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Law Update March 2011 - Issue 238

The Law Firm of Choice for the Middle East

Medical DeviceRegistration

NasdaqDubai

Bankruptcyin Qatar

Qatar! 2022!

March 2011 - Issue 238March 2011 - Issue 238March 2011 - Issue 238March 2011 - Issue 238

COVER

THREE’S A CROWD

Iraq

Jordan

Kingdom of Saudi ArabiaQatar

United Arab Emirates

Iraq

Jordan

Kingdom of Saudi ArabiaQatar

United Arab Emirates

Kuwait

* Al Tamimi & Company International Ltd. Provides services in Kuwait through a joint venture with Yaqoub al Munayae. Yaqoub al Munayae is a registered and licensed lawyer under the laws and regulations of Kuwait.

The contents of Law Update are not intended to be a substitute for specific legal advice on individual matters. Reproduction of part or all of the content in any forms is prohibited other than for individual use only and may not be recopied and shared with a third part. The permission to recopy by an individual does not allow for incorporation of material in part or in whole in any work or publication, whether in hard copy, electronic, or any other form, unless specific mention is made to the source, “Law Update published by Al Tamimi & Company”, and written permission is granted from [email protected].

DUBAI - DIFC HEAD OFFICE 6th floor, Building 4 EastDubai International Financial CentreSheikh Zayed RoadPO Box 9275, Dubai, UAE Tel : +971 4 364 1641 Fax : +971 4 364 [email protected]

DUBAI INTERNET CITY Building No.5, G 08 PO Box: 500188 Dubai, UAE Tel: +971 4 391 2444 Fax: +971 4 391 [email protected]

DUBAI World TRADE CENTRE 9th floor, Sheikh Zayed Road PO Box: 9275 Dubai, UAE Tel: +971 4 331 7161 Fax: +971 4 331 3089 [email protected]

ABU DHABI Arab Tower, Suite 504 Hamdan Street PO Box 44046, Abu Dhabi, UAE Tel : +971 2 674 4535 Fax : +971 2 676 [email protected]

SHARJAH Al Reem Plaza 3rd floor, Suite 306, Khaled Lagoon PO Box 5099, Sharjah, UAE Tel : +971 6 572 7255 Fax : +971 6 572 [email protected]

AMMAN, JORDANPO Box 18055 Amman, Jordan Zip 11195Tel: +962 6 577 7415Fax: +962 6 577 [email protected]

DOHA, QATARAdv. Mohammed Al Marri in association with Al Tamimi & CompanySheikh Mohammed Bin Suhaim Tower3rd floor Ras Abou Aboud,PO Box 23443Doha, QatarTel: +9744 4572 777Fax: +9744 436 [email protected]

BAGHDAD, IRAQAl HarthiyaPO Box No: 10014, Code 12921 Baghdad, IraqTel: +962 6 577 7415Fax: +962 6 577 [email protected]

RIYADH, KSA 2nd floor, Sky Tower, (South Tower S.2.A).King Fahad Rd. Al Olaia Area PO Box 300400 Riyadh, KSA Tel: +966 1 4169 666 Fax: +966 1 4169 [email protected]

KUWAIT CITY, KUWAIT *Khaled Bnn Al Waleed Street, Sharq, Al Dhow Tower, 16th Floor, PO Box 29551, Safat 13156Kuwait City, Kuwait Tel : +965 2 246 2253Fax : +965 2 296 6424 [email protected]

Al Tamimi & Company OfficesThe Law Firm of Choice for the Middle East

* Al Tamimi & Company International Ltd. provides services in Kuwait through a joint venture with Yaqoub al Munayae. Yaqoub al Munayae is a registered and licensed lawyer under the laws and regulations of Kuwait.

Law Update 1

In Focus

4 Arbitration

5 Litigation

Dispute Resolution

6 Grounds for Setting Aside Arbitration Awards

9 A Brocker’s Capacity

12 Judgment of the Abu Dhabi Federal Civil Court of Appeal

Arbitration

15 Third party intervention and the consolidation of arbitral proceedings”

Property

18 Dubai’s ‘Rent Cap Decree’ for 2011

20 The Dubai Land Department & RERA: 2010 in Review and the Agenda for 2011

Intellectual Property & IT

24 Domain name governance

26 Medical device registration in the UAE

29 Shape Trademark and Industrial Design Protections in GCC

31 Claiming priority from invalid patent applications in the UAE

32 Second Level Domain Name 2LD(.sa) Registration Now Available in Saudi Arabia

News & Events

34 Fraud, Asset Tracing & Recovery in the Gulf

34 2011 – In-House Congress Dubai

35 Litigation against carriers in the UAE: Etihad Airways

35 Al Tamimi & Company – proud sponsors of the Dubai Corporate Counsel Group

36 1st Transport & Maritime Law Conference in Abu Dhabi

36 Cargo Claims in the UAE

Maritime, Aviation & Insurance

37 Moving Forward

Corporate Commercial

38 Doing Business in Techno Park

40 Nasdaq Dubai

Banking & Finance

43 Abu Dhabi Court: Choice of law may not be a choice

In Focus

46 Qatar

Qatar

48 Qatar! 2022!

51 Bankruptcy in Qatar and its impact on security in relation to foreign assets

54 Repo Transactions under the Qatari Law 56 Tender process for government projects in Qatar

60 Is The Electronic Customer Always Right?

Saudi Arabia

62 The Proposed KSA Companies Law

Legislative Update

64 Of cial Gazette

CONTENTS9 18 48

LU 238 March 2011_Revised.indd 1 3/2/2011 8:59:55 PM

Is The

2 Law Update

Our innovative approach and superior level of expertise has been recognized by numerous industry awards, most recently:

• Banking & Finance Law Firm of the Year 2010, World Finance Magazine

• Corporate & Commercial Law Firm of the Year 2010, World Finance Magazine

• Maritime Law Firm of the Year 2010, World Finance Magazine

• M&A Law Firm of the Year 2010 - Qatar, Corporate International Magazine

• Real Estate Law Firm of the Year 2010 - UAE, Corporate International Magazine

• Trademark Law Firm of the Year 2010 - Saudi Arabia, Corporate International Magazine

Our Accolades


Law Update 3

Editor: Angela Maglieri

Graphic Design:Size 34, Creative Designs and Events

For further information on Law Update please contact: [email protected]

Welcome to the March issue of Law Update.

This month, I am pleased to present the Arbitration and Litigation teams to you led by Paul Turner and Hassan Arab respectively. As you may know, Al Tamimi boasts the largest Dispute Resolution team in the region and our success is supported with strong rankings in leading international independent directories.

I’m also pleased to present to you the team from our Qatar of ce. Qatar, as we know, has been a place of interest for many businesses since they won the rights to host the 2022 World Cup and this month we look a number of legal issues including the tender process for Government projects in this jurisdiction.

Continuing the theme of doing business, we have outlined the best way to do business in Techno Park – one of the many freezones established in the UAE. You will read more about the bene ts associated with operating both in this freezone and the mainland.

We also took some time this month to interview Emad Eldin Farouq, the senior legal counsel at the Dubai Land Department. The article wraps up 2010 at the DLD and will shed some light on their agenda for 2011, which I know, many of our clients are keen to hear more about.

As always, I hope you nd the information presented of interest and should you have any feedback or comments, please do get in touch.

Husam HouraniManaging Partner

IN THIS ISSUE


4 Law Update

In Focus

Al Tamimi & Company has built a strong arbitration practice over the years with Senior Partner and Founder, Essam Al Tamimi, being a major advocate for arbitration as a means of efficient and effective dispute resolution for clients.

Adding to this strength is Paul Turner, who has joined the firm as Regional Head of Arbitration.

Paul joined in January 2011 bringing with him over 30 years experience in many areas of international trade and global energy. Paul has been involved in cases before the UK High Court and Court of Appeal, as well as ICC International Court of Arbitration proceedings in Paris, Moscow and Geneva, and arbitrations before the LCIA; the LMAA; the LME; and a range of international commodities tribunals.

As a specialist in major cross border disputes across the Middle East, Paul has particular experience in Iraq, Iran and Libya.

With a solid team of international lawyers boasting considerable experience in arbitrating public and private law disputes in both English and Arabic, Al Tamimi team members has extensive experience in all types of arbitration work, including ICSID and UNCITRAL arbitrations and arbitrations before the DIAC; the DIFC-LCIA; the Abu Dhabi Commercial Conciliation & Arbitration Center; the ICC; the LCIA; and the GCC Commercial Arbitration Centre in Bahrain.

We have worked on many diverse cases including:

• Joint venture problems and company/corporate related issues

• Sale of goods disputes, including disputes over crude oil, refined products, and metals/ minerals and the world’s international food stuffs; issues arising out of international trade generally

• Construction disputes, including claims arising out of both the employer-main contractor relationship as well as sub-contractor disputes

• Disputes regarding the sale, purchase and assignment of property and infrastructure

• The enforcement of domestic and foreign awards in the Middle East

For more information about how we can help you, please contact Paul Turner by email [email protected].

IN FOCUS – ARBITRATION

Emma Sandlant From left to right: Paul Turner, Fiona Campbell, Essam Al Tamimi, Robert Lewsley & Claire Clutterham

Paul TurnerRegional Head of ArbitrationP: + 971 4 364 1669E: [email protected]


Law Update 5 Law Update 5

Resolving disputes is a vital component of corporate risk management and strategy. The speed and force of commercial globalization and the unprecedented expansion and growth of the Middle East market is resulting in increasing numbers of domestic and cross-border disputes, which require high quality, strategic and coordinated advice and expertise.

Al Tamimi & Company boasts the largest, strongest and broadest dispute resolution practice in the Middle East. Our team comprises dispute resolution lawyers based in Dubai, Abu Dhabi, Sharjah, Qatar, Saudi Arabia, Jordan, Kuwait and Iraq with experience resolving disputes in the UAE courts of each of the Emirates, as well as the Dubai International Financial Centre Courts that is second to none.

Led by Hassan Arab who is one of the leading and most respected dispute resolution practitioners in the region,

our team of highly qualified and experienced practitioners from the Middle East, Europe, Australia, Africa and North America brings a breadth and depth of legal expertise and experience that is unequalled in the UAE and Gulf. Our lawyers include a team of UAE nationals with rights of audience to appear before all Courts of law in the UAE as well as a number of solicitors and barristers qualified in other jurisdictions registered to appear before the DIFC Courts.

The teams’ success is recognised by the leading independent directories, Legal 500 and Chambers, who place the UAE Dispute Resolution practice in Tier 1. Chambers Global in 2010 stated “This firm has a practically unmatched dispute resolution capacity in the Middle East” whilst Legal 500 said “Al Tamimi & Company has a great reputation for local court work and a number of really good practitioners.”Our clients rely on our global

perspective and our in-depth knowledge and understanding of local and regional laws. We advise and represent clients involved in local, DIFC, regional and international commercial disputes. Our familiarity with federal and local government, federal and local laws, the laws and regulations of the Free Zones, and with the many Courts and tribunals operating across the UAE, enables our clients to conduct their affairs with increased certainty and efficiency.

In addition to the UAE litigation practice, Al Tamimi has one of the largest and leading DIFC Courts practice groups in the UAE led by Rita Jaballah. Al Tamimi was actively involved in the establishment of the DIFC Courts and we sit on the DIFC Courts’ Users’ Committee and DIFC Court Rules Sub-Committee. To date we have been involved in some of the leading DIFC Court of First Instance and the DIFC Court of Appeal cases to come before the DIFC Courts.

What distinguishes Al Tamimi & Company’s Dispute Resolution practice from others, though, is that, as part of the local community, we understand the local culture. Emphasis on local knowledge and abilities has been and will continue to be a key characteristic of the practice. Having international skills and talent while remaining a local firm is one of the pillars of our success.

For more information please contact:

IN FOCUS - LITIGATION

Hassan ArabHead of UAE LitigationP: +971 4 364 1723E: [email protected]

Rita JaballahHead of DIFC LitigationP: +971 4 364 1526E: [email protected]

From left to right: Rita Jaballah, Ahmed Allouz, Zafer Oghli, Hassan Arab, Khalid Al Hamrani, Jassim Babaish & Hussein Eisa Shiri

n


6 Law Update

Claim and facts of the caseA Commercial Action was filed before the Dubai Court by a Subcontractor (“Party A”) against (“Parties B and C” together the “Parties”). Party A requested the Court to ratify an arbitral award issued on 18 June 2008 in which the Parties were ordered to jointly and severally pay AED843,912 plus 9% legal interest from 12 July 2003 until full payment. Party A was also awarded its legal costs in the amount of AED30,000.

Party A submitted that it had concluded a Sub Contracting Agreement (“The Agreement”) with the Parties. The Agreement contained an arbitration clause. Party A’s obligations under the Agreement were to execute carpentry work, being the supply and installation of wooden doors and cupboards in a residential complex in Sharjah. Party A pleaded it carried out all the works as stipulated in the Agreement but that the Parties refused to make the final installment payment, amounting to AED843,912. As stated above, Party A received an award to this effect in its favour.

Consequently, a representative of the Parties filed an interlocutory application before the Court, requesting the Court set aside the arbitral award. A number of grounds were put forward in support of the application:

• The award was issued without terms of reference and/or based upon invalid terms of reference. The basis for this argument was the suggestion that the minutes of arbitration hearings neglected to state that parties neither prepared nor signed terms of reference.

• The arbitrator exceeded the time prescribed in the terms of reference (being 18 January 2008) to issue the award, and further, that the invalid terms of reference did not empower the arbitrator to extend the prescribed time. The Parties noted that both participants to the proceedings had refused to extend the time within which the proceedings were to be conducted. The Parties submitted that any such extensions should have been requested by the arbitrator prior to the expiration of the prescribed time

(in this case the Parties alleged it was requested following the expiration of the time).

• The legal representative of the Parties during the arbitral hearings had not been properly authorized by the Parties to attend and make submissions at arbitral hearings. The Parties further argued their legal representative had not been duly authorised to sign the terms of reference or to extend the deadline as prescribed in the terms of reference;

• The arbitrator did not ensure the Parties had been adequately served.The arbitrator received his terms of reference from the execution judge and not from the Court which appointed him. The Parties argued that Article 216(b) of the UAE Civil Procedure Law precluded the execution judge from addressing the arbitrator.

• The arbitrator directed the Parties to pay the arbitration fees before commencing arbitration proceedings and then again before identifying the loosing party, which the Parties

Dispute Resolution

Law UpdateJudgment

Each month Law Update highlights recent signi cant judgments issued from the local courts in our Law Update Judgments feature. Al Tamimi & Company’s lawyers translate, simplify and comment on these judgments providing our Law Update readers with an overview which they should nd useful and insightful in terms of understanding the workings and developments of the local courts.

If you have any queries relating to the Law Update Judgments please contact [email protected]

Law UpdateJudgment

Suzanne AbdallahDispute [email protected]

GROUNDS FOR SETTING ASIDE ARBITRATION AWARDS

Hassan Arab, PartnerDispute [email protected]


Law Update 7

argued was in contravention of Article 218 of the Civil Procedure Law.

• The arbitrator did not deposit his award as prescribed in Article 213 of the Civil Procedure Law but deposited it with the execution judge without providing a copy to both parties within the stipulated time limit.

Court of First InstanceThe Court of First Instance dismissed Party A’s plea that the award be enforced and ruled in favor of the

Parties. Consequently Party A appealed to the Court of Appeal. Although the award was set aside, the Parties also appealed on the basis the Court of First Instance had failed to adequately address the Parties’ reasons for arguing that the award be set aside.

Court of AppealThe Court of Appeal overturned the Court of First Instance’s decision and ratified the arbitral award. Furthermore, the Court of Appeal dismissed the Parties’ interlocutory claim. Subsequently, the Parties appealed to the Court of Cassation.

Court of CassationThe Parties argued that the Court of Appeal had erred in reversing the decision of the Court of First Instance. The Parties put forward a number of propositions in support of this plea:

With respect to the Parties’ first

argument, the Court of Cassation repeated

a long established principle that the most essential element of an

arbitration award is the signature, on the

award, of the arbitrators who have issued

the award.

If the reasoning and grounds for the ultimate

decision and the ultimate decision itself appear

on separate pages, then all pages of the award

should be signed by all arbitrators.


8 Law Update

Dispute Resolution

• The Parties relied on to Article 212 (5) of the Civil Procedure Law in arguing that one of the essential requirements of an arbitration award is the signature of the arbitrator who has issued the award. The Parties noted that the arbitrator only signed the last page of the arbitral award (which contained the decision) whereas all the other pages containing the grounds for the ultimate decision were not signed;

• The proceedings were not governed by valid terms of reference (or indeed no terms of reference). The Parties argued that the terms of reference had only been signed by Party A and not the Parties’ representatives.

• The Parties again put forward the arguments that the proceedings had expired, and the proposition that their legal representative had not been properly authorised to represent them. With respect to the Parties’ first argument, the Court of Cassation repeated a long established principle that the most essential element of an arbitration award is the signature, on the award, of the arbitrators who have issued the award. The Court further explained that from a legal point of

view; the signature is the only evidence of the existence of the award, and must refer to both the ultimate decision and the grounds reached in support of that ultimate decision. Essentially, a failure by the arbitrator to sign each page of the award would render that award invalid.

The Court of Cassation found one exception to this crucial and important rule. Where the grounds or reasoning for the ultimate decision are continued on the same page as the relief ultimately ordered, and the page containing the ultimate relief is signed, that signature shall be deemed to cover the reasoning for the granting of the relief.

If the reasoning and grounds for the ultimate decision and the ultimate decision itself appear on separate pages, then all pages of the award should be signed by all arbitrators. Failing this, such award shall be invalid.

In this case, the final page of the award, which contained the ultimate decision, also contained part of the reasoning for the ultimate decision. The final page was signed; therefore the signature was deemed to cover both the grounds for the ultimate decision and the ultimate decision itself. Importantly, the Court of Cassation ruled the format of the award complied with Article 212.

The Parties’ second argument was dismissed. The Court of Cassation determined that an arbitration agreement is capable of either being incorporated as a clause (“arbitration clause”) in the contract between parties or as a separate independent agreement in the course of a dispute between both parties (this is not to be confused, however, with the doctrine of separability which prescribes that an arbitration clause in a contract is to be treated as separate from that main contract). Importantly, the

Court of Cassation held that when the arbitration agreement is incorporated as a clause in the contract it exempts the participants from drafting a separate independent agreement or terms of reference in order to validate the procedure.

In this case, the Court of Cassation found that because the Court of First Instance had appointed the arbitrator on the basis that the Agreement contained an arbitration clause, there was no need to enter into separate terms of reference.

From a further procedural standpoint, the Court of Cassation held that there

was no provision in the law requiring the arbitrator to document, in the minutes of the arbitration hearings, that he had submitted terms of reference to the parties for their signature.

The Parties’ third and final argument was also dismissed. The Court of Cassation, with reference to Article 210 of the Civil Procedure Code, held as follows:

• An agreement on a specific timeframe for the arbitrator to render his award would not prevent a later agreement explicitly or implicitly, extending that timeframe for one or more additional periods, or to authorise the arbitrator to determine the extension. The court may, at the request of the arbitrator or any of the parties, extend that date for the duration of time it deems appropriate for the settlement of the dispute.

• As such an extension of the time for arbitration, whether pursuant to the agreement of the parties or authorisation of the arbitrators or order of the court, begins to run after completion of the previous period and not separately.

• The arbitration proceedings shall be deemed to continue (i.e. without expiration) if the parties continue to appear, and neither party expressly pleads that the arbitration proceedings have lapsed, or if the arbitrator requests an extension from the Court before the expiry of the time limit for arbitration (the proceedings will not be held to have expired even if the Court agrees to the extension only after the arbitration time limit has expired – the crucial date is the date the request is made).

