Gulf

Doing Business in Dubai

2012-02-21T04:15:00.000-08:00

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.

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

2012-02-11T10:07:00.000-08:00

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.

Subsistence
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.

Remedies

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 Facebook, Linkedin, Xing or twitter.

Sheffield Seminar on Doing Business in Dubai

2012-01-24T04:40:00.000-08:00

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 Knowles, President 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.

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

2012-01-04T14:13:00.000-08:00

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.

Overview
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."

Exceptions
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
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."

Broadcasters
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.

Term
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)).

News from Qatar

2011-12-15T00:17:00.000-08:00

I have just received some interesting news from Qatar in an email from Mr. Brahim Benmin, a legal advisor to the Council of Ministers:

new anti-counterfeiting legislation which empowers the authorities to impound goods such as compact discs at the borders; and
a very tempting employment opportunity for a senior intellectual property lawyer at the Qatar Foundation.

I am told that the text of the new anti-counterfeiting law is available only in Arabic. I shall post a link to the text and any translation as soon as I can. Anyone interested in the intellectual property laws of Qatar (which must include candidates for the job with the Qatar Foundation) can find translations of the country's constitution, intellectual property legislation and the treaties to which Qatar is party on Qatar's page of the WIPO website.

The Qatar Foundation for Education, Science and Community Development is established to help transform Qatar from on oil based to a knowledge based economy. I have not yet found any details of the job but you can find information on careers with the Foundation generally and contact numbers and an email to the personnel office on the "Work at Qatar Foundation" page of the Foundation's website. If anyone at the Foundation wants to add any more details of the job or the work of the Qatar Foundation in general I shall be very glad to publish them.

Mr. Benmin has told me that his government is very keen to advise and assist businesses and institutions that wish to invest in or trade with Qatar. I shall be glad to pass on any serious enquiries to him if you contact me on +44 161 850 0080 or complete my contact form.

DIFC Courts Spread Their Wings

2011-12-06T16:14:00.000-08:00

In the DIFC Court I wrote about the 45 hectare free zone in Dubai known as the Dubai International Financial Centre ("DIFC") and the special English speaking common law jurisdiction within the Centre aptly described by its present Chief Justice Michael Hwang SC as a "common law island in a civil law ocean" (address to Lawasia Conference, Kuala Lumpur 1 Nov 2011) which has contributed greatly to the DIFC's success.

When I wrote that article in January 2011 the court's jurisdiction was limited by art 5 of Law No 12 of 2004 to disputes relating to the DIFC. The practical effect of this limit was shown by Sir Anthony Colman's decision in Corinth Pipeworks S.A. v Barclay's Bank PLC of 8 Feb 2011 which I discussed in my case note of 20 March 2011. In that case the court refused to entertain an action arising out of an allegedly false statement by an employee of the defendant bank made within Dubai but outside the Centre on the ground that it had no connection with the DIFC.

By a decree dated 31 Oct 2011 HH Sheikh Mohammed bin Rashid Al Maktoum, the ruler of Dubai who is also Vice-President and Prime Minister of the United Arab Emirates, has extended the DIFC courts' jurisdiction to cover any business dispute from any part of the world (see the DIFC courts' press release of 31 Oct 2011).

The significance of this announcement is that it should shortly be possible to resolve a much wider range of cases, including intellectual property licensing and maybe even some infringement disputes, before an English speaking common law tribunal applying rules of procedure modelled on the Civil Procedure Rules. Since the UAE is party to a number of international and regional agreements on the enforcement of judgments it may be possible to refer cases from other parts of the Middle East or North Africa. Clearly the parties have to consent to the jurisdiction of the DIFC courts unless they come within its jurisdiction on some other ground. No doubt that can be done by a choice of jurisdiction clause specifying the DIFC courts in a licence or other agreement.

Should anybody wish to discuss this article or the topic in general he or she should not hesitate to contact me on +44 161 850 0080 or complete my on-line contact form.

Background Reading

Jane Lambert "The Legal Order of the United Arab Emirates" 11 Nov 2011

Sir Anthony Evans "Dispute Resolution in the DIFC" 16 Feb 2009 (DIFC website)

Sir Anthony Evans "Dispute Resolution in the DIFC" Oct 2008 (DIFC website)

Michael Hwang SC "The Courts of the DIFC - A Common Law Island in a Civil Law Ocean" (DIFC website)

Jane Lambert "DIFC Courts" 7 Jan 2011 (JD Supra website)

The Legal Order of the United Arab Emirates

2011-11-11T17:47:00.000-08:00

I have written several articles on Dubai ("Why Dubai or the Rest of the Gulf for that Matter", 14 Jan 2011), the Dubai International Financial Centre ("DIFC"), "The DIFC Courts", 7 Jan 2011, their jurisdiction (Corinth Pipeworks SA v Barclays Bank Plc 20 March 2011) and rules of court (12 May 2011), the DIFC laws of confidence (27 Jan 2011), passing off (7 April 2011) and data protection (1 Aug 2011) and the new dispute resolution policy for .ae domain names (22 Jan 2011). Dubai is, of course, a member of the United Arab Emirates ("UAE") and it is high time for me to discuss the legal context in which the DIFC is set.

The UAE

The UAE is a federation of the following hereditary monarchies or emirates:

Abu Dhabi
Ajman
Dubai
Fujairah
Ras al-Khaimah
Sharjah, and
Umm al-Quwain.

These emirates have a combined population of 8.26 million in a land area of 83,600 square kilometres. Their federal capital is Abu Dhabi.

UAE's Constitution

The UAE's constitution was adopted by the rulers of the emirates on 2 Dec 1971. Art 1 describes the Union as "an independent, sovereign, federal state" which "any other independent Arab country may join". Art 6 declares that:

"The Union is a part of the Great Arab Nation to which it is bound by the ties of religion, language, history and common destiny .

The people of the Union are one people, and one part of the Arab Nation."

Art 3 declares that

"The member Emirates shall exercise sovereignty over their own territories and territorial waters in all matters, which are not within the jurisdiction of the Union as assigned in this Constitution."

However, art 2 provides that the Union is to exercise sovereignty in matters assigned to it by the constitution throughout the territories of the emirates. Art 4 precludes the cession of that sovereignty.

Aims of the UAE

The aims of the Union as set out in art 10 are as follows:

the maintenance of the UAE's independence and sovereignty
safeguarding its security and stability
the defence against any aggression upon its existence or the existence of its member states
the protection of the rights and liabilities of the people of the Union
the achievement of close co–operation between the emirates for their common benefit in realising these aims and in promoting their prosperity and progress in all fields
the provision of a better life for all citizens together with respect by each emirate for the independence and sovereignty of the other emirates in their internal affairs within the framework of the constitution.

Economic Union

Art 11 establishes an "economic and customs union" between the emirates with free movement of capital and goods. Free movement of labour is implicit in art 8 which provides that the citizens of the Union shall have a single nationