СТА - ведущая юридическая компания в Дубае с офисами по всему мируhttps://www.stalawfirm.com/ru.htmlSTA Law Firm - Блоги - Kuwait Laws and RegulationsruCopyright 2024 STA Law Firm All Rights Reserved<![CDATA[Insolvency Regulations in Kuwait]]> Insolvency Regulations in Kuwait

Kuwait is the most recent GCC nation to alter its bankruptcy laws. Kuwait modified its insolvency code in October 2020, enacting the long-awaited Bankruptcy Law (Kuwait Law No. 71/2020). This legislation emphasizes bankruptcy processes designed to maximize a debtor's worth for the profit of creditors and offer debtors the opportunity to resume pre-bankruptcy privileges if a bankruptcy judge is discharged. Lawful and judicial advancements during the last 40 years, practical application of the Financial Stability Law, Kuwait Law No. 2/2009, and the state's strategy to improve its current business environment in order to convert Kuwait into a regional financial capital have all been taken into account in this new piece of legislation, according to the explanatory memorandum to the Law.

Kuwait's insolvency structure has been entirely revised by Law No. 71 of 2020 regulating insolvency law (the "New Insolvency Law"). It provides enterprises in financial distress with more flexible options. It allows for rehabilitation, "rescue packages," as well as other initiatives to keep a company from going bankrupt or liquidating prematurely. This is especially crucial when a company is fails to meet its obligations but can rebound in the benefits of major stakeholders.

Scope and Application

The Bankruptcy Law lists the persons to whom the law's provisions apply, with the exclusion of joint venture firms and collective investment schemes (which includes every natural person, trader, Kuwaiti companies, and branches of foreign companies). The Central Bank of Kuwait and the Capital Markets Authority have the authority under Kuwait's Bankruptcy Law to establish guidelines regarding the preventive settlement. Processes, restructuring, and insolvency for securities exchange, clearing agencies, central depository institutions, central brokers, banks, and insurance organizations, in ways that may depart from the Bankruptcy Law and in accordance with the nature of these firms' requirements.

The Bankruptcy Law calls for the formation of a Financial Restructuring Committee ('Committee'). With the assistance of one or more Committee-appointed specialists, the Committee's function is to oversee the administration of restructuring operations in order to facilitate consensual restructuring solutions between a debtor and its creditors (if appropriate). The Committee will also keep track of insolvencies, authorize expert costs, and maintain a list of insolvency specialists who will assist the courts in determining the grounds for and carrying out the bankruptcy procedure of choice (as described in more detail below).

The objective of Insolvency Law

Some aspects of the New Insolvency Law are similar to those of the Financial Stability Law of 2009, which supersedes and improves. The Amended Insolvency Law aims to identify ways to maintain a company's "going-concern" value by providing alternatives to liquidation. It is based on the notion that enterprises in financial trouble can be more beneficial to all stakeholders if they can find a method to keep them operating. This New Insolvency Law allows for recovery while ensuring that the corporation and its creditors are protected by court involvement.

Organizations face difficulties at any time due to external circumstances beyond their power. There might be a window of time to study the situation and identify professional remedies to protect the company in the short term. Creditors calling in their debts and other shareholders may have competing interests. The new legislation establishes a procedural structure to settle cases quickly. This is accomplished by incorporating substantial sections of the New Insolvency Law, such as time limits. In insolvency procedures, for example, it is specified when meetings should be held, recommendations should be given to the court for examination, and the number of days the judge should take to make a judgment on the rescue ideas.

Implementation Operational and Administrative Framework

The New Insolvency Law establishes a bankruptcy court and several obligations to carry out the insolvency procedures to boost confidence in each of them.

·         The Revised Insolvency Law establishes a specialized bankruptcy court (the "Bankruptcy Court") with sole jurisdiction over issues emerging under the law and the competence to deliberate on requests made to it in line with its requirements. The CMA appoints auditors to assist the Bankruptcy Court. These experts serve the Bankruptcy Court by providing professional views on a bankruptcy action's financial, accounting, and economic aspects.

·         In the event of a financial reorganization or bankruptcy process, one or more bankruptcy trustees, either natural or legal people (e.g., businesses), are designated. In the instance of a preventative settlement, no bankruptcy trustee is appointed. When the bankruptcy commission approves a company's application for financial restructuring or liquidation, it assigns a bankruptcy trustee. A trustee must be either a CMA-licensed auditor or a registered auditor. The bankruptcy commission may recommend that the Bankruptcy Court select a non-CMA accredited individual or an unregistered auditor in rare circumstances. On the other hand, the Bankruptcy Court has the authority to approve or reject the commission's recommendation. In any case, such an appointment requires the consent of the Bankruptcy Court.

·         A bankruptcy commission is established by the Ministry of Commerce and Industry, consisting of at least three members who are qualified to act as bankruptcy trustees. Experts in finance, Law, and economics may be included in the commission. The commission is responsible for overseeing some business debts. All examples are listed company debts, collective investment plans, CMA or Central Bank controlled entities, and state-owned companies. The commission will consider insolvency applications and accompanying documentation submitted by any preceding companies throughout the bankruptcy proceeding and render an opinion. Appointing bankruptcy trustees and deciding their salary are among the other responsibilities.

·         A high-ranking judge oversees the bankruptcy department, which is part of the judiciary. Supervising insolvency procedures, monitoring the company's funds and business management, guaranteeing timely filings, and analyzing requests according to the New Insolvency Law are responsibilities.

·         The Bankruptcy Court may appoint a supervisor on its initiative or respond to requests from a concerned creditor or the bankruptcy committee. The supervisor would keep an eye on the insolvency proceeding, along with the preventative settlement, as it progressed. The supervisor will produce a report on the status of the insolvency action if requested.

·         The Bankruptcy Court may appoint an investigator on its initiative or in response to a request by a concerned creditor, supervisor, supervisor, bankruptcy trustee, or bankruptcy commission. The investigator will scrutinize the bankruptcy trustee's or distressed company's actions.

Penalties

In the event of concealing the books or misappropriating part of the company's money, the Bankruptcy Law increases the debtor's punishment from three to five years and the fine from 30,000 (US$98,000) to 100,000 Kuwait Dinars (US$327,000) or one of these two penalties. If, after the issuance of a final decision to open the bankruptcy procedures, the chairman and members of the company's board of directors, its directors, the auditors of its accounts, and those in charge of liquidating, they concealed the company's books or embezzled any of the bankrupt company's money, they shall be punished with imprisonment for a period not exceeding five years and a fine not exceeding one hundred thousand Kuwaiti Dinars or either of these two penalties.

Conclusion

The New Insolvency Law corrects inconsistencies that existed under the prior bankruptcy system. Earlier, stockholders and creditors were left in the dark about their rights and responsibilities if their investment went bankrupt-this stifled economic growth, particularly in the SME sector. The New Insolvency Law aims to create a debt collection process while also boosting the chances of a company's recovery. Since liquidation is no more the only option for a company in financial trouble, the law strives to walk a fine line between creditor protection and the ability for businesses to continue operating.

However, the new legislation's success will be determined by how it is applied in practice. The inability of troubled enterprises to raise capital to continue their operations is a persistent issue. Kuwait may want to consider providing priority financing, in which approved lenders' restructuring loans take precedence over other business debts.

 

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Tue, 08 Mar 2022 00:00:00 GMT
<![CDATA[Understanding censorship Across the GCC]]> Understanding Censorship Across the GCC

Censorship is one method of the government to control media. Censorship is characterized as concealment or forbiddance of speech or composing that is considered subversive of the benefit of everyone. It happens in all manifestations of power in some degree, yet in present day times it has been of exceptional significance in its connection to government and law and order. The main reasons for censorship are to ensure the security of the current system of the government, to inhibit or limit the attempts of oppositions and to protect the religious and moral values of the society. The Arab nations always give importance to the religion. They create socio political sphere for governance. The majority of nations in GCC censor the media.

Censorship during the Arab Spring

The Arab Spring was in response to the Tunisian Revolution in 2010. There was the anti-government protests and armed rebellions that spread across Arab nations.  Bahrain has utilized censorship for reducing the Internet speeds, to prevent the spread of pictures and recordings, observing web use, and blocking controversial websites and data's. Egypt totally shut down the Internet for five days during the time of the most distress in January 2011. The government inhibited the protest through inhibiting the Social media. The government blocked certain sites or blocked internet service in times of the agitation. The social media played an important role in spreading the revolution. The success story of agitation through the social media paved a way for initiating new protests in other places or countries. 

Internet Censorship in Legal purview

The Article 12 of Universal Islamic Declaration of Human Rights by the Islamic Council of Europe in 1981 reads that every individual has the privilege to express his viewpoints and beliefs so long as he stays within the limits recommended by the Law. No one in any case is entitled to scatter falsehood which may outrage public decency or to project slanderous defamations on different people. There will be no bar on the scattering of information provided it does not imperil the security of the general public or the state which is confined within the limits imposed by the Law

Article 2 of Kuwait's constitution expresses that the religion of the State is Islam, and Islamic Law will be a fundamental source of enactment. The Oman's Constitution 1996 gives Freedom for opinion and scientific research. Everyone has the privilege to offer his opinion and publish it by listening in on others' conversations, recorded as a hard copy or in any case under the standards and conditions set by law. The given data should not invade the principal convictions of Islamic convention or the solidarity of individuals. Article 23 of Bahrain's constitution 2002 guarantees the freedom and privacy of mail, phone, and other different method for correspondence, none of which might be censored, looked, uncovered, deferred or seized except in cases determined by law and as indicated by a court.

The Qatar government had recently updated its penal code by expanding Article 136. The article takes into account the imprisonment of any individual who publishes or broadcasts contents which hurt nation's interests or public opinion. Article 62 deals with the creation of a board or a committee including Ministries of Education, Interior, Labour and Social Affairs in Qatar to censor the restriction strategies. Article 63 involves how artistic works should be inspected before they are published. Article 64 states that the Department of Publications and Publishing may coordinate the Censorship Committee and observe that specialized, social, strict, moral and social practices are being followed. Article 65 states that unexpected reviews can happen in films and different areas in Qatar to ensure that movies, advertisements and shows are appropriate.

The ideology of the Internet is to make it as free as possible from any interference.it is impossible to completely impose a ban in Internet governance, because it is like a reflection of real world. There are laws designed to regulate the cyber world that is to ensure the right to access information, freedom of speech and expression, right against the violation of these rights and illicit behaviour. In GCC countries, the issue of freedom of speech and the right to access information on the Internet is quite overriding and are new to Muslim legal thought.

Saudi Arabia hesitated for years before allowing the access to public internet in the country. After giving access to the public internet a Saudi internet service unit was framed to control its usage. It had blocked more than 20000 websites including gambling, drug and pornographic materials.

Nations like Saudi Arabia, and the United Arab Emirates, fall into the class of nations with a significant degree of Internet censorship. The filtering of Internet traffic in these nations is primarily on areas like pornography, drugs and religious twists of Islam. The authorities of Saudi Arabia and the UAE have depended on censoring Internet traffic through the Secure Computing system which created software and administrations for filtering websites Later this organization, specializing in the making of Internet security products was taken over by another American company called McAfee. In this way, software for separating web pages in Saudi Arabia and United Arab Emirates was provided by the company in the United States.

The western software Netsweeper is used for Internet filtering in the GCC nations and Smartfilter for compilation and updating of block lists.  Simultaneously, the disadvantage is the emphasis on blocking English-language resources and afterward in Arabic. Another unmistakable element of the GCC model of Internet censorship is the widespread captures of bloggers and their criminal prosecution for spreading materials that threatens the decision ruling system under the pretext of their infringement on public values. The Analysis of the Muslim religion and lifestyle, endeavours at the ironical impression of Islamic prophets, also as porn, homosexuality, and chronic drug use, are very adversely seen in all nations in the Arab world. The issue is that kind expectations to protect the Arab society from moral decay conceal the objective of keeping power in the hands of the ruling system

Conclusively, we can presume that the activities of governments to censor the virtual world in accordance with the moral and the religious perspectives of their nations are not without justification. The interest in prohibiting resources especially regarding drugs, pornography, gambling etc is not based on any political or any other interest. Simultaneously, we ought not to fail to remember that most of the dislikes and protest are exhibited through the social media. The social medias like Twitter, Facebook, and YouTube are used by the dense groups for organizing their movements. History states that the public and private media in GCC countries downplayed the dense group of protest by inhibiting the social media.

In the modern world, new strategies of correspondence and data transfer are actively emerging in both social and political processes. To frame amendments in censorship a deep research on the new ideal models, change in media landscapes, government policymakers, academics, and media professionals has to be considered. Analyses of the media laws and different regulations have to be carried out for aligning regional enactments to globally acknowledged enactments. Cultural consideration needs to be given importance to reform GCC media laws. A  Slow change is most desirable than over radical change in the legislation.

 

 

 

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Sun, 05 Dec 2021 09:29:00 GMT
<![CDATA[Family Law in GCC]]> Family Law in GCC

A Family is formed by considering several factors like the social, political, and monetary.

Similarly, there is a legal design in framing a family. In a net shell a family law covers two fundamental fields one is the relationship between spouses and the other is the relationship between parents and their children. For many years Muslim nations were aiming to change the rules governing marriage and divorce.

Kuwait 

In Kuwait, family and personal law are governed by religious courts. The cases will be judged only by the code of law not by any previous judgments. The courts will never be influenced by precedents. The Kuwait family law contains 347 articles and the code was enacted in 1984. It consists of codes to deal with marriage, divorce, child custody, and inheritance. To handle family and personal matters there are different courts for both the Sunni and Shi'a.

In Kuwait, Muslim marriage is an agreement between the groom and the representative of the bride's family. The marriage is formalized in the presence of an authorized person and two male witnesses.  The bride's representative can be her father, brother, uncle the officiator of the marriage can also sever as her legal representative.  The officiator prepares the agreement and this is signed by the groom, the bride's representative, the witnesses, and the officiator. The agreement also includes the details of the number of wives the groom has as the Islamic religion allows a man to have up to four 6wives of he is able to support them equally. It also contains the dowry amount.

In Muslim countries the Islamic law allows husbands to divorce their wives just by "I divorce you." Without any reasons   Under Shi'a law, to get a divorce officially the man must appear before a judge. Under Sunni law, divorce needs to be recorded only with the registrar of the personal affairs court. In both systems judges usually grant a divorce petition after giving reasonable opportunities to reconcile out of court and to seek counselling before deciding on divorce. The husbands are required to pay monthly alimony for each child born of their marriage.  In custody issues favors the mother for small children and Girls to live with their mother until they get married.  Boys can choose after attaining puberty whether to reside with their mother or father. 

Bahrain

In Bahrain, both Sunnis and Shias have their own courts that deal with personal and family issues. The Family Law comprises of all matters arising in connection with marriage like dowry, maintenance, parentage, separation, and custody. Influential sections of the religious establishment oppose a codified family law, while the government has recently demonstrated a lack of interest in pursuing the matter.

The main problem is that there are rules and norms but that they are not codified. For getting a divorce, women also need to face significant legal, financial, and societal difficulties. The Sunni men announce their divorce orally, while Shia men record their intention in writing. A Bahraini man can divorce his wife for any reason while women can only request divorce under specific circumstances but it is possible without the burden of evidence. A judicial divorce takes years during this time women are not supported financially.

Divorced Shia women retain physical custody of their sons until they are seven and their daughters until they are nine. The new personal law allows Sunni mothers to retain custody of daughters until they are 17 years of age or married whichever comes first and sons until they are 15 Even if the mother has custody, the father remains as the children's legal guardian. For custody of children, the Bahraini courts consider the religion, permanent residence, income of parents. The parents can visit their child by prior arrangement of the competent court. 

Saudi Arabia

The jurisdiction of family-related matters falls in Sharia Court. Family related matters include marriage, divorce, children and inheritance. The laws are not codified. The government promotes polygamy as an Islamic value program. Polygamy is limited to four wives for men at any one time. As a result of oil wealth, the practice of polygamy has increased even among educated Hejazis. In 2001, the Grand Mufti the highest religious authority issued an opinion, that to fight against spinsterhood polygamy is very much essential in the context of Islamic Value. Later in 2019 marriages under the age of 15 were banned and prior permission from the specialized court was necessary for the marriages under the age of 18.

Men have the right to divorce their wives without any legal justification.  The husband has to provide financial support for the divorced wife.  A woman can only obtain a divorce with the consent of her husband and, it is very difficult to obtain a judicial divorce. The fathers will have the right to have custody of sons from the age of 7 and daughters from the age of 9.

Oman

 Article 17 in Oman's Basic Law gives liberty for women to marry freely but the Personal Status Law will be the authority in dealing with guardianship, child custody and inheritance. According to Sharia law, if a Muslim man can afford the expense to take care of four wives he can get married to four wives. A Muslim woman can restrict her husband from marrying other women by entering a clause in the marriage agreement.

A man can divorce by simply saying 'I divorce you' three times. But in the case of a women even if she has good reason to seek a divorce she must go to a court. The husband is responsible to give maintenance to the divorced wife and his children from the marriage. The man can claim only after the son attains the age of ten.

Qatar

As per Sharia Law, a Muslim man can marry four wives if he is able to take care of them materially. In Qatar, the Muslim marriages are performed at the Sharia Court. A married Qatari Muslim man seeking a divorce by saying 'I divorce you' three times to his wife. The husband has to give maintenance to a divorced wife and his children from the marriage. In Qatari courts the provisions for divorce and family law matters are dealt within the code Family Law 22 of 2006.

 United Arab Emirates                                   

The UAE had improvised its family law. And it was announced on 7th November 2020. The crisp of the amendment is that the Islamic law of the Sharia will no more be used for dealing family law for the non-citizens.

There are many amendments to the country's family law. Law No. 28 of 2005 was overruled resulting in Decree-Law No. 5 of 2020 on August 28, 2020. These provisions look in the following matters. The financial support by the husband to wife, divorce by proxy, arbitration between the husband and wife and financial compensation. Earlier, Sharia law was applied to Muslim marriages, child custody issues, inheritance, maintenance etc. Till the amendment, the law allowed for non-citizens to be given option to select Sharia for their divorce proceedings or to request the court to follow the law of their home country.

Conclusion

 Family is formed by various social, political, and monetary aspects. All GCC follows Sharia law for managing the matters related to the family. The husband is given more privileges than the wife. The Man can easily divorce his wife proclaiming Talaq and he can marry four wives if he is able to take care of them and their households. Now, these nations are aiming to change the rules governing marriage and divorce.

 

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Sat, 06 Nov 2021 00:00:00 GMT
<![CDATA[closer look at Electronic Privacy Laws in GCC]]> A closer look at Electronic Privacy Laws in the GCC

The cooperation council for the Arab State of the Gulf is commonly known as Gulf Cooperation Council (GCC). It is a regional, intergovernmental, political and economic union that consists of all Arab states of the Persian Gulf except Iraq. The GCC countries are Kuwait, Bahrain, Qatar, Saudi Arabia, Oman and The UAE.

Nowadays, Electronic privacy is the centre of everybody's attention as the amount of data created today is very high with approximately 2.5 quintillion bytes per day, which is a very huge amount. So the sensitivity of data and its privacy goes up day by day. It's becoming increasingly important we should be focusing on how our data is being used.

Data is collected in various forms like when going out for shopping and swiping up your credit card, getting on a website and registering yourself, sometimes even you don't have to provide any information and you just simply accept the cookies then you have provided some part of your personal information to them which can be knowingly or unknowingly. This article is about the electronic privacy laws in GCC countries individually.

Bahrain:

In Bahrain a Personal Data Protection Law (PDPL) has been created, where the data controller has been given to data subjects that mean the control is given to the general public. The companies should be abiding by the law and to manage electronic privacy, the data protection law was drafted in 2019.

The purpose is to protect the data for the individuals and without the consent of the individual, the data should not be moved around. There is non-compliance and risk is also for companies who are not been able to manage the data they are supposed to manage as per the provision of this law. There is imprisonment for one year and a fine up to BHD 20000. The Ministry of Justice is the body that monitors the PDPL compliance maintain notice and authorisation of the register for data processing.

Consent to the process, personal data unless required by law, legitimate interest or contractual obligation. Appointment of data protection guardian is done by impartiality and independently. Transferring data for processing outside of Bahrain is not going to be a straightforward process now. The person has got a list which is now proposed in the consultation paper but anyone outside the country needs to get permission on a case to case basis.

Rights of data subjects like the right to blocking, object to direct marketing are back to the people, so they can now control the data usage and the framework for the data quality has now been expanded on one of the consultation papers.

Qatar:

In 2016, the Qatar government has introduced Law No. 13 which is related to the protection of personal data. Qatar is one of the first GCC states which have introduced the electronic privacy law, which says about the assembling, usage and release of personal data.

When the law was published in the official gazette, there was six months' time period in which compliance of law was ensured.

There electronic privacy laws levy restrictions on individuals as well as companies to distinguishable individuals using electronic means. The law provides an individual's right to give consent to the specific information which has to be published or not. Furthermore, the "specific" category include health status, birth status, religious belief, criminal records, marital status etc. It can only be procured with the permission of the Ministry of Transport and Communications.

Concerning cross border transfers, personal information collected in Qatar from different jurisdictions should be easily accessible. But this rule does not apply when it is a matter related to the national security of the country, international relations or in case of investigation of criminal offences.

Oman:

In the current situation, Oman does not have any electronic privacy law but the right to the individuals' confidential data in all modes of communication is secured as per Oman' Constitution (Royal Decree No. 101 of 96). For the protection of electronic data privacy, the sultan of Oman established a Cyber Defence Centre (Royal Decree No. 64 of 2020).

The abovementioned Cyber Defence Centre will directly report and help the Internal Security Service ("ISS") of Oman. All the mandatory laws for cybersecurity will be issued by the head of ISS and anything which goes contrary to the decree will be repealed.

As per the Electronic Transactions Law, data collected from the e-commerce websites like electronic signature contains very fewer provisions for the protection of data but it includes some necessary provisions related to dissemination and retention of data. This law is only applicable to electronic transactions.

The UAE:

The UAE introduced a new comprehensive data law in the country. This new data law is being brought as part of the national programme called "Projects of the 50". At present, UAE does not have a singular comprehensive data protection law; this would be the UAE's first comprehensive data protection law to operate across the country's mainland.  But other existing laws have been used to deal with privacy and data security matters and certain data protection provisions have applied to certain sectors.

The new data law will introduce certain rights for individuals such as the right to information, right to access, right to be forgotten. When the personal information is stored and monetized in some way or used for wrongful marketing purposes, so there will be certain provisions to stop this and it will ensure that the information will be used only with the consent and that it does not harm someone's privacy.

Kuwait:

Currently, Kuwait does not have any particular electronic privacy law. There are no specific guidelines on how retention and dissemination of data are done.  But the e-commerce law requires that any personal details like marital status, birthplace, health status, financial condition, personal status, and criminal record (if not to be disclosed) should be retained privately. The abovementioned information should not be disclosed without consulting the client and without the client's permission.

Saudi Arabia:

At present in the Kingdom of Saudi Arabia, there is no electronic privacy law related to data protection. Due to no data protection law, businesses in Saudi Arabia are getting affected as there is market awareness about the privacy of data. Currently, all the matters related to privacy in Saudi are governed by sharia law in the absence of any specific legislation.

E-commerce law came into force in 2019, which applies to all the service providers who provide goods and services through an e-commerce platform, even outside of KSA to the people residing there. It is also prohibited in this law to seek a client's details.

 

 

 

 

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Tue, 19 Oct 2021 09:55:00 GMT
<![CDATA[Economic and Fraud Provisions in Middle East]]> Economic and Fraud Provisions in the Middle East

"There is one and only one social responsibility of business – to use its resources and engage in activities designed to increase its profits so long as it stays within the rules of the game, which is to say, engages in open and free competition without deception or fraud."

- Milton Friedman

Economic fraud is a term that has been repeated over the years, so much so that the consequences it bears do not have any precedence or impact on the ones that hear it. For many companies and capitalist machinery, this term essentially triggers them to explore options to hide their fraudulent tracks and continue operating in the same manner. To have governments help them cover the tracks in certain jurisdictions ultimately defeats the purpose of the assignment.

Despite the incongruent activities of individuals, companies, and governments from the expected norm of justice in many jurisdictions, other countries are tenacious to implement a regulatory framework that will eradicate such fraudulent activities in the market. This article will discuss the economic and fraud provisions established in the Middle East, their effectiveness, and the scope of reach it possesses about financial crime.

What are the Economic and Fraud provisions in the Middle East?

If one area of the economy has seen a steady increase in the past years, it would be the economic fraud prevalent in society. Regardless of the number of provisions that jurisdictions and international organizations establish to combat financial fraud, none of them seems sufficient. The parties involved in economic fraud and other fraudulent practices are constantly evolving to cover their tracks efficiently.

Infamous scandals like Bernie Madoff and the Ponzi scheme leave one in absolute awe as it remains unclear, what is the culprit: the crime or the criminal? Many innocent parties, including employees and clients, were adversely affected by the ill-doings of these financial schemes. After the outburst of many scandals and its impact on many innocent individuals, jurisdictions are trying to fasten their pace to stay a step ahead of wrongdoers and hopefully eliminate the potential threats in the market.

The introduction of new anti-economic fraud regulations has paved the way for potential investors to feel a sense of security over their investments within the market, along with the ability of the regulations to enforce justice. Over time, people have understood that the formation and establishment of an anti-fraud legal framework are not sufficient to ensure peace and harmony in the market, an iron fist must be imposed on fraudulent parties and companies to deter them from doing such activities in the future and serving it as a lesson for other participants in the market who bear similar intentions.

The types of economic fraud can be quite varied and are spread across different industries and the scope of nature. These could include housing benefit fraud, tenancy fraud, council tax fraud, blue badge fraud, social care fraud, business rates fraud, insurance fraud, bribery, and money laundering. These are just a top layer of economic crimes prevalent in an ocean of fraudulent activities in the market. The crimes that are more coherent to the wrongdoings in the market include not declaring the business location, stating that a property is not in use while it is, dishonestly requesting for an exemption to pay for charges that are owed, or any unauthorized movement of money to make ill-gains.

Often, economic crime is caused not by companies but by customers towards companies. The highest reported crime boost in the Middle East is through customer fraud and procurement fraud, which have proved to be the most disruptive fraud within an economic crime. In a survey conducted on a global platform, the number of customer frauds was comparatively more in the Middle Eastern region.

In an ongoing effort to combat fraud together, many companies in the Middle East began investing in more stringent controls and implementation of the rules to avoid economic crime, while many others conducted a thorough examination into reasons after the occurrence of a crime in the company. Another issue that stands alongside customer fraud about its prominence is procurement fraud. This fraud entails the practice of favoring associates with vendor and supplier contracts.

All these efforts are measures taken to mitigate the risks involved and ensure that proper prevention is taken by instilling the right technology and talent to deviate from any fraudulent prone routes.

However, it is not easy to ensure that accountability will be maintained and transparent feedback is provided. Another limitation of this procedure is that advanced technologies to combat financial crime can be costly, which would further deplete if the company possesses insufficient resources to acquire and install the platform and is not equipped with properly trained employees to manage the technology. The lack of proper expertise to handle the in-place technology could attract various cyber threats, which allows a wrongdoer from any part of the world to infiltrate the company's system.

With this in mind, companies must equip themselves from the arsenal of defenses to protect themself and the financial and reputational facets of the company. The extent of damage that infiltration of the company's system can cause to the operations is quite unfathomable. It would be better for companies to leave their vault of secrets wide open than installing an IT platform that is managed poorly. The necessity of combating such insecurities is proliferating and must be countered at the earliest. One would like to believe that the efforts of the legal jurisdictions in the Middle East to battle economic crime are practical and promptly applied. However, many of the jurisdictions still fail to provide a proper implementation of the provisions established against economic crime.

The readiness of companies in the Middle East to confront the indecisive nature of economic crime and report any issues as they arise is still moving at a stagnant rate. The stark increase in cyberattacks and its potential threats is not a mystery to the companies in these regions. Nevertheless, they decide against preparing themselves in defense of such risks and attacks. The firms in the region and the governmental organizations must understand the types of threats that could arise in the economy and the nature of such economic crimes. Although this would seem like an insignificant step, this particular action could help achieve a more profound revelation of the gaps and vulnerabilities of the economy and its protective framework.

Many would argue that the relationship of the Middle East with economic crime and fraud dates back ages. All the glitz and glamour and the boom of economies are incongruent with the fraudulent activities occurring within the firms and regions. A region's legal systems cannot enforce the regulatory frameworks established to fight against economic crime if the country's government does not implement the rulings.

To know more about Economic and Fraud Provisions in the Middle East in Singapore Click here 

 

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Thu, 30 Sep 2021 14:28:00 GMT
<![CDATA[GCC VAT Agreement]]> GCC VAT Agreement

Introduction

Globally the VAT system has been around for a long time. However, for the most part, Arab countries have been operating tax-free in that respect. Over 160 countries around the world have adopted the indirect tax method to reduce the fiscal deficit and facilitate a steady increase in the country's GDP.

Following suit, an agreement between six GCC countries, namely, Bahrain, Qatar, Kuwait, Saudi Arabia, Oman, and the United Arab Emirates, had brought about a landmark change in the tax-free operations of these nations. While Saudi already had a draft VAT Law at the time of the drafting of this treaty, other GCC countries that are party to the treaty did not. However, after that, UAE and Bahrain also implemented a VAT Law in 2018 and 2019, respectively. Therefore, this treaty played a role in supplementing the development of a framework that enables countries to lay down laws regarding the implementation of the VAT system in a comprehensive manner.

The treaty is not strictly binding on the parties per se, in the sense that the countries have been provided with the option of practicing their discretion while implementing laws. Of course, there are some mandatory provisions, but there are also optional provisions to approach implementation as per their domestic and national needs.

It is important to note that this treaty is not a law; therefore, national implementation of laws in its respect is necessary for the treaty to come into force.

Background

Gulf nations heavily depend on their rich oil and energy reserves for the majority of their income. However, to survive as per global standards, diversification of the economy by utilizing other industries is becoming more and more critical. SINCE TIME IMMEMORIAL, the GCC states have been talking about improving their commercial practices and harmonizing the same with the rest of the world.

Similar to the EU, the GCC VAT Agreement also believes in a typical integrated market system. The typical market system allows a free flow of goods across nations; just like the EU, the GCC also aims to promote cross-border trade relations with their neighboring states.

Pulling inspiration from Europe, the GCC nations have made efforts to develop a common currency to strengthen their monetary union; however, those efforts were in vain due to non-acceptance by Oman and UAE.

Recent trends worldwide have required the GCC countries to pull up their socks and compete in their global market. To achieve this end, they need to diversify away from the oil and gas industry into different sectors of the economy like infrastructure, travel and tourism, VAT, etc., which is becoming a reality, slowly but surely.

Influence of Islamic Law

It is common knowledge that Shariah or Islamic law is the backbone of the legal system across the said GCC states. As per the Shariah law, there are five types of taxes, zakat playing a significant role in VAT implementation. The idea is that VAT paid to the government would allow them to provide services for the benefit of the general public. However, many GCC countries failed to institutionalize the zakat system, except Saudi Arabia. Therefore, the implementation of VAT will allow these countries to account for the funds collected.

Reasons for implementation

Dependence on oil for the majority of their revenue started to cause a deficit in the economies of GCC nations. Noticing this deficit, the International Monetary Fund (IMF) prepared a report that showed a decline in the private sector growth. Therefore, the introduction of a VAT scheme poised itself as the best solution to raise revenue. Despite VAT not being a cost-efficient exercise, global trends show that it is the most effective way of generating revenue.

The parties to the Agreement have agreed to a low rate of 5% VAT which is a good step of gradually easing into a full-fledged taxation system.

VAT benefits are not just limited to generating revenue; it facilitates consumers' discretionary spending on non-essential and harmful goods; for instance, Saudi Arabia and UAE have imposed taxes on fizzy drinks, cigarettes, etc. Further, the imposition of the Tax, even at a zero- rate, allows the government to keep in check on fraud and tax evasion, promoting economic and social growth.

Similarities between the EU and GCC VAT System

The basic principle of VAT is that its implementation differs according to the country's domestic legislation. Despite its complexities, it has been globally accepted. There are a few universally accepted principles that are implemented concerning the VAT regime, enumerated hereunder as follows;

  • The VAT is levied on a wide variety of supplies and services; this means that it is levied on all levels, right from the manufacturers to the suppliers; however, an established principle of imposing VAT is the business is not the ultimate bearer of Tax, the burden shifts from the supplier to the ultimate consumer of the product.
  • Further, VAT implementation is based on the destination principle; this principle lays down that, Tax is to be levied on the goods at its final destination. Therefore, exports can be transported free of Tax, whereas imports are liable to be taxed.
  • Legal Framework

  • The EU VAT system was incorporated by the EU Council Directives, which are essentially instructions that flow into legislation. These directives do not have the force of law but are binding on the states. The nature of the directives is quite flexible, therefore, allowing the states to take liberty in applying these directives in their domestic laws.
  • The EU Commission is the regulatory authority responsible for drafting treaties in the best interest of EU nations. The EU Council is an essential representative authority of the Commission. In EU law, treaties, regulations, and directives take precedence over domestic legislation. This precedence is so that the values of community loyalty and the direct effect of these treaties are upheld.
  • Like the EU Directives, the GCC VAT Agreement also refers to the GCC Charter and the GCC Economic Agreement. Therefore, the Charter and Economic Agreement are the basis on which the VAT system relies. The GCC VAT Agreement is also a blanket law that governs all nations' parties to the Agreement, just like the EU.
  • The GCC VAT Agreement further draws similarities with the EU VAT system since it facilitates cross-border trade activities.
  • Implementation

    Compared to the EU VAT system, VAT implementation in the GCC is more manageable, considering the volume of countries that would have to adopt the system and develop domestic laws to comply with the Agreement. The EU comprises 28 countries that require the implementation of the VAT Directives. On the other hand, six countries are party to the GCC VAT Agreement.

    Member states under both the EU and the GCC enjoy discretion about implementing the tax regime; the domestic laws may be designed as per the country's needs.

