Tuesday, 28 June 2011

Qatar Financial Centre: Civil and Commercial Court Regulations

On 15 Dec 2010 the Council of Ministers of Qatar adopted Regulations and Procedural Rules ("the Regulations") for the Qatar Financial Centre Civil and Commercial Court. These repeal the Practice Guide issued by Lord Woolf, the Court's President, on 25 April 2009. They are intended to be a self-contained code for the administration of justice by the Court (art 2.3 of the Regulations). They can be amended only with the approval of the Council of Ministers but they can be supplemented by practice directions and practice guides issued by the Court.The Regulations are divided into 37 articles.

The QFC Civil and Commercial Court
I discussed the Qatar Financial Centre ("QFC"), its constitution, legislation and its Civil and Commercial Court in my article "Qatar Financial Centre" on 3 April 2011. In that article I described that court as "distinct and separate from, and independent of, all other Qatari courts." Unless the rest of the Qatari legal system the QFC Civil and Commercial Court is a common law court. Most of its judges come from common law jurisdictions. Though parties have the right to use Arabic, English is the language in which proceedings are usually conducted.

Art 8.3 (c) of the QFC Law confers jurisdiction on the Court to hear the following disputes:
  • Civil and commercial disputes arising from transactions, contracts, arrangements or incidences taking place in or from the QFC between the entities established therein.
  • Civil and commercial disputes arising between The QFC authorities or institutions and the entities established therein.
  • Civil and commercial disputes arising between entities established in The QFC and contractors therewith and employees thereof, unless the parties agree otherwise.
  • Civil and commercial disputes arising from transactions, contracts or arrangements taking place between entities established within The QFC and residents of The State, or entities established in the State but outside The QFC, unless the parties agree otherwise.
Art 9.2 of the Regulations enables the Court to take account of any choice of law clause giving the Court jurisdiction. Art 9.3 enables it to entertain any matter in respect of which the QFC Law or Regulations grant it jurisdiction.

Overriding Objective
Like the Civil Procedure Rules ("CPR") there is an overriding objective to which the Court must give effect when exercising its functions and powers (art 4.1 and 4.2). Art 4.1 provides that the overriding objective is to deal with all cases justly. "Dealing with cases justly" includes so far as practicable:
  • ensuring that litigation before the Court takes place expeditiously and effectively using appropriately of the Court and of the parties than is necessary;
  • ensuring that the parties are on an equal footing;
  • dealing with cases in ways which are proportionate to the amount of money involved, to the importance of the case, to the complexity of the issues, facts and arguments, and to the financial position of each party; and
  • making appropriate use of information technology.
As in England it is the duty of the court to deal with all cases in accordance with the overriding objective (art 4.4) and of the parties to assist the Court to do that (art 4.5).

ADR and Arbitration
The Court is required by art 5.1 to encourage parties whenever it is appropriate to do so to encourage parties to resolve disputes by arbitration, mediation or other alternative method of ADR. It may actually require parties to settle their dispute by ADR (art 10.2.2 of the Regulations). It has power under art 25.1 to stay proceedings for mediation or other ADR and it may offer such other assistance as the parties may require to resolve their dispute in this way under art 25.2. Finally, the Court may recommend the establishment of a dispute resolution centre pursuant to art 9 of the QFC Law.

The Registry
Art 7.1 of the Regulations require the President to appoint a Registrar and to cause a Registry to be established. The Registry is responsible for the management of the Court and also for case management including the filing of documents under art 8.

Commencing Proceedings
Proceedings are commenced by the issue of a claim form (art 17.1). A claim form is issued by the Registry between 07:00 and 14:00 on any day except a Friday, Saturday or public holiday (art 17.2 and art 14.2). The claim form must include:
  • the names, postal and email addresses, telephone and fax numbers of the parties;
  • the nature of the dispute setting out the facts relied upon and attaching relevant documents;
  • the basis on which it is alleged that the court has jurisdiction;
  • the legal basis of the claim including any legislation relied upon, and
  • the remedy requested.
The claim form must be verified by a statement of truth (art 16.1). The claim form must be served by the claimant and not by the court (art 18.1). Claims may be served abroad without the permission of the Court provided that local rules for service are complied with (art 18.3).

Responding to a Claim
Unless he or she applies to challenge the jurisdiction of the Court within 14 days of service of the claim form under art 19.1 of the Regulations, a defendant must file a defence within 28 days (art 20.1).

Case Management
The Court has power under art. 10.1 to take all steps that are necessary or expedient for the proper determination of a case. That includes
  • such orders as it considers expedient in relation to the management of cases;
  • requiring the parties to settle their dispute by ADR;
  • admitting evidence of fact or expert evidence on such terms as it considers appropriate;
  • receiving evidence on oath or affirmation;
  • ordering disclosure; and
  • awarding costs.
Procedural directions may be given by a Judge or the Registrar (art 15.4).

Hearings and appeals are conducted by panels of three judges (art 12.2) which may delegate one of their number to hear an issue or application whenever it is considered to be in the interests of justice and good administration (art 12.5).

Art 10.3 confers power on the Court to grant all such relief and make all such orders as may be appropriate and just in accordance with the overriding objective. That includes:
  • an order that a party pay a sum of money;
  • damages (including damages in lieu of an injunction);
  • prohibitory and mandatory injunctions;
  • specific performance;
  • declarations;
  • restitution;
  • disgorgement of profits;
  • an account; and
  • an order for the payment of interest.
The Court has power to fine those who fail to comply with or disobey its orders under art 34.3.1 but it does not appear to have any power to commit though it can refer such contravention to the competent agency or authority of the state pursuant to art 34.3.3.

