Friday, 28 December 2012

DIFC Courts: Choice of Jurisdiction Clauses

In DIFC Courts Spread Their Wings, 7 Dec 2011, I discussed the amendment to art 5 (2) of Law No. 12 of 2004 which extended the DIFC's courts' jurisdiction to any dispute that the parties might refer to them.
Practice Direction No. 2 of 2012 DIFC Courts' Jurisdiction suggests the following choice of jurisdiction clauses.

If the parties want the DIFC courts to have exclusive jurisdiction, they can use the following words for future disputes:
"Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be subject to the exclusive jurisdiction of the Courts of the Dubai International Financial Centre.
This contract shall be governed by and construed in accordance with the law of [INSERT PLACE]."
Or this formula for existing disputes:
"A dispute having arisen between the parties concerning [DEFINE DISPUTE], the parties hereby agree that the dispute shall be subject to the exclusive jurisdiction of the DIFC Courts.
The governing law of this agreement shall be the law of [INSERT PLACE]"
If they want to confer non-exclusive jurisdiction they can choose the following clause:
"Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be subject to the non-exclusive jurisdiction of the Courts of the Dubai International Financial Centre.
Each party irrevocably submits to the jurisdiction of the DIFC Courts and waives any objection it may have to disputes arising out of or in connection with this contract being heard in the Courts of Dubai International Financial Centre on the grounds that it is an inconvenient forum (forum non conveniens).
This contract shall be governed by and construed in accordance with the law of [INSERT PLACE]."
Should anybody require further information he or she can call me on +44 (0)161 850 0080 or email me through my contact page. You can also follow me on Facebook, Linkedin, twitter or Xing..

Tuesday, 20 November 2012

Gulf Co-operation Council Commercial Arbitration Centre

The British Prime Minister's visit to the Gulf earlier this month had a clear sales mission ("David Cameron in the Gulf: Defence sales 'legitimate'" BBC 5 Nov 2012). Sales require contracts and sensibly drawn up contracts contain choice of jurisdiction clauses. I have already discussed extensively the common law courts in Dubai and Qatar and the Bahrain Camber for Dispute Resolution in "Bahrain: a Forum for the Resolution of IP and Technology Disputes?" 30 Jan 2011. There is, however, another forum in Bahrain, namely The Gulf Co-operation Council Commercial Arbitration Centre ("GCCAC"),

Although the GCCAC is in Bahrain it is a Gulf Co-operation Council institution rather than a Bahraini one.   According to its Charter, which can be downloaded from the GCC website together with its Rules of Procedure, the GCCAC was established by the governments of the GCC states at their 14th summit meeting in Riyadh in December 1993 and each of the GCC member states is represented on its Board of Directors.   The Charter and Rules of Procedure were approved by the GCC governments in November 1994 and the GCCAC opened for business on 19 March 1995.

Art 2 of the Charter provides:
"The Centre shall have the power to examine commercial disputes between GCC nationals, or between them and others, whether they are natural or juristic persons, and commercial disputes arising from implementing the provisions of the GCC Unified Economic Agreement and the Resolutions issued for implementation thereof if the two parties agree in a written contract or in a subsequent agreement on arbitration within the framework of this Centre."
According to the chapter on the GCCAC in WikiMediation, it resolves disputes relating to "banks, financial institutions, insurance, reinsurance, constructions, engineering, various contracting, intellectual property covering commercial and industrial, copyrights, and all types of international commercial contracts."

Art 10 of the Charter provides:
"An Arbitral Tribunal shall be formed by appointing a single arbitrator or three arbitrators as may be mutually agreed upon by the parties under an Arbitration Agreement or Contract.  In case there is no Agreement, the Rules of Procedure issued by the Board of Directors shall be applicable."
The arbitrator must be "a legal practitioner, judge or a person enjoying a wide experience and knowledge in commerce, industry or finance" and he "must be reputed for his good conduct, high integrity and independent views" (art 11). Such arbitrator may, but does not have to be, selected from a panel prepared by the chambers of commerce of the GCC member states.

Interestingly, art 2 (1) of the Rules of Procedure requires arbitration agreements to "preclude the reference of the dispute before any other authority" and also "any challenge to arbitration award passed by the Arbitral Tribunal."  Art 2 (2) proposes the following text for an arbitration agreement:
"All disputes arising from or related to this contract shall be finally settled in accordance with the Charter of the Commercial Arbitration Centre for the States of the Cooperation Council for the Arab States of the Gulf."
An arbitration is started by a written application to the Secretary-General of the GCCAC containing the following information:
(1)  The full name, address, nationality and capacity of the applicant;
(2)  The full name, address, nationality and capacity of the other party;
(3)  A statement of the nature of the dispute annexing relevant documents;
(4)  The name of the arbitrator (if any); and
(5)  A copy of the arbitration agreement and related documents (art 9 of the Rules of Procedure).
If everything is in order and all fees are paid, the documents are sent to the other side who has 20 days in which to respond which can be extended for a further 20 (art 11).
Art 29 requires the tribunal to apply the following principles in resolving the dispute:
1. The contract concluded between the two parties as well as any subsequent agreement between them.
2. The law chosen by the parties.
3. The law having most relevance to the issue of the dispute in accordance with the rules of the conflict of laws deemed fit by the Tribunal.
4. Local and international business practices.
Arbitrators have power under art 28 to make interim orders such as 
"ordering the deposit of the goods with third parties or sale of the perishable items thereof in compliance with the procedural rules in the country where the interim measure is adopted."
Members of these chambers would be glad to advise and represent parties to technology licensing or other intellectual property disputes before arbitrators appointed under these provisions.   Further information can be obtained from +44 161 850 0080 or you can send a message through my contact page. You can also follow me on Facebook, Linkedin, Xing or twitter.