    Cross border trade

    Cross-border trade refers to the flow of trade from one state to another, as per the two distinct tax regimes, within the borders of the EU or the GCC nations, as the case may be. Both the EU and the GCC make a distinction between VAT charged on goods and services.

  • Tax is usually charged at the place where the goods end up eventually. The final destination of the goods. There are two aspects that the EU VAT system considers when it comes to the supply of goods; first being supply and the other being acquisition. The place of departure of goods is exempted from Tax, whereas the goods are acquired where Tax is imposed. Therefore, the buyer of the goods is ultimately responsible for paying VAT. This is concerning B2B.
  • In the case where goods are directly sold to the end consumer, i.e., B2C, the member state that is the supplier of goods is subject to the imposition of VAT.
  • As per the reverse charge mechanism, the consumer is liable to pay VAT through their periodic return.
  • The GCC system is very similar to the EU in this respect as well. However, all member states have yet to incorporate the Agreement into their domestic laws. The Agreement has more of a straightforward approach in that it applies the reverse charge mechanism directly to the consumers.

    Exemptions

    Both the EU and GCC have a standard, reduced, and zero-rated tax regime. However, specific sectors have been exempted from being taxed under this regime with the general public's interest in mind.

    The EU exempts VAT from being implemented on medical care, public postal services, welfare and security, and any other such goods or services that are essential. Moreover, the member states can practice their discretion to exempt VAT from imposing any other goods or services.

    The GCC exempts VAT from being charged on health, education, and domestic transport; they can further exempt Tax from being levied on; government entities, NGOs, charitable institutions, citizens of member countries, and any other sector they deem fit.

    Measures to improve the GCC VAT System

    The GCC VAT Agreement draws much inspiration from the EU VAT regime. The EU regime serves as a model law that allows the GCC to adopt any such part that would serve advantageous and omit the parts that did not align with their objectives. For example, imposing a uniform tax rate of 5% throughout the GCC was an important lesson learned from the shortfalls of the EU regime.

    Since parties to the GCC Agreement are relatively new to the whole idea of the tax regime, the actual use, that is, their registration, scope implications, should be clearly explained, and business owners should be educated about the topic to prevent legal complications. For example, double taxation.

    The objective value of Tax that has been imposed in the GCC at the rate of 5% may pose a threat to the liberty of business owners and give rise to distortion of competition in the market. The GCC has adopted the VAT system to open its market and recover from the financial crisis. Therefore, restricting competition in the market will be detrimental to the economic objectives that the Agreement aims to achieve.

    Conclusion

    The introduction of a new tax regime has its challenges. However, this is a step in the right direction to achieve economic goals such as foreign trade, competition, economic growth, and creating a global presence in the market. Further, slow and steady implementation of Tax will allow the general public to ease into the tax regime; it will also allow the government to amend the taxation as per changing trends in the economy.

    The GCC nations are foreigners to the concept of Tax since they have been running tax-free since their inception. However, model tax laws implemented worldwide allow these nations to strategically examine and implement the Tax in a way that will not cause chaos in the socio-economic climate.

    The effect of the Tax was seen to be an uncertain move since there was a possibility of a decrease in expenditure by the public. However, its implementation in Saudi, UAE, and Bahrain has shown that people have embraced this VAT regime, triggering a healthy social and economic response. 

     

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    Wed, 25 Aug 2021 07:54:00 GMT
    <![CDATA[Competition 2020 Kuwait]]> Competition 2020 Kuwait

    1. What is the name of the main regulator/ regulators governing the competition law in this jurisdiction?

    The Competition Protection Authority (CPA).

    2. In the context of a merger acquisition in what circumstances, are the seller and/or the purchaser required to notify the competition regulator?

    Each merging company must comply with Kuwait Law No. 10/2007 on the Protection of Competition (as amended by Kuwait Law No. 2/2012) and its Implementing Regulations if the merger would lead to control or increase the existing control of the relevant market value. A merger filing will be required when a market share of more than 35% is acquired or strengthened. The scope of application of the merger provisions applies to companies licensed by the CPA or listed on the stock exchange. The companies involved in a merger must submit the Draft Merger Contract (DMC) to the CPA for it to approve. The Central Bank's approval is required for the units subject to its supervision. The DMC cannot be published or circulated to shareholders or partners before obtaining these approvals.

    3. What steps will a competition regulator take if there are potential concerns around a company obtaining a dominant market position following a merger/purchase of a competitor?

    A Notification along with other required documents will be submitted to the CPA at least 60 days before the date fixed for the start of control or for increasing such control (more than 35% of the particular market).

    The CPA will then publish a summary of the notification in the Kuwait Official Gazette and at the expense of the notifying person in four daily local newspapers in Arabic. The interested person may object to the notice within a period of 15 days from the date of the publication. In the event of an objection, the decision will be suspended pending the settlement of the matter of the objection.

    4. How would a dominant market position be derived?

    Dominance is defined as a situation when a person or a group of persons working together gain direct or indirect control of the market by acquiring more than 35% of a particular market.

    5. Is it possible to appeal a decision by the competition regulator- how does this work?

    Yes, the applicants have 60 days to appeal the CPA's decision.

    6. How quickly is any decision on a competition risk as a result of a merger/company purchase normally taken?

    The relevant person will be notified of the approval or rejection decision of the CPA within 15 days from the date of taking the decision by means of a registered letter.

    7. What remedies are generally taken when a dominant market position is established which would a merger or acquisition?

    The CPA will permit and except the application of the Competition Law on the cooperation between companies which aim to facilitate the market activity and the commercial entities which operate in research and development.

    8. What penalties apply for failure to follow competition law in a merger or acquisition?

    Under Articles 19 to 22 of Kuwait Law No. 10/2007, the violators of the Competition Law may be fined 100,000 Dinars or the amount of the illegally acquired gain, whichever is greater and this can be doubled where the infringement is repeated. The CPA also has the discretion to order the confiscation of the commercial activity or its restriction for up to three years.

    9. Are there any rules governing the way a company seen as having a dominant market position must sell or market their products - which are the most important ones?

    Under Article 4 of Kuwait Law No. 10/2007, the company cannot manipulate or fix prices through fictitious transactions contrary to market principles and in a way which harms competitors or sell the goods at a lower price than their actual cost.

    The company cannot restrict the flow of goods into and out of the market without justification by concealing or refraining them from dealing in the same. The company will not flood the market with goods, causing an unreasonable price which harms competitors.

    10. What are the penalties for failure to apply competition rules when selling or marketing products?

    Under Articles 19 to 22 of Kuwait Law No. 10/2007, the violators of the Competition Law may be fined 100,000 Dinars or the amount of the illegally acquired gain, whichever is greater and the sum can be doubled where the infringement is repeated. The CPA also has the discretion to order the confiscation of the commercial activity or its restriction for up to three years.

    11. Are there any rules which prevent companies from colluding with competitors in the market when setting prices?

    Under Article 4 of Kuwait Law No. 10/2007, 'Preventing or hindering a competitor from conducting business in the market' is a violation of the Competition Law. Any company which colludes with competitors and prevents another competitor from conducting business in the market is committing a violation.

    12. What are the penalties for colluding with competitors?

    The violators of the Competition Law may be fined 100,000 Dinars or the amount of the illegally acquired gain, whichever is greater and the sum can be doubled where the infringement is repeated. The CPA also has the discretion to order the confiscation of the commercial activity or its restriction for up to three years.

    13. Are there any rules governing the way a company seen as having a dominant market position as related to one product is able to sell or market other products?

    There are no specific rules as the rules laid down are for a company having a dominant market position in general.

    14. Are there any specific industries, which have particular competition rules? Give examples of some of the main ones- and the legislation governing this regime.

    The Competition Law expands its applicability to the violations committed in Kuwait, as well as to those taking place abroad but with harmful effect in the internal market. The exceptions to the scope of the Competition Law are limited to state-owned entities, all the activities required by a particular law, the cooperation between companies which aim to facilitate the market activity and the commercial entities which operate in research and development.

    15. Do the free zones have a different competition regime from mainland?

    No.

    16. Are there any industries in which only state or public owned enterprises are allowed to operate? Give the main examples.

    The Negative List codified in Kuwait Ministerial Decision No. 75/2015 consists of the following activities:

  • Extraction of crude oil or natural gas;
  • Manufacturing of coke ovens and products related to it;
  • Manufacturing of fertilisers and nitrogenous formulas;
  • Manufacturing of coal gas and distribution of gaseous fuels through main pipelines;
  • Restate activities, except for construction development projects for private operations;
  • Activities related to security and investigations;
  • Membership organisations; or
  • Activities for the sourcing of labour, including household workers.
  • 17. Are there any industries where fixed/state regulated pricing must apply? Give the main examples.

    Pricing in Kuwait is regulated by the Commerce and Industry Ministry.

    18. What restrictions govern the inclusion of non-compete clauses in employee's contracts?

    Article 196 of Kuwait Decree-Law No. 67/1980 states the general principle a contract is the law of the contracting parties and neither party to it may separately rescind or amend its stipulation except to the limits allowed by agreement or where the law provides otherwise. The employer's interests protected by the court will depend on the conditions expressly agreed to by the employer and employee in the employment contract. The interests of the employer such as trade secrets and customer goodwill can be enforced provided the employer and the employee have agreed to the conditions in the employment contract.

    The employer cannot enforce any restrictive covenants which are not expressly agreed to in the employment contract. The court will limit enforcement to a 'reasonable' geographic area and/or time frame. In practice, the court will limit enforcement of the restrictive covenants up to two or three years. An indefinite restriction will therefore not be enforceable. However, the restriction can cover the entire geographic area as Kuwait is a very small country.

     

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    Thu, 18 Feb 2021 16:11:00 GMT
    <![CDATA[Rail Infrasructure Projectse GCC]]> Rail Infrasructure Projects in the GCC

    Rail Projects are always an ambitious and expensive affair every country hopes for, not to mention the long time periods required to complete and establish such projects as operational. While providing extensive environmental benefits, reducing the pollution created by cars and other heavy operational 18 wheelers, the rail project would also provide for economic and infrastructural benefits. In this piece, we shall discuss the GCC Rail Project, also known as the Gulf Railway, which has been envisioned and in the works for over a decade, its benefits, risks, and disadvantages. 

    Since the beginning of time, a developed railway network is considered synonymous with prosperity and progress of a nation. A well-connected country is a well-developed country. As is the case, various GCC member countries have undertaken or are in the process of undertaking various rail-related projects. While these projects are expensive, governments in the Middle East have allotted their income from Oil, whenever there is a price hike, to this ambitious Project. The planning is supposed to connect the UAE with Saudi Arabia, Kuwait, Bahrain and Oman.

    Panning an area of a staggering 2177 km, this Project is estimated to cost up to 250 billion US Dollars. As is, the majority of this Project is planned for UAE and Saudi Arabia. The plan was first proposed in 2009, with the completion estimated by 2018. Issues such as economic recession, dropped oil prices, differences in opinion amongst member states, and various other factors have led to the first phase of the Project, which would link UAE, Saudi Arabia, and Oman, now postponed to completion by 2023. The second phase of the Project connecting Saudi Arabia, Kuwait, and Bahrain, is estimated to be completed by 2025. Also, the income of different countries being varied provides a slight hiccup in regards to funding as some states such as Bahrain are not as well equipped for these projects as its major partner giants like Saudi and UAE. Even then, the Gulf countries have taken on massive foreign currency reserves and loaded up on sovereign debt. As is, the majority of this Project is planned for UAE and Saudi Arabia. Despite the various issues financially faced by these countries, they have doubled down on rail infrastructure spending and has made considerable progress over the last two years. 

    Certain countries have found other ways to boost their incomes, like the introduction of VAT in both UAE and Saudi, and Public-Private Funding as a preferred mode of the funding model. PPPs have helped countries in mitigating various types of risks that are involved with such projects. Apart from the Gulf Rail, countries that are part of this expansive rail project also have their individual trains operating or in the process to begin operation within the Country. These could then be linked to the Gulf Rail, providing a complete network of train system within and outside the Country.

    UAE

    The UAE has various rail projects in different cities. Etihad Railways is one such ambitious rail project which has already completed 1200 km distance of its desired Project. The Ministry of Finance has signed a deal with Abu Dhabi Department of Finance to fund the second stage of the Etihad Rail Project. The second stage will pan a distance of 605kms which will be from Ghuweifat on the border with Saudi Arabia to Fujairah on the UAE's east coast and hence will also integrate into the GCC Railway network.

    The Dubai Municipality had caught on earlier about the need and importance for a rail system based on studies starting from 1997. It had been reported that Dubai's motorists spent an average of 29 hours annually in traffic, which is a higher time period than those who are stuck in traffic in New York, Bangkok, London, etc. In 2009, merely just over a decade later, Dubai had started operations of the metro to the general public. Operated and controlled by the Roads and Transport Authority of Dubai, this was the first urban metro project to be operational in the Arab States. With Red and Green lines connecting various parts of Dubai, and a tram project within Jumeirah Lake Towers, one can get pretty much anywhere around the city through public transport. Further expansion has been planned, comprising a 15 kms expansion covering various parts of the city that is heavily populated, termed as the Route 2020. The stations will connect certain prime spots and locations such as the Discovery Gardens, Al Furjan, Jumeirah Golf Estates, and the Dubai Investment Park. This is exclusive of other lines that are in works connecting parts of Old Dubai. Not only are these projects going to improve connectivity, but it shall also provide for higher property prices in these areas, as they would be more easily accessible to the general public.

    Saudi Arabia

    Saudi has launched its own initiative in connecting the country with various massive railway projects known as the Saudi Landbridge Project. A project investment worth an estimate of 7 billion US Dollars with the tracks panning a distance of 950 kilometers, this would be one of the longest train lines equipped throughout the Arab states. Saudi has various lines under construction for its projects. Another project that is simultaneously underworks is between Riyadh and Jeddah, spanning a distance of 115 kilometers. This will primarily be a freight line which shall be interlinked with North-South railways. The Harmain High-Speed railway line connects Makkah with Madinah, passing through stations in King Abdullah Economic City, and King Abdulaziz International Airport in Jeddah. There will be three freight and two passenger stations (at the airport and in the city centre) in Jeddah. The Dammam-Jubail line will cut short the time for passenger travel by two hours. The freight service from Jeddah to Dammam will cut short the time period for transportation by days on end, as now the link by sea takes roughly around over a week with shipments.

    Bahrain

    Bahrain has already started and is continuing development of the King Hamad Causeway Project, which is its transport connection project to the Gulf rail. It is estimated to cost 3.5 Billion US Dollars and three years to complete this Project. In connection with the Saudi Arabia Ministry of Transport, King Fahd Causeway Authority, and Bahrain Ministry of Transport, Bahrain is going to jointly realize this rail project. The Project consists of a 25 km road and rail offshore section adjacent to the existing causeway and a further 25 km rail section only which is predominantly in KSA connecting to the existing Dammam to Al Hofuf line and with a short section inside Bahrain connecting to the proposed King Hamad International Terminal at Ramli area. 

    Inspired by the Dubai metro, Bahrain is also in the works of launching its own metro line, the light rail network, and the tender for its Project is rumored to be put out next year. However, the operation for this Project is only expected to happen by 2027.

    Kuwait

    Kuwait has delayed the road railway project linking to GCC rail this year due to failure on the part of Public Authority of Roads and Transportation to provide for designs for the rail routes. A 24-month delay has been requested by the Authority as an intensive project as such would require a competent consultant to complete the design on the Project. It is estimated to cost Kuwait 7 billion US Dollars to complete its side of the Project.

    Kuwait also has been in talks of launching a local metro rail within its city since 2009. The plans have unfortunately not come to fruition, although tender for the Project has been handed out. This is also expected to connect to the Gulf rail.

    Oman

    Oman has anticipated its need for a local rail line to and from its mineral mines as this would make transportation of the country's main resource easier. But current lack of demand in the product has stalled the Project; Phase 1 of which is from Manji to Duqm. Oman was in the initial phases of planning stages two of its railway network, the 240km line from Haifait to Fahoud, which is divided into two phases: the 114km section from a junction with phase one at Haifait to Ibri, and a 126km link from Ibri to Fahoud. It is yet to be known whether the status of the Project has changed.

    Concerns and Risks

    There are various concerns and risks evolving around the Project. Since GCC is not economically integrated with each other, there is the aspect of concern as to the percentage of completion from each of the States. It would be in vain if one Country was to complete its part in construction while another hasn't, and the railway not being operational due to this. Hindering oil prices and dwindling interest in minerals are pushing few of the member countries to postpone the Project for a later date. Another concern is regarding illegal immigration and visa issues of non-GCC nationals as it would be difficult to monitor the passengers entering the train, with lines going cross border for thousands of miles. Disagreements between states as to where the lines should begin and end, what part of the city to integrate the lines to, would be another issue altogether. Political turmoil and differences, if occurs, would further make a dent in this plan. There is also the concern of those who own or stay on the land that might come in between the stipulated rail line. They would have to be handsomely compensated, provided they agree to give up their land for this purpose. Technical aspects like the procurement of material, its quality for infrastructure, build quality of the rail, boring through underground lands and tunneling through mountains are herculean tasks that would require utmost care to execute, and has to be made sure that it is done properly.

    Advantages

    Apart from being a beacon in energy efficiency and sustainability, rail projects provide various other advantages. They help with easier transportation of goods for businesses operating interstate and would cheapen the cost of shuttling said goods from various states. Businesses have more scopes of operations as now they can efficiently conduct their businesses in the multiple countries available for trade. We are not strangers to the exponentially long lines of trucks parked at the border, awaiting customs approval to cross over, sometimes taking days in the process. Drivers can now be relieved of this painstaking task once the rails are operational. This would also reduce the time it takes for travel to those that stay far away from their workplaces. All these aforementioned advantages help with the GDP growth of a country. It also saves largely on Petrol consumption in these countries, helping provide a sustainable and brighter future.

    Conclusion

    While this Project has been a dream amongst GCC member countries for years on end, like any other projects on this scale, it has faced its hindrances. Overcoming the various economic, political, and financial issues might seem almost impossible at various points, but once that has been overcome and the project is completed, it would be an unprecedented, never-before achieved dream that would contribute majorly to the development in tourism and commerce of all the countries involved. We can already see a glimpse of that enthralling success as most of the member states are already underway in nearing the realization of this dream.

     

     

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    Mon, 02 Nov 2020 18:36:00 GMT
    <![CDATA[Initial Public Offering- Kuwait]]> Initial Public Offering- Kuwait

    Introduction

    As per Law Number 7 of 2010, Regarding the Establishment of the Capital Markets Authority and Regulating Securities Activities, Security is defined as, "Any instrument - in any legal form - that evidences ownership of a share in a financial transaction and that is negotiable pursuant to a license from the Authority, such as:

  • Shares issued or proposed to be issued in the capital of a company
  • Any instrument that creates or acknowledges a debt issued or to be issued by a company
  • Loans; bonds; Sukuk; and other instruments that can be converted to shares in the capital of a company
  • All public debt instruments that are tradable and issued by the various government entities or public institutions and authorities
  • Any right, option, or derivative relating to Securities
  • Units in a collective investment Scheme
  • Any paper or instrument considered by the Authority as a Security for the purposes of implementing this Law and the Bylaws"
  • Kuwait established Capital Market Authority in February 2010 as a regulatory body of the various transactions that takes place in the market. The CMA is in charge of various activities such as

    • Regulating Securities activities
    • Growing capital markets and diversifying by introduction of investment instruments in accordance with international practice
    • Ensuring compliance in regards to the established rules and regulations

    In 2015, the body enacted a set of laws in relation to the market place conduct. This is the law that governs the regulations, procedures, sale, and offer in relation to the aforementioned securities, in Kuwait.

    The law was enacted in 2015 as Decree Number 72 by the Kuwaiti Parliament. Kuwait CMA Laws is considered to be one of the most complex and diverse set of regulations to be adopted by Kuwait in its recent years.

    Listing Requirements

    For a company to be listed with the Kuwaiti stock Exchange, there are various regulations to be followed. Proceeding the listing application submission, a company has to provide all documents and information required along with the payment of fees for the Exchange and Authority. Module 12 of the Bylaws deal exclusively with the requirements and rules of listing. A detailed enumeration of the requirements are provided here

    Licensing

    Further, it is necessary for the issuer to obtain a license to conduct activities in the market. Article 63, Chapter 5 of the CMA handbook states that a person cannot operate without a license in the market for activities such as:

    • Securities Broker,
    • Investment Advisor,
    • Investment Controller,
    • Investment Portfolio Manager,
    • Collective Investment Scheme Manager,
    • Any person who conducts or participates in any other activity that is deemed by the Authority to be an activity in Securities to be regulated in accordance with the purposes of the Law,

     

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    Mon, 19 Oct 2020 09:51:00 GMT
    <![CDATA[CFD's in Kuwait]]> Contracts for Differences in Kuwait

    Introduction

    Contracts for Differences (CFDs) is a type of security investment wherein investors make a profit from the difference of a company's fluctuating stock value in the market. CFD is a form of derivative trading, formed as an agreement between an investor and a CFD broker for exchanging the difference in the value of a financial product within the opening and closing time of the contract. CFDs can be classified as a form of security that is issued by the Company. The wider range of markets to invest with, the flexibility to go long or short, and the ease of contract execution are some of the advantages for an investor to choose this form of security over others. Kuwait established the Capital Market Authority in February 2010 as a regulatory body of the various transactions that take place in the market. In 2015, the body enacted a set of laws in relation to the market place conduct.

    Capital Market Authority Law (CMA Law)

  • This is the Law that governs the regulations, procedures, sale, and offers in relation to the aforementioned securities, in Kuwait.
  • The Law was enacted in 2015 as Decree Number 72 by the Kuwaiti Parliament.
  • CMA Law is considered to be one of the most complex and diverse sets of regulations to be adopted by Kuwait in its recent years.
  • This article shall further discuss the regulations in relation to the licensing and other requirements for CFD Trading in Kuwait.

    Securities

    As per Law Number 7 of 2010, Regarding the Establishment of the Capital Markets Authority and Regulating Securities Activities, Security is defined as, "Any instrument, in any legal form, that is an evidence of ownership of a share in a financial transaction, and that is negotiable pursuant to a license from the Authority, such as:

  • Shares issued or proposed to be issued in the capital of a company;
  • Any instrument that creates or acknowledges a debt issued or to be issued by a company;
  • Loans; bonds; Sukuk; and other instruments that can be converted to shares in the capital of a company;
  • All public debt instruments that are tradable and issued by the various government entities or public institutions and authorities;
  • Any right, option, or derivative relating to Securities;
  • Units in a collective investment Scheme;
  • Any paper or instrument considered by the Authority as a Security for the purposes of implementing this Law and the Bylaws."
  • Any activity that falls under the aforementioned categories shall be termed as Securities. For companies to establish trading through securities, there are various obligations that are required to be fulfilled. Securities licensing has to be obtained in order for a Company to be authorized to issue securities. Kuwaiti entities like shareholding companies must secure the Authority's approval for issuing securities. The issuance approval process is necessary whether the issuance of the securities is direct or indirect. Bonds may be issued by shareholding companies directly, or indirectly through a special purpose vehicle that is established either onshore or offshore.

    Licensing

    Article 63, Chapter 5 of the CMA Handbook states that a person cannot operate without a license in the market for activities such as:

  • Securities Broker;
  • Investment Advisor;
  • Investment Controller;
  • Investment Portfolio Manager;
  • Collective Investment Scheme Manager;
  • Any person who conducts or participates in any other activity that is deemed by the Authority to be an activity in Securities to be regulated in accordance with the purposes of the Law; and
  • A few other activities.
  • Whereas, a company may be granted a license to perform multiple activities aforementioned, provided they fulfill the required criteria and submit the Private Placement Memorandum (PPM).

    A Private Placement Memorandum or a Prospectus is a document which helps a company attract professional clients to subscribe onto its platform. This is a crucial document as depending on the Prospectus, this specific category of clients would subscribe to the Company's capital. As such, CMA requires the person or entity to submit its PPM in accordance with Article 5-11 of the Securities bylaws. The article provides for the Prospectus to include:

  • Issuer's details, such as name, address, and date of incorporation.
  • Sales Agent's name and address, if the Issuer is not the Sale Agent.
  • Subscription Agent's name and address, if any.
  • Subscription period.
  • Subscription minimum, if any.
  • Kinds of investors eligible for the Subscription.
  • Details of the intended use of the proceeds of the issue.
  • A statement that the Prospectus has been prepared in accordance with the Law and these Bylaws and approved by the Authority.
  • Statement of the Central Bank's approval for the issue by Units Subject to the Supervision of the Central Bank.
  • A statement that the Authority shall not be a party to any claim of damages arising from an approved Prospectus.
  • The Prospectus shall not exclude any important information issued and the information provided is factual in nature. This is to be confirmed by the Issuer, Obligor, or the Subscription Agent and any information in relation to these entities that might be relevant, are made aware of, to the investors.
  • A statement, either of Board of Directors or on behalf of individual board members stating that all information stated in the Prospectus is accurate and complete.
  • Certification from legal advisors of Issuers and Obligors on the legitimacy and compliance of the Prospectus and other relevant documents with the legal requirements of the Authority.
  • A note explicitly stating "We recommend that you seek the advice of an appropriately qualified Licensed Person regarding the contents of this Prospectus before deciding to take part in the subscription."
  • Transaction carried out or to be carried out by related parties to be stated in brief.
  • Details of the offered securities as stated:
  • Number and class of the Securities offered
  • Statement of the rights arising from Securities, depending on the type of Security (Shares, Preferred shares, Bonds, Sukuk, etc. as mentioned in Article 5-9)
  • Brief description of any restrictions on Trading of the Securities being offered and any future measures concerning thereof
  • Purpose of such Securities being issued.
  • XVII.A few information concerning the Issuer shall be mentioned in the Prospectus such as:

  • Number and Detail of ant Securities previously issued by the Issuer
  • Audited and approved financial statements of the three years immediately preceding the application of Prospectus. If the last audition was conducted nine months prior to the application, then an updated financial statement by an Auditor is to be provided.
  • XVIII.Any information on claims, judicial actions, or arbitration procedures to be taken against the Issuer or any of its Subsidiary Companies in relation to the financial position, regardless of the status as to whether it is considered, suspended, or alleged.

    The aforementioned set of details and documents needs to be submitted to the Authority before the Company is able to issue Prospectus to the Public.

    These documents are not just applicable for the purpose of CFDs, but also other types of Securities, such as shares. Unlike with CFDs, certain securities such as shares have various rights affiliated with them to be enjoyed depending on the type, which is stated in Article 5-9 of the Module:

    In the case of Ordinary Shares, the rights arising shall be:

  • Voting rights.
  • Profitability (short-term) of shares.
  • In case of liquidation, Rights.
  • In the event that the Subscription is not covered, pertaining Rights granted.
  • Whereas in the issuance of Preferred Shares:

  • Profit distribution, with provisions determining the distribution of Dividends.
  • Restriction on payment of Dividends for Shares.
  • Voting rights.
  • Profits and liquidation proceed rights.
  • Terms and Conditions for the conversion of Preferred Shares into ordinary shares, and redeeming the convertible shares.
  • Ability to exercise rights before and after the conversion of shares.
  • Whereas in the issuance of Sukuk, offering bonds, and any other debt instruments:

  • Payable Returns.
  • Date of Payment.
  • Redemption Payment.
  • Provisions of formation and operation of Bondholders and Sukuk holders Association.
  • Events that would lead to an acceleration of this particular set of securities.
  • Terms and Conditions for conversion to ordinary shares.
  • Rights in case the Issuer or Obligor's financial status results in bankruptcy, liquidation, or being wound up.
  • The process for a license application of any Securities Activity is lengthy and would take three months or upwards to be granted. The documents required to be submitted for the application is specified in Articles 1-5 of CMAs executive bylaws. These documents are stated as mentioned below:

  • Name and address and the commercial register number of the license;
  • Regulatory business plan containing certain details;
  • Statement of the Securities Activity for which the application is in regards to;
  • Information about the issued and paid-up capital of the Company to which the application is in regards to;
  • A statement of the shareholders whose ownership has reached above a specified percentage of the Company to which the license application relates;
  • A copy of the Company Contract to which the license application relates and any amendments to the same;
  • Nomination for applicants for Registered Positions and Employment Positions in accordance with the Fit and Proper Rules in Appendix 5 of this Module;
  • Sufficient information of any Effective Control over the Company to which the license application relates;
  • Any agreements or undertakings with external entities;
  • The audited financial statements for the last three years prior to the date of application, along with forecasts of its expected financial position for three years after business commencement;
  • Approval of the Central Bank should the applicant be one of the Units Subject to the Supervision of the Central Bank;
  • A legal opinion from an external legal advisor of the Company on any lawsuits of material influence on the legal position of the Company;
  • Declarations signed by the founders of the Company to the effect that no verdict of bankruptcy, penalty on a crime of breach of honor or trust, or being convicted of a crime/ felony involving a breach of honor or trust or freedom restricting penalty in any of the crimes stipulated in the Law of the Authority or any other law over the five year period preceding the license application unless he or they have been discharged;
  • A declaration by the license applicant stating that the information contained in the application and enclosed documents are accurate and complete in addition to any other declarations required by the Authority;
  • Proof of payment of fees for the processing of the application;
  • Any request by the applicant for the dis-application of legal or regulatory requirements and the justification for such a request;
  • Any other information or documents that may be specified by the Authority.
  • The license applicant could be asked to submit further documents covered under Article 1-7 including but not limited to, the sufficiency of resources for practice, admin experience, technical resources, etc. If the applicant does not meet the allotted deadline to submit the extra documents and cannot provide a legitimate reason in not doing so, then the application would deem to be withdrawn.

    Reverse Solicitation

    Reverse solicitation is also commonly known as Passive Marketing. This is the act where an investor who has not had any previous contact with an investment manager, contacts an agent to make a potential investment in the fund. Article 63 of the CMA law prohibits the act of offering and selling of foreign securities in Kuwait unless it is done through a 'licensed person', invalidating the practice of Reverse Solicitation. The categories of such licensed entities permitted activities are mentioned above under Licensing.

    The practice of reverse solicitation used to be very common in the Kuwaiti market earlier. A foreign company now may conduct its marketing provided it is through an agent or registered as per the aforementioned criteria. But a foreign entity is prohibited from conducting any activities with the Kuwait Markets unless it is through licensed persons. Article 93 under Chapter 9 explicitly states that foreign securities may not be issued for Public or Private Placement unless licensed by the Authority.

    It is required of the licensed person to be the one initiating contact with the investor. Provided that this is the circumstance, the Company does not need to obtain a license or submit PPMs. These regulations are not applicable to any entity that has their operations, branches, employees, or other forms of logistics located in Kuwait, as they are eligible for marketing their securities without having an investor establish contact first, provided they have obtained their license as per stated regulations.

     

     

    ]]>
    Tue, 22 Sep 2020 10:04:00 GMT
    <![CDATA[Copyright Registration in the Middle East ]]> Copyright Registration in the Middle East 

    Admittedly, the Middle East has something of a "Wild West" reputation, when it comes to some business behaviors. One of the most protuberant of these is the Middle Eastern perception of copying someone as a form of flattery, rather than as theft. In this era, where platforms like Instagram and Pinterest reign supreme, the idea of free design has been distorted. While people are happy to pay for construction, because that is tangible, the design is thought to be 'just a piece of paper'. However, the impression that the Law here does not protect designers is, to an acute degree, unfounded. In the UAE, the Ministry of Economy is the highly competent authority that registers and protects intellectual property. 

    However, it is important to note that the number of copyrights registered annually in the GCC countries is a relatively small figure, and furthermore, that copyright litigation here is rare. When it does occur, it ends up being a time-consuming, and cost-ineffective ordeal for copyright holders. While a unified system pertaining to copyrights in the GCC countries does not exist, copyright registration is recommended in order to maximize protection; this ensures that infringers shall be subject to limited damages, fines and possible imprisonment. 

    This article shall explore copyright registration in the GCC countries- a domain that should be taken into consideration in order to evade the possibility of continued infringement. 

    Copyright Registration in the United Arab Emirates 

    Upon the creation of the object to be copyrighted, copyrights can be registered in the United Arab Emirates in accordance with the UAE Federal Law Number 7 of the Year 2002 Concerning Copyrights and Neighboring Rights.

    For it to be eligible to be copyrighted, the object should have been the direct result of intellectual work, as opposed to plagiarism, and should be expressed in any objective form. The copyright can be registered in the UAE upon the filling out of a simple form, and the deposition of one sample of the work to the office of one of the following organizations:

  • The Copyright Department of the UAE Ministry of Economy (Copyright Department) – response may be expected within 1 - 3 months;
  • The Dubai Copyright Office (the local hand of International Online Copyright Office INTEROCO, European Union) - response may be expected within ten days;
  • The U.S. Copyright Office (they may be reached via post).
  •    

    Is the registration of a company or product logo/ insignia/ brand mandatory in the United Arab Emirates? 

    It must be noted that the registration of a copyrighted object is a voluntary right of author/ registrant in the UAE. However, in case these very trademarks or copyrighted objects are being employed in the market in order to promulgate goods/services to customers, the registration of their copyrights is mandatory, in order to avoid penalties that may be levied on account of deception of UAE consumers (as per the UAE Executive Regulation of the Consumer Protection Law). 

    How does UAE Law define copyright?

    As per the United Arab Emirates Federal Law Concerning Copyrights and Neighboring Rights, copyrighted work refers to any created compilation, that may lie in the scope of letters, arts, sciences, in whatsoever mode of expression, and intended for whatsoever purpose. 

    To faintly capture the jurisdiction of this term, the term 'copyrighted work' could be used to refer to registered logos, books, pamphlets, essays and other written works, computer programs and applications, databases, lectures, addresses, sermons, dramatic, dramatic-musical works and shows, verbal or non- verbal music compositions, sound and audiovisual works, architectural works, engineering plans and layouts, works of drawing, painting, sculpture and lithography, and engravings or similar works in the scope of fine arts, photographic works and works analogous to photography, works of applied and plastic art, illustrations, geographical maps, sketches, three-dimensional works relative to geography, topography and architectural designs. 