The Court found that the arbitrator had requested an extension from the Court within the 6 month period of the proceedings. In this regard, the Parties’ time bar argument was dismissed.

The Court of Cassation held that when the arbitration agreement is incorporated as a clause in

the contract it exempts the participants from drafting a separate independent agreement or terms of

reference in order to validate the procedure.


Law Update 9

Law UpdateJudgment

ClaimThe Claimant, an individual, filed an action against a local broker (the First Defendant) and a Developer (the Second Defendant) (collectively referred to as “the Defendants”). The Claimant requested the Court to order the Defendants to jointly pay the amount of AED 165,710 plus 12% interest, calculated from the date the legal action was initiated until full payment. Facts of the ClaimOn 30 January 2008 the Claimant concluded a booking form with the Second Defendant, which related to the reservation of a unit in a certain project. The price of the unit was AED 828,500 (the total amount). The Claimant averred that he made three installment payments which

amounted to AED 165,710, to the First Defendant. The Claimant contended that First Defendant provided signed receipts evidencing its receipt of the payments. The Claimant contended that after signing the contract applicable to the unit, the First Defendant signed an exhibit to the contract in its capacity as “seller” and requested the Claimant to deposit the installments in the First Defendant’s bank account.

Finally, the Claimant contended the Second Defendant failed to start construction of the project and failed to register Claimant’s unit in the Interim Real Estate Register (IRER). The Claimant contended this was a clear violation of the contract, and as a result it should be considered void.

Court of First InstanceThe Court of First Instance ruled in favor of the Claimant and terminated the contract. In addition, the court ordered both Defendants to pay the amount of AED 165,710 plus 12% interest (calculated from the date of the legal action). The Second Defendant appealed the decision to the Court of Appeal.

Court of AppealThe Court of Appeal amended the decision handed down by the Court of First Instance and directed both Defendants to pay jointly the amount of AED 165,710 to the Claimant, without interest. The First Defendant appealed to the Court of Cassation.

Court of CassationBefore the Court of Cassation,

A BROKER’S CAPACITYSuzanne AbdallahDispute [email protected]

The Claimant contended the Second Defendant failed to start construction of the project and failed to register Claimant’s unit

in the Interim Real Estate Register.


10 Law Update

Dispute Resolution

the First Defendant argued that the Court of Appeal had erred in its decision, as it failed to rely on a fundamental defense concerning the First Defendant’s purported lack of capacity. The First Defendant contended that the contract had been concluded between the Claimant and the Second Defendant only, and it was not binding on the First Defendant. Further, the First Defendant argued, that in the brokerage contract concluded with the Second Defendant, he had undertaken only to source a third party (the Claimant) to buy a unit in the project, and that his mission was limited to inviting the parties to negotiate the terms and conditions of the contract. The First Defendant further suggested his role in the transaction concluded with the execution of the contract, and he should not be held liable thereafter.

The Court of Cassation overturned the lower Court’s decision. The Court held that the First Defendant’s ambit, as a real estate broker, was, limited to sourcing potential brokers without him being liable to the parties during the contract execution stage. Essentially, the Court of Cassation concluded that the First Defendant should be considered as a broker only, and it lacked capacity with respect to the execution of the contract.

With respect to the Second Defendant, the Court of Cassation found it had failed both to commence construction work for the project and to register the Claimant’s unit in the interim register. The Court of Cassation found this meant the Second Defendant had failed to adhere to its contractual obligations. The Court of Cassation also determined that the lower Courts erred in considering the First Defendant as a party to the action. This was notwithstanding the fact the First Defendant had received payment from the Claimant – the Court of Cassation held this did not alter the First Defendant’s capacity as broker.

The decision of the lower Court, which ordered the First and Second Defendants to pay the Claimant jointly, was overturned. The First Defendant was held not to be liable to the Claimant due to his lack of capacity.

The Court of Cassation concluded

that the First Defendant should be considered as a broker only, and

it lacked capacity with respect to the execution

of the contract.


12 Law Update

The Respondent filed a case in the Abu Dhabi Federal Court in which it sought an order that the Appellant be directed to appoint an arbitrator. The Respondent also sought confirmation of an arbitral award.

The facts of the case are that the Appellant had leased a plot of land from the Respondent, but did not use the land in the manner agreed upon in the Contract. The Appellant’s purported misuse of the land had ruined it. Owing to an arbitration clause in the contract, the Respondent asked Appellant to appoint an arbitrator in accordance with the contract to determine the damage the Appellant had purportedly caused to the land, along with any monetary amount due as compensation. In view of the Appellant’s failure to appoint an arbitrator the Respondent applied to Court

The Abu Dhabi Federal Court of First Instance appointed three arbitrators from the Ministry of Justice roll, who, following the conduct of arbitration proceedings, ordered the Appellant to pay AED 1,708,360 to the Respondent. All other claims were dismissed.

The Respondent sought enforcement of the arbitral award. The Appellant filed a cross-action seeking:

• an order requiring the Respondent to pay the sum of AED 200,000 plus interest to the Appellant; and

• an order setting aside the arbitral award.

On 23 February 2010, the Abu Dhabi Federal Court of First Instance declared itself to be without jurisdiction to hear the matter and referred it to the local Abu Dhabi Court of First Instance.

Both parties appealed this decision. On 25 February 2010 the Abu Dhabi Federal Court of Appeal held that the Abu Dhabi Federal Court of First Instance had jurisdiction in the matter, which was referred back to that Court again. The Appellant appealed this decision to the Federal Supreme Court.

Article 151 of the Civil Procedure Code, confirms that decisions conferring

jurisdiction on a court that did not have original jurisdiction, are among the types of decisions that are excluded from the general rule. The general rule being, that decisions made during the course of proceedings, which do not ultimately end the dispute, can be reviewed only after a final decision concluding dispute in its entirety has been issued.

Decision 185, issued by the Head of the Abu Dhabi Judicial Department on 19 August 2007, prescribed that local courts in Abu Dhabi are a judicial authority independent from the Federal judicial authority. Therefore, the lower Court’s decision to confer jurisdiction on the Abu Dhabi Federal Court (thus excluding the local courts) was held to be a decision capable of direct appeal.

The Appellant’s sole point of appeal was the lower Court had

Suzanne AbdallahDispute Resolution [email protected]

Hassan Arab, PartnerDispute Resolution [email protected]

Law UpdateJudgment

JUDGMENT OF THE ABU DHABI FEDERAL CIVIL COURT OF APPEAL

Dispute Resolution

The allocation of competence in court cases is an issue of jurisdiction, related to public policy and which precludes individual parties from agreeing to

the contrary.

12 Law Update

Case No. 325 / 2010


Law Update 13

contradicted the law by ruling that the Abu Dhabi Federal Court of First Instance had jurisdiction to determine the enforcement application. The Appellant argued that:

• as the arbitration had been conducted out of court, the Respondent had to file a primary action to enforce the award; and

• that jurisdiction to hear such an action belonged to the local Abu Dhabi Court of First Instance.

The Federal Supreme Court has held on a number of occasions that the Emirate of Abu Dhabi has retained judicial authority over its local courts. Therefore, the allocation of competence in court cases is an issue of jurisdiction, related to public policy and which precludes individual parties from agreeing to the contrary.

The dispute in question revolved around determining which court has jurisdiction to entertain the request to enforce an arbitral award.

The Federal Supreme Court referred to Article 204 of the Civil Procedure

Law:204: “If a dispute arises and the parties have not agreed on the arbitrators, or if one or more of the agreed arbitrators refrains from acting, resigns, or is discharged or removed or if an impediment to him so acting arises, and there is nothing agreed between the parties in this regard, then at the request of any of the parties the Court originally competent to hear the dispute shall appoint whatever arbitrators are required by normal litigation procedures.”

Hence, an award made by an arbitrator appointed by the Court, either appointed in a dispute before the Court or appointed at the request of one of the parties is classified as

a court administered arbitration, to which the above rules would apply. In other words, the Court can hear the application for enforcement without a new action having to be filed. New actions must be filed when enforcement of awards issued in an out of court arbitration is sought.

In the subject case, the record confirmed that the Abu Dhabi Federal Court of First Instance had appointed an arbitrator to resolve the dispute in question, and that the arbitrator had then handed down his award. Accordingly, the arbitration was court administered. This meant that the Abu Dhabi Federal Court of First Instance was competent to hear the enforcement action, as long as it was filed prior to the taking of effect on 1 September 2007 of Decision 185.

It was ultimately determined that the lower Court had correctly applied the law. Accordingly, the Appellant’s appeal was dismissed with AED 2,000 legal fees.

The Court can hear the application

for enforcement without a new action having to

be filed.

Law Update 13



Arbitration

Arbitration is a product of contract: parties agree in writing that any dispute arising from an agreement will, instead of being heard in a public court, be referred to an arbitral tribunal comprising of one or three arbitrators who will hear the matter and issue a final and binding award. As such it is a process firmly grounded in the consent of the parties.

However it is often the case that third parties, who are not signatories to the contract, either have an interest in the dispute and its resolution, or wish to bring legal action themselves arising out of the same facts. In such circumstances, it would be more efficient to have the third party’s claim heard at the same time. Similarly, there are occasions where a number of arbitrations have commenced which involve similar parties and issues, and it may be considered convenient to consolidate the claims into one action. This would save costs and avoid the possibility of conflicting awards being issued.

This article examines how a third party not privy to a contract may nonetheless become a party to an arbitration arising from it. The article also considers under what circumstances it may be possible to consolidate separate arbitral proceedings into one.

Rules governing arbitrationWhen considering what is or is not possible in an arbitration, it must be remembered that arbitrations are governed by at least two sets of rules:

• The law of the state in which the arbitration is being held (the arbitral “seat” or “place” of arbitration).

• The rules of the arbitral institution that is administering the arbitration (or where it is an ad hoc arbitration, the rules that the parties have agreed upon).

A review of all the different state laws on arbitration, and of all the different institutional rules, is beyond the scope of this article, which instead will focus on UAE law and the rules of the most prominent arbitral institutions used

in the UAE (the Dubai International Arbitration Centre; the Abu Dhabi Commercial Conciliation & Arbitration Centre; the DIFC-LCIA; and the ICC).

Where there is consentOne of the benefits of arbitration is that it is highly flexible, and if all the parties consent then almost anything is possible. So if all the parties, including the third party, agree that the third party should be joined, then the tribunal will usually allow this unless to do so would compromise the arbitration in someway. Similarly, if all the parties to a number of arbitrations wish to consolidate them, then this can be done.

Issues can, however, arise. For example, one of the key benefits of arbitration is that the parties choose who will be the arbitrators forming the tribunal. When a third party is joined, or if cases are consolidated, this will usually occur after the tribunal has been appointed, meaning that if these new parties wish to be involved they will have to accept being subject to the will of a tribunal they have not chosen. Although the parties could agree to abandon the existing arbitration and reconstitute an arbitral tribunal with the input of the new parties, this would result in delay and wasted expense.

Robert Karrar-Lewsley, Senior [email protected]

One of the benefits of arbitration

is that it is highly flexible, and if all the parties consent then

almost anything is possible.

THREE’S A CROWDThird Party Intervention and the Consolidation of Arbitral Proceedings


16 Law Update

Arbitration

With regards to consolidation, if many cases are joined then this can result in a slower, more complicated, and less efficient arbitral process. There may also be issues if the different agreements contain arbitral clauses that are inconsistent (i.e. which call for different laws to be applied to the dispute).

However, provided these procedural matters can be properly handled, then the joining of third parties and the consolidating of cases can be an effective tool in enabling a number of parties to resolve all the issues between them by the use of one set of arbitral proceedings.

Where there is no consentIn keeping with the fact that arbitration is grounded in the consent of the contracting parties, if all the parties involved do not consent then it is generally not possible to join a third party or to consolidate cases, no matter how powerful or compelling the reasons for doing so may be.

In the event a tribunal imposes such measures without the consent of all the parties, this may be a ground for having the award annulled. For example, when enforcement is sought abroad under the New York Convention of 1958 (an international treaty signed by 142 states (including the UAE) that governs how signatory states are to enforce foreign arbitral awards), one ground for refusing enforcement is if “the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties” (Art.V(I)(d)).

However if the law of the state in which the arbitration takes place permits the local court or the arbitral tribunal to consolidate cases or include third parties against the wishes of the parties, then it may be argued that by choosing to have the arbitration in that state the parties have consented to be subject to such measures. Similarly, if the rules of the arbitral institution allow for such steps to be taken, then again the parties are likely to be

deemed to have consented to them by virtue of choosing that institution. It is therefore important that parties consider carefully before choosing the seat of the arbitration and the institution that will be administering it.

National lawsMany national laws do not address the issue of third parties and the consolidation of cases. This is usually because they have been based on the model law created by UNCITRAL (the United Nations Commission on

International Trade Law), which does not address these issues. Those national laws that do address these matters usually only allow them to occur on the condition that all the parties involved consent (as is the case under Dutch, Belgium, and Iranian law). Hong Kong is unusual in that it is possible in certain situations for the courts to order separate arbitrations to be consolidated against the wishes of the parties involved.

The UAE does not yet have a separate arbitration law, though one is currently being prepared. The present law is found in articles 203 – 218 of the Civil Procedure Law (Federal Law No.11 of 1992), but it does not address the issues of third parties and the consolidation of cases. It remains to be seen if the new law will change this,

though a preliminary draft circulated in 2010 suggests that it will not.

InstitutionsMost arbitrations are run through an arbitral institution, whose role is to provide administrative support to the parties and the Tribunal. Each institution has its own set of rules that the parties agree to be subject to. The rules of many institutions (such as the Dubai International Arbitration Centre; the Abu Dhabi Commercial Conciliation & Arbitration Centre; and the ICC) do not explicitly address the issues of third party intervention and the consolidation of cases, though they often have provisions addressing how tribunals are to be formed where there are multiple parties (DIAC Rules Art.11; ICC Rules Art.10), and allowing for the consolidation of cases between the same parties (ICC Rules Art.4(6)).

The DIFC-LCIA has perhaps the most progressive rules of any arbitral institution in the region. Under its rules (which are based on those of its parent institution, the London Court of International Arbitration (LCIA)), the Tribunal has the power to join third parties even if one of the parties does not consent, provided the third party wishes to be joined and one of the parties to the arbitration makes the application (Art.22(h)). This can often come as a surprise to the non-consenting party, who may object to the inclusion of the third party for legitimate reasons such as a desire to keep confidential information from the third party.

SolutionsIf it is not possible to consolidate arbitrations or include a third party, then there is the unfortunate prospect of multiple arbitrations having to be conducted. This is expensive, time consuming, and may result in inconsistent awards.

There are however some methods which can be deployed to alleviate these problems. For example, the same tribunal can be appointed in both cases, thereby avoiding the prospect of inconsistent awards.

The joining of third parties and the

consolidating of cases can be an effective tool in enabling a number of

parties to resolve all the issues between them by the use of one set of arbitral

proceedings.



The tribunal can also order that the evidence in one arbitration (including a transcript of the oral evidence) be made available in the other arbitration, subject to issues of confidentiality.

The problem of having multiple arbitrations can also be avoided before any disputes arise. If a project involves multiple parties with interlinking responsibilities, then the parties should consider drafting their contracts so that they reference each other and explicitly allow for

the consolidation of arbitrations or for the joining of third parties in the appropriate circumstances.

ConclusionWe have seen that although the general position is that it is not possible to involve third parties or consolidate arbitrations against the will of the parties, there are exceptions to this and each case needs to be considered in light of the law of the seat of the arbitration and the rules of the arbitral institution that is administering it.

It can be said to be a weakness of arbitration generally that, unlike court litigation, there is no central authority with the power to join cases and involve third parties so as to avoid the waste of having multiple hearings regarding the same issues. However to have it otherwise would deprive arbitration of its most fundamental and attractive aspect – the freedom it allows contracting parties in deciding how their dispute is to be resolved, no matter how the parties choose to exercise that freedom.

The UAE does not yet have a separate arbitration law, though one is currently being

prepared.


18 Law Update

Property

The 2011 Decree defines the maximum rent increase for properties leased in the Emirate of Dubai during 2011 and is applicable to all types of property.

In each of the last four years, rent cap decrees have been issued to control rent increases in the Emirate of Dubai to ensure stability in the rental market and to encourage investment. The decrees are:

Decree No. 42 of 2006Decree No. 27 of 2007Decree No. 1 of 2009Decree No. 62 of 2009

The 2011 Decree has left the rent cap parameters unchanged from 2009 and 2010. Specifically, the 2011 Decree provides that there should not be any rent increase if the rent for the property is up to 25% below the average similar rent. For rents that are 26% or less than average similar rent, the 2011 Decree allows for a specific percentage of rent increase of between 5% and 20% depending on the difference between the current rent for the property and average similar rent.

The 2011 Decree refers to the “Rent Index of the Emirate of Dubai” approved by RERA as the mechanism to determine ‘similar rent’.

Our unofficial English translation of the 2011 Decree follows:

Mohammed Kawasmi, Senior [email protected]

DUBAI’S ‘RENT CAP DECREE’ FOR 2011

H.H. Sheikh Mohammed Bin Rashid Al Maktoum, Ruler of Dubai, issued Decree No. 2 of 2011 Regarding Rentals in the Emirate of Dubai on 10 January 2011 (the “2011 Decree”).

2011 Decree provides that there should not be any rent increase if the rent for the property is up

to 25% below the average similar rent.



Decree No. 2 of 2011Regarding Rentals in the Emirate of Dubai

We, Mohammed Bin Rashid Al Maktoum, Ruler of Dubai

After perusal of Law No. 26 of 2007 regulating the Relationship between Landlords and Tenants in the Emirate of Dubai as amended,

And Law No. 16 of 2007 establishing the Real Estate Regulatory Agency,

And Decree No. 2 of 1993 establishing, the Special Judicial Committee for Settlement of Disputes between Landlords and Tenants as amended,

And Decree No. 42 of 2006 regarding Rentals in the Emirate of Dubai,



And Decree No. 62 of 2009 regarding Rentals in the Emirate of Dubai

ISSUE THE FOLLOWING DECREE:

Article (1)

The maximum rent increase percentage of property units in the Emirate of Dubai leased before the enforcement of this Decree shall be as follows:

a. There should not be any rent increase, if the rent for the real estate unit is up to 25% below the average similar rent.

b. If the rent value was 26% to 35% less than the average similar rent, the maximum rent increase shall be equal to 5% of such value.

c. If the rent value was 36% to 45% less than the average similar rent, the maximum rent increase shall be equal to 10% of such value.

d. If the rent value was 46% to 55% less than the average similar rent, the maximum rent increase shall be equal to 15% of such value.

e. If the rent value was less than 55% of the average similar rent, the maximum rent increase shall be equal to 20% of such value.

Article (2)

For the purpose of this Decree the similar rent value of the property unit means pursuant to “The Rent Index of the Emirate of Dubai” approved by RERA.

Article (3)

This Decree shall be enforced from the date of its issuance and shall be published in the Gazette.

Mohammed Bin Rashid Al Maktoum, Ruler of Dubai

Issued by us in Dubai on 10 January 2011


20 Law Update

Property

Emad Eldin Farouq, Senior Legal Counsel at the Dubai Land Department, is centrally involved in the process of identifying and facilitating the introduction of new legislation and regulation necessary to promote a stable, advanced and comprehensive system of property law in the Emirate of Dubai.

Emad met recently with Lisa Dale, Partner & Head of Property at Al Tamimi & Company, to discuss landmark achievements during 2010 and what we can expect during 2011.