Monday, 29 October 2012

Cybersquatting Emirates Style: the UAE Domain Name Dispute Resolution Policy

In "Domain Names: New Domain Name Dispute Resolution Policy for ".ae" and "امارات." Top Level Domains" 22 Jan 2011, I outlined the domain name registration system for the United Arab Emirates  country code top level domain name space (".ae" and "امارات.") and its domain name dispute resolution policy (the UAE Dispute Resolution Policy ("UAE DRP"))..

As I explained in that article, the UAE DRP is modelled on ICANN's Uniform Domain Name Dispute Policy ("UDRP") and managed by the World Intellectual Property Organization ("WIPO") and cases come before the same panellists who decide cases under the UDRP.  WIPO currently has one Emirates resident on its list, namely  Ms. Hoda Barakat of Dubai, but WIPO's policy is to appoint a panellist from a third country where the parties are from different countries.   Only when the parties are from the same country will WIPO appoint a panellist from that country.

The cases that have been resolved in accordance with the UAE DRP since 2006 are listed on the WIPO UDRP Domain Name Decisions (ccTLD) page of the WIPO website.   As of today there have been 16 decisions and all but 2 have resulted in an order for the transfer of the disputed domain name to the complainant.  The two that have been determined differently - DAE2006-0001 (<>) and DAE2008-0002 (<>) - have been "terminated."  Most of those cases have been decided by single panellists but a few have been decided by 3 member panels.

An index of the decisions appears below:
One of the areas of law in which these chambers specialize is domain name dispute resolution (see the NIPC Domains website). Should you or your client require advice or representation in a domain name dispute in the ".ae" top level domain or elsewhere we shall be glad to help.  You can call us on +44 161 850 0080 or  send a message through my contact page.  You can also follow me on Facebook, Linkedin, Xing or twitter.

Thursday, 27 September 2012

Du Trademark: Trade Mark Law in the UAE

DuTrademark Group describe themselves as "a group of trademark professionals who network and share there knowledge also exchange business after building a trust between each other". They offer a range of services including searches, advice and representation on trade mark law in Afghanistan and Algeria as well as the United Arab Emirates.

They have written a very good article on trade mark law in the UAE which discusses the local legislation and practice.

If you want to discuss this article further, their contact details are:
Horwath Mak
International Trademark & Patent Attorneys
1403, Al Reem Tower,
Al Maktoum Street,
P O BOX 82315,
Email: info@dutrademark.
Phone 971 (4) -236-7588 or +971 (4) -236-7589

Thursday, 20 September 2012

Qatar Civil and Commercial Court Official Practice Guide

On 28 July 2012 I discussed the Qatar International Court and Dispute Resolution Centre and on 28 June 2011 the Qatar Financial Centre: Civil and Commercial Court Regulations. The practice of the Court is now set out in an Official Practice Guide which has been prepared by the judges under the supervision of Lord Cullen with the approval of Lord Woolf.

Compared to the English court guides, the Official Practice Guide is very short, consisting of no more than 10 pages.   Its purpose is to
"provide parties to disputes and their legal representatives with practical information as to the general approach of the Court and what is expected of them in cases before the Court. Although the Practice Guide is issued under Article 37.2 of the Court’s Regulations and Rules of Procedure (“Regulations”), its contents do not have the force of law. However, the Practice Guide may be taken into account by the Court in assessing the conduct of parties to the litigation, for example, when a question of costs arises."
Constitution of the Court
The Guide explains that the Court two Divisions: a First Instance Division and an Appellate Division. Each of the judges is able to sit in either Division.  Trials take place before a single judge sitting alone while appeals lie to a bench of three.  

Challenges to the Court's jurisdiction are to be raised at the earliest practical opportunity.  Cause will have to be shown if a challenge is made at a later stage.  The Court may also decline jurisdiction of its own initiative or transfer cases to another court in Qatar.   It may accept jurisdiction if the parties so choose provided that there is a sufficient connection with Qatar.

Case Management
As in England cases are actively managed by the Court in accordance with the overriding interest.

Statements of Case
Again as in England, claims are begun by the issue of a claim form. The claimant must state the nature of the dispute, the facts relied on (but not the evidence), the legal basis for the claim and the remedy sought.   He or she should attach all documents that are of particular importance to the his or her case.  The defendant should indicate whether the claim or any part of it is admitted. To that end the defence should indicate to what extent the facts relied on by the claimant are accepted, or, as the case may be, are disputed.

Proceedings are usually conducted in English but parties have the right to use Arabic if they so wish.

Any lawyer qualified to practise before a superior court of any jurisdiction has the right to appear in the Court. Directions hearing can be conducted by telephone or video link.

Judgments are published on the Court's website in English and Arabic.  They are enforced by an Enforcement Judge.  

As I mentioned in  Qatar International Court and Dispute Resolution  the Court has extensive facilities for mediation and other forms of ADR and parties are encouraged to use them.

Further Information
Should anybody wish to discuss this topic further, he or she can call me on +44 161 850 0080 or fill in my contact form. He or she can also contact me through Facebook, Linkedin, Xing or twitter.

Thursday, 6 September 2012

Saudi Arabia: King Abdulaziz City for Science and Technology

I first mentioned King Abdulaziz City for Science and Technology ("KACST") in my overview of Saudi intellectual property law on 22 May 2011, KACST has two functions.  It is the Saudi Arabian national science policy making body whose responsibilities include granting patents for new inventions. It is also the kingdom's national laboratories. It is an enormous complex to the North of Riyadh employing 2,500 persons next door to King Saud University. It also has a branch in Jeddah.

KACST carries out its functions through a number of institutes, centres, directorates and units.  One of those directorates is the General Directorate for Industrial Property which serves as the kingdom's patent and plant varieties office and industrial designs registry, There is also a Legal Directorate which prepares and enforces legislation specifically for KACST.

