r\n\r\nCircumstances of force majeure render the due performance of a contractual obligation impossible and result in its termination. ‘Exceptional incidents’ are those which fulfil the five criteria set out at Article 171(2) of the Civil Code – that is, are public; exceptional in nature; could not have been anticipated or reasonably foreseen; render the contractual obligation(s) onerous (though not necessarily impossible) to perform; and cause, or threaten to cause, great loss to the party burdened by performance.\r\n\r\nb) Breach by the Employer – Concurrent Liability\r\n\r\nExamples here would include the Employer’s failure to grant site access in good time, or to take over works which were completed in accordance with the requirements of the contract.\r\n\r\nc) Mistake of a third party (such as a sub-contractor, or a party with no involvement in the contractual chain).\r\n\r\nIt is noteworthy that, unlike the prohibition on attempts to contract out of Article 266 (discussed above), parties can expressly agree assign to either one of them the risk of delay attributable to an ‘extraneous cause’.\r\n\r\n<strong>3. Increased Exposure under the Tenders Law</strong>\r\n\r\nThe provisions of Law No. 26 of 2005 are stated to apply to the contracting activities of all Ministries, governmental bodies, public institutions and authorities in Qatar, with the exception of Qatar Petroleum and, in specified circumstances, the Armed Forces and the Police. In the event of delay, Article 56 of the said law permits a Government Employer to impose upon the Contractor, without advance warning, a penalty which does not exceed 10% of the contract value, in exchange for the granting of an extension of time to complete the works. This entitlement is expressly stated to be without prejudice to the Employer’s right to recover from the Contractor any compensation otherwise payable in relation to such delay.\r\n\r\nThe aforementioned Article 56 does provide for the Contractor to be exempted, by virtue of a Decision issued by the Minister of Finance, from payment of some or all of the specified fine, if it is established that he is not responsible for causing the delay and same did not cause the Employer to suffer any damage. However, this exemption is discretionary and, as such, even where a contractor working on a government-funded project is ultimately successful in refuting the imposition of LDs by relying on one of the grounds referred to above, he might first find himself subjected to an irrecoverable penalty equivalent to 10% of the total contract price.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nWhile contractors might be comforted by the scope Qatari law offers to resist the imposition of liquidated damages in certain circumstances, those tendering for State-funded projects should be mindful of Employer’s legal entitlement to impose an additional penalty of up to 10% of the contract price in the event of delay, and should price accordingly.\r\n<div></div>'),
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(87041, 4737, 'content', 'June 2013\r\n\r\n<hr />\r\n\r\nIn the normal course of events the seller of a cargo (‘the shipper’) delivers the cargo to the sea carrier at the port of loading, and the sea carrier issues a bill of lading to the shipper. The shipper  then sends the original bill to the buyer of the cargo (‘consignee’). The consignee presents the original bill to the carrier, at the port of unloading, who in return issues a delivery order to enable the consignee to collect the cargo from the port.\r\n\r\nSometimes this process is done through a ‘forwarder’ who works as a mediator between the cargo interests (the shipper and the consignee) on one side and the sea carrier on the other. The forwarder is deemed to be the carrier in terms of its relationship with the cargo interests and it can issue what are known as ‘house bills of lading’ against receiving the cargo from the shipper. It will also often receive the original bill of lading from the sea carrier.\r\n\r\n<strong>Fraudulent bills of lading </strong>\r\n\r\nUnfortunately the complicated process involved in shipping cargo and the number of entities involved can be taken advantage of by fraudsters. One way in which they seek to do so is by creating fraudulent bills of lading. These cover theft of cargo through forged documents; theft of cargo through other fraudulent means; and the improper use of documents.\r\n\r\n<strong>1. Theft of cargo through forged documents:</strong>\r\n\r\nIn this instance, the fraudster fabricates a bill of lading in an attempt to impersonate the consignee, and so receives the cargo from the carrier. When the bill is issued in favour of the bearer (i.e. not to a specific person) the fraudster may try to obtain and fabricate the bill so as to claim the right of delivery. When the bill is ‘to order’ (i.e. in the name of a specific person and transferable) he might fabricate the bill and an endorsement from the consignee to himself. When the rightful consignee asks the carrier for the delivery of the cargo and presents the original bill, the carrier will explain that it delivered the cargo against genuine original bills, having already been duped by the counterfeit bill presented by the fraudster.\r\n\r\nThe courts in the UAE always consider that the carrier controls the form, signature and issuance of the bills of lading and so is best placed to prevent delivery of cargo against production of fraudulent bills (although the courts do acknowledge that it is common for carriers to delegate these functions to their agents). The carrier will usually therefore be liable to the consignee for the loss of the cargo.\r\n\r\nHow to avoid this kind of forgery?  Here are four possible ways:\r\n\r\ni. Up to date copy of the bills of lading:  the carrier needs something to compare potential fakes with. It is difficult for the fraudster to keep up with changes in the bill of lading, so by reissuing the bills with updates fraudsters will be caught out.\r\n\r\nii. Making sure that the bill is printed on the right paper. Colour, density, and even texture should be checked. If the paper doesn’t match up, then you are likely dealing with a fake.\r\n\r\niii. Making sure there are no obvious spelling mistakes. A lot of faked bills are not standardized documents, and are not seen by as many sets of eyes as the real bill. That means fewer people have reviewed them to notice errors and spelling mistakes can often be found.\r\n\r\niv. Watermark: This is a very helpful way to check the authenticity of the bill. If the original bill has a watermark, then the bill which is presented on delivery should also carry the watermark.\r\n\r\n<strong>2. Thefts of cargo through other fraudulent means</strong>\r\n\r\nOther fraudulent methods used by criminals can involve conspiracies between the consignee and the forwarder.\r\n\r\nFor example, a shipper enters into a sales agreement with a consignee for the sale of certain cargo. The condition of payment is documents against payment whereby the consignee’s banker should deliver the documents of the shipments, including the house bills of lading issued by the forwarder, against the payment of the price of the shipment.\r\n\r\nThe shipper has delivered the cargo to the forwarder and the latter issues the house bills of lading. In return the forwarder receives the bill of lading from the sea carrier and keeps it. The consignee has not paid the price of the cargo, so the bank has not delivered the house original bills to it.\r\n\r\nHowever, the forwarder presents the sea carrier’s bills to the sea carrier’s agent and obtains the delivery orders. The forwarder then gives these to the consignee who then presents them to receive the cargo without presenting the original house bills of lading. This results in the consignee receiving the cargo without making payment to the shipper.\r\n\r\nHow to avoid this kind of fraud? Avoid relying on two bills of lading when delivering cargo against documents. If possible, rely on the ocean bill of lading rather than the house bill issued by the forwarder.\r\n\r\n<strong>3. Improper use of documents</strong>\r\n\r\nIn some instances, the carrier and the shipper misuse the bill of lading and the victim here could be the consignee or the authorities. Examples include:\r\n\r\ni. Mis-dating: this is a manipulation of the date when the cargo was loaded onto the ship. Pre-dating a bill by more than a day constitutes fraud. Any damage to the cargo will then not be attributed to the long-time voyage, also sometimes the shippers want to fulfill the timing obligations under the letter of credit.\r\n\r\nii. Incorrect description of cargo: this may be an incorrect description of the quality, quantity, or condition of the cargo onboard. The most common “mistake” is declaring the cargo ‘clean on board’, meaning undamaged, when the cargo is in fact damaged.\r\n\r\niii. Under deck bills of lading for cargo shipped on deck: cargo claimed as “shipped under deck”, when they were actually shipped above decks. Cargo on deck is more exposed to the elements and so is less good for sensitive cargo.\r\n\r\niv. Incorrect port of loading: the bill shows the wrong port of loading for the cargo. Mostly this is used to avoid boycotts, import quotas, and other restrictions on trade between specific countries, and usually happens at waypoints along the transit route.\r\n\r\nv. Inaccuracy in the particulars of the cargo: sometimes the shipper gives false particulars of the cargo as the exact weight so as to defraud the consignee. The shipper can however be held liable for any inaccuracy in the particulars provided by him concerning the cargo and which have been written on the bill. If the weight provided is less than the actual weight, the shipper will be responsible for this even if it occurred by an accident that took place during the loading and unloading operations. Also, the carrier will not be responsible for loss or damage sustained by the cargo if the shipper has deliberately stated false particulars on the bill of lading relating to the nature or value of the cargo.\r\n\r\nHow to notice and avoid the improper use of documents?  Check the other documents of the shipment to ascertain the correct dates and information (for example, the mates receipt; survey report; and legalized certificate of origin which will state the exact port of loading).\r\n\r\nUnfortunately the presence of fraudsters during the shipping process can never be removed, but as explained above there are a number of ways to detect and avoid them, and parties involved must remain vigilant at all times.'),
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(87060, 4738, 'content', 'June 2013\r\n\r\n<hr />\r\n\r\nBefore discovering his interest in the law, Chris followed his passion for languages and studied German at university before moving to live in Germany for two years.  Fluent in German but still seeking his ideal ‘interesting and challenging’ career, Chris moved back home to New Zealand where a conversation with a family friend set him on his first step towards the legal profession.\r\n\r\n“Growing up, my mother worked at a law firm and so I got to know a number of lawyers socially through my parents” says Chris.  This particular family friend was a lawyer and someone Chris had a ‘great respect’ for, as well as admiring his integrity and the passion with which he shared his knowledge of the law.  Enthused with a new focus, Chris returned to university to study a law degree and was proudly admitted to practice in the High Court of New Zealand in 1992.\r\n\r\nA boutique litigation firm in Christchurch is where Chris began his legal career and he has not-so-fond memories of staying up all night preparing for usually hopeless criminal cases.  It was usually not difficult to see quite quickly which way the judge was thinking despite Chris’s brilliant legal arguments!  This saw a stirring of interest in the commercial, non-contentious side of law, especially what was known then as “Computer Law”.    Also, times were changing and the commercialisation of the internet and the evolution of the World Wide Web that came with it, piqued Chris’ interest in the technology side of law and intellectual property.  This saw him move to another firm in New Zealand, Philips Fox, where he was able to pursue his interest in this new and rapidly developing area of law.\r\n\r\nAfter using this big firm experience to best advantage, working under two of New Zealand’s top technology lawyers, Chris then moved across the Tasman Sea to join Australian magic circle firm Clayton Utz.  Again working under recognised TMT and IP lawyers, Chris gained the expertise that was to lead him being offered a position with Linklaters in Hong Kong – a country experiencing exponential growth in the technology sector at the time and in the full throes of the ‘dot-com bubble’.  Unfortunately the ‘Tech Wreck’ of the early 2000s saw the dotcom stock market collapse and work dried up for TMT lawyers – “the bubble” as Chris states, “had well and truly burst”.\r\n\r\nChris returned to his old firm Clayton Utz in Australia and for the next five years focused on large scale government IT/IP work advising heavy users of IT services including the Australian Department of Defence and Department of Immigration.  However, the desire to travel remained and an offer in 2007 saw Chris pack up and move to the Middle East.  He spent three years in Dubai as Partner and Head of TMT at an international law firm before moving to Qatar to join a Qatari firm.  Chris also spent time on secondment to Dell and Vodafone Qatar.\r\n\r\nChris looks back on his Qatar experience fondly and remembers it as a happy time both professionally and personally.  During this time he and his wife Julia also welcomed the arrival of their first son, Anthony.  “Having children changes your priorities in life” says Chris and so he and Julia began thinking about where in the world they would like to settle to raise their family.\r\n\r\n“The role at Al Tamimi came at a ‘perfect’ time”, Chris says with a smile.   “Professionally this was a great opportunity for me and the chance to head the TMT team at the largest firm in the region was one I couldn’t turn down.”  The move to Dubai was also one he felt was right for his young family.  “I spent three years in Dubai previously and loved the city.  Dubai is a great place for kids and has so many facilities for families.”  With their decision made, Chris, Julia and two year old Anthony moved to Dubai – to be joined a mere four weeks later by the arrival of their second son, Daniel.  “To say it was a busy time is an understatement,” laughs Chris.\r\n\r\nWith over a month in his new role now under his belt, Chris is convinced that his move to Al Tamimi was the right move.  “It really is an honour to head a team of such talented individuals and I am genuinely excited to take on the challenge of growing and leading the TMT team.”'),
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(87071, 4739, 'content', 'June 2013\r\n\r\n<hr />\r\n\r\nWith significant growth in Libya expected this year, it is anticipated that brand owners will have to revisit their trademark protection strategies for this growing North African economy sooner, rather than later.\r\n\r\nAs widely reported, the Libyan Trademarks Office recently resumed its services and is now accepting requests for trade mark searches, as well as new trademark applications after being closed for almost two years.\r\n\r\nDuring the period 2009 to 2011, a number of changes took place in respect of the protection of trade marks in Libya which are worth revisiting in light of anticipated new interest in the protection of valuable trade mark assets in this jurisdiction:\r\n\r\n<strong>Classification of Goods and Services</strong>\r\n\r\nWith respect to the classification of goods and services the eighth edition of the International Classification of Goods and Services is followed, with the exception that trademarks cannot be protected in respect of goods in class 33, alcoholic beverages in class 32 and certain Christmas related goods included in class 28.\r\n\r\nIt is also important to note that “veterinary apparatus and instruments” were added to Class 10 and as alluded to above, “decorations for Christmas trees and related products” were removed from Class 28.\r\n\r\n<strong>New TradeMark Law</strong>\r\n\r\nBack in 2010 a new trade mark law was published replacing the Law No. 40 of 1956, but the implementing regulations to this law have not been issued.  The new law included the following important developments:\r\n<ul>\r\n 	<li>broadening the definition of trade marks to include trade names, sound marks and colour marks;</li>\r\n 	<li>affording protection to trademarks that are well known in Libya, even if they are not registered in Libya; and</li>\r\n 	<li>imposing penalties of imprisonment of up to two years and fines of up to US$7,500 in respect of trade mark infringement.</li>\r\n</ul>\r\n<strong>Trademark Filing Requirements</strong>\r\n\r\nThe documents required in respect of a trademark application are (i) a Power of Attorney incorporating an Arabic translation and (ii) a certified copy of the Incorporation Certificate of the applicant – both duly legalized up to Libyan Consulate.  Importantly, a copy of a home or foreign registration certificate is no longer required.\r\n\r\nIf you require any assistance with respect to the prosecution of trade marks in Libya, please contact Mohammed Ali at m.ali@tamimi.com.'),
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(87094, 4740, 'content', 'June 2013\r\n\r\n<hr />\r\n\r\nConsequently, any international application filed on or after 3 August 2013 will automatically include the designation of Saudi Arabia.\r\n\r\nGiven that Saudi Arabia will be bound by Chapter II of the PCT, it will automatically be elected in any demand filed in respect of an international application filed on or after 3 August 2013. Furthermore, nationals and residents of Saudi Arabia will be entitled, as from 3 August 2013, to file international applications under the PCT.\r\n\r\n<strong>Patent Cooperation Treaty (“PCT”) </strong>\r\n\r\nThe World Intellectual Property Organization’s Patent Cooperation Treaty (PCT) provides the means to facilitate the filing and protection of patents internationally. In 2011 alone, more than 181,000 international patent applications were filed under the PCT.\r\n\r\nThis is the most international of patent applications one can file where a single filing can secure an effective filing date in all of its member countries. Its membership comprises a large number of countries and the list continues to grow.\r\n\r\nSaudi Arabia joins a growing list of PCT contracting states which in 2013 number 147 countries including numerous countries in the region such as:-\r\n<ul>\r\n 	<li>UAE</li>\r\n 	<li>Qatar</li>\r\n 	<li>Oman</li>\r\n 	<li>Bahrain</li>\r\n 	<li>Algeria</li>\r\n 	<li>Egypt</li>\r\n 	<li>Libya</li>\r\n 	<li>Morocco</li>\r\n 	<li>Syria</li>\r\n 	<li>Sudan</li>\r\n 	<li>Tunisia</li>\r\n</ul>\r\nThe PCT patent application filing system includes two phases –\r\n\r\n<strong>1. International Phase</strong>\r\n\r\nThe international application is filed and an International Search Authority undertakes an international search whereupon a search report containing citations of relevant prior art and a written opinion on the patentability of the invention is produced. The application is published as an International Publication and the applicant has an option whether to undertake international preliminary examination of an application.\r\n\r\n<strong>2. National Phase</strong>\r\n\r\nThe national phase application is effectively filed at the various countries in which the applicant is ultimately seeking patent protection in and it is at this stage that the application is substantively examined and a decision taken to grant a patent is made.'),
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(87113, 4741, 'content', 'June 2013\r\n\r\nIn an article published on 2 May 2013 in the Gulf News, Mr. Hamad Buamim, the Director General of Dubai Chamber of Commerce &amp; Industry was quoted as saying during the Africa Global Business Forum 2013 that:\r\n\r\n“Over the past decade, Dubai’s non-oil trade with Africa increased by 700 per cent from Dh10.6 billion in 2002 to Dh84.8 billion by 2011…”\r\n\r\nMr. Hamad Buamim was further quote in this same article as saying that “Over the next few years Dubai Chamber will target Africa to encourage more trade and investment flows…”\r\n\r\nTrade between Africa and Dubai, (and arguably the wider Middle Eastern region) appears to have increased significantly over the past number of years and as highlighted by the statement by Mr Hamad Buamin, should be expected to continue to do so.  Given the potential importance of African markets to local and regional companies, the importance of the proper protection of valuable trade marks cannot be overstated.\r\n\r\nThe African Intellectual Property Organization, widely known by its French acronym as “OAPI” was created by The Bangui Agreement of 2 March 1977 to promote:\r\n<ul>\r\n 	<li>Economic and social development;</li>\r\n 	<li>Harmonization of laws affecting inventiveness; and</li>\r\n 	<li>Cooperation among the member states.</li>\r\n</ul>\r\nOAPI provides for a centralized intellectual property registration system extending the protection of a single OAPI trade mark registration to all member state. Until recently, the member states were:\r\n\r\nBenin, Burkina Faso, Cameroon, Central African Republic, Chad, Congo, Ivory Coast, Equatorial Guinea, Gabon, Guinea, Guinea-Bissau, Mali, Mauritania, Niger, Senegal and Togo.\r\n\r\nOAPI is responsible for implementing and applying common administrative procedures, contributing towards the promotion of literary and artistic expression and protecting intellectual property rights, encouraging copyright bodies in member states and centralizing and coordinating information of all kinds relating to the protection of patents, trade marks, literary and artistic properties.\r\n\r\nOAPI operates under a common system of protection of intellectual property, which is characterized by uniform legislation applicable in each member state and by centralizing procedures at the Organization. The Bangui Agreement enables an intellectual property owner to have his/her intellectual property rights protected in all member states through a single application before the OAPI administrative body, which is considered as a national filing for each member state.  The Bangui Agreement now governs:\r\n<ul>\r\n 	<li>Patents</li>\r\n 	<li>Utility Models</li>\r\n 	<li>Trade Marks and Service Marks</li>\r\n 	<li>Industrial Designs</li>\r\n 	<li>Trade Names</li>\r\n 	<li>Geographical Indications</li>\r\n 	<li>Layout Designs of Integrated Circuits</li>\r\n 	<li>New Plant Varieties</li>\r\n 	<li>Literary and Artistic Works</li>\r\n</ul>\r\nAs per the Bangui Agreement an OAPI member country cannot accept new national applications to register the above rights as these should be protected in terms of the centralized system of OAPI.\r\n\r\nOn 25 May 2013 the Union of the Comoros became a full member of OAPI, meaning with respect to trade marks for example that a trade mark application filed with OAPI from this date onwards will extend protection of that trade mark to the Union of the Comoros.  The protection of trade marks that were registered with OAPI prior to 25 May 2013 will extend to the Union of the Comoros automatically upon their renewal and where such extension is desired prior to renewal, there is an extension process that can be followed to do so.\r\n\r\nFor any assistance in respect of registration of intellectual property rights in the member states of OAPI, please contact Mohammed Ali at m.ali@tamimi.com.'),