2010 IN REVIEW

Implementation of the Jointly Owned Property LawLaw No (27) of 2007 on Ownership of Jointly Owned Properties in the Emirate of Dubai was issued on 10 December 2007 and laid the foundations of a “strata scheme” form of property ownership in Dubai. The Jointly Owned Property Law contemplated the passing of further rules and regulations providing more detail on how this form of ownership would be implemented and operated.

On 13 April 2010, the following Implementing Regulations were published by the Dubai Land Department as ‘Directions’:

Lisa Dale, PartnerHead of [email protected]

Emad Eldin Farouq, Senior Legal Counsel at the Dubai Land Department

THE DUBAI LAND DEPARTMENT & RERA: 2010 IN REVIEW AND THE AGENDA FOR 2011An Interview with Emad Eldin Farouq

The Directions have been well received in the real estate market, and have greatly contributed to structuring the jointly owned

projects in accordance with international standards. Developers are working tirelessly to conform to

the new regulations.



• The Direction for General Regulation Concerning Jointly Owned Properties which sets out a range of consumer and investor protections;

• The Direction for Jointly Owned Property Declarations which sets out the requirements for Jointly Owned Property Declarations;

• The Direction Concerning Preparation of Survey Plans in the Emirate of Dubai and Directions for Surveyors which set out standards for the measurement and surveying of Units and Common Area and presentation of Plans; and

• Direction for Association Constitution introducing a standard form of Constitution to apply to all Owners Associations.

Whilst acknowledging that a lot of work remains to be done to fully implement the Directions for the several projects in Dubai’s new ‘freehold areas’, Emad commented that, “the Directions have been well received in the real estate market, and have greatly contributed to structuring the jointly owned projects in accordance with international standards. Developers are working tirelessly to conform to the new regulations.”

The Granted Land DecreeDecree No (4) of 2010 Regulating the Ownership of Land Granted for Industrial & Commercial Purposes in the Emirate of Dubai was issued, and came into effect, on 2 March 2010. This Decree introduced a mechanism to enable holders of industrial or commercial lands in Dubai to convert their granted title to freehold upon payment of a fee assessed against the market value of the land in a deemed ‘unimproved’ condition. The benefits of having freehold title rather than granted title include the ability to mortgage the property to raise capital and to sell the property on the open market (subject to applicable nationality restrictions).

Commenting on this Decree, Emad said that it had proved to be a timely and welcome initiative, with many applications to upgrade titles having already been received and processed by the Granted Lands Committee at the Dubai Land Department.

Executive Council Resolution No (6) of 2010Executive Council Resolution No (6) of 2010 Approving the Executive Regulation of Law No (13) of 2008 Concerning the Regulation of the Interim Real Estate Register in the Emirate of Dubai was issued, and came into effect, on 14 February 2010. This Resolution clarified many of the provisions of Law No (13) of 2008, but in addition it introduced the following:

• grounds upon which a purchaser could seek to terminate a sale contract where the developer is in breach; and

• grounds upon which RERA can take action to cancel a development project and the process to be followed after such cancellation.

On the subject of purchasers’ rights, Emad welcomed the above initiative but indicated that more needs to be done, as we discuss below. Emad also confirmed that RERA is very active

The benefits of having freehold title rather than granted title include the ability to mortgage the property to raise capital and to sell the property on

the open market (subject to applicable nationality restrictions).

A final welcome initiative during 2010

was the establishment of the Real Estate

Conciliation Committee at the Dubai Land

Department.


22 Law Update

Property

in using the new procedures, which are transparent and fair.

Registration of Property in the Name of an Offshore CompanyOn 7 July 2010, the Dubai Land Department signed a Memorandum of Understanding with the Jebel Ali Free Zone Authority to regulate registration of property in the name of offshore companies. Emad explained, “Offshore companies incorporated in foreign jurisdictions such as Isle of Man, Bahamas, British Virgin Islands, Cayman Islands, Gibraltar, Jersey and Mauritius will not be permitted to register ownership to property

in Dubai except through a Jebel Ali Offshore Company.

The new policy also applies to foreign-owned free zone or offshore companies established in other Emirates, such as in the Sharjah Airport International Free Zone and the Ras Al Khaimah Free Trade Zone”.

However, Emad clarified that the new policy does not apply to the registration of property by the following companies, provided that the property is located in one of Dubai’s “freehold areas” designated for foreign ownership:

Besides regulating practitioners,

the Real Estate Valuation Regulations are

expected to introduce a scientific and uniform

property valuation methodology.



• Limited Liability Companies incorporated in Dubai with foreign shareholding of up to 49%;

• Companies incorporated in any of Dubai’s free zones, such as Jebel Ali Free Zone, Dubai Multi Commodities Centre and TECOM, or in the Dubai International Financial Centre, provided that the relevant free zone authority issues a No Objection Certificate to the Land Department; and

• Companies incorporated in foreign jurisdictions such as the UK, USA or Germany, which are onshore in that jurisdiction.

The Real Estate Conciliation CommitteeA final welcome initiative during 2010 was the establishment of the Real Estate Conciliation Committee at the Dubai Land Department. Made up of five members, this Committee’s role is to endeavour to reach amicable resolution to disputes between developers and purchasers who are referred to it by the Land Department’s Director General. Emad indicated that the Committee has achieved notable success in a number of cases to date.

Given its successful track record, the work of this Committee will continue, with a view to enhancing market stability.

AGENDA FOR 2011

Regulating the ProfessionsSince the establishment of RERA in 2007, progress has been made to bring about regulation of the various professions connected with the Dubai real estate sector. Such regulation has introduced a regime of registration and licensing, minimum qualification requirements, training and professional conduct rules. So far, developers, real estate brokers

and surveyors have been brought under such regulatory regime.

In 2011, Emad envisages that Regulations will be passed to regulate two further professions, namely real estate valuers and real estate conveyancers.

Besides regulating practitioners, the Real Estate Valuation Regulations are expected to introduce a scientific and uniform property valuation methodology which, according to Emad, is very much needed in Dubai to bring about consistency and transparency in the way that land and buildings are valued. Emad indicated that the Dubai Land Department has finalised the draft Regulations and that they are, “currently under review by the Legal Affairs Department and are expected to be issued soon”.

The Conveyancing Regulations will be another welcome initiative. The Conveyancing Regulations will introduce the applicable criteria for practitioners to become licensed and registered. It is also anticipated that the Conveyancing Regulations will streamline the registration process for property transactions at the

Dubai Land Department by allowing registered conveyancers to access the Land Department’s system online. Again, Emad indicated that the draft Regulations are under final review and are expected to be issued soon.

General ReflectionsThe principal objective of the Dubai Land Department when shaping the legislative agenda is to achieve greater stability and fairness in Dubai’s real estate market. In Emad’s words, “The main objective of any law is to regulate the community with a view to helping it to achieve stability and progress”. Much has been achieved since Dubai’s real estate legislative process

started in 2006 with the enactment of Law No (7) of 2006 Concerning Real Property Registration in the Emirate of Dubai. However, there is recognition that this is an ongoing process with more laws and regulations to come. In this regard, Emad assures us that the Dubai Land Department is committed to further progress: “I am confident that the Dubai real estate market will emerge from the financial crisis stronger, better and more attractive than before, and in this regard the Dubai Land Department will continue to play its role”.

About Emad Eldin FarouqEmad joined the Dubai Land Department as Senior Legal Counsel in 2003. During his seven year tenure with the Dubai Land Department, Emad has played a significant role in the drafting and introduction of the several property laws and regulations that we have seen implemented during this time.

In December 2008, Emad was awarded “Best Government In-House Counsel” by the Dubai Corporate Counsel Group.

Much has been achieved since Dubai’s real estate legislative process started in 2006 with the enactment of Law No (7) of 2006 Concerning Real

Property Registration in the Emirate of Dubai.


Intellectual Property

24 Law Update

Registering a distinctive and/or easy to remember domain name is only the first step, and probably the easiest step in effective domain name governance. Like trademarks, domain names must be protected. However, in addition, domain name administration must be given attention.

Once a domain name is secured, it should be managed properly. This can be achieved through ensuring selected individuals within the organization are given access to the account and that suitable domain continuity plans are put in place. By doing so, this may pre-empt any abuse of account information. As an example, individuals with access to the account, may leave the organization without notice and not hand over the administrative details for the series of domain names. These people may assume control of the domain and may unilaterally change details or information pertaining to the domain name such as ownership rights of the account. The result would be an apparent change of ownership from the rightful owner to a third party. This can result in the company being held ‘to ransom’.

In as much as there is traditional trademark infringement where trademarks are used without authorization by the trademark owner, similar principles apply in respect of domain names. Third parties unrelated to the owner of the website could obtain registration of a domain name which is identical or similar to either a domain name or trademark belonging to another party. Such activities are commonly referred to as ‘cyber squatting’.

In addition to cyber squatting, there is also a risk of activities referred to as ‘phishing’. These activities are designed to steal user identities where users are deceived into disclosing personal data through websites, emails or phone calls. Where websites are used, the domain names are often similar to the legitimate websites. These deceptive websites tend to incorporate trademarks belonging to the trademark owner and information from the legitimate websites. The end result is that the look and feel of the deceptive website is similar to the legitimate website. Once users are deceived into interacting on deceptive websites, personal information is entered and disclosed into the system.

E-commerce in the Middle East, including the United Arab Emirates, is growing rapidly. Domain name disputes are now becoming more common in the UAE and the relevant authority which regulates and operates the .ae domain names in the UAE is the .aeDA. This authority was established in 2007 by the Telecommunications Regulatory Authority (TRA). The .aeDA is responsible for setting up

and enforcing policies with regard to the operation of .ae ccTLD. It also facilitates disputes on domain names.

As mentioned above, the choice of a domain name often takes into account ownership of and reference to a trademark already in use. This is reflected in the general eligibility criteria of the .ae domain name policy. The policy states that the grant of a domain name is not a grant for any intellectual property rights which are proprietary rights. Accordingly, the applicant for the domain name has to ensure they have the right to use the domain name and that it will not violate any 3rd party intellectual property rights. Where the domain name sought is classified as ‘restricted’ such as ‘co.ae’, ‘net.ae’, ‘org.ae’, ‘sch.ae’, ‘ac.ae’, ‘gov.ae’ and ‘mil.ae’, there is a positive requirement that the domain name should incorporate one of four criteria, a prior trademark registration being one of them. The existing domain name policy recognizes that trademarks are often taken into account when domain names are chosen.

The same principle is reflected in the .aeDA dispute resolution policy where recognition is given to the proprietary rights subsisting in a trademark which, as mentioned, is normally the element upon which a brand is built upon.

The .aeDA policy mirrors the Uniform Dispute Resolution Policy (UDRP) by ICANN where a third party, normally the trademark owner, would raise certain grounds for his complaint, for example:

Yvonne Pah, Senior AssociateIntellectual Property, [email protected]

DOMAIN NAME GOVERNANCE

The choice of a domain name often takes into account ownership of and

reference to a trademark already in use.


Law Update 25

• that the domain name is identical or confusingly similar to his trademark in which he has rights; or

• that the domain name holder has no rights or legitimate interests in the domain name; or

• that the domain name has been registered and or used in bad faith.

The .aeDA dispute resolution policy provides instances of what amounts to evidence of registration or use in bad faith. Examples as follows:• The domain name holder secures the domain name for the purposes of selling, renting or transferring the domain name to the trademark owner for an amount exceeding the cost directly related to the domain name.

• The domain name is secured to prevent the trademark owner from incorporating his trademark in a corresponding domain name.

• The domain name has been secured primarily for the purpose of disrupting the business of a competitor.

• The domain name is used to divert users to that website by creating a likelihood of confusion with the complainant’s trademark in terms of origins, affiliation or endorsement by the complainant trademark owner.

The .aeDA dispute resolution policy does not require that the complainant’s trademark be registered. However proof of registration of the trademark in the UAE would be cogent evidence of the complainant’s proprietorship in the trademark. This can be inferred from the evidence required of the domain name holder where he may show he or his organization is commonly known by the domain name even if he has not acquired any rights in the trademark which forms or is part of the disputed domain name.

Reference is made to a dispute brought under the WIPO Arbitration and Mediation Center by the Abu Dhabi Future Energy Company PJSC, as the complainant against an individual, John Pepin, in relation to the disputed domain names masdarcity.com and masdarcity.net. It was taken into account by the panel that both the registered and unregistered trademark rights of the complainant where regard was also had to the commercial activities of the complainant upon which the trademark MASDAR was used in relation to. In particular, the panel held ‘A complainant may assert unregistered trademark rights by showing that the name has become a distinctive identifier associated with the complainant or its goods and services. Relevant evidence of such ‘secondary meaning’ may include the nature and extend of advertising, consumer surveys and media recognition’. Given that the .aeDA dispute resolution policy is similar to the UDRP, similar outcomes can be expected from similar disputes.

The panel also made reference to the common law trademark rights, however, common law is not applied in the UAE. It is suggested a local panel considers the statutory provisions under the Commercial Transaction Code which prohibits unfair competition where among others ‘a trader may not disclose such matters as are inconsistent with the reality regarding the origin or description of his goods, or any other matters pertaining to their nature’.. ‘nor may he resort to any other misleading means, with the intent thereby to usurp the customers of a competitor trader; or else, he shall be liable for compensation’.

Trademark owners which have built a brand around their trademarks are able to protect their brands when used without authorization by another party within the context of domain name registered or disputed in the UAE. However, organizations should ensure that their ‘house is in order’ when it comes to the administration of domain names. In this way, your business can achieve effective domain name governance.



26 Law Update

The healthcare industry in the UAE is set to boom. Dubai is in the process of setting itself up as a regional hub for medical tourism, and there is a drive towards improving the standard of healthcare throughout the country. This article briefly outlines the regulatory approval process for medical devices in the UAE.

General BackgroundThe Ministry of Health has issued registration guidelines for medical devices. The Registration Guidelines set out the requirements for an application for regulatory approval. The registration system is intended to prevent unsafe or ineffective medical devices from entering the local market, while allowing patients access to medical devices that may help them.

The Ministry has aimed for international standards in developing the criteria for medical device registration. The Registration Guidelines themselves acknowledge that the various requirements for registration largely simulate internationally recognized rules and regulations such as the EU Medical Device Directive (93/42/EEC) and

US Food and Drug Administration Guidelines. By way of example, the Registration Guidelines define various terms using the definitions that closely resemble those provided in the EU Medical Device Directive.

Application requirementsAn application to register a medical device in the UAE must be made by the device manufacturer or its local representative. The local representative must be formally authorized by the manufacturer to handle the application process and the manufacturer’s legal obligations and responsibilities with regard to putting the medical device on the market in the UAE.

The Registration Guidelines provide four classes of medical device for the purposes of registration. The

classification system takes into account aspects such as the period of time for which the medical device is intended for use, and the degree of invasiveness on the body.

Depending on the classification of the medical device in question, and the information available with regard to approvals by regulatory bodies elsewhere, the Ministry’s Committee on Medical Device Registration will consider an application for registration through either a one stage or a two stage process. Upon application, the Committee will review the medical device and decide whether or not it is able to issue a certificate of registration on the basis of the material submitted with the application, or whether further evidence relating to safety and effectiveness needs

Nick O’Connell, Senior AssociateIntellectual Property, [email protected]

MEDICAL DEVICE REGISTRATION IN THE UAE

The regulation system is intended to prevent unsafe or ineffective medical devices from entering the local market, while allowing patients access to

medical devices that may help them.


Law Update 27

to be considered before a formal determination can be made.

The application must be supported by the submission of objective evidence relating to the safety and effectiveness of the medical device. As in other jurisdictions, the preparation and submission of such advice is a significant undertaking. The Registration Guidelines list the information that it is necessary to file in order to be considered for registration. As well as the formally executed official application form, and depending on the classification of the device, the necessary documents can include:

• Authenticated copies of certificates relating to governmental approval of the device’s manufacturing facility in the country of origin.

• Copies of all certificates, documentation and letters of regulatory approval/clearance to manufacture, sell, import and export the medical device.

• Evidence of established procedures and systems for distribution records, complaint handling, adverse incident reporting and recall.

• Product and production information, such as manufacturing process and facilities information, device description, specifications of materials used in manufacturing and packaging, intended use and instructions for use, indications and contraindications, warnings and precautions, potential adverse

The classification system takes into

account aspects such as the period of time for which the medical device is intended for

use, and the degree of invasiveness on

the body.



28 Law Update

events, alternative therapy, device labeling, shelf-life stability, animal/human tissue content.

• Copies of certification and documentation certifying conformity to product standards, safety and effectiveness requirements, and quality systems in design and manufacturing.

• Date of first introduction and use, list of countries where device is marketed and details of corresponding regulatory status, and a summary of reported problems with the device since introduction.

• Risk assessment comprising of risk analysis, evaluation and reduction measures, and detailed information on safety and effectiveness studies, including pre-clinical and clinical studies, process validation studies, software validation studies where appropriate, and literature studies, with summary of studies, conclusions drawn from those studies and bibliography of published reports dealing with the device.

• Objective evidence on the biological safety of the device.

• Peer-reviewed scientific literature dealing with the device.

• Price information, including ex-factory price, wholesale price in the country of origin, and retail price in the country of origin.

As well as the documents and information listed above, it is also necessary for the applicant to submit a declaration confirming that the submitted material is true and that the applicant will be fully responsible for the medical device and its post market plan, and that the applicant will comply with the requirements of the Ministry’s Drug Control Department (the “DCD”) after the medical device has been placed on the market.

As far as formalities are concerned, it should be noted that the Registration Guidelines are somewhat prescriptive when it comes to the way in which the materials are prepared and submitted, and all documents, including certificates should be in English or Arabic.

RegistrationIf the safety and effectiveness of the medical device is established and the Committee approves the registration, a certificate of registration is granted, and the importation and sale of the registered medical device is permitted. The registration is valid for 5 years, although if there are material changes to the product data submitted in support of the application, then the certification may become invalid. The DCD is also entitled to cancel the registration of a medical device if the registrant so requests, or if circumstances warrant cancelling the registration. We anticipate circumstances warranting cancellation to include, for example, where post-market obligations have not been met, where the product proves to be unsafe or the quality of the product becomes lower than at the time of the application for regulatory approval, where unapproved labeling is adopted, and where the medical device infringes a third party’s intellectual property rights.

Post-market obligationsAs the key purpose of registering medical devices is to ensure safety, the Registration Guidelines provide for post-market obligations with regard to monitoring, and preparing for, safety issues that may arise in the market place. As noted above, failure to comply with these obligations is a basis upon which the DCD can cancel the registration of a medical device.

The post-market obligations include the obligation to maintain distribution records (to facilitate traceability), to maintain complaint handling procedures and records, to maintain adverse incident reporting procedures and records, and to have procedures in place that will allow the registrant

to promptly and effective execute investigations and recalls in respect of defective or potentially defective medical devices.

If post market procedures have already been established by a registrant for one type of registered medical device, it is not necessary to resubmit the post-market procedures for other medical device registration applications, unless the procedures previously outlined have changed or need to be varied due to the nature of the subsequent medical device. If procedures have been submitted in respect of a previous application, it will be sufficient to refer the authorities to that material.

GeneralIt can sometimes be difficult for foreign applicants to meet regulatory requirements for medical devices. One example of the type of problem that might be encountered is where the subject medical device is not something that would require regulatory approval in the country of origin, and thus not something for which country of origin approval documentation can be provided.

Al Tamimi & Company is able to assist with all aspects of medical device regulatory approval, particularly in respect of advocacy relating to the acceptance of supporting documentation. Although we hope it will not be required, we are also able to assist with recalls and product liability issues.

If the safety and effectiveness of the medical device is established and the Committee

approves the registration, a certificate of registration is granted, and the importation and sale of the

registered medical device is permitted.


Law Update 29

INTRODUCTION TO TRADEMARKS AND INDUSTRIAL DESIGNS:

Trademarks:A ‘trademark’ is a word, name, sign, symbol, colour or shape which is used to identify a particular product or service offered by a particular manufacturer or from a particular source.

A trademark distinguishes the product of a particular manufacturer from similar products offered by others. The owner of a registered trademark has the right to prevent others from using the same or similar trademark on their products.

A registered owner of a trademark can prevent use and registration of an infringing mark based on the basic rule: a trademark is not available for use and registration if it resembles a trademark already registered and the resemblance is likely to cause confusion, mistake or deception.

Industrial Designs:An ‘industrial design’ is the ornamental or aesthetic aspect of an article. A design may consist of three-dimensional features, such as the shape or surface of an article, or of two-dimensional features, such as patterns, lines or color.

Industrial designs are applied to a wide variety of products of industry and handicraft, from technical and medical instruments to watches, jewelry, and other luxury items; from house wares and electrical appliances to vehicles and architectural structures; from textile designs to leisure goods.

To be protected under most national laws, an industrial design must appeal to the eye. This means that an industrial design is primarily of an aesthetic nature, and does not protect any technical or functional features of the article to which it is applied.

Unlike trademarks, to be protected, an industrial design must be novel. The display of the product in public or in the marketplace will destroy the novelty of a design. Thus, protection for an industrial design should be in place before the launch of the product in question. In this regard, it is pertinent to note there is no requirement for the industrial design to be registered

to meet the novelty requirement. An application for registering the design lodged properly before the industrial design registry of the relevant country is sufficient. Once an industrial design is applied in a country which is member to the Paris Convention, a six months grace period will be available for the applicant to apply for the design in other member countries of interest, claiming priority from the base application. Launch of the product in any such countries during the six months priority period will not destroy the novelty of the design.

Shape Trademark vs. Industrial Design:From the definition of a trademark above, it is noted that shape of a product is also qualified to be protected as a trademark. Although shape trademark protection is recognized by most of the countries in the GCC, industrial design is the correct form of protection to protect the shape and configuration of an article.

SHAPE TRADEMARK AND INDUSTRIAL DESIGN PROTECTIONS IN GCC

A trademark is not available for use and registration if it resembles a trademark already

registered and the resemblance is likely to cause confusion, mistake or deception.

Mohammed Ali, AssociateIntellectual Property, [email protected]

The shape of a product is often significant value to a business. This article briefly considers the use of trade mark law and industrial design law to secure the intellectual property value of a product with a commercially significant shape.



30 Law Update

Country Shape trademark registration

Industrial design registration

Bahrain Yes Yes

Kuwait Yes Yes

Oman Yes Yes

Qatar Yes No

Saudi Arabia No Yes

UAE Yes Yes

The ornamental or aesthetic nature of an article can be protected by registering a shape trademark. One benefit of protecting a shape trademark is the term of protection of a trademark is perpetual, as it can be renewed any number of times, whereas the protection term of an industrial design is fixed to a maximum of 15 years in most jurisdictions. Furthermore, in the GCC, courts are familiar with trademarks and thus laws for enforcing trademark rights are more developed for the laws for design rights. In fact, design regimes are still in the developing stage.

Based on the above, ensuring protection is in place for an article by way of shape trademark registration, as well as industrial design registration, can be considered, subject to both the forms of protection being available in the country of interest. Other

considerations are significance of the countries in question to the business and the budget.

The table above shows the status of the GCC countries in terms of registrability of shape trademarks or industrial designs or both.

How similar the infringing products should be in order to take legal action is always a question of degree.

However, as a general rule, an object with a design, that is substantially similar or confusingly similar to the design claimed in an industrial design or in a shape trademark cannot be made, used, copied or even imported into the country in question.

Industrial design is primarily of an

aesthetic nature, and does not protect any

technical or functional features of the

article to which it is applied.

Although shape trademark protection is recognized by most of the countries in the GCC, industrial design is the correct form of protection

to protect the shape and configuration of an article.


Law Update 31

In discussing the aforementioned question, we will refer to the UAE Federal Law No. 31 for 2006 (the ‘UAE Patent Law’), the Paris Convention for the Protection of Industrial Property (the ‘Paris Convention’) and the Patent Cooperation Treaty (‘PCT’).

The UAE Patent Law does not provide a clear-cut answer, although Article 11 (1) of the UAE patent law provides some guidance:

An application may contain a request to claim priority from an application that has been filed in another state being a party of an agreement or

a treaty with the UAE. In this case, the application date and number of the corresponding filed application should be indicated together with the name of the state.

Upon interpreting Article 11 (1-2) of the UAE patent law, we find that there are two conditions to claim priority in the UAE:

• The priority right shall be claimed from a corresponding filed patent application in another state being a party of an agreement or a treaty with the UAE; and

• The priority application date, number and state shall be indicated in the UAE patent application.

Accordingly, any application filed in another state being a party of an agreement or a treaty with the UAE is adequate to establish the right to claim priority, regardless of the subsequent fate of this application.

On the other side we find that article 4 A(2-3) of the Paris Convention provides clear guidance for claiming priority from invalid patent applications by stating that:

2. Any filing that is equivalent to a regular national filing under the domestic legislation of any country of the Union or under bilateral or multilateral treaties concluded between countries of the Union shall

be recognized as giving rise to the right of priority.

3. By a regular national filing it is meant any filing that is adequate to establish the date on which the application was filed in the country concerned, whatever may be the subsequent fate of the application.

In short, the right of priority is based on a regular national filing whatever the subsequent fate of the application. With reference to the priority right under the PCT, Article 8(1) and (2)(a) of the PCT states:

1. The international application may contain a declaration claiming the priority of one or more earlier applications filed in or for any country party to the Paris Convention for the Protection of Industrial Property.

2. a. The conditions for, and the effect of, any priority claim declared under paragraph (1) shall be as provided in Article 4 of the Stockholm Act of the Paris Convention for the Protection of Industrial Property.

The right of priority can be claimed in the UAE from an invalid (withdrawn, abandoned or rejected) patent application.

Bassam Al Azzeh, Patent AdministratorIntellectual Property, [email protected]

CLAIMING PRIORITY FROM INVALID PATENT APPLICATIONS IN THE UAE

This article

considers the

question, “is

it possible to

claim priority in

the UAE from an

invalid patent

application?”


32 Law Update


Stephen Jiew, Senior AssociateIntellectual Property, [email protected]

The Saudi Network Information Centre (“SaudiNIC”) has announced that the all important (.sa) domain name regime is now available for registration. This means that applicants wishing to own domain names using the (.sa) domain such as (www.yourcompany.sa) may now register their domain names in Saudi Arabia in two phases as follows:

Sunrise PhaseThis Sunrise Phase runs from January 10, 2011 to March 7, 2011. This

period represents a priority period for existing Third Level (3LD) Domain Name Registrants who had registered their 3LD domain name before the Sunrise Phase.

Only qualified registrants (individual or entity) may apply during the Sunrise Phase to register a (.sa) Second Level (2LD) domain name with a label identical to that of their existing 3LD domain name provided that the 3LD domain name was registered before

the Sunrise Phase and its registration application date was before the qualification date.

Thus, those owning existing registrations for e.g. www.yourcompany.com.sa may apply for www.yourcompany.sa

Where two applications from different qualified registrants are received for the same 2LD domain name during the Sunrise Phase then priority will be

The (.sa) domain is a coveted one as it is arguably the definitive identifier in cyberspace as the domain of choice for entities connected to Saudi Arabia, who would want to own a (.sa) domain name in cultivating one’s cyber presence in reaching the lucrative Saudi Arabia market.

SECOND LEVEL DOMAIN NAME 2LD(.SA) REGISTRATION NOW AVAILABLE IN SAUDI ARABIA


Law Update 33

given first to governmental and semi-government organisations i.e. (gov.sa) and then priority will be based on the earliest registration date.

Landrush PhaseFollowing the Sunrise Phase, the Landrush Phase begins where applicants (individual or entity) can register (.sa) 2LD domain names on a strictly (first come, first served) basis.

The usual requirements of domain name registration apply i.e. the applicant can either be:

• An entity physically located in Saudi Arabia;

• A natural person, not underage, with a Saudi national identification card or equivalent document issued by the Ministry of Interior of Saudi Arabia;

• An entity with a registration or license issued by a pertinent authority in Saudi Arabia; or

• An owner of a trademark or trade name that is registered in Saudi Arabia.

Importantly, foreign trade mark owners should note that if they do not have a business presence or licensed to operate in Saudi Arabia, they must have a trade mark or trade name registration in Saudi Arabia.


News & Events

34 Law Update

Al Tamimi & Company are sponsors of the highly successful In-house Congress Series. The In-House Congress Dubai was held on 23rd February at the Mövenpick Hotel. This event brought together over 130 leading in-house lawyers, compliance professionals and senior business executives from both the private and public sectors in United Arab Emirates. A number of topical workshops were delivered throughout the day.

Partner and Head of IP / IT, Omar Obeidat presented a workshop examining IP Protection & Enforcement in the UAE. The workshop focused on:

• IP Rights Regulations • The registration process • Administration – The role of Government • Enforcement options • The Challenges• Case studies

At the recent Fraud, Asset Tracing & Recovery in the Gulf Conference which took place from the 23rd – 25th January at the Al Murooj Rotana Dubai Hotel, Al Tamimi & Company Partner and Head of Dispute Resolution Hassan Arab formed a panel discussion on day 2 surrounding The Changing Interface between Criminal and Civil Proceedings in the Gulf. The Panel examined a range of issues including:

• Why has the default position been to seek criminal remedy in the Gulf? • What are the advantages/challenges of recovering assets completely independently of criminal proceedings?

• What are the current criminal prosecution priorities in the Gulf? • How can you use the criminal process to get a freezing order? • How can reciprocal enforcement be used to your advantage? • Examining extradition issues in the Gulf

At the post conference master class, Litigation Senior Associate Rita Jaballah participated in delivering a practical guide to preparing pleadings and evidence and conducting hearings in Dubai. The masterclass was aimed at junior lawyers and provided detailed examples of pleadings tried and tested in DIFC Court proceedings.

FRAUD, ASSET TRACING & RECOVERY IN THE GULF

2011 – IN-HOUSE CONGRESS DUBAI


Law Update 35

On 25th January 2011, Yazan Saoudi, Partner and Head of the Maritime, Aviation & Insurance Department at Al Tamimi & Company, presented to Etihad Airways on the topic of “Litigation against carriers in the UAE for pas-senger injury or death under UAE Laws and Montreal Convention.”

The presentation gave an overview of the UAE legal systems and the relevant laws applicable for passenger and personal injury or death. Yazan discussed also the enforcement of Warsaw/Montreal Conventions by UAE Courts and its application to different court cases.

The event was attended by Etihad legal Department and members of the Abu Dhabi Airport Company “ADAC”.

This year, we are sponsoring the Dubai Corporate Counsel Group – the first group of in-house counsel in the Middle East. Our Property team at Al Tamimi & Company had the privilege of hosting the Group’s first networking seminar for the year at the Armani Hotel, Burj Khalifa on 19th January. The topic for the seminar was “Dubai Property & Construction Law Update”, and presentations were given by Partner and Head of Property, Lisa Dale, Jeremy Scott, Mohammed Kawasmi and Steven Hunt covering the Dubai Land Department’s agenda for 2011; progress in the implementation of the Strata Directions; an update on property litigation and regulations; and issues surrounding the recommencement of stalled or suspended development projects.

AL TAMIMI & COMPANY – PROUD SPONSORS OF THE DUBAI CORPORATE COUNSEL GROUP

LITIGATION AGAINST CARRIERS IN THE UAE:ETIHAD AIRWAYS


News & Events

36 Law Update

News & Events

Partner and Head of Maritime, Aviation and Insurance, Yazan Saoudi and Senior Associate, Omar Omar, recently delivered a seminar titled “Cargo Claims in the UAE: Law & Practice”.

The seminar, hosted at the Address Marina Hotel on 18th January 2011, was attended by in-house legal teams from Gulf Agency Company Dubai, cargo agents Messrs, and Maresk Line. The seminar examined the Federal Laws versus the Emirate laws, filing a claim before the courts and the procedural requirements for cargo claims. Furthermore, the types of claim were discussed, arrests and the role of agents in such matters. The seminar closed with historic cases applicable to the audience.

Under the Patronage of H.H. Sheikh Hamdan bin Mubarak Al Nahyan Minster of Public Works, Chairman of National Transport Authority and Chairman of National Media Council, Paris-Sorbonne University Abu Dhabi hosted the 1st Transport & Maritime Law Conference in Abu Dhabi: “The Rotterdam Rules”. The conference saw the Rotterdam rules explained by their drafters and debated by regional experts in the light of current transport and maritime law reforms in the Gulf region.

Senior Associate, Omar Omar from our Maritime, Aviation and Insurance department, was invited by the Paris-Sorbonne University Abu Dhabi to speak about the recently enacted Rotterdam Rules and whether the UAE should sign the rules. Omar spoke alongside other shipping lawyers from major shipping law firms in the Middle East. The conference was hosted over two days on the 2nd and 3rd February at Al Reem Island.

1ST TRANSPORT & MARITIME LAW CONFERENCE IN ABU DHABI

CARGO CLAIMS IN THE UAE


Law Update 37

Maritime, Aviation & Insurance

The Dubai First Instance court recently issued a decision, in favour of one of our clients, quashing the claimant’s claim of compensation for damaged cargo after it fell from one of the port’s cranes. This verdict is so important, because for the first time,the court followed a different approach whereby they accepted that actual delivery is delivery stipulated in the Bill of Lading as opposed to construing physical delivery as the only legal delivery. Indeed, the Dubai First Instance court has deviated from the previous established legal court doctrine which separated the “discharge” operation from the “delivery”, whereby it was considered that delivery could take place “by placing the cargo, in its B/L described status, at the actual possession of the receiver or its agent in manner which would enable such receiver or agent to examine the cargo even if the cargo was not yet discharged.”1

According to previous Dubai Court of Cassation rulings, delivery is not: a. the notification of the receiver that its cargo has arrived; b. the hand over of the DO to the receiver; c. the discharge of the cargo at the port which would constitute a delivery as per the terms of Article 275 of the Law.

“The responsibility of the carrier on the cargo shall end by placing such

cargo, in its Bill of Lading described status, at the actual possession of the receiver or its agent in manner which would enable such receiver or agent to examine the cargo.”2

The Court went even further by considering that “the action of discharging the cargo, in itself, and placing it at the port shall not be considered as a delivery which would relieve the carrier from its responsibility of preserving the cargo. Also, the non-attendance of the receiver to take delivery shall not relieve the carrier from its responsibility to preserve the cargo until such time delivery has taken place or the carrier has placed the cargo under the hands of a court appointed custodian as per article 2693 of the Law.”4

The consequence of this principal extended the carrier’s liabilities towards the receiver and the non-direct responsibility of port authorities on any damages on the cargo even if such cargo “was delivered to the port

authorities and stored at it’s storage” as long as the cargo was not physically delivered to the receiver.

However; this has clearly been changed by Dubai First Instance Court ruling No. 812/2009 Plenary Commercial dated 22/12/2010 when the court considered cargo delivery legally, physically and actually performed and concluded by the carrier when the cargo was delivered to the receiver as per the terms of the B/L . The verdict went on further to consider the cargo damage as the responsibility of the receiver and port authorities as the carrier handed over the cargo safe and sound as per the terms of the B/L. This decision disregarded the actual delivery principal followed previously by the courts and has finally accepted the B/L as a contract determining the carrier’s liability towards the receiver.

Although this decision is not yet final, it is considered a very welcomed development confirming the carrier’s liabilities towards the receiver.

1 Dubai Cassation Court ruling No. 268/1997 dated 8/11/1997.


3 When a party having the right to take delivery of the goods does not attend to take delivery or if such party refuses to take delivery of the same the carrier shall have the right to apply to the competent court for an authorization to place the cargo with a custodian appointed by the court. The carrier shall have the right request the sale of all or part of the cargo against its freight.


Omar Omar, Senior AssociateMaritime, Aviation & [email protected]

MOVING FORWARD



38 Law Update

Sherif Rahman, AssociateCorporate [email protected]

DOING BUSINESS IN TECHNO PARK

OBJECTIVEThe objective of this article is to introduce Dubai Techno Park (Techno Park) as jurisdiction in which businesses can set up. This jurisdiction offers many benefits associated with operating in both freezones and the mainland .

Introduction Dubai Techno Park was formed by an Emiri decree in 2002 by His Highness Sheikh Mohammed bin Rashid Al Maktoum, UAE Vice President, Prime Minister and Ruler of Dubai as a fully owned subsidiary of Economic Zones World. Dubai Techno Park is an industrial complex, located in the heart of Dubai’s industrial zone and provides high standard facilities. It covers an area of 21 million Sqm. of land and is considered as the only technology park in the region located between a world-class seaport and an international airport. The main aim of Techno Park is to attract major manufacturing and industrial companies to set up their industrial units in Dubai and be able to penetrate the UAE and GCC market.

Currently, Techno Park is home to some of the world’s most high-profile companies specializing in technology, oil, gas and petrochemical industry and other industries which makes Techno Park one of the largest industrial hubs in the Middle East.

Is Technopark a Free Zone?It is generally assumed that Techno Park is a free zone which is not the case. Entities established in Techno Park are treated as if established in the main land of Dubai, i.e. such entities are able to sell and distribute their products outside Techno Park without payment of the custom duty applied in case of setting up a company in one of the free zone in Dubai. There is the added advantage that a foreign company can register a branch to carry on industrial activities in its manufacturing unit which is not permissible on the mainland of Dubai.

Thus, by registering a branch of a foreign company in the Techno Park, a foreign company will enjoy 100% ownership and access to Dubai and

UAE market. Similar to a free zone the Techno park provides a full range of administration services such as issuing residence visas for employees of entities to be established within Techno Park.

TYPES OF COMPANIES WHICH CAN BE FORMED AT TECHNO PARK

A Limited Liability CompanyThe number of shareholders should be two to fifty. The liability of the shareholders is limited to their share participation in the capital, however, at least 51% must be owned by a UAE national.

A Sole Establishment Sole establishment should be owned by a sole owner who is liable for all the establishment liabilities. The owner must be a GCC or UAE national.

A Civil CompanyFor activities involving the use of professional skill acquired by education and experience in a specific field such as business consultancy, a civil company can be formed as civil partnerships in accordance with the Federal Civil Transactions Law No. (5) of 1985 with its amendments. Professional companies may be 100% foreign owned.

The main aim of Techno Park is to attract major manufacturing and industrial companies to set up their industrial

units in Dubai and be able to penetrate the UAE and

GCC market.


Law Update 39

Branch OfficeBranch offices can be set up by the following:

• A Branch of a Free Zone Establishment (FZE).• A Branch of a Free Zone Company (FZCO).• A Branch of an L.L.C. (covers all Limited Liability Companies in UAE).• A Branch of a Sole Establishment based in the Emirate of Dubai.• A Branch of a GCC Company.• A Branch of a Foreign Company.

TO RECAP

Benefits of Techno Park:

• 100% foreign ownership of industrial units in case of branch of a foreign or a free zone company.• 0% percent corporate tax rate.

• Capital and profits may be repatriated.• No currency restrictions.• No restrictions on hiring foreign employees.• Long-term lease agreement up to 15 years.• One stop shop (including licensing and related Government services). • World-class infrastructure and single-window clearance

ConclusionThe advantages associated with setting up industrial units in the Techno Park are aligned with the objective of the Government of Dubai to make the Emirate a prime location for industrial activity. Techno Park is an ideal jurisdiction to set up for industrial activity in a free zone environment with the benefits normally associated with a mainland entity.

There is the added advantage that a foreign company can register a branch to carry on

industrial activities in its manufacturing unit which is not permissible on the mainland of Dubai.



40 Law Update

After an extended consultation period, in January 2011 NASDAQ Dubai (“the Exchange”) released draft revised Listing Rules (“Draft Rules”) for public consultation. The Draft Rules are the first major revision of the Listing Rules to be completed by the Exchange. The overriding concerns for the Exchange are the twin imperatives of enhancing market liquidity and promoting access to listing to a wider group of issuers. The Draft Rules are designed to address these issues and they also take a major step towards ensuring listing criteria and processes are both comprehensive and transparent.

The revision process was first initiated over two years ago. The Draft Rules are the result of a prior round of amendments and consultation, and working group meetings with stakeholders and professionals in the fields of law, finance and accounting. All have been regularly involved in the listing process on the Exchange onshore in the UAE and globally, and there has been a coordinated exchange of ideas and comments with the Dubai Financial Services Authority (“DFSA”).

As required under regulation, the Draft Rules are available for public consultation to enable stakeholders such as current issuers, potential issuers, underwriters and their various advisors to give genuine feedback about the proposed revisions to

objectives, organization and scope, regulatory approach, and guidance, among other proposed changes. The stated intention of the Exchange in undertaking this exercise is to improve liquidity, promote access to listing to a wider range of issuers, and introduce a legal framework that will suit the issuers and promote capital raising in the region as well as offer sufficient safeguards to protect investors.

Although certain rules that were initially adopted under the Listing Rules have remained intact (e.g. 25% free float requirement, book-building process, sell down, etc.), there are numerous material changes that have been made under the Draft Rules.

The public consultation process will end by 17 March 2011. Subsequently, the Exchange will take comments and recommendations received under consideration, make any further amendments as they find fit, and submit the final Draft Rules to the

DFSA. Upon approval by the DFSA, the Draft Rules will become a binding piece of legislation.

Below, you will find a brief summary of some of the key amendments under the proposed Draft Rules.

FORMATThe format and layout of the Draft Rules differ substantially from the existing Listing Rules. Also, a number of guidance notes have been provided in reference to specific rules which provide clarifications in relation to some specific provisions of the Draft Rules.

SIGNIFICANT AMENDMENTS

New eligibility criteriaUnder the Draft Rules, the issuer is not only required to fulfill the existing admission criteria provided under the original Listing Rules, but certain further requirements have been added in addition to security-specific criteria.

For example, the eligibility criteria for equity securities now include the following new requirements:

• No more than 50% of the free float required may be in a form of preferred share;

• “Genuine investor interest”, which an issuer can demonstrate by either having not less than 400 bona fide

Izabella Szadkowska, Senior AssociateCorporate [email protected]

Sarah Florer, AssociateBanking & [email protected]

NASDAQ DUBAIWill the proposed amendments to the listing rules attract new listings and boost liquidity?

The Draft Rules are the first major revision

of the Listing Rules to be completed by the

Exchange.


Law Update 41

shareholders or providing for a retail set aside of at least 10% of the aggregate number of securities.

• As an addition to the existing minimum USD 50 million market capitalization test, one of the following tests can be satisfied by the issuer instead:

- “profits test” – requires an issuer to have generated profits for the three most recent fiscal years (while conducting the same business activity);

- “assets test” – requires an issuer to meet certain tangible assets and working capital thresholds, but does not require three continuous years of operation. A mandatory lock-in for promoter shareholders is also required for 12 months and cash flow reporting may be imposed; and

- “market capitalization test” – requires a minimum USD 20 million market capitalization together with a mandatory lock-in of 12 months for promoters.

Listing application review processUnder the Listing Rules, projecting a timeline for regulatory review by both the Exchange and the DFSA was often problematic. Importantly, the two organisations noted they would work together to streamline the process for reviewing of the prospectus and listing application. The Draft Rules propose that any prospectus will be reviewed by the DFSA for compliance with the Offered Securities Rules (OSR) of the DFSA as a first step, and subsequently the Exchange will review the prospectus and listing application for compliance with the final listing rules. It is expected this review process will assist issuers in addressing fundamental issues with the prospectus and compliance early in the listing process rather than at the very end, as was past practice.

No exempt offers of equity securitiesPreviously, the Listing Rules allowed for primary offers of equity securities through a prospectus or an exempt offer. Notably, the Draft Rules (Rule 3.1.3) remove the option of an exempt offer and stipulate every offer

The stated intention of the Exchange in undertaking this exercise is to improve liquidity,

promote access to listing to a wider range of issuers, and introduce a legal framework that will suit the issuers and promote capital raising in the

region as well as offer sufficient safeguards to protect investors.


42 Law Update


of equity securities must be made through a prospectus.

No requirement to appoint a sponsorUnder the Listing Rules, issuers were required to appoint a listing sponsor and an on-going sponsor. Pursuant to the Draft Rules, the “sponsor” has been replaced with a “lead manager” whose advisory role seems to be similar to that of a sponsor but is not mandatory. Notably, the lead manager is not responsible for disclosures made in a prospectus; such liability lies with the issuer only.

Various accounting standards allowedThe Draft Rules now allow for issuer accounts to be produced in accordance with the International Financial Reporting Standards (“IFRS”) or an alternative accounting standard, such as US GAAP, Canadian GAAP, Japanese GAAP or South Korean GAAP, without requiring reconciliation with IFRS.

Mandatory lock-inThe Draft Rules have introduced a mandatory lock-in (for promoters and connected/related persons) in relation to equity securities that apply when the issuer relies on either the “assets test” or the “market capitalization test” for admission to listing. The Exchange has confirmed it will not waive the lock-in requirement under any circumstances.

Uninformed exchangeThe Listing Rules do not explicitly authorize the Exchange to ensure issuers disclose information when exemptions apply in certain situations. However, the Draft Rules clarify that the Exchange can ask the issuer to disclose information if it considers there is (or is likely to be) an uninformed market, but the information concerned is exempted from disclosure obligations. Further, the Exchange may disclose correspondence between itself and an issuer it considers it necessary for an informed market.

Proportion of assets in cashIn order to prevent the admission to listing of pure “cash box” entities, the Exchange will now be authorized to suspend the issuer’s securities if half or more of the issuer’s total assets are held in cash or as assets readily convertible to cash, until such time when the issuer invests those assets or employs them for its business.

Mining, Oil and Natural Gas IssuerThe existing Listing Rules do not prescribe a separate disclosure regime designated for mining or oil and natural gas issuers, but the Draft Rules (Rules 5.17 and 5.18) list numerous sector specific disclosure requirements.

Share buy-backs – tender offersThe existing Listing Rules do not

prescribe requirements for share buy-backs in the context of tender offers. However, the Draft Rules establish a comprehensive legal framework for share buy-backs through tender offers.

ConclusionThe Listing Rules are the tool by which NASDAQ Dubai manages access to the market by issuers and supervises the market. The Draft Rules provide certainty, clarity and transparency for issuers while retaining flexibility in certain areas in order to promote liquidity and access to listing by a wider range of potential issuers. While the final version remains to be seen, the amendments set out in the Draft Rules reflect a concerted and coherent effort by the Exchange to refine and develop its listing rules and process in order to attract capital and boost liquidity on the Exchange.

We encourage your active participation in this endeavor and recommend you provide your comments directly to NASDAQ Dubai during the consultation period. The Draft Rules can be found at: http://www.nasdaqdubai.com/regulation/listing_rules.html


Law Update 43

The jurisdiction of the UAE courts is regulated by Law No. 11 of 1992 (the “Civil Procedure Law”). Articles 20, 21 and 24 of the Civil Procedure Law provide for original jurisdiction and power to the UAE courts to accept and hear any dispute in defined circumstances. These Articles are characterized as Pubic Order provisions and any agreement contrary to them dealing with foreign law and jurisdiction is void.

Lawyers, across the GCC, are often advising on commercial transactions that must take the laws of multiple jurisdictions into account.

Recently, the Abu Dhabi Court of Appeal handed down a decision in once such transaction that has serious implications for transactions with a potential UAE nexus that are based on documentation governed by foreign law and selecting foreign courts.

Ahmad Al Awamleh, AssociateBanking & [email protected]

ABU DHABI COURT: CHOICE OF LAW MAY NOT BE A CHOICE

Banking & Finance

Lawyers, across the GCC, are often

advising on commercial transactions that must

take the laws of multiple jurisdictions into

account.


Banking & Finance

44 Law Update

Using several articles of the Civil Procedure Law the court took original jurisdiction based on a promissory note given by a party with an Abu Dhabi address that was ancillary to a transaction with multiple GCC parties and governed by English law. In taking such jurisdiction, the court also applied UAE law to the promissory note, notwithstanding the parties’ express intent to be governed by English law and subject to English jurisdiction. The analysis of this case follows.

Background Party A and Party B entered into a Master Agency Agreement for the sale of commodities covered by an agency contract (the “Agreement”) whereby Party A appointed Party B to act as its agent for the purpose of investing Party A’s money in purchasing commodities from suppliers on a COD basis then selling them to purchasers for immediate delivery on a deferred payment basis on the terms and conditions set out in the Agreement.

Claim Party A brought legal action before the Abu Dhabi Court of First Instance against Party B seeking judgment against Party B for USD 33 Million or its UAE Dirham equivalent of AED 121 Million along with an order for court fees, costs and advocate’s fees.

Facts of the Claim On several dates, Party B was given certain amounts of money under the terms of the Agreement and purchased international commodities from different suppliers on behalf of Party A then sold them on its behalf to itself on the basis that payment would be made to Party A at its offices in the UAE. As a result, Party B executed four promissory notes in favour of Party A of total value USD 33 Milliom.

Party B defaulted on its installments due to Party A which resulted in the acceleration of payments under the Agreement.

A few weeks later, Party A served Party B with a notice of acceleration under the Agreement and requested immediate payment for all investment transactions involving the promissory notes.

Party A filed an application for the provisional attachment of Party B’s assets and accordingly the court issued an order directing the provisional attachment of all Party B’s funds in banks in the UAE up to the amount of USD 33 Milliom or its UAE Dirham equivalent.

Party A holds promissory notes in the amount of the debt which were due and payable at its UAE offices.

Abu Dhabi Court of First Instance Abu Dhabi Court of First Instance ruled in favour of Party A by ordering Party B to pay, to Party A, the sum of USD 33 Milliom or its UAE Dirham equivalent at the date of payment while confirming a prima facie provisional attachment up to the amount of the award, together with costs and minimal advocate’s fees.

Party B subsequently appealed to the Abu Dhabi Court of Appeal.

Abu Dhabi Court of Appeal Party B requested the Court to reverse the decision of Abu Dhabi Court of First Instance on the following grounds:

• Error in the application and interpretation of the law. Party B submitted that the UAE Courts have no jurisdiction over the matter. In addition, Party B noted the parties’ contractual agreement to English law

and jurisdiction except to the extent it may conflict with Islamic Sharia.

• Because Jurisdiction is matter of public policy and Party B may raise a plea as to jurisdiction at any stage of the proceedings, the court was requested to declare of its own motion that it had no jurisdiction in the matter.

• The Statement of Claim did not indicate an address or domicile for Party B in the UAE and gave it’s address as Al Khobar, Saudi Arabia, meaning that Party B is a foreign company with no domicile or residence in the UAE giving nexus for UAE Courts to be vested with jurisdiction.

• The action does not concern property in the UAE but relates to the performance of an agency contract outside the UAE in the Kingdom of Saudi Arabia.

• The UAE Courts have no jurisdiction over the matter pursuant to Articles 20 and 21 of the Civil Procedure Code and that the Agreement was performed in Saudi Arabia where Party B is domiciled.

The Court dismissed Party B’s argument and in doing so, ruled in favour of Party A according to the following facts and interpretation of Articles 20, 21 and 24 of the Civil Procedure Code:

• The Court noted the provision for English law and English jurisdiction in the Agreement signed between Party A and Party B. The provision provides that: “This Agreement shall be governed by and executed and performed in accordance with English law except to the extent that it may conflict with the provisions and principles of Islamic Sharia and the parties hereby submit to the jurisdiction of the English courts for the purposes of any proceedings arising out of or relating to this Agreement.”

• The Court noted that the four promissory notes state that “the sum payable hereunder is payable to Respondent/ Abu Dhabi Islamic Bank of P.O. Box [ x ], Abu Dhabi at your offices in the UAE”

The Court opined as follows:Jurisdiction is part of public policy

With the exception of actions

in-rem concerned with real estate abroad, the courts have the power to hear actions brought

against UAE citizens and against ex-patriates

having an address or place of residence in

the country.


Law Update 45

and is an attribute of sovereignty, UAE Courts are necessarily excluded from hearing cases involving property abroad but otherwise retain original jurisdiction in the situations described in Articles 20 and 21 of the Civil Procedure Code and any agreement contrary to Articles 20 and 21 dealing with foreign jurisdiction is void as per Article 24 of the Civil Procedure Law.

ARTICLE 20 PROVIDES:

“With the exception of actions in-rem concerned with real estate abroad, the courts have the power to hear actions brought against UAE citizens and against ex-patriates having an address or place of residence in the country.”


“The courts have the power to hear an action against a foreigner with no address or place of residence in the country in the following circumstances:

• If he has an elected address in the country.

• If the action relates to assets in the country or to a citizen’s estate or to a legacy mad in the country.

• If the action relates to an obligation concluded or executed or to be executed in the country or to a contract to be legalized in the country or to a death occurring in the country or to a bankruptcy declared in a court of the country.

• If the action is brought by a wife with an address in the country against a husband who previously had an address in the country.

• If the action relates to support in respect of a parent, wife, minor, child in guardianship, affiliated child or personal or financial guardianship, if the party requesting support, the wife, minor or child in guardianship has an address in the country.

• If the action is concerned with the registration of births, marriages and deaths and the plaintiff is a citizen or an alien with an address in the country, where the defendant has no known address abroad or where national law must apply in the action; 7. If one of

the defendants has an address or a place of residence in the country.”

• Based upon the jurisdiction given to the UAE Courts under Article 20 of the Civil Procedure Code, except for actions in rem concerning real property abroad, UAE Courts shall hear actions brought against UAE citizens and aliens who maintain domicile or a place of residence in the UAE.

• This general principle of jurisdiction specifies the circumstances in which UAE Courts have jurisdiction. Under Article 21 of the Civil Procedure Law,

the UAE Courts shall have jurisdiction to hear proceedings against an alien who maintains no domicile or residence in the UAE in the following cases.

• if he has elected domicile in the UAE;

• if the proceedings concern property in the UAE, inheritance accruing to a citizen or an estate opened therein; and

• if the proceedings involve an obligation that was made, performed or was supposed to be performed in the UAE, a contract to be attested in the UAE, an event that occurred in the UAE or bankruptcy declared by a UAE Court. • According to Article 21, UAE courts have jurisdiction to hear proceedings against an alien who maintains no domicile or residence in the UAE if the proceedings involve an obligation that was made, performed or was supposed to be performed in the UAE.

• The four promissory notes in question confirm that they are payable at Party A’s offices in the UAE noting that Party A’s head office is in Abu Dhabi. The place of performance is accordingly Party A’s premises in Abu Dhabi. Therefore, the Agreement which states that the performance of the contract shall be governed by English law contradicts the international jurisdiction of the UAE Courts and is void according to the aforementioned Article 24 of the Civil Procedure Law. Party A may therefore bring the instant action before an appropriate court within Abu Dhabi’s independent court system, including

the Court of First Instance, against Party B as an alien who maintains no domicile or residence in the UAE as per the exclusion under Article 21/3. Since jurisdiction in the matter belongs to the Abu Dhabi Court of First Instance, appeal was dismissed.


“Any agreement contrary to the provisions of this section is a nullity”.

Based on the pointes outlined above, the Abu Dhabi Court of Appeal decided to admit the appeal in form and, on the merits, to dismiss the appeal and uphold the appealed decision with court fees, costs and minimal advocates’ fees.

UAE Courts have original jurisdiction over any proceedings that involve an obligation

that was made, performed or was supposed to be performed in the UAE, a contract to be attested in

the UAE, an event that occurred in the UAE or bankruptcy declared by a UAE Court.


46 Law Update

In Focus

Qatar has had a busy start to the New Year; Asian Cup, Qatar Open, Qatar Women’s Tennis, the excitement of the FIFA 2022 victory bid, and a list of real estate development projects that will reshape the landscape and infrastructure of this land.

So, what does a tiny oil rich nation with worlds largest reserves of LNG (liquefied natural gas) do with its wealth? It builds a future by educating its people, providing access to the best training and medicine available, and builds an infrastructure to be proud of. This historical nation has certainly earned its place in history. As a result of the incredible growth in Qatar, businesses locally and from around the globe have enjoyed gains.

Al Tamimi & Company has recognized the opportunity for growth in Qatar and has been taking steps to further strengthen its position as a top law firm in Qatar. In December, Jay Fortin joined Al Tamimi & Company International as a Partner and the head of the Qatar office. Formerly of Patton Boggs, Jay has a wealth of legal experience internationally and within the GCC region. He has taken great steps in setting up a solid approach to expand our presence in Qatar.

With the growth Al Tamimi is experiencing in Qatar, it has been decided that Al Tamimi will be moving its current office to a more centralized area in the main business district of Doha. Having now identified several

suitable QFC approved buildings, which will accommodate our growing team, we have engaged several contractors to design and bid our fit out costs. The expected move should take place later this year.

Our current staff consists of a dynamic team that brings a multitude of experience to both Al Tamimi and the clients we serve. Our current team is: Ahmed El Amoury, Karim Shiyab, Veronica Oryem, Jay Fortin, Sarah Lisgo, Ahmed Jaafir, Manal Aloush, Kamal Hafez, Sami Fakhoury, Wong Yuen Ping, Sharifah Hamzah, Stefan Jury, Frank Lucente & Hani Al Naddaf.

The recent recruitment of Semi Fakhoury further exemplifies the commitment that Al Tamimi has for Qatar. Mr. Fakhoury come to to Al Tamimi from a top French Law Firm, Gide Loyrette Nouel where he was a Partner. Mr. Fakhoury specializes in structured and project finance and has expertise across a wide range of financing transactions including acquisition; project, syndicated lending and asset based finance and has represented borrowers and lenders in large European and cross-border LBO transactions. He has also represented major French listed and non-listed companies in debt restructuring and syndicated lending and has advised leading Middle East groups on project finance transactions and infrastructure acquisitions as well as leading banks and financial institutions on cross border export

financing across the MENA region. He will utilize his significant experience in the Middle East to maintain Al Tamimi’s position as one of the leading finance firms in Qatar and extend our further growth here.

The month of February brought good news with the appointment of three partners, two of which are in the Qatar office; Mr. Stefan Jury and Mr. Hani Al Naddaf. Stefan, a native of Australia, brings a wealth of knowledge and experience to the firm with a specialty in Banking & Finance. Hani, a native of Syria, who speaks Arabic, French and English, has become a top litigator for Al Tamimi & Company, and in Qatar. Well deserved appointments for these worthy individuals; Congratulations.

Al Tamimi has positioned itself well in Qatar as a key law firm with expertise in local laws, with international experience. As the country is in the process of rebuilding its airport and building cities within the City, that will combine the best of Qatar’s rich history, and the modern day wealth and convenience of what Qatar has to offer today, as a result of this, Al Tamimi continues to be appointed to some of the most high profile and complex deals as companies have found our team in Qatar is un-matched.

Doha will soon be home to one of the most advanced medical centers in the world that will also be a learning hospital employing and producing some of the best doctors globally.

Welcome to the peninsula nation of Qatar; small in size, big in ambition and success.

IN FOCUS - QATAR



This tiny nation is also home to the largest foreign United States Air Base.