The City has identified a number of strategic technologies and particulars of its plans for research in those technologies can be downloaded here. The application of this research to Saudi industry is undertaken through a number of technology incubators and innovation centres. KACST is a major publisher in Arabic and English including scientific journals on water, oil and gas, petrochemicals, nanotechnology and biotechnology. A summary of the City's services can be found here.

KACST's vision is "to be a world-class science and technology organization that fosters innovation and promotes knowledge-based society in the Kingdom."

Saturday, 18 August 2012

Gulf Co-operation Council Patent Office Statistics

I mentioned the Gulf Co-operation Council Patent Office in Patents: Gulf Co-operation Council on 21 Jan 2011. The Office has now published its statistics on its website:
Number of Applications     22,018
Granted patents                 1,454
Non-valid applications         6,199
Applications in progress    13,719
Fir further information call me on +44 161 850 0080 or fill in my contact form. He or she can also contact me through Facebook, Linkedin, Xing or twitter..

Saturday, 28 July 2012

The Qatar International Court and Dispute Resolution Centre

The Qatar International Court and Dispute Resolution Centre could be described irreverently as a one stop justice shop. Located in purpose build premises in the Qatar Financial Centre in Doha it houses the Qatar International Court (as the Qatar Financial Centre Civil and Commercial Court is now known) and provides facilities for early neutral evaluation, mediation and arbitration as well as litigation.

The Centre's vision is:
"To develop a world class International Court and Dispute Resolution Centre and provide national and international civil and commercial dispute resolution services within Qatar and the Middle East region that are accessible, modern, expeditious, economical and responsive to the needs of global business markets."
Its facilities include multi-channel video and audio-conferencing equipment that enable parties and their counsel to conduct proceedings from anywhere in the world.  Its court room in Doha is equipped with computers fitted with touch screen panels for the parties and proceedings are displayed on large TV monitors. Facilities for negotiation, mediation and other forms of alternative dispute resolution ("ADR") are provided in the same building. 

I described the court's jurisdiction and organization in my article  "Qatar Financial Centre: Civil and Commercial Court Regulations" which appeared on this blog on 28 June 2011,  Since that article the court has published an introduction to the court and its procedure ("Additional Procedural Information"), Procedural Rules and  an Official Practice Guide.

Art 29.1 of the Regulations provides that "any qualified lawyer who is entitled to appear before the superior courts ......of any ... jurisdiction shall have rights of audience. Since the proceedings are in English and most of the judges cone from the United Kingdom barristers from England and Wales would be well placed to represent parties before that court.   

Just I wrote this article I watched the Qatar team proudly march through the Olympic stadium.  I was delighted to see women among their number and I extend a particularly warm welcome to them. I hope they enjoy their stay in my country and wish them the best of luck in their competitions.  My best wishes to the  representatives of the other countries in the region too.

Should anybody wish to discuss this topic further, he or she can call me on +44 161 850 0080 or fill in my contact form. He or she can also contact me through Facebook, Linkedin, Xing or twitter..

Saturday, 23 June 2012

LES - Arab Countries

Most intellectual property practitioners are aware of the The Licensing Executives Society ("LES"), an international association of intellectual property lawyers, patent and trade mark agents, licensing managers and other professionals.  It consists of a number of national and regional associations such as LES Britain and Ireland and LES (USA and Canada). The association that covers the Gulf Co-operation Council states is the Licensing Executives Society - Arab Countries ("LES-AC"). Membership is open to anyone interested in licensing, technology transfer or research and development in any member state of the Arab League.

Visiting its website I noticed a number of interesting publications some of which can be downloaded such as the "Introduction to Franchising" and "Guidelines for Licensing and Technology Transfer Agreements" and others of which can be ordered.  Having just read the downloadable publications I can confirm that they are useful introductions to those topics for lawyers and business people anywhere. There is also an interesting LES-AC newsletter though the latest downloadable edition appears to be exactly a year old.  Even though it was somewhat out of date the June 2011 issue contained on page 5 a fascinating article about a remarkable cure for cancer in camels that had been developed in the region.

LES-AC also seems to run some good courses including an "Arab Certified IP Practitioner" programme at basic, intermediate and advanced levels, the latest of which took place in Jordan last month. Judging by the list of topics under discussion and the very modest course fees by British standards - the basic course being free - it seems to offer excellent value for money. There are also CPD courses though it is not clear where these take place or how much they cost.

LES-AC appears to have its head office in Amman but there seem to be branches in Abu Dhabi, Doha, Dubai, Jeddah, Kuwait City, Manama, Muscat and Riyadh.  

Thursday, 31 May 2012

Abu Dhabi: An Offer to Film Makers that will be hard to refuse

On 20 May 2012 The Abu Dhabi Film Commission announced an incentive scheme to attract film makers to the Emirate. It takes the form of a 30% rebate of the eligible production spend in Abu Dhabi. According to FAQ about the scheme on the Commission's website the following expenditure qualifies for a rebate:
"All expenditure within Abu Dhabi on location or studio filming and expenditure that is directly related to the production of the project that is purchased or sourced through Abu Dhabi based companies. This includes the purchasing or licensing of intellectual property and goods owned, or facilities and services provided by Abu Dhabi companies."
Expenditure that is not eligible includes
  1. Financing expenditure
  2. General business overheads of the UAE co-producer or production services company 
  3. Deferments, profit participation and residuals
  4. Advances
  5. General expenses such as general costs of administration
  6. Travelling and transport costs of crew and cast to UAE
  7. Gifts and entertainment expenses
  8. Expenditures incurred in other countries
  9. Land and building costs and maintenance
  10. Executive Producer fees
  11. Publicity and marketing costs
  12. Consultant fees charged by a consultant to prepare the application
  13. Costs for legal advice
  14. Contingency costs
  15. Costs for insurance related to financing
  16. Purchase of capital goods
The FAQ indicate that  labour costs relating to contracting UAE registered crew and services including daily payments for activities in Abu Dhabi may qualify for the rebate but deferred salary payments and residuals do not qualify,  Similarly,  though travel and transport of crew and cast to Abu Dhabi are excluded, temporary accommodation in Abu Dhabi as well as airline tickets booked on the Abu Dhabi airline Etihad Airways or the private charter of aircraft based in the UAE may qualify for the rebate.