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(87146, 4744, 'content', 'July - August 2013\r\n\r\n<hr />\r\n\r\n<strong>Facts of the case</strong>\r\n\r\nThe claimants (two individuals) and the respondent (a real estate company) entered into a purchase agreement for 16 real estate units. They agreed on December 2007 as the completion date for the project. Due to the respondent’s delay in handing over the units, the claimant initiated legal action before DIAC seeking the termination of the purchase agreement and a refund of the amount paid.\r\n\r\nThe arbitration tribunal rendered an award terminating the agreement and ordering the respondent to refund the amount paid for the purchase price with interest and arbitration costs. The claimants initiated legal action against the respondent before the Dubai Court of First Instance seeking ratification of the DIAC arbitral award.\r\n\r\nThe respondent filed a counterclaim before the Dubai Court of First Instance seeking to set aside the arbitral award on the grounds that the person who signed the arbitration deed (terms of reference) and who attended the arbitration proceedings on behalf of the respondent was not legally authorized.\r\n\r\n<strong>Procedural History</strong>\r\n\r\nThe Dubai Court of First Instance ratified the arbitral award and dismissed the counterclaim. The respondent appealed to the Dubai Court of Appeal which upheld the lower court’s decision. The respondent appealed to the Dubai Court of Cassation.\r\n\r\n<strong>Court of Cassation</strong>\r\n\r\nThe respondent argued that the Court of Appeal erred in the application of the law and breached the principle of equality of arms by disregarding the respondent’s plea in respect to the lack of legal capacity of the person who represented the respondent during the arbitration proceedings. The representative had not presented any documentation proving his entitlement to attend the arbitration proceedings on behalf of the respondent.\r\n\r\nThe Cassation Court rejected this and upheld the appealed judgment on the following basis:\r\n<ol>\r\n 	<li>Pursuant to Article 212 of the UAE Civil Procedures Law, the general rule is that arbitrators are not bound by the procedural rules followed by the UAE courts save for those provided in the arbitration chapter of the Civil Procedures Law (and any specific procedures agreed upon between the parties for the arbitrator to follow). The arbitrator must respect the principle of equality of arms by allowing each party to submit its pleas and memos and to ensure procedures are followed in respect of notifying the parties to arbitration of the dates of the hearing scheduled for each party to furnish its evidence.</li>\r\n 	<li>It is not essential that the parties to the arbitration attend the arbitration proceedings themselves. However it is enough that they authorize those who will attend on their behalf to submit the parties’ pleas and memos. The representative does not need to be a lawyer nor is it necessary that the power of attorney be an official document. The authorization may be explicit or it may be implicit. Whether the representative is sufficiently authorised is an issue to be determined at the discretion of the court of substance (in this case the arbitration tribunal).</li>\r\n 	<li>The grounds upon which a domestic arbitral award can be annulled are set out in article 216 of the Civil Procedures Law and may not be added to. they relate to irregularities either in the arbitration agreement or the arbitration proceedings These grounds allow for an award to be annulled if:\r\nthe award was issued by arbitrators appointed otherwise than in accordance with the law\r\nthe award was issued by some of the arbitrators without their being authorized to make an award in the absence of the others\r\nthe award was issued on the basis of an arbitration instrument that does not specify the subject matter of the dispute\r\nthe award was issued by a person not having capacity to make an arbitration agreement or an arbitrator not satisfying the requirements of the law;\r\nthere is a nullity in the award or a nullity in the proceedings having an effect on the award.</li>\r\n 	<li>An application to set aside an arbitral award can only be based on irregularities in the procedures that affected the validity of the award and not the substantive merits of the arbitration award.</li>\r\n 	<li>The First Instance judgment in its reasoning stated that the arbitrator in the award pointed out that the parties to the arbitration were summoned and representatives of both parties attended. The service of the process was therefore successful and the parties notified of the existence of the dispute between them. Even if one of the parties was absent from the arbitration proceedings this does not nullify them.</li>\r\n</ol>\r\nAccordingly, the appeal was dismissed and the award ratified.\r\n\r\n<strong>Comment</strong>\r\n\r\nThis judgment shows the Dubai Court of Cassation being supportive of arbitration by removing one of the most common technical arguments used to annul awards – that a party’s representative during the arbitration was not properly authorized.\r\n\r\nAlthough submitting a power of attorney may not be strictly necessary, it is the best proof that a representative is authorised. It therefore remains good practice in the UAE for parties to submit powers of attorney for their representatives so as to remove any possible doubt. A tribunal can also order that powers of attorney be submitted using its powers under article 7.3 of the DIAC Rules.'),
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(87174, 4744, '_yoast_wpseo_metadesc', 'In a recent judgment issued earlier this year, the Dubai Court of Cassation found that parties to an arbitration do not need to submit powers of attorney for their legal representatives. This is because the arbitrator is not bound by all the provisions of the UAE Civil Procedures Law (Federal Law No.5 of 1992), but only those found in the chapter relating to arbitration and these do not state that a power of attorney is needed.'),
(87175, 4745, 'content', 'July - August 2013\r\n\r\n<hr />\r\n\r\nTrading in securities in the UAE is subject to the provisions of many federal laws including most prominently: (a) the Federal Commercial Transactions Law (Law No. 18 of 1993), (b) the Emirates Securities and Commodities Authority and Market Law (Law No. 4 of 2000) and (c) the UAE Central Bank Law (Law No. 10 of 1980) and its amendments.\r\n\r\nIn the following judgment, the Dubai Court of Cassation classified the relationship between a Brokerage Agency and the investor as an agency created via agreement subject to the general statutory provisions governing bilateral contracts, and the provisions governing commercial agencies set out in the UAE Commercial Transactions Law.\r\n\r\n<strong>Facts of the case</strong>\r\n\r\nThe claimant (a licensed financial brokerage company) brought a claim before the Dubai Court of First Instance against the defendant, an individual who had entered into a trading agreement with the claimant.\r\n\r\nThe claimant had opened up an account on behalf of the defendant with the Dubai Financial Market (DFM). Transactions were performed by the claimant on behalf of the defendant for which the latter was receiving his profits directly.\r\n\r\nAn outstanding balance accrued in the defendant’s account. The claimant notified the defendant and several meetings were held. The defendant did not however settle his account.\r\n\r\nThe claimant requested the Court to appoint a court accredited expert in the field of financial trading to determine the amount owed to the claimant by the defendant, and further requested the court to order the defendant to pay the amount concluded by the expert in his report.\r\n\r\nThe defendant filed a counterclaim requesting the court to appoint an expert in the field of financial trading to review his account with the claimant and to (i) exclude all transactions executed in contradiction to the DFM regulations; and (ii) to determine the losses and damages resulted from such irregularities. The defendant further requested that the court order the claimant to pay the amounts determined by the expert’s report.\r\n\r\n<strong>Procedural History</strong>\r\n\r\nThe Court appointed a banking expert specialized in the field of trading securities and bonds who concluded that the loss suffered by the defendant (which amounted to AED 42 million) was due to the market conditions at the given period of time and the sharp drop in the prices of the shares and securities traded by the claimant at that period.\r\n\r\nThe expert also concluded that due to this loss, a sum of AED 14 million was owed by the defendant to the claimant.\r\n\r\nAfter the submission of the expert’s report the claimant requested the Court to adjudicate the amount concluded by the expert. The defendant however requested that the Court appoint a tripartite committee of experts specializing in the field of trading securities and bonds to reevaluate the matter and investigate the case again.\r\n\r\nThe Court of First Instance, before adjudicating the case, returned it to the previously appointed expert to investigate the defendant’s objections. The Court further ordered the expert to examine all telephonic orders and instructions issued by the defendant to the claimant.\r\n\r\nAfter submitting the expert report, the Dubai Court of First Instance rendered its judgment ordering the defendant to pay the claimant, with interest, the amount determined by the expert’s report.\r\n\r\nThe defendant appealed before the Dubai Court of Appeals which upheld the appealed judgment and dismissed the case. The claimant consequently challenged the appeal court’s judgment before the Dubai Court of Cassation.\r\n\r\n<strong>The Court of Cassation</strong>\r\n\r\nThe defendant argued that the First Instance judgment was flawed because it relied on conclusions of the expert which were based on presumptuous grounds. The expert based his conclusion on his examination of the defendant’s account statements with the claimant, but without confirming that the orders had been executed on the instructions of the defendant.\r\n\r\nThe defendant’s objections to the expert’s report were:\r\n<ol>\r\n 	<li>In his report, the expert referred to several transactions found in the defendant’s account statement which were said to have been executed following written instructions by the defendant. However copies of these instructions were not provided to the expert. The expert assumed that these transactions were performed on the instruction of the defendant and so  concluded that the defendant was liable for the losses sustained as a result.</li>\r\n 	<li>The expert stated in his report that a number of transactions were based on oral orders issued by the defendant over the telephone, and which were recorded on a CD that the court requested the expert to examine. The expert did not examine the CD, but nonetheless proceeded to rely on it as evidence that the defendant issued such orders.</li>\r\n 	<li>The expert referred to the defendant’s acknowledgment of receiving the transaction statements and the invoices from the claimant, as well as the defendant’s acknowledgment of some of the transactions, as proof for the validity of all transactions executed by the claimant.</li>\r\n</ol>\r\nThe expert in his report acknowledged that the claimant contradicted DFM regulations by failing to keep on file a copy of all written instructions by its customers.\r\n\r\nFor the above reasons the defendant contested the expert’s conclusion and argued that the appealed judgment should be overturned since it was not based on valid reasoning.\r\n\r\nThe Court of Cassation agreed with the defendant and whilst explaining its decision made a number of comments clarifying the relationship between brokers and their investors:\r\n<ol>\r\n 	<li>A financial brokerage agreement is a bilateral contract binding to its parties, and it does not require a specific form to be valid.</li>\r\n 	<li>The financial broker is an agent acting on behalf of the investor when executing transactions in relation to the purchase or sale of stocks and bonds.</li>\r\n 	<li>In order for all obligations and rights resulting from these transactions to be valid and binding on the principle (i.e. the investor), the broker must act in good faith within the limit of his authority to bind the principal. This is based on Articles 202 and 229(2) of the UAE Federal Commercial Transactions Code. The agent is under a fiduciary duty to act in the best interest of the principal. If the agent acted otherwise, such transactions will not bind the principal.</li>\r\n 	<li>The general rule is that the opinion of an expert is one of the elements of proof in the action and the court may appoint an expert to examine and provide his opinion in technical issues. The trial court may adopt conclusions of the expert in his report if the court is satisfied by the reasoning in it.</li>\r\n 	<li>In this case, the lower court erred in its reasoning because it relied in its judgment on the conclusions of the expert’s report which were flawed for the reasons detailed by the defendant.</li>\r\n</ol>\r\nThe Dubai Cassation Court therefore overturned the judgment.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nThe Court of Cassation in this case classified the relationship between a financial brokerage agent and an investor as an agency agreement that creates a fiduciary relationship between the parties by virtue of which the agent must execute transactions within the limits of the principal’s instructions and not exceed them unless specific conditions apply. If the broker does exceed his instructions then those transactions will not be binding on the investor.'),
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(87203, 4745, '_yoast_wpseo_metadesc', 'A Trading Agreement in stocks and bonds is an agreement between a brokerage company or agency and its customer (the “investor”), pursuant to which the brokerage company acts as the investor’s broker and dealer for the purpose of buying and selling stocks and bonds.'),
(87204, 4746, 'content', 'July - August 2013\r\n\r\n<hr />\r\n\r\nThe UAE is striving to become an attractive venue for regional and international arbitration, and to establish itself as the arbitration capital of the Middle East. Since the UAE ratified the New York Convention in 2006, the UAE Courts have significantly changed their approach to the recognition and enforcement of foreign arbitral awards. This provides for a positive and encouraging perspective which – in addition to the modern infrastructure of the UAE and its strategic geographic location – will likely make Dubai the venue of choice for arbitration in the Middle East.\r\n\r\n<em><strong>Pre-Conditions to Arbitration</strong></em>\r\n\r\n<strong>1. Commercial Appeal No. 53-2011</strong>\r\n\r\nIn Commercial Appeal No. 53-2011 (judgment dated 7 December 2011), the Dubai Court of Cassation held that an arbitration agreement, as a contract, may include any clause the parties deem appropriate provided that such clause does not violate public policy or moral norms. The parties may, for example, include a clause imposing certain pre-conditions to arbitration. The burden of proof for such pre-conditions lies with the party initiating arbitration.\r\n\r\nIn this domestic case, the parties had agreed that any dispute must be referred to a consulting engineer for amicable settlement before either party could pursue arbitration. The claimant requested the court to appoint an arbitrator on behalf of the respondent to hear the dispute. However, the Court of First Instance dismissed the action on grounds of premature commencement of the action as the claimant had failed to request a consulting engineer to adjudicate the dispute prior to arbitration. The claimant appealed and the Court of Appeal upheld the lower Court’s decision.\r\n\r\nThe claimant then appealed to the Court of Cassation, arguing that the Court of Appeal erred in dismissing the action.\r\n\r\nThe Court of Cassation held that it was clear from the record that the claimant did not request the consulting engineer to adjudicate the dispute and that as a result the claimant’s action for appointment of an arbitrator was premature. The claimant’s grounds for appeal were held to be substantive in nature and as such could not be raised for the first time before the Court of Cassation, resulting in the dismissal of the appeal.\r\n\r\n<strong>2. Commercial Appeal No. 188-2012</strong>\r\n\r\nIn Commercial Appeal No. 188-2012 (dated 9 October 2012), the Dubai Court of Cassation similarly ruled that an appeal should be dismissed for failure to comply with pre-arbitration requirements after the appellant had sought to enforce a domestic arbitral award against the respondent under the DIAC rules. The Court of First Instance had confirmed the award and dismissed the respondent’s request to set aside the award.\r\n\r\nThe Court of Appeal upheld the ruling of the Court of First Instance confirming the award. However, when the Appeal Court decision was challenged the Court of Cassation overturned it on the basis that the pre-conditions to arbitration had not been satisfied and that the lower court had failed to review the respondent’s pleas.\r\n\r\nThe Court of Casssation held that the Court of Appeal should have reviewed the arbitration file and joined it to the case file to confirm that the arbitrator had commenced proceedings only after compliance with the established pre-arbitration requirements. The case was remanded to the Court of Appeal for reconsideration. After joining the arbitration file along with a translation of its contents, the Court of Appeal overturned the decision of the Court of First Instance.  It dismissed the claimant’s action to enforce the arbitral award because the claimant had failed to comply with the pre-arbitration requirements. The respondent’s request to set aside the award was upheld. The claimant appealed to the Court of Cassation but the appeal was dismissed. In explaining its ruling that the arbitration the Court of Cassation held as follows:\r\n<ol>\r\n 	<li>The general rule in contracts is that the contract is the law of the contracting parties and that parties to a contract may include any clauses in their agreement that they deem appropriate provided they do not violate public policy or moral norms.</li>\r\n 	<li>Parties agreeing to arbitrate may impose pre-conditions to be fulfilled before they can initiate arbitration. The burden of proving the fulfillment of such pre-conditions lies with the party requesting the arbitration.</li>\r\n 	<li>Whether a pre-arbitration provision has been satisfied is a question of fact in the discretion of the trial court based on evidence without review.</li>\r\n 	<li>In this case, there was no evidence that the three pre-conditions agree by the parties had been fulfilled.</li>\r\n</ol>\r\n<em><strong>Wrongful Inclusion of a Third Party</strong></em>\r\n\r\n<strong>3. Civil Appeal No. 65-2012</strong>\r\n\r\nIn Civil Appeal No. 65-2012 (dated 27 May 2012), the Dubai Court of Cassation held that the issues adjudicated upon in an arbitral award are subject to res judicata upon the award’s issuance, even though the award’s enforcement is contingent upon its confirmation. An action to set aside an award may be filed, but the doctrine of res judicata precludes the parties from re-litigating issues already decided, even if there is new legal or factual evidence. The court has absolute discretion to explain the terms of the arbitration agreement and the extent to which the arbitrators have complied with such terms. However, the courts may not address the substantive aspects of the award or the extent of its conformity with the law.\r\n\r\nIn this case, the respondent sought confirmation of the award before the Dubai Court of First Instance.  Under the award, the respondent was awarded payment by the claimant and another party of AED 1 million plus 9% interest and arbitration costs. The respondent instituted the action in order to confirm the award so that it could be enforced. The claimant countered that the action should be dismissed on the basis that the arbitral award was void because it included a party who was not a party to the arbitration agreement.\r\n\r\nThe Court of First Instance confirmed the award, and the claimant appealed. The Court of Appeal subsequently joined the other party to the appeal. The lower court’s decision was affirmed and the claimant then appealed to the Court of Cassation on the basis that the Court of Appeal had incorrectly applied the law, and contradicted articles 216 and 217 of the Civil Procedure Law (which relate to the grounds on which an award can be set aside). The claimant argued that the Court of Appeal’s retroactive exclusion of the other party from the arbitration was an invalid exercise of its supervisory authority given the prohibition on judicial review of arbitral awards on the merits.