    Characteristics of the awarded Copyright Certificate 

    As previously established, the copyright registration process is about six months long if the approached authority is the U.S. Copyright Office, and about ten days if the request is issued to the INTEROCO European Copyright Office. The issued copyright certificate shall stay valid over the rest of the course of the author's life, and fifty years after his death. The jurisdictions that the certificate covers shall be the 167 countries that are party to the Bern Convention, of which the UAE has been a signatory since 2004. The authorship of the copyright may be privately held. Either a private individual or a legal entity may be the right-holder; interestingly, partial ownership by physical persons and companies is allowed. The price of copyright registration in the country is USD 4000, with the registering organizations of the INTEROCO or the U.S. Copyright Office. We shall delve further into the intricacies of these vis-à-vis the questions posed below.  

    How long does the copyright protection last? 

    The registered copyright object is protected in the UAE, all through the lifetime of the author, and an additional fifty years beginning from the first day of the calendar year following the death. Correspondingly, the economic rights of the authors of collective works (except those of the authors of applied arts) shall be protected for a period of fifty years beginning from the first day of the next calendar year, in case the author is a legal person.  

    Who is eligible to be an author to copyright in the UAE? 

    The author of copyright could be any physical person, or a group of private individuals, whose information is elucidated upon in the application form. These UAE authors' rights are recognized and protected in all countries that are signatories to the Berne Convention for the Protection of Literary and Artistic Works. As per UAE Copyright Law, the author is the individual responsible for the creation of the work, or the individual who has his name mentioned on the work; if the work has been attributed to him at the time of publication, this author is eligible. 

    Which are the documents that need to be prepared for lawful copyright registration in the UAE? 

    The documents that require to be presented include: 

  • the application
  • a sample of the work to be copyrighted
  • the photo I.D. or passport of the person who is to assume authorship
  • essential information about the right-holder (owner) 
  • a confirmation receipt of the official registration fee payment
  • the contact details of the applicant
  • Is the UAE a signatory to the Berne Convention governing international copyrighting? 

    The United Arab Emirates is indeed party to the Berne Convention for the Protection of Literary and Artistic Works, as of 14 July 2004. The Berne Convention is an international agreement governing copyrights; it was first ratified in Berne, Switzerland, in 1886. It was precisely this Convention that formally set in stone several aspects of modern copyright law; it introduced the novel concept that a copyright exists the very moment that a work is "fixed". It also puts forth, and actively enforced a requirement that countries recognize copyrights held by the citizens of all other countries that are signatories to the Convention. The World Intellectual Property Organization administrates the Berne Convention. 

    Copyright Registration in the Kingdom of Saudi Arabia 

    While there certainly are a large number of myths afloat in the ether about copyright protection in Saudi Arabia, some of which ring to the tune of- "it is not possible for non-Saudi nationals, and foreign companies to benefit from copyright protection", this is simply not the case.

    Like the UAE, the Kingdom is also party to the Berne Convention, which sets out the quintessential intellectual property principles including "national treatment" and the "automatic" protection of copyright works.

    Is Copyright protection available in Saudi Arabia?

    Saudi Arabia certainly has copyright legislation in place in order to secure the protection of copyrighted objects. The Law, Royal Decree Number M/41, dated 30 August 2003, and its corresponding implementing regulations are possessive of detailed provisions on the subject matters of protection, infringement, exceptions, ownerships clauses, and procedure to enforce rights. 

    Which objects are eligible for copyright protection in Saudi Arabia? 

    Literary, artistic and scientific works are protected in Saudi Arabia. Literary work is a term that could be employed to refer to books, articles, magazines, software, and artistic work (which may include paintings, photography, sculpture, lithography and maps etc.) 

    What is the process for registration of Copyright in Saudi Arabia?

    As of now, there is no concrete procedure in place for copyright registration. Nonetheless, as previously established, since Saudi Arabia is privy to the Berne Convention, any work which falls in the purview of protectable subject matter, and fulfils the condition of originality and authenticity, shall be protected without registration. Provisions pertaining to copyrights in TRIPS agreements are also applicable in Saudi Arabia, given that it is a member of WTO.

    Which ministerial authority in the country is responsible for Copyright protection?

    In Saudi Arabia, the Ministry of Culture and Information is responsible for the protection and enforcement of copyrights in Saudi Arabia. The Copyright Protection Division is a highly germane department that has significant oversight within the ministry. 

    How long does copyright protection stay in effect? 

    In the Kingdom of Saudi Arabia, it greatly depends upon the type of work involved. 

  • The protection of work for a singular author extends to span his/her lifetime, and for 50 years after the death of the author.
  • With regard to joint work, the protection shall extend over the span of the lifetime of the authors, and for 50 years after the death of the last surviving author.
  • With regard to corporate entities, the protection of fifty years shall start from the date of the first publication of work onwards. 
  • Photographs are all protected for a definitive period of 25 years.
  • The SAIP Launch of the Optional Copyright Registration System – A Paradigm Shift

    Notably, in December 2019, the Saudi Authority for Intellectual Property announced the launch of the optional registration service with regard to the copyright system; this allows the authority to register credited work and documentation, and serves as an electronic database for them. The works that currently are able to enjoy the optional registration service include computer software and apps, in addition to architectural designs.

    With the single-minded goal of the establishment of a safe atmosphere to harbor innovators, the approval for the optional registration list of copyrighted works was adopted upon the issuance of the approval of the Board of Directors of the Saudi Authority for Intellectual Property, pursuant to the missions and prerogatives assigned to it, as per the Council of Ministers Resolution Number 496, dated 9/14/1439 A.H. In its third article, it stipulates that the authority shall bear the onus for the organization of the domains of intellectual property in the Kingdom, and their development, nurturance, protection, and elevation. 

    Copyright Registration in Bahrain

    Like the UAE and the KSA, Bahrain is also a member of the Berne Convention, according to Law Number 30 of 1996, in addition to the WIPO Copyright Treaty as per Law Number 14 of 2004. Bahrain's membership in both of these treaties was effectively translated into the local legislative system, with the goal of throwing a net of copyright protection, with respect to both moral and financial rights.

     

    The Copyright Law of 2006 sets the Bahrain intellectual property scene apart by establishing the protection period to be the authors' life plus 70 years, as opposed to the common 50 years, and by adding specific provisions with regard to customs and preliminary procedures. 

    What are the Bahraini copyright registration formalities, if any? 

    Like the majority of the countries in the GCC, and as delineated by the Berne Convention, copyright protection can be availed of automatically, without the need for registration or other formalities. However, should the copyrighted work be deposited before the Ministry of Information, evidence of ownership shall become governmentally touted; this would greatly assist the resolution of ownership disputes, document assignments, and any other financial transactions.

    The legislative component of the Copyright Protection machine in Bahrain is admirably robust, with the laws and regulations in the Kingdom being fine-tuned to perfection. However, the wedge in the cogs is posed by the minuscule number of judicial and administrative precedents, especially with regard to I.P. enforcement– most of the provisions have been left untested. 

    Copyright Registration in Kuwait 

    By virtue of the Berne Convention, of which Kuwait also happens to be a signatory, copyrighted work stands to be protected, without mandating the formality of registration or deposition with the National Library. However, in order to wield the power of a prima facie ownership claim, it is recommended to adopt a formal registration procedure that guarantees protection.

    What are the legal requirements to obtain a copyright in Kuwait? 

    In order to obtain copyright protection, the work at hand is required to be; distinct, novel, and genuinely produced. It goes without saying that the work must have been manifested in a creative fashion, that is completely bereft of imitation, or plagiarism, so to speak.  

    The procedures to obtain a copyright are elucidated upon in the following steps:

  • The relevant application from the National Library is to be filled out. 
  • Two copies of the work-to-be-copyrighted are to be provided.
  • All pertinent information is to be compiled in the CD format.
  • A Power of Attorney is required to be issued the workup to the Kuwaiti consulate. 
  • If the agent is foreign, a local agent is required to be present. 
  • Can copyrights be registered? 

    In Kuwait, copyrights can certainly be registered with the National Library, in order to protect the copyrighted work from misuse. 

    What are the formalities for copyright registration in Kuwait? 

    Under the new Kuwaiti Copyright Law of 2017, the administration of registration has been assigned to The National Library. The applicant is expected to file an application addressed to the National Library, bundled with a copy of his work. In the Law, the Library has prescribed asset of varied procedures for different types of objects and an official fee. Within two to three months, the Library shall issue a depository number to the applicants, once the formal filing has been made.

    What is the tenure of active, registered copyright? 

    Like many other GCC countries, the period of protection of the copyright is the life of the author, in addition to another fifty years starting from the year of death of the author. 

    The period of protection for compilations published by individuals sheltering under a pseudonym, or cinematic compilations, photography works, applied arts, software or posthumously published compilations is 50 years. 

    With regard to works owned by broadcasting entities, the period of protection extends to twenty years from the end of the year in which it was the first broadcast.

    Copyright Registration in Oman

    By now, a pattern is discernible- on account of it being a signatory to the Berne Convention like the other GCC countries, copyrighted works do not need to be registered in order to acquire protection in Oman. 

    However, the government provides nationals with a voluntary right– they are provided with a mechanism for copyright registration if they wish to engage in the same. While this certainly does not grant those, who register with any special rights, it can certainly be said to be a potential tool to serve as additional evidence, in the event of ownership being contested. Once or twice a year, the Ministry of Commerce and Industry issued the details of the works that have been deposited for copyright registration in the Official Gazette. 

    Conclusion

    It can be universally conceded that strong profits and lax enforcement are possessive of sway, that might encourage traders to illegally market, and distribute infringed products. Regrettably, famous copyrights are routinely used, and capitalized upon for profit, without permission throughout the Middle East; this leads one to believe that a set of unified I.P. laws in the GCC is of the essence. This has the potential to eliminate a variety of infringements in the member states and clear the path for heavy-handed I.P. enforcement. Companies and industries that are registrants under this proposed system would also indubitably benefit from the unified front it proffers– it would make their I.P. impregnability more absolute. 

    ]]>
    Tue, 01 Sep 2020 09:39:00 GMT
    <![CDATA[Extradition Treaty of UAE]]> Extradition Treaty of UAE

    In International Law, extradition is when one state (Requesting state) requests another state (Requested state), to effect the return of a person for trial for a crime punishable under the Requesting state's laws and committed outside the Requested state (state of refuge).

    The extraditable person could be:

  • charged with a crime but not yet tried;
  • tried and convicted who have escaped custody; and
  • those convicted in absentia.
  • Except for the protection of special national interests, states do not apply their penal laws to acts which are committed outside their boundaries as per the principle of territoriality of criminal law.

    Extradition between countries is regulated by diplomatic treaties and within countries by extradition acts. Belgium, in 1833, adopted the first act providing for extradition.

    Extradition acts primarily specify the extraditable crimes, clarify extradition procedures, and set out the relationship between the international treaties and extradition act. National laws vary regarding the relationship between extradition acts and treaties. In the US, extradition may be granted only pursuant to a treaty and only if Congress has not legislated to the contrary. A similar situation exists in Belgium, the Netherlands and Britain whereas Switzerland and Germany extradite without a formal convention in cases where the Requesting state and their governments have exchanged declarations of reciprocity. Fugitives are also sometimes surrendered by states solely as an act of goodwill. However, countries without extradition agreements with certain other countries have been considered as a haven for the fugitives. Certain principles of extradition are common to many countries. For instance, many states decline any obligation to surrender their own nationals. In Britain, the United States and Argentina, nationals may be extradited only if it is authorized by the governing extradition treaty. Another instance of a common principle is double criminality. This principle stipulates that the alleged crime for which extradition is being sought must be criminal in both the Requesting and the Requested countries.

    The United Arab Emirates sends and receives numerous extradition requests every year. Extradition requests sent by the UAE are prepared and sent by the International Co-operation Department of the Public Prosecution. This department ensures that requests fulfil the conditions set forth in the governing law of Federal Law Number 39 of 2006 on Mutual Judicial Co-operation in Criminal Matters ("2006 law") which was passed to facilitate the UAE's co-operation with foreign and international judicial authorities. The 2006 law empowers federal courts and the Ministry of Justice, under enumerated circumstances, to provide information to foreign authorities regarding the identity and whereabouts of an individual, search persons and premises, seize property, and obtain information and evidence that might assist their foreign counterparts in conducting investigations or making extradition agreements. It also ensures that the documents are duly translated into the official language of the Requested country and that the request is sent through the proper diplomatic channels.

    In respect of extradition requests received by the UAE from other countries, the relevant UAE court tries the matter to decide whether that request is in conformity with the relevant governing law, and accordingly, accepts the extradition of the subject of the request to the Requesting country. The competent court will refuse extradition if the extradition request fails to fulfil the conditions of the applicable law. Therefore, UAE courts are bound to apply the bilateral and multilateral treaties if these exist. Otherwise, they will resort to the domestic law regulating judicial co-operation to decide whether to accept or refuse a request for extradition.

    Extradition can be a complex matter and is relatively simplified by the presence of treaties between the UAE and a significant number of countries that have strong relations with the UAE. The UAE fully understands the importance of international judicial co-operation and more precisely extradition in combatting crimes.

    I. Extradition Treaty of UAE with KSA, Kuwait and Bahrain

    Riyadh Arab Convention on Judicial Co-operation ("Riyadh Convention"), a multilateral treaty signed and ratified by the UAE for judicial co-operation was ratified in the UAE by Federal Decree Number 53 of 1999. The Riyadh Convention was signed by most Arab countries including Algeria, Bahrain, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, Oman, Qatar, Saudi Arabia and Tunisia.

    As per Article 38 of the Riyadh Convention, each contracting party undertakes to extradite persons found on its territory charged with having committed a crime by the competent authority or convicted of having done so by a judicial body of other contracting parties.

    Article 39 of the Riyadh Convention deals with the extradition of nationals.

    A contracting party may refuse to extradite its national provided that the state party within limits covered by its jurisdiction undertakes to charge the national who has committed a crime punishable by law in the territory of any other contracting party. The committed crime by the national must be one for which:

    1) the laws of the two states concerned impose a detention penalty of at least one year; or

    2) if a more severe penalty is foreseen in the laws of any of the two contracting parties.

    Article 40 of the Riyadh Convention states the conditions for extradition as:

  • The individual is charged with committing an act punishable by the laws of each of the two contracting parties (The Requesting state party and the Requested state party) where both laws provide for a detention penalty of one year or a more severe penalty.
  • The individual is charged with acts not punishable by the laws of the Requested state party or where the penalty for the act under the laws of the Requesting state party has no correspondent under the laws of the Requested state party. The same penalty shall apply if the individual prosecuted is a national of the Requesting state party or a national of another contracting party whose laws provide for the same penalty as those provided under the laws of the Requesting state party.
  • The individual is convicted in the presence or absentia by the courts of the Requesting state party where the crime imposes a detention penalty of one year or a more severe penalty, for acts punishable as per the laws of the Requested state party.
  • Nevertheless, there are crimes which are not subject to extradition as laid down in Article 41 of the Riyadh Convention:

  • The crime for which extradition requested is a political crime or one limited to violating military duties. Crimes such as an assault on kings and presidents of the contracting parties or their wives or their ascendants or descendants, heirs apparent or vice-presidents of the contracting parties, murder and robbery committed against authorities, individuals or means of transport and communications, despite being of a political purpose, will not be considered crimes of a political nature.
  • The crime for which extradition requested was committed in the Requested state party's territory, except if the crime caused damage to the interests of the Requesting state party and its laws provide that such crime be prosecuted and punished.
  • The crime has been the subject of a final judgement in the Requesting state party.
  • At the time the extradition request was received, the legal action was fortified, or the penalty was dropped due to passage of time.
  • The crime was committed outside the Requesting state party's territory by a person not carrying its nationality, and the law of the Requested state party does not provide for prosecution when the crime is committed outside its territory.
  • The Requesting state party has issued an amnesty.
  • If charges relating to the crime have been made in the Requested state party's territory, or if a judgement was passed in respect of such crime in a third contracting party's territory.
  • Article 9 of UAE's 2006 law states similar legal obstacles (as mentioned in Article 41 of the Riyadh Convention) that will lead to non-extradition along with additional grounds for non-extradition such as:

  • If significant grounds contribute to believe that the extradition request is aimed to prosecute or punish a person for reasons related to his ethnic or religious affiliation, or his nationality or political opinions.
  • If the requested person underwent investigation procedures or trials for the same crime subject of extradition and was acquitted; or convicted but served the punishment for which he was judged.
  • The person was subjected or could be subjected in the Requesting state's territory to torture, inhuman treatment, humiliating treatment or cruel punishment which does not conform to the crime.
  • As per Article 42 of the Riyadh Convention, the competent authority of the Requesting state party shall submit an extradition request in writing to the competent authority of the Requested state party along with other necessary documents and enclosures.

    Article 43 of the Riyadh Convention permits the detention of the individual whose extradition is requested in case of urgency and based on a request by the competent authority of the Requesting state party. The individual shall be released if the Requested state party does not receive the necessary documents or a request to extend the detention within 30 days from the date of arrest. (Article 44 of the Riyadh Convention).

    The multiplicity of Extradition Requests (Article 46 of the Riyadh Convention):

    If the Requested state party receives several requests for extradition for the same crime, priority shall be as follows:

  • The first priority shall be given to the Requesting state party whose interests were damaged by the crime.
  • Next priority to the Requesting state party in whose territory the crime was committed.
  • Next to the Requesting state party of which the individual to be extradited was a national at the time of committing the crime.
  • However, if circumstances converge priority shall be accorded to the first Requesting state party to submit the extradition request. If the extradition requests relate to multiple crimes, weighing them shall be based on the circumstances and seriousness of the crime and the place in which it occurred.

    UAE has set up a five-stage judicial mechanism to enable the person requested for extradition to challenge the extradition process as follows:

  • The Local Interpol Authorities in the UAE.
  • The Public Prosecution heading the International Judicial Matters
  • The Court of Appeal
  • The Cassation Court
  • The Ministry of Justice & The Ministry of Interior
  • II. Extradition Treaty of UAE with India

    Law relating to extradition in India is governed by the Extradition Act, 1962 (the "1962 Act") and the Extradition Treaties operating between India and other countries. Section 34 of the 1962 Act states extra-territorial jurisdiction, that is, an extradition offence committed by a person in a Foreign State shall be considered to have been committed in India and is liable to be prosecuted in India for such offence. Under Section 216 of the Indian Penal Code, 1860 read with the Constitution of India, 1950 (Schedule VII, List I, Item 18), extradition may be defined as, the action of giving up a fugitive criminal to the authorities of the State in which the crime was committed. Section 3(4) of the 1962 Act categorically states that, in the absence of an extradition treaty between India and any Foreign State, the Central Government may, by notified order, treat any Convention to which India and the Foreign State are parties, as an extradition treaty providing for extradition as specified in that Convention. As per Section 2(f) of the 1962 Act, only "fugitive criminals" may be extradited. Fugitive criminal, as per the extradition law prevailing in India means a person who is accused or convicted of an extradition offence which was committed within the jurisdiction of a Foreign State, and a person who while in India, conspired, attempted to commit, incited or participated as an accomplice in the commission of an extradition offence in the Foreign State. As per Section 2(c) of the 1962 Act, an extradition offence is an offence which is provided in the extradition treaty with the Foreign States. In case of absence of a treaty, an extradition offence is an offence punishable with imprisonment for a minimum term of one year as per the laws prevailing in India or of a Foreign State. Section 2(a) of the 1962 Act defines a composite offence as, an act or conduct of a person occurring wholly or in part in a Foreign State or in India, effect of which (or intended effect which) taken as a whole constitutes an extradition offence in India or in a Foreign State.

    For the surrender of a fugitive criminal, a requisition is to be made to the Central Government by:

  • A diplomatic representation by the Foreign State, at Delhi; or,
  • The Government of the concerned Foreign State may communicate with the Central Government through its diplomatic representation in that State; or,
  •  By other modes settled by arrangements ensuing between India and other countries.
  • The Central Government may then, if it thinks fit, order for an inquiry by a Magistrate. The Magistrate shall issue an arrest warrant for the fugitive criminal under Section 6 of the 1962 Act. After the Magistrate has enquired the case, if a prima-facie case is made out in support of the requisition, the Magistrate may commit the fugitive criminal to prison; shall report the result of the inquiry along with the written submission, if any, filed by the fugitive criminal to Central Government for consideration. However, if a prima-facie case is not made out in support of the requisition, then, Magistrate shall discharge the fugitive criminal. Upon satisfaction qua the prima-facie report of the Magistrate, the fugitive criminal may be surrendered to the Foreign State.

    As per Section 31 of the 1962 Act, a fugitive criminal shall not be surrendered or returned if, the offence is political in nature; the prosecution of offence is barred by time in the Foreign State; if the person is accused of any offence in India, other than the offence for which extradition is sought, or is undergoing sentence under any conviction in India until after he has been discharged, whether by acquittal or on the expiration of his sentence or otherwise; and until the expiration of 15 days from the date of his being committed to prison by the Magistrate.

    Under Section 34A of the 1962 Act, if the Central Government is of the opinion that a fugitive criminal cannot be returned or surrendered, pursuant to a request for extradition by the Foreign State, the Central Government, if it deems fit and proper, can take steps to prosecute such fugitive criminal in India. A provisional arrest is provided under Section 34B of the 1962 Act as upon urgent request from the Foreign State; the Central Government may request the Magistrate (having competent jurisdiction) to issue an immediate provisional warrant for the arrest of the fugitive criminal. The fugitive criminal is to be released upon the expiration of 60 days if no request qua his surrender or return is received, within the period of 60 days. The 1962 Act also makes provisions for the multiplicity of requests from more than one State for the surrender of a fugitive criminal. Section 30 of the 1962 Act stipulates that "if requisition for the surrender of a fugitive criminal is received from various foreign States the Central Government may, considering the circumstances of the case, surrender the fugitive criminal to such State as the Government thinks fit." However, treaties between India and the Kingdom of Bahrain, Kuwait, the Sultanate of Oman, the UAE and Uzbekistan all consider requests priority wise.

    Section 34C of the 1962 Act provides that, where a fugitive criminal has committed an extradition offence punishable with the death penalty in India, is surrendered or is returned by the Foreign State on request of the Central Government (India); and the laws of the Foreign State do not provide for death penalty qua the offence for which the fugitive criminal is convicted, then the fugitive criminal shall be liable for the punishment of life imprisonment qua the offence.  There is no provision of statutory appeal vis-à-vis extradition proceedings in the 1962 Act. For the redress of any grievance against any order vis-à-vis extradition proceedings, the writ jurisdiction of the High-Court concerned has to be invoked.

    In 1999, the United Arab Emirates and India had entered into an agreement on mutual legal assistance in criminal suits. In 2000, the two countries signed an extradition treaty. The individual requested to be extradited must be accused of an offence in the country requesting the extradition. Moreover, such an offence must be punishable under the laws of both India and the UAE with imprisonment for minimum one year, or the person has been sentenced by the court of the other country for minimum six months.

    India, like many other countries, adheres to the principle of not extraditing its own nationals. Indian nationals who return to India after having committed offences in the Gulf countries are not to be extradited to those countries. Such accused Indian nationals are liable to be prosecuted in India in accordance with Indian Law, as the bilateral treaties with these States (except Oman) preclude  extradition of own nationals. India follows a dual system and extradites nationals on the basis of reciprocity where, if the other Treaty State does not extradite, India too bars extradition of its own nationals.

    Conclusion

    The importance of a formal extradition arrangement can be validated by the fact that the absence of it may lead to rejection of the extradition requested by a state. This was witnessed when the lack of a formal agreement between India and Argentina was a primary reason for Argentina's denial of extradition of Ottavio Quattrocchi, who was wanted in India in relation to the infamous Bofors case.

    Extradition is a critical process to bring back those accused of financial crimes and corruption to stand trial. It is a laborious and time-consuming process which is eventually subjective to the benevolence the foreign state, but extradition is the only way to bring back the accused persons who are evading the grasp of justice.

     

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    Mon, 06 Jul 2020 11:31:00 GMT
    <![CDATA[CCTV - Invasion to Privacy in the GCC]]> CCTV & Invasion to Privacy in the GCC

    The world in this millennium is techno-dependent for almost every aspect of life whether its payment of debts through credit card, entering into contracts by parties distant through online, i.e. e-contracts, e-booking of railway or air tickets and even social networking platforms. The technology and communication revolution is at a global level, as this revolution has crossed political boundaries, demolished economic barriers and proved effective in making up of cultural differences. Technology has spread its roots in even far-flung areas so that individuals from different corners of the world can communicate freely and cost-effectively. This has compelled governments all over the world to review the laws and policies related to information technology.

    Privacy as defined in Black's Dictionary right of a person and the persons' property to be free from unwarranted public scrutiny and exposure. Privacy as a right has changed by leaps and bounds in recent times. One of the most basic liberties of the individuals after the right to life is right to privacy that has been incorporated in the legal system through legislative measures or through judicial pronouncements in various jurisdictions. The right to privacy holds high pedestal as privacy helps to create barriers and manage boundaries to defend ourselves from unwarranted interference with our personal lives and allows us to negotiate who we are and how we desire to engage with the outside world. Privacy essentially limits access to domains related to us. For example, limiting who has access to our personal details, communications and information. Also, significant to bear in mind is that there is a slew of international conventions and charters which exist to reinforce the norm that right to privacy is an essential component of human life which makes life more than mere animal existence. Some of the international conventions and charters which uphold right of privacy are as follows:

    • Article 12 of Universal Declaration of Human Rights;
    • Article 17 of the International Covenant on Civil and Political Rights;
    • Articles 16 and 21 of the Arab Charter on Human Rights;
    • Article 14 of the United Nations Convention on Migrant Workers;
    • Article 16 of the UN Convention on the Rights of the Child;
    • Article 10 of the African Charter on the Rights and Welfare of the Child;
    • Article 4 of the African Union Principles on Freedom of Expression (the right of access to information);
    • Article 11 of the American Convention on Human Rights;
    • Article 5 of the American Declaration of the Rights and Duties of Man,
    • Article 21 of the ASEAN Human Rights Declaration; and
    • Article 8 of the European Convention on Human Rights.

    Relevant conventions for our perusal in the aforementioned list are:

    • Article 12, Universal Declaration of Human Rights: No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
    • Article 17, International Covenant on Civil and Political Rights: (1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour or reputation. (2) Everyone has the right to the protection of the law against such interference or attacks."
    • Article 16(8) of the Arab Charter of Human Rights: The right to respect for his security of person and his privacy in all circumstances.
    • Article 21 of Arab Charter of Human Rights: (1) No one shall be subjected to arbitrary or unlawful interference with regard to his privacy, family, home or correspondence, nor to unlawful attacks on his honour or his reputation. (2) Everyone has the right to the protection of the law against such interference or attacks

    Similarly, in line with the discussion in above paragraphs the legal regime of protecting privacy intrusion through CCTV is covered by mainly two legislations- firstly, Article 378 of the Federal Law Number 3 of 1987 of UAE Penal Code (the UAE Penal Code) as amended by Federal Law Number 34 of 2005 states as follows: 

    "Shall be sentenced to detention and to a fine, whoever violates the private or familial life of individuals, by perpetrating one of the following acts, unless authorized by law, or without the victim's consent:

    i. If he lends his ears, records or transmits, through an apparatus of any kind, conversations that took place in a private place or through the telephone or any other apparatus.

    ii. Captures or transmits, through any kind of apparatus, the picture of a person in a private place. Should the acts, referred to in the two-preceding paragraph, be perpetrated during a meeting in front of the attending persons, their consent shall be presumed.

    Shall be sentenced to the same penalty, whoever publishes through any means of publicity, news or pictures or comments related to the secrecy of private or familial life of the individuals, even if correct.

    Shall be sentenced to detention for a maximum period of seven years and to a fine, the public servant who perpetrates one of the acts mentioned in the present article relying on the strength of the authority of his position.

    The apparatuses and other objects that that may have been used in perpetrating the crime shall, in all cases, be confiscated and order shall be given to erase all relative recordings and destroy the same."

    Secondly, Article 21 of Federal Decree Law Number 5 of 2012 On Combating Cybercrimes states: "Shall be punished by imprisonment of a period of at least six months and a fine not less than one hundred and fifty thousand dirhams and not in excess of five hundred thousand dirhams or either of these two penalties whoever uses a computer network or and electronic information system or any information technology means for the invasion of privacy of another person in other than the cases allowed by the law and by any of the following ways:

  • Eavesdropping, interception, recording, transferring, transmitting or disclosure of conversations or communications, or audio or visual materials.
  • Photographing others or creating, transferring, disclosing, copying or saving electronic photos.
  • Publishing news, electronic photos or photographs, scenes, comments, statements or information even if true and correct. Shall also be punished by imprisonment for a period of at least one year and a fine not less than two hundred and fifty thousand dirhams and not in excess of five hundred thousand dirhams or either of these two penalties whoever uses an electronic information system or any information technology means for amending or processing a record, photo or scene for the purpose of defamation of or offending another person or for attacking or invading his privacy"
  • There has been an increasing number of incidences in UAE in which usage of CCTV as an apparatus to commit infringement of privacy have come into light. CCTV recording the details such as our face, the time of our presence, car numbers or our leisure time with family and friends. Though there is no law at Federal level with regards to CCTV control and regulation but certain Emirates have regulation such as Dubai Law Number 24 of 2008 which has Article 16 according to which the business concerns that must satisfy certain security specifications including employing CCTV such as: hotels and short-stay residences, financial and monetary institutions, manufacture and sale of precious metals and stones, shooting ranges, military and hunting equipment stores, shopping and leisure centers, precious materials storage facilities, hazardous materials storage facilities, precious commodities stores/outlets, large department stores, petrol stations, internet services, storage services, aircraft and balloon clubs. Besides Dubai, even Abu Dhabi under Smart Abu Dhabi Vision Abu Dhabi Law Number 5 of 2011 was passed by the Executive Council with statutory aims of:

  • establish Monitoring and Control Centre;
  • Electronic monitoring of public and private places and establishments; and
  • developing the infrastructure of follow-up and control systems to serve the competent authorities of Emirates.
  • Also, operating monitoring devices without Monitoring and Control Center's (MCC's) approval is an offence punishable by imprisonment of up to two years and/or a fine of no less than AED 50,000 to AED 200,000.

    Similarly, Kuwait under Law Number 61 of 2015 concerned the regulation and installation of surveillance cameras and security also provides for installation of CCTV at hotels and hotel apartments, commercial complexes, cooperative societies and residential complexes, banks and money exchange shops and shops selling gold and jewelry, sporting and cultural clubs and youth centers, shopping malls, entertainment, hospitals, clinics, warehouses and stores precious materials and hazardous materials and refueling stations, and other facilities to be determined by a decision of the Council Minister at Kuwait.

    Oman has stipulated law for CCTV to be installed at food eateries, according to which CCTV is mandatory and in event of its malfunctioning or stopping the establishment would be fined RO 100 minimum to RO 3000 maximum.

    Though howsoever, genuine the CCTV regulations may be and which serve the purpose of security and protection of people from anti-social and criminal elements there has been news report which reveals how CCTV recordings have been used as an intrusion to privacy of another person for malicious fun or as a nuisance. Recently, three government officials were accused of breaching the privacy through use of CCTV and the case is under hearing at Al Ain Misdemeanour Court. Also, in UAE taxis have started installing the CCTV cameras which are sparking anger from the customers. But given GCC being new domain for regulation for such sensitive and sophisticated CCTV regulations and surveillance much depends to be seen how the legal regime works.

    In conclusion, it could be said that institutions are keeping an electronic eye on people without involving the subjects how the information collected should be processed.  The law and technology should balance the national security concerns with individual rights of privacy.

    ]]>
    Sun, 02 Feb 2020 17:11:00 GMT
    <![CDATA[Distribution of Pharmaceutical Products Kuwait]]> Distribution of Pharmaceutical Products: Kuwait

    Introduction

    The area of the Gulf Cooperation Council (GCC) is regarded as an "emerging market" for pharmaceutical exports and bilateral trade. Learning this region's regulatory requirements can be beneficial for pharmaceutical exports. The Gulf countries ' regulations promote the importation of quality generic products, which facilitates a boost in the trade and economy.

    In GCC countries, the drug industry reaches USD 6 billion approximately. This demand is rapidly growing and is expected to reach around USD 10 billion by 2020. Given this market's rise, local manufacturing is unable to meet the growing demand, and GCC countries continue to import most (90%) of their drug needs from abroad. Therefore, there are substantial opportunities for growth and development of this sector in GCC Besides, expanding growth in this industry will help achieve the region's strategic objectives in terms of industrial diversification into knowledge-based sectors.

    The emerging sector aims at achieving the following objectives:

    • Establish a forum for the exchange of ideas and dialogue between pharmaceutical companies in the GCC
    • Propose a multi-client study to address the needs of the region's pharmaceutical industry
    • Identify the need for GCC producers to create a pharmaceutical trade association.

    With Kuwait accelerating its plan for healthy growth as part of Kuwait's 2035 dream, the Ministry of Health (MoH) is also focusing on expanding their projects. Both the pharmaceutical and healthcare industries in Kuwait have been identified as high-priority sectors, with many initiatives under public-private partnerships (PPPs) are being carried out.

    Kuwait Pharmaceuticals Market Overview

    With the boost from the government's healthcare initiatives, the pharmaceuticals market in Kuwait is currently at a growing stage. Initially, the domestic manufacturing of medicines in the country was low due to the focus inclining towards the booming oil and gas industry coupled with limited diversification into various other sectors. It is pertinent to note that the pharmaceutical industry is closely monitored by the government, and the demand for branded and patented products has stretched the government's budget for the same. The growing trend of preventive healthcare such as the demand for pseudo pharmaceutical products like supplements and vitamins, smoking cessation aids, weight loss formulations, etc, have supported the expansion of healthcare awareness, thereby witnessing the inception of government initiatives for driving pharmaceuticals to build factories which are in line and in collaboration with the Public Authority for Industry.

    The Regulation Process

    Medicines in Kuwait are regulated on the basis of standards of quality, safety and efficacy, price control and patent protection. The nation has 40 years of regulatory framework experience and plays a leading role in the regulatory environment of the GCC.

    The pharmaceutical sector of Kuwait entertains various multi-source products which are imported from multiple countries and regions. The regulatory framework set in place attempts to ensure the following objectives:

    • The product has been licensed and sold for at least twelve months in countries with recognized and competent regulatory authorities
    • That the product follows the desired quality standards, globally accepted, to ensure that the product is manufactured for its intended use
    • That the product remains stable throughout the projected shelf life
    • For local patients, the price of the product must be reasonable and affordable.

    The regulation framework consists of different phases to ensure that the pharmaceuticals products that help ensure that the products are of the best quality to provide steady growth and development; the stages are as follows:

    1. The Submission Phase

    The review process begins with the local agent (or sponsor) sending the registration dossier together with a covering letter to the Kuwait Drug and Food Control Manager (KDFC) formally demanding the pharmaceutical material registration.

    2. The Evaluation Phase

    In this phase, the reviewer will evaluate the Chemical and Manufacturing Control (CMC) data after entering the scientific review stage, focusing on the following data:

    •  Material descriptions and detailed analytical methods for finished products
    •  Total stability analyses of the expected consumer shelf life 
    • Specifications of raw materials and their procedures of analysis

    3. The Authorization Phase

    Upon completion of the full evaluation, the final approval decision is taken by the DRRS, which is officially endorsed by the authority's director

    The Data Required for Registration of Pharmaceutical Products

    In accordance with Ministerial Decree 302/8, the Kuwait Food and Drug Authority (KuFDA) is the head regulatory agent to register pharmaceutical products.

     

     

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    Sun, 08 Dec 2019 11:46:00 GMT
    <![CDATA[Patent Infringement Global Perspective]]> Patent Infringement: A Global Perspective

    Ideas and innovation are the cornerstones of any successful corporation. Given that modernisation and globalisation has had a significant impact on corporations, it is only fair that the ideas defining these businesses are given protection from being misused, manipulated or stolen. Stolen ideas is a modern-day problem playing on capitalism by generating revenue to the 'thief'. With the view of preventing this, ideas and innovations are being granted patents now.

    A patent, in simpler terms, is a right granted to an inventor over his invention by a sovereign authority providing the inventor with exclusive rights over the ownership of the process, design or invention. A patent granted to the investor is for a set period in return for disclosure of the invention. Infringing such a right gives the inventor a right to claim for remedies against the infringer. The claim includes and is not limited to injunctions, damages, account of profits, declarations and so much more depending on the jurisdiction of the disputed invention.

    Infringement of patents reign in all industries, from Apple making a claim against Samsung over an infringing patent on their smartphones and tablets to the 'Da Vin Ci Code' book to movie rights disputed.  This article aims to give a global perspective on patent infringement by analysing the different rules and regulations governing these jurisdictions and the various remedies available, respectively.

    United Kingdom (UK)

    Governing Law and Overview

    Patent infringement is a statutory tort as per the common law. In the United Kingdom, there exist well-structured legislations to govern patent rights and infringement. The Patent Act 1977 (as amended) (PA 1977) sets out the various rights and remedies governing patents in the UK. The later legislation Patent Rules passed in 2007 deals with the procedure involved in filing a patent with the UK Patent Office (known as the Intellectual Property Office), filing a patent infringement lawsuit, challenging the validity of the patent, opposing the grant of a patent and other related matters. There are Civil Procedure Rules governing patent rights in the UK as well however these CPR apply exclusively to England and Wales and not to Scotland and Northern Ireland as they have their own rules and regulations in the local courts.

    Overview

    As with all jurisdictions, in the UK a patent is perceived to be infringed when the invention is put to use by someone who is not authorised. Section 60 of Patent Act 1977 states that a person/entity is said to have infringed a patent only if the patent is granted and in force.

    Additionally, the person/entity in question should have done any of the following without the consent of the proprietor to have infringed a patent in the UK:

    • If the invention is a product: the person/entity disposes of, offers to dispose of, uses or imports the original product
    • If the invention is a process: the person/entity uses or offers the process of creation in the UK in addition to the point mentioned above

    To understand how to apply for a patent in the UK, firstly, it is essential to note that patent right is a negative right granted to the applicant, which prohibits an action relating to his invention. However, for this act, there would be no infringement if the patent is used for non-commercial, research, anti-terrorism, experimental medicines and related purposes. The reason for this was explained in the case of Corvalve Inc v Edwards Lifesciences AG [2009] EWHC 6 (Pat) where the courts held that experiments with the patent are allowed to encourage scientific research while still protecting the legitimate interest of the patentee. However, there is some debate over this subject as experimentation often leads to commercial gain (case of Monsanto v Stauffer [1985] RPC 515.)

    Procedure

    Section 1 of PA 1977 states that for a patent to be valid and granted it needs to be new, should involve an inventive step, should be capable of industrial application and is not excluded from being protected as a patent. Once the validity of the patent is granted and is deemed valid, opposing parties can apply directly to the courts to revoke the patent or declare infringement of the patent, regardless of whether the inventor of the patent or the owner is threatened with litigation.

    A patent awarded to the United Kingdom is through either the United Kingdom Intellectual Property Office (UKIPO) or the European Patent Office (EPO). Additionally, the possibility of joining either process under the Patent Cooperation Treaty (PCT) can be made through a foreign request. When issued, a patent provides an exclusive and absolute right to exploit what is protected by the patent and can provide coverage for 20 years as long as it is renewed (and the applicable fee paid) every year from the fourth anniversary of the filing date. A term of protection can be expanded by applying for a Supplementary Protection Certificate (SPC).

    Infringement in the UK

    It is an infringement to sell a patented process for use in the United Kingdom if the person making the offer understands, or it is apparent to a reasonable person, that using the method without the permission of the proprietor would be an infringement of the patent. Furthermore, Section 60(2) Patent Act 1977 also allows the patent proprietor to prevent an unauthorized person from supplying or offering to in the United Kingdom means relating to an essential element of the invention when they know, or a reasonable person would have known, that the element was suitable for and intended to be used in order to put the invention into effect in the United Kingdom. This is referred to as contributory infringement.

    Section 60(3) Patents Act 1977 exempts commercial staple products from this provision: -a patent proprietor can not prohibit someone from selling standard commercial objects merely because they could be used to assemble an infringing device, or even if the manufacturer knows that they are intended for that reason. For instance, according to the precedent in Menashe Business Mercantile Ltd v William Hill Organisation Ltd [2002], computer software is a patented entity although the manual to use it would not be.

    The nature of the various infringing acts in themselves is rarely ambiguous. Nonetheless, one issue that arises is whether fixing a copyrighted item can be infringed as a "making" operation. The response depends on the extent of the repair. Several factors such as the possible lifetime of different components, have to be considered. As per Schutz (UK) Ltd v Werit UK Ltd [2013], if the worn or damaged product continues to embody the entire claimed invention, excluding the component requiring replacement or repair, then it is likely that repair by replacing that component does not "make" the patented product.

    Another question arises when the product supplied is a package of parts that helps the user to assemble the component. Since the consumer has protection under Section 60(5)(a) Patents Act (discussed below), it can be argued that the selling of the package does not result in an infringing act of "making''. A similar argument occurs when the package is manufactured for sale so that there is no violation outside the jurisdiction. Nevertheless, these claims were not checked in case law. In any event, a supplier of such a kit might also be liable for contributory infringement. It is also essential to distinguish between direct and indirect patent infringement.

    Court Proceedings

    It is mainly in London that court proceedings involving UK and EP (UK) patents take place. They are heard either before the Patents Court (a High Court division) or before the Patents County Court, depending on the value and complexity of the case-more complicated cases or cases where the value of the case is more than £ 500,000 are heard before the Patents Court. The judges make their judgments; no jury exists. The procedure at the Patents Court is thorough and generally involves:

    • discovery of documents;
    • experiments (when necessary);
    • written facts and expert evidence (experts are appointed by a party, not appointed by a court); and
    • witness cross-examination at trial.

    In the United Kingdom, copyright disputes and patent validity issues were resolved in one court.  In comparison, in Germany, the two issues are addressed in separate trials (so-called 'bifurcation'). The Patents County Court provides a cheaper alternative to the Patents Court procedure. The level of complicated research information presented and the volume of cross-examination will be reviewed in the Patents County Court, providing small and medium-sized businesses and private individuals with a more open and generally cheaper process. If any party to a case at the Patents County Court thinks that the Patents Court is more suitable, a transfer request may be made.

    Damages

    In claims that proceed in the Enterprise Court of Intellectual Property, the court will make a summary assessment of the party's costs in favour of which any cost order is made. The extensive assessment is not valid. The court will not require a party to pay total costs in excess of:

    • £ 50,000 on the final determination of a negligence claim; and
    • £ 25,000 on a claim for damages or benefit account.

    The maximum amount of scale costs imposed by the court is as specified for each point of the case.

    Remedies

    Remedies for the patent proprietor, in either case, include a temporary or permanent order, products being shipped or destroyed, damages being paid, or an account of the infringer's earnings, or legal costs being incurred. UK patent judges ' decisions are also taken into account and often carry persuasive weight in circumstances where the same patent is litigated in other European countries

    European Union

    Concerning the EU, Section 60 of the PA 1977  of the infringing acts stems from the Community Patent Convention (Articles 25 and 26), revised and replaced by the Community Patent Agreement (89/695/EEC) (OJ 1989 L 401/1) (CPC). Similar provisions are introduced by other European countries. Section 60 was framed in compliance with Section 130(7) of the PA 1977 to have the same consequences in the United Kingdom as almost as possible as the relevant provisions of the CPC. Section 130(7) stems from the Community Patent Joint Declaration Agreement (OJ 1989 L 401/57) which is further implemented by the EEC member states.

    In Bristol Myers Squibb v Baker Norton Pharmaceuticals [ 1999 ] RPC 253, Jacob J held that since there was no distinction between Articles 25 and 26 of the CPC and the relevant provisions of section 60, it was easier to work based on the direct effect of the CPC provisions. Nevertheless, as section 60 has tended to focus mainly on that provision, this report is equally based on that provision as it represents the law in the UK and UK case law. Nonetheless, when interpreting the provision, the UK courts often turn to national European (mainly German) case law.

     

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    Wed, 30 Oct 2019 13:07:00 GMT
    <![CDATA[Enforcement of Foreign Awards in Kuwait]]> Enforcement of Foreign Awards in Kuwait

    Introduction

    With the world ever moving towards a more globalised structure, clarity and cooperation are more important than ever. The move towards a more integrated world has been occurring for decades, most notably following the end of the Second World War. Some of the most notable examples of this include the formation of the United Nations ("UN"), North Atlantic Treaty Organsisation ("NATO"), World Trade Organisation ("WTO") and the International Monetary Fund ("IMF"). There are numerous others, though these entities are of massive substance and promote and drive towards a more interconnected world.

    Technology has also been a major pushing factor and has been something of a vehicle of the interconnectedness. With the rise and spread of the internet towards the latter stages of the 20th century, and the increasing availability and ease of use of mobile phones, the workday never truly stops and nowhere is genuinely very far away.

    All of this has allowed for business to spread to every corner of the world with relative ease, and with the spreading of business, the people have followed. Kuwait is an excellent example of this. While the country is well known for its vast oil reserves, as it has the sixth most significant reserves in the world, it has also been a substantial business magnet. The country has many things going for it. It has a robust economy, and most consider it a high-income and stable nation from an economic standpoint and the World Bank has it ranked as the fourth highest income per capita globally.

    Further to this, the country has solid international ties. It is a critical non-NATO American ally and is a crucial ally to the ASEAN trade block. To top this all off, Kuwait has strong relations with China. These all come together to make the country an ideal location for businesses to expand to and grow.

    Finally, we come to the main topic at hand - the Law. As business and technology have connected the world, so have the laws and regulations which govern it. While each nation and in some cases, individual states within a country have their laws in place to dictate matters, we have also seen the rise of many international treaties and agreements. Due to the sovereign nature of countries, these treaties will have to be ratified and individually implemented within the system though. Beyond this, international agreements do not cover all topics. They relate more to the impactful matters such as international trade and environmental protection.

    However, the majority of laws are still unique to each country. As such, the question arises of what will occur when an international award appears. What will the implementations be in other countries? This article will look at Kuwait's stance on the matter.

    What is a Foreign Award?

    Foreign Awards are when judgements arise in countries other than the one in question. Due to the differences in legal frameworks and systems around the world, international decisions may not be in line with or go through the procedures present in other nations, and so the matter arises regarding just what will be done with these foreign judgements.

    With the international nature of Kuwait, contracts often arise on a global scale; there are numerous complications that one would expect when working in this nature. To deal with this, many countries have implemented systems and regulations which dictate how these topics are to be dealt with and handled.

    Often, contracts contain clauses which specify which jurisdiction's laws they will apply to a case if any issues or disputes arise, or which countries courts will handle matters. While this is certainly allowed and a choice the parties are free to make for themselves, whether an international award will be enforceable on a global scale is a different and more complex discussion.

    Foreign Awards in Kuwait

    Kuwait does allow for Foreign Awards to be applicable within the country, though there is a specific requirement before this will pass. The Kuwait Law Number 38 of 1990 mentions foreign awards. This legislation is the Civil and Commercial Procedures Law, and it is quite extensive. It concerns most aspects non-criminal in nature and sets out the following concerning these awards.

    Article 199 states that there must be a reciprocal benefit for Kuwait judgements allowing them to be applicable within a foreign jurisdiction. To put this directly, foreign judgements will be permitted in Kuwait so long as the country the judgement has come from also allows for Kuwaiti decisions to be applicable. This reciprocal effect makes sense with international contracts because depending on circumstances, disputes may require dealing with in either of the jurisdictions, and awards will need to be applicable in both.

    What are the Stages to Verifying a Foreign Award?

    For one to ascertain whether a Foreign Award is enforceable in Kuwait, there are four elements which must first be present. These are as follows:

  • The court in the foreign jurisdiction must be appropriate to deal with the matter;
  • The parties to the dispute require adequate notification of the actions that will take place, and where they shall take place;
  • The judgement must line up with and must not go against public policy or morality of either nation involved;
  • The decision is conclusive and does not go against the usual judgements of the country on issues of this variety.
  • With concerns to the third point mentioned above, Kuwait is a country which highly values its culture, and it is of great importance that the practices and norms are respected. With the population demographics of the country showing that around 70% are expatriates, it would add further importance to protecting the culture.

    Are there any Issues for Foreign Awards?

    While the above has demonstrated that the law does allow for Foreign Awards, it is rare that this does occur in practice. Judgements from other GCC countries have a higher likeliness of being implemented due to them often having somewhat similar systems, cultural beliefs and international trade and business situations. They also share many similar laws, and the relationships between the nations are quite close, which provides an element of certainty to Kuwait. Less time and work will have to be put in by a Kuwaiti court to ascertain whether the international regulations used are accurate, appropriate and line up with the nation's values.

    On the other hand, foreign jurisdictions, particularly those from the western world, are a little more distant. As such, there have been very few occasions where the upholding of a Foreign Award has occurred. There is only one recorded incident of this having taken place, which was for a case in the UK. During this specific case, the Prosecutor was in the UK and provided a letter stating that the UK would be willing to provide reciprocals to this judgement if it should ever arise within the UK, thus fulfilling that aspect and requirement. Generally, though, this evidence would be seen as weak in Kuwait and may be too much so for the judgement to be accepted.

    The principle still stands though, as the Kuwaiti government are very much aware of how attractive a prospect their country is to foreign businesses and businessmen, and must ensure their laws provide for all eventualities that may occur as a result of this.

    With all this considered, it should be borne in mind that if the parties to a contract wish to allow for the enforcement of Foreign Awards, due to the complicated nature and uncertain court outcomes, they may instead choose to use Alternative Dispute Resolution to solve their issues. Through this method, a Foreign Award can simply be implemented and accepted.

    Conclusion

    Having considered all of this, the concept of international awards is one which is certainly not foreign to the Kuwaiti government. However, it is a topic of significant complexity and depth. What is important though is that on the most basic level, the enforcement of international awards in Kuwait is an entirely legal and entirely possible situation.

    With parties that are involved with each other internationally, it is also crucial to look at the way those entities would react in a realistic situation. If an award arises in one jurisdiction, and the contract between the parties specified that jurisdiction's courts and laws, there will likely occur a mutual acceptance of whatever the award is. This reason is likely why we see very few cases such as the previously mentioned one in the UK, where a Kuwait court received an agreement from the UK confirming the reciprocal nature of the decision. Once a single court comes to a conclusion and provides a judgement, parties will be more likely than not to either approve or at the very least accept it.

    Enforcement of international awards is a topic that requires consideration under the regulations and legislation of a country, especially one with the scale of international business as Kuwait, even if issues, where it comes to the forefront, are few and far between.

    Kuwait has put itself in a strong position when it comes to their regulatory structure as they do not give unless they receive; this is a cautious though friendly enough arrangement which is open to foreign jurisdictions only if the foreign nation is willing and able to guarantee a reciprocal judgement if the opposite situation comes forth.

    Finally, it also allows Kuwait to maintain its culture and moral beliefs as Kuwaiti courts can overturn international awards if they substantially disagree with them, which is a far smaller problem in the GCC, and even on the greater foreign field, is an area that is respected and has little volatility.

     

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    Wed, 23 Oct 2019 13:03:00 GMT
    <![CDATA[Tax Regulation in the GCC]]> Guide on Tax Regulation in the GCC

    Introduction:

    Gulf co-operation council is the abbreviated form of GCC. It came into force in 1981.   It is the union of all Arab state except Iraq and UAE is one of its member states. Saudi Arabia has head first a proposal to make the GCC into Gulf union for the betterment of its administrative functions. There are six gulf countries Bahrain, Oman, Kuwait, Qatar, Saudi Arabia and UAE are the main GCC countries. The purpose of GCC is to maintain unity among its member countries. The main objectives for the formation of GCC countries are for the common currency, common market and customs union which was set forth by the GCC supreme council. And the other objectives include formulating rules in the field of trade, finance, legislation. scientific progress in the field of agriculture, mining, and encouraging the private sector and bonding with the people.  The economic growth of the GCC countries depends  on its vast petroleum, oil and natural gas resources , but at present situation many countries have found out its own oil and natural resources hence its effect the economic development of Gulf countries as a result of it the gulf countries introduced the lowest rate tax of 5 per cent in order make a stable economic development. A common market system was established for the nice movement of goods and services in the GCC countries, it provides equality for the GCC citizens to work in all fields mainly public and private sector but the disadvantage is some bar in the movement of goods and services.  Coordination of taxation system, accounting and civil legislation is still in progress.

    Tax:

    Tax is a compulsory payment of financial charge which is imposed on individual or entity by the governmental organization in order to develop various public expenditure. Non- payment of tax is punishable by the law. The State can impose civil penalties or criminal penalties for the non- payment of tax fully.  Taxes are of two types Direct tax and Indirect tax.

    Tax in GCC:

    It was in the year of 2015 the oil and petroleum price of Gulf countries came to its much lowest price. So, in order to meet future needs, the GCC countries representative agreed to sing the VAT treaty. It was in the year 2016 they entered into this agreement. it was not the oil and gas which made the economic growth of the GCC countries disappeared completely, the true fact is that many countries started using non- renewable resources.  For example, the developed countries like the United States they started producing their own oil and petroleum hence it becomes a tough competition for the Gulf countries because they were the sole distributors of oil and gas in the whole world. By keeping it in mind the gulf countries planned for the future and contributed money for the future growth of their nation. But it was in the year 2015 they faced a budget deficit. So, to overcome this deficit they realized the need for a new source of income and they thought about tax. Hence in the year 2016, each representative of the GCC countries signed the VAT agreement.  The VAT is value added tax by entering into this agreement the GCC countries started imposing VAT at a rate of 5 per cent on some goods and services.  Health and education are exempted from the VAT. Now people in the GCC need to pay a VAT of 5 % per cent on food, cars and other entertainments.

    In Saudi Arabia and in UAE the VAT system has started smoothly these two countries had only met the deadline of VAT treaty in the year 2018 and other member countries are still on the run. Bahrain is the only GCC country who had not introduced the VAT.  Even though the implementation of VAT has been done smoothly in two countries but in the business, many problems are arising as they are confused that how to apply the VAT system in goods and services mainly in the Free Trade Zone area of these countries.

    Following are the types of taxes in GCC: 

    Corporate Tax: It is imposed on the profit of the entities. UAE corporate tax is levied on oil companies and foreign banks only. As per the GCC rules, residents are not subject to corporate or withholding tax.

    Withholding Tax: This tax is imposed on any income. It is imposed when the income is transfer to another country. Withholding tax applies to corporate income and the income of private persons.

    Zakat: Zakat is an Islamic tax, which is made compulsory to every abled individual to serve the needy ones in Islam.

    VAT: Value Added Tax is a tax imposed on the supply of goods and services. The GCC countries have agreed to implement VAT at a rate of five per cent. VAT provides UAE with a new source of income and it also provides a high quality of public service. The GCC VAT Agreement lays down a broad principle that needs to be followed by all the GCC countries in their VAT laws providing flexibility in certain matters.  Every GCC country will be having its own VAT legislation. Value added tax came into force in UAE on the 1st of January 2018. The Implication of VAT on Individuals: VAT general consumption tax is mainly levied on the transaction of goods and services. As a result, the cost of living of people will increase slightly, but this will depend on an individual's lifestyle.

    The Implication of VAT on business: Businesses will be responsible for all their business transactions and auditing. Mainly documenting their business income, costs and associated VAT charges.  All registered businesses and traders will levy VAT from all of their customers and also incur it from the goods and services which they buy from the supplying agents.

    Excise Tax: it is an indirect tax imposed on goods which are harmful to human life and property and also to the environment at large. for preventing the use of these harmful commodities, the GCC countries agreed to enact the excise tax by signing the excise tax agreement.

    Customs Duty: GCC countries have an amalgamation of customs duty rules. whenever any goods are transported into the GCC countries for the first time they impose customs duty on the goods. The customs duty of imported goods is at the rate of 5 per cent of the invoice value. Some goods may be imposed with the highest rate and some will be totally exempted.

    Stamp Duty: It is levied on documents such as legal documents. it is imposed on the transfer or registration of real estate in Oman and also in Bahrain. In the UAE whenever ownership of land or shares of a company is transferred a registration fee is levied on both.

    Sectors in VAT Implementation

    • Real estate and construction

    • Tourism

    • Oil and gas

    Real estate and construction industry are a huge importance for the GCC countries because it provides many benefits like supporting a large number of livelihoods, providing residential places to live which is one source of income for the GCC countries and it also develops a region. By introducing the VAT by GCC countries it does not create any problem to the real estate and the construction fields future project.  It's a positive approach by the government to make the real estate and construction field to contribute to the welfare of the state. Because a large sum of money is coming from this field. Supply of real estate is taxable at a standard rate in G C C.

     The Tourism industry contributes a huge sum to the Gulf economy and it provides many opportunities for individual tour operators in the G C C.  But the main challenge which they face is how to implement VAT. This industry is an amalgamation of various sectors which includes airlines, tour operators, travel agents, accommodation and so on, so by the introduction of VAT in this industry will affect each by one or the other way.

    The oil sector plays a very important role in the Gulf countries. Many multinational oil and gas companies are in the countries. Business in the sector includes international, national, and other oil companies.  VAT implementation will create a huge impact on this industry. There is complexity in the field of oil and gas industry and by the introduction of VAT in the G C C need to be given consideration in businesses.  Each and every industry in the Gulf countries is one way or the other is affected by the implementation of VAT and the more affected field is the tourism industry because it comprises various sections of employment.

     

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    Thu, 27 Jun 2019 09:41:00 GMT
    <![CDATA[Short-Term Contract Oil and Gas]]> The Legal Framework for the Transportation of Oil and Gas is similar and is predicated only upon a Short-Term Contract

    Introduction

    The O&G business has regularly witnessed extensive discussions about the decrease in the term of the natural gas contracts, and many have encountered different unforeseen results which relate to such diminishment. Usually, the best associates of long-term contracts for pipeline organizations are the business investors as they attempt to make life less requesting for themselves.

    It is argued that a long-term contract is essential for stimulating sufficient investments in gas pipelines which are expected to fulfil future petroleum gas need. It is foreseen that future contracts will be impressively shorter in length, in no small degree, the outcome of state commission techniques that as far as anyone knows to dislike long duration contracts.

    The move to the shorter span contract draws in numerous reasons; they are either market-related or regulatory related. It is said that the adjustments in the business and increase in spot-market liquidity for the recent decades affect the terms and span of the agreement. The shorter-term contracts have inflexibly expanded because of the formation of competitive markets in inflammable gas and to some degree focused markets in transportation.

    Spot markets have had a minimalistic but an essential role in balancing markets, although the cost fluctuations in spot markets provide information for contracts that need to be renewed or updated.

    Energy Security

    Energy security has a few measurements, first is physical security, which covers ensuring the advantages, foundation, supply chains, and exchange courses and arranging substitutions, when need be. Access to the energy is the second, managing the capacity to create and obtain vitality supplies-physically, legally, and financially. Thirdly, it is a framework involved of the national policies and universal foundations. What's more, last is the venture and progression to guarantee the ampleness of provisions and context for what's to come.

    Investing in the O&G Industry

    As of late, the oil-importing nations are changing the inquiry around and considering more security of interest as opposed to energy security and need to comprehend the visibility of the business sectors with the goal that they can structure their financial plans and legitimize future dimensions of the venture. This had prompted the assessment of details and clauses when entering upon any agreement, be it supply or generation, and so forth.

    Certain perspectives impact the organizations in choosing the correct contracts, its provisos and above all the span of the agreement, including the interest for the vitality, speculation limit, effect of the foundation on the earth just as guidelines.

    Industry and Long-term Contracts

    Since quite a while, gas reserves were purchased by the pipeline organizations on LTC for around 20 years. LTC was for quite some time pursued since the 1980s in the petroleum gas industry and was for the most part from 20 to 30 years, which remained at fixed rates. LNG ventures are mind-boggling in light of enormous speculations and workforce and the long term construction period, and the vulnerability of the market. The length of the term of the agreement, be it supply or generation, depends exceedingly upon the business system of the undertaking.

    It is trusted that as the solid challenge in the energy market and interest for the energy increase, the market expects a move from inflexible LTC to more spot trading opportunities. O&G industry is changing to a market-oriented, which has driven the contractual arrangements of action's to end up the present moment and adaptable.

    Why opt for short-term contracts?

    Spot exchanges are incredible where costs are dictated by short-run free market activity. Spot exchanges give adaptability to the purchaser in offsetting supply with interest. The decay of LTC has made the gas industry increasingly open and focused; with the exchange cost financial aspects, the expenses behind the transient exchanging have been diminished. By and large, the competitive pressures have made LTC a progressively costly for gas utilities just as different shippers by increasing hazard. Market players who incline toward greater adaptability go for STC which give them to adjust to the fluctuating business sector conditions.

    It was in 2002 that exporters like Algeria, Oman, Qatar, Trinidad, and Tobago and the United Arab Emirates and importing nations like the United States and Spain had entered spot exchanging.

    Significant oil organizations are deciding on shorter-term contracts with greater adaptability and different indexation to oil and gas. Petronas at the Asia Oil and Gas Conference in Kuala Lumpur communicated its readiness over going into temporary contracts and littler freight sizes to adapt to its over-provided advertises and diving costs. This view was bolstered by Ryan Schleicher who trusts spot, or mid-term contracts will supplant the long-haul agreements which are expected to terminate in the following ten years.

    Statistical data from the International Gas Union                             

     In 2016, the short term LNG trade came to 72.3 MT which totalled to 28% of the complete exchange. 2011 saw an impressive development in the trades, for the most part, because of the outcomes of the Fukushima emergency and the uprising of shale gas in the US which prompted the requirement for business advancement and adaptability. There was an activated fall for the time being and medium-exchange by 4% making vast numbers of the developing markets exchange on long haul contracts from 2016. Moreover, new liquefaction projects in Asia-Pacific district are expressed on the long haul gets that are coming into power.

    The advent of Long-term contracts

    As recently referenced, there has been a significant decrease in the organizations willing to go into LTC petroleum gas transportation contracts. Dynamically, more dealers are picking STC for transporting the vitality accessible.

    Long haul take-or-pay contracts accommodate the end of price instability, connecting vendors and purchasers for an extensive stretch into a bilateral monopoly, amid which both have entirely characterized commitments. The LTC guarantee the energy just as supply security and thus, gives the providers to design long haul speculations that require tremendous monetary assets in the vitality area.

    Low-price condition

    In the most recent two years, the LNG advertise blessed and reviled by the low oil price condition. The weak worldwide economy debilitated the LNG demand, though oil turned into an option for some LNG downstream clients because of diminished costs. All the more critically, lower LNG costs are expanding enthusiasm for long haul LNG contracts as purchasers try to exploit the right now ideal dimension of costs. Trends in contractual terms

    Take-or-Pay Formulae

    The ToP makes the purchaser take a conveyance of at the very least a predefined least amount of the item which identifies with oil, gas or power venture structure similarly as the put-or-pay/ship-or-pay condition in a pipeline venture. Take-or-Pay contracts are expected to share hazard among makers and purchasers because of long lead times in venture arranging and capital-concentrated tasks giving suitable motivating forces for legally binding execution.

    Risk Obligation

    The seller inclines toward LTC because, in the long-haul LNG SPA, the purchaser bears all the amount and volume chance. This gives assurance of income to the vender and an extensive income. The ToP is useful for dealers who need progressing and commercializing. In this way, this being a two-crease idea, the purchaser has given the advantage of long-haul supply at a fixed cost for expecting the dangers under the LTC SPA. Brokers going into LTC are well more ensured than the one going into STC in cases of power majeure occasions which influence somewhat or absolutely the venders' offices.

    Importance of Long-term Contracts in Pricing Stability

    The move from LTC to STC has driven market members to focus on the vital job of LTC to promote pricing stability in O&G markets. LTC is a compelling instrument to relieve and deal with the unpredictable value developments caused because of momentary estimating inside the business.

    Long-Term Contracts in Projects

    Pipeline Projects

    Long haul contracts in energy ventures, similar to the pipelines, oil, LNG, gas, and so on have been effective in ensuring sources of income. As the pipeline ventures include abnormal amounts of interests in direct and working costs, the component of the long recompense time of 10 years demonstrates gainful for the business dealers. Assignment of limit and levy are the two crucial issues while talking about the financing reasons for the pipeline structures.

    Shipping Projects

    In the ongoing news, Hyundai Merchant Marine has advanced its readiness to sign a long-haul contract with GS Caltex to dispatch unrefined petroleum. Likewise, the Spanish ship administrator Baleària marked a long-haul supply manage Gas Natural Fenosa for ship drive in Spain. It has been seen that development in the global gas markets has been impeded recognizably because of the high forthright expenses of structure the essential transport framework. The Long-term LNG SPA approves the consumption on the undertakings. As per the statements, it is necessary for replaying the credit and venture restores that the purchaser acknowledges the conveyance of the business contract amount or pay the agreement cost for any amount not taken.

    Conclusion

    The most critical rule behind the decline of LTC is the inflexibility in the interest and supply which the business players guarantee to alleviate by picking the terms of the agreement that diminish the requirement for costly arbitration and in the meantime proceeding with the appropriate cash flows from the delivery and pipeline ventures for O&G transportation. Energy trade between the producers and refiners was directed on LTC, far preceding the approach of the present moment, spot-market and future contracts.

    To the extent the trade on O&G is concerned, it is clear that many STC is concluded each couple of months. Consistently, we can foresee that with the advancement of world LNG markets towards a higher degree of volumes being exchanged on STC or spot market trade.

    History has appeared over-dependence on long haul contracts at costs that don't respond to market dynamics can create imbalances and liabilities for the parties to those agreements that can develop to undesirable dimensions. Over-dependence on fixed long haul fixed long-term makes counterparty dangers that can undermine the deal itself.

    However, when billions of dollars are on stake, the energy ventures must legitimize this by strengthening their contractual obligations dependent on LTC. It is of high significance for the wholesaling organizations to incorporate the component of long haul take-or-pay gas in their portfolios to guarantee the security and progression of energy supply.

    It is possible that LTC will win in the upstream area of the business. However, they will develop far from the conventional model. The market-based adaptability devices make it workable for the long-haul contracts to existing together with the STC, yet the volumes of the exchange by ToP will be decreased.

    To the extent the EU gas markets are concerned, the take-or-pay arrangements of the LTC are a useful component to separate the hazard and generously relieve it.

    After looking at all the parts of the long haul just as the spot contracts, it very well may be said that long haul contracts ought to be permitted to exist together with shorter-term contracts. In addition to other things, they convey the essential solidness to the business sectors. They likewise diminish vulnerability and accommodate venture boost. The transportation of oil ought to be predicated on temporary contracts as well as long haul contracts. The objective of the market members is to structure the agreement, so that enhances the common profit-maximizing behaviour.

    Eventually, it is the market player that goes out on a limb, and the O&G business isn't an industry where inherent risks can be taken when billions of monies are at stake.

     

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    Thu, 13 Jun 2019 11:57:00 GMT
    <![CDATA[A Guide Information Security ]]> A Guide to Information Security and Data Protection Laws in GCC Countries

    New challenges have arisen with the technological development along with the social and economic globalization.  It can be said that our entire personal data is being stored in the gadgets we use. Internet today has brought millions of unsecured computer networks into continuous communications with other networks. With the advent of information being stored electronically, more and more people use online banking and shopping services, social media, location-based services, mobile services for their everyday activities. This results in the collection of an enormous amount of digital trail of personal data of these users which are left all over the internet. The security of each computer's information depends upon the level of security of other computers connected to it.

    In the recent years, with the realization of the importance of Information Security to both national security and the corporate world, awareness of the necessity to improve Information Security has grown and is ever increasing.

    In this guide, we will address the following questions regarding Information Security:

  • What is Information Security?
  • Is there a need for Information Security?
  • What is the relevant legislation for information security in UAE and other GCC countries?
  • What are information security agreements/ clauses and what needs to be added to these clauses/agreements?
  • What is Information Security?

     In the earlier stages, information security was a simple process composed of predominantly physical security of documents and its classification.  The primary threat faced by companies were theft of equipment, product espionage of the systems and sabotage. One of the earlier documented cases of security problems occurred in early 1960, where the systems administrator was working on the Message of the Day and another administrator was editing the password file, when a software glitch mixed the two files, causing the entire password file to be printed in every output file.

    With the growing concern about States engaged information warfare and the possibility that business and personal information systems being threatened if left unprotected has made Information Security (InfoSec) emerge as a method to ensure the confidentiality of the available data and also the availability of technology enabling the delivery and processing of that data. In simple terms, it can be explained as the protection of information and systems from unauthorized access, disclosure, alteration, destruction or disruption.

    It can be said that the main objectives of information security are:

    • Confidentiality

    Which refers to the preventing unauthorized access or disclosure of information and providing its protection. Confidentiality means ensuring that the individuals authorized are able to access the information and those who are not authorized are prevented.

    • Integrity

    It is the protection of information from unauthorized alteration or destruction and ensuring that the information and its systems are uncorrupted, accurate, and complete.

    • Availability

    Means to ensure that the information is available in a timely manner and there is reliable access to and use of the information and the information systems, at the same time, protect the information and information systems from unauthorized disruption

    Why do we need information security?

    A fundamental aspect for the success of our economy and society is data, and the protection of the same from cybercriminals has become the need of the hour in today's cyber world.

    Advanced Persistent Threat (ADT) is a well-resourced systematic attack perpetrated by competing states and cyber criminals who aim at state secrets, corporate espionage, and theft of sensitive data.  ADT has added to the breaches of millions of the individual personal, health and financial information, making it essential for institutions that collect and use personal data to develop and sustain a comprehensive security system in order to protect itself against such attacks.

    For the security of individuals and the survival of enterprises, it is paramount to secure information resources and protect personal information from being exposed to groups or individuals with malicious intentions. While businesses struggle to survive amidst these critical issues surrounding information security and the increased risk of serious data breaches, governments are also changing their data protection laws so as to adapt and secure itself against these new risks that arise every day.

    When companies entrust business partners and vendors with the company's confidential information, the company is also entrusting them with all control of the security measures for the company's data. Such a trust cannot be blind.

    Examples of InfoSec Breaches:

    • British Airway's Customer Data Hack 2018

    The British Airways recently announced that over 380,000 payment card details and personal data of customers were compromised following a 15-day hack attack from 21st of August 2018 to 5th September 2018 and warning the customers to contact their banks immediately in order to secure the same.

    • The Bank Heist of 2013

    In 2013, the world witnessed one of the biggest bank heists of the century. A team of cybercriminals stole $45 Million (AED 165 Million) from RAKBANK and Bank of Muscat by accessing the computers of their credit card processors. Once they gained access, they increased the available balance and withdrawal limits on prepaid MasterCards issued by the banks. They then distributed these counterfeit cards to "cashers" around the world enabling them to siphon millions of dollars from ATMs. This included over 36,000 transactions which were committed in a matter of 10 hours. 

    • Cryptowall Ransomeware Case

    Cryptowall is a file-encrypting ransomware program which was used by its creators to make over $1 million by infecting over 600,000 computer systems in 2014. Once gaining access into the computers, they encrypted the sensitive information files which were only decrypted when the owners paid the ransom. Even though Cryptowall had been spreading since 2013, it had been overshadowed by Cryptolocker, which is another ransomware program. When the threat of Cryptolocker was mitigated, the makers of Cryptowall stole the data by accessing computers through various tactics including spam emails with malicious links and attachments, drive-by-download attack for infected sites with exploit kits and through installation through other malware programs already installed and running on compromised computers.

     

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    Thu, 11 Apr 2019 13:37:00 GMT
    <![CDATA[Kuwait Company Formation]]> Kuwait Company Formation

    The business environment in Kuwait is complex, and it requires flexibility, persistence, and patience. Many traders are it importers or exporters have been challenged by inconsistent and at times policies that are contradictory due to which there is a lack of transparency when vital decisions have to be made. Together with this, the Government of Kuwait is not implementing the anti-corruption laws as effective as they should be.

    Kuwait is changing and undergoing a massive expansion in the construction industry, and the new law on companies is providing a more realistic and practical perspective than the previous companies law. The Commercial laws in Kuwait are taking a drastic leap since a couple of years, and it is evident that it is continuing to change.

    The economic conditions in Kuwait are robust with the currency ranked as the highest valued globally. Oil and Gas sector, Agro, financial and the real estate sectors are few who contribute heavily towards the growth of the economy. The Government of Kuwait wants to diversify the economy by the creation of non-oil economic growth and better platforms for foreign investors to be able to thrive in the Kuwaiti commercial market.

    Kuwait stands in between being an oil-rich company and its tax efficiency for international businesses throughout the Middle East and the GCC. Additionally, company formation in Kuwait is highly attractive since the income tax rate is as low as 15% for foreign-owned businesses.

    Company Formation

    Under the rules and norms, both foreign individuals and corporate entities can form companies in Kuwait where it is necessary that a Kuwaiti must own it for at least 51% of the shares. The Law of 2003 on Foreign Direct Investment paves the way for 100% foreign ownership in certain sectors. In Kuwait, the popular entities that are formed are the LLC which is owned 51% by a local shareholder unless it is set up in a free zone, or the Kuwaiti Investment Agency approves it is known as the WLL.

    The other types of companies that can be formed are as follows:

  • Shareholding Company
  • Branch Company
  • Partnership Company
  • Joint Venture Companies
  • Agent/Distributor
  • It is to be noted that in the process of for a business set up in Kuwait, the approvals of the government a specifically the Kuwait Direct Investment Promotion Authority should be obtained. For Company formation in Kuwait, the firm needs to make an application for a business license with the Ministry of Commerce and Industry.

    Considering all this, the best option is to partner up with a local Kuwaiti entity or an individual for the business set up in Kuwait.

    Business Setup Option for Investors in Kuwait

    1. Limited Liability Company (With Limited Liability in Kuwait)

    The most basic form of company formation in Kuwait is the setting up a private company which is easiest to form with a tab on foreign shareholding be at 49%. The only restriction called upon them is that they are limited in conducting banking and insurance businesses or to act as a pure investment fund. These companies have counterparts like the SARLs in France, the German GmbHs or the British private companies. A With Liability Limited Company is easily formed by making an application for an MOA which has to enter. The minimum Capital requirement is 1,000 KD.

     

    Company setup Type

    Limited Liability Company (WLL)

    Under Kuwait law, foreigners can own

    49%

    Share Capital

    KD 1,000

    Shareholders

    Minimum Two

    Directors

    Minimum Two

    Memorandum and Articles of Association

    Yes

    Classes of Shares

    Registered 

    Can the entity hire expatriate staff in Kuwait

    Yes

    Tax Registration Certificate Required

    Yes

    Statutory audit required

    Yes

    How long to open Corporate Bank Account

    1 Day

    Timeframe for Incorporation:

    3 Months

    Annual Return

    Must be filed

    Annual Tax

    Must be filed

    Access to Kuwait double tax treaties

    Yes

    2. Shareholding Company

    The Joint Stock Company permits easy transfer of shares withholding the same shareholding structure of 49% with the foreign entity. A Kuwaiti Shareholding Company is one of a good option if the foreign entity intends to go in for an initial public offering or in case, they are looking for third parties interested in investments due to easy transferability of shares. One thing to keep in mind is that one has to obtain an Amiri Decree for launch opening a shareholding company in Kuwait. An Amiri Decree is a decree of an Emir or one of his representatives which is generally in Bahrain, Kuwait, Qatar, and UAE.

    3. Branch Company

    Foreign entities can set up business as a branch company once they receive permission from the Kuwait Direct Investment Promotion Authority. Under Kuwaiti Companies Law, only nationals of GCC members are allowed to fill in this role.

    4. Joint Venture Companies

    A JV company set up in Kuwait is formed by a venture of two or more natural or legal persons. This kind of venture has no legal existence and does not need to be entered on the record of the register of the Ministry of Commerce and Industry. The objects aims and terms of the JV are explicitly defined in the contract. These kinds of businesses are generally used to carry out construction projects like power plants, etc. The business under the JV can be conducted under the trade license of the Kuwaiti national in case it involves a foreign partner.

    5. Agent/Distributor

    The Law No. 36 of 1964 regulates the commercial agents engaged in the business of promoting products and the distributors who are involved in the promotion, import and distribution of the products as well as the service agents which are appointed by foreign entities who intend to engage in government contract works.

    Now let's take a look at the set up of the WLL company in Kuwait

    Application:

    The potential company has to make an application detailing all the company's shareholding and the information required by the Ministry of Commerce's along with the business owner's identity card and a certificate from the Social Security Authority to act as an evidence that the local partner if not a civil servant and a copy of the lease agreement.

    Documents required:

    The following documents will be notarized by a public notary to complete the incorporation:

  • Copy of your articles of association;
  • Copy of your commercial license;
  • Copy of your commercial register;
  • Copy of Shareholders' resolution stating the Company's director/authorized signatory.
  • During the incorporation process, there will be a one-time Ministerial and Chamber of Commerce fees of KD 300. It has to be kept in mind that the manager(s) shall be the first Director would have to be a Kuwaiti national and the office space (commercial address), which is a requirement during the incorporation process.

    Approvals:

    After the online application and the support of the same, the background check will be followed by the Ministry asking to reserve a name for the Company. After which the department will ask for approvals for the deposit of the company's paid-up capital at the bank. These funds are held frozen until the incorporation is completed.

    Submission of the MOA:

    Then the memorandum of association has to be submitted to the department of companies, where after the finalization of the draft, a letter will be issued which will authenticate the incorporation of the company.

    Membership at the Chambers of Commerce:

    Once the approval is obtained, the company has to apply for membership at the Kuwait Chambers of Commerce and Industry and Public Authority for Civil Information. Once all the steps have been followed, and the relevant certificates have been obtained, the company is officially set up in Kuwait.

     

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    Wed, 03 Apr 2019 16:50:00 GMT
    <![CDATA[EPC and Design-Build delivery]]> Differences between EPC and Design-Build delivery- English Law compared with GCC

    Any manufacturing company primarily delves on the basics of production efficiency, innovation, cost management and time to market which are the critical factors for achieving a competitive advantage. The company needs to achieve its business strategy, and thus a brief mode of delivery is required for delivering capital projects. When a strategically best method of delivery is chosen for capital construction projects, the companies can guarantee successful business goals anticipated for the project.

    The economy sustains on various project delivery methods that are available on hand for them, but the problematic part arises about choosing the appropriate and strategized method for the same. It must be dependent on various factors ranging from budgets, schedule, cash flows, complexity in the projects, risk mitigation and hedging, the team composition and the goals designated for the project.

    The generational and traditional way of doing it is by retaining the already available engineering and project management resources. Nevertheless, owing to the specific market-based issues related to monetary and competition, several units tend to decrease their in-house capacities and in turn, go for a selection of specific project delivery method.

    Primarily, a project delivery method is a configuration of roles, relationships, responsibilities, and sequences on a project. It is a strategy utilized by an agent or the proprietor which helps in the corporation and financing design, construction, activities and support administrations for a structure or office by entering into agreements with at least one substances or gatherings. It is essential to choose a delivery method that best meets the unique needs of each owner and their project.

    The fundamental decisions that an owner must take into account are that what kind sort of task conveyance strategy to utilize, what will be the obtainment technique and what will the contract be like. The Project delivery process generally involves an owner, designer and a builder.

    The conveyance strategy might be a combination or hybrid of numerous conveyance techniques. Each delivery techniques builds up various connections among the parties included and, in this way, extraordinary dimensions of hazard.

    Project Delivery Methods:

    The Engineer-Procure-Construct (EPC)

    It is a project delivery method that has risen as a favored choice for some industrial entities and is beginning to pick up support in the manufacturing business. With an EPC contract, the proprietor has a solitary purpose of contact for the venture. Under the model, the EPC firm handles the design plan, obtains all hardware and development materials, and construction services for turnkey conveyance of the office, for the most part at a single amount cost.

    The EPC procedure begins with a reconstruction effort that includes some first-hand planning and designing to characterize the scope, timeline, and expenses of the venture. Approval is regularly overseen specifically by the customer or through a different validation firm to guarantee this basic action is conveyed effectively.

    The EPC firm develops project scope and estimates. The timeline for the project and the budgeting are known before the task enters detail structure or development stages. All plan and development degree and spending dangers are passed to the contractual worker.

    The EPC model adjusts colleagues for ideal venture execution. The EPC display decreases venture dangers for the proprietor, conveys unsurprising outcomes, and augments the adequacy of capital arranging.

    Design-Build

    As of years, design-build has been gaining momentum as a favored method. As an increasingly clear conveyance strategy for proprietors, it additionally limits risks. A conceptual plan for a project is developed by an owner who then solicits bids from a joint venture of architects and engineers and builders for the design and construction of the project.

    The DB project delivery model is appropriate for assembling customers that require quick tract venture conveyance and need a single point of contact. The temporary worker and originators are enlisted by the proprietor to convey a total task.

    The owner selects a design-build firm from pre-qualified companies that have submitted designs and prices based on the project requirements. The DB firms retain their architects, engineers, and other consultants. The owner provides the user requirement specifications, materials of construction, and the specifications for the manufacturing equipment. The Design-build contracts are typically lump sum and based on the design that accurately meets the owner's specifications.

    It is employed to decrease the project delivery schedule. DB is typically practiced for architecturally-driven designs. This concept typically occurs in improved communication among the design team and a larger degree of responsibility. While this is a complicated delivery method, the compressed schedule and value engineering approach often result in cost savings for the owner.

    Design-Bid-Build

    Design-bid-build relates to the subsequent phases of this project delivery method, which sometimes is called "traditional." The contract documents are developed by the owner with an architect or an engineer which comprises of a various set of blueprints and a detailed specification.

    Construction Management at Risk

    At the point when proprietors need a characterized culmination date and value, the development the executives in danger may be the favored task conveyance technique. Amid the venture plan, a development administrator goes about as an expert to the proprietor.

    Multi-Prime

    In multi-prime, the undertaking is separated into three phases– design, engineering, and construction. While actualizing MP, the proprietor frames separate contracts with the experts heading the different phases of the undertaking. Every one of these classes of contractual workers may direct crafted by subcontractors, for example, a general contractor who manages carpenters and framers.

    Integrated Project Delivery

    Coordinated venture conveyance is the best in class conveyance strategy in development with an accentuation on cooperation and joint effort. While actualizing IPD, the essential objective of the incorporated strategy is to spread obligation, duty, and hazard (and rewards) among the partners in a construction job.

    Comparing English Law with GCC

    The International Federation for Consulting Engineers (Fédération Internationale des Ingénieurs-Conseils) (FIDIC) is commonly employed in the UK as well as in the GCC. FIDIC is commonly used on UK projects, particularly the EPC/Turnkey Contract (The Silver Book) and is often used in process plant/complex engineering projects in the United Kingdom.

    The International Federation of Consulting Engineers (FIDIC), Joint Contracts Tribunal (JCT) and New Engineering Contract (NEC) contract suites have specific design and build options that can be modified to support the type of procurement entirely or by way of partial design liability being passed to contractors. The construction industry in the GCC adopts and follows international best practices for construction contracts governed by GCC law or implemented in the GCC. These contracts are heavily modeled after FIDIC forms of contracts.

    Also, the lump-sum turnkey contract is the dominant procurement model in the GCC market. Whether upstream or downstream, the vast majority of the GCC's oil and gas sector projects are delivered through engineering, procurement, and construction (EPC) contracts.

    Petrofac was recently awarded the $580m EPC contract for a GCC project. Petrofac's Middle East portfolio includes the Upper Zakum oil field project in the UAE, the Sohar refinery improvement project in Oman, and the Petro Rabigh Phase II project in Saudi Arabia.

    Design-and-build is touted as the contracting technique for the future, killing debate and hurrying the plan and development process. It is relatively new in the Middle East, but as we see more of this method, the roles and responsibility of the contractor will become more evident. The client needs to ensure the right contractor is used, with enough experience and resources to enable them to complete the project to the quality required. The building criteria must be very clearly laid out ahead of appointing the contractor, as the client may lose design control once a fee has been agreed upon.

    Design and build contracts have been utilized effectively for quite a few years outside of the Middle East yet were not ordinarily drilled in the Middle East until 2012.  whereas, 2013 and 2014 have seen employers from different projects adopting this procurement route. Realizing the advantages of this procurement route, more and more employers are adopting Design and Build for their projects.

    Already predominant in Europe and many parts of Asia, it eliminates the separate responsibilities for the designer and the contractor, since the designer is a partner, a subcontractor or an employee of the contractor.

    With the designer getting imposed with the risk, more complex projects soon became attractive in the UK, and the companies were looking for a one-stop shop approach. The Company may have avoided the design development risk, but still retains the risk of delay for the other reasons, so the potential disputes remain.

    In the case of Midland Expressway vs. Carillion Construction, the M6 toll road construction was based on a design-build contract, where the entire responsibility for the design was given to the contractor. Disputes regarding claims for payments and share of the discounts to be received were ascended followed by adjudication and then litigations.

    This judgment started with an intrigued tone, and the courts held that there was no doubt at considerable expense to the parties involved, thereby design and build does not prevent claims arising. It does not prevent contractors from making claims for extra time and money where there is a lag.

    The company may think that he is setting all the design jeopardy on the contractor but, if significant modifications are notified during construction (which is the case for many projects), this risk stays with the organization.

    Differences between EPC and Design-Build Delivery

    EPC and Design-Build Delivery have both existed as mainstream delivery methods for decades. In both cases, the partner has a point of contact. In both cases, the company is responsible for the design, and the contractor takes on more risk than a traditional design-bid-build delivery. However, several essential differences differentiate the two:

    Active Participant:

    An EPC project results in a turnkey facility. The EPC contractor heads the working of the project facility.

    A design-build contract finishes off comparatively to configuration offer form contracts, with the proprietor and its development director or fashioner playing a functioning job in punching out the office.

    The design-builder is held by the proprietor from the get-go in the life of the undertaking and, now and again, before the structure has been created by any means.

    Design-build is used to limit dangers for the venture proprietor and to decrease the conveyance plan by covering the structure stage and development period of an undertaking."DB with its single point duty conveys the clearest legally binding solutions for the customers in light of the fact that the DB contractual worker will be in charge of the majority of the work on the undertaking, paying little heed to the idea of the blame."

    It answers the client's wishes for a single point of responsibility in an attempt to reduce risks and overall costs.

    These contractors are usually handed little more than performance requirements varying, whereas most design-build configuration assemble contracts give probably some plan detail in the connecting reports.

    EPC equivalent of the "structure help" or "quick track" plan construct forms is not available.By and by, this mirrors the proprietor's increasingly negligible contribution in the EPC configuration process.

    There is no EPC likeness the "structure help" or "quick track" plan construct forms. By and by, this mirrors the proprietor's progressively negligible association in the EPC configuration process.

    Risk-taking:

    Most contracts transfer far more risk to the contractor in EPC. The risk is not shared between the owner and the design-builder, but just the contractor has to face the responsibilities and the liabilities.

    Design-build contracts will, in general, take either a customary plan offer form way to deal with questions like obscure site conditions or to share that chance between the proprietor and the structure manufacturer. In contrast, it is not uncommon for EPC contracts to shift these risks entirely to the EPC contractor.

    Project Delivery Processes:

    The delivery of the project via Design-build is in two phases with:

  • Phase I including budgeting and development and pre-construction services and the negotiation of the contract price for Phase II; and
  • Phase II including final design, construction, and commissioning.
  • The EPC project process involves

  • Initiating the Project
  • Preparations like setting up of the project organization and Procurement procedure
  • Phase I Project Development
  • Phase II Project Implementation
  • Phase III Project Follow up and (f) Decision Making.
  • Understanding the differences between these two seem quite similar design processes is a crucial step when assessing which delivery system is right for the project.

    ]]>
    Sat, 23 Mar 2019 14:00:00 GMT
    <![CDATA[Counter-Terrorism Efforts]]> A Global Purview of Counter-Terrorism Efforts

    With nearly 41% of all terrorist attacks resulting in casualty, and a dramatic increase in public targeted incidents, governing bodies representing both domestic and international interests alike have invested countless resources into better understanding why terrorism occurs, and how legislatively, it can be stopped. The result has led to an intriguing conceptualization of terrorism commencement theory, international convention prohibitions, and domestic statute adoptions.

    Understanding Terrorism: Scope, Scale, and Premeditative Factors Guiding Legislative Enactment

    Statistically, post-1990, approximately 100 to 200 international terrorist attacks have occurred each year. Of this number, 40% of offenses were directly targeted against U.S. interests. Heinous acts of terrorism such as the U.S. 9/11 Twin Towers attack and 2007 London Bombing have demonstrated that atrocities stemming from terrorism extend beyond the loss of life or injury. Rather, both domestic and international acts of terrorism hold the significant capacity to adversely impact socio-political and economic sectors. Empirical evidence has suggested that terrorism, directly and indirectly, results in: infrastructural damage, unemployment, weakened commerce, an elevated need for security, counterterrorism budgeting, and escalated insurance premiums. Globally, the vast majority of attacks have occurred within the Middle East and Europe, however, the highest rates of mortality have occurred within Africa, Asia, and the Middle East.

    To fully comprehend why terrorism has become an increasingly widespread phenomenon within the last half-century, one must first grasp what constitutes terrorism, and how domestic and international acts of terrorism differentiate. For an atrocity to be classified as an act of "terrorism," intentions must target "…premeditated political violence against civilians with the objective of maximizing media exposure to the act and, ultimately, to the terror group and/or to its cause. Political violence is achieved when either an individual (independent of the state) or the state itself commits assault with the purpose of obtaining a political goal. For the scope of this article, two primary forms of terrorism will be discussed: domestic and international incidents.

    • Domestic: Domestic terrorist attacks occur when a perpetrator commits an act of political violence within their own nation's jurisdiction. Consequences of a domestic attack are intended only to impact the venue country (whether that be its structural institutions, citizens, or policies). Within a domestic attack, the offenders, their victims, and the overarching goal exist within one territorial jurisdiction.
    • International: Transnational terrorist attacks engage offenders, victims, and targets of multiple nations. 

    There is significant debate existing between international governing bodies as to why acts of terrorism are committed. Despite a dramatic surge in research funding, the enactment of fifteen international counter-terrorism conventions, and enforcement of domestic counter-terrorism legislation worldwide (such as the UK Counter-terrorism and Security Act 2015), conclusions have remained predominately elusive. Lacking unanimous agreement, three theories have been generally accepted by members of the international community. At the legislative level, understanding these hypotheses has been absolutely essential for constructing laws aimed at curtailing terrorism. Succinctly, research has suggested:

    • Domestic political instability and international terrorism are intrinsically connected.  This perspective, coined the Escalation Effect, proposes: "…domestic political instability drives international terrorism…[in that] politically unstable countries offer propitious conditions" for civil war outbreak, guerrilla warfare, sophisticated "terror" training, and the accumulation of terrorist human capital.
    • Terrorism is most likely to arise out of territories with meager political development and a deteriorated economy.
    • International terrorism commences as the result of a "weak" state. This concept is referred to as the "failed state hypothesis." Weakness is determined by evaluating the social, economic, and political welfare of a nation.  

    Together, these speculations have helped guide the evolution of national and international conventions, resolutions, acts, and codes governing anti-terrorism legislation.

    Evaluating the Aims of Anti-Terrorism Legislation

    There are two central focal points specific to preventative counter-terrorism legislative efforts internationally: collective security and human rights. On the international scale, the United Nations Security Council has enacted a variety of resolutions since 21 January 1992 to combat and condemn global acts of terrorism. According to Article 24 of the UN Charter, the function of the Security Council is to maintain international peace and security amongst member states. In regards to counter-terrorism, the Council is predominantly concerned with managing collective security. The UN assessment of terrorist insurgency began in the mid-1960s through the formation of several multilateral treaties, which included the Tokyo Convention of 1963 and the Montreal Convention of 1971. These conventions "…categorized the main forms of terrorist acts as criminal…[defining] crimes and obligated state parties to prosecute or extradite suspected offenders.] Although UN treaties such as these serve punitive and deterrent roles, their effectiveness at mitigating incidents of terrorism is highly controversial. As tragedies resulting from terrorist acts have demonstrated, a discrepancy often exists between a state's claim of procedural duty follow-through and reality.  The 1988 Lockerbie tragedy demonstrates just this. Although the trial of the two Lockerbie bombing suspects was "achieved partly through the intercession of the [UN] Security Council, utilizing its collective security powers to deal with a past act of terrorism…[it was] an indication of future behavior by Libya in supporting terrorism." Following this realization, and upon criticism of targeted sanctions, the UN Security Council declared that states not only have a duty to satisfy collective security obligations but also, adhere to their duties of protecting human rights.  The General Assembly's Global Counter-Terrorism Strategy adopted by UN Member states in 2006 affirmed this declaration. The Strategy made clear that "…states must ensure that any measures taken to combat terrorism complies with their obligations under international law, particularly human rights law and international humanitarian law.

    International Anti-Terrorism Conventions

    From an international purview, all counter-terrorism conventions are enacted under the UN. Conventions worth analyzing in this article include:

    • 1997 International Convention for the Suppression of Terrorist Bombings (Ratified by 169 states)

    Through this convention, the UN confronts the increasingly widespread prevalence of explosives and other lethal devices used in terrorist attacks. Noting foregoing provisions did not directly prohibit such incidents, Article 2 is designed to outline committable offenses under this topic. The article states, "Any person commits an offense within the meaning of this Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility...." Under the 1997 Convention, explosive and lethal devices were defined as weaponry or equipment holding the capacity to induce severe material/economic damage, kill, or cause bodily harm. Article 2 also asserts guilt if an individual acts as an accomplice in or directs others to commit the act of terrorism. The Convention, in Article 4 requires State Parties to implement measures "to establish criminal offenses under its domestic law the offenses set forth in article 2…[and] To make those offenses punishable by appropriate penalties which take into account the grave nature of those offenses." As with all of the anti-terrorism conventions set forth by the UN, the jurisdiction of an offense is dependent on three conditions. A State may claim authority over a terrorist attack if: it takes place in the Member states' territory, a flying vessel is registered under the States' laws, or the offender is a State national. It is also worth noting that the Convention excludes (in Article 19) "…activities of armed forces during an armed conflict…" from governance as international humanitarian law supervises activities executed by armed force.

    • 1999 International Convention for the Suppression of the Financing of Terrorism (Ratified by 187 states)

    Noting that financial terrorism had evolved into a grave matter of concern for the international community and that a vast majority of international terrorism acts were committed due to financial backing assistance, the 1999 Convention stressed the need to devise preventative measures to eradicate the financing of terrorism. Similar in design to the previous convention, Article 2 outlines committable offenses. The Article specifies an offense is committed under the Convention if an individual "…directly or indirectly, unlawfully and wilfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used... [to] cause death or serious bodily injury to a civilian…." The Convention is non-applicable (under Article 3) to offenses performed by nationals of the State in which the act occurred, or when an offense occurs "within a single State."  The Convention also prescribes ratifying states to adopt measures of enforcement/deferral. A State Party is strongly advised (where necessary) to institute criminal offenses and proportionate penalties for the actions prohibited in Article 2. 

    • 2010 Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft (Ratified by 22 states)

    Created as a supplement to the 1970 Convention for the Suppression of Unlawful Seizure of Aircraft, the 2010 Protocol amended many previous articles of the Convention. Discussed in the Protocol's preamble, the international community was "deeply concerned" with the intensification of civil aviation offenses. The intended aim of creating this Protocol was to subdue future "seizure or exercise of control of aircraft." Article 2 of the Protocol replaced Article 1 of the Convention. Under the amendment, "Any person commits an offense if that person unlawfully and intentionally seizes or exercises control of an aircraft in service by force…or by coercion…." Additionally, the threat of aircraft seizure, the attempt of the offense, serving as an accomplice, or directing others to commit the offense is all punishable acts under the Protocol. Article 3 (replacing Article 2 of the Convention) classifies offenses as "punishable by severe penalties."

    • The 16th Proposed Comprehensive Convention on International Terrorism (Not yet ratified)

    Currently, the UN is in the negotiation phase of their 16th counter-terrorism convention. The Comprehensive Convention on International Terrorism is intended to ban all types of international terrorism, revoke terrorism fund access, ban terrorist access to arms, and deny terrorists refuge.  The proposal is undergoing a negotiation deadlock, as unclarity surrounds whether or not a state's armed forces or self-determination could classify as an act of terrorism.

    State Anti-Terrorism Legislation:

    From a national jurisdiction enforcement perspective, the United States and the United Kingdom have both enacted comprehensive legislative doctrine condemning acts of terrorism. Listed below are two of the countries' most all-embracive legislative attempts at counter-terrorism:

    UK Counter-Terrorism and Security Act (2015)

    Receiving Royal Assent 12 February 2015, the UK Counter-Terrorism and Security Act was passed by Parliament with the intent of: inhibiting terrorist activity resulting from entry to or exit from the United Kingdom, enhancing the monitoring of potential wrongdoers, fighting theory backing terrorism, granting law enforcement investigative authority to seize passports upon entry to the country, producing a Temporary Exclusion Order, modernizing aviation/maritime/rail border security, and guaranteeing the financing of terrorism is eradicated.

    18 U.S. Code Chapter 113-B

    U.S. Chapter 113-B provides numerous sections defining punishable crimes and penalties under the act of terrorism.

     Section 2332a. "Use of weapons of mass destruction," states that in the case of an offense committed in the United States against a U.S. national: any person (without lawful consent) who threatens to use or does use a weapon of mass destruction against a U.S. national, individual or property within U.S. territory, or property under ownership by the United States, "shall be imprisoned for any term of years or for life, and if death results, shall be punished by death…."

    Section 2332b. "Acts of terrorism transcending national boundaries," prohibits the following acts: killing, maiming, kidnapping, committing assault with a dangerous weapon, and causing (or conspiring to create) bodily injury through inflicting structural damage. Punishment ranges from 10 years to life in prison.

    Section 2332d. "Financial transactions," asserts any U.S. person with knowledge that another nation is supporting international terrorism, and "engages in a financial transaction with the government of that country, shall be fined under this title, imprisoned for not more than 10 years, or both."

    Section 2332f. "Bombings of places of public use, government facilities, public transportation systems, and infrastructure facilities," classifies chargeable actions as the delivery or detonation of an explosive in a public place, government facility, transportation system, or infrastructural structure. The detonation must be done with an intention of causing bodily harm, death, or damage. Additionally, individuals who conspire to commit an offense previously listed in this section will be charged. Penalties for such charges under this section are the same as the penalties under Section 2332a.

    ]]>
    Thu, 03 Jan 2019 13:46:00 GMT
    <![CDATA[Врачебная халатность в странах залива. ]]> Врачебная халатность в странах залива. 

    Виллес Дж.: «Халатность - это негативное слово. Это отсутствие заботы, умения и усердия, поскольку привлечение к выполнению работы всегда считалось обязанностью человека.»

     

    Вступление.

    Работа в медицине является одной из самых престижных и уважаемых профессий. Отношения между пациентом и врачом основаны на доверии и вере. Джордж Бернард Шоу сказал: «Мы не потеряли веру, но мы передали ее от Бога медицинской профессии». Жизнь и здоровье – те самые две вещи, которые мы все ценим больше всего.Именно врачи и медицинские работники обладают знаниями и навыками, что помогают держать наше здоровье в тонусе. За последние пару десятилетий мы стали свидетелями нового этапа глобализации и технического прогресса в различных сферах нашей жизни, и медицинская профессия не является исключением. К сожалению,профессия врача становится все более ориентированана на деньги, и по этой причине претензии в отношении врачебной халатности стали одной из самых больших проблемв  наши дни. Годами ранее врачебнаяхалатность считалась преступлением. 

     

    Врачебная халатность – это юридическое понятие, означающее предоставление небрежной или ненадлежащей медицинской помощи медицинским работником или медицинским учреждением, в результате которого здоровью больного или пациента нанесен ущерб. Она влечет за собой как гражданскую, так и уголовную ответственность. В гражданском процессе потерпевший может подать иск или жалобу на получение компенсации. В уголовном - потерпевший должен завести уголовное дело против врача. 

     

    Врачебная ошибка как правонарушение.

     

    Уинфилд: «Врачебная ошибка как гражданское правонарушение – это нарушение юридической обязанности, которое приводит к нежелательному ущербу ответчика в пользу истца.»

     

    Это такое действие, которое влечет за собой причинение вреда потерпевшему, и за которое суд в последствии возлагает ответственность. Врачи имеют юридическое обязательство перед пациентами, то есть они должны придерживаться необходимого свода правил по наблюдению и уходом за больным.

     

    Врачебная халатность может произойти на одном из следующих этапов оказания медицинской помощи:

    • На этапе обследования и диагностирования болезни или медицинской проблемы.
    • Во время оказания медицинской помощи, связанной с лечением болезни или медицинской проблемы.
    • На этапе наблюдения больного после оказания медицинской помощи.

     

    Врачебная халатность как профессиональное преступление.

     

    Профессиональные преступления в основном включают в себя те преступления, которые связаны с различными профессиями, например, медицинские, академические, религиозные, юридические и другие.  Профессиональные преступления, как правило, не так заметны, как любые другие, и поэтому в таких случаях преступники часто остаются незамеченным.Врачебнаяхалатность считается серьезной формой профессиональной преступности, которая подрывает честность и благородство профессии. Некоторые из преступлений, связанных с медицинской халатностью, включают в себя: разделение платы, установление цен, мошенническое выставление счетов, проведение ненужных операций,искаженное представление услуг и другие.В настоящее время большинство медицинских работников в первую очередь мотивированы именноматериальной выгодой.  Врачи и медицинские работники занимаются различными незаконными видами деятельности ради денежной прибыли. Пациенту может быть трудно поверить, что он может стать жертвой медицинского преступления и что врачи, которым он доверяет своездоровье на самом деле преступник.