The rebate is available for almost any type of film or television programme whether shown in Abu Dhabi or not. These include 
  • Feature films
  • Television drama including series
  • TV and feature documentaries
  • Factual and natural history
  • Comedy
  • Commercials
  • Music videos 
  • Other television, such as lifestyle, reality, game shows and entertainment programmes
It also includes post-production and digital effects services supplied inside Abu Dhabi for projects shot outside the UAE.

The scheme is clearly aimed at attracting  film and programme makers from India and Pakistan who already use Dubai as a film location. The Abu Dhabi Film Commission already operates as an exchange for crews, production companies and locations.  According to its downloadable Locations Guide it can offer some spectacular backdrops for filming.

As I discussed in my articles "Copyright and Related Rights in the United Arab Emirates" of 4 Jan 2012 and 11 Feb 2012 films and performances are protected throughout the Union by Federal Law No. 7 of 2002 concerning Copyrights and Neighbouring Rights.  Abu Dhabi has not set up a local common law jurisdiction like the DIFC Courts or the QFC Civil and Commercial Court (see my article on the QFC of 3 April 2011) but the Abu Dhabi Chamber of Commerce does offer a commercial arbitration service.   Moreover, there appears to be nothing to prevent the choice of any law or jurisdiction in a film contract or contract for production services. Further information about the scheme can be obtained from the Abu Dhabi Film Commission's website or by calling  +971 2 401 2701.

Dubai is also a film location with a growing local film and TV industry. Film and production businesses are beginning to cluster in Dubai Studio City,   There is a also a cluster of advertisers, events management, marketing and other media businesses in Dubai Media City.  According to Rapid TV News, Dubai has recently enacted legislation to establish a film and television commission in Dubai along the lines of the Abu Dhabi Film Commission (see Rebecca Hawks "Dubai to establish film & TV commission" 28 May 2012).

As ever, should anybody wish to discuss this topic further, he or she can call me on +44 161 850 0080 or fill in my contact form. He or she can also contact me through Facebook, Linkedin, Xing or twitter.

Thursday, 10 May 2012

Gulf Co-operation Council Member States - Treaties and Intellectual Property Authorities

CountryTreaties and ConventionsIntellectual Property Office
BahrainBerne, Brussels, Madrid Protocol, Paris, Patent Co-operation, Patent Law, Rome, Trademark Law, TRIPS, WIPO Copyright, WIPO Performances and PhonogramsMinistry of Industry and Commerce
P.O. Box 5479
+973 17530335       
KuwaitTRIPSMinistry of Trade and Industry
Trademarks and Patents Department
P.O. Box 2944
Safat 13030
+965 22 42 4426
OmanBerne, Brussels, Budapest, Hague, Madrid Protocol, Nairobi, Paris, Patent Co-operation, Patent Law, Trademark Law, TRIPS, UPOV, WIPO Copyright, WIPO Performances and PhonogramsMinistry of Commerce and Industry
P.O. Box 550
Code No. 113
Oman+968 247 741 26 / 992 226 22
QatarBerne, Nairobi, Paris, Patent Co-operation, TRIPS, WIPO Copyright, WIPO Performances and PhonogramsIntellectual Property Center
Ministry of Justice
P.O. Box 917
+974 448 42 292
Saudi ArabiaBerne, Paris, TRIPSGeneral Directorate of Industrial Property, King Abdul-Aziz City for Science and Technology (KACST)
P.O. Box 6086
Riyadh 11442
+9661 481 4342
United Arab EmiratesBerne, Paris, Patent Co-operation, Rome, TRIPS, WIPO Copyright, WIPO Performances and PhonogramsDirectorate of Industrial Property, Ministry of Economy and Commerce
P.O. Box 901
Abu Dhabi
+971 2 613 1336

Tuesday, 1 May 2012

Qatar Intellectual Property Law

Last Saturday morning I listened to a report on BBC Radio 4 by Razia Iqbal about the Qatar Philharmonic. This is the first and so far only symphony orchestra in the Gulf and it is developing an enviable reputation.  The great American conductor Lorin Maazel is said to have rated it among the great orchestras of the world.  Certainly they seem to have been very received in London as this YouTube clip from their performance of Marcel Khalife’s Arabian Concerto at the Royal Albert Hall, London, on 8 April 2010.shows.

The Qatar Philharmonic is just one of a number of cultural initiatives in this tiny kingdom. In her programme Iqbal discussed several of the others grouped in the Katara Cultural Village, a complex of museums, theatres, academies and auditoriums just outside Doha.   The cultural village is itself one of a number of other initiatives to transform Qatar's society and economy.   Others include the Qatar Financial Centre, the educational cluster with local campuses of no less than 8 first rate universities including University College London and the Qatar Science and Technology Park.  

These initiatives complement an active foreign policy and, of course, the international broadcasting service, Al-Jazeera which, together, have contributed greatly to political change throughout the Middle East and North Africa. With a land area slightly smaller than that of Yorkshire and less than half that county's population, Qatar punches well above its weight.

The cultural, educational, scientific and technical initiatives discussed above will flourish only with a strong intellectual property base.  Qatar has been a member of the World Trade Organization and hence party to TRIPS since 1 Jan 1996. It is party to the Berne and Paris Conventions though not to Rome but it has signed up to the WIPO Phonograms and Performances Treaty as well as to the WIPO Copyright Treaty. In accordance with TRIPS Qatar has enacted:
Qatar is, of course, party to the Gulf Co-operation Council and enforces patents issued by the the GCC Patent Office in its territories. Patents, copyrights and semiconductor topographies  appear to be the responsibility of the Ministry of Justice while trade marks, designs and geographical indications are the responsibility of the Ministry of Business and Trade.

Should anyone wish to discuss this topic further he or she can call me on +44 161 850 0080 or fill in my contact form. He or she can also contact me through Facebook, Linkedin, Xing or twitter.

Monday, 19 March 2012

Why has no IP case come before the DIFC Courts?

In the 6 years of their existence the DIFC (Dubai International Financial Centre) courts have never actually had an intellectual property case. That is not because intellectual property falls outside their jurisdiction.  Arts 37 and 38 of the Centre's Law of Obligations (Law No 5 of 2005) codify the common law rules of confidence and passing off (see "The DIFC Law of Confidence" of 27 Jan 2011 and "The DIFC Law of Passing Off" 7 April 2011).

One possible reason why there have been no intellectual property cases in the DIFC courts is that patents and designs are about goods rather than services   There have been a few IP cases involving financial institutions in the UK such as HFC Bank plc v Midland Bank plc [2000] FSR 176 and  Cantor Fitzgerald International v Tradition (UK) Ltd  (2001) 24(9) IPD 24057, [2001] EWCA Civ 942 but they have been about branding and computer software. Another possible reason is that piracy and counterfeiting are dealt with by customs or other autoritties in the UAE.

There may be more scope for intellectual property litigation as a result of the DIFC Court of Appeal's decisions in Corinth Pipeworks SA v Barclays Bank Plc and Al Khorafi and Others v Bank Sarasin-Alpen (ME) Limited and Another and Law No 16 of 2011.   These cases were about torts that occurred outside the DIFC where the defendant was a "Centre Establishment".  If a business established or carrying on business within the DIFC infringes an intellectual property right anywhere in the UAE it should be possible to sue it in the Centre.  If the parties to a licence or other agreement relating to intellectual property rights can be sure of an English speaking common law forum (as they now can thanks to Law No 16 of 2011) they may well be tempted to choose DIFC law and the DIFC courts in their choice of law and jurisdiction clauses.

Part 25 of the  Rules of the DIFC Courts provide all the interim remedies that are available under the Civil Procedure Rules including search orders and freezing injunctions. The forms and procedure are very similar to those of the Chancery Division in England.

Should anyone wish to discuss this topic further he or she can call me on +44 161 850 0080 or fill in my contact form. He or she can also contact me through Facebook, Linkedin, Xing or twitter.

Saturday, 25 February 2012

DIFC Courts' Jurisdiction: Corinth Pipeworks Appeal Allowed

In CFI 024/2010 Corinth Pipeworks S.A. v Barclays Bank PLC Sir Anthony Colman, Deputy Chief Justice of the DIFC struck out Corinth Pipeworks SA's claim for damages for statements allegedly made by one of the employees of the defendant's Jebel Ali branch on the grounds that the DIFC courts had no jurisdiction to hear a claim for wrongdoing outside the Centre even though the defendant bank carried on business within the Centre. I discussed that case in DIFC Court: Corinth Pipeworks SA v Barclays Bank Plc on 11 March 2011. The claimant appealed.   In CA 002/2011 Corinth Pipeworks SA v Barclays Bank Plc the Court (Chief Justice Michael Hwang SC and Justices Sir John Chadwick and His Excellency Ali Al Madhani) allowed the appeal.

The DIFC Courts' jurisdiction derives from Law No.12 of 2004 in respect of The Judicial Authority at Dubai International Financial Centre.  Art 5 (1) (a) of that law confers exclusive jurisdiction on the Court of First Instance in respect of "civil or commercial disputes civil or commercial cases and disputes involving the Centre or any of the Centre’s Bodies or any of the Centre’s Establishments."  Art 2 defined "Centre Establishments" as
"Any entity or business duly established or carrying on business in the Centre, including any Licensed Centre Establishments."
The same article defined "Licensed Centre Establishments" as "Any entity licensed, registered or otherwise authorised to carry on financial or banking business."  Sir Anthony had held that the branch of the defendant company that carried on business in the DIFC was a "Centre Establishment" but not the bank as a whole.

The Court of Appeal disagreed with Sir Anthony's "reasoning that a "Centre Establishment" can be identified as an unincorporated entity which is permitted to conduct business within the DIFC in accordance with the terms of its license and registration with the DIFC."   In the words of the Chief Justice at paragraph [59]:
"Centre Establishment" must be a legal entity because that is the only way in which the term "entity" used in Article 2 of Law No. 12 can be understood. Where a bank is licensed to carry on business in a place outside its country of incorporation, it is necessary for that bank to carry on business either through an unincorporated branch of the bank or through a separate legal entity which is a subsidiary of the bank. Bank regulators frequently, if not typically, require foreign banks to carry on mainstream banking business through a branch rather than a local subsidiary. However, it would be uncommon for an unincorporated branch of a foreign bank to be treated under local law as a legal entity separate and distinct from its head office unless it has been separately incorporated as a subsidiary. I cannot therefore accept the proposition advanced by the Deputy Chief Justice that a "Centre Establishment" can be an entity which may be (to use the learned Judge's words) "within the corporation". A branch is no different in law from a division, and a division of a corporation is part of that corporation, and has no legal entity of its own (although it may be treated as an accounting entity for certain purposes)."
Having found that an unincorporated DIFC branch of a foreign bank cannot be regarded as an independent entity for purposes of qualifying as a "Centre Establishment", it followed that this term had to be interpreted to mean the defendant bank and its various branches, wherever located. Accordingly, the DIFC Courts had jurisdiction over the conduct of the branch where the alleged wrongdoing took place.

While sharing Sir Anthony's concern as to the limits of the DIFC courts' jurisdiction, the Chief Justice noted at paragraph [68] that:
"(a)    It is entirely within the control of banks and other enterprises carrying on business in the DIFC and the wider Emirate of Dubai as to whether they choose to subject their business within the wider Emirate to the jurisdiction of the DIFC Courts — if they do not wish to do so, they can either trade through separate corporate vehicles in the DIFC and the wider Emirate or (even more simply) include jurisdiction clauses in their contracts choosing where they allocate jurisdiction over any disputes.
(b)    There may well be good reasons why banks and other enterprises carrying on business in both the DIFC and the wider Emirate of Dubai should choose to subject their business within the wider Emirate to the jurisdiction of the DIFC Courts — their business may (as in the present case) be carried on in the English language, and/or their transactions may be subject to a substantive law other than that of the Emirate.
(c)   The situation under consideration will clearly not arise where the "Centre Establishment" is a company incorporated and carrying on business in the UAE outside the Emirate of Dubai or elsewhere. The principles of private international law limit the powers and discretion of the DIFC Courts so as to prevent the exercise of exorbitant jurisdiction, and the DIFC Courts possess the discretion to decline jurisdiction on grounds of forum non conveniens."
Sir John Chadwick and His Excellency Ali Al Madhani delivered concurring judgments.

The Court of Appeal's decision in Corinth Pipeworks follows hot on the heels of the decree of 31 Oct 2011 which extended the DIFC courts' jurisdiction to cover any business dispute from any part of the world.     I commented on the extension of the Court's judgment in "DIFC Courts Spread Their Wings" on 7 Dec 2011.   The combined effect of the decree and appeal is to enhance considerably the convenience of the court for determining all manner of commercial disputes including those relating to intellectual property.

Though an IP case is yet to come before the DIFC courts there is no reason why it should not handle one effectively.   Sir John Chadwick heard plenty such cases when he sat in the Chancery Division in London.   Part 25 of the Rules of the DIFC Courts enable those courts to grant interim injunctive relief as quickly and effectively as any court in the world. 

Should anyone wish to discuss this topic further he or she can call me on +44 161 850 0080 or fill in my contact form. He or she can also contact me through Facebook, Linkedin, Xing or twitter.

Tuesday, 21 February 2012

Doing Business in Dubai

Yesterday afternoon I attended the seminar on Doing Business in Dubai that I announced on 24 Jan 2012.. Shortly before the event I was advised that it had been moved from Knowles Warwick's offices to the Double Tree Hilton Hotel.  As you can see, the hotel's website is not particularly informative and nobody in the area seemed to have heard of an hotel by that name (though they had heard of a Moat House which had been there some years earlier).   There was not even a "Double Tree Hilton" sign outside the hotel.   As a result I missed Steve Knowles's speech altogether and the start of Zayd Maniar's.  However, I did get the slides for both presentations.

According to the slides, Steve dealt with two issues:
  • the benefits of people from the UK doing business abroad; and
  • how doing business abroad can actually reduce risk.
He also chaired the meeting.

The benefits that he identified were as follows:
  • Tax Incentives: some countries offer lower tax rates or other concessions which enable businesses to retain a bigger share of the profits and reduce their costs;
  • Cost Advantages: lower labour and raw materials costs;
  • Enhancing Brand Value: brands gain prestige if they are used outside the UK;
  • Diversification: new ides and technologies;
  • Economies of scale: and 
  • Enhanced competitiveness.
Doing business abroad reduced risk by enabling businesses to reducing exposure to the adverse economic conditions prevailing in the UK.

Zayd is the international liaison partner for Horwath MAK, Crowe Horwath's office in Dubai.  He read economics at Reading and qualified as a chartered accountant in England and Wales..   His background appears on the "Our Partners" page of the firm's website.  The slides that I missed were about Horwath MAK which has carried on business in Dubai for the last 30 years and an overview of the economic situation in Dubai.   According to the slides, the UAE had experienced a period of high inflation as a result of a property boom but that has now come to an end and the country expected strong and stable growth from tourism, transport, manufacturing and services as well as energy.

I joined the presentation as Zayd outlined the constitutional structure of the UAE (a topic that I had discussed  in "The Legal Order of the United Arab Emirates" on 11 Nov 2011) and profiled the emirates of Dubai and the federal capital, Abu Dhabi.  The economy of the Union has been boosted by the establishment of a number of free zones where foreign owned businesses could operate without a local partner and repatriate their profits as and when they wished.  Some of these zones were located around ports but others are specialist zones such as the Commodities Centre, the Knowledge Village and, of course, the Dubai International Financial Centre.  Zayd said Horwath MAK were in several of those zones.

Zayd outlined the types of businesses entity that can be established in the UAE. These are very much the same as everywhere else, namely public and private limited companies, general and limited partnerships and "partnerships limited with shares" which I took to be limited liability partnerships.  Except for businesses in the free zones, it is necessary to incorporate in the UAE with a local partner.  There is no federal income tax on salaries or wages but the federal government is thinking of introducing VAT and there are high import duties on certain goods.   

At this point, Steve chipped in to point out the absence of income tax meant that there was nothing against which one could get tax relief.  If losses were to be expected in the early stages of an enterprise it could be better to bear those losses here or some other country and somehow export the business to the UAE.  However, that will require a lot of thought and some care because Steve and Zayd also warned in a later discussion that tax is levied in the UK on earnings of businesses that are managed from this country wherever the income is generated.   Zayd told a very sad tale about one small business which was landed with a £400,000 tax bill because it failed to heed Zayd's advice to get tax advice from the UK as well as the UAE. It is worth mentioning that Steve's nickname is "tax champion".

Knowles Warwick had asked for questions to be submitted in advance and I had asked two to which I already knew the answers.   My first question was on the nature and extent of IP protection in the UAE. Zayd confirmed that the authorities took a dim view of counterfeiting and piracy. He mentioned a case in which he had been involved where Burgerking had moved against a fast food restaurant whose proprietor's surname was the Arabic word for King.  IP infringements can often be resolved without recourse to litigation because customs officers intercept infringing goods at the border or other administrative action can be taken. The penal code of the UAE is as tough as Texas's in that almost any offence is punished with a custodial sentence and/or deportation. There are, however, lacunae in that the emirates have their own laws which sometimes allow anomalies.   My second question was on the DIFC court which Zayd thought was a good thing.  He went into some detail about its small claims jurisdiction.  I made a few supplemental observations about the recent extension of jurisdiction and that the court was an English speaking, common law enclave with English and Commonwealth judges and counsel in a civil law federation.

Other questions covered setting up branches and businesses, restrictions on the import of goods such as medicines and medical devices, market research and making contacts.   We were told to familiarize ourselves with different business norms and customs.  Initial connections can be made through UK Trade and Investment and occasionally through the British consulate.

Altogether, we had a very good afternoon.  I already knew Steve quite well and I was pleased to meet Zayd. I had already worked with a forensic accountant in one of a Horwath's British offices in several cases and got to know several others over the last 20 years.   Should anyone wish to follow up this discussion, he or she can call me on +44 161 850 0080 or fill in my contact form. He or she can also contact me through Facebook, Linkedin, Xing or twitter.

Saturday, 11 February 2012

Copyright and Related Rights in the United Arab Emirates: Part II

This article continues and concludes my introduction to copyright and related rights in the United Arab Emirates ("UAE"). In Part I I discussed the treaties and conventions to which the UAE is party, the implementing legislation, copyright works and performances, economic and moral rights and the term. In this Part I consider subsistence, licensing and assignment, regulation of collecting societies, infringement and remedies.

Federal Copyright Copyright Law
The basic copyright law statute is Federal Law No. (7) of the Year 2002 Concerning Copyrights and Neighbouring Rights ("FL7"). An English translation appears on the WIPO website.

Art 2 of FL7 confers upon owners of copyright and neighbouring rights the protection of this law against an aggression against their rights. Art 4 establishes a system for the registration and deposit of copyright works.According to the WIPO website, the copyright office for the UAE is the Ministry of Publishing and Copyright Department, P.O. Box 901, Abu Dhabi Tel +971 506 162 120, Fax +971 262 62 867. The Director of the authority is Fawzi Abdel Aziz Algabri.

Transfer of Rights
Subject to art 15, art 9 of FL7 permits a copyright owner to transfer all or part of his economic rights provided that he does so in writing and specifies the right, purpose, duration and place of exploitation.  Art 10 permits such transfer to be in consideration of money or moneysworth provided that the fairness of the transfer may later be reviewed by the courts under art 11. Art 15 prohibits the alienation of all or more than 5 prospective works.

Compulsory Licensing
Art 21 of FL7 permits any person to apply to the Ministry of Information and Culture for a compulsory licence for the translation or reproduction of a copyright work. The Ministry sets the terms of such licence.

Exceptions to Copyright
Copyright is not infringed by any of the following acts:

  • making a single copy of a copyright work (other than a work of fine or applied art, work of architecture of computer program except as otherwise provided) for personal and non-commercial or professional but personal use of the copier under art 22 (1);
  • making a single copy of a computer program for back-up purposes by a licensed user for so long as the licence subsists under art 22 (2);
  • use in judicial proceedings under art 22 (3);
  • making a single copy subject to acknowledgements for the purpose of preserving the original or research or private study if not otherwise licensed under art 22 (4);
  • quotation of short passages for the purposes of criticism, discussion or review provided that the extract is accompanied by a proper acknowledgement under art 22 (5);
  • performing a work in private to a domestic or academic audience without remuneration under art 22 (6);
  • including publicly available fine arts, applied or plastic works of art or works of architecture in a broadcast under art 22 (7); and
  • reproduction of extracts from written works, sound recordings or audio-visual performances for cultural, educational, religious or vocational training provided that no more is taken than is reasonably necessary for the purpose, the author is mentioned, no profit is intended and it is not possible to obtain a licence by other means under art 22 (8).
Art 23 permits newspapers, periodicals and broadcasters to copy excepts from published works and speeches for reporting news and current affairs upon the conditions specified in the article.

Regulation of Collecting Societies
Collecting societies have to be licensed annually by the Minister of Information and Culture pursuant to art 32 of FL7.They are required to keep records of their members and finances which may be inspected by the Ministry. Licences may be withdrawn at any time.

Copyright infringement is an offence punishable by fine or imprisonment under art 37 of FL7.  Allegedly infringing copies of copyright works may be impounded by customs under art 36.  There is also a right of pre-emptive seizure under art 34 provided that proceedings are instituted within 15 days (art 34 (6) FL7).

Further Information
Should anybody wish to discuss this topic further, he or she can call me on +44 161 850 0080 or fill in my contact form. He or she can also contact me through FacebookLinkedinXing or twitter.  

Tuesday, 24 January 2012

Sheffield Seminar on Doing Business in Dubai

Sheffield accountants Knowles Warwick plan a free seminar on "Doing Business in Dubai" at their offices at 183 Fraser Road, Sheffield, S8 0JP on Monday, 20 Feb 2012 between 14:30 and 16:00.

The speakers will be Steve KnowlesPresident at Sheffield & District Society of Chartered Accountants and Managing Director of Warwick Knowles, and Zaid Maniar, International Liaison Partner of Crowe Horwath's office in the United Arab Emirates.

Topics for discussion will include:

  • the benefits and pitfalls of establishing a business in Dubai
  • what are free zones and how do they work
  • international tax planning advice, and
  • local business rules and customs.
I shall be there with lots of questions about the Dubai International Financial Centre and its courts.

Places at the seminar are likely to go quickly so call Sarah Whiteley on 0114 285 0165 if you want to attend.

Wednesday, 4 January 2012

Copyright and Related Rights in the United Arab Emirates: Part I

Because of the complexity of the topic I shall discuss it in two separate articles.   In this article I shall deal with the Treaties and Conventions to which the United Arab Emirates ("UAE") is party, the applicable domestic legislation, the works that are protected, economic and moral rights and the term of subsistence of these rights.  In Part II I shall discuss exceptions to copyright and rights in performances, collecting societies, infringement and remedies.

International Agreements
The UAE was one of the first members of the World Trade Organization and is party to the Berne Convention, the WIPO Copyright Treaty, the Rome Convention and the WIPO Performers and Phonograms Treaty. Those conventions and treaties require the UAE to protect the works of art and literature of its nationals and those of nationals of other contracting parties.

Implementing Legislation
The legislation that implements the UAE's obligations under those instruments is Federal Law No. 7 of the Year 2002 Concerning Copyrights and Neighbouring Rights ("FL7").   It is available in Arabic and English on the WIPO Collection of Laws for Electronic Access.  FL7 was issued on 1 July 2002 by the President of the Union with the consent of the Council of Ministers and the Principal of the Supreme Council of the Union.

FL7 codifies the law of copyright and rights in performances. Compared to the Copyright, Designs and Patents Act 1988 of the United Kingdom it is a very short instrument consisting of 50 articles in 8 sections over 16 pages including contents and recitals.

Copyright Works
Art 2 of FL7 lists the following:

1. Books, pamphlets, essays and other written works;
2. Computer programs and applications, databases and analogous works;
3. Lectures, addresses, sermons and other works of similar nature;
4. Dramatic works and mine,
5. Musical compositions with or without words,
6. Sound and audiovisual works,
7. Architectural works, engineering plans and layouts,
8. Drawings, paintings, sculptures, lithographs, engravings and similar works,
9. Photographic and analogous works,
10. Works of applied and plastic art,
11. Illustrations, geographical maps, sketches, three-dimensional works relative to geography, topography and architecture (art 2).

Copyright does not extend to Ideas
Art 3 makes clear that "protection does not extend to mere ideas, procedures, methods of work, mathematical understandings, principles, and abstract facts, but extend to creative expression in any of them."

Art 3 also provides that protection does not extend to:
(1) official documents such as laws, regulations, decisions, international agreements, judgments, arbitrators’ awards and the decisions of the administrative committees having judicial competence;
(2) news, events and the current affairs which constitute merely media news, or
(3) works in the public domain.
However, copyright can subsist in compilations of such materials.

Authors' Economic Rights
Art 7 reserves to the author (or persons deriving title through the author) the right to exploit the work by any means including copying, "electronic loading or storing, acting a play by any means, broadcasting, re-broadcasting, transmission, performance, public communication, translation, modification, alteration, rental, lending or publication by any means including provision of publication through computers or information nets or communication nets or other means." These rights can be assigned, licensed or seized by creditors in contrast to moral rights which are inalienable.

Authors' Moral Rights
Art 5 confers the following moral rights upon an author:
"1. The right to determine first publication of the work;
2. The right of writing the work in his name;
3. The right to protest against alteration of the work if the alteration leads to distortion,
mutation or causing derogation to the author.
4. The right to withdraw his work from circulation in case of serious reasons justifying
such an act."
Rights in Performances
Section 3 of FL7 confers economic rights on performers, "producers of phonograms" and broadcasters.   In addition, performers enjoy moral rights in their performances.

Performers are defined in art 1 of FL7 as:
"The actors, singers, musicians, dancers and other persons who recite, chant, play or perform by any way literary or artistic works or others protected according to the provisions of this law or inclusive within the public property."
Art 17 confers the following economic rights on performers
"1. The right to transmit their unfixed performance and communicating it to the public.
2. The right to fix their performance on a phonogram.
3. The right to reproduce their fixed performance on a phonogram."
Their moral rights are as follows:
"(i) The right of having the performance in their names whether live or recorded.
(ii) The right to suspend any distortion, mutilation, modification or derogation action, which would be prejudicial to their status."
Producers of Phonograms
A phonogram is defined by art 1 as "any fixation of certain performed sounds addressing the hearing irrespective of the mode of fixation or the used device." The definition also includes "sounds fixation with picture in order to prepare audiovisual work unless agreed otherwise." A "producer of a phonogram" is defined by the same article as "the natural or legal person who records for the first time sounds of a performer or other sounds."

Art 18 confers the following rights upon producers of phonograms:
"1. The right to prohibit any exploitation of their phonograms by any means without their authorization. Copying, rental, broadcasting, re-broadcasting, availability to the public via computer or other media is an exploitation prohibited to be used by third parties.
2. The right to disseminate their recordings via wire, wireless, computer or other means."
Art 19 confers the following rights upon broadcasters:

1. The right to grant licenses for exploitation of their recordings and broadcasting programmes.
2. The right to prohibit any communication of their programmes or recordings to the public without their authorization. Recording of such programmes, copying or re-copying their recordings, rental, re-broadcasting, and communication to the public by any means are prohibited to the third parties in particular.

Copyright subsists for the following terms in respect of the following categories of rights:
  • Authors' Economic Rights: the life of the author or in the case of a joint work the life of the last surviving author plus 50 years (art 20 (1) and (2));
  • Economic Rights in Applied Arts: 25 years from first publication (art 20 (5));
  • Economic Rights of Performers: 50 years from the beginning of the calendar year after the performance (art 20 (7));
  • Economic Rights of Producers of Phonograms: 50 years from the beginning of the calendar year after the publication of the phonogram (art 20 (8)); 
  • Economic Rights of Broadcasters: 20 years fro the beginning of the year of first transmission (art 20 (9)).
Further Information
Should anybody wish to discuss this topic further, he or she can call me on +44 161 850 0080 or fill in my contact form. He or she can also contact me through FacebookLinkedinXing or twitter.
Modified 11 Feb 2012