\r\n\r\nThe Court of Cassation however dismissed the claimant’s argument because the Court of First Instance, and in turn the Court of Appeal, had confirmed the award based on clear evidence that the respondent was legally entitled to relief against the claimant alone. The Court of Cassation found that the Court of Appeal’s confirmation of the award was within the scope of its authority to explain the terms of the arbitration agreement and the extent to which the arbitrators complied with such terms, and that the Court of Appeal had not invalidly interfered with or divided the award as argued by the claimant. The appeal was dismissed with costs.\r\n\r\n<em><strong>Time limits for Issuing Awards</strong></em>\r\n\r\n<strong>4. Civil Appeal No. 2-2012 </strong>\r\n\r\nIn Civil Appeal No. 2-2012 (dated 7 October 2012) the Dubai Court of Cassation ruled that where the parties agree on a specific time limit for the issuance of an award, they are not precluded from agreeing, expressly or implicitly, to extend such time limit, or from authorizing the arbitral tribunal to determine such extension. The courts may, upon request of any of the parties or the arbitrator, also extend such time limit by whatever period they deem appropriate, provided that the extension begins to run after completion of the previous period and not separately.\r\n\r\nIn this case, the arbitration agreement stated:\r\n\r\n‘The arbitrators shall issue an award no later than 6 months after the first hearing. The time limit may be extended upon approval of the relevant court and is renewable for a further period(s) of similar duration without having to obtain the consent of the parties to the dispute. Interruption or suspension will not count towards the time fixed for determination of the dispute.”\r\n\r\nThe first hearing in the arbitration was held on 8 December 2007. The arbitrators then issued their decision to suspend the arbitration proceedings pending the final decision of the Court of Cassation in Civil Appeal No. 241-2007, which was dismissed on 3 March 2008. The six month period therefore expired on 17 August 2008. The arbitrators made an application to the Court on 10 June 2008 to approve an extension of the time within which to issue the award until 20 September 2008, and the application was approved on 16 June 2008.\r\n\r\nThe appellant argued that the Arbitration Agreement had lapsed with the expiration of the period within which the award should have been issued under Article 210 of the Civil Procedure Law and Clause 2 of the Arbitration Agreement. However the Court of Appeal held that the award was timely because the extension began to run after the completion of the previous period.\r\n\r\nAdditional Observations on interest claim\r\n\r\nThe Court of Cassation further ruled that while arbitrations are limited to the issues which are submitted to arbitration, the parties may raise issues incidental to and directly connected with the subject matter of the dispute which they agreed in advance to refer to arbitration. A late penalty awarded to a creditor for delay in payment is incidental to the principal debt. Therefore, an agreement to arbitrate in respect of an outstanding financial obligation necessarily includes, in addition to disputes concerning the principal, related claims for late payment of interest. This meant that the appellant’s argument, that the arbitral award should have been set aside because it awarded 10% interest despite the fact that the Arbitration Agreement did not include a claim for interest, was dismissed. The Court of Cassation held that the Arbitration Agreement concerning the outstanding obligation necessarily included the related claim for interest.'),
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(87223, 4747, 'content', 'July - August 2013\r\n\r\n<hr />\r\n\r\nThe world has changed dramatically since that simple time.  As a result of globalisation, many transactions are now effected across a number of jurisdictions and many law firms have opened global offices in response to the internationalisation of business.\r\n\r\nIn response to globalisation’s affect on the legal industry, some regulators have enacted legislation to protect their local lawyers.   India, for example, is closed to foreign lawyers.  In my opinion, this is not good practice because the legal industry and clients both benefit from total competition.  Competition puts pressure on lawyers to maintain a high level of skills and receive ongoing training.  It was as recent as 2011 that the Dubai Civil Court of Appeals ruled that non-Emirati lawyers may represent clients in all courts in Dubai and local lawyers were no longer protected.\r\n\r\nLocal lawyers risk becoming irrelevant if they do not get up to speed with international standards and practices.  International contracts are usually drafted in English and are governed by English law.  The English language is now a fundamental skill for lawyers.  The areas of local lawyers’ expertise are getting smaller because they are only advising clients on how contracts apply in a certain country.  Local lawyers will consider if a contract is enforceable in the country and if it conflicts with any local laws.  Their input is unlikely to go further than that because they are not trained in English law and do not have the qualifications to advise on English law.\r\n\r\nIn certain sectors there are unified language, principles and contracts.  This is apparent in sectors such as banking, shipping, intellectual property, oil and gas, insurance and telecommuncations where few local clauses are incorporated into international contracts.  With respect to the oil and gas industry, lawyers from around the world work together to create standard contracts that are industry specific.  When clients enter into agreements for major projects they use the standard contracts which are beneficial because the lawyers are already familiar with the terms of the contract and minimal negotiation is required.\r\n\r\nLocal lawyers need to receive training in certain areas so they are familiar with standard contracts and the law which governs them, which tends to be English.  Legal education is modernising and local lawyers need to develop more to be valuable to their clients.  We are seeing local law firms merge with international law firms who gain the local knowledge and can consequently advise on contracts as a whole.  This can result in the local firm losing its identity and changing beyond recognition.\r\n\r\nClients seek lawyers with specialised skills and relevant experience.  They do not choose lawyers based on whether they are local or international.  Local lawyers need to focus on learning and development to achieve an international level capability or they will be bypassed.\r\n\r\nJunior lawyers in particular need to ensure they are receiving ongoing training and increasing their skill set.  Al Tamimi &amp; Company established its Centre for Professional Development which provides a framework for the coordinated development of all professional staff in the firm as well as career paths and courses for support staff.  The Centre for Development also introduced a fast track Management Development Programme aimed at lawyers with partnership potential.  It is our intention that the Centre for Development will ensure our lawyers receive ongoing training and develop the skill set required to successfully advise clients in today’s global business environment.'),
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(87242, 4748, 'content', 'July - August 2013\r\n\r\n<hr />\r\n\r\nTherefore in the absence of express agreement by the parties, legal costs are not recoverable in a DIAC arbitration. This article puts this recent judgment in context and offers guidance as to how parties might still recover their legal fees in a DIAC arbitration.\r\n\r\n<strong>Recovering Legal Costs in Arbitration Generally</strong>\r\n\r\nA party to an arbitration will usually incur three types of costs:\r\n<ol>\r\n 	<li>Administrative fees charged by any institution administering the arbitration (such as DIAC).</li>\r\n 	<li>Tribunal fees.</li>\r\n 	<li>Legal fees, being those of its legal representatives and any disbursements (such as expert fees).</li>\r\n</ol>\r\nThe legal fees will usually be the main expense incurred by a party and they can run to thousands, and sometimes millions, of dirhams. It is often said that one of the benefits of using arbitration in the UAE is that it is possible to claim these legal fees should you win, which is not the case in the local courts where only nominal amounts are ever awarded.\r\n\r\nAllowing the winner in a dispute to recover its legal fees is not a universal principle. In the USA for example, the usual practice is for each party to bear its own costs, and to share the administrative costs equally. However the rules of most international arbitral institutions explicitly allow the tribunal to order the losing party to pay the legal costs incurred by the winner (see for example the DIFC-LCIA Rules (art. 28.3); ICC Rules (art. 37.1); and UNCITRAL Rules (art.40)).\r\n\r\n<strong>The DIAC Rules</strong>\r\n\r\nThe original DIAC rules were drafted in 1994. In this version it was mandatory for the tribuna’s final award to include a finding as to the ‘costs of the arbitration and the party who will bear them or the proportions allocated among the parties’ (article 459(f)). The ‘costs of the arbitration’ were defined at article 48 to include the ‘normal expenses incurred by the parties in preparation of their pleadings’, which would allow legal fees to be claimed.\r\n\r\nThe DIAC Rules were however revised in 2007. Under the 2007 Rules, although the tribunal must still fix in the award the costs of the arbitration and their apportionment (article 37.10), the definition of the phrase ‘costs of the arbitration’ was revised as follows:\r\n\r\n‘The costs of the arbitration shall include the Centre’s administrative Fees for the claim and any counterclaim and the fees and expenses of the Tribunal fixed by the Centre in accordance with the Table of Fees and Costs in force at the time of the commencement of the arbitration, and shall include any expenses incurred by the Tribunal, as well as the fees and expenses of any experts appointed by the Tribunal.’\r\n\r\nAs can be seen, the definition no longer contains reference to the ‘normal expenses incurred by the parties in preparation of their pleadings’. This has led to confusion as to whether legal fees can be claimed under the DIAC Rules.\r\n\r\n<strong>Recent Court of Cassation Judgment</strong>\r\n\r\nEarlier this year the Dubai Court of Cassation directly considered whether legal fees could be awarded under the DIAC Rules. In Case No. 282/2012, a claim had been filed to enforce a DIAC arbitration award which included an order that the losing party pay the successful parties legal costs of AED 110,000.\r\n\r\nIn its judgment the Court of Cassation began be noting that a tribunal only has the power to order a party to pay the opposing party’s legal fees if given that power by one of the following:\r\n<ol>\r\n 	<li>The applicable procedural law; or</li>\r\n 	<li>The arbitral rules agreed by the parties; or</li>\r\n 	<li>By an explicit reference in the arbitral agreement granting the power.</li>\r\n</ol>\r\nThe arbitration law in the UAE does not grant the power, nor was there an express agreement by the parties in the arbitration clause. The power would therefore need to be found in the DIAC rules. As noted above the DIAC Rules grant the tribunal power to apportion the costs of the arbitration, but does not explicitly refer to legal fees in its definition of what the ‘costs of arbitration’ consists of. The Court held that this list was exhaustive, and that since it did not include legal fees or any other costs incurred by the party in presenting its case, the DIAC rules do not confer such a power on the tribunal. In the words of the Court: ‘Where the law is silent, fees and expenses that are not clearly and expressly referenced in the arbitration clause are not recoverable as incidental costd [of the arbitration]’. The section of the award regarding legal fees was therefore annulled, but the rest of the award was upheld.\r\n\r\n<strong>Discussion</strong>\r\n\r\nThere has already been some criticism of this judgment. The issue revolves around how the verb ‘include’ in the definition of Costs of Arbitration is to be interpreted. The rules were drafted in English and it has been argued that in English the verb ‘include’ is normally used to introduce a non-exhaustive list. On this view the Court erred in its interpretation that the definition is exhaustive. However there are three problems with this argument:\r\n<ol>\r\n 	<li>Whilst the verb ‘include’ can denote a non-exhaustive list, it can also be used to describe the individual parts of a total, such as when a box of equipment has written on it ‘this box includes…’ before listing the contents. This ambiguity is often avoided in legal documents by the use of the phrase ‘includes (but is not limited to) the following…’.</li>\r\n 	<li>The argument does not address the key issue raised by the Court that in the absence of a legal provision granting the power to the tribunal, the power can only come from the consent of the parties and this must be clear and explicit. The current 2007 DIAC Rules are at best ambiguous.</li>\r\n 	<li>It is unlikely that the drafters of the 2007 Rules either overlooked legal fees or assumed their recovery would be implied. Legal fees in arbitration are substantial and their recovery is routinely sought by parties. Such fees were covered by the 2004 rules, the wording of which could easily have been carried over. Anyone revising the rules would know that almost all other international arbitration rules, including the UNCITRAL rules, explicitly allow for the recovery of legal fees.</li>\r\n</ol>\r\n<strong>Conclusion </strong>\r\n\r\nThe confusion regarding the recovery of legal fees under DIAC rules has now been resolved – in the absence of any agreement by the parties or provision in the local arbitration law, the tribunal has no power to allow the recovery of legal fees under the DIAC rules.\r\n\r\nIf the DIAC rules are revised then no doubt the new rules will make it clear whether legal fees are recoverable. Until then there are two ways in which parties can ensure that they have a right to recover legal fees in a DIAC arbitration:\r\n<ol>\r\n 	<li>Include in the arbitration agreement the words ‘The arbitral tribunal may include in its award an allocation to any party of such costs and expenses, including lawyer’s fees, as the arbitral tribunal shall deem reasonable’.</li>\r\n 	<li>Ensure that the terms of reference prepared during the arbitral proceedings include a power to award legal costs, in the same language as (1) above.</li>\r\n</ol>\r\nFinally, if both parties claim their legal fees during the arbitration the tribunal can arguably infer from this the parties’ mutual consent to confer on the tribunal a power to award legal fees as part of the costs. It is recommended however that any doubt be removed by explicitly recording the power in the terms of reference.'),
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(87265, 4749, 'content', 'July - August 2013\r\n\r\n<hr />\r\n\r\nThe relevant law is Law No. 26 of 2007 Regulating the Relationship between Landlords and Tenants in the Emirate of Dubai, as amended by Law No. 33 of 2008 (“Landlord and Tenant Law”), which applies to landlord and tenant relationships for all residential and commercial leased lands and properties in Dubai.\r\n\r\nFurther, Decree No. 2 of 2011 Regarding Rentals in the Emirate of Dubai (“Rent Cap Law”) regulates rent increases.\r\n\r\n<strong>1. LEASE RENEWALS</strong>\r\n\r\nThe Landlord and Tenant Law permits landlords to evict tenants upon lease expiry in limited circumstances.  Specifically, Article 25 (2) provides that landlords can give tenants notice not to renew leases in the following instances:\r\n<ol>\r\n 	<li>If the landlord wishes to demolish the property for reconstruction (provided the necessary licences for such reconstruction are obtained);</li>\r\n 	<li>If the landlord wishes to renovate the property (provided such renovations cannot be completed while the tenant is in occupation and this fact has been certified by the Dubai Municipality);</li>\r\n 	<li>If the landlord wishes to  recover the property for use by him personally or by his next of kin of first degree; or</li>\r\n 	<li>If the landlord wishes to sell the property.</li>\r\n</ol>\r\nThe landlord must give the tenant at least 12 months notice not to renew stating the applicable reason, and such notice must be sent through a Notary Public or by registered mail.\r\n\r\nThe landlord’s rights not to renew are strictly limited to the grounds stated in Article 25 (2) and in the event of a dispute, the Rent Committee may require the landlord to prove the applicable reason.\r\n\r\nSome leases contain provisions that allow either party to give notice not to renew upon expiry (e.g. by giving 60 notice days prior to the lease expiry date), which is inconsistent with Article 25 (2).  In most situations, Article 25 (2) will override any such clauses in a lease but this is not always the case depending upon the specific circumstances.\r\n\r\nIt should also be noted that if a tenant remains in occupation upon expiry of a lease, and the landlord does not object, then the lease shall be renewed for a similar term or for 1 year (whichever is shorter) on the same terms and conditions.\r\n\r\n<strong>2. RENT CONTROLS</strong>\r\n\r\nIn any event where there are changes to the lease terms and conditions for the renewal period, at least 90 days notice of such change must be given to the other party before the expiry of the lease (unless otherwise agreed by the parties).  This also applies with respect to rent increases.\r\n\r\nPursuant to Article 1 of the Rental Cap Law, no increases are permitted if the rent is up to 25 % below “average similar rent”.  If the rent is more than 25% below average similar rent, there is a staggered permitted increase ranging from 5 % to 20% per annum.  “Average similar rent” is determined pursuant to Real Estate Regulatory Agency (“RERA”) rental index.\r\n\r\nRERA has established an online rental increase calculator, pursuant to which landlords and tenants can assess whether a rental increase is permitted under the Rent Cap Law.\r\n\r\nIn any event of dispute, the Rent Committee can determine the applicable rent having regard to the RERA rental index, similar market rent for properties in the same area, the relevant property’s status, the general economic circumstances of Dubai, any valid legislation regarding rental values and any other factors the Rent Committee may decide.\r\n\r\nIn summary, the Landlord and Tenant Law and Rent Cap Law are similar to other landlord and tenant laws in other emirates within the United Arab Emirates.  Its focus is clearly oriented towards residential tenancies and protecting those in a weaker bargaining position.  Its terms can, however, be unduly prescriptive for commercial tenancies.'),
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(87271, 4749, 'pageSummary', 'Uncertainty regarding the rights and obligations of landlords and tenants often arise in relation to lease renewals and rent increases. In this article we consider these issues in light of the applicable Dubai laws.'),
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(87284, 4750, 'content', 'July - August 2013\r\n\r\n<hr />\r\n\r\nIn the year of the Arab Spring alone the value of Arab and foreign real estate purchases in Jordan skyrocketed, with the total value of investments reaching 449 million dinars ($630 million), according to a study conducted by the Ministry of Finance (Lands and Survey Department) (“the Survey Department”). In terms of the market value of the purchased property, Iraqis ranked first with an aggregate investment value of over half the total value of property purchased by foreign nationals.\r\n\r\n<strong>Foreign Ownership of Land </strong>\r\n\r\nForeign ownership of Jordanian land and assets is governed by The Leasing of Immovable Assets, and Their Sale to Non-Jordanian and Judicial Persons Law No 47of 2006, (the “2006 Law”) which repealed all previous laws in this regard.\r\n\r\nAs per Article 3 of the 2006 Law, provided that the buyer’s country of residence maintains a reciprocal relationship, foreign nationals are afforded the right of ownership of property within urban borders in Jordan for residential purposes (but only after acquiring the required permission from the Minister of Finance or the General Director of the Survey Department). Nationals of Arab countries are exempt from this requirement.\r\n\r\nFurthermore the 2006 Law does not apply to foreigners who inherit the ownership of immovable assets, or who intend to employ the assets for economic activity within industrial cities (provided the plots do not exceed 50 acres). How Land is Bought and Developed by Foreign Nationals.\r\n\r\nIn order to purchase land the foreign national must either himself, or by an authorized realtor or an agent, complete an application form filled out with personal information specifying the existence of a spouse and any minor children of the buyer, in addition to a copy of the buyer’s passport and a site plan issued by the concerned municipality. The site plans must have been issued within one year of the date of application.\r\n\r\nIf the buyer is seeking permission for more than two houses and a single operating office to be erected on a plot exceeding 10 acres, the buyer will need to apply for the permission of the Minister of Finance on a recommendation of the Director General of the Survey Department. Notably, if the buyer, whether a person or a company, holds a dual nationality, he is legally mandated by virtue of Article 3 to disclose such information within his application. Failing to do so will render the contract of sale null and void. Notably, nationals of Arab countries are exempt from the reciprocal relationship requirement mentioned above.\r\n\r\n<strong>Reciprocal relationship</strong>\r\n\r\nThe existence of a reciprocal relationship is crucial in two situations. First, for foreigners seeking to file an application of ownership of land for industrial or commercial purposes (within urban borders, not exceeding 10 acres). Secondly, for Diplomats or Regional Organizations seeking to own land for either business purposes or to accommodate their affiliates and representatives.\r\n\r\nWhere temporary passport holders is seeking to own land in Jordan, the Council of Ministers retains the right to approve such ownership in accordance with regulations issued to that end, based on the review and approval of the Minister of Interior and the recommendation of the Minister of Finance.\r\n\r\nAs for Arab passport-holding citizens, if the ownership of land is sought in pursuance of an investment in agricultural, commercial or residential projects, the land may fall outside urban borders. Approval will be needed from the Minister of Finance based on the recommendation of the General Director of the Survey Department if the plot does not exceed 50 acres, or from the Council of Ministers based on the recommendation of the Minister of Finance if it does.\r\n\r\nIn addition, any company may own land within urban borders necessary for the conduct of its business upon the approval of the Minister of Finance based on the recommendation of the General Director of the Survey Department. If the plot of land exceeds 30 acres the approval of the Council of Ministers (which is based on a recommendation by the Minister of Finance) is necessary.\r\n\r\nConversely, should a company seek ownership of land outside urban borders, it requires the approval of the Minister of Finance who will grant it based upon a recommendation of the General Director of the Survey Department, and after seeking out the opinions of ‘concerned bodies’. Where the land exceeds 50 acres approval must again be from the Minister of Finance, based upon a recommendation from the Council of Ministers.\r\n\r\n<strong>Renting Land</strong>\r\n\r\nForeign nationals may rent immovable assets for business or accommodation purposes, provided that the plot of land does not exceed 10 acres and the lease is for no more than 3 years .\r\n\r\n<strong>Duration of Ownership </strong>\r\n\r\nThe most peculiar restriction imposed by the 2006 Law relates to the period within which the ownership of immovable assets by foreigners remains valid. Foreign owners of immovable assets in Jordan are allocated a period of three years from the date of the acquisition of ownership rights, to conclude the purpose for which they have acquired such rights, whether for residential or business projects. A onetime extension reflecting the same period may be granted if sought, depending on the approval of the Minister of Finance (which shall be based on the recommendation of the General Director of the Survey Department).\r\n\r\nAny breach of these requirements will result in a fine worth 5% of the land’s real worth for a period of 10 years (article 13 of the 2006 Law). If the land remains unutilized the Minister will allow for a decision to be made to sell the land in public auction.\r\n\r\n<strong>Disposing of Land</strong>\r\n\r\nThe 2006 Law also imposes stringent restrictions on the freedom of foreigners to dispose of the land which they have acquired. By virtue of Article 14 of the 2006 Law, any foreign person or company is legally required to complete the project for which the land was acquired within a period of three years if the land was for a residential project, or five years for any other project. A failure to do so shall render any contract or ownership deed voidable, unless the permission and approval of the Minister of Finance (upon the recommendation of the General Director of the Survey Department) is granted. The owner of the land shall be exempt from this limitation if it can be shown that the land is used for investment purposes, whether it be for housing, residential, or commercial investment. The Minister of Finance may add conditions on such ownership.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nHopefully the next few years will be remembered as years of positive change for the Middle East and Jordan. Whilst the rights of foreign owners of immovable assets in Jordan are relatively well provided for by virtue of the 2006 Law, Jordan would gain from easing the restrictions on the foreign ownership of land. This would help Jordan make the most of being the economic and political safe haven it has managed to become during the period of political turmoil witnessed in neighboring countries.'),
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(87318, 4752, 'content', 'July - August 2013\r\n\r\n<hr />\r\n\r\nUsers of social media must take care to ensure that their use of social media does not violate the laws of the UAE. Generally, content that is contrary to such laws may be actionable and subject to removal from the social networking sites.\r\n\r\nWe have previously written articles on the content regulatory framework in the UAE and the use of social media in the UAE, however in summary, the key laws and regulations are:\r\n<ol>\r\n 	<li>Federal Law No. 15 for 1980 concerning Publications and Publishing (“Printing and Publications Law”) – The Printing and Publications Law covers all forms of published content and sets out matters that may not be published, which include matters related to religion and politics, national security, individual rights, and public morals.</li>\r\n 	<li>Federal Law No. 5 of 2012 (“Cyber Crime Law”) – The Cyber Crime Law is a comprehensive piece of legislation on combatting cyber-crimes. Most relevantly, it criminalizes the publication of information/photographs online for the purpose of violating the privacy of individuals.</li>\r\n 	<li>The Dubai Technology and Media Free Zone (TECOM) Codes of Guidance 2003 (“TECOM Codes”) – The TECOM Codes apply to broadcasters and publishers operating in the Dubai Technology and Media Free Zone and sets outs standards for published content, which include matters related to public morals, religion, violence and illicit substances.</li>\r\n 	<li>Abu Dhabi Media Zone Authority (twofour54) Content Code (“twofour54 Code”) – The twofour54 Code applies to broadcasters and publishers licensed in Abu Dhabi’s media free zone. The twofour54 Code sets out rules for published content, which include matters related to religion, privacy and advertising.</li>\r\n</ol>\r\nIn this article, we highlight some issues that users of social media may encounter at any given time and mention ways to get the content removed from the social networking platform. It is important to bear in mind, however, that this may not always be possible and will usually be determined by the terms and conditions of the social media platform.\r\n<ul>\r\n 	<li>Privacy - The use of social media by individuals and companies raises privacy concerns. Individuals often post photographs of themselves and their family and friends on Facebook and Instagram to share their lives. It is important for individuals who use this medium to take care that no private and inappropriate content is posted on these networking sites that would then give rise to an aggrieved person seeking to have the content removed. Companies often use Facebook and Twitter to stay connected with clients and customers. There have been instances where an employee responsible for their employer’s profile on these networking sites has accidently posted confidential content or posted comments which offend others. Companies who use this medium should monitor the content put online on their behalf, and issue guidelines so as to ensure that such incidents do not occur. For an aggrieved person trying to remove the content, they need to refer to the terms and conditions of the social media platform to see how the content can be removed.</li>\r\n 	<li>Defamation - Care must also be taken to ensure that no defamatory content is posted onto these sites because this could lead to civil or criminal liability. Such content could include posting secret information about others without their consent (even if such information is true), or posting photographs without the consent of the subject of the photograph.</li>\r\n 	<li>Intellectual Property - Content posted on social networking sites should not infringe the intellectual property rights of a third party. For example, when posting content on Facebook (links to YouTube videos, for example) care must be taken to ensure that the user has obtained the necessary rights to use, copy and share the content. Facebook’s terms of use stipulate that users may not post content that infringes on intellectual property rights. Pursuant to Facebook’s terms of use, copyright holders are entitled to report users in violation of these rights to Facebook and Facebook is obliged to promptly remove any offending content and terminate the user account if the user is a repeat offender.</li>\r\n 	<li>Unlawful Behavior - Unlawful behavior can include financial fraud, harassment, sedition and religious condemnation. If a user is found to be engaging in unlawful behavior, social networking sites (Facebook and Twitter, for example) can involve law enforcement officials in the matter and shut down the user’s account. In recent months, a number of Facebook and Twitter accounts in the UAE have been closed down by authorities subsequent to complaints of unlawful behavior.</li>\r\n</ul>\r\nDepending on the facts of each matter, there may be actions that can be taken at law and with the public prosecutor in relation to each of the above. 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(87341, 4753, 'content', 'July - August 2013\r\n\r\n<hr />\r\n\r\nThe rules comprehensively cover all of the aspects of the functioning of a corporate entity, including but not limited to, composition of the board, selection criteria of constituent members, risk management and corporate social responsibility.  In summary, the rules promote to improve talent, transparency, reporting accuracy, performance, risk governance, and instill accountability and fair dealing with all stakeholders of an organization\r\n\r\nThe following is a review of the corporate governance rules (the “Rules”) and the principles of which they comprise.\r\n\r\n<strong>First rule: Strengthen board competition </strong>\r\n\r\nThe majority of the board of directors shall consist of non executive members, as well as independent members, who enjoy complete independence.This permits them to make decisions without being exposed to undue pressures. The board of directors shall regulate its businesses and allocate sufficient time to undertake the tasks and responsibilities entrusted to it.\r\n\r\n<strong>Second rule: Establish clear roles and responsibilities </strong>\r\n\r\nThe company shall outline in detail the tasks, responsibilities and duties of each member of the board of directors and executive management, as well as the powers and authorities delegated to the executive management. The board of directors shall form specialized independent committees, in order to assist it to perform the tasks entrusted to it.\r\n\r\n<strong>Third rule: Recruiting highly qualified candidates for the board of directors and senior management </strong>\r\n\r\nThe board of directors shall form a committee  whose main role is to prepare recommendations for the board of directors in connection with all the required nominations. Furthermore, the board of directors shall form a remuneration committee, whose main role shall be to define the policies and regulations regarding compensation and remuneration.\r\n\r\n<strong>Fourth rule: Safeguarding integrity in financial reporting</strong>\r\n\r\nWritten undertakings shall be submitted by the board of directors and executive management for the soundness and impartiality of the financial reports prepared about the company. The board of directors shall form an internal audit committee, whose main role shall be to ensure the soundness and impartiality of financial reports and internal audit systems. The external auditor shall be independent and impartial be professionally comptenet, experienced and have a good reputation.\r\n\r\n<strong>Fifth rule: Robust systems of risk management and internal control</strong>\r\n\r\nThe company shall have an independent department for risk management, to determine, measure and follow up the risks to which the company is exposed. The board of directors shall form a risk management committee, whose main role is to develop risk management policies and regulations, in line with the company’s risk tolerance.  The company shall ensure the sufficiency of its internal control and audit systems.\r\n\r\nThe board of directors shall form a committee on governance applications, whose main role is to develop the governance framework. The same committee shall guide and supervise its implementation, along with any changes when required.\r\n\r\n<strong>Sixth rule: Promote ethical standards and responsible conduct </strong>\r\n\r\nThe company shall develop a code which comprises the standards and criteria of professional behavior and ethical values. The board of directors shall outline the policies and mechanisms to limit events of conflict of interests, and the handling of them when they arise.\r\n\r\n<strong>Seventh rule: Ensure timely and high quality disclosure </strong>\r\n\r\nThe board of directors shall develop quality disclosure and transparency policies and regulations.\r\n\r\nThe board of directors shall regulate the disclosures of the board of directors and executive management members. The company shall disclose in a precise and detailed manner the remuneration offered to members of the board of directors and executive management, whether in cash benefits or advantages. The company shall develop the infrastructure for information technology and rely on it widely for disclosure processes.\r\n\r\n<strong>Eighth rule: Respect the rights of shareholders</strong>\r\n\r\nThe company shall determine the general rights of shareholders and ensure justice and equality between them. The company shall encourage shareholders to participate and vote in the company’s general assembly meetings.\r\n\r\n<strong>Ninth rule: Recognising the legitimate interests of stakeholders</strong>\r\n\r\nThe company shall develop systems and policies which ensure protection of stakeholders rights, and encourage stakeholders to participate in following up the company’s various activities.\r\n\r\n<strong>Tenth rule: Encourage enhanced performance </strong>\r\n\r\nThe company shall develop mechanisms to allow each member of the board of directors and executive management to participate in training programs and courses on regualr basis.\r\n\r\nThe company shall develop the systems and mechanisms to evaluate the overall performance of the board of directors, as well as the performance of executive management.\r\n\r\nThe board of directors shall constantly ensure the significance of institutional value creation among the company personnel, by constantly working to achieve the company’s strategic objectives, enhance performance rates and comply with the laws and instructions, particularly governance rules.\r\n\r\n<strong>Eleventh Rule: Importance of social responsibility </strong>\r\n\r\nThe company shall develop the mechanisms that ensure balance between the company objectives and the community objectives, and shall outline the programs and mechanisms which assist to manifest the company’s efforts in the community.\r\n\r\nThe above eleven Rules are subject to supervisory requirements by the Corporate Governance Department Control Sector of the CMA, which shall be furnished on a quarterly basis with proof indicating execution of the requirements set out under the Rules, as well as the organisational structure approved by the company board of directors.\r\n\r\nThe Rules shall be complied with no later than 31 December 2014, taking into consideration that the company should immediately apply any principle or requirements set out under these Rules of a binding statutory character, whether according to the CMA Law, executive regulation or the Companies Law and its executive regulation.\r\n\r\nMoreover, the CMA is entitled to request any additional information or data it deems necessary in order to ensure the extent of compliance with all the requirements and conditions set out under these rules.\r\n\r\nNon-compliance of these Rules shall expose the violator to disciplinary accountability, in accordance with the CMA Law and its executive regulation.'),
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(87345, 4753, 'content_description', 'The Capital Markets Authority (the “CMA”) has recently issued resolution no. 25 of year 2013, dated 27 June 2013, covering the Corporate Governance Rules (the “Resolution”) for companies subject to the CMA. The Resolution is effective from the date it was issued. '),
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(87360, 4754, 'content', 'July - August 2013\r\n\r\n<hr />\r\n\r\n<strong>UAE Civil Code</strong>\r\n\r\nGuarantees generally fall under the purview of Federal Law No. 5 of 1985 as amended (‘Civil Code’). Article 1057 of the Civil Code defines guarantees as a suretyship with ‘the joining of the liability of a person called the surety (the guarantor) with the liability of the obligor (the principal debtor) in the performance of his obligations.’\r\n\r\nMost importantly for lenders, the Civil Code in relation to guarantees provides that:\r\n<ol>\r\n 	<li>the obligation of a guarantor is incidental to the obligation of the principal debtor. Any discharge of the principal debtor’s obligations may, therefore, result in the guarantee no longer being valid;</li>\r\n 	<li>if the principal debtor becomes bankrupt, the creditor must prove its debt in the bankruptcy, failing which it will lose its right to claim against the guarantor to the extent of any sums which the creditor might have received had it proved such debt in the bankruptcy; and</li>\r\n 	<li>upon discharge of the relevant debt, the creditor must deliver to the guarantor all necessary papers to enable the guarantor to exercise its right of recourse against the principal debtor.</li>\r\n</ol>\r\nIt is important to note that that unless a guarantee is backed by security, a lender’s claim on the guarantor will be unsecured.  This could subordinate the lender’s claim to other lenders who have obtained security from the guarantor in the form of a mortgage or a pledge over the assets of the guarantor.\r\n\r\n<strong>Limitation Period Applicable to Guarantees</strong>\r\n\r\nLenders must be aware of the different limitation periods in respect of guarantees.  Article 1092 of the Civil Code provides that ‘If a debt is due, the creditor should claim the debt within six months from the date on which it fell due, and otherwise the guarantor shall be deemed to have been discharged.’ There have been different interpretations of Article 1092 of the Civil Code and its application. The Supreme Court in Abu Dhabi has interpreted Article 1092 to apply to guarantees with respect to civil transactions only and has found that the time bar does not apply to guarantees in commercial transactions, particularly where the beneficiaries are banks and financial institutions. In such cases, the Supreme Court has held that the applicable time bar is ten years. By contrast, in Dubai, the Court of Cassation considers a guarantee a civil obligation and has ruled that Article 1092 applies to all guarantees and a claim against a guarantor must be initiated within six months from the due date of payment.\r\n\r\n<strong>All Monies Guarantee </strong>\r\n\r\nThe distinction between specific guarantees and all monies guarantees is an important one.  Under an all monies guarantee, a guarantor guarantees any and all obligations from the principal debtor to the lender, whether existing at the time of the guarantee or arising in the future.  Lenders should be aware that guarantees for ‘all monies’ may face issues upon enforcement in the UAE, with Article 1061 of the Civil Code requiring that guarantees must be issued with respect to a specified debt or a thing certain in amount. While there have been judgments in the recent past where the UAE Courts have recognised and enforced all monies guarantees, the application of such judgments is limited.\r\n\r\n<strong>Due Diligence of Guarantor’s Assets </strong>\r\n\r\nAll lenders must undertake the necessary due diligence prior to the execution of a guarantee in respect of the nature of the guarantor’s assets.  In terms of enforcement, it is important to note that UAE law does not recognize the concept of ‘self help remedies’.  As such, guarantees in the UAE must be enforced through a process led by the UAE courts.  The lender will require an attachment order, either prior to commencing substantive legal proceedings or once a final judgment has been obtained, in order to recover the monies due under the guarantee.  In order to increase the expediency of the attachment process, lenders should conduct the necessary due diligence and obtain all details of the unencumbered assets of the guarantors, including but not limited to funds in bank accounts, real estate properties, immoveable properties, vehicles, shares/stocks etc. The advantage of identifying the assets is that it would assist the court in an expedient issuance of the attachment order and such order will prevent the sale of such assets pending the final judgment (noting public searches are difficult in the UAE).\r\n\r\nIf a lender is unable to acquire the relevant details in respect of the guarantor’s assets, the attachment process can be drawn out until the court can ascertain the extent of the guarantor’s assets.  While the final result is the same, ie the ring-fencing of the guarantor’s assets in favour of the lender, the process is more cumbersome and time-consuming when the guarantor’s assets are not identifiable.\r\n\r\nFurthermore, the location and value of the guarantor’s assets should play a key role in choice of governing law of the guarantee.  It would be of little value to obtain a UAE law guarantee from an individual or legal entity whose assets are located in a foreign jurisdiction where UAE law may not be recognized or there is no reciprocity on enforcement of judgment with that jurisdiction.\r\n\r\nAdditionally, lenders must be prepared to undertake periodic monitoring of the guarantor’s assets as the provision of a guarantee does not prevent a guarantor from transferring ownership of their assets or disposing of their assets in entirety.\r\n\r\n<strong>Personal Guarantors</strong>\r\n\r\nLenders should be aware that claims against a personal guarantor will need to be brought against the personal guarantor’s estate in the event that the personal guarantor passes away.  The general legal position relating to probate and inheritance is covered by the UAE Federal Law No. 28 of 2005 concerning personal affairs (‘Personal Affairs Law’) which governs how the estate of a UAE resident or national will be managed upon the death of the individual.\r\n\r\nUnder the Personal Affairs Law, the Shariah Court in the relevant Emirate would have jurisdiction to review any application for a declaration declaring the death of and naming the survivors of the deceased (‘Death Declaration’) in respect of the guarantor and to conduct any proceedings relating to succession.  Once the Death Declaration is obtained, any of the potential heirs may apply to the Shariah Court to institute succession proceedings, which will only be necessary if the deceased has assets in the UAE.\r\n\r\nUnder Article 275 of the Personal Affairs Law the creditors of the deceased would have priority over any other distribution except for any burial expenses.  Once the lender is aware of the Death Declaration and the distribution of assets it must immediately file proceedings against the estate and the heirs as the case may be to exercise its rights under Article  275 in its capacity as creditor.\r\n\r\n<strong>Enforcement of Guarantees</strong>\r\n\r\nLenders must be aware of the overall enforcement process with respect to guarantees and the time required for a final judgment. A lender seeking to enforce a guarantee is required to have first notified the guarantor of the default of the primary obligor by serving a legal notice in accordance with the terms and conditions of the guarantee. A lender can either file for attachment first and later commence substantive legal proceedings or commence substantive legal proceedings immediately.\r\n\r\nThe next step is for the lender to file substantive legal proceedings at the Court of First Instance against the guarantor claiming the outstanding amount under the guarantee (within eight days from the date on which the assets of the guarantor are attached, if applicable).  Substantive legal proceedings usually last between 8 to 10 months if no defences are raised by the guarantor.  If the guarantor raises any defences, the Court may appoint a financial expert (usually a chartered accountant) to determine the financial issues arising out of such substantive proceedings.  In such cases, proceedings may last for as long as two years.\r\n\r\nOnce the final judgment is obtained by the lender the case will be transferred to the Execution Court for the liquidation of the guarantor’s assets and any funds realized from such liquidation of assets will be paid to the lender to the extent of the liability under the guarantee.  Any surplus would revert back to the guarantor.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nWhile there are various factors for lenders to consider before relying on a guarantee as a form of security, guarantees should not be dismissed altogether. A prudent lender should consult with legal counsel on the efficacy and suitability of any security package to avoid unpleasant surprises.'),
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(86474, 4708, 'content', 'May 2013\r\n\r\n<hr />\r\n\r\nAccording to the Qatar Tourism Authority (QTA) a total of 48 new 5-star hotels with 13,151 rooms, 41 new 4-star hotels with 8,829 rooms, and nine 3-star hotels with 2001 rooms are planned and will be ready by 2016.  A further 10,452 apartment-style hotel rooms are in the planning stage.   This will no doubt rise as we come closer to the 2022 World Cup by when the QTA expects there to be in excess of 70,000 rooms.  As such hotel investors and operators can see massive growth potential in Qatar in the field in the immediate future.  But how does a hotel business become established given the particular laws of Qatar?\r\n\r\nThe Foreign Capital Investment Law (no. 13 of 2000) (the Foreign Investment Law) regulates foreign investment within Qatar and sets down a general principle at Article 2 that foreign investors are allowed to invest in all sectors of the national economy provided they have one or more Qatari partners owning a minimum of 51% of the capital.  Accordingly, foreigners wanting to establish a business enterprise are generally restricted to owning a maximum of 49% of any such enterprise.\r\n\r\nHowever an exemption to the 49% limit can be obtained by investment in certain economic sectors including agriculture; manufacturing; health; education; tourism; development of natural resources; mining; power; information technology; technical and consultancy services; entertainment, sport and cultural services; and distribution services.  There is an overriding qualification that such investments are to be consistent with state development plans which allows the Ministry of Business and Trade discretion in granting the exemption.\r\n\r\nTherefore, anyone wanting to construct a hotel in Qatar may wish to consider making an application under the tourism exemption to the Ministry of Business and Trade’s Investment department for consent to establish a wholly—owned subsidiary by which a hotel business can operate.  However this is an arduous process, relies on the Minister’s discretion and support will also be needed from the QTA in this regard.\r\n\r\nThe QTA’s requirements include a detailed feasibility study, an initial approval obtained from the Ministry of Municipality and Urban Planning and the conducting of a service trial.  For novices in the field, the QTA recommends engaging the services of recognised consultants for the project as this will facilitate communication between the QTA and the applicant.  Operation is a big-ticket item for the QTA and the QTA regards the lack of proper operational systems as one of the major problems hotel investors face after the hotel is established and is in operation.\r\n\r\nDiscussions with some of consultants to the hotel industry indicate that in Qatar the greatest problem is finding an operator for the hotel.  Too often local investors build what they think will be a hotel but the floor-plans used are only suitable for an apartment block.  For example a 10 square metre room is set aside as a laundry only for the investor to find the hotel operator requiring a laundry 10 times that size or an off-site purpose-built facility.  This leads to the expense of major re-fits or to loss of a hotel operator and the investor being forced to re-think the projected use for the building.\r\n\r\nTherefore any potential hotel investors need to keep in mind that choosing an operator needs to be organised early in the piece and certainly involved in the planning and design stages of the project in order to avoid rejection of the product at a later stage.\r\n\r\nFor international operators there are also issues to be considered as well.  The Commercial Register Law (25 of 2005) provides that “no person may engage in commerce or establish a commercial shop unless registered in the Commercial Register”.  In order to register in the Commercial Register a foreigner needs to adhere to the capital requirements as established by the Foreign Investment Law.  Failure to do so can have criminal consequences.  For example Law No (25) for the year 2004 Regarding the Control over Non-Qataris’ Practise of Commercial, Economic and Professional Activities in Violation of the Law (The Proxy Law”) prohibits engaging in any “commercial, economic or professional activity” not authorised under the Foreign Investment Law and an offence can carry a one year prison term in addition to a fine of up to half a million Qatari Riyals.  Unfortunately, in Qatar we have not had the opportunity to see what a court will make of these prohibitions and the use of such wide terms.\r\n\r\nFurthermore, an exemption may not be available under the tourism exemption for operators only.  So what does an operator do?  One solution is to establish a company in Qatar with 51% Qatari ownership but many international companies are wary of the same, even where the profit distribution to the foreigner is higher than the 49% of shares it holds.  What often happens is that the operator enters into a management agreement with the owner and provides expertise, operating systems and the brand whilst providing management services to the hotel through its staff.  But without registering in the Commercial Register there is a risk that a breach of the aforementioned laws takes place.\r\n\r\nIf the words used in the Proxy Law “commercial, economic or professional activity” are given their literal meaning, the law probably has far reaching and unintended consequences.  Any action in Qatar, however benign, would lead to a breach of a serious criminal offence.  Meetings about business unconnected to Qatar, discussions about possible ventures outside Qatar, the delivery of firm brochures and analysis about world share markets would conceivably be prohibited.  It would be unlikely that the lawmaker intended such a wide operation without expressly overriding the existing laws.  However this does mean that for any hotel operator in Qatar that has not established a legal entity a great deal of care must be given to setting up the structure in such a way as to reduce any possible breach of the laws.  For example, any staff located permanently in Qatar must by law be employed by the sponsoring entity, so the hotel staff (including management) must be employed by the hotel itself, not the operator.  It is all the intricate matters of this nature that must be taken into account by international hotel operators in determining the best and most legally compliant structure to be used.'),
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(86491, 4709, 'content', 'May 2013\r\n\r\n<hr />\r\n\r\nExclusive remedies clauses frequently arise in construction contracts in the UAE and often prove to be a hotly contested issue.  This article is therefore to consider exclusive remedies clauses from a UAE law perspective and, by comparison, briefly sets out the common law position (from where the concept is derived).\r\n\r\n<strong>The potential impact of an exclusive remedies clause</strong>\r\n\r\nA typical exclusive remedies clause in a construction contract may read as follows:\r\n\r\n“The Employer and the Contractor agree that their respective rights, obligations and liabilities as provided for in the Contract shall be exhaustive of the rights, obligations and liabilities of each of them to the other arising out of, under or in connection with the Contract or the Works.  Accordingly, except as expressly provided for in the Contract, neither party shall be obligated or liable to the other in respect of damages or losses suffered by the other which arise out of, under or in connection with the Contract or the Works, whether by reason or in consequence of any breach of contract or of statutory duty or tortuous or negligent act or omission.”\r\n\r\nAlthough it is customary for construction contracts to provide that specific remedies apply in certain circumstances (most notably in respect of liquidated damages in the event of delay and/or failure to satisfy certain performance criteria), a contractor is invariably required to discharge a multitude of other fundamental obligations and it is unusual for the contract to specify the remedy for a breach of each obligation.\r\n\r\nAccordingly, the effect of a widely drafted exclusive remedies clause can, on the face of it, be dramatic as the contractor may be absolved from liability in the event of breach unless an express remedy is referred to in the contract that applies to the breach in question.  Depending on the drafting, this could potentially lead to the employer being required to remedy big ticket items such as structural defects, at its own cost and expense.\r\n\r\nAdditionally, an employer could be deprived of compensation even if the contract specifies a particular and exclusive remedy for a particular breach if the remedy in question is unenforceable (perhaps on account of unclear drafting).\r\n\r\n<strong>Position under UAE Law</strong>\r\n\r\nWhile Article 258 of the UAE Civil Code provides that contractual provisions should be “given their true meaning” and the principle of freedom of contract generally prevails, Article 31 of the UAE Civil Code provides that this is only the position if a clause does not conflict with a mandatory provision of law.\r\n\r\nAs such and although much will turn on the relevant drafting, the following provisions place serious doubt over the enforceability of an exclusive remedy clause under UAE law:\r\n<ul>\r\n 	<li>Article 246(2), which states that “the contract shall not be restricted to an obligation upon the contracting party to do that which is contained in it, but shall also embrace that which is appurtenant to it by virtue of the law, custom and the nature of the transaction”, thus suggesting all principles of law apply to contracts and cannot be excluded.</li>\r\n 	<li>Article 309.2, which states that “the judge may in all cases, upon the application of either of the parties, vary such agreement so as to make the compensation equal to the loss, and any agreement to the contrary shall be void.”  The protection afforded by this article could therefore be invoked if an exclusive remedies clause deprives a party of compensation.</li>\r\n 	<li>Article 878, which states that “the contractor shall be liable for any loss or damage resulting from his act or work whether arising through his wrongful act or default or not but he shall not be liable if it arises out of an event which could not have been prevented”.  As above, the inclusion of an exclusive remedies clause is contrary to this principle.</li>\r\n 	<li>Article 106(2)(c), which states that “the exercise of a right shall be unlawful if the interests desired are disproportionate to the harm that will be suffered by the other”.  This is potentially relevant to an exclusive remedies clause as prohibiting the employer from obtaining redress in respect of, say, a defective design is clearly prejudicial to the employer’s interests.</li>\r\n</ul>\r\nIt could also be argued that the use of an exclusive remedies clause to evade liability which would otherwise arise may result in unjust enrichment.  This is contrary to Articles 318 and 319 of the Civil Code.\r\n\r\n<strong>Position under Common Law  </strong>\r\n\r\nThe situation regarding the enforceability of exclusive remedies clauses is different under the common law as the usual rules of interpretation apply to exclusive remedies clauses, meaning that the clause will be construed in accordance with its natural and ordinary meaning.  As such, provided that an exclusive remedies clause is unambiguously drafted and validly incorporated into the contract, several judgments have confirmed that exclusive remedies clauses are, in principle, enforceable in common law jurisdictions and may therefore extinguish rights that would otherwise be available to the injured party.\r\n\r\nThe main exceptions to this rule arise if:\r\n<ul>\r\n 	<li>a court considers the exclusion to be unreasonable in which case the clause will be deemed void.  However, an exclusive remedies clause will be generally upheld if both contracting parties are commercial entities of relatively comparable bargaining strength and, for this reason, this ground is rarely successfully invoked in practice; and</li>\r\n 	<li>the drafting of the exclusive remedies clause is ambiguous.  In this situation, the clause will be construed against the party seeking to rely on it (and there are examples of courts being inventive in their approach to circumvent the effect of exclusive remedies as well as caps on liability).</li>\r\n</ul>\r\n<strong>Conclusion</strong>\r\n\r\nNotwithstanding the questions regarding the enforceability of exclusive remedies clauses in the UAE, we recommend that employers in the UAE always resist their inclusion on the off-chance that such a clause is held to be legitimate and to avoid unnecessary uncertainty.  Similarly, contractors should find alternative ways to limit their contractual liability as they may be dangerously exposed if an exclusive remedies clause the contractor is seeking to rely upon is struck out.'),
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(86510, 4710, 'content', 'May 2013\r\n\r\n<hr />\r\n\r\nSuch employees will undoubtedly be aware of an abundance of commercially sensitive information. In that context, restricting the post-termination activities of employees is a necessary part of the business landscape today. It is however debatable how useful restrictive covenants are and to what extent they can really provide any protection. Moreover, it is questionable whether there are any incentives for employees in the UAE who are subject to post-termination restrictions to abide by them particularly siince enforcement options are limited. We consider these issues in relation to employees in the UAE. For the purposes of this article, we do not consider post-termination restrictions in the context of the DIFC.\r\n\r\n<strong>What is a post-termination restriction? </strong>\r\n\r\nIn simple terms, post-termination restrictions are contractual provisions which seek to protect an employer’s business by limiting the activities of employees after termination of employment. The most well-known category of post-termination restriction is the non-compete clause. Such clauses aim to prevent an employee from working with or setting up a business which may be in competition with his employer. However, this is not the only type of post-termination restriction.\r\n\r\nWhilst arguably less relied upon, non-poaching, non-dealing and non-solicitation clauses can be very useful to an employer. Those clauses have the following effect:\r\n<ol>\r\n 	<li>Non-poaching clauses – prevent a former employee from taking other employees with them upon termination;</li>\r\n 	<li>Non-dealing clauses – prevent a former employee from dealing with clients/customers/suppliers, regardless of which party approached the other; and</li>\r\n 	<li>Non-solicitation clauses – prevent poaching of clients/customers/suppliers of the former employer.</li>\r\n</ol>\r\n<strong>Legal Position</strong>\r\n\r\nIn many jurisdictions, the general position in relation to post-termination restrictions is that they are unlawful since they attempt to restrain trade. The starting point in the UAE however is that post termination restrictions (and specifically non-compete clauses) are lawful.\r\n\r\nArticle 127 of Federal Law No. 8 of 1980 (as amended) (the “Labour Law”) expressly states that where an employee performs a role which allows him to become acquainted with confidential information, the employer may put in place an agreement or include in the employee’s employment contract a provision which prevents an employee from working with a competing business after termination. This does not however give an employer freedom to unnecessarily restrict an ex-employee’s activities. Articles 909 and 910 of the Civil Code reiterate this position and go further than the Labour Law. Unlike the Labour Law, the Civil Code contains guidance as to the circumstances in which a restriction will be valid.\r\n\r\nGenerally, a non-compete provision must be reasonable, and should only restrain conduct to the extent necessary to protect the employer’s legitimate business and legal interests. It must therefore be limited in:\r\n\r\na. Time/duration;\r\n\r\nb. Place/geographical scope; and\r\n\r\nc. Nature/business sought to be restricted.\r\n\r\nA non-compete provision which is limited to 6 months in duration, the Emirate in which the employee worked and includes a sufficiently defined business scope is likely to be enforceable in the UAE. However, in the event that post-termination restrictions are deemed to be unenforceable (due to an excessive length for example) such provisions will not automatically be struck out in their entirety. More likely, the courts will “blue pencil” the provision. This means that the courts will ‘edit’ the clause by removing the wording that renders a clause unenforceable, leaving the remaining part enforceable.\r\n\r\nEven in cases where the above criteria are met, the ex-employer must also be able to prove that any restrictions upon which it intends to rely are necessary to protect a legitimate business interest – for example, a client connection, confidential information or a stable workforce – and that the restrictions are not being used simply to stifle or prevent competition.\r\n\r\nBearing this in mind, it is prudent for employers to approach post-termination restrictions with some caution.\r\n\r\n<strong>Who should have post-termination restrictions in their contracts? </strong>\r\n\r\nSince post-termination restrictions must be necessary to protect a legitimate interest, it follows that only certain employees will be in a position whereby their conduct after termination could pose a risk to the business. A very junior employee who is not working in a client facing role and does not deal with very sensitive information is unlikely to be held to the same standard in terms of post-termination restrictions as a senior, client-facing employee who deals regularly with confidential or commercially sensitive information. In this context, the abovementioned junior employee could argue that post-termination restrictions in his contract are void since there is no underlying desire to protect a genuine business interest.\r\n\r\n<strong>Enforcement </strong>\r\n\r\nIn the event that an employee is subject to contractual post-termination restrictions which an employer considers have been breached, an employer’s remedies are limited\r\n\r\nIn circumstances where an employee intends to breach or has breached post-termination restrictions, the most effective remedy is an injunction since this is a preventative measure and can essentially mean that damages or other remedies are irrelevant (since the breach is stopped before it takes place or very quickly after the event). However, injunctive relief is not provided in the UAE (outside of the DIFC). In practice therefore, an employer cannot prevent an ex-employee from acting in breach of a post-termination restriction. The effect of this is that any other relief in terms of civil action can be compensatory only (i.e. a claim for damages). This is not ideal since, for many employers, loss cannot be proven or quantified and the employer would prefer to stop the breach before it occurs.\r\n\r\nIn order to bring a claim for damages, a court will initially consider whether the relevant restrictions are reasonable. Furthermore, an employer must adduce evidence to show that the employer has suffered direct and actual financial loss as a result of the employee’s breach of the post-termination restrictions. This is often very difficult if not impossible to prove.\r\n\r\nMoreover, even in the event that an employer is successful with litigation dealing with post-termination restrictions, a costs award will not be given. Instead, each party bears his own costs irrespective of the outcome of the matter. This is a distinct disadvantage for both parties.\r\n\r\n<strong>Alternative Options</strong>\r\n\r\nIt is clear that an ex-employer’s remedies are limited and taking enforcement action is a lengthy and costly process.\r\n\r\nHowever, liquidated damages clauses are useful to some extent. A liquidated damages clause sets out a pre-estimate of the likely loss suffered by the employer in the event of a breach of a restriction. Ordinarily, in the event of a dispute regarding post-termination restrictions, the burden of proof is on the employer to evidence its loss (and prove that such loss arose as a direct result of the breach). Where a liquidated damages clause is used, the burden shifts to the employee to prove that the amount claimed in the clause has not actually been suffered by the employer.\r\n\r\nIn terms of additional measures that an employer can consider, garden leave is commonly used in conjunction with restrictive covenants for maximum effect. The inclusion of a garden leave clause in a contract of employment allows an employer to require the employee to spend all or part of the notice of termination period at home whilst continuing to receive his usual salary and benefits. The benefit of this is that it delays the employee from taking up other employment with a competitor. If the employer can show that the employee is undertaking other work in this period this is in breach of immigration regulations which has potentially serious consequences.\r\n\r\nIn addition to the above, the issue of breach of confidentiality is commonly intertwined with non-compete clauses. Where a breach in confidentiality can be proven, criminal complaints can be filed against the employee and this is obviously a serious deterrent for employees.\r\n\r\n<strong>Conclusion </strong>\r\n\r\nPost-termination restrictions are difficult to enforce in the UAE. Employers should therefore consider the full menu of options available to them to include utilisation of garden leave, insertion of a liquidated damages provision and where appropriate filing criminal complaints. In all cases, post-termination restrictions act as a valuable deterrent for the employer.\r\n\r\nWe would recommend that careful drafting is used in all circumstances to ensure the value of post-termination restrictions and to put employers in the strongest possible position to protect their businesses.'),
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(86525, 4711, 'content', 'May 2013\r\n\r\n<hr />\r\n\r\nThe Decree was subsequently supplemented by a Cabinet Decision that named Al Maryah Island (formerly Sowwah Island and the home of Al Tamimi’s Abu Dhabi Office) as the designated Free Zone.  The initial announcement was very light on detail although it was stated to be issued pursuant to a Federal Law of 2004 regarding Financial Free Zones.  This is the same Law under which the Dubai International Finance Centre was established.  That initial announcement has since been supplemented by an announcement of the Executive Council of Abu Dhabi on the first of May filling in a lot of the details.\r\n\r\nAccording to the latest announcement, it appears that the new financial free zone, to be called the Global Market place Abu Dhabi (“GM-AD”) (although some translations have named it as “Abu Dhabi World Financial Market”) is to have its own regulatory structure.  In line with other free zones in Abu Dhabi it is to have its own Companies Registrar for the registration and regulation of companies established within the GM-AD.  However, in keeping with its focus on financial matters it is also to have a Financial Services Bureau which will be the Financial Regulator supposedly along the lines of the Financial Services Authority in the United Kingdom, and a two tier court system with a Court of First Instance and a Court of Appeal with the judicial system being overseen by a Chief Justice.  It is apparently intended that the GM-AD will enter into Memoranda of Understanding with the other judicial authorities in Abu Dhabi regarding the enforceability of the decisions of its Courts outside the Free Zone.\r\n\r\nAs you would expect, the activities listed in the announcement as being the proposed activities of the GM-AD are very heavily weighted to financial matters and things ancillary thereto.  These include in all their various forms financial and banking services (including Islamic Banking), funds and fund management, securities and foreign exchange broking and trading, quite a heavy emphasis on commodities and commodity trading, insurance and re insurance as well as legal and accounting services.\r\n\r\nCompanies set up in the  GM-AD can be 100% owned by non UAE Nationals and there is a 50 year tax exemption on the profits of companies and their employees arising out of their operations there.  There is also a customs duty exemption.  The Abu Dhabi Government is obviously trying to make it attractive to carry on business there.\r\n\r\nThe announcement is silent on the types of laws that will be introduced in the GM-AD and whether they will be based upon the civil code as are the laws of the UAE or whether they will be based upon common law such as English law.  On the basis that the aim of the  GM-AD is to be a global financial hub it is very likely to be the latter due to its pre eminence in international financial transactions.  There is also a hint in the fact that the announcement refers to “trusts” in its list of activities and trusts are only known under common law legal systems and not civil law systems.  The announcement is also silent on the language of the proposed new laws.  Again, because of the international nature of English and the fact that most common law lawyers are English speaking rather than Arabic speaking, if the laws are to be based on common law then they are almost certainly to be in English.  This is reinforced by the fact that the regulations of all the other Free Zones in Abu Dhabi are in English.  If the laws are in English then it is almost certain that the Courts will operate in English rather than Arabic.  This will all enhance the international nature of the GM-AD.\r\n\r\nAs yet, no dates have been officially announced for the actual commencement of operations of the GM-AD although both 2015 and possibly a rather ambitious end of 2013 have been mentioned in the press.  One thing that will also need to be considered, however, is the position of businesses that have already established themselves on Al Maryah in Sowwah Square or have bought plots of land on Al Maryah to develop buildings for their own use but whose business is “on shore” with the rest of the UAE.  Normally a company established in a free zone may not carry on business with the rest of the UAE without using an agent registered on shore in the UAE.   This will obviously cause some issues for those businesses.  However, the Federal Law under which the GM-AD is organized contains a provision allowing the Cabinet to pass a resolution to suspend this prohibition for up to four years as a transitional period and it will be interesting to see whether the provision is exercised. Alternatively, companies already established in what has become the GM-AD might be given the option to opt out of being part of the free zone which is an approach taken by the Qatar Financial Centre.\r\n\r\nThe other side of this of course is that those businesses who have established themselves to carry on activities on Al Maryah Island such as the shops and restaurants in the Galleria Shopping Mall in Sowwah Square will no longer need to have a local Emirati National holding at least 51% of the shares or being a National Sponsor if it is a branch as they will be able to be 100% owned.\r\n\r\nAll in all, based on what we know so far, Abu Dhabi appears to be putting together a well thought out and attractive regulatory regime as an important part of its Vision 2030 Strategic Plan and its attempt to diversify away from a carbon based economy.  It seems to be positioning the GM-AD as a serious competitor to the Qatar Financial Centre, the Bahrain Financial Harbour and the King Abdullah Centre in Saudi as well as the DIFC.\r\n\r\nFinancial trading is a 24 hour phenomenon and the Abu Dhabi Government sees the GM-AD as being an ideal location to cover that period when the Asian markets are winding down but before Europe has fully got into its stride.  The proof of the pudding is always in the eating but when Abu Dhabi puts its mind to doing something it generally does it well so we should expect the GM-AD to be a success.'),
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(86544, 4712, 'content', 'May 2013\r\n\r\n<hr />\r\n\r\nHowever, and particularly under Kuwaiti law, under certain circumstances the ability to circumvent the protection provided by the corporate veil and to hold such owners, shareholders, directors and managers personally accountable and liable has been available since the passing of the Kuwait Companies Law No 15 of 1960 (the “Old Law”).\r\n\r\nUnder the Old Law, the ability to “pierce the corporate veil” revolved around actions made by leaders of a company (i.e., managers, board members) including but not limited to cheating, abuse of power, violation of constitutive documents and mismanagement. The process for filing such claims and obtaining the information to hold them accountable, however, was limited in nature.\r\n\r\nHowever, under the new Companies Law No 25 of 2012 (the “New Law”), there are several utilities available for stakeholders to hold certain individuals such as board directors, shareholders, and managers accountable for their actions. For example, under a shareholding company, the general assembly of shareholders, under Article 234, may file a lawsuit against its board of directors, and even in the event of liquidation, the respective liquidator retains the same authority. Furthermore, where the general assembly fails to file such a claim, Article 235 of the New Law provides a shareholder the ability to file a claim, in an individual capacity, on behalf of the company against the board. Notwithstanding the above, in the event a shareholder sustains personal damage, the same Article provides him the ability to file a claim in a personal capacity against the board.\r\n\r\nAlthough the aforementioned concepts are not uncommon under most contemporary jurisprudence, Chapter One of Book Thirteen (“Supervision and Inspection”) of the New Law (Articles 327 – 333) provides relevant stakeholders with expanded abilities to pierce the corporate veil.  For example, in the event the Ministry of Commerce and Industry (“MOCI”) holds an audit of a company either through its own volition (Article 327) or pursuant to a request made by shareholders / partners representing at least 5% of the capital (Article 329), the Ministry may, under Article 328, invite the general assembly or partners’ assembly to convene to cure such violation within fifteen days from the date of the meeting. In addition, in the event a request for an audit is dismissed by the MOCI, under Article 331, the respective stakeholders may file a claim in the Court of First Instance to issue a writ of mandamus to conduct such audit by an expert.\r\n\r\nFor those facing such an inspection or an audit, cooperation with the same has also become a fiduciary duty. Under Article 333, such personnel must grant access to the inspector of all respective records and documents, otherwise the penalties for failure to provide the same, under Article 335, may include imprisonment of not more than one year and a fine of not less than KD5,000 or more than KD 10,000.\r\n\r\nUltimately, the intent of the New Law in holding leaders and those with fiduciary duties accountable is evidenced by the enactment of the aforementioned articles.  Nevertheless, there are several other areas under the New Law where such areas are addressed and will be addressed in future articles. Furthermore, it should be viewed as a welcomed change under the law by providing enhanced risk management and protection to those seeking to conduct business in Kuwait and entrust individuals with its assets.'),
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(86563, 4713, 'content', 'May 2013\r\n\r\n<hr />\r\n\r\nChristina is no stranger to the Middle East and is well positioned to advise Korean clients on Middle Eastern business practices, legal process and decision making.  She spent time growing up in Iran and in Libya. Her sentimental attachment to the culture and commitment to understanding its ways has bought her back here with her own family.\r\n\r\nChristina originally found an interest in law whilst studying to become a diplomat.  She found the reasoning behind law attractive and the technicality appealed to her logical, mathematical mind. At law school in New York she found laws importance to the way we live and its relevance to the economy, society and remembers the US way of studying the discipline very exciting: “I really enjoyed the Socratic way the law schools conducted the classes in the US- lots of debate and hours of open thinking and discussion. I enjoyed every single day of law school.  It was one of the most rewarding experiences of my life.”\r\n\r\nBefore graduating Christina had identified corporate law as the path she wanted to follow, “corporate law is adaptable and I realised it could take me to Asia, to Europe, to the Middle East.  Not knowing where life would take me meant that I could relate this area of law to most countries I might find myself residing in.” Immediately upon graduation, it took her to the hard and fast-paced life at the New York office of one the world’s largest firms, DLA Piper. After the birth of her son gave her time to step back and relocate her family to Korea, she had eight months at home as a full-time mum.  “The break stopped me from burning out. It gave me a moment to prioritise and revaluate where I was going.”\r\n\r\nIt was around this period that her father died.  Christina’s father had been a diplomat and with him she lived a very international life. She has lived in eight countries from Vietnam, to Iran, to Germany and the death of her father prompted a lot of personal reflection.  “It’s challenging for me to reflect on my identity as it’s so linked to where you are from - which I struggle to really know.  When my father died I thought a lot about how happy we had been living in the Middle East.” This led to a lot of soul searching and the revival of Arabic lessons.\r\n\r\nWith her young family a priority, Christina went back to work in Korea, at the largest local firm, Kim &amp; Chang: “The move from an international law firm to a Korean firm relied upon my business languages.  It gave me great exposure to mediating between foreign clients in Korea and Korean clients conducting business outside the country.”\r\n\r\nHer time at Kim &amp; Chang was perfect training for her move to Al Tamimi, where she is doing a great job translating the Middle Eastern business sensibility and process to Korean clients. She made the move after six  years back in Korea where her longing for a return to the Middle East grew stronger.\r\n\r\nGoing to an Arabic firm was a strategic decision for Christina, who saw gaining a new perspective and independence as the key to being the best mediator between Korean and Arab business.  Christina identified Al Tamimi as a firm she’d had experience with in the past and as an ideal ‘home’ for her in the Gulf.  When comparing the culture of the team at Al Tamimi to her understanding of the wider legal market, Christina says: “There’s nothing comparable to Al Tamimi anywhere else in the world.”\r\n\r\nSo far she’s loving her job and life in Abu Dhabi. She has great views of the city from both her office and home and samples the city’s restaurants regularly.  “I don’t have a favourite restaurant yet, I have been surprised by the high standard of dining across the board in the UAE.  I also enjoy the supermarkets here which seem to sell everything from everywhere!”  Christina is a bit of an amateur chef who cooks a range of international cuisines in her spare time.  She is taking full advantage of the mix of cultures at Al Tamimi and regularly takes home arabic and indian cooking tips and recipes from the team.  “My assistant who is from India is a fabulous cook and I can learn what real Indian food is about.”\r\n\r\nAlthough after a short period the family are still to move all of their belongings over, her son is enjoying school in their new hometown and mum and dad are looking forward to further exploring their new environment. It’s been quite a journey to get here, but Christina feels like she’s found a place she can call home, a truly metropolitan city in the heart of the middle east.'),
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(86574, 4714, 'content', 'May 2013\r\n\r\n<hr />\r\n\r\nThe Strata Law’s core principle is the division of property into privately owned units and jointly owned common areas, which are managed by an Owners Association. This is similar to other strata laws around the world such as those in Australasia.\r\n\r\nCarefully considered and drafted Strata laws create a transparent structure for the management of the common areas and facilities and the administration generally of subdivided buildings or developments. This is primarily achieved through the use of an incorporated Owners Association to represent the owners’ collective interest.\r\n\r\nThe actual regulation and implementation of the Strata Law in Dubai has however resulted in a unique and evolving framework.\r\n\r\n<strong>The implementing regulations to the Strata Law </strong>\r\n\r\nIn April 2010, the Implementing Regulations to the Strata Law were issued as “Directions” rather than “Regulations”.\r\n\r\nIn simple terms, the Directions regulate the following:\r\n<ul>\r\n 	<li>the licensing and duties of surveyors and survey plans specifications;</li>\r\n 	<li>the content of Jointly Owned Property Declarations and Building Management Statements (the principal documents setting out the operational information in relation to any development);</li>\r\n 	<li>the developers’ disclosure obligations, consumer protection matters and the licensing and registration of Owners Associations;</li>\r\n 	<li>the constitutional rights and obligations of Owners Associations and stakeholders, including the functions and obligations of the Owners Association;</li>\r\n 	<li>procedural matters such as the calling of meetings and passing of resolutions; anD</li>\r\n 	<li>the role and obligations of the Owners Association Board and Association Managers.</li>\r\n</ul>\r\nThe fact that the Directions were not issued as “Regulations” (as was anticipated) created a measure of uncertainty as to how the same were to be implemented. To date, uncertainties still remain.\r\n\r\nOne issue frequently discussed is the legal capacity of the Owners Association. Although the Strata Law and Directions contemplated that an Owners Association would have legal personality, no Owners Association has so far been licensed, which is generally considered a requirement for legal personality pursuant to United Arab Emirates law.\r\n\r\nSome Owners Associations have nonetheless been granted provisional recognition for specific purposes by the Real Estate Regulatory Authority (“RERA”).\r\n\r\nThis uncertainty as to whether an Owners Association has legal personality creates the following legal challenges:\r\n<ul>\r\n 	<li>there is uncertainty as to the ability of the Owners Association to contract with third parties;</li>\r\n 	<li>there is uncertainty as to whether the Owners Association can open bank accounts;</li>\r\n 	<li>the status of the Owners Association Board is unclear;</li>\r\n 	<li>the ability of the Owners Association to sue or be sued is unclear.</li>\r\n</ul>\r\nDue to this uncertainty, many developers remain involved with managing their developments and still hold DEWA and district cooling accounts in their name.\r\n\r\n<strong>Is the Strata Law effective?</strong>\r\n\r\nAt this juncture the reader may be inclined to believe that the Strata Law and Directions are of little or no legal effect. Although it would be fair to say that the Strata Law and the Directions have not been implemented in line with the expectations of many, a measure of implementation is taking place through RERA.\r\n\r\nIn order to understand how implementation is taking place through RERA it helps to consider the problems that existed before April 2010 when the Directions were issued. At that time developers were very exposed in the financial crisis and were seeking to bolster cash flows from whatever sources were available. One of the sources of cash flow available to developers was the fees for the management of their existing built properties.\r\n\r\nA regulatory framework for the management of developments was therefore vital to prevent abuses by developers and to retain confidence in the market. In addition to publicizing the Directions RERA also amended them to require that developers obtain the consent of RERA prior to the levying of service charges upon owners.\r\n\r\nRequiring developers to obtain RERA’s consent prior to the issuance of service charge notices gives RERA the ability to withhold approvals if developers are not compliant and thereby ensure that developers take their compliance obligations seriously. In addition, RERA often require evidence that the goods or services required by the Owners Association have been procured in a transparent and competitive fashion, and may benchmark the price of such goods and services against their records of comparable services.\r\n\r\n<strong>The current situation</strong>\r\n\r\nDevelopers’ compliance obligations at present remain as set out in the Strata Law and Directions and include the following:\r\n<ul>\r\n 	<li>the obligation to file and have approved by the Land Department, Unit and Common Areas Site Plans;</li>\r\n 	<li>the obligation to file a Jointly Owned Property Declaration or Building Management Statement;</li>\r\n 	<li>in the case of master developers, the obligation to file Master Community Declarations.</li>\r\n</ul>\r\nIn addition RERA have sought to enforce compliance by developers through the use of both financial and building audits.\r\n\r\nNonetheless, due to the lack of legal capacity Owners Associations are said to be operating on an “interim” basis. The degree to which the Board of any Owners Association controls the management of a development can vary significantly. The effectiveness of what is in some cases joint control and management by the Board and developer is dependent on cooperation between the parties and a breakdown in this relationship can cause problems.\r\n\r\nRERA may intervene in the event of disputes between Owners Associations and developers and may, on a case by case basis, determine the legal rights of the Owners Association. Some of RERA’s dispute resolution techniques include facilitating the appointment of an independent Association Manager, calling additional General Assemblies, requiring building and financial audits, as well as convening and managing meetings between the parties in dispute. Association Managers are also licensed by RERA and are required to complete Dubai Real Estate Institute (part of RERA) courses as part of their accreditation.\r\n\r\n<strong>Strata in the DIFC </strong>\r\n\r\nThe Dubai International Financial Centre (“DIFC”) has a separate strata law. Nevertheless, the DIFC Authority faces similar implementation issues. We understand that at least one “Body Corporate” (the DIFC equivalent to an Owners Association) has its own bank account. It is not completely clear however how the DIFC will approach Body Corporate registration and the granting of legal status.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nWhilst the Strata Law and Directions may not have been implemented in the manner many predicted, they have nonetheless had a measurable impact on the management and administration of strata sub-divided developments in Dubai and have deterred bad practice amongst developers. It remains to be seen whether the manner of implementation to date represents a long term and sustainable model for the management of strata subdivided developments or can achieve international best practice for the same.'),