     

     

    Обзор законодательствав области медицинской ответственностив ОАЭ: 

     

    За предыдущие два десятилетия мы наблюдали огромное расширение сектора здравоохранения в ОАЭ. Закон о медицинской ответственности в ОАЭ теперь предусматривает, что медицинские работники будут нести ответственность в случае, если они совершат какую-либо медицинскую ошибку с намерением получить коммерческую или другую выгоду. В Гражданском кодексе ОАЭ существует общая теория, согласно которой лицо, причинившее вред другим, будет нести ответственность за потерю или ущерб. Статья 389 Гражданского кодекса гласит: «Критерием для лица с отягчающими обстоятельствами, имеющего право на компенсацию, является то, что ущерб должен был быть причинен непосредственно в результате ошибки, и что он уже произошел или произойдет в будущем. Потенциальный ущерб  не подлежит обязательной компенсации пока он не был зафиксирован».

    ]]>
    Mon, 05 Nov 2018 12:00:00 GMT
    <![CDATA[Консолидация экономического статуса]]> Консолидация экономического статуса

    Вступление

    В связи с глобальными изменениями, особенно на Ближнем Востоке, люди сталкиваются с рядом экономических проблем. Большинство стран Ближнего Востока являются развивающимися, стремящимися консолидировать свое финансовое положение в регионе, а также в мире.

    Это бесконечная гонка экономического роста, поскольку каждая страна выглядит как сильная экономическая держава. Поскольку победитель будет обладать большим количеством контрактов и соглашений с инвесторами, ему необходимо доказать, что страна является идеальным местом для инвестиций, дабы не подвергать риску самих инвесторов. Соединенные Штаты Америки давно взяли на себя роль самого мощного экономического субъекта в мире, и с тех пор это место не было завоёвано ни одной другой крупной страной.  Например, Китай - большая  страна, которая является постоянным членом Совета Безопасности. Несмотря на то, что его отрасли затмевают многие страны мира, Китай по-прежнему опасается экономических санкций США, что может нанести ущерб китайской экономике.

     

    Страны Сотрудничества Персидкого Залива

    Значительный доход стран залива составляет прибыль от нефтяных месторождений. Остальная малая часть доходов - это налоги, таможенные пошлины и инвестиции в государственные проекты, которые в основном находятся в зарубежных странах (например, рынок недвижимости).

    Например, объем инвестиций Саудовской Аравии в США превысил 1 триллион долларов, по данным CNN. И напротив, инвестиции США в последнее время достигли 10 миллиардов долларов, что позволило улучшить экономику Саудовской Аравии и привлечь больше иностранных клиентов. Мы легко можем представить себе большую разницу между инвестициями обеих стран. Поддержка самих инвесторов и их инвестиции в страну увеличивает доходы государства и приводит к росту ВВП, тем самым способствуя развитию разных областей, таких как производство, рынок недвижимости, туризм, технологии и многие другие.

    На сегодняшний день страны Совета по Сотрудничеству Персидского залива переводят прибыль от нефтяных доходов к не-нефтяным, а также организовывают  прочную инфраструктуру и стимулируют инвестиции в эти страны, резко снижая цены на нефть в мире, что приводит к большому дефициту для стран, экономика которых сильно зависит от продажи нефти. В связи с этим начали предприниматься методы по избежанию таких трудностей на мировых энергетических рынках.

    В 2016 году нефтяная отрасль столкнулась с резким спадом, что поспособствовало  снижению ставки барреля до 40 долларов США. Это привело к снижению более чем на 60 процентов; поэтому нетрудно представить ситуацию стран, прибыль от нефти которых составляют более 70% от общего дохода. Падение цен на нефть вызвало большой дефицит для некоторых стран, таких как Кувейт и Саудовская Аравия, доход которых преимущественно зависит отнефти. 

    Эти страны должны работать над экономическими реформами, чтобы изменить ситуацию в лучшую сторону, например:

    1. Саудовская Аравия может создать систему крупных реформ через программу Saudi economic Vision 2030;

    2. Государство Кувейт может ввести крупную реформу своей экономики;

    3. Наложение налога на добавленную стоимость во всех странах залива; и тд.

    Поэтому мы подчеркиваем, что в большинстве этих реформ основное внимание уделяется увеличению инвестиций, привлечению капитала, стимулированию развития инфраструктуры и принятию законов для инвестирования в различные сферы промышленности, туризма, сферы услуг и недвижимости.

    Роль ОАЭ в поддержке инвестирования.

    Являясь одной из ведущих стран залива, Объединенные Арабские Эмираты приняли законы, подходящие для иностранных инвесторов. Это привело к большой прибыли государственного бюджета. В 1970-х годах нефть составляла более 90% от общих государственных доходов Объединенных Арабских Эмиратов. Однако уже в 2016 году доля  нефтяного сектора достигла 70% от общего объема государственных доходов.

    С момента своего создания правительство ОАЭ диверсифицировало доходы страны, а не просто полагалось на единственный источник дохода, что помогло избежать опасностей, с которыми столкнулся кризис цен на нефть.

    Одной из наиболее заметных областей, достигнутых в Объединенных Арабских Эмиратах, является примечательное развитие значимости иностранных инвестиций в стране.

    ОАЭ закрепили закон, разрешающий иностранцам владеть всеми долями компании или ее партнерам:

    Статья 10

    Коэффицент Национального Вклада

    1- За исключением компаний совместного владения и простых командитных компаний.

    Компании, в которых все существующие партнеры  должны быть гражданами ОАЭ. Компании, созданные в государстве, должны иметь одного или нескольких партнеров, являющимися гражданами ОАЭ и владеющими не менее, чем 51 процентов капитала компании.

    2 - Несмотря на положения пункта 1 настоящей статьи, Кабинет министров может основываться на предложении, сделанном министром по согласованию с компетентными органами, вынести решение, согласно которому класс видов деятельности будет исключительно осуществляться гражданами ОАЭ.

    3 - Любая передача права собственности  доли партнера, которая может повлиять на процент, указанный в пунктах 1 и 2 настоящей статьи, недействительна.

    К концу 2018 года иностранным инвесторам будет разрешено владеть всеми или частью доликомпании в ОАЭ. В настоящее время должен быть местный инвестор, которому принадлежит большая часть акций компании, то есть не менее 51 процента. Это требует от всех иностранных инвесторов отказаться от наибольшей доли в пользу местного инвестора, что затрудняет инвестирование иностранных граждан, и вынуждает отказатьсяот большей доли компании, даже если настоящий партнер не требуется. Вот один пример, который демонстрируетнам желание некоторых иностранцев инвестировать в Эмираты- это успех свободных зон в ОАЭ.

    Свободные зоны в ОАЭ привлекают множество иностранных инвесторов, и некоторые международные компании создали свои компании внутри ОАЭ, но в пределах свободной зоны.  В ОАЭ существует более 30 свободных зон. Примерами этих свободных зон являются расположенные в Дубае: Jebel Ali Free Zone, Dubai Silicon Oasis Free Zone, Dubai Airport Free Zone, и Dubai Healthcare City.

    Эти свободные зоны имеют некоторые преимущества для работающих в них компаний.

    Одной из наиболее важных особенностей является иностранное владение всеми долями компании (гражданин ОАЭ не обязан выступать в качестве партнера). Одним из существенных условий, применяемых к этим компаниям, является то, что они не могут вести свою деятельностьза пределами свободной зоны, и также им строго запрещено сотрудничать с государственными и правительственными учреждениями.

    Новый закон позволит иностранным инвесторам владеть всей долей или около 90 процентов доли компании в ОАЭ, работать в любом месте в пределах границ ОАЭ, а также заключать контракты со всеми государственными органами и учреждениями, что  однозначно начнет привлекать многих инвесторов работать в этой стране.  Это также позволяет инвестору принимать все решения в компании без участия или вмешательства ее руководства.

    Однако будут введены некоторые условия для полного иностранного владения всей компанией: 

    1. Этот закон будет распространяться на такие области, как энергетика и технологии. Например, Apple, Samsung и Google. Эти компании внесут большой вклад в экономику страны и будут развивать ее инфраструктуру.

    2. Должно быть одобрение Совета Министров на следующее:

    • Компания: цель применения этого закона - глобальные гиганты.

    • Инвестор: инвесторы должны пройти проверку; что они не являются лицами, которым запрещено торговать, или террористами, или гражданами недружественных государств.

    3. В этих компаниях будет оказана поддержка гражданам ОАЭ. Эти компании предоставят много возможностей трудоустройства для молодежи ОАЭ, благодаря чему молодое поколение будет повышать свою компетентность и узнавать многое из опыта международных компаний, которые добились больших успехов в своих областях.

    Это решение однозначно  увеличит инвестиционный сектор  и принесет большой процент в государственный  бюджет, превысив один триллион дирхам ОАЭ. Можно представить соотношение инвесторов и международных компаний после принятия этого решения. ОАЭ за малый срок времени стал глобальным центром региона, а рост экономики ОАЭ сыграл огромную роль в активации многих жизненно важных секторов, таких как технологии, энергетика, электричество и многие другие. 

    ]]>
    Sat, 03 Nov 2018 12:25:00 GMT
    <![CDATA[A Guide to Non-compete Clauses in the Middle East]]> A Guide to Non-compete Clauses in the Middle East

    Introduction

    Non-compete clauses are sometimes incorporated into the contracts of employees to ensure the security and protection of the employer if an employee decides to move to another company. When working for an entity, individuals will likely pick up on and be privy to highly confidential information and practices of their employers. In the modern and extremely competitive business environment, companies look to obtain every advantage they possibly can. A company's unique selling points are what allow them to rise above their competitors, and these unique characteristics can include everything from trade secrets to working practices and even knowledge of specific customers and interacting with them. These are all things that an entity would seek to protect.

    Placing a non-compete clause in a contract restricts an individual's future employment in specific ways. That employee will be unable to obtain jobs at similar competing establishments, though the duration and specifics of how this will work will vary based on the country. The clause will have the effect of preventing one from obtaining employment under certain circumstances to ensure one company will not lose business to a competitor due to the profession of the ex-employee.

    It is no small matter, and so there are regulations in place within all of the GCC countries to ensure employers do not take advantage of employees. An individual working for a company in a particular field and at a specific position, when looking for a new job, will most probably be seeking in a similar sector. Realistically, this related sector will also be the one they would be most likely to find work in, and so this gives rise to something of a problem. If a non-compete clause is present, how will an employee find further employment?

    There are solutions to this, such as time limits, though more often than not, these limitations have to be reasonably specific. Non-compete clauses are not intended to give any single party an advantage over the other, and they are indeed not intended as oppression to the employee. Preferably it is merely a preventative measure used by the employer to secure their business.

    Contents

    1.   Non-Compete Clauses in the UAE

           1.1     Federal Law Number 8 of 1980

           1.2      In the Case of Litigation

           1.3      Ministerial Resolution Number 297 of 2016

    2.      Non-compete Clauses in the DIFC

            2.1    DIFC Law Number 6 of 2004

    3.      Non-compete Clauses in the ADGM

            3.1    The Employment Regulations 2015

            3.2    The UK Common Law and Equity

    4.      Non-compete Clauses in Kuwait

             4.1   Law Number 10 of 2007 (Competition Law)

             4.2   Damages for a Breach of Contract

    5.      Non-compete Clauses in Bahrain

             5.1   Law Number 36 of 2012

    6.      Non-compete Clauses in Oman

             6.1    Royal Decree Number 50/90

             6.2   Sultan's Decree Number 35/2003

    7.      Non-compete Clauses in Saudi Arabia

            7. 1   Royal Decree Number M/21 of 1969

            8.1    Royal Decree Number M/51 of 2005

    8.     Conclusion

     

    1.   Non-compete Clauses in the UAE

     

    The UAE is a highly competitive business market, being the most famous and popular in the Middle Eastern region; this is made clear when looking at its population, which consist of around 90% being expatriates. Non-compete clauses are quite well regulated although the matter can often be complicated. On top of this, the ADGM and DIFC free zones have differing regulations.

    The principal regulations on this matter are:

    • Federal Law Number 8 of 1980 (Labour Law)
    • Ministerial Resolution Number 297 2016

          1.2  Federal Law Number 8 of 1980

  • Federal Law number 8 of 1980 is the general labor law of the UAE. It does not explicitly mention non-compete clauses, though Article 127 does concern the matter
  • Within Article 127, it says that in the case that an employee's work allows them to become familiar with the clients of their employer, or if that work exposes them to the trade secrets of the company, the employer will be in a position to oblige a non-compete restriction upon the employee.
  • These are the conditions under which a non-compete clause may be allowed as per the law, though the Article also states conditions.
  • Article 127 States that for this restriction to be applicable, the employee must be over the age of 21 from the time of the contracts initial formation.
  • On top of this, the clause must be limited regarding the time and place. Further, it should also be limited to similar forms of work that would directly allow for competition with the original employer and will not be permitted unless it is necessary for them to protect and safeguard their lawful interests.
  • From this, a point that can be noted is that the law is stated in such a way to ensure a fair system. A non-compete clause cannot be used to take advantage of the helpless. The age restriction is present to provide that those who are very young do not have the early and crucial stage of their careers unnecessarily restricted, as this could have more considerable repercussions on them.
  • On top of this, the time and place restrictions are just a matter of fairness. For time limitations, markets change and so there must be an absolute time limit after which the employment of that employee will not have a noticeable or competitive impact. Further to this, employees employed within the UAE will be less likely to interact with clients in competitors in other jurisdictions, and with the international market and competition on such a scale being far more unpredictable, a limitation will have to exist.
  • Of course, the non-compete clause must prevent work in a similar business that would be in direct competition with the employer. They should be able to demonstrate that in the ex-employee working in the new company, they will suffer losses directly as a result.
  • Due to Article 127, it is more often than not, more senior employees who receive these clauses in their contracts. Those at a decision-making level who would potentially be able to impact the interests of a company and their competitivity with their knowledge may genuinely require a non-compete clause; there will be little to no positivity to arise from applying non-compete clauses to lower level employees or those privy to less insider knowledge.
  •       1.2   In the Case of Litigation

    Escalating a case to litigation is a serious matter, and so there must be a certainty of a breach. However, the UAE's outlook and handling of these cases can be quite a complicated procedure. 

    ]]>
    Mon, 08 Oct 2018 13:04:00 GMT
    <![CDATA[Project Financing]]> Examining Project Financing issues and Regulations

    Introduction

    Driving through Dubai one is inundated with the view of cranes and construction sites, however, if a closer look is taken it becomes increasingly more evident that many, if not most of these sites are inactive and the buildings are left skeletons of the creations that they were meant to be. Project financing in the GCC region has seen a rapid dive in recent times, and the feeling of the effects is throughout the GCC.

    Due to a concerted drop in the oil prices, there was a resultant shortfall in government revenues and budget deficits across the region. The GCC region is suffering a reported two hundred and seventy billion dollars (USD) project finance gap. However, the region has announced a slew of infrastructure programmes, and this can be attributed to external sources keeping the funding tap open to infrastructure projects. With governments taking a cautious approach and only focusing on critical projects.

    The value of UAE projects awarded rose by 15.1. Percent, quarter-on-quarter in the first half of 2016. Bahrain and Kuwait reported increases of 77.1 percent and 242.2 percent in projects awarded during the first quarter, on a quarter-on-quarter basis, while Oman and Bahrain saw yearly increases in projects. Saudi Arabia and Oman saw the sharpest quarterly falls of 42.9 percent, 45.7 percent, and 48.2 percent respectively, in value terms, while for GCC as a whole the value of project awards contracted by 14.8 percent quarter-on-quarter and 45.6 percent on a year-on-year basis.

    Lower oil prices have been a significant constraint on the amount of funding available to GCC governments to finance capital and infrastructure projects, forcing them to look at alternate solutions.

    Asian and European export credit agencies are increasingly providing funding or finance guarantees to help their contractors secure projects. An example of this was the USD 2.9 Billion LNG import and regasification terminal in Kuwait awarded to a consortium led by South Korea's Hyundai Engineering and Construction.

    The project finance market in the GCC region conceals several challenges. These challenges include the drop in oil prices, the tightening fiscal positions across the region causing delays to protect, rationalization or even cancellations of projects.

    It is against this backdrop, increasing capital requirements stemming from Basel III implementation are affecting regional banks' ability to support projects with longer tenors. Also, liquidity pressures linked to lower oil prices persist in some markets while in others they arise intermittently. "Banks in the GCC region traditionally operate with high levels of capital, but we expect Basel III to make a significantly less amount of capital available for project finance," says Micheal Wilkins, managing director of infrastructure ratings at S&P Global.

    Filling the funding gap

    In order to bridge the gap in the funding, there has been an evident trend emerging throughout the region. The first trend is the increasing presence of large international banks, specifically from Asia. This increase is having a significant positive effect on the market. These international banks have many years of experience engaging in global project finance deals and come with large balance sheets, and they are adding an extra dimension to the regional funding landscape. 

    The contribution of non-regional lenders has been elevated to new heights due to various 'push' and 'pull' factors. Negative interest rates in Japan, for example, have contributed to a large-scale push by the country's banks to seek better returns overseas. Three Japanese banks topped a Thomson Reuters global league table for bookrunners on principal underwriters for project financing by value in 2016.

    The bank that came out on top was Mitsubishi UFJ Financial Group (MUFG), such a bank has had a stable presence in the region for over the past few decades. The bank provides that project finance is an asset class that the bank has extensive knowledge in, this knowledge is inclusive of all risks associated with project finance. In the GCC mainly, the expertise of this bank has seen it lead on some of the regions' most significant project and infrastructure deals of recent years. An example of this is the financing of Abu Dhabi's largest solar plant, a 1.17-gigawatt facility located in Sweihan, which included $650m raised from local and international banks, MUFG was the lead arranger for the loan.

    Another trend is the innovative new financing methods, which include a growing role for regional capital markets by opening up new funding options for project finance participants.

    Regional project finance market

    There have been many delays and re-tender of projects in the GCC region in recent times, and this has meant that some bigger project finance markets have offered less stability than they did in the past. 

    The proposal is that local bank funding across the region will become more expensive. This proposal reflects slow growth in deposits in some markets as well as higher capital requirements, which will force many institutions to be more selective when it comes to their balance sheet allocations. As a result of this, space is opening up for capital market financing for project and infrastructure finance.

    Mr. Jennings from S&P Global stated that "we are seeing more avenues open up for other investors coming into the market who are comfortable taking on longer terms asset risk. Indeed, there is much interest, particularly in the GCC, for debt capital market and institutional investors and we have seen different pockets of liquidity open up in that regard.

    Market bonds' bounce

    There are much-needed work and procedures to be implemented before alternative financing mechanisms reach a meaningful scale. Across the GCC region, local currency debt markets are mostly undeveloped. Also, research shows that bank loans accounted for about 90% of total corporate and infrastructure financing over the first eight months of 2016, up from about 74% in 2013.

    In order to address some of the challenges, regional banks are turning to samurai or kangaroo bonds to raise debt at a lower rate and to diversify their liabilities. These funds were lent back to corporates involved in project finance deals.

    Although the immediate financing gap may be severe, the new trends cumulatively bode well for the region's project finance aspirations. GCC markets are currently adapting to the environment in which they find themselves. If over time, a more extensive range of banking institutions, coupled with a more diverse array of funding sources, begins to address the project finance gap, the outcome can only be positive for all concerned.

    Mr. Jennings went on further to state that, "a project finance market of the size and scale of the Middle East does not work with just one or two big lenders. You need a good number of primary banks and also secondary interested parties, including debt and institutional investors."

    The Basel III Accord

    The Basel iii Accord was formed to strengthen the regulation, supervision, and risk of the banking sector. The Basel Committee is the regulatory body responsible for the Basel iii Accord and is the primal global standard-setter for the prudential regulation of banks and provides a forum for cooperation on banking supervisory matters.

    GCC Banks position for Basel III

    The Basel III aims to absorb financial shocks, enhance risk management and improve banks' transparency. The banks in the GCC region already mostly conform to the Basel II. The new framework requires increased and better-quality capital, liquidity standards, a new leverage ratio, and capital buffers to be absorbed in tumultuous periods. Other drives include:

  • A greater focus on stress testing;
  • The analysis of risks related to capital market activities; and
  • More rigid requirements for systemically important banks.
  • For regional banks, the higher capital requirements provided for by the Basel III Accord will leave many regional lenders with less room to support project finance deals.

    Chiradeep Ghosh from Bahrain's Security and Investment Company stated, "in terms of Basel III implementation, Saudi Arabia is doing quite well. We estimate that the average core Tier 1 capital ratio for Saudi banks in 17.5%. So Saudi lenders are well placed to continue engaging with finance deals. Global standards well capitalize Even UAE banks; we estimate that their average core Tier 1 capital ratio is about 14%."

    Reasons why projects fail

    Generally, construction projects fail due to lack of proper planning. However, there are other reasons for such failure, the dividing of which can be into causes related to owners and causes related to contractors.

    Causes related to owners:

  • Scope issues;
  • Communication issues;
  • Determining load lead items;
  • An inexperienced or under-qualified project team;
  • Poor estimates;
  • The relationship between project budgets and plan;
  • Incomplete designs;
  • Lack of risk management;
  • Unrealistic schedules.
  • Causes related to contractors:

  • Scope creep and gold plating;
  • Poor estimates;
  • Turnover;
  • Resource shortages and an inexperienced or unqualified project team;
  • Unfavorable contracts;
  • Lack of support from senior management;
  • Design issues;
  • Coordination issues;
  • An overly aggressive schedule; and
  • Lack of risk management to address unplanned conditions.
  • ]]>
    Tue, 02 Oct 2018 12:59:00 GMT
    <![CDATA[Agency Laws in the GCC Countries ]]> AGENCY LAWS IN THE GCC COUNTRIES

    Introduction

    The extension of the multinational partnership is either setting up its subsidiary in remote purview or to tie up with the local organization in a foreign jurisdiction. United Arab Emirates (UAE) is one of the distant locals where international organizations are going into office concurrences with the Emirate nationals keeping in mind the end goal to grow their business in the UAE since the UAE being a well networked international port. A global entity wishing to set up a company offshore with cost-effective investment UAE is a standout amongst the most advantageous alternative where the foreign companies either enters into distribution agreement or makes an arrangement with the commercial agencies to expand their business with the locals. The UAE Agency Law manages these commercial agencies and distribution agreement in the UAE according to amended Federal Law 18 of 1981usually known as Agency laws. Federal Law 13 of 2006concerning agency law was revised and revoked in 2010. However, the Federal law 18 of 1981 was a reestablishment.

     

    The Emirate of Abu Dhabi established Federal Law Number 11 of 1973which centers around the task and control of business office exercises. This arrangement of Federal Law Number 11 of 1973had constrained the foreign business in Abu Dhabi and had created various challenges for the government about essential regulation carried out for commercial activities additionally talked about in this guide.

     

    These agency agreements have a positive effect on UAE's economy since there is an increment in Foreign Direct Investment (FDI). Indeed, even the previous Ministry of Economy SheikhaLubna Al Qasimi states that "The new revisions will certainly boost the financial market in the UAE. This law declared out of the longing to improve and keep up steadiness in costs and guarantee that organizations are not controlled to expand costs." Furthermore, the administration of UAE His Highness Sheik Khalifa bin Zayed Al Nahyan, President of the UAE and His Highness Sheik Mohammed receptacle Rashid Al Maktoum, Vice President and Prime Minister of Dubai, they all are resolved to offer help for the development of the economy in the UAE.

    STA Law Firm house one of the leading corporate attorneys in the entire of UAE. We believe that commercial agency laws for the protection of local agents from the termination of agency agreements by the foreign entity without any legitimate reasoning. Besides, the comparative study of agency laws has been done between UAE, Oman, Kuwait, Bahrain and Saudi Arabia.

    CONTENTS

    1.Agency Laws in United Arab Emirates

    1.1Definition 

    1.2Types of Agencies

    1.3Sham Agency Registration

    1.4Termination of Sham Agency Agreement

    1.5Termination of Agency Agreement

    1.6UAE Court's jurisdiction in Commercial Agency Agreement

    1.7Commercial Agency Committee

    1.8Arbitration in the UAE

    1.9Penalties

    1.10Agency Laws in Abu Dhabi

    2.Commercial Agency Laws in Oman

    2.1Introduction

    2.2Definition

    2.3Registration of Agency Agreement

    2.4Kinds of Agency Agreement

    2.5Ownership

    2.6Termination of Agency Agreement

    3.Commercial Agency Laws in Kuwait

    4.Commercial Agency Laws in Bahrain

    4.1Introduction

    4.2Definition

    4.3Ownership

    4.4Exclusivity

    4.5Termination of Agency Agreement

    4.6Penalties

    5.Commercial Agency Laws in Saudi Arabia

    5.1Introduction

    5.2Definition

    5.3Features of Agency Law

    5.4Ownership

    5.5Commission

    5.6Choice of law and Jurisdiction

    5.7Termination of Agency Agreement

    6.Conclusion

    7.References

    Overview

    The definition of commercial agency law as per Federal Law Number 18 of 1981(the UAE Agency Law) 'any disposition whereby an international company is represented by an agent to allocate, vend, tender goods or services within the UAE for a charge or profit.'  The rights of the Emirate agents are only protected under Federal law 18 of 1981(UAE Agency Law)if the registration of agency agreement with the UAE Ministry of Economy. Unregistered agreements do not render the rights of Emirate agents or protect them from the termination of agency agreement by the foreign principal under UAE Agency Law. Additionally, UAE commercial agent should hold a valid and appropriate license in each Emirate along with enrolment with the Chamber of Commerce in each relevant Emirate.  Article 4of the UAE Agency law (Federal law 18 of 1981as amended) states that there should be a straight connection between a UAE commercial agent and the foreign principal without any interference by the regional or multi-country sales agent. On the other hand, Article 5of the UAE Agency Law (Federal Law 18 of 1981as amended) states that ' A qualified commercial agent will be regarded selective in its domain, however, enables an international organization to delegate a different commercial agent for every emirate.' The Federal Act, 1981defines Commercial Agency as 'the representation of the principal by an agent for distribution, sale, display or provision of any commodity or service within the state (the UAE) in consideration of any commission or profit.' Here the word principal includes the manufacturer, whether based in the UAE or overseas. A common phenomenon observed in all the GCC countries is that if there is no registration of commercial agency agreement, then it will not be recognized by the courts or an agent will not have solid ground to defend himself from the termination of an agency agreement.  Therefore, commonly tan here are two types of agency agreements such as:

    I.    Registered agency agreements-  an agent can register commercial agency agreement before the Commercial Agency Registrar to protect themselves from an illegal termination of an agency agreement.

    II.    Unregistered agency agreements-  an agent enters into an agency agreement with the foreign private entity without registering the agreement with Commercial Agency Registrar then it is recognized as unrecorded agency agreement. Most of the courts in the GCC countries do not recognize or can protect a local agent from an invalid termination of an agency agreement. 

    AGENCY LAWS IN ABU DHABI

    The Emirate of Abu Dhabi enacted Abu Dhabi Law Number 17of 1969which states that "no person is permitted to conduct any commercial activity before obtaining a license by the commercial License Law of 1969." This provision of law had created commotion in the commercial market which limited the Foreign Direct Investment in Abu Dhabi. Therefore, Abu Dhabi Law Number 11 of 1973repeals Abu Dhabi Law Number 17 of 1969 which encourages Foreign Direct Investment as it focuses on operation and regulation of commercial agency activities. In Abu Dhabi, a business agent does not have exclusive rights over the products of the foreign entity once they enter commercial agency agreement as an agent is a mediator. An agent is a mediator for foreign companies to set up their business in Abu Dhabi because without an agent a foreign corporation cannot expand their business in the UAE.

    According to Abu Dhabi Law Number 11 of 1973it is not explicitly mentioned that registered or qualified agent would be protected under a specific provision if the foreign entity terminates agency agreement without any valid reasoning.

    Furthermore, in other jurisdictions of the GCC countries, qualified agents are protected under their specific agency laws if the registration is agency agreement is carried out before the Commercial Agency Registrar. This guide entails in detail about agency laws in the GCC. Click here to read more.

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    Thu, 14 Jun 2018 15:28:00 GMT
    <![CDATA[Company Formation in Kuwait Free Trade Zone]]> COMPANY FORMATION IN KUWAIT FREE TRADE ZONE

     

    Kuwait, also known as the Fruitful Land of the Gulfis considered to be a land of opportunities.The country's richness lies in the natural resources like oil and gas but also the real wealth of the nation lies in its human capital as people are highly educated and dynamic. Its presences are in the northwestern corner of the Persian Gulf.Kuwait is a modern city with mingling skyscrapers, apartment buildings, and mosques. In all of the GCC countries, Kuwait is one of the most urbanized countries. Kuwait is recently appreciated due to its extended foreign investment in the free trade zones specific focus on the free zone Shuwaikh.

    The first ever free zone in Kuwait, Kuwait Free Trade Zone (KFTZ) came into existence in 1999 in Shuwaikh port, which is the country's central shipping business facility, on a 1.5 million square meters area. KFTZ came into existence under the Law number 26 of 1995 allowing Kuwait's Ministry of Commerce and Industry to incorporate free trade zones in Kuwait (KFTZ Law).

    The Background Check

    The Kuwaiti Government signed an agreement with a privately-owned establishment, National Real-estate company (NERC) to manage KFTZ, since its establishment until 2006. Where the NREC has the authority to retain 20% of the net operating profits of the free zone and rest will be offered to the government. NERC made several advancements in KFTZ such as rehabilitating the port to ensure foreign investment, unlimited supply of electricity and water to free zone companies, easy road access, and state-of-art infrastructure.

    However, due to several disputes and allegations that NERC failed in managing the free zone, the Kuwaiti cabinet council passed a resolution number 507 of 2006 whereby terminating NREC from the management of the open area subsequently suspending all their activities. After that, in  2007, the Kuwaiti government passed on the responsibility of managing the free region to Public Authority for Industry (PAI) which is yet in-charge of the management of the openarea.

    Why KFTZ?

    The primary objective of KFTZ was to resuscitate Kuwait's economy by enlarging investment opportunities and to ensuring Kuwait's healthy business environment by making it a business center in the whole region. The free zone provides several benefits including but not limited to warehouses, open lands, exhibition halls, insurance agencies, courier companies, hotels and more. It further offers following advantages:

             i.            Complete hundred percent ownership;

           ii.            Free from corporate and income tax;

          iii.            Exemptions from customs duties on imports and exports of goods from the KFTZ;

         iv.            No restrictions on capital;

           v.            No limitations from the foreign exchange Department;

         vi.            Easy access to international airports;

        vii.            Free zone authority cannot confiscate foreign assetsotherwise will grant compensation worth market value;

      viii.            Adequate rewardoffered to foreign investors in case of violation of any rights and privileges;

         ix.            Tools and equipmentutilized within the free zone are free from taxes and customs duties;

           x.            An option to refer contractual disputes to international arbitration centers.

    An establishment may seek different types of licenses from the free zone, considering the activities of the company such as following:

             i.            Commercial/ Trade License;

           ii.            Industrial License;

          iii.            Investment license;

         iv.            Service License.

    In the licenses above, the company can hold hundred percent (100%) ownership without any interference from the local sponsor. The free zone does not restrict companies on the currency or any export and import activities with the openregion. However, there isa minimal limitation on the attachment or seizure of the capital so invested by the foreign companies.

    The companies wish to establish their presence in the free zone must obtain a license to carry out one or more of the permitted activities mentioned in the KFTZ law. Importantly, companies can only conduct those activitiesoutlined explicitly in the trade, commercial or service license. Below table will assist the investors planning to establish their presence in KFTZ:

     

    Particulars

    Free Zone Establishment/LLC

    Application form

    Required

    Famous Activities

    Manufacturing and Exports

    Timeline for obtaining a license

    Five months

    Timeline for a Lease agreement

    1 Week

    Corporate Tax Rate

    0%

    Limited Liability Entity

    Yes

    a Government Grants

    Available

    The requirement of Government Approvals

    Yes

    Requirement for GCC director or Manager

    No

    Minimum Share Capital

    USD 3,300

    Right to bid for government contracts

    Yes

    Right to secure trade finance

    Yes

    Average Costs for setting up

    USD 48,000

    Minimum Number of Partners

    2

    Future Goals of KFTZ

     

     

     

     

    With a clear view to support and increase the investment in the free zone, the Ministry and Commerce Industry promulgated a proposal to transfer the management of the free trade zone from Public Authority Industry (PAI) Kuwait Direct Investment Promotion Authority (KDIPA). The new KDIPA also has the authority to manage new free zones such as Abdali and Nuwaiseeb to However; the transfer is not yet final stage.

    The Kuwaiti government, considering the increased investment in the KFTZ has announced to further establish new free zones on five of its islands. As recently quoted by Ministry of Social Affairs and Labor and Ministry of State Department and Planning Affairs that the project will support the Gulf state to expand the industry from the oil sector to international investment. It further aims in offering varied job opportunities to Kuwaiti's citizens and limit the dependency of government funds.

    The project is now in under control of Supreme Council for Planning and Developmentand to the cabinet as a matter of urgency. The government is already in progress of creating a harbor on the Boubyan island which is a multibillion-dollar project with an objective of inviting national and international private companies for financing and executing the free zone operations. The government is under planning to complete the project in 2030 with plans to introduce various incentives to attract foreign investors.

     

    ]]>
    Mon, 14 May 2018 10:43:16 GMT
    <![CDATA[Возникающая роль формы контрактов NEC]]> GOOD FOURTUNE- NEC4

    "It's not the strongest of the species that survive, nor the most intelligent, but the one most responsive to change."

    - Charles Darwin

    Introduction

    Biological evolution has been "creating" lives on this earth for almost three billion years, constantly adapting everything to an ever-changing environment. It is refreshing to see how evolution works and the trick is to change a complex system by using what's already there, and namely to adapt to the change. A similar evolution took place in the engineering and construction industry recently in June 2017, when the New Engineering Contract (the NEC) 4 was released. The "out with the old and in with the new" approach in the engineering and construction industry played a vital role in how to do things differently in these sectors. An evolutionary step was taken by the NEC contract board from its predecessors "NEC3". Regarding its designers, the new generation NEC4 is a  positive development for existing users of NEC3 having a similar base. It will be considered, all over the world as an evolution in the engineering and construction industry. Based on direct feedback from industries, to support methods and provide solutions to client demands, NEC4 reflects changes in law and market practices by introducing new forms of contracts and by emphasizing on collaborative work. Through this article, you will experience the ride of evolution in the NEC world and what significant features the new NEC has to offer.

    Started From the Bottom; Now, We Are Here

    In 1993, the first NEC contract came into existence, written in simple language with the sole aim of stimulating good management. However, two years later the second edition named NEC engineering and construction contract was published with new forms of contract including professional services contracts and adjudicator's contracts along with some short forms and sub-contracts. The 20th century for NEC contracts was a great experience and a decade of extensive international application. Later in 2005, the NEC contract board launched the NEC3 contract suite. NEC3 flooded the market with term service contract, framework contract and later in 2010 with supply contracts. By the end of 2013, NEC3 was updated to 39 documents along with an enhanced set of guiding principles. It was a great success for 12 long years and was endorsed worldwide by several public and private sector undertakings with a track record of delivering timely projects within stipulated budgets.

    With the new era, new demands, new technology and with everything else that's new, it is the time for a new NEC. NEC4 arrived on 22 June 2017 in plain English and in the present tense which can be effortlessly translated and understood by people not speaking English as a first language. It simultaneously recognizes the necessity for contract administration, risk management, and terminology which will enable a flexible industry to manage, procure and deliver collaborative projects.

    What's new?

    NEC4 is an enhanced version of NEC3 or simply an upgrade with some new features and some new forms of contracts. The two most important contracts that have been added to the suite are NEC4 Design, Build and Operate (DBO) Contract and NEC4 Alliance Contract (the ALC). Targeting clients who seek construction, design, operation, and maintenance from a single contractor, DBO is the most suitable form of the contract offering a wide range of services, such as pre and post construction works which include the operation of the asset to achieve the required performance levels or more straightforward facility management. The DBO contract gives the opportunity to the client to procure a more integrated whole-life delivery system.

    On the other hand, ALC, a multi-party contract having a reliance on integrated risks and reward models, is only suitable for clients who are looking for a single collaborative contract by a fully integrated delivery team for large industrial and complex projects. The contract places its basis on achieving client objectives by working together and sharing risks and benefits. The benefit of using ALC is to form a stronger collaboration between all project participants, bound by a common interest and reducing grounds for disputes.

    Dispute Resolution Mechanism

    A new and advanced system of dispute resolution has been introduced by the NEC4, which provides a "Dispute Avoidance Board (the DAB)." It offers an alternative to two-tiered negotiation initially by senior representation followed by adjudication. DAB is most suitable for international projects and where the United Kingdom's Construction Act does not apply. The new option offered by NEC4 stipulates the appointment of DAB before the commencement of the project where the dispute will be referred to DAB before being transferred to adjudication. The procedure is similar to the FIDIC (Fédération Internationale Des Ingénieurs-Conseils)  contract, where either party under the contract can refer the dispute to DAB, whose decision is binding on both the parties. The DAB, however, under NEC4 will itself take the initiative to resolve potential disputes between the parties. The DAB will practically carry out periodic inspections throughout the life of the project to identifying potential disputes. Fostering a collaborative environment which will prevent the crystallization of disputes, is the intention of the makers which is transparent and outright from the wording of the contract.

    Evolution, Not Revolution

    Leaving behind traditional methods of procurement and limited forms of contract, NEC4's suite of contracts is described as an evolution and not a revolution in the engineering and construction industry. Following new features of next generation, NEC4 identifies and adapts to the constantly changing technology and environment:

           i.          Scope of improvement

    The new NEC4 contract contains a special feature for either party to identify the opportunities and to simultaneously improve the outcome of the project. The project manager has the right to accept, reject or request a quotation before making any decision. The contract can instruct for acceleration in works to complete the project prior to the completion date. NEC4 provides a new option allowing the contractor to alter the scope by reducing the cost of an asset over its whole life.

          ii.          Cost

    Cost for professional services, term service, and supply contracts is now defined in the same way as an engineering construction contract (the ECC), providing a common approach to all contracts for a closer integration of participants and in the supply chain.

         iii.          Harmonious system for resolving dispute

    NEC4 has introduced a mandatory requirement for consensual dispute resolution by appointing a senior representative by each party to negotiate the dispute and reach a temporary solution. The Engineering contract offer two options W1 and W2 where option W1 is for projects where UK's Construction Act does not apply, and option W2 where the act applies. The consensual dispute resolution under NEC4 is compulsory under Option W1 whereas, under option W2 only where UK's Housing, Grants, Construction, and Regeneration Act 1996 apply.

        iv.       Payment Mechanism

    The contractor is obliged under the new contract to file an application for periodic assessments and a contractor failing to submit such an application will not receive any payment. If the the payment is due to the client, the project manager will make the necessary assessment and will certify the payment. This approach used to be applicable to short forms of contracts only.

        v.        Building Information Modelling (BIM)

    This is a new option available under the ECC especially used for supporting the use of BIM. The contractor is required to provide an information execution plan either in the contract or within the client's defined time-period. The plan submitted by the contractor must have the ability to satisfy the BIM requirements set out by the client.

        vi.          Confidentiality Clause

    Most of the NEC4 contracts, except for the short ones, include core clauses restricting the disclosure of confidential project information. This clause meets the client's requirements for avoiding the need for additional amendments at a later stage.

    GCC welcoming NEC4

    In 2007, during the construction boom in the UAE's economy, the leading developer Aldar Properties was the first to adopt NEC3 at Al Raha Beach in Abu Dhabi. The Middle East's first experience of NEC contracts is still considered one of the largest contracts ever acknowledged by the Emirates. Similarly, NEC4 will likely to be appreciated worldwide considering the success of its predecessors. Given the predominance of the FIDIC contract worldwide, it will be challenging for NEC contracts to mark their grounds, especially in GCC countries.

    The NEC suite of contracts, unlike FIDIC, is based on principles of good faith, a well-recognized concept under Shariah Law and which enshrines in most of the Gulf countries' legal systems. Adapting takes time, transferring to NEC contracts would be time-consuming but fruitful. Away from all historical adversities, and undertaking projects and works programmes for large groups, NEC4 provides an opportunity for successful outcomes.

      ]]>
    Sat, 30 Dec 2017 03:00:00 GMT
    <![CDATA[UAE Criminal Law and Contradictory Statements]]> Contradictory Statements

    In a bundle of truths, a lie will always be found within.

    Pinocchio told lies, and his nose grew. Unfortunately, liars in the courtroom may only be caught out by the inconsistent statements they make throughout a case. The challenge is for the jury and prosecution to find out the truth, the whole truth and nothing but the truth. The prospect of success in a court case is dependent upon the judge and jury believing the story put forward by the prosecution, beyond a reasonable doubt. To reach this decision, the jury must not doubt that the accused is guilty or not guilty. A combination of the defendant's explanation of events along with any witnesses available to testify is then put forward in front of the court for them to reach a conclusive decision as to whether the defendant is accountable.

    Legality of Contradictory Statements

    In legal terms, a contradictory statement is an incompatibility and clear opposition to two ideas which are the subject of the same proposition. Whether it be the defendant on the stand accused of a crime, providing insufficient information to what has been previously provided or if one or more witnesses reenact the chain of events that occurred, but do not portray a mirrored story, contradictory statements lead to much confusion for the judge and jury.  When a statement made has been contradicted by another in court, the jury is led to believe that all accounts made from that point onwards are false. Any evidence that would seem credible is now unreliable. A contradictory statement made in court signifies that the person making such statement has been untruthful at some point during their account.

    It is a public perception that perjury is a hard crime to prove. In most US jurisdictions, the two-witness rule is used to discover whether the accused has committed such a crime. Under the two-witness rule, it must be proven that the defendant's statements made would be contradicted by at least two witnesses. As above mentioned, the difficulty of proving a defendant has committed perjury amounts from the fact that at common law the accused cannot be convicted of perjury based only on a contradictory statement made unless it is then established by the prosecution that either of the statements made which contradict one another is false. With evidence and witness statements, once the above is proven, a successful prosecution of perjury can be brought against a person.

    The laws in place among global jurisdictions highlight the importance of witnesses, and the accused told the truth under oath in court. It is understandable for a witness that attending court is a daunting experience. The directions given by the court is to make sure that the process for a witness is as comfortable and safe as possible.

    Within court proceedings, it has not been unknown for witnesses to contradict what was originally recorded in their witness statements. As time has elapsed since the statement was written, witnesses have had the opportunity to recollect on the events they saw and question whether what they noted shown the accurate picture. The process of a witness providing the court with their account of the facts first starts with the witness documenting and signing the statement of truth to confirm what they have recorded are to their knowledge the true, accurate events that took place. If a witness is called to the stand and contradicts a statement previously made by themselves or another witness with a similar account, the testimony given is weak, leading the jury to discredit all that they have heard up to this point which may have damaging effects for the defense or prosecution.

    A contradictory statement can result in the accused being convicted of a crime they may not have committed. In the case of E v Joyce, several witnesses had identified the defendant through detailed statements and confirmed they had the correct identity of the person they saw. At the trial, the witnesses stated that they were now not certain whether their identification was correct. The trial judge admitted the earlier statements as evidence of the first identification being the accused. With this, the jury convicted the accused.

    Witness Testimony

    The strength of a witness's statement is paramount to win the case. A contradictory comment, regardless of the effect it may have on proving the defendant's guilt, will be noted.  The single purpose of cross-examination is not only to get the truth from the accused or witnesses but to decipher statements that align, against those that appear suspicious and do not match up with other evidence available to that case.  It cannot be concluded that in every instance of a contradictory statement that the witnesses or the accused is lying. Taking into consideration the complexity of each case, certain questions put forward by the defense and prosecution during cross-examination will be heard or construed differently by the person on the stand under oath.

    A witness is at a greater disadvantage to the lawyer as they approach the stand. The witnesses are not aware of documents they cross-examiner may have which directly impacts on the statement they presented. There is no preparation given to a witness. A statement is made and signed and read out again by the witness in front of the court. It is necessary that witnesses are given recognition for their ability to show their account, regardless of whether they contradict a certain event happening. In these situations, however, the opposing side take it upon themselves to highlight any contradictory statement made regardless of the sincerity behind it, to induce the jury to see that a witness is lying, therefore, their story so far is imperfect.

    The defendant enters the court followed by the misconception by the jury that they are guilty of the crime before they are given the opportunity to defend themselves. Straight contradiction implies to the court that when the accused speaks falsely about a certain point, they are speaking falsely about all points they have raised. Implications arise here as it could be perceived by the jury that the accused is self-incriminating themselves by contradicting earlier statements. Irrespective of whether the story matches other evidence presented and highlights to the jury that the defendant is innocent, a contradictory statement prompts negative reviews from the jury about that person's ability to tell the truth, the whole truth and nothing but the truth.

    Self-contradiction can be brought out by the skills used in cross-examination or from the accused's statements previously made. Statements and evidence used against the defendant create panic and can result in them then self-contradicting points they have made to explain or justify why whatever has been presented does match. As abovementioned throughout the article, contradictory statements signify to the jury who is possibly telling the truth and who is lying allowing them to reach a valid conclusion based on what they have heard on whether the accused is guilty or not.

    It seems that a contradictory statement can easily be made in court and will damage the credibility of the information put forward by the accused or the witnesses. Unfortunately, the jury does not take these statements lightly which may result in serious impacts to the case. As abovementioned in the legal definition of a contradictory statement, the information provided by the defendant or witnesses must be inconsistent with previous. The wording of inconsistent rather the use of different provides uncertainty as a mere mistake made of such an exact time something happened or the exact coloring of clothing the defendant was wearing may only be a slightly variable to what evidence or other statements display.

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    Thu, 07 Dec 2017 06:37:00 GMT
    <![CDATA[Demurrage Payments in Kuwait]]> Demurrage Payments in Kuwait

    What is the mindset of an entrepreneur looking to dip his toes in a new venture? Profits? Maybe, certainty? Certainty is a factor that all entrepreneurs look for in a business opportunity. However, certainty is also the factor that is least available to them; primarily, if they are dealing in a speculative industry such as share market, or perhaps, the maritime sector. When a shipowner charters his vessel out, he should consider numerous uncertain factors that may cause obstacles in the future, like when the lay days commence and end, when the bill of lading will come into effect, when freight or hire becomes due and so on. Often the underlying facts of a breach in the maritime industry do not correlate to the obligations and liabilities of the parties as set out in the governing bill of lading and this uncertainty leads to disputes.

    The Bill of Lading

    During long-distance transportation, damage to the goods is inevitable due to various factors like transit through different climate zones. And varied weather conditions at sea. Therefore, the shipper, carrier, and consignee enter into a bill of lading which lays down the description of the cargo and clarifies the obligation of the parties in case of any uncertain events. It also states the particular condition of demurrage. This requirement specifies which of the parties shall be liable in the event of fault or negligence or if the empty container does not return within the period agreed upon between the parties.

    The Role of  Bill of Lading

    Unfortunately, as mentioned above, damages and delays are likely to occur in long-distance transportation. In the case of any dispute, the settled terms and conditions of the bill of lading shall be used to clarify the obligations of the parties. In this article, we will explain the provisions regarding demurrage payments and bill of lading in Kuwait.

    The Kuwaiti Law Number 28 of 1980 enacting the Law of Merchant Shipping (the Maritime Law) has laid down the provisions surrounding shipping law in Kuwait. The Law has stated that the bill of lading shall be in writing and shall indicate the following  functions:

    the bill of lading shall act as evidence in contracts for sea transport. A clause regarding the liability of the parties in the bill of lading should state the obligation of the parties once the goods have been loaded.

    The correct and comprehensive description of the entire cargo should be mentioned in the bill of lading.

    Any evidence regarding the contract that the parties want to state in the bill of lading.

    Further, Kuwait has ratified to the Brussels Treaty of 1924 (for the Unification of Certain Special Rules of Bills of Lading) (the Hague Rule or the Haag Rules). Therefore, this Hague or Haag rules are therefore applicable under the Law of Kuwait and in common practice.

    Paying Demurrage

    Determining which party would bear the responsibility of paying the demurrage fee in case of delay of an empty container is an issue layered with uncertainty. To understand the idea of this the concept of demurrage, one has to be aware of the facts of the matter.

    At the outset, the shipper commences the transportation by providing the shipping order to the carrier for a specific agreed destination. Therefore, the shipper is defined as the initiator of the trip, the ignition plug of the transport engine of worldwide transportation. The next step, as per Article 176 of the Maritime Law, the party, named as the carrier shall issue a bill of lading with the information provided by the shipper by including any details to the consignee. The carrier is the party transporting the goods on the shipping vessel. Sometimes, even the shipper can be held liable to pay the entire demurrage fees, if the consignee will not appear at the port to pay the necessary fees. This is not a usual practice, but our team of maritime lawyers noticed this on many occasions.

    Article 179 (ii) of the Maritime Law states that 'the shipper would be responsible before the carrier for compensating for detriment resulting from the inaccuracy of the submitted information in respect of the commodities. The carrier, may not adhere to the inaccuracy of the information stated in the bill of lading before anyone other than the shipper.' Further, Article 4.3 of the Hague (Haag) Rules states that 'the shipper will not be liable for any loss or damage sustained by the carrier or the ship arising or resulting from any cause without the act, fault or neglect of the shipper, his agents or his servants.' Consequently, the entire process of transfer is mentioned in the shipping order.

    As a result, the shipper can be held liable to pay the damages of the carrier, which arise due to misinformation about the shipper's consignment or any fault or negligent behavior of a person, that operates under the shipper's authority. Therefore, following this principle, the shipper will also be held liable for any misinformation about the consignee at the port of destination.

    Demurrage Paid by the Consignee

    The last party named in a bill of lading is the consignee. In the chain of transport, the consignee at the port of destination will organize and fulfill the procedures to deliver the goods. Depending on the agreement between the parties, the consignee may have agreed on the delivery order from the carrier, which means that he has to return the empty containers to the carrier or keep the cargo inside the container to use it as a mobile warehouse if he has explicit consent. In both cases, the container itself will affect the other parties financially. Article 175 (ii) of the Maritime Law states that the conditions of the bill of lading become valid for the consignee, who has agreed to the terms of the bill of lading once the consignee comes in contact with the carrier.

    The consignee in contact with the carrier or the agent and receives the delivery order will, therefore, be liable fo demurrage fees in the case of delay in returning the empty containers or does not follow the agreed procedure of delivering goods transported inside the containers.

    Conclusion

    From our experience, parties in the international shipping market should not only rely on the stated article clauses but consult legal professionals to formulate contracts, which may fit the parties expectations. The dynamicity and the uncertainty of the shipping industry deem it difficult for parties to comprehend the future hindrances that may arise during the bill of lading. Further, the document(s) including the bill of lading should be read thoroughly as any minor mistake could lead to serious, expensive problems in the future.

     

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    Mon, 30 Oct 2017 00:00:00 GMT
    <![CDATA[Скорейшее уголовное правосудие в Дубае]]> Speedy Criminal Justice in Dubai

    William E. Gladstone once said in a public gathering that 'justice delayed is justice denied.' But neither the person nor the concept was new to the anxious crowd. Regarding the person, Mr. Gladstone has served as the Prime Minister of United Kingdom more times than any anyone else. And regarding the phrase, the cumbersome process and delay in obtaining judgments have been an age-old issue in the litigation arena. Both the former and the latter had an enduring effect on the minds of the crowd present at that gathering.

    Since we all know the reason of the former, let's try and understand the importance of the term 'justice delayed is justice denied.' It is not because courts do not provide equitable judgments or fail to exercise its authority to implement the rights of the people. But it is due to the time taken by the courts to pronounce these equitable judgments to enforce the rights of the citizens. Therefore, even a fair and just decision from the court may deny a party of his right due to the procedural delay in adjudication.

    A unique characteristic of the law is its ability to be general as well as abstract. Hence, the law applies to everyone without any discrimination and therefore, in legal proceedings that require the separation of the case there is no difference between a case and another unless within the law. However, the adverse effects of lengthy and multiple litigation proceedings on the status quo of the matter(s) in both civil and criminal cases are common knowledge to us.

    Criminal proceedings are extremely sensitive and affect the accused also since their freedom to travel is curtailed at the time of initiating the legal proceedings. This procedure is acceptable in certain crimes that require custody of the accused until the end of the trial, but in other minor offenses and fines, the effect of such action may be more significant than the punishment itself.

    In some cases, the accused confesses and does not need to undergo trial sessions, investigations, and other criminal proceedings for research and trial because of the simplicity of the act and the clarity of the case and its confirmation. Therefore, most of the legislation aimed at establishing a system of speedy trial for previous considerations and eliminate the punishment of the accused in minor crimes, by limiting their sanctions to fines.

    Such speedy trials are achieved through criminal orders which are drafted to ease the procedures and reduce the time taken for adjudication. Therefore, the accused is not mandated to be present for the investigation procedures and pleadings in front of the judiciary if they have confessed to the charge filed against them. Some of the countries that use criminal orders are France, Italy, Sweden, Germany, while Arabic nations are Egypt, Jordan, Syria, Iraq, Algeria, Morocco, and some Gulf countries such as Qatar, Kuwait, Oman, and Bahrain.

    What is a Criminal Order?

    A criminal order is a judicial order issued by the body specified under the law (Public Prosecution - Judge) to impose a penalty of fine on the accused of an offense, generally without following the standard prolonged procedures of final investigations and pleading. However, the UAE Federal Code of Criminal Procedure does not contain an explicit definition regarding the system of criminal orders. Therefore, in this article, we have tried to elucidate the provisions regarding criminal orders in the Emirate of Dubai.

    Following the above, the Emirate of Dubai issued Decree Number 1 of 2017 (the Law) on 30 January 2017 and published in the Official Gazette on 16 February 2017 to be implemented three (3) months after the date of its publication. The criminal order is defined in the Law as 'a judicial decision issued by the member of the Public Prosecution to determine the subject of the criminal case with a fine without referring it to the competent court.' This confers the office of the Public Prosecution with substantial authority since they are entitled to issue orders without the consent of the competent courts, who would otherwise adjudicate that particular matter. In Dubai, only the Public Prosecution has the authority to issue criminal orders, unlike some countries such as Egypt (where the order may be issued by the Public Prosecution or Judge) or Bahrain (where the judge issues the order at the request of the public prosecution).

    Objective

    The Law aims to accomplish the following objectives with the view of expediting trivial matters:-

  • ensure that the criminal action is expeditiously resolved, without prejudice to fair trial guarantees;
  • reduce the burden on the courts and reducing the number of criminal cases referred to it; and
  • respond to the process of simplifying litigation procedures and reduce time, effort and expenses of the parties in criminal matters.
  • Scope of the Law

    The scope of the Law is limited to trivial offenses such as misdemeanors and other offenses laid down by the legislative authorities from time to time. Therefore, the degree of sanctions under this Law is also considerably minor. The Law has imposed the following penalties on convicted parties in a case:

     

  • Fine(s); and
  • 'Imprisonment and fine' that the Attorney General shall determine, in a decision to be issued in this regard, on cases of misdemeanors and other offenses under the provisions of the Law. However, the provisions of this Law does not apply to the offenses of juvenile delinquents and displaced persons.
  • Under the Law, the Public Prosecution of the Emirate of Dubai may, issue a penal order against a person guilty of committing a crime by imposing a fine prescribed by law, provided this penalty does not exceed half of the maximum limit mentioned under the respective statute. The following illustration will provide more clarity in regard to the penalties: Suppose 'A' is convicted of violating Article 378 of the Penal Code that states that, 'Whoever publish(es) news, pictures or comments related to the secrets of private (or family life) of persons even if they are true, shall be punished by detention for a period not exceeding one year and by a fine not exceeding UAE Dirhams ten thousand (AED 10,000), or by one of these two penalties.' Therefore, in this case, the Public Prosecution may impose 'A' with a fine of UAE Dirhams five thousand (AED 5,000).

    The Law states that the criminal order should contain all the relevant information regarding the case, the date when the order was issued, the name of the accused, the applicable legal text and the name of the prosecutor who issued the order and its degree. Further, the Public Prosecutor may pass the order and declare the accused even in the absence of the latter. However, in all cases, the accused must be reported by the means determined by the Attorney-General in this regard.

    Can a Party Appeal to a Criminal Order?

    Parties who are aggrieved by a criminal order may file an appeal against it. However, an appeal may not lie against a criminal order in the following cases:

     

  • If the accused has not submitted an appeal (whether in person or through his appointed criminal lawyers in Dubai) within seven (7) days from the date of issuance of the order, provided the order was passed in the presence of the accused; or from the time of declaration if the defendant was not present when the order was passed.
  • if the convict pays the penalty imposed on him.
  • However, if it the objection (or appeal) is raised by the accused, on it is considered as if it didn't happen and he will continue to face the criminal proceedings in ordinary ways.

    Acting toward preserving the rights of the victim, and the compatibility between the time of issuing the criminal order and the dismissal of the civil dispute, the law further stipulates that claiming the civil right does not prevent issuing the criminal order. The penal order shall be executed by the rules prescribed in Federal Law No. (35) of 1992, and the Attorney General of the Emirate of Dubai shall issue the necessary decisions for the implementation of the provisions of this Law.

    In our view of this Law, we find that it has come to achieve its goal which is the rapid dismissal of misdemeanors and minor offenses determined by the Attorney General, a system widely established in most countries, which we hope will become implemented throughout the UAE.

     

     

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    Thu, 19 Oct 2017 12:00:00 GMT
    <![CDATA[New Copyright Laws in Kuwait]]> New Copyright Law in Kuwait

    Creativity is the work of art stimulated by the human mind. Every song ever listened to, every movie ever watched and every article ever read (irrespective of the level of creativity) is the work of art of a lyricist, screenwriter, and an author, respectively. Although intangible, creativity shares a similarity with other tangible assets due to its capacity to generate revenue. Therefore, like every asset with an underlying value, the output of a lyricist, screenwriter, and an author is also capable of being appropriated without authorization or consent from its owner. Further, the efficiency of a state's intellectual property laws also underlines the level at which they intend to promote artistic works, inventions, corporate structures, industrial designs and everything else that could create an identity while generating revenue. Hence, legislators take utmost care and exercise diligence while drafting intellectual property legislation(s).

    From a global purview regarding the copyright right law of Kuwait, the country is a member of the World Intellectual Property Organisation (WIPO), the Arab Convention for the Protection of Authors Rights and the Berne Convention for Protection of Literary and Arbitrary Works[i] (the Berne Convention). The Berne Convention was one of the first pieces of international legislation that took copyrights into account. Article 1 of the Berne Convention states that the same was ratified for a 'Union for the protection of the rights of authors in their literary and artistic works' for the countries to which it applies. Further, Article 2 elucidates the types of work that the Berne Convention seeks to protect. The Berne Convention has been considered as a primary international standard for legislators while drafting domestic copyright statutes.

    A Significant Overhaul

    Formerly, Law Number 64 of 1999 concerning Intellectual Property Rights[ii] (the Old Law) was the primary piece of legislation to govern copyrights in Kuwait. However, the ambiguities and procedural issues of the Old Law along with the economic progression of globalization gave rise to the need to implement a more structured and elaborate law to protect copyrights in Kuwait. Therefore, Law Number 22 of 2016 concerning Copyrights and Related Rights (the New Law) repealed the Old Law recently. Many suggest that this legislation is a response from Kuwait to the United States Trade Representative (USTR) concerns regarding an inefficient intellectual property law in the country. Therefore, the USTR put Kuwait on its watch list, unless the state came up with international standards and improved its enforcement mechanism of intellectual property rights.

    Hence, the New Law has extensive provisions increased the duration of protection to the author's lifespan and fifty years after their death. It is crucial to note that after this period, the work of the author will enter the public domain and its copyright protection will not be applicable after that.

    The work of an author assumes moral and economic rights under the New Law. The economic rights lead the author to benefit from the financial aspects of their work being used by others and moral rights give the authors the control to preserve their connection with their literary or artistic work. The New Law has provided for an extensive procedure beyond the requirement of any other copyright law in general. However, both, the Old Law and the New Law do not explicitly confine economic rights to particular activities as they are generic, and broadly state that the authority to give permission and prohibit the use and exploitation of their work rests with the author itself.

    The New Law

    Article 3 of the New Law states the different kinds of works that can confer protection under the statute and Article 4 laid down certain circumstances and situations where the legislation would not be applicable such as principles, intangible ideas, texts of laws, judicial decisions, court rulings, and news among other things.

    The New Law applies to both nationals of Kuwait and foreigners as well as authors who publish (or register) their works for the first time in Kuwait. The provisions of the New Law are also applicable to the citizens of WIPO member states. The legislation a vast ambit of jurisdiction as it also applies to countries who present Kuwaiti nationals with reciprocal rights.

    The New Law has also rendered that all the provisions of the Old Law that are contrary to the current legislation would be void. However, both the legislations also have substantial similarity to adhere to international intellectual property standards. For instance, article 2 of the Old Law confers protection to computer literary works such as databases and computer software. Whereas, Article 3 (11) of the New Law is a similar provision which provides that computer software(s) with copyright protection and is in conformity with the international standards of WIPO. However, certain other international conventions such as the Berne Convention has failed to provide computer programs including digital databases and software with copyright protection.

    Neighbouring and Related Rights

    Neighboring or related rights are granted to guard the legal interests of broadcasting organizations, performers, and producers. In other words, it is regarding persons and legal entities that provide the public with access to literary or artistic works.

    However, the protection of related rights to individual beneficiaries is limited by some exceptions. The New Law permits the use of content for specific purposes, such as reporting, private use or scientific research and teaching. Due to these exceptions, while protecting the creativity and idea of the authors, the general public's interest has also been addressed by the legislators. Article 16 to article 20 of the New Law details the related rights and provisions that apply to performance artists, sound record producers, and broadcasting organizations.

    Major Procedural Changes

    The New Law has provided the National Library of Kuwait (the National Library) with authority to ensure the implementation of the statute. This is a novel and different concept in the traditional intellectual property laws of Kuwait. Previously, the Ministry of Information was the competent authority to enforce such legislation in the country. However, Article 36 of the New Law has stated that after being designated by a competent minister, the staff of the National Library is granted the prerogative to monitor and inspect the enforcement of the legislation by examining and reviewing the printing press, libraries, and public houses. The provision further states that the facilities of the above entities may be temporarily or permanently (in a case of repeated violations) closed if and when any of they violate the New Law.

    Although this legislation gives substantial power and authority to the National Library, the exclusive authority for investigation on these matters rest with the Public Prosecution. In this regard, article 40 states that the public prosecution would be responsible for the prosecution of all violations of the New Law. Further, violators may also face imprisonment of six (6) months to two (2) years and a penalty ranging from Kuwaiti Dinars five hundred (KD 500) to Kuwaiti dinars fifty thousand (KD 50,000) in the case of an infringement of a financial or moral copyright. This requires the National Library staff to notify the Public Prosecution when there might be a possibility of infringement to initiate the investigation and legal proceedings in the matter.

    Conclusion

    Today, copyright legislation is of vital importance since it protects and encourages the innovative and creative works and ideas of the authors. The New Law is expected to reform the domestic copyright laws of the country to international standards laid down by various organizations such as the WIPO. Therefore, corporate entities and individual authors should ensure their compliance with the New Law while dealing with copyrighted information in Kuwait.


    [i]Signed in 1886.

    [ii] Came into effect on January 9, 2000.

     

    ]]>
    Sun, 15 Oct 2017 00:00:00 GMT
    <![CDATA[Закон о банковском деле ОАЭ под исламской точки зрения]]> Boarding Complete: An Islamic Rendering

    Part II of IIIn our previous issue, we discussed the Shariah principles of ijara, simple ijara, ijara wa iqtina, ijara mawsufa fi al dimmah, istisna'a, and how ijara and mawsufa fi al dimmah work. Our attorney's had detailed the different types of leasing provided by Shariah law. But there is more yet to come. This Part II of the article gives a detailed description of sukuk, murabaha, mudarabah, and how financial leasing applies to the leasing of aircrafts.

    What may be surprising from a Western perspective is the ingenuity and reliance on Islamic principles such as those detailed previously and below regarding financial leasing. The ban of levying interest is an intricate art of financing which questions the very business nature of forward-thinking financial institutes and other entities dealing with financial matters. So, continue reading to understand further the principles ascribed by Shariah law and their implementation.

    Sukuk

    Sukuk is a form of an asset-backed trust certificate (bond) which is issued to the investor as evidence of ownership of an asset or part ownership or its usufruct (earnings) based on the principles of Shariah. Sukuk differs from conventional bonds regarding asset ownership, investment criteria, issue price and unit, investment rewards and risks, and effects and cost. Unlike conventional bonds which can be issued without underlying assets, Sukuk is always issued upon underlying tangible asset either in ownership or an underlying master lease agreement, Sukuk Al-ijara. Accordingly, the Sukuk represents a share in an underlying asset whereas an ordinary bond accounts for a share of the debt. The conventional bondholder may get a principal amount upon bond maturity or coupon payment while Sukuk investors acquire shares of profits from an underlying asset. The Sukuk can be tradable or nontradable. The types of Sukuk certificates are based on al salam, murabaha, muskarakah, mudarabah, and ijarah.

    Typically Sukuk Al-ijara is commonly used for aircraft financing. In this type of transaction, a special purpose vehicle (SPV) will purchase the asset and lease it ultimately to end-user who wanted to use the asset under structured arrangements. An  SPV will issue Sukuk certificate under note issuance facility to entitle the holder of Sukuk an ownership and right to receive a proportion of rental payment. The particular transaction is provided below under the heading 'how does Islamic financial leasing work for aircraft leasing.

    Murabaha

    The Murabaha is simple but extensively used as a buy and sell technique also known as cost-plus financing. In a Murabaha transaction, the client seeks to finance from a financial institution. The seller in this transaction is obligated to disclose to the buyer or the client the cost price of the asset. Typically, the client approaches the financier for funding the purchase of the asset; the financier will purchase the asset and take the necessary title either directly or through an agent and may use it's own fund or fund invested by investors. The financier discloses cost as well as the profit margin for financing to its client. The financier then sells such asset to a client with a cost and a profit margin disclosed. The client can make deferred payment terms. Some schools questions this type of transaction, but it remains acceptable by most schools because by purchasing the asset the financier assumes the risk attached to the asset and therefore such a risk entitles the financier to profit while selling.  As a fixed price is typically set at the start of the transaction the client has no influences as to variations in the base lending rate and the transaction is not affected by gharar.

    The following example will make clear the process of such a transaction. The financier and bank enter into a Murabaha agreement with the client, later the client is appointed as an agent to purchase goods on the financier's behalf, and the financier will disburse such money to the client for the purchase of goods. The client takes possession in the name of the financier. Therefore, transfer of the risk to the financier as an owner takes place. Upon purchase, the client will offer to purchase and upon acceptance of such offer the sale concludes with a transfer of title.

    Mudarabah

    It is a profit sharing and trust financing technique wherein many investors pool their funds together and become shareholders in major financial projects. This transaction is a form of partnership by an equity type investment wherein one partner provides capital (rabb ul amal), one that is commonly the beneficial owner, the other party manages the investment and is responsible for operations and the management of the business (Mudarib). The financier acts as Mudarib and finances large projects on behalf of investors. The financier may put its funds or act on behalf of depositors with the financier serving as a trustee for the investors and thereby assumes fiduciary responsibilities. Alternatively, the financier can provide funds to the client who acts as Mudarib. The partners acting as investors and the one managing the business must distribute the profits by a fixed and pre-determined ratio. In case a financier acts on behalf of depositor-investors, the fixed financier's share is from the revenue generated who in turn pays its depositors all the profits received after deducting its fees.

    The losses and profits under Mudarabah are born due to an investor (rabb ul-amal). Accordingly, the loss is carried by investor unless negligence, misconduct can be attributed to, or any terms of the contract that are breached by, the Mudarib. Any assets acquired by Mudarib are in possession of investor and managed by Mudarib on behalf of investor's. Financiers utilize the Mudarabah funds for further Islamic transactions such as Murabaha, ijara'a, or Istisna'a, etc.

    How does Islamic financial leasing work for aircraft finance?