Although a decision at first instance is usually final there is a right of appeal to a panel of three justices on the grounds of error of law where there is a risk of serious injustice under art 35.1.

Further Information
Should any party wish to discuss this article further, he or she should get in touch with me through my contact form.

Friday, 10 June 2011

Gulf Cooperation Council Constitutional Framework

In my article Patents: Gulf Co-operation Council of 20 Jan 2011, I discussed the objectives of the Gulf Cooperation Council ("GCC") and mentioned the GCC's Patent Office ("GCCPO") and Patent Regulation. In this article I explore the constitutional framework of the GCC.

The official name of the GCC is the Cooperation Council for the Arab States of the Gulf. It was established by the governments of Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates on 25 May 1981. The instrument establishing the GCC is called The Charter. The objectives of the GCC mentioned in my previous article are set out in art. 4 of the Charter.

The Institutions
Art 6 of the Charter establishes the following institutions:
  • a Supreme Council with a Commission for the Settlement of Disputes attached;
  • a Ministerial Council; and
  • a Secretariat General.
Supreme Council
Art 7 declares that the Supreme Council is the highest authority of the GCC. It consists of the heads of state of the member states with a rotating presidency. This body meets at least once a year though extraordinary meetings can be convened at the request of any two members. Art 8 lists the Supreme Council's functions as follows:
  • to review matters of interest to the member states;
  • to lay down the higher policy for the GCC and the basic lines it should follow;
  • to review the recommendations, reports, studies and joint ventures submitted by the Ministerial Council for approval;
  • to review reports and studies, which the Secretary-General is charged to prepare;
  • to approve the bases for dealing with other states and international organizations;
  • to approve the rules of procedure of the Commission for the Settlement of Disputes and nominate its members;
  • to appoint the Secretary-General;
  • to amend the Charter;
  • to approve the Supreme Council's internal rules of procedure; and
  • to approve the budget of the Secretariat General.
Each member state has one vote. Resolutions on substantive matters require the unanimous vote of all the member states while resolution on procedural matters may be carried by a simple majority (art 9). The Supreme Council is quorate if two thirds of the member states are present (art 7).

Commission for the Settlement of Disputes
Art 10 provides for a Commission for the Settlement of Disputes to be attached to the Supreme Council. The Supreme Council establishes the composition of the Commission on an ad hoc basis whenever a dispute arises. The Commission reports to the Supreme Council which takes such action upon the Commission's advice or recommendations as it thinks appropriate.

Ministerial Council
The Ministerial Council consists of the foreign ministers of each of the member states (art 11). It meets at least once a quarter and is chaired by the foreign minister of the member state that chairs the Supreme Council for the time being. The Council's functions, which are listed in art 12, are as follows:
  • to propose policies, prepare recommendations, studies and projects aimed at developing cooperation and coordination between member states in various fields and adopt the resolutions or recommendations required in this regard;
  • to endeavour to encourage, develop and coordinate activities existing between member states in all fields;
  • to refer resolutions adopted in such matters to the Ministerial Council with recommendations to the Supreme Council;
  • to submit Council for further submission, with recommendations to the Supreme Council for appropriate action;
  • to submit recommendations to the Ministers concerned to formulate policies whereby the GCC's resolutions may be put into effect;
  • to encourage means of cooperation and coordination between the various private sector activities, develop existing cooperation between the member states' chambers of commerce and industry, and encourage the movement within the GCC of workers who are citizens of the member states.
  • to refer any of the various aspects of cooperation to one or more technical or specialized committees for study and presentation of appropriate recommendations;
  • to review proposals related to amendments to the Charter and submit appropriate recommendations to the Supreme Council;
  • to approve rules of procedure of both the Ministerial Council and the Secretariat General;
  • to appoint assistant Secretaries-General, as nominated by the Secretary-General, for a renewable periods of 3 years;
  • to approve periodic reports as well as internal rules and regulations relating to administrative and financial affairs proposed by the Secretary-General, and submit recommendations to the Supreme Council for approval of the budget of the Secretariat General;
  • to make arrangements for meetings of the Supreme Council and prepare its agenda; and
  • to review matters referred to it by the Supreme Council.
Secretariat General
Art 14 provides for a Secretariat General consisting of a Secretary General and a number of assistants charged with:
  • preparing studies related to cooperation and coordination, and to integrated plans and programmes for action by member states;
  • preparing periodic reports on the work of the GCC;
  • following up the implementation by the member states of the resolutions and recommendations of the Supreme Council and Ministerial Council;
  • preparing reports and studies requested by the Supreme Council and Ministerial Council;
  • preparing the draft of administrative and financial regulations commensurate with the growth of the GCC and its expanding responsibilities;
  • preparing the budgets and closing accounts of the GCC;
  • making preparations for meetings and preparing agendas and draft resolutions for the Ministerial Council;
  • recommending to the Chairman of the Ministerial Council the convening of an extraordinary session of the Council when necessary; and
  • any other tasks entrusted to it by the Supreme Council or Ministerial Council.
The current Secretary General is Abdullatif bin Rashid Al-Zayani of Bahrain who assumed office on 1 April 2011 (see the news report of 31 Match 2011 by the Bahrain News Agency for the announcement of his appointment and his curriculum vitae).

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