Al Tamimi Qatar has been involved in many different political and business forum events since the beginning of the year. During the second week of January, Turkish Prime Minister, The Honorable Mr. Recep Tayyip Erdogan was in Qatar to remind the world that the relationship between Qatar and Turkey is solid at all levels. The US Secretary of State, Mrs. Hillary Clinton was also in Doha as part of a regional trip.

Al Tamimi representatives also participated in a closed dinner meeting with a select business consortium that traveled to Qatar, Kuwait and Turkey, accompanied by the Argentinean President, Ms. Christina Fernandez. The tour is meant to strengthen ties with countries in the region. The Emir of Qatar and Ms. Fernandez have been working together to boost trade between the two countries and within the region over the last year.

Qatar is certainly on the rise, and should see significant growth over

the next 10 to 20 years. Al Tamimi & Company has been and continues to grow with Qatar, the team in Doha has firmly established itself as leaders in the legal field, and as a result, Al Tamimi continues to show steady growth and continues to build its dynamic legal team.

From left to right: Ahmed El Amoury, Karim Shiyab, Veronica Oryem, Jay Fortin, Sarah Lisgo, Ahmed Jaafir, Manal Aloush, Kamal Hafez, Sharifah Hamzah, Stefan Jury, Frank Lucente & Hani Al Naddaf.Missing from photo: Sami Fakhoury and Wong Yuen Ping.


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48 Law Update

Stephen Jiew, Senior AssociateIntellectual Property, [email protected]

QATAR! 2022!Ambush marketing - stealing the limelight


Law Update 49

Everybody loves a party and no one is quicker to a party than an ambush marketer so as Qatar celebrates, the watch is on for plans to defeat ambush marketing in the time leading up to this monumental victory for the Qataris and football in the Middle East.

Doubtless, ambush marketers will be ever more nimble and clever in manoeuvring the laws if the events of yesteryear are anything to go by.

Who would have forgotten the women in orange at the FIFA World Cup 2010. Women in a highly distinctive shade of orange in the match between The Netherlands and Denmark made news when they were accused by FIFA as ambush marketers for allegedly advertising for BAVARIA, a Dutch beer brand. BAVARIA did give out those dresses. Never mind that the women were South African. But seriously, what’s to stop a South African woman from barracking for The Netherlands anyway?

Nonetheless, Budweiser, an official FIFA sponsor and the only beer company allowed to advertise within official FIFA venues was not amused.

What is at stake?The FIFA World Cup is the most watched sporting event in the world – every four years, billions of spectators across the world put their lives on hold regardless of time zone differences to watch the football extravaganza that is the FIFA World Cup.

Clearly, this translates into an advertising bonanza for brand owners. The FIFA World Cup provides an unparalleled opportunity for brand owners to expose their brand to a worldwide audience transfixed with an attention span of an intensity, which only FIFA World Cup fans can muster.

For the FIFA World Cup organisers, the advertising dollars is one of the most important sources of revenue necessary for staging such a monumental event. Typically, at least 75% of the budgets of such events are derived from corporate marketing sponsors, broadcast rights fees and royalties from official merchandise licensees. Corporations expect to pay millions of dollars for the privilege of

being Tier One corporate partners of the FIFA World Cup.

Event organisers need to protect the attractiveness of sponsoring events and the resulting dollars.

Enter the ambush marketers, those engaging in marketing practices which draw an unauthorised association with the high profile event without having paid for an official designation as an authorised partner.

In the above example, BAVARIA ambushed BUDWEISER. When effectively employed, ambush marketing is very difficult to prevent and a creative ambush marketer well advised by a savvy IP lawyer can be a legitimate sponsor’s greatest marketing nightmare. Clearly, pursuing a well advised and determined ambush marketer is a challenging task. An ambush marketer who develops a creative advertising campaign around the event by never ever using the event indicia such as its logo, trade mark, trade name or anything similar thereto but cleverly using images or indicia, which is commonly associated by the consuming populace with the event, is a tricky customer who could potentially test the law to its limits. E.g. The use of images of the French Alps, winter fun and games in advertising in the lead up to the 1992 Olympic Winter Games by American Express where VISA was the official credit card sponsor.

Event OrganisersCertainly, FIFA is no stranger to taking on ambush marketers. It has published an exhaustive and extremely strict code of what it considers to be unacceptable marketing practices surrounding its event and the list is a long one with a wide reach. Basically, any marketing practice, which draws a commercial association with the FIFA World Cup is banned unless it has FIFA’s authorisation.

A rights holder’s options in pursuing an ambush marketer depends on the law in the country in which the ambush takes place. It remains to be seen whether Qatar will be enacting legislation specific to the FIFA World Cup to combat ambush

marketing as did South Africa as hosts in 2010.

If past enforcement efforts are anything to go by, the following could be key features of the event organiser’s program in the combat ahead with ambush marketers: • Charge a special purpose vehicle with the authority to investigate and sue ambush marketers and infringers.

• Embark on an education campaign on the basics of intellectual property and ambush marketing including advertisements in consumer and trade publications targeting the public, retailers, potential sponsors, suppliers, licensees and athlete agents.

• Publicise legal actions filed alleging IP infringements.

• Conduct market surveillance of unlicensed merchandise and infringements.

• Put in place strict regulations at the official venues regulating the rules of entry such that non sponsor merchandise is banned.

SponsorsGenerally, sponsors should at the very least be armed as follows: • Implement full trade mark protection in respect of the relevant goods and services.

• Enter into a comprehensive sponsorship agreement.

• Ensure prominent trade mark and copyright notices are placed on all official merchandise and hoardings.

• Adopt a zero tolerance approach by being vigilant and ensure swift and decisive action against all infringers.

• Collaboratively with a legal enforcement program, pursue non-legal alternative solutions such as a publicity campaign designed to identify and endorse official sponsors.

Clever marketers, moneyed sponsors, watchful event organisers, responsible government, other stakeholders and their IP lawyers are gearing up for the off site competition. Let the games begin!


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50 Law Update

Companies big and small engage in ambush marketing. Creative ambush marketers who successfully ambush their competitors who are the official sponsors can save their companies millions of dollars.

EXAMPLES INCLUDE:

1992 OlympicsCoca Cola paid $33 million to be an official sponsor of the 1992 Olympics but Pepsi ambushed Coca Cola by airing a commercial featuring Magic Johnson, a member of the US Olympic basketball team

1996 OlympicsReebok was the official footwear sponsor and Nike went on a campaign buying up blocks of billboard space

around the venues, handed out merchandise bearing its famous swoosh, built a NIKE Village next to the athletes’ village. In surveys, a greater proportion of TV audiences mistakenly recalled Nike as an official sponsor rather than Reebok, thus confirming Nike’s successful ambush.

1998 Olympic Winter GamesMcDonalds was an official sponsor. Wendy’s responded by sponsoring ABC’s broadcast of the Games, featuring ski racing posters in its storefronts emblazoned with “We’ll Be There!”, printing Olympic inspired stories on their trayliners and inscribed what appeared to be Olympic like rings on its napkins.

The FIFA World Cup provides an unparalleled opportunity for brand owners to expose their brand to a worldwide audience transfixed with an attention

span of an intensity, which only FIFA World Cup fans can muster. For the FIFA World Cup organisers, the advertising dollars is one of the most important sources

of revenue necessary for staging such a monumental event.


Law Update 51

Stefan Jury, PartnerBanking & [email protected]

Sara Lisgo, AssociateCorporate [email protected]

BANKRUPTCY IN QATAR AND ITS IMPACT ON SECURITY IN RELATION TO FOREIGN ASSETS


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52 Law Update

The bankruptcy regime in Qatar draws upon the principles contained in the legislation of many western jurisdictions. It includes familiar concepts such as claw-back and preferences. Where Qatar differs from these jurisdictions is that it is largely untested. There is no reliable back-catalogue of comprehensive precedents. This causes understandable concern for financial institutions and lenders in general. How confident can they be in the validity and value of their security if the borrower or security provider becomes bankrupt?

Financial institutions see it as important to take collateral, wherever it is available, both inside and outside of the jurisdiction to support financial arrangements in Qatar. Examples include real estate, equities listed on international exchanges, government and corporate bonds and physical assets such as plant and machinery.

In Qatar there are two concurrent bankruptcy regimes. The first is the local regime, the provisions of which are set out in the Commercial Law No 27 of 2006 (“Local Regime”). The second is found in the QFC Insolvency Regulations 2005 and applies to bodies corporate and branches registered in the QFC (“QFC Regime”).

The Local Regime The Local Regime appoints a bankruptcy administrator to manage the bankrupt’s affairs, business and property with the aim to achieve repayment of the bankrupt’s debts, as far as possible. The Local Regime contains no explicit provisions with respect to foreign bankruptcy proceedings. This is distinct from some western jurisdictions, where there is clear provision for cross border issues in the event of bankruptcy and the ways in which these should be addressed.

Qatar has not implemented the Model Law on Cross Border Insolvency of the United Nations Commission on Trade Law (UNCITRAL Model Law). It is therefore unable to seek the co-operation of the foreign courts in those countries which have implemented it, such as Australia and the US. Notwithstanding this, and in light of the increasingly international nature of

insolvency, commercial necessity has encouraged national courts to provide assistance to each other under a concept known as comity of law. This means that territorial integrity does not prevent a court in one jurisdiction from giving assistance to a court in another jurisdiction in respect of assets located, or persons resident within its territory. Indeed there are certain countries, for example England & Wales, in which the national courts have an inherent jurisdiction to assist foreign office holders. Consequently they may remit assets located in their own jurisdiction to assist a Qatari bankruptcy administrator. However, if the courts in the location of the asset are unwilling or unable to offer assistance, the bankruptcy administrator may have to initiate concurrent proceedings.

Although there is no recognition of foreign proceedings in Qatar, there are also no provisions restricting the power of the bankruptcy administrator to look beyond Qatar to the bankrupt’s assets abroad. Nothing in the Local Regime distinguishes between external and internal assets. It therefore follows that the bankruptcy administrator should be permitted to take action it deems necessary to seize the bankrupt’s foreign assets to boost the bankrupt’s estate for distribution to the creditors in the Qatari proceedings. The ease with which this action is taken is likely to depend upon the jurisdiction of the assets.

While the Local Regime remains largely untested it is difficult to say with any certainty how effectively

the administration of the bankruptcy process would handle any cross-border aspects.

The QFC RegimeThe Qatar Financial Centre (“QFC”), established in 2005, is a separate legal jurisdictions from the State of Qatar, similar to the Dubai International Financial Centre (DIFC). The QFC has implemented its own bankruptcy regime through its Insolvency Regulations 2005. The QFC Regime is based on common law principles and is consequently similar to insolvency legislation in England and Wales and other common law jurisdictions. It offers a more comprehensive regime than the Local Regime and, because it is more closely linked to England and Wales, one can perhaps look to case law there for further guidance as to its application.

The QFC Regime takes a wider approach to bankruptcy as it recognises non-QFC bankruptcy proceedings, including foreign proceedings. Provisions of the Insolvency Regulations state that the QFC tribunal will co-operate to the maximum extent possible with courts of non-QFC representatives (i.e. a person or body authorised in a non-QFC proceeding) and may be willing to entrust distribution of all or part of the bankrupt’s assets located in the QFC to the non-QFC representative, provided it is satisfied that the interests of the creditors in the QFC are adequately protected.

In terms of seizing assets in different jurisdictions, the QFC Regime gives the insolvency administrator, supervisor or liquidator wide authority to act outside of the QFC on behalf of a proceeding under the QFC Regime. Thus the insolvency administrator is able to take any action deemed appropriate to recover assets in other jurisdictions to realise their value for the benefit of the creditors in the QFC proceedings.

The QFC Regime is a more substantial piece of legislation than the Local Regime. It offers more certainty to lenders and security holders in terms of the cross border aspects of the bankruptcy procedure. The case law of the jurisdictions upon which it is based also gives guidance as to the application of its principles in practice.

The Local Regime appoints a

bankruptcy administrator to manage the bankrupt’s

affairs, business and property with the aim to achieve repayment

of the bankrupt’s debts.


Law Update 53

Impact on holders of security in relation foreign assetsA security holder in relation a foreign asset will want to take prompt action to ensure the asset does not fall within the portion of the bankrupt’s estate available for distribution to unsecured creditors following the issuance of a bankruptcy judgment. Depending on the jurisdiction, it may be possible to enforce certain types of security, such as share pledges, without the need for a court order. Share certificates and blank share transfer forms should be obtained by lenders when taking such security in order to facilitate sale without recourse to the courts in the event of a default.

The security holder should also consider informing the Qatari administrator of bankruptcy of its foreign enforcement action with the aim of preventing any attempts to take control of that asset. This will not be an issue for registered charges such as mortgages however there may be certain types of security vulnerable to such action. An example would be a floating charge over a debt repayment or a receivable. In the event that the Qatari bankruptcy

administrator secured the repayment of a debt in the UK for the benefit of the bankrupt’s estate, the holder of a charge over such debt could find itself in Qatar trying to enforce its security under the bankruptcy proceedings - possibly as an unsecured creditor. Enforcement could take as long as 3 years if contested.

ConclusionQatar’s staggering economic growth, combined with other factors such as a view that an admission of inability to pay debts is not good business practice, means that very few bankruptcies have taken place in Qatar. While bankruptcy laws are largely untested and a lender can never be 100% satisfied as to the validity, value and enforceability of its security, there are practical measures a prudent lender can take to protect itself.

As a general principle, security should be taken where the asset is located, and security documents will therefore be governed by the laws of such jurisdiction. A well advised lender will ensure that appropriate steps are taken to perfect the various types of security open to it. Proper legal advice should be taken and a legal opinion obtained from a reputable local law firm in the jurisdiction as to the enforceability of the security document and the capacity of the entity granting such security, depending on the circumstances.

In terms of seizing assets in different

jurisdiction, the QFC Regime gives the

insolvency administrator, supervisor or liquidator

wide authority to act outside of the QFC on behalf of a proceeding

under the QFC Regime.


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54 Law Update

Kamal Hafez, AssociateProperty & [email protected]

REPO TRANSACTIONS UNDER THE QATARI LAW

Since the onset of the world financial crisis, financiers have been developing various methods to better secure finance. Popular in Islamic finance is the use of a Repo arrangement instead of a more traditional security arrangement (e.g. borrowing on the security of a particular asset). In a Repo transaction the financier purchases an asset from the borrower (seller) and grants an option to the borrower to repurchase the asset for a higher price at a future time.

The buyback option provides strong security because the title to the assets is with the financier. This means that, if the borrower does not re-acquire the asset, then the financier has freedom to sell the assets without the need for costly enforcement through the courts. A pledge will give priority rights over a particular asset, however, the complicated procedures to recover the amount of the loan makes this a much less attractive process of having the financier’s attain outright ownership, with all the advantages of ownership.

But are buybacks valid under Qatari Law?A simple repurchase transaction is most likely void under the Qatari law.

Article 474 of the Qatari Civil Code provides that:

“If at the time of sale the seller retains the right to recover the sold asset, the contract shall be void”.

Pursuant to jurisprudence, specifically the Egyptian scholar Al Sanhouri, the


Law Update 55

principle set out in Article 474 of the Civil Code is intended to protect the seller from unfair contractual terms, as in practice, Repo transactions may be an indirect arrangement of security and not merely a sale agreement. Security is regulated under mortgage and pledge provisions in the Civil Code, and creditors secured by a mortgage are not entitled to receive more than the amount of their secured rights from the proceeds of selling the mortgaged or pledged security after enforcement.

Accordingly, the legislators in Egypt and various Arab legal systems decided to prohibit Repo transactions with the result that they are void. The purpose is to compel the parties to resort to mortgages which are regulated by the law to protect the interest of the parties.

Despite this, financiers have developed new models to try and avoid the possibility of the entire transaction being void. For example, the seller could sell an asset to the financier using a Sale and Purchase Agreement and then the financier could enter into a separate agreement with the seller, to sell him back the sold asset within a fixed period, conditional upon recovering back the price plus fees and certain costs (equivalent to lending interest). Also, the seller could sell an asset to the financier, and then the financier could sell the asset to a third party under a separate agreement with the seller. The third party could then sell the asset back to the seller under a third agreement conditional upon recovering back the price plus fees and costs within a fixed period.

Courts in Qatar have not had the opportunity to properly consider these models and so it is still open to argument as to whether they can

circumvent the operation of Article 474. However, Egyptian jurisprudence points the way to shedding some light on how Qatari courts may handle such cases. Qatari courts may recognise the principles of the Egyptian scholar Abdulrazik Alsanhori as a persuasive authority in absence of local resources.

According to Abdulrazik Alsanhori these models may still be void, as a judge has the discretionary power to trace the transaction or the series of transactions to find out whether the buyback sale is intended to cover a financing transaction and in which case a judge would declare the sale and all the transactions based on this sale, null and void.

Technically, when a seller sells an asset to a financier, and on a later date they enter into a separate agreement granting the seller the right to repurchase the asset, would not fall within the scope of Article 474 of the Qatari Civil Law. However, the court might look at the intention of the parties at the time of conclusion of the first agreement to determine whether the series of transactions was to cover

a financing transaction. There is a risk that a court could construe this arrangement as void if they find it as being an arrangement that falls within Article 474 of the Qatari Civil Law.

Situation under the Various JurisdictionsArticle 1333 of the Iraqi Civil Code stipulates that “sale with a right to recover the sold, is considered a pledge” and, therefore, the transaction contemplated by Repo arrangement will not be void, however, the Iraqi courts will not look at the sale provisions under the Iraqi Civil Law to determine on a dispute arising from a Repo arrangement, instead, it will apply pledge provisions set out the Iraqi Civil Law to determine on the transaction.

The attitude in the Libyan and the Syrian Civil Code is the same as in the Egyptian Law, as Article 454 of the Libyan Civil Code and Article 433 of the Syrian Civil Code prohibit buyback sale.

However, the attitude in Lebanon is different as buyback sale is allowed under the Lebanese Obligations and Contracts Law, as Articles 473-486 described the buyback sale in details.

ConclusionThe Arab legal position on the validity of the Repo arrangements varies from one Arab jurisdiction to another. The majority of the legal systems consider these arrangements invalid (Egypt, Libya and Syria), and some other Countries consider them as a pledge (Iraq), while Lebanon validates them. Although there are no precedents available in Qatar, the Repo arrangement is at risk of being voided by Qatari courts, if the Qatari courts adopt, as persuasive authority, the principles laid down by Egyptian precedents.

We suggest that considerable care be given to structuring arrangements of this kind to ensure they are not later subject to the argument that can make them void.

The principle set out in Article 474 of the Civil Code is intended to protect the seller from unfair contractual terms, as in practice, Repo transactions

may be an indirect arrangement of security and not merely a sale agreement.

In a Repo transaction the financier

purchases an asset from the borrower (seller)

and grants an option to the borrower to

repurchase the asset for a higher price at a

future time.


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56 Law Update

Sharifah Hamzah, [email protected]

TENDER PROCESS FOR GOVERNMENT PROJECTS IN QATAR

Foreign construction companies wishing to participate in Government tender bids in Qatar should seek legal advice first. Often, foreign construction companies will focus more on the technical and commercial aspects of a tender bid; while overlooking the legal terms and conditions included in the tender documents. These companies may assume that the basic legal concepts they are familiar with in other jurisdictions are similarly applicable in Qatar, however, only in the process of executing the work do they realise that this may not be the case.

These companies should initially investigate the tender process, their eligibility in participating in a particular tender and the procedures for setting up in Qatar. They should be aware of the rules and regulations affecting their establishment in this country.

It is prudent for them to assimilate themselves with the local conditions before embarking on a major project. A potential bidder for a major project should ascertain whether they have the technical capability, financial strength, relevant experience and available resources to undertake such a project.