    After the global financial crisis in 2007 – 08 the use of Sukuk as alternate funding source was used by aviation sector. UAE was the largest Sukuk market in the middle east in 2011 with 69% of Sukuk issuance in logistics and real estate market which was overtaken by Kingdom of Saudi Arabia (KSA) in 2012 according to Zawya reports.  However, the International AirFinance Corp's launch of a US Dollars 5 billion Shariah-compliant aircraft leasing fund represented the first time exclusive utilization of an Islamic finance structure for their aircraft financial leasing operations. Further, Dubai Islamic Bank (DIB) and Air Arabia announced the signing of an aircraft financing deal in November 2014 to facilitate the delivery of six new Airbus A320 aircraft's in 2015. Increasingly, the Islamic aircraft lease financing is in use by international airlines including, Etihad Airlines, Saudi Arabian Airlines, Air Arabia, Emirates, Malaysian Airlines, Turkish Airlines and by some of the world's largest aircraft leasing companies. Air Arabia has received a total of 29 of the 44 A320 aircraft's it ordered from Airbus in 2007 though the use of Islamic financing arrangement with DIB.

    We will now consider the Islamic structure of ijara being used in practice. The Sukuk al-ijara is most commonly used technique for aircraft leasing. In this transaction, the owner (lessor) assigns the right to use aircraft to an airline company (lessee) for a pre-determined monthly rental payment. The operation is not simple as it seems by the statement above hence it will be explained with the examples as employed below:

    I.  The airline company wishes to purchase an aircraft and plans to raise finance through the issuance of Sukuk. Identification of the seller or supplier of the aircraft occurs, and negotiations are entered into and finalized between the seller and airline company. Next, an SPV is created by the airline company as a separate company or such structure as deemed fit, which is 100 %, i.e., entirely owned by the airline company. (The rationale behind creating an SPV to purchase the asset is that airline companies often prefer to keep their fleet new and cannot afford to continue the purchase of new aircraft as per the changes in new technologies that are entering the market due to innovations of leading aircraft manufacturers.) The SPV will then issue Sukuk certificates and receive the proceeds which are used to purchase new aircraft from the manufacturer or seller. Now the SPV will hold the aircraft as a trustee for the investors and will lease the aircraft to the airline company under the ijara arrangement. Later as per the ijara arrangement between the airline's company and SPV, the airline's company will pay rentals to SPV for tenure and amount matching the Sukuk coupon's amount and tenure. The SPV will then pay investors through a semi-annual coupon distribution of value. Airline companies may grant irrevocable purchase undertakings to buy the aircraft on the maturity of Sukuk. Upon maturity, the SPV redeems the trust certificate for investors at the dissolution of the SPV. The SPV will receive the purchase price from the airline company at dissolution. The purchase price given by the airline company will be the initial purchase price of aircraft plus service or managing fees. The aircraft is transferred to the airline company upon payment to SPV/Sukuk holder.

    II.  The other option that can be used by airline companies is that they may purchase the aircraft and sell it to SPV which will lease it back to the airline company. This transaction is called sale and leaseback.  In any of the above scenarios, the SPV will act as a trustee for Sukuk holder after issuing Sukuk certificates. SPV will hold the aircraft as an asset in its balance sheet or place the asset in trust. Again the same process of receiving proceeds from investors and paying investors proceeds from lease amount proportional to their share and ownership in the asset will follow.

    III.  Usually, in the above scenarios, the lessor, i.e., SPV under such Islamic transaction being the owner of the aircraft remains liable for ownership taxes, if any, major maintenance and hull and equipment insurance. However, in practice should neither the lessor nor airline company wish such responsibilities to be taken upon by the lessor. Therefore, the lessor will appoint the airline company as service agent and thereby repay the service agent (airline company) these costs. Ordinarily, these repayment obligations endured by the lessor will be paid pack to the lessor by the airline company in the form of extra rent to set off. Therefore, the liability passes to the lessee but in Shariah compliant ways.

    IV.  In case, the financier such as a bank or financial institute is financing the aircraft they would prefer acting as an investor (rabb ul amal) and enter into mudarabah with the SPV (mudarib) who will be an investment manager. Under this mudarabah, the financier will pass their funds to mudarib for its use in agreement with the investment strategy. The mudarib (SPV in this case) will hold a small proportional interest in profits and will not be responsible for any losses except such losses which are caused by its negligence, misconduct or fault.

    The Airfinance Journal examines the financial structures of global airlines and rewards the best financing structures in different categories. The case study of some award winning deals will make clear to the readers the practical implementation of Islamic financial leasing transactions.

    In 2008, the transaction between Etihad and Al Hilal Bank, Abu Dhabi (the Bank) won Airfinance's Award for Journal Middle East Deal of the Year in 2008 for financing structure of an Airbus A340-600 for Etihad. The transaction documents involved were ijara and mudarabah. The Islamic financier appointed a Bank as an investment agent by entering into Investment Agency Agreement. The Bank as an investment agent entered into a mudarabah agreement with the SPV. This SPV was a Cayman Islands company. The Bank was acting as an investor (on behalf of Islamic financier as investment agent) hence it was rabb ul-amal, and SPV was mudarib. Under this investment strategy, the SPV acquired the Airbus and then leased it to Etihad by use of the funds given by the Bank as an investor. The Bank as an investment agent entered into an administrative agency agreement with the SPV and SPV appointed the Bank as an agent of mudarib for performing certain actions. The proceeds received by SPV, as the mudarib, with a small deduction in a percentage of profits were payable to the Investment Agent i.e. the Bank under the mudaraba agreement. Distribution of the profits received by the Bank to the Islamic financiers will take place under the Investment Agency Agreement.

    The SPV also entered into ijara with Etihad and appointed Etihad as its service agent.  The lease payable by Etihad included fixed rents, variable rent and an extra sum to set off the reimbursements obligations owned by SPV as lessor, to Etihad as the service agent.

    Another recent example of exceptionally innovative financing structure was carried out by Emirates known as Emirates ECA Sukuk. This is first ever Export Credit Agency (ECA) backed Sukuk transaction. In this deal, the Khadrawy Limited (Cayman Islands) incorporated SPV issued certificates, which comprised US Dollars 913 million Sukuk due in 2025. The Sukuk has ten-year tenor and were listed on London Stock Exchange and NASDAQ Dubai. The proceeds of this Sukuk have used for pre-funding the aircraft financing of four Airbus A380-800 aircraft. The pre-funding issues were managed by an innovative combination of ijara and manfa'a (sale of the right to use the asset for a pre-determined period) wherein the tangibility of aircraft during the pre-funding period was overcome by usufruct represented by tone kilometers.

    Conclusion

    The deals in Islamic financial structures have not only garnered the attention of Muslim states but have also earned appreciation from Western countries, countries in Europe, Asia and other parts of the world, who are actively exploring the Shariah ways of investments and financing. The appreciation of Shariah principles has explored further ways of addressing the concerns of the conventional financing industry and sponsors. Our GCC based firms will be happy to structure and assist you with your ventures for explorations into Islamic financing transactions.

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    Mon, 25 Sep 2017 03:00:00 GMT
    <![CDATA[Дипломатия и Международный Суд ООН: Анализ]]> Дипломатия и Международный Суд ООН: Анализ

    (Часть I из II)

    «Мир стоит дорого. И его цена – дипломатия. Мы все можем догадываться, кто платит эту цену, но иногда не можем  себе представить ее размер.»

    Отдел международных отношений, юридическая компания STA.

    Древнейшее свидетельство дипломатических отношений относится к 1259 году до нашей эры, это были отношения между фараонами Египта и правителями Хеттской империи (частью современной Турции). Египетско-хеттский мирный договор является свидетельством древнего дипломатического соглашения, разработанного для прекращения войны между двумя государствами под юрисдикцией восточного Средиземноморья. Договор был результатом войны в городе Кадеш, развязанной из-за попытки вторжения египетских воинов для получения контроля над землями. Однако могучая хеттская армия сопротивлялась нападению, и две империи сражались долгие годы. Признав, что перо сильнее меча, посредники (сегодняшние дипломаты) обоих государств начали переговоры о возможности заключения мира. Таким образом, первый мировой дипломатический договор вступил в силу между государствами даже без личной встречи обоих монархов. Спустя века страны по-прежнему используют посредников (дипломатов) для ведения переговоров и заключения договоров с целью обеспечения мира.

    Поэтому многие страны ратифицировали Венскую Конвенцию о Дипломатических Отношениях 1961 года (Договор о Дипломатических Отношениях) и Венскую Конвенцию о Консульских Отношениях 1963 года (Договор о Консульских Отношениях) в целях обеспечения данными посредниками более высокого уровня защиты при ведении переговоров с другими странами. С тем же намерением (обеспечение мира), Организация Объединенных Наций учредила в 1945 году Международный Суд (МС) для решения правовых вопросов между государствами современного мира. Но с течением времени как Договор, так и Международный Суд столкнулись с определенными трудностями в отношении их преобладания над внутренним законодательством и юрисдикции последнего.

    Вокруг Света 

    Мировые войны и последовавшая за ними холодная война научили правительства всего мира вопросам о войне и дипломатии больше, чем когда-либо прежде. Да, я упоминаю войну и дипломатию в одном контексте. Хотя государства использовали свои методы дипломатии как средства для прекращения конфликта (-ов) с 1259 года до н.э., они склонны воспринимать дипломатию других стран как оружие для получения преимуществ. Но позволяет ли это им реализовывать свое внутреннее законодательство в отношении иностранных дипломатов? Хотелось бы надеяться, что читатель к концу статьи сможет сформировать собственное непредвзятое мнение по данному риторическому вопросу.

    В 1979 году посольство Соединенных Штатов (США) в Тегеране, Иран, подверглось нападению со стороны вооруженной толпы иранцев, которая задержала дипломатов и захватила офисы дипломатического представительства. Впоследствии Государственный Департамент США возбудил судебные иски против Исламской Республики Иран в Международном Суде. Основными утверждениями США в данном случае было то, что Иран нарушил договор о дипломатических отношениях, и что правительство Ирана было обязано обеспечить освобождение всех задержанных граждан США. Кроме того, поддержка, оказанная правительством Ирана обвиняемым боевикам, также была тщательно изучена в связи с неспособностью последнего обеспечить безопасность дипломатической миссии США и ее дипломатам.  

    Тщательно изучив рассматриваемые вопросы, суд постановил, что: (i) Иран явно нарушает свои обязательства перед США; (ii) Иран несет ответственность за эти нарушения; (iii) правительство Ирана должно освободить граждан США, которые содержатся под стражей и передать руководство посольством США защищающей стороне; (iv) Американские дипломаты и работники посольства не должны подвергаться судебному разбирательству в Иране; и (v) Иран должен выплатить компенсацию США в отношении причиненных травм и ущерба. Этот вопрос находился в центре глобального внимания, главным образом, из-за двух (2) причин: (i) более шестидесяти (60) американских дипломатов были незаконно задержаны боевиками более, чем на 444 дня; и (ii) Иранское правительство (которое обязано защищать посольство) даже не подавало заявление в Международный Суд.

    Как видно из вышеприведенного случая, страны часто готовы нанести ответный удар странам относительно возникающих между ними вопросов путем использования внутреннего законодательства или путем неспособности защитить граждан, назначенных нести дипломатическую миссию.

    Следовательно, основной вопрос, который возникает в этом отношении, касается  действительности международного публичного права над внутренним режимом государства. И в частности, степень власти, которую государство может осуществлять над дипломатами или консульскими учреждениями иностранного государства, находящимися на официальном посту государства. Однако национальные суды несут ответственность за преследование тех, кто нарушает эти международные нормы. Следовательно, конфликт интересов может возникнуть между страной (которая стремится обеспечить соблюдение своих внутренних законов для дипломата) и международным сообществом, поскольку международное общее право предусматривает соблюдение этих законов национальными судами государств. Хотя данная платформа (местные суды) зачастую пренебрегают международными законами и не преследуют в судебном порядке тех, кто нарушает международные законы или права человека, ответчиком(-ами) в этих случаях являются правительства самих государств. Поэтому очевидно, что эти внутренние суды могут применять свои местные законы, чтобы избежать юрисдикции международного права, находя лазейку и отвергая применение международного права.

    Однако, официальные дипломаты – это не единственные стороны, имеющие такой уровень защиты. Поскольку, если бы это было так, то правительству было бы разрешено осуществлять любую форму необоснованной юрисдикции в отношении иностранного гражданина, который находится в их юрисдикции. В этой связи дело «Диалло» стало знаковым постановлением Международного Суда относительно масштабов дипломатического иммунитета, который может быть предоставлен не-дипломатам и консульским работникам. В данном случае господин Ахмаду Садио Диалло являлся гражданином Гвинеи и был совладельцем общества с ограниченной ответственностью (Компании) в Демократической Республике Конго (Конго). В 1980-х годах Компания инициировала судебные иски против различных местных государственных и частных компаний, которые в ходе своей деятельности задолжали Компании значительные суммы денег. Однако через несколько лет Правительство Заира приговорило г-на Диалло к депортации из страны с связи с нарушениями в экономических, финансовых и денежных секторах. После этого он был арестован и задержан властями в течение шестидесяти шести дней (без надлежащей правовой процедуры) до депортации в Гвинею. Кроме того, правительство Конго присвоило имущество г-на Диалло и отказало ему в будущих въездах в страну (что является не подлежащим обжалованию постановлением в законодательстве Конго).

    Впоследствии пострадавший г-н Диалло сообщил о произошедшем  гвинейским властям, которые позднее возбудили иски против Конго, поскольку государства обладают дискреционным правом защищать своих граждан от необоснованного нападения в зарубежных странах, предоставляя им дипломатическую защиту. Поэтому представители Гвинейской Республики возбудили в Международном Суде иск против Конго. Это в глобальном масштабе усугубило уже существующий вопрос о распространении средств дипломатической защиты на физических и юридических лиц, как видно из постановления Международного Суда по делу «Барселона Тракшн». Гвинея утверждала, что г-ну Диалло следует предоставить дипломатическую защиту, заявив, что он: (i) лицо, которое было жертвой задержания и неоправданной депортации; (ii) акционером компании, имеющим право защищать свои интересы; (iii) акционером и менеджером, обязанным защищать права компании. Республика Гвинея потребовала возмещения всех убытков, понесенных г-ном Диалло и Гвинеей. Однако ответчики выступили с заявлением, что Республика Гвинея не может наделить г-на Диалло дипломатическим иммунитетом, поскольку компании не были созданы в Гвинее. Они также заявили, что г-н Диалло не исчерпал все средства правовой защиты, которые были ему доступны в самом Конго. Приняв факты и споры по этому делу, Международный Суд в своем предварительном решении заявил, что г-н Диалло действительно не исчерпал все доступные ему внутренние средства правовой защиты. Однако данное решение не подтвердилось после анализа уведомления о депортации, которое являлось не подлежащим обжалованию. Кроме того, Международный Суд также заявил, что эти компании имеют Конголезское гражданство, и поэтому Гвинея не может ссылаться на дипломатическую защиту путем субституции. Тем не менее, суд оставил в силе требование Гвинеи ссылаться на дипломатическую защиту г-на Диалло как личности и его прямое право в качестве акционера.

    В 2010 году Международный Суд принял решение по существу дела и заявил, что Конго нарушает Международный Пакт о Гражданских и Политических Правах (статьи 9 и 13), Договор о Консульских Отношениях и Африканскую Хартию о Правах Человека и Народов (Статьи 6 и 12(4)). Однако суд постановил, что Конго напрямую не нарушало права г-на Диалло в качестве акционера, поскольку он имел право присутствовать на общих собраниях и контролировать управление компаниями. Кроме того, в решении Международного Суда 19 июня 2012 года суд отметил, что Гвинея не смогла обосновать свои претензии доказательствами относительно потери материальных и нематериальных активов из-за депортации. Поэтому суд присудил сумму в размере 85,000 долларов США в отношении задержания и высылки г-на Диалло из страны. Этот случай рассматривается как знаковое решение, поскольку он нам дает представление о степени дипломатической защиты, которую страна может предоставить своим гражданам.

    Заключение

    Международный Суд создан для обеспечения защиты населения, будь то дипломатов или физических лиц, в странах, где они являются иностранцами. Однако, вполне понятно, что в битве национального и международного права существует проблема вынесения справедливого решения. Невозможно обеспечить равную степень защиты сторон, когда каждой более выгоден другой закон. Непростой характер предмета привел к множеству случаев, когда международное право игнорируется в ходе защиты более сильной стороны. Тем не менее, наш анализ на этом не заканчивается; во второй части данной статьи будут рассмотрены процедурные аспекты дел в Международном Суде и другие соответствующие процессы.


    [i] United States of America v. Iran; [1980] ICJ 1

    [ii]{C}{C}{C}{C}{C}{C}{C}{C} Reports of Judgments, Advisory Opinions and Orders, 24 May, 1980 (found at http://www.icj-cij.org/docket/files/64/6291.pdf)

    [iii] Republic of Guinea v. Democratic Republic of Congo, ICJ, 2007

    [iv] Also, known as Congo (between 1960 to 1971) and Zaire (between 1971 to 1997).

    [v] [1970] ICJ 1

    [vi] Judgment on Preliminary Objections on 24 May, 2007

     

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    Sat, 16 Sep 2017 01:31:00 GMT
    <![CDATA[Строительное Право и Использование Времени]]>Строительное Право и Использование Времени   Человечество создало время, чтобы держать организовать и структурировать свою жизнь. Это, по сути, социальная конструкция, в которой мы живем всю свою жизнь. Это не просто фундаментально, но необходимо для нашего выживания. Закон подобным же образом был создан нами, чтобы диктовать то, как мы должны жить. С порядочностью, честью и с уважением. Понятие времени проникает в каждый аспект нашей жизни,в том числе и в закон.   В этой статье мы используем концепцию Времени, применяя ее к закону в конкретной отрасли строительства и сооружений.    В то время как стороны,участвующие в строительстве или конструкциях, заинтересованы в том, чтобы заработать или инвестировать деньги, а также в качестве работы по проекту, еще одним важным аспектом строительства является время. Бесспорно, время является существенным в рамках строительного контракта. Почему? Цель данной статьи сосредоточить внимание на том факте, что возможные задержки в завершении проекта могут дать право заказчику требовать от подрядчика возмещения убытков. Как правило, эти требования огромные, сложные и запутанные в контрактах для менеджеров,юристов, консультантов по заявкам, экспертов занимающихся пересмотром оценок исков и судей.     Несколько вещей неразрывно связаны с концепцией времени в сочетании со строительством  в ОАЭ, а именно принцип предотвращения, время в целом и его последствия для Отсрочки по Времени (EOT) или Штрафные Неустойки. Имея в  виду что эти выплаты по договорам на строительство всегда подчиняются условиям контракта и текущим обстоятельствам, подкрепленным фактическими данными, в этой статье акцент делается на вышеупомянутых проблемах, особенно в ОАЭ.   Принцип профилактики   В деле Trollope & Colls Ltd против North West Metropolitan Hospital Board лорд Деннинг утверждал: «Хорошо известно, что в  строительных контрактах - а также в других контрактах  -при соглашении о выполнении работы в течение ограниченного времени, если одна сторона по его ведению - это может быть вполне законное ведение, например, заказ дополнительной работы, - делает невозможным или неосуществимым для другой стороны выполнение своей работы в течение оговоренного времени, то тот, чье ведение вызвало эту проблему, больше не может настаивать на строгом соблюдении установленного времени.Он не может требовать каких-либо штрафов или возмещения ущерба за невыполнение контракта». Это понятие приняло форму известный как Принцип Предотвращения. В непрофессионалых терминах это означает, что если работодатель намеренно или непреднамеренно препятствует своевременному завершению проекта, как это было согласовано в строительном контракте, то контракт будет действовать так, как если бы время завершения не было бы предусмотрено сторонами. Таким образом, время завершения контракта становится «Временем в целом», что лишает работодателя возможности искать возмещения убытка в случае задержки. Обоснование, лежащее в основе принципа предотвращения, заключается в том, что сторона, будь то подрядчик или субподрядчик, не несет ответственности, если одна сторона помешала  другой стороне в выполнении ее контрактных обязательств своевременно.  Сторона не может извлекать пользу из собственных несправедливых действий.  Значение Принципа Предотвращения было кратко сформулировано Джексоном J в Multiplex v Honeywell: «Суть принципа предотвращения заключается в том, что лицо, которому дано обязательство, не может настаивать на исполнении обязательства, если оно помешало его исполнению.»   Хотя принцип предотвращения уже давно установлен в доктрине английского общего права, он конкретно не упоминается в законе о гражданских операциях ОАЭ (он же Гражданский кодекс ОАЭ). Тем не менее, Гражданский кодекс ОАЭ содержит положения, которые предполагают применение принципов предотвращения для работодателей. Обычными причинами, которые могут вызвать задержку, являются, например:  - задержка доступа к строительной площадке; или - отклонения или изменения в согласованном объеме работ,  - запоздалые инструкции,  - задержки в утверждении чертежей,  - вовлечение других сторон (таких как другие подрядчики и субподрядчики, нанятые заказчиком), отставание от графика, - задержки с предоставлением сырья (если это было обязательством заказчика) итд.    Этот принцип закреплен в статье 246 Закона о Гражданских Операциях ОАЭ в связи с тем, что принцип лояльности хорошо вписывается в эту статью. В ней говорится: (1) «Договор должен быть выполнен в соответствии с его содержанием и в соответствии с требованиями лояльности. (2) Контракт не ограничивается обязательством договаривающейся стороны сделать то, что (прямо) содержится в нем, но также включает в себя то, что относится к силе закона, заказа и характера сделки». Это условие часто упоминается подрядчиками по нескольким причинам,например как добросовестное выполнение или заявления о незаконных действиях со стороны заказчика или инженера от имени заказчика.    Кроме того, статья 106 Гражданского кодекса ОАЭ также гласит, что ни одна из сторон не может осуществлять свои права по контракту способом, который угнетает или оскорбляет другого. Статья 106 Гражданского кодекса устанавливает, что осуществление права является незаконным, если среди прочего желаемые интересы несоразмерны ущербу, который понесет другая сторона. Соответственно, отказ инженера предоставить продление времени и последующая попытка заказчика взыскать за ликвидацию убытков, возможно, стала бы нарушением положений статей 106 и 246 Гражданского кодекса ОАЭ. Статьи 318 и 319 Гражданского кодекса ОАЭ далее предусматривают, что несправедливое обогащение является незаконным, и, следовательно, в вопросах строительства, может быть возбуждено разбирательство против неосновательного обогащения заказчика, когда он вызвал задержку. Тем не менее, на то же положение может полагаться и заказчик в случае одновременных задержек, если может быть доказано, что подрядчик несет равную ответственность за задержку. Кроме того, местное законодательство ОАЭ также считает «исключение пункта об ответственности» неправомерным в соответствии со статьей 296 Гражданского кодекса ОАЭ. В этой статье говорится, что любые условия, предусматривающие освобождение от ответственности за вредное действие, должны быть аннулированны, что может быть истолковано как означающее, что любое положение, которое полностью освобождает виновную сторону от ответственности, может считаться недействительным.    Время в целом   Отказ от пункта о штрафных неустойках может свидетельствовать о поворотном пункте в строительной отрасли, в Peak Construction (Liverpool) Ltd v McKinney Foundations Ltd  Салман Ли утверждал, что «Eсли заказчик желает возместить штрафные неустойки за неисполнение подрядчиком своих обязательств вовремя, несмотря на то, что некоторые задержки происходит из-за собственного нарушения, то продление сроков должно предусматривать как продление срока в связи с виной или нарушением со стороны заказчика." Когда наступает время в целом, подрядчик освобождается от какой-либо ответственности за ликвидацию убытков. Это связано с тем, что время, установленное для завершения, само по себе перестало учитываться, и подрядчику было бы только поручено завершить проектные работы в разумные сроки. Время может стать неконкретным не только в результате применения принципа предотвращения, но и в следующих обстоятельствах: i.    Неспособность сторон указать дату завершения работ в контракте или; ii.   Из-за неспособности продления времени.  iii.  Вмешательство работодателя в процесс сертификации или когда инженеру / архитектору или инспектору не предоставлены полномочия на предоставление продления времени при возникновении соответствующих событий, способствующих задержке, не относящейся к подрядчику.    В этом случае на заказчике лежит ответственность по установлению разумного времени для завершения проекта и по установлению понесенных потерь  в связи с задержкой со стороны подрядчика.    Разумный срок   На первый взгляд применение принципа Время в целом кажется справедливым и достаточно легким для понимания. Однако, это чревато практической запутанностью. Кит Пикаванс в своей похвальной статье под названием «Расчет разумного времени для завершения работ» определяет следующие факторы, которые потенциально важны для расчета разумного времени для завершения в любых конкретных обстоятельствах:    i.   Оценка вероятной продолжительности строительства, указанной в ходе переговоров; ii.  Распределение рисков в период строительства в соответствии с контрактом;  iii. Степень, в которой иногда риски находятся или могут находиться под контролем той или иной стороны; Если исковое заявление о возмещении ущерба сделано владельцем, бремя доказательства лежит на заказчике, чтобы доказать, что: i.   Подрядчик превысил «разумное время» и  ii.  Владелец понес убытки в результате таких задержек.   Продолжительность, которое представляет собой разумное время, является вопросом факта, а не права, при котором объективно  оцениваются различные факторы и обстоятельства. Обстоятельства, существующие на момент заключения контракта на месте работы, объем работы каждой из участвующих сторон, существенные отклонения, исключая положения и ситуации ответственности, факторы контроля подрядчика во избежание задержек итд, являются факторами, которые приспособляющие и зависят от конкретного случая.    Временная шкала   Однако условие о штрафных неустойках может быть сохранено в связи с положениями временной шкалы. Они указывают дату завершения или условия продления времени, но только для критических задержек, связанных с заказчиком, или других задержек, при которых EOT может быть предоставлено инженером, инспектором или архитектором. Положения временной шкалы убеждают подрядчика уведомить о задержках или запросе дополнительных платежей. Таким образом, положение временной шкалы поощряет стороны к тому, чтобы они включили пункт EOT, представляющий взаимный интерес.   Продление времени   Ввиду вышесказанного, важно сохранить пункт о продлении срока действия (EOT) в контракте для добросовестного осуществления прав и возможностей со стороны строительных сторон. Красная книга FIDIC, в которой изложены положения, на основании которых может быть предоставлено EOT, является одной из самых узнаваемых форм FIDIC в ОАЭ. Учитывая тот факт, что контракт на строительство регулирует распределение рисков между сторонами, контракт должен четко указывать список событий, которые должны рассматриваться как «релевантные события», чтобы предоставить подрядчику EOT, в том числе, какие события находятся на риск заказчика. Если задержки произошли по любой причине, которая не относится к подрядчику и влияет на критический путь проекта, независимо от того, идентифицирован ли он как критический путь или нет, это даст подрядчику право искать EOT. Заказчик должен предоставить EOT для таких критических задержек. Инженеры, отвечающие за строительство, консультанты по контрактам или администраторы, назначенные работодателем для оценки проектных работ, также могут предоставить EOT. Тем не менее, предоставление EOT всегда подлежит уведомлению подрядчиком. Подпункт 20.1 FIDIC 1999Требования подрядчика») установил новую практику, запрещающую право подрядчика на EOT за несоблюдение требования уведомления по контракту. Таким образом, подрядчики рискуют своим правом на EOT, если они не уведомлят о задержке и не укажут причины для этого, тем самым не выполнив условия соглашения, предшествующего уведомлению. Уведомление должно быть снабжено подробной претензией вместе с подтверждающей документацией. Это помогает сторонам выдвигать претензию в ходе выполнения контракта, а также оценивать претензии для последующей сертификации (или отклонения).     Вывод   Риски, применимость принципа предотвращения, время, право на EOT и штрафные неустойки часто рассматриваются на основе отношений между сторонами, как это предусмотрено в контракте. Установление обязательств и прав сторон является функцией тонкой формулировки договора, а также точного понимания фактов дела. В свете вышесказанного рекомендуется тщательно дорабатывать, а также точно понимать положения контрактов между сторонами. Таким образом, проявление старания в выполнении предварительных условий, необходимых для установления каких-либо претензий, является непременным условием для любой стороны строительного контракта с целью установления своего требования.    ]]>Fri, 19 May 2017 12:00:00 GMT<![CDATA[Закон о коммерческом агентстве в Кувейте]]> Commercial Agency Law in Kuwait

    "Without local guides, your enemy employs the land as a weapon against you."

    -Sun Tzu, The Art of War

    Little did the great Chinese military general, Sun Tzu, know that his guidance on how to wage a war would draw similarities in the today's commerce and trade economies! Agency law establishes the framework which covers the relationship between a principal and an agent. The principal is generally desirous of establishing a foothold in a new market and hence requires assistance in maneuvering his way forward with the local rules and regulations. This is where the agent comes into the picture. The main obligation of the agent is to augment the business opportunities for the benefit of the principal. Further, an agency is primarily set up by the principal with the intent to tap into a foreign market without having to establish a physical presence in the country. However, it is essential that an agent is appointed upon much deliberation by the principal since the success or failure of an agency relationship often depends on the personal relationship between the principal and his agent.

    The Virtue of an Agency

    Wealthy investors and multinational giants have always had a soft corner about investing in the Middle East. Generally, agents are appointed and engaged by the principals in order to solicit sales and distribute the goods or services on behalf of the principal. The agent would receive a commission or fixed remuneration for performing his duties on behalf of the principal. However, the principal and the agent is required to adhere to the provisions of Commercial Law Number 13 of 2016 (the Commercial Agency Law) and the Kuwaiti Commercial Code[1] and must be registered in the commercial agencies register of the Ministry of Commerce and Industry (the MCI). Until recently, Law Number 36 of 1964 (the Old Law) was in force and had been applicable to commercial agencies in Kuwait for over 50 years. However, the Kuwaiti National Assembly has observed the necessity of the hour and enacted the Commercial Agency Law in order to overcome the ambiguities regarding the rights of the parties in the Old Law.

    Kuwaiti nationals and companies incorporated in the country are the sole entities who are entitled to act as agents in the country.  Further, these agents should also be registered and licensed under the commercial agencies register of the MCI. An agent under the Kuwaiti commercial agency structure is entitled to remuneration or commission from the principal for the scope of work executed by him. Moreover, the Commercial Agency Law goes a step further and grants the agent the right to demand remuneration for those transactions which are concluded or even facilitated directly by the principal, or through others in the agent's territory. Therefore, it could be concluded from these provisions that the agent enjoys better entitlement and protection by the law, as is the case in general with commercial agency laws in most of the GCC countries.

    A Consolation to the Principal 

    Until recently, one could consider the answer in affirmative but the enactment of the Commercial Agency Law while purporting to remain the same in essence, imposes certain stringent obligations upon agents. Article 6 of the Commercial Agency Law stipulates that the courts of the country would only hear and adjudicate commercial agencies which are registered with the MCI. Agents will no longer be permitted to bring compensation cases to the Kuwaiti courts if their agency agreement is not registered and upon doing so; their claims will be dismissed by the Kuwaiti courts. It is imperative to understand that Old Law also provided for mandatory registration of the agency agreement, despite which the Kuwaiti Court of Cassation had ruled that registration was not a condition to a commercial agent's entitlements under Kuwaiti law including a commercial agent's claim for compensation upon the principal's termination or non renewal of the arrangement without just cause. However, it appears that the legislature, in terms of the new provision, wants to impose a strict regime to ensure the conditions are met effectively.

    While the Old Law allowed exclusive agencies to be established in Kuwait, article 4 of the Commercial Agency Law has curtailed this privilege granted to agents by disallowing exclusive agencies and permitting principals to have more than one agent and/or distributor in the same territory. The final blow under article 4 comes for the agents in form of a condition which categorically disallows local Kuwaiti agents to be the exclusive agents or distributors of the Principal's products or services. Moreover, article 4 now allows principals to freely trade with third parties, where the principal can import goods and services in a territory from such third party, regardless of a registered agent appointed for such goods and services.

    A bare perusal of the above provisions leads us to the inference that the Commercial Agency Law while protecting the agent also ensures enough safeguard to the principal. However, the real test of a legislature is not when the situation is smooth and the relationship between the parties is copacetic but when the agreement takes a downturn and either party wants to wriggle out of the arrangement.

    Survival of the Agents

    Kuwaiti law protects an agent with respect to an unfair termination of their services by the principal. The principal is not entitled to terminate the contract, without a material breach on part of the agent. However, the principal would be liable to pay substantial compensation to the agent in the event that the former has exclusively terminated the agency agreement. Moreover, the New Law has also provided that when an agency contract would automatically be renewed if the parties to the contract have not explicitly terminated the same. Further, the agent is entitled to seek a fair compensation if the principal has denied renewing an agency contract at the end of its term. However, the court shall approve the compensation only if the agent is not negligent in the performance of his duties under the agency agreement.

    Further, it is imperative to note that the Commercial Agency Law also entitles the principal to receive compensation from the agent for any damages in the event that the latter abandons the agency at an unsuitable time and without any reasonable excuse.

    However, the Commercial Agency Law also obligates agents and distributors to continue their duties of supplying, maintaining and repairing the goods of the principal for a period of six months after their agency agreement expires or until a new agent or distributor is appointed, whichever is earlier. The new law has also specified the terms franchisee and licensee under the ambit of the definition of commercial agency. Ergo, franchisees and licensees are also treated as commercial agents and are expressly subject to the obligations and entitlements under the Kuwaiti law.

    Greetings to the New Law!

    Moving away from the well protected framework the agent was sheltered under the Commercial Agency Law now imposes certain stringent conditions upon the agent. Though the local agents may be dissatisfied by the newly enacted Commercial Agency Law, it is surely welcomed by the foreign investors in the region. Nevertheless, the agencies undertaking activities pertaining to licensing and franchising must notice and adhere to the new obligations that are imposed thereon. However, the commercial market of the country will have to wait for the proposed ancillary regulations in order to ascertain the ambit of the recently enacted Commercial Agency Law.

    [1] Commercial Agency Law and Kuwaiti Commercial Law are collectively and individually referred to as Kuwaiti Law

     

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    Thu, 28 Jul 2016 04:00:00 GMT