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(86597, 4715, 'content', 'May 2013\r\n\r\n<hr />\r\n\r\nThe Patent Law is mainly based on the Patent Cooperation Treaty, adopted on 19 June 1970 at Washington D.C., and the Paris Convention for the Protection of Industrial Property, adopted on 20 March 1883. The Patent Law is also compliant with the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS).\r\n\r\nIn accordance with the Patent Law, a patent is a certificate granted by the government for the purpose of protecting new inventions. This protection is limited to the geographical borders of Jordan and is valid for a period of twenty years from the date of submitting the patent application to the relevant authorities. However for the patent protection to remain active, the applicant is required to pay the relevant fees on an annual basis.\r\n\r\nDue to rapid production development and recent increase in competition in the market, it is becoming critical for companies to continuously come up with new inventions and designs to keep ahead. The protection provided by patents can be crucial for the prosperity of innovative companies in an economy like that of Jordan which is characterized by constant change and challenges.\r\n\r\n<strong>Reasons for Patenting Inventions</strong>\r\n\r\nIn addition to the above, the following are just some of the reasons that should motivate companies to register patents:\r\n\r\nWhen a company registers a patent, it ensures a strong position in the market. This is because patents prevent third parties from utilizing the commercial benefits of new (registered) inventions. It also reduces the feelings of apprehension and unfair competition that are generated by the presence of counterfeiters.\r\n\r\nRegistering a patent increases the revenues obtained from an invention because steps can be taken to prevent imitators. This is very important as companies usually invest a lot of their money and time in the development of inventions.\r\n\r\nA company can generate revenue by registering a patent because a holder of a patent may authorize other parties to utilize their invention for a one-off payment or a series of regular payments.\r\n\r\nCompanies with registered patents may make use of the patents for the purpose of innovation and technological exchange. This is because companies may go into negotiations with other local and international patent holders and enter into agreements whereby the parties agree to exchange patents and technology they may need for their work or future innovations.\r\n\r\nIt increases the chances of a company obtaining financial endorsements with better interest and terms. This is because companies who hold significant patents are more likely to be able to find investors willing to finance future projects.\r\n\r\n<strong>Conditions for Patenting Inventions </strong>\r\n\r\nIn accordance with the Patent Law, an invention can only be patented if it satisfies the following conditions:\r\n\r\nA. 1) It must be new in terms of industrial technology and previously undisclosed to the public anywhere in the world, prior to the date of filing a patent application, or the priority date claimed in the application, pursuant to the provisions of the Patent Law. This includes disclosure whether in written or verbal description, or through use, or any other means which affect knowledge of the invention,\r\n\r\n2) Disclosure of an invention to the public shall not be taken into account if it occurs within a twelve month period before the date of filing the patent application (or the date of claiming priority in the application1), and if such disclosure was a result of an act committed by the applicant, or the result of an unlawful act committed by a third party against the applicant.\r\n\r\nB. It must involve an inventive step that, having regard to the prior art relevant to the patent application, it would not have been obvious to a person having ordinary skill in the prior art of the invention subject.\r\n\r\nC. It must be applicable to an industry, including any type of agriculture, fishing, service or industry in their widest senses including handicraft.\r\n\r\n<strong>Excluded Inventions</strong>\r\n\r\nThe Patent Law excludes the following from the list of inventions that can be patented in Jordan:\r\n<ul>\r\n 	<li>Inventions which, if exploited, would be contrary to public order or morality.</li>\r\n 	<li>Inventions where the prevention of its commercial exploitation is necessary to protect life and health of humans, animals, or plants, or to avoid serious prejudice to the environment.</li>\r\n 	<li>Scientific discoveries or theories, and mathematical methods.</li>\r\n 	<li>Diagnostic, therapeutic and surgical methods for the treatment of both humans and animals.</li>\r\n 	<li>Plants and animals, other than microorganisms.</li>\r\n 	<li>Biological processes for the production of plants or animals, other than non-biological and microbiological processes.</li>\r\n 	<li>Inventions which the owner registered outside of Jordan more than 18 months prior to the date of filing for registration in Jordan.</li>\r\n</ul>\r\n<strong>Granting Patents </strong>\r\n\r\nThe Patent Law provides for a specific method by which a patent shall be granted. A patent will be granted to the inventor who can then transfer it to others. However, if the invention is a result of a joint effort, each of the related parties shall have the right to the patent jointly and equally, unless they agree otherwise. If the invention is independently made by more than one person, the right to a patent shall be granted to the person who is the first to file his application with the Registrar of Patents.\r\n\r\nIn relation to inventions created during employment, a patent will be granted to the employer if the invention is a result of an employment contract which requires the employee to carry out a particular inventive activity, unless otherwise stipulated by contract. However, if the economic value of the invention is not foreseen by the employer and employee at the time the employment contract was entered into, then the employee is entitled to fair compensation proportionate to the value of the invention. If the two parties fail to reach an agreement regarding the amount of compensation, this will be determined by the competent court.\r\n\r\n<strong>Conclusion</strong>\r\n\r\nEven though the registration of a patent may be a lengthy process at times, it often yields positive results. As such, companies that invest a lot of their money and time in the invention of new and innovative technology stand to gain much by patenting their inventions in an economy which is very fast changing.\r\n\r\n<address><em>Footnote: </em></address><address><em> </em></address><address><em>1. Pursuant to Article 10 of the Patent Law, an applicant may claim for priority in his application should such application be submitted in a foreign country, which is a signatory to a bilateral or multilateral agreement with Jordan in relation to the protection of industrial property, within no more than twelve months prior to submitting his application in Jordan. If the Registrar grants the applicant priority, then the application date shall be regarded as the same date on which the application was filed in the foreign country as per the Paris Convention for the Protection of Industrial Property.</em></address>'),
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(86620, 4716, 'content', 'May 2013\r\n\r\n<hr />\r\n\r\nAt this time, there is still no formal process available to brand owners to record their valuable trademarks with the customs authorities in Kuwait in order to address the importation of counterfeit goods at the borders of the country.  This means that the ability to take effective action against the trade in counterfeit goods within the market in Kuwait is of critical importance.\r\n\r\nIn addition to the regular civil and criminal proceedings that a brand owner may bring against counterfeiters in order to enforce their intellectual property rights, the Commercial Control Department (the “CCD”) at the Ministry of Commerce and Industry in Kuwait provides a highly effective administrative mechanism through which enforcement actions can be taken. The CCD is the government authority within the Ministry of Commerce and Industry in Kuwait that is responsible for inter alia protecting intellectual property rights within the market.\r\n\r\nIn order for the CCD to take administrative action against a suspected trader dealing in counterfeit goods, the CCD requires the relevant brand owner to file an appropriate complaint.  The purpose of the complaint is to provide the CCD with all relevant details, including that of the target, that of the goods being counterfeited and the relevant rights that are infringed.\r\n\r\nThe preparation for a complaint to the CCD should include the following:\r\n<ul>\r\n 	<li>The identity of the target dealing in the counterfeit goods;</li>\r\n 	<li>Sample of the counterfeit goods sold or offered for sale and a receipt of the sale thereof (if this can be obtained); and</li>\r\n 	<li>A comparison of the counterfeit product with the authentic product confirming that the counterfeit product is in fact counterfeit.</li>\r\n</ul>\r\nOnce the above steps had been taken, a complaint can be filed with the CCD, providing it with the details obtained in the above mentioned preparatory steps as well as copies of the certificates of registration for the relevant trade mark rights that are being infringed. Further, it is very important to NOTE THAT THE CCD will also require samples of the authentic products that are being counterfeited.  The CCD will consider a complaint and refer it for further action to the investigation department within the CCD that is responsible for the specific area where the infringement is taking place.\r\n\r\nAl Tamimi &amp; Company recently assisted a manufacturer of a well-known brand of mobile and smart phone handsets in filing a complaint with the CCD and in conducting a very successful raid against an establishment offering counterfeit handsets for sale.  This particular matter commenced when Al Tamimi &amp; Company received information from a client’s distributor on the sale of suspected counterfeit goods.  Al Tamimi &amp; Company supported the client in preparing and filing the required complaint, followed up on the complaint and accompanied the CCD on the raid.\r\n\r\nThe CCD conducted the raid and found approximately 240 counterfeit mobile phone and smart phone handsets with an estimated value of more than US$ 35,000.   The counterfeit goods were seized by the CCD and the CCD also obtained an undertaking from the store owner not to deal in the offending goods again - subject to certain fines.  The powers of the CCD are not limited to seizing goods and it also has certain investigative powers allowing it to obtain information on the supply and distribution of goods.  In this particular CCD action, valuable information regarding the source of the counterfeit products was also obtained.\r\n\r\nThe CCD will submit samples of the seized goods, along with the authentic samples provided by the complainant, to the Criminal Evidence Department of the police to conduct an independent comparison of the goods.  The Criminal Evidence Department shall issue a report on the comparison of the counterfeit and authentic goods and if it confirms that the confiscated products are counterfeit, the matter will be transferred to the Commercial Public Prosecutor and the criminal courts of Kuwait.  The report prepared by the Criminal Evidence Department represents good evidence that the confiscated goods are counterfeit.  As the criminal prosecution authorities base their decision on whether to prosecute on the reports from the Criminal Evidence Department, there is a very high level of successful prosecution based on such evidence from the Criminal Evidence Department.\r\n\r\nThe CCD provides and effective mechanism to address the trade in counterfeit goods in the Kuwaiti market with the high level of detail required in complaints playing an important role in the criminal prosecution of counterfeit traders. If you require any assistance in respect of taking action against counterfeit trade in Kuwait, please contact Tarek Abu Mariam in the Kuwait office of Al Tamimi &amp; Company at t.abumariam@tamimi.com.'),
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(86638, 4716, '_yoast_wpseo_metadesc', 'Like in many other jurisdictions in the Middle East, trade in counterfeit goods in Kuwait poses a significant challenge for brand owners.'),
(86639, 4717, 'content', 'May 2013\r\n\r\n<hr />\r\n\r\nIt is to be noted that despite the fact the new trademark applications must be filed electronically, the Saudi Arabian trademarks office still requires trademark applicants to submit hard copies of the priority documents - duly attested – if priority is claimed.\r\n\r\nThe Saudi Arabian trademarks office also now requires all legal representatives / agents to submit a list containing the brand owners they represent, along with fresh powers of attorney or an existing valid power of attorney. The Saudi Arabian trademarks office will use these powers of attorney to record the legal representatives / agents against each trademark and will then return the original documents to the concerned legal representative / agent.\r\n\r\nAs of 1 June 2013 the trademarks office will permit only one legal representative / agent to be recorded per brand owner.  No third party will be allowed to file a trademark application on behalf of a brand owner unless that person is registered with Ministry of Commerce &amp; Industry as the agent representing the relevant brand owner.\r\n\r\nThe circular of 6 April 2013 came in response to the Ministerial Decree No. 1147 of the Saudi Arabian Ministry of Commerce &amp; Industry issued on 15 October 2012 (30/11/1433 H.) that provided that the publication of trademarks shall be made through the website of the Ministry of Commerce &amp; Industry.\r\n\r\nThe Ministerial Decree included amendments to the articles of the Saudi Arabian regulations for the Trademark Law No. M/21 for 2002, namely 10-11, 13, 17, 20, 23-24, 27, 29 and 32 which required publication of certain actions in respect of a trademark, including in respect of:\r\n\r\n- Acceptance;\r\n\r\n- Renewal;\r\n\r\n- Change of ownership (Assignment);\r\n\r\n- Amendments to goods/services;\r\n\r\n- Amendments of a trademark;\r\n\r\n- Cancelation of a trademark; and\r\n\r\n- Licensing of a trademark.\r\n\r\nDuring January 2013, the Saudi Arabian Ministry of Commerce &amp; Industry officially launched the new webpage and commenced the implementation of the Ministerial Decree. At this time, the new webpage is fully operational and any party with access to the internet can review published trademarks.\r\n\r\nAnother notable development at the Saudi Arabian trademarks office is that it is now capable of examining new trademark applications.'),
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(86643, 4717, 'content_description', 'On 6 April 2013 (26/5/1434 H) the Saudi Arabian trademarks office issued a circular stating that it will no longer receive trademark applications in hard copy as it would only receive new applications electronically.'),
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(86645, 4717, 'pageSummary', 'On 6 April 2013 (26/5/1434 H) the Saudi Arabian trademarks office issued a circular stating that it will no longer receive trademark applications in hard copy as it would only receive new applications electronically.'),
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(86661, 4717, '_yoast_wpseo_metadesc', 'On 6 April 2013 (26/5/1434 H) the Saudi Arabian trademarks office issued a circular stating that it will no longer receive trademark applications in hard copy as it would only receive new applications electronically.'),
(86662, 4718, 'content', 'May 2013\r\n\r\n<hr />\r\n\r\nThis draft law is intended to replace Federal Law No. 4 of 1979 concerning the Suppression of Fraud and Deception in Commercial Transactions and is aimed at protecting consumers and regulating the market in the UAE.  A key feature of the new draft law is that it compliments the existing enforcement mechanisms in respect of intellectual property rights and especially trademarks.\r\n\r\nThe existing legal framework for fighting counterfeiting activities in the UAE comprises the Federal Trademarks Law No. 37 of 1992 as amended, Federal Law No. 4 of 1979 concerning the Suppression of Fraud and Deception in Commercial Transactions and the GCC Customs Law.  This article will explore how the new draft law will impact the existing legal framework for addressing counterfeiting in the UAE.\r\n\r\nIn terms of the new dart law, any act of selling, displaying, and possessing for the purpose of sale any counterfeit goods is defined as an act of commercial fraud. Furthermore new dart law prohibits the importation, exportation, re-exportation, manufacturing, storage, rental, marketing, selling, or possessing (even if not for the purpose of selling) any counterfeit goods.\r\n\r\nCounterfeit goods are defined in the draft law as “commodities bearing a trademark identical to a legally registered trademark without authorization”. Accordingly, the scope of protection provided by this law will be limited to trademarks only and does not cover any other intellectual property rights. Furthermore, the protection would be only for registered trademark and against the unauthorized use of identical trademarks only, and not look-alikes.\r\n\r\nThe new draft law establishes a Higher Committee for combating commercial fraud at a federal level (“the Committee”), with a sub-committee in each Emirate (“Sub-Committee”). The Committee will study reports on fraud referred to it by specialized authorities and will take the appropriate measures, while studying the penalties stipulated by the draft law and the obstacles that may face the law’s application and suggestions for overcoming these obstacles. It is a positive development to have a single body oversee the implementation of the law on a federal level. However, it is not foreseen that the Committee will be the authority where complaints would be submitted, and it is does not establish a single complaint procedure through this Committee that cover all Emirates. It is worth noting that a similar committee is already established by virtue of the current law which is called the National Committee for Combating Commercial Fraud.\r\n\r\nA major development in this new draft law is the hefty penalties for acts of counterfeiting. Penalties have always been considered a limitation in the current law as they do not act as a deterrent and both brand owners and practitioners have sought an increase in these penalties on a continuous basis.  The penalties under the current law concerning the Suppression of Fraud and Deception in Commercial Transactions are imprisonment up to three years and fines of up to 10,000 dirhams (USD2,740), and under the Trademarks Law, the penalties are imprisonment of up to one year and a fine that is not less than 5,000 dirhams (USD1,370). In the new draft law the proposed penalties are imprisonment up to two years and fines that reaches up to 250,000 dirham (USD68,500) or both, which is in addition to the destruction of the counterfeit goods. The new draft law further provides for a higher fine that reaches up to 1 million dirhams (USD274,000) if the counterfeit products are in the nature of or related to pharmaceutical or food products.