Where they are required to submit design drawings, they ought to have the relevant experience to provide these drawings and they should be able to adapt to local practices in

drawing submissions. Many foreign contractors fall into the trap of clinging on rigidly to their normal practices and views which they inherited from their experience in their home countries causing them to invariably fail in adapting to the conditions in Qatar and later find themselves in a quandary over many issues. These contractors will often find that the execution of the works will be fraught with significant problems if they do not conduct adequate planning, research and preparation before submitting their tender and undertaking the project. Common pitfalls and difficulties faced by contractors undertaking projects in countries which they are not familiar with may include:

• Delay in procurement of materials such as concrete, steel and sand.• Failure to take note of the restrictions imposed on transportation of materials causing delays in work.• Delay in hiring workmen and finding workers with the requisite experience and qualification.• Delay in securing the relevant work permits for their workers.• Failure to familiarise themselves with the new environment and to investigate ground conditions properly.• Engaging subcontractors who are not approved by the concerned governmental party.

The Government of Qatar has streamlined the tender procedure for Government projects and has established the Central Tenders

Committee and the Local Tenders Committee to oversee this process. These two committees are also known as the Competent Tenders Committee.

The Central Tenders CommitteeThe Central Tenders Committee (“the Committee”) will administer tenders and bids, at the request of the concerned governmental entity, which have estimated values that exceed Five Million Qatari Riyals (QAR 5,000,000), including the award of contracts on behalf of government entities (with the exception of the Armed Forces and the Police contracts of a confidential nature and Qatar Petroleum contracts). Tenders below the aforesaid estimated value are overseen by the Local Tenders Committee, where contracting is done through local tenders. The participation of such tenders is restricted to local suppliers, contractors and service providers.

The law governing the establishment and powers of the Committee is the Tenders and Auctions Law No (26) of 2005 as amended by Law No (22) of 2008 and Law No (14) of 2010 (“Tender Laws”). The provisions of this legislation cover the tender procedures for contracts for the purchase of items, contracting business, services or works of art. Under the Tender Laws, the Committee is given special functions to receive tenders, review tenders and give its opinion and recommendation


Law Update 57

with respect to the adjudication of the tenders.

The Contractors Classification Committee, which is affiliated to the Committee, is given the power to classify and reclassify the contractors in various classes and specialties according to their technical and financial ability, their expertise, skills and former business. The Contractors Classification Committee decides on the application for classification of the contractors submitted to it within thirty (30) days from the date such application is submitted. The contractor is entitled to request that the decision on his classification be reconsidered one year after the issuance of the decision.

Preparation of the Invitation to TenderThe compilation of documents for the Invitation to Tender is prepared by the concerned governmental party seeking to engage the services of a contractor to execute the works. The concerned governmental party will prepare the general conditions of contract together with a detailed scope of works and instructions for the contractors including the following:• Necessary instructions for the contractors.• Entire Detailed Drawings and Specifications.• Detailed and accurate table of quantities.• Procedure to be adopted in the implementation of the contract.

• Penalties imposed in the event of any breach of the provisions of the contract or delay in the execution of the works.

There should be as much detail as possible included in these documents to circumvent the need for bidders to revert to the concerned governmental party for clarification. It is therefore essential, when tendering, to ensure that the aforesaid documentation is accurate and concise and that it reflects the level of work required to prepare the tender.

Call for Tender and Submission of TenderThe Committee will thereafter advertise the tender by way of publication, at least twice, in the local daily newspapers. The announcement will also be put up on the notice boards of the headquarters of the Committee and the concerned governmental party. In addition to the aforesaid methods of publication, the tenders may also be published by using modern methods of communication. The general tender announcement will set out the following details:

The Government of Qatar has streamlined

the tender procedure for Government projects

and has established the Central Tenders Committee and the

Local Tenders Committee to oversee

this process.


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• The number and object of the tender.• Brief statement about the items or business or services required to be purchased or implemented.• The party providing the tender documents.• The amount payable by the bidder for a copy of the tender documents.• Class and competence.• System of submitting the offers.• Party before which the offers are submitted and the submission deadline.• Fixed date for opening the envelopes.• Amount and effectiveness period of the temporary guarantee.• Effectiveness period of the offer, being ninety (90) days at least as from the date of opening the envelopes.• Amount and effectiveness period of the final guarantee to be submitted by the winner of the tender.• Stipulation of the concerned governmental party’s right during the effectiveness of the contract, after acquiring the approval of the Committee, to increase or decrease the quantities of the items or business or services by twenty percent (20%), at most, of the contract value under the same conditions and prices, provided that the increase be the same type of items, business or services stipulated in the contract.

All tenders must be submitted within the timeframe set out for submission to the Committee. It is important to note that bidders should not make any amendments to the tender documents. In the event that the bidder wishes to insert some special conditions or make any modification to the tender documents, this ought to be done via a separate letter which should be enclosed with the tender submitted and the bidder should refer to this letter in the body of the tender. The tender offers that do not include total fixed prices will not be accepted; every offer violating the said provisions will be considered null and void.

Tender PriceThe tender price quoted is required to be in Qatari currency unless the tender documents stipulate otherwise. It is imperative to take great care in the calculation of the tender price. Only the total price mentioned in the

tender form will be taken into account without any other figures or any mistakes made by the bidder during the calculation of the total price of its offer. In the event the bidder makes a mistake in the calculation of its tender price, it will not be allowed to modify this after submission of tender. If the total price written in letters is different from the total price written in figures, the total price in letters will be taken into consideration. In the event the calculation mistake exceeds five percent (5%) of the total price value mentioned in the tender form, the offer will be excluded unless the Committee (by majority votes) decides to accept it for reasons related to public interest.

Some contractors have a penchant for under pricing or under-allowance of costs in their tender bids. Awarding the contract to such a contractor would lead to significant potential problems to the project owner/employer. The general fear and

assumption is that this contractor will, throughout the contract period, make attempts to recoup his lost monies by compromising on quality, giving less, or at worst, the contractor may face insolvency.

The tender must include fixed lump sum prices which include all expenses such as transportation, insurance, custom duties and other taxes. All items stated in the bill of quantities must be priced and the lump sum price quoted in the tender form will be considered to include the prices of all the required items. If certain items are not priced, this will be taken to mean that the bidder abstains from entering the tender related to the said item. Further, in the contracting business, if the bidder did not determine the price of one of the items mentioned in the contracting business it submitted, the Committee is entitled to decide

whether to exclude the offer or fix a higher price for this item, after comparing it with the other technically accepted offers, and the executive regulations of the Tender Laws will set out the basis and rules that will be applied regarding this matter.

The bidder will not be allowed to make any amendments to its price after submitting it’s tender. It may not withdraw its offer or amend its prices after submitting its tender and it shall be committed to the prices and conditions stated in its tender.

It is crucial for bidders to be able to assess the risks involved in undertaking the project. Careful scrutiny of the tender documents including the general and special conditions of contract is required with particular focus on the allocation of risks between the parties as this will affect the bidder’s pricing for the project. The nature and number of risks

must be identified and evaluated, thus ascertaining the consequential costs involved. All too often, in tendering for a project, contractors make the mistake of inadequately assessing and pricing the risks, leading to many loss making projects. In addition, bidders should also take into account that the concerned governmental party has the right of variation by way of increasing or decreasing the quantities of the items or the works or services up to twenty percent (20%) of the contract value provided that any such increase is related to the same type of items, works or services set out in the contract.

Where a contractor has delayed performance of works, the Tender Laws allow the concerned governmental party to grant an extension of time to complete works provided that the contractor is penalised with a fine

Under the Tender Laws, the Committee is given special functions to receive tenders, review

tenders and give its opinion and recommendation with respect to the adjudication of the tenders.


Law Update 59

for the delay period. This fine shall not exceed ten percent (10%) of the contract value. The contractor should seek legal advice on the relevant provisions under Qatari law with respect to liquidated damages and the imposition of penalties. It is also very important to seek legal advice on the application and enforceability of any limitation of liability provisions in the construction contract. Contractors from other jurisdictions may make certain assumptions regarding liquidated damages and limitation of liability, based on their previous experience undertaking projects in other countries, which do not necessarily apply in Qatar. There is no point feigning ignorance of the local laws and regulations once the contract is signed. (Claire – please use this quote)

Tender Bond and Performance BondA tender bond (or a temporary guarantee, as it is called in the Tender Laws) will be required to be deposited together with the tender. This is a security in a lump sum amount fixed by the concerned governmental party. Note that the Committee has the right to exclude any tender which is not submitted with a tender bond.The tender bond can be in the form of a bank cheque or an unconditional bank letter of guarantee from a local bank. The tender bond shall be valid for payment in whole and should be valid for a period of at least thirty (30) days after the termination fixed for validity of tender. The tender bonds shall be returned to the bidders immediately after the expiration of the determined effectiveness period of the tender or before the same in the event the winning bidder whose tender has been accepted, has deposited the performance bond (known as the final guarantee in the Tender Laws).

Evaluation of Tender and Award of ContractThe tenders will then be reviewed by the concerned governmental party’s technical team who will thereafter submit their recommendations to the Committee. The concerned governmental party is entitled to collect from the bidders the necessary data to complete the technical study of the tender provided that it does not prejudice the conditions,

specifications and prices mentioned in the tender offers.

The Committee is not bound to accept the recommendations of the concerned governmental party but a decision of the Committee which is inconsistent with the recommendations of the concerned governmental party has to be issued by a majority of two-thirds of the members forming the Committee.

Although it is the norm that the Committee will recommend the bidder who submitted the lowest total price, the Committee may at times recommend the award to a bidder who submitted a higher price. This is justifiable in the case where the Committee feels that the price quoted by the lowest bidder is unreasonably low. We have already addressed the pitfalls of awarding a contract to a bidder whose bid is clearly under priced.

The recommendations of the Committee will then be passed to the Minister of Finance for approval, and where the tender exceeds Fifty Million Qatari Riyals (QAR 50,000,000), it must be approved by the Prime Minister based on the proposal of the Minister of Finance.

The concerned governmental party will ask the winning bidder to show up in order to submit the final guarantee/performance bond within ten (10) days from the day after being notified of the acceptance of the offer and to sign the contract within the determined date. However, in the event the bidder does not show up at the determined date, it shall be considered as withdrawn. In the event the bidder withdraws for any reason during the effectiveness period of the offer, without an acceptable excuse, or in the event the bidder of

the accepted offer does not deposit the final guarantee/performance bond during the said period, or in the event it abstained from signing the contract at the determined date, the Committee may take one or more of the following measures:

• Sending a notification.• Confiscating the temporary guarantee.• Confiscating the final guarantee.• Decreasing the class of the bidder.• Striking the bidder off from the register for a specific period or permanently.

ConclusionIn general, tendering for projects anywhere in the world has become a more complex exercise where pricing is only part of the selection criteria. Construction and procurement methodologies are also taken into account in the selection process. Other criteria which would be taken into consideration is the contractor’s understanding of the project employer/owner, in this case, the concerned government party’s objective. Likewise, more tangible considerations may also form the basis of selection such as the contractor’s general approach and ability to correlate with the project employer/owner and their team and the contractor’s general compatibility with them.

As a general rule, any contractor bidding for a project in any country should have a basic idea of the laws of that country particularly on the following areas:

• Dispute resolution procedure and enforcement of awards.• Enforceability of limitation of liability clauses.• Entitlement to additional payment for variations.• Delay compensation.• Price escalation.• Decennial Liability.• Suspension of Works.• Termination for Convenience.

As mentioned earlier in this article, it is advisable to seek proper professional advice including; financial, technical and legal advice, before embarking on a major project in Qatar.

The tender price quoted is required to be in Qatari currency unless

the tender documents stipulate otherwise. .


Qatar

60 Law Update

Wong Yuen Ping, AssociateCorporate [email protected]

IS THE ELECTRONIC CUSTOMER ALWAYS RIGHT?Qatar’s New E-Commerce Law Takes Consumer Protection Further


Law Update 61

Qatar’s Decree Law No. 16 of 2010 on Electronic Commerce and Transactions (E-Commerce Law), which came into effect towards the end of 2010, promises greater protection for consumers in electronic transactions. Although Qatar’s Consumer Protection Law and Commercial Code offered some protection of consumers’ rights, these laws were of a general nature and did not specifically deal with consumers in the context of e-commerce. The E-Commerce Law is timely given that online transactions are now part and parcel of life and conducted through a variety of electronic and telecommunication devices.

Concluding an electronic contractThe E-Commerce Law requires the terms of an electronic contract to be stated clearly to the consumer prior to an order (whether for goods or services) being placed and the contract concluded.

Article 55 states that where an electronic communication relates to an order to conclude a contract of commercial nature, a service provider shall, prior to an order being placed, provide the consumer with the terms and conditions of the contract in a clear and comprehensible manner. (Electronic communication is defined in the E-Commerce Law as “any communication of information by means of telecommunications”.)

The terms of the contract to be provided should include information regarding the service provider, description of the main characteristics of the services or goods, prices, whether the consumer has the right to cancel the order, etc.Additionally, the consumer has to be given “appropriate, effective and accessible” means of correcting any errors in an order before the order is placed. An acknowledgement should be sent “without undue delay” in order for the consumer to be sure that the order has been placed.

More importantly, Article 56 of the E-Commerce Law also specifies the point when an order or acknowledgement of contract is deemed to have been received. This is important in determining the point at which a contract has been concluded

between the consumer and the service provider. Article 56 states that the order or the acknowledgement of receipt shall be deemed to be received when the parties to whom they are addressed are capable of accessing it.

Further, the acknowledgement of receipt may take the form of the provision of a service for which payment has been made.

Cooling-off periodIt is not uncommon for consumers making purchases or conducting transactions electronically to have done so hastily or based on insufficient knowledge or a misconception of the products or services presented. In recognition of this, the E-Commerce Law allows for a ‘cooling-off period’, as in many other jurisdictions, during which a consumer may back out of a contract.

Article 57 states that unless the parties agree otherwise, the consumer shall have the right to rescind or terminate the contract within 3 days from the date of entering into the contract so long as the service provider does not fully implement the contract and the consumer does not use the goods or products nor receive any benefit or value from them.

The end of spam?Those who have been frequently annoyed by spam ranging from junk emails to numerous text messages (sms) on mobile phones would be relieved by the prohibition on unsolicited communications under the E-Commerce Law.

Under Article 54, a service provider is required to have the “explicit consent”

of a consumer regarding an electronic communication before it can be sent to that consumer. There is a presumption that consent of the consumer has been obtained where there is an existing relationship with the service provider which meets the apparent expectation of the consumer to receive the communication, provided that:

• The content of the communication is relevant to the purpose of the relationship.• The service provider provides the recipient appropriate means and opportunity to opt out from receiving any further electronic communications at any time.

Data protection Service providers are now required to protect the personal information of their customers. “Personal information” is defined in the E-Commerce Law as “information about an individual whose identity is apparent or can reasonably be ascertained either from that information or from a combination of that information and other information”.

A service provider is required by Article 59 to identify the purposes for which personal information about the customer is collected and is prohibited from collecting, using, retaining or disclosing such information for undisclosed or unauthorised purposes unless permitted or required by law.

A service provider is also required to take “reasonable steps” in protecting the personal information of the customer and related records; the protection measures should be commensurate with the importance of the information.

A service provider is required by Article 59 to identify the purposes for which personal information

about the customer is collected and is prohibited from collecting, using, retaining or disclosing such

information for undisclosed or unauthorised purposes unless permitted or required by law.


62 Law Update

Kingdom of Saudi Arabia

Hesham Al Homoud, Senior [email protected]

THE PROPOSED KSA COMPANIES LAW

It has been almost a decade since various governmental authorities in the Kingdom of Saudi Arabia started their discussions in relation to the issuance of new regulations that govern commercial companies in the Kingdom. This article is an effort to give an overview of the current position of the proposed companies’ law and expected changes.

Since 2002, there have been discussions and deliberations to amend the current Saudi Companies Law, which was issued in 1965 (“SCL”) in order to take into consideration the continuous development in various fields of the Saudi business environment, such as: the accession of the Kingdom of Saudi Arabia to the World Trade Organization; establishment of the Saudi Arabian General Investment Authority (“SAGIA”), the Saudi Industrial Property Authority (“MODON”) and the Capital Market Authority (“CMA”).

There are various government bodies discussing the Proposed Companies Law (“PCL”), in particular, the Ministry of Commerce and Industry (“MOCI”) and the Bureau of Experts, at the Council of Ministers and Shura (Consultative) Council.

The PCL consists of 266 articles giving a greater role to the CMA, specifically, to have almost full supervision of listed joint stock companies. In accordance with corporate governance regulations issued by the CMA, the PCL provides that the minimum members of board of directors is three and maximum of 11, and owning a specified minimum number of shares of the relevant company will no longer be required.

Further, the CMA will have the power to call for a general assembly in certain situations and to extend the lock-up period for share transfer from the founders of listed joint stock companies to any third party. The PCL also provides that debt instruments and Shari’ah compliance bonds (sukuk) could be converted into negotiable shares.

There are a number of forms of companies, valid in the old SCL that will not be permissible in the new PCL; specifically, Cooperative Company, Companies with Variable Capital and Partnerships Limited by Shares.

In light of technical developments, publication in the Ministry’s website will be sufficient instead of publication in the official gazette or a local newspaper.

One of the most significant changes in the PCL is that the government; public juristic persons; companies that are totally owned by the government and companies of capital not less than SAR Five Million, may incorporate

a one-person joint stock company, with full authority of the shareholders assemblies, including the foundation assembly.

Another important change is that when the company’s losses reach half of its paid up capital, any executive of the company, or the designated auditor shall inform the chairperson of the board of directors of same, who is then obliged to inform all directors and ultimately, to call for an extraordinary general assembly. If the extraordinary general assembly fails to convene within the specified period, or remedy the losses using the appropriate methods in accordance with the relevant regulations, the company shall be considered dissolved under the PCL.

In connection with the limited liability companies, the PCL allows a natural or juristic person to incorporate a Limited Liability Company (“LLC”) owned by one person. Also when the shareholders in an LLC exceed 50 shareholders, the company should be converted to a joint stock company within one year, otherwise the company shall be considered dissolved under the PCL, unless the excess of shareholders was as a result of an inheritance or provisions of a will.

Unlike the SCL, the PCL has expressly established the position of a holding company and provides that a holding company can be established in the form of an LLC or a joint stock company. Nevertheless, a holding company shall identify itself as holding company by adding in its name the word “holding”. A company would be considered as holding company if it controls other

The PCL also provides that debt instruments and

Shari’ah compliance bonds (sukuk) could be

converted into negotiable shares.


Law Update 63

subsidiaries by owning more than half of the share capital of that subsidiary.

The PCL is still under discussion and the reciprocal views of the Shura (Consultative) Council, Ministry of Commerce and Industry and Bureau of Experts at the Council of Ministers. According to the latest news, the PCL, with its latest updating, was presented by the Ministry of Commerce and Industry to the Shura (Consultative) Council. Following completion of deliberations by the Shura (Consultative) Council, it will be sent to the Bureau of Experts at the Council

of Ministers, to review any comments or proposals added by the Ministry of Commerce and Industry and/or the Shura (Consultative) Council on the final draft. If there are no comments, the Bureau of Experts, at the Council

of Ministers, shall pass the PCL to the Council of Ministers for approval and issuance. Based on our discussion with a number of highly-placed officials, the PCL shall be issued sometime in 2011.

The PCL allows a natural or juristic person to incorporate a Limited Liability Company owned by

one person.