\r\n\r\nThe new draft law further provides for the closure of the violating entity in case of activities related to counterfeit pharmaceutical or food products and also in case of possessing counterfeit goods while knowing that it is counterfeit. If the violating entity is a department store, the draft law has provided for a mechanism to close only the section where the counterfeit goods are found or that is related to the counterfeit goods, as opposed to closing the whole store.\r\n\r\nIn the event that an offence is committed for a second time, the penalty would be the cancellation of the trade license of the establishment or doubling the penalty.\r\n\r\nDespite these high penalties, the draft law entitles the Minister of Economy to issue decisions allowing the re-exportation of counterfeit goods to the country of origin. The re-exportation of counterfeit goods is not a new phenomenon, as it is also allowed under the current law concerning Suppression of Fraud and Deceit.  However, re-exportation under the existing law is limited to food, agricultural, pharmaceutical and natural products only, while the new draft law may allow for the re-exportation of goods of any nature. The wider scope of the new draft law with respect to the possible re-exportation of goods appears to be a step backward in the fight against counterfeit trade and such re-exportation should have been limited to specific situations subject to very specific conditions. It is hoped that the legislature will set some limitations on and make such re-exportation specific to strict conditions in the implementing regulations that are to be issued.\r\n\r\nA further development in the new draft law is that it provides the authorities the power to request all information, documents and invoices related to counterfeit goods, and traders are obliged to comply with such requests. It is however, not clear to what extent brand owners will have the right to obtain relevant information from authorities.\r\n\r\nThe new draft law further provides for a mechanism for settlement with respect to breaches of the law, except when it is related to pharmaceutical and food products. A request for settlement must be made by the offender to the Sub-Committee. A settlement shall be on the basis of the payment of compensation to be determined by a Ministerial Decree to the relevant authority that has performed the inspection and seizure of counterfeit goods, provided that the amount payable in settlement shall not exceed the maximum penalty imposed by the new draft law. In case the offender rejects a settlement, the Sub-Committee shall transfer the matter to the Public Prosecutor for further prosecution. It is not clear however, whether brand owners will have any role to play in this settlement mechanism.\r\n\r\nThe new draft law proposes to increase the time period in which the seized goods must be released if the seizure done by the administrative authority was not confirmed by a Court order. According to the Current law, the seized goods shall be released after 15 days of the seizure. However, in terms of the new draft law the time period shall be 30 days after the seizure. If no court order is obtained and the seized goods are released, the new draft law does not provide for compensation for the owner of the goods, contrary to the current law which provides for compensation if a claim was wrongly made and the goods are released.\r\n\r\nThere has been a misconception that the new draft law will change the enforcement regime in the UAE.  However, a careful analysis of the new draft law proves that the new law will include the same principles of the existing law with a significant increase in the penalties provided for.\r\n\r\nThe new draft law is a positive enhancement of the existing enforcement framework in the UAE and should increase the effectiveness of enforcement mechanisms through deterrent penalties - which have been long awaited. After the new draft law is approved and come into force, implementing regulations should be issued which shall provide further explanation and details of the law.'),
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(86666, 4718, 'content_description', 'A new draft Anti-Commercial Fraud Law was endorsed in January 2013 by the Cabinet in the UAE. '),
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(86668, 4718, 'pageSummary', 'A new draft Anti-Commercial Fraud Law was endorsed in January 2013 by the Cabinet in the UAE.'),
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(86680, 4718, '_yoast_wpseo_metadesc', 'A new draft Anti-Commercial Fraud Law was endorsed in January 2013 by the Cabinet in the UAE.'),
(86681, 4719, 'content', 'May 2013\r\n\r\n<hr />\r\n\r\nIn a fund transfer, an originator instructs his/her financial institution to transfer a specified amount of money to a beneficiary either domestically or internationally. Typically, the most commonly used currency to transfer funds internationally is US dollars or Euros. In order to execute the remittance of the transfer, the originator’s financial institution transfers the funds through an intermediary (correspondence) if not the beneficiary bank. A transfer of funds in US dollars is executed through US financial institutions. The question that such transactions raise is that to what extent sanctions affect the liability of the originator’s domestic bank or financial institution? The below judgment involves a scenario and the approach adopted by Dubai Courts.\r\n\r\n<strong>Facts of the case</strong>\r\n\r\nThe Claimant (Originator), a UAE based company, instructed a UAE financial institution (the Respondent) to transfer the amount of USD 80,000 to the Beneficiary, an overseas company. This amount was the purchase price of goods the Claimant purchased from the Beneficiary Company. The Respondent initiated the fund transfer, however, the intermediary bank (Correspondent) appropriated the funds due to financial sanctions levied by the Office of Foreign Assets Control (OFAC).\r\n\r\nDue to the appropriation, the funds transferred were not delivered to the Beneficiary and in return the Beneficiary Company refrained from delivering the purchased goods. Consequently the Claimant filed for legal action before the Dubai Court of First Instance seeking a court order against the Respondent to reimburse the amount transferred. During the hearings before Dubai courts, the Respondent submitted an application to the court requesting the joining of the Correspondent “located in New York” to the case on the grounds that the funds transferred were attached by the Correspondent due to OFAC sanctions.\r\n\r\n<strong>Procedural History</strong>\r\n\r\nThe Court of First Instance issued a decision dismissing the case. The Claimant appealed before the Dubai Court of Appeal which was dismissed, because the losses suffered by the Claimant were not caused by the actions of the Respondent. The case was then appealed to the Dubai Court of Cassation.\r\n\r\n<strong>Court of Cassation</strong>\r\n\r\nBefore the Court of Cassation, the Claimant argued that the Appeal Court erred in rejecting the appeal due to the lack of the liability of the Respondent on the grounds that the loss suffered by the Claimant resulted by a third party.\r\n\r\nThe Claimant further argued that the Respondent was under a contractual obligation to ensure the receipt of the fund transfer and that the Respondent’s contractual obligation was to deliver the funds transferred from the Claimant to the Beneficiary.\r\n\r\nThe Claimant further noted that due to the appropriation of the funds by the Correspondent the Beneficiary did not deliver the goods purchased by the Claimant. Furthermore, the Correspondent was appointed by the Respondent as its agent to undertake its contractual obligations to complete the fund transfer. Therefore, the Respondent is liable for the actions of its agent (the Correspondent in such instance) especially since the Claimant paid the commission and costs of the fund transfer to the Respondent.\r\n\r\n<strong>The Court </strong>\r\n\r\nThere are several key and important points noted by the Dubai Court of Cassation.  The first is that three elements were identified to ascertain the liability of a financial institution when completing a fund transfer. The second is the grounds upon which a financial institution may refute such liability. The third is the standard of care expected by financial institutions when completing a fund transfer.\r\n\r\nThe first key point noted by the Dubai Court of Cassation is that three elements must be present in order for the Financial Institution to be liable: (i) error, (ii) damages/losses and (iii) a causal link between the error and the damages suffered.  Such liability is governed by clauses of the terms and conditions for transferring funds executed between the financial institution and their customers whether such liability is stated explicitly, implicitly or as per the custom adopted by financial institutions.\r\n\r\nFurthermore, financial institutions are liable for damages or losses caused to their customers even if such damages resulted from errors of agents, legal representatives, employees or an entity performing the obligations on behalf of the financial institution provided the presence of the aforementioned three elements.\r\n\r\nThe second important point noted by the Dubai Court of Cassation is that financial institutions may refute liability.  The court further held that, financial institutions may refute their liability by proving the fulfillment of its commitments or the lack of the causal link between the financial institution and the damage or loss sustained by its customer.\r\n\r\nLastly, the Dubai Court of Cassation noted that financial institutions are responsible to exercise extraordinary care in initiating and completing a fund transfer. The consideration of whether a financial institution exercised such extraordinary care is subject to the discretion of the court without supervisory review from the Court of Cassation.\r\n\r\nIn this instance, The Court of Appeals held that the Respondent had performed its obligation by transferring the funds, however, due to the fact that the transfer order issued by the Claimant included the name of a financial entity upon which financial sanctions were imposed, the funds were therefore attached by the Correspondent in accordance with the rules of OFAC. In light of this, the Court of Cassation concluded that the Respondent did fulfill its obligations set forth in the funds transfer and exercised the required level of extraordinary care. The funds transferred were attached by the Correspondent due to the mention of an entity upon which OFAC financial sanctions are imposed hence the error and consequently the liability are not attributed to the Respondent. Therefore, the Court of Cassation upheld the appealed judgment and rejected the Claimant’s petition.\r\n\r\n<strong>Practice note</strong>\r\n\r\nReading of the Articles of the UAE Commercial Code pertaining to fund transfers provides that banks and financial institutions are under the obligation to deliver the funds transferred to the Beneficiary and therefore liable if the end result was not achieved. However, in the judgment above, UAE Courts have reduced the liability of a financial institution in the event that a correspondent acts independently of the financial institution and appropriates funds in accordance with international sanctions.\r\n\r\nFor any queries in relation with economic sanctions, please contact Ibtissam Lassoued, Special Projects Department, at <a href=\"mailto:i.lassoued@tamimi.com\">i.lassoued@tamimi.com</a>\r\n<h3><strong> </strong></h3>'),
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(86687, 4719, 'pageSummary', 'Fund transfers for commercial and consumer transactions are widespread today. Nevertheless, fund transfers are influenced by international political and economical factors and considerations which may result in imposing sanctions against certain countries or entities that affect the transfer of funds across borders.'),
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(86707, 4719, '_yoast_wpseo_metadesc', 'Fund transfers for commercial and consumer transactions are widespread today. Nevertheless, fund transfers are influenced by international political and economical factors and considerations which may result in imposing sanctions against certain countries or entities that affect the transfer of funds across borders.'),
(86708, 4720, 'content', 'May 2013\r\n\r\n<hr />\r\n\r\nJurisdiction is an extremely important issue that should be taken into consideration:\r\n\r\na) prior to concluding any contract;\r\nb) at the conclusion of a contract; and\r\nc) whenever a dispute arises that requires recourse to the courts.\r\n\r\nAccording to the relevant articles of the UAE Constitution and the UAE Civil Procedure Law (the “CPL”), any legal action must be filed before the courts of the relevant Emirate having jurisdiction, failing which the court may dismiss the action on the grounds that it has no jurisdiction to hear the matter. This is because most jurisdictional issues are classified as Public Order matters which the courts should address sua sponte  even if the parties themselves do not address them.\r\n\r\nHowever, the failure of a practitioner (the “practitioner”) to determine the competent court to file a claim will result in the loss of time, effort and money and could negatively affect the practitioner’s prospects of success if the court dismisses the case on the grounds of lack of jurisdiction; such a situation will embarrass the practitioner as it would reflect his failure to fulfil his professional research obligations at an appropriately early stage (i.e. not sufficiently considering the available facts and law during the pre-suit stage).\r\n\r\nIn order to avoid such an undesired situation a practitioner should take into consideration the  correct interpretation of the court’s domestic jurisdiction of  section 5 stated below that we will shed light on  in this article,  particularly in terms of the common practice/understanding (the “Common Understanding”) and the extent to which it can be applied in light of the precedents issued from the Dubai Court of Cassation.\r\n\r\nSection 5 of article 31 of the CPL provides that:\r\n\r\n“In circumstances other than those stipulated in Article 32 and Articles 34 to 39, it may be agreed that a particular court will have competence to hear a dispute. In this event, competence lies with this court or the court in the jurisdiction of which the defendant has an address, place of residence or place or work”.\r\n\r\nIt is clear from this article that parties can agree to have their case adjudicated before a certain court that originally had no jurisdiction or was not locally competent  (hereinafter the “Selected Court”), except in the following circumstances:\r\n<ol>\r\n 	<li>Article 32: a) In actions in rem or actions for the recovery of a thing possessed by another<sup>,1</sup> the jurisdiction shall belong to the court in whose precinct the real estate or part thereof is located if such real estate is located in several court precincts; b) In actions quasi in rem<sup>2</sup>, the jurisdiction shall belong to the court in whose precinct the real estate or defendant’s domicile is located.</li>\r\n 	<li>Article 34: In cases related to estates and lodged before partition thereof by the estates or by some heirs against each other, the jurisdiction shall belong to the court in whose precinct the deceased’s last domicile is located;</li>\r\n 	<li>Article 35: a) In cases related to commercial bankruptcy, the jurisdiction shall belong to the court in whose precinct the bankrupt’s business is located. If he has several businesses, the jurisdiction shall belong to the court of the business which he has taken as head office of his commercial affairs; b) If the trader retires from the trade, the case shall be lodged before the court to which the defendant’s domicile belongs; c) Cases arising from proceedings of inspection shall be lodged before the court which has declared the bankruptcy.</li>\r\n 	<li>Article 36: The jurisdiction for disputes related to supplies, contracting, residential rents and wages of workers, craftsmen and labourers shall belong to the court of the defendant’s domicile or the court in whose precinct the relevant agreement was concluded or executed.</li>\r\n 	<li>Article 37: In disputes related to the claim of an insurance amount, the jurisdiction shall belong to the court in whose precinct the beneficiary is domiciled or the place of the insured property.</li>\r\n 	<li>Artilce 38: a) In cases requesting that temporary or summary proceedings be taken, the jurisdiction shall belong to the competent First Instance Court in whose precinct the defendant’s domicile is located, or to the court in whose precinct the proceedings are requested to be taken; b) in summary actions related to the execution of judgments and deeds, the jurisdiction shall be to the court in whose precinct the execution is effected.</li>\r\n 	<li>Article 39: The court looking into the principal action shall be competent to examine the incidental demands. However, a defendant in the case of a guarantee may invoke the lack of jurisdiction of the court if it is established that the principal action was merely filed with the aim of bringing him before a court other than the court having jurisdiction.</li>\r\n</ol>\r\nA quick reading of section 5 supports the idea that, in circumstances other than those stipulated in article 32 and articles 34-39 of the CPL, parties can agree to bring the competence to the selected court to adjudicate any dispute that might arise between them during the execution of their contract. In this event, competence lies with this selected court or the courts in the jurisdiction where the defendant has an address, place of residence or place or work.\r\n\r\nDue to the misinterpretation of section 5 of article 31 during the contracting stage, parties used to incorporate a clause in their contracts whereby they gave the Dubai Courts the jurisdiction to adjudicate disputes that might arise of or in connection to their contracts, even though the Dubai Courts had no original jurisdiction as a matter of law (de jure)  (the “Clause”).\r\n\r\nThe core question here is:\r\n\r\n<strong>Will the Dubai Courts recognise  the Clause and adjudicate the case?</strong>\r\n\r\nThe Dubai Court of Cassation has answered this question and put an end to the  confusion and the misinterpretation of section 5 of article 31.It laid down principles that totally contradict the Common Understanding, which can be summarized as follows:\r\n\r\nThe Dubai Courts represent a judicial system that is independent from the federal judicial system and other legal systems of the UAE. The Dubai Courts must abide by the limitations imposed on their jurisdiction and may not actively or passively transgress those limitations. They may not give up their jurisdiction or oust the jurisdiction of another national court. Such jurisdiction, being constitutionally conferred, is a rule of public policy in respect of which no agreement may be made to the contrary. Accordingly, it is not a matter of local jurisdiction to be decided only by the court that is part of the same judicial system and it has to be addressed by the court sua sponte for the purposes of determining whether or not it has jurisdiction to adjudicate the case. An agreement between the parties to apply the laws of the Emirate of Dubai does not by itself confer jurisdiction upon its courts.\r\n\r\n<strong>Index: Jurisdiction – Exclusive Jurisdiction </strong>\r\n\r\nPrinciple, 2010 Issue (Civil) set out in the decision that was handed down by the Dubai Court of Cassation on 14.03.10 in Property Appeal No. 58-2009\r\n\r\nFurthermore, when applying the above article, the Dubai Court of Cassation distinguish between the competence of the judicial institutions in the Emirate of Dubai and the Federal one, on the ground that the courts in the Emirate of Dubai are independent from the federal judicial systems; and hence section 5 of article 31 of the CPL shall not be applicable in terms of the jurisdiction whenever it brings the competence to the Dubai Courts from a federal court or vice-versa. According to the Court of Cassation, this matter is related to public policy that parties cannot contractually agree to depart from and shall not, in any case, be considered a question of local jurisdiction.\r\n\r\nIn line with the above, the Dubai Court of Cassation, in case 36/2007 and 39/2007 civil appeal held that:\r\n\r\n“it has been settled by this court that the courts in the Emirate of Dubai are independent from the federal judicial systems and the former shall not override their competence and shall not transgress it positively or negatively; consequently, the court shall not waive its competence and shall not take away the competence of another local court; As this type of judicial competence is related to public order and the court shall decide on it sua sponte in order to determine whether it has jurisdiction or not to adjudicate the case”.\r\n\r\n<strong>Conclusion:</strong>\r\n<ol>\r\n 	<li>The Dubai Court of Cassation has clarified in its principles that the courts in the Emirate of Dubai are independent from the federal judicial system; hence, section 5 of article 31 of the CPL does not apply and accordingly parties cannot agree in their contracts to bring the competence to the Dubai Courts when these are not originally competent courts as a matter of law (de jure) - or agree to take competence away from them in favour of other courts located in another Emirate - whenever the Dubai Courts are originally competent to adjudicate the case.</li>\r\n 	<li>The Dubai Court of Cassation has also clarified that this type of judicial competence is related to public order and the court shall decide on it sua sponte  in order to determine whether it has jurisdiction or not to adjudicate the case.</li>\r\n</ol>\r\n&nbsp;\r\n\r\n<address>Footnotes:</address>\r\n<ol>\r\n 	<li><address>i.e. action for a thing.</address></li>\r\n 	<li><address>Action related to a defendant’s interest in property.</address></li>\r\n</ol>'),
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