64 Law Update

Legislative Update

OFFICIAL GAZETTE

United Arab Emirates Ministry of Justice 30th November 201040th YearIssue No. 51525 Dhu Al Hija 1431

FEDERAL DECREES

83 of 2010 Terminating the appointment of the head of a delegation

84 of 2010 Transferring an ambassador to the Office of the Ministry of Foreign Affairs

85 of 2010 Appointing a UAE ambassador to the Kingdom of Morocco

86 of 2010Transferring a member of the diplomatic and consular corps to the Office of the Ministry of Foreign Affairs

87 of 2010 Appointing a UAE ambassador to the Great Socialist People’s Libyan Arab Jamahiriya

88 of 2010 Promoting an official to the post of executive director

89 of 2010 Appointing an executive director at the Ministry of Culture, Youth & Community Development

90 of 2010 Appointing the Director General of the Telecommunications Regulatory Authority

REGULATORY DECISIONS OF THE CABINET

32 of 2010Cabinet decision amending Cabinet Decision No. 6 of 2005 fixing fees for non-UAE nationals who wish to avail of surgery and hospital stay

MINISTERIAL DECISIONS

• From the Ministry of Environment & Water

727 of 2010Minister of Environment & Water decision amending Ministerial Decisions No.’s 609, 610, 611 & 612 of 2010 regarding the catching of shallow water migratory fish using enclosures

746 of 2010Minister of Environment & Water decision lifting the ban of the import of all kinds of live birds and their products from GCC countries

• From the Ministry of Justice

1018 of 2010Minister of Justice decision granting law enforcement powers to certain officials at the Department of Economic Development

1019 of 2010Minister of Justice decision granting law enforcement powers to certain officials at Abu Dhabi Municipality



Law Update 65

1024 of 2010Minister of Justice decision granting law enforcement powers to certain employees of Saaed Company for Traffic Systems

1068 of 2010Minister of Justice decision regarding the distribution of work within the Kalba Federal Court of First Instance for the Judicial Year 2010-2011

1069 of 2010Minister of Justice decision regarding the distribution of work within the Umm Al Quwain Federal Court of Appeal for the Judicial Year 2010-2011

1070 of 2010Minister of Justice decision regarding the distribution of work within the Umm Al Quwain Federal Court of First Instance for the Judicial Year 2010-2011

1073 of 2010Minister of Justice decision regarding the distribution of work within the Ajman Federal Court of Appeal for the Judicial Year 2010-2011

1076 of 2010Minister of Justice decision regarding the distribution of work within the Sharjah Sharia Court for the Judicial Year 2010-2011

1087 of 2010 Minister of Justice decision granting academic leave



1151 of 2010Minister of Justice decision granting law enforcement powers to certain officials at the Vital Installations & Facilities Protection Agency

1152 of 2010Minister of Justice decision granting law enforcement powers to certain officials at Abu Dhabi Tourism Authority

1159 of 2010Minister of Justice decision regarding the distribution of work within the Ajman Federal Civil & Sharia Court of First Instance for the Judicial Year 2010-2011

1160 of 2010Minister of Justice decision regarding the distribution of work within the Khorfakkan Federal Court of First Instance for the Judicial Year 2010-2011

1161 of 2010Minister of Justice decision regarding the distribution of work within the Fujeirah Federal Court of First Instance for the Judicial Year 2010-2011

1162 of 2010 Minister of Justice decision appointing judges

• From the Ministry of Economy

446 of 2010Minister of Economy decision revising the Articles of Association of Grand Flour Mills & Animal Feed Company PJSC

447 of 2010Minister of Economy decision revising the Articles of Association of Al Ain Mineral Water Company PJSC

454 of 2010Minister of Economy decision announcing a revision of the Articles of Association of The National Investor PJSC

455 of 2010Minister of Economy decision announcing a revision of the Articles of Association of Allied Investment Partners PJSC

456 of 2010Minister of Economy decision announcing a revision of the Memorandum & Articles of Association of Foodco Holding PJSC

476 of 2010 Minister of Economy decision revising the Articles of Association of Mubadala GE Capital PJSC

477 of 2010Minister of Economy decision announcing a revision of the Articles of Association of International Golden Group PSC

478 of 2010 Minister of Economy decision announcing the incorporation of Shams Power Company PSC

520 of 2010Minister of Economy decision regarding the conversion of Aabar Investments from a public joint stock company to a private joint stock company

HUSAM HOURANIManaging PartnerHead of Banking & [email protected]

LISA DALEPartnerHead of [email protected]

HUSSAIN EISA SHIRIPartnerDispute [email protected]

JASSIM M. ABDULLAHPartnerDispute [email protected]

YAZAN AL SAOUDIPartnerHead of Maritime, Aviation & Insurance/ Dispute [email protected]

HASSAN ARABPartnerHead of Dispute [email protected]

ESSAM AL TAMIMISenior PartnerArbitration, Banking, Corporate Commercial [email protected]

LYNETTE BROWNPartnerBanking & [email protected]

OMAR OBEIDATPartnerHead of Intellectual Property, [email protected]

SAMER QUDAH PartnerCorporate Commercial [email protected]

SAMIR KANTARIAPartnerCorporate [email protected]

MOHAMMED AK BIKPartnerHead of Legislation & [email protected]

BASSEM ZEIN EL DINEPartner & Head of Dubai World Trade Centre of ceCorporate [email protected]

SYDENE HELWICK [email protected]

AHMED ALLOUZPartnerDispute [email protected]

ZAFER SHEIKH OGHLIPartnerHead of Sharjah of ceDispute [email protected]

JAMES MACCALLUMPartnerCorporate [email protected]

MOHAMMED MARZOUQIPartnerDispute [email protected]

EL-AMEIR NOOR PartnerDispute [email protected]

Partners at Al Tamimi & Company

MUHAMMAD ARIF SAEEDPartnerCorporate Commercial [email protected]

DOUGLAS MCBROOMPartner Head of Saudi of [email protected]

HANI AL NADDAFPartner Dispute [email protected]

UNITED ARAB EMIRATES

KINGDOM OF SAUDI ARABIA

JODY GLENN WAUGHPartnerBanking & [email protected]

KHALID AL HAMRANIPartnerSpecial [email protected]

MOHAMED KHODEIRPartnerCorporate [email protected]

MARCUS WALLMAN PartnerCorporate [email protected]

ALEX SALEHPartner Head of Kuwait of ceBanking & [email protected]

KHALED SAQQAFPartner Head of Jordan / Iraq of [email protected]

KUWAIT OFFICE JORDAN / IRAQ

ABDULLAH AL TAMIMIPartnerHead of Litigation - [email protected]

STEFAN JURYPartnerBanking & [email protected]

JAY FORTINPartnerHead of Qatar of ceBanking & [email protected]

QATAR


DUBAI INTERNATIONAL FINANCIAL CENTRE OFFICE

Our People

AHMED HAMADCorporate [email protected]

DIVYA ABROL GAMBHIRBanking & [email protected]

CHERRY TURCALBanking & [email protected]

AHMED ALLOUZPartnerDispute [email protected]

CLAIRE [email protected]

CHRIS WEBBCorporate [email protected]

EMAN AHMEDDispute [email protected]

EMMA [email protected]

ERIC TEOConstruction & [email protected]

FATMA EL ZEINIMaritime, Aviation & [email protected]

GARY WATTSHead of Corporate [email protected]

HUFRIZ WADIA Banking & [email protected]

IBTISSEM LASSOUEDSpecial [email protected]

IZAFANIZ KAMIR Banking & [email protected]

IZABELLA SZADKOWSKACorporate [email protected]

FATMA MOOSA AL BALOOSHIDispute [email protected]

FAISAL DAUDPOTAIntellectual Property, [email protected]

HUSAM HOURANIManaging PartnerBanking & [email protected]

HUSSAIN EISA SHIRIPartnerDispute [email protected]

HASSAN ARABPartnerDispute [email protected]

HIAM AL MUHTADIDispute [email protected]

ESSAM AL TAMIMISenior PartnerDispute Resolution, Banking & Corporate Commercial [email protected]

DEAN O’LEARYConstruction & [email protected]

HESHAM AL BARBARYIntellectual Property, [email protected]

JASSIM M. ABDULLAHPartnerDispute [email protected]

FIONA CAMPBELLSpecial [email protected]

CAROLYN JONESConstruction & [email protected]

JENNIFER PAGEDispute [email protected]

CARLA SALIBACorporate [email protected]

ANGELIQUE WATKINSMaritime, Aviation & [email protected]

JEREMY [email protected]

AHMAD AL AWAMLEHBanking & [email protected]

FAYEZ KHOURIBanking & [email protected]

HODA BARAKATConsultantIntellectual Property, [email protected]

ABIGAIL POWELLDispute [email protected]

ANITA SIASSIOSIntellectual Property, [email protected]


MOHAMMED KAWASMI [email protected]

MOHAMED KHODEIRPartnerCorporate [email protected]

MAMOON AHMAD KHANBanking & [email protected]

MARCUS WALLMAN PartnerCorporate [email protected]

MOHAMED ALI ABOU SAKRDispute [email protected]

LARA ABABNEHIntellectual Property, [email protected]

MOHAMMED KAMRAN

[email protected]

LYNETTE BROWNPartnerBanking & [email protected]

LISA [email protected]

OMAR HEGAZYCorporate [email protected]

NICK O’CONNELLIntellectual Property, [email protected]

REBECCA FORDCorporate [email protected]

RASHA AL ARDAHIntellectual Property, [email protected]

OMAR OMARMaritime, Aviation & [email protected]

OMAR OBEIDATPartnerHead of Intellectual Property, [email protected]

RITA JABALLAHDispute [email protected]

RAMI ABDELLATIFDispute [email protected]

NATALIE MORRISONCorporate [email protected]

MUNIR SUBOH Intellectual Property, [email protected]

MOHAMED ALIIntellectual Property, [email protected]

PHILIP BRAZEAURegional Head [email protected]

NAIEF YAHIADispute [email protected]

KHALID AL HAMRANIPartnerSpecial [email protected]

NAWAL ABDEL HADICorporate [email protected]

RAMI AL TALMaritime, Aviation & [email protected]

ROBERT [email protected]

MAHMOUD MOSTAFASpecial [email protected]

NICOLA MILNEConstruction & [email protected]

RANA DIABanking & [email protected]

KHALED GAMALELDEENDispute [email protected]

MOHAMMAD AL MUHTASEBDispute [email protected]

SAKSHI PURIBanking & [email protected]

PAUL TURNERRegional Head of [email protected]

KAMALJIT DOSANJHCorporate [email protected]

JODY GLENN WAUGHPartnerBanking & [email protected]

JONATHAN BLANEYConstruction & [email protected]

KATRINE [email protected]

MICHAEL NAROZDispute [email protected]

MARIAM SABETCorporate [email protected]


STEPHEN JIEWIntellectual Property, [email protected]

YUSUF ZAMANCorporate [email protected]

WILLEM STEENKAMPCorporate [email protected]

TAIBA SAEEDDispute [email protected]

YAZAN AL SAOUDIPartner, Maritime, Aviation & Insurance/ Dispute [email protected]

SAMER QUDAH PartnerCorporate Commercial [email protected]

BASSEM ZEIN EL DINEPartner, Head of Dubai World Trade Centre of ceCorporate [email protected]

DUBAI WORLD TRADE CENTRE OFFICE

RUTA GOTHOSKARCorporate [email protected]

JOUMANA AZZAMCorporate [email protected]

SHERIF RAHMANCorporate [email protected]

ANDREW SLEIMANCorporate [email protected]

EHAB MORCOSCorporate [email protected]

DUBAI INTERNET CITY

DAVID YATESHead of Commercial IP & [email protected]

OMER KHANCorporate [email protected]

SYDENE HELWICK [email protected]

STEVEN HUNTRegional Head of Construction & [email protected]

BILAL AL SABBAHCorporate [email protected]

YVONNE PAHIntellectual Property, [email protected]

SUZANNE GINGLESCorporate [email protected]

SUZANNE ABDALLAHDispute [email protected]

SARAH HASNANICorporate [email protected]

SONIA [email protected]

SIRI HASHEMMaritime, Insurance & [email protected]

SAMIR KANTARIAPartnerCorporate [email protected]

SARAH FLORERBanking & Finances. [email protected]

ALIAA ZAKYCorporate [email protected]


MAHMOUD ALI HOMIDATDispute [email protected]

ABU DHABI OFFICE

MOHAMMED AK BIKPartnerHead of Legislation & [email protected]

JAMES MACCALLUMPartnerHead of Corporate Commercial - Abu [email protected]

EL-AMEIR NOOR PartnerDispute [email protected]

AKRAM AHMED AL-BAITIDispute [email protected]

AYEN BIAR Dispute [email protected]

FERAS AL MOMANI Legislation & [email protected]

WALAA AL QASEMCorporate [email protected]

TARA MARLOWHead of Property and Hospitality - Abu Dhabi [email protected]

TAUFEEK BUSTANIDispute [email protected]

STEPHEN FORSTERHead of Abu Dhabi of ceCorporate [email protected]

SAIFEDIN M. NAGARLitigation, Corporate [email protected]

MOHAMMED MARZOUQIPartnerDispute [email protected]

MARIE GRACE SEIFCorporate [email protected]

JAMES WILLIAMSConstruction & [email protected]

IBRAHIM TUKANCorporate [email protected]

HASSAN EL TAHIRLegislation & [email protected]

AISHA AL MARZOUQIDispute [email protected]

AZLIN AHMADBanking & [email protected]


CHRIS WEBBCorporate [email protected]

YAZAN AL SAOUDIPartner, Maritime, Aviation & Insurance/ Dispute [email protected]

ZOE THOMPSONCorporate [email protected]

AYOUB GHAZIDispute [email protected]

SHARJAH OFFICE

ALI BACHROUCHDispute [email protected]

AMMAR HAIKALDispute [email protected]

MAJD BAROUDIDispute [email protected]

ZAFER SHEIKH OGHLIPartnerHead of Sharjah of ceDispute [email protected]

PHILIP BRAZEAURegional Head of [email protected]

OMAR KHODEIRDispute [email protected]


NIKKI SCHOORLIntellectual Property, [email protected]

YASSER EL HAWARYDispute [email protected]

LU 238 March 2011_Revised.indd 72 3/3/2011 10:11:15 AM

FRANCESCO LUCENTECorporate [email protected]

HANI AL NADDAFPartnerDispute [email protected]

QATAR - ASSOCIATE OFFICE: ADV. MOHAMMED AL-MARRI in association with Al Tamimi & Company

AHMAD AL JAAFIRCorporate Commerciala.jaa [email protected]

KAMAL HAFEZProperty & [email protected]

KARIM SHIYABCorporate [email protected]

MOHAMMED AL MARRIDispute [email protected]


SHARIFAH HAMZAHCorporate [email protected]

SARA LISGOCorporate [email protected]

STEFAN JURYPartner Banking & [email protected]

KSA OFFICE

GLENN LOVELLBanking & [email protected]

JAWAD KHALAFCorporate [email protected]

IRAQ OFFICE

MODHER [email protected]

ABDULLAH AL TAMIMIPartnerHead of Litigation - [email protected]

HADEEL [email protected]

KHALED SAQQAFHead of Iraq of ceCorporate [email protected]

FADI DAHERCorporate [email protected]

WONG YUEN PING Corporate [email protected]

MOZAHEM [email protected]

HESHAM AL HOMOUDCorporate [email protected]




DOUGLAS MCBROOMPartner Head of Saudi of [email protected]

BANDAR AL HAMIDANIDispute Resolution & Corporate [email protected]



JAY FORTINPartnerHead of Qatar of ceBanking & [email protected]

AHMED EL AMOURYDispute [email protected]


ALEX SALEHPartnerHead of Kuwait of cceBanking & [email protected]

PHILIP KOTSISCorporate [email protected]

KUWAIT OFFICE *

WASSIM SASSIACorporate [email protected]

* Al Tamimi & Company International Ltd. provides services in Kuwait through a joint venture with Yaqoub Al Munayae. Yaqoub Al Munayae is a registered and licensed lawyer under the laws and regulations of Kuwait.

MAITRI DESHMUKHBanking & [email protected]

STEVEN HUNTRegional Head ofConstruction & [email protected]

OSSAMA GHAZYDispute [email protected]

YALDA VAHDANICorporate [email protected]

RAMY SHABANACorporate Commercial/ Banking & [email protected]

YAQOUB AL MUNAYAEJoint VenturePartner [email protected]


ISLAM ABAZACorporate [email protected]

RIZA ISMAILBanking & [email protected]

DANA ABDULJALEELCorporate [email protected]

JORDAN OFFICE

SIRI HASHEMMaritime, Insurance & [email protected]

ABDALLAH AL FRAIHATDispute [email protected]

STEVEN HUNTRegional Head ofConstruction & [email protected]

PHILIP BRAZEAURegional Head [email protected]

KHALED SAQQAFHead of Jordan of ceCorporate [email protected]

ZAID AL SYOUFDispute [email protected]

SAMER AL ZURIEKATDispute [email protected]

MUHAMMAD ARIF SAEEDPartnerCorporate Commercial [email protected]

SALAH DEEBIntellectual Property, [email protected]




ZEINAH AL NABIHCorporate [email protected]




ProfilesAl Tamimi & Company firm profile

Al Tamimi & Company Qatar profile

Qatar- Gateway of Growth

The Family Business Practice

From our “Setting up” seriesJAFZA- Establishing Offshore Companies in the

Jebel Ali Free Zone

Setting up in Dubai International Financial Centre

Setting up in Dubai Internet City

Setting up in Dubai Media City

Setting up In Knowledge Village

Dispute ResolutionArbitration

Dispute Resolution and Litigation in the UAE

Dubai Court Fees (in English and Arabic)

Framework for Litigation in the United Arab Emirates

Banking & FinanceBanking & Security Law in the UAE

Foreign Investment Law in Qatar

Islamic Finance: A UAE Legal Perspective

Taxation Law in the UAE

Corporate CommercialBusiness Structure in Qatar

Commercial Agency in Qatar

Companies under the UAE Commercial Companies Law

Establishing Offshore Companies in Jebel Ali

Inheritance Law in the UAEInternational Agreements, Conventions & Protocols signed by the Government of the UAE

Joint Ventures: Theory and Practice in the UAE

Law of Tort in the UAE

Standardisation and Classification in the UAE

The GCC Economic Agreement & Customs Law

The Essential Business Law Guide for Saudi ArabiaUAE Immigration Law

Technology, Media & TelecommunicationsCopyright Law

Patents & Designs in the Middle East

Trademark Law

Telecommunications

IT Query- IT Law in the UAE

Maritime, Aviation & InsuranceUAE Shipping Law: Cargo Claims and Other Related Issues

Laws Regulating Insurance in the United Arab Emirates

PropertyHospitality & Leisure

Jointly Owned Property - Strata

Property

Law UpdateThe full back catalogue of Law Update since April 1991

(available by request - please email [email protected])

Available online at: www.tamimi.com

The brochures listed below are all available free of charge on our website. To order any of the books listed please email: [email protected].

Al Tamimi & Company Publications

Setting Up in Dubai - By Essam Al Tamimi - AED 79

Setting Up in the Dubai International Financial Centre - By Al Tamimi & Company’s Banking & Finance Department - AED 105

Setting Up in Sharjah - By Essam Al Tamimi - AED 85

Setting Up in Qatar - By Essam Al Tamimi - AED 85

The Practical Guide to Litigation and Arbitration in the United Arab Emirates - By Essam Al Tamimi - AED 399

The Practitioner’s Guide to Arbitration in the Middle East and North Africa - By Essam Al Tamimi - AED 370

- By Hassan Arab - AED 75

List of Books

التـقــا�ضــي امــام املحاكــم فـــي دولـــة االمـــارات العــربيــة املتحــدة

Abu Dhabi I Amman I Baghdad I Doha I Dubai I Kuwait I Riyadh I Sharjah

The Law Firm of Choice for the Middle EastThe Law Firm of Choice for the Middle East

cover...2011/03/01 · sharjah al reem plaza 3rd floor, suite 306, khaled lagoon po box 5099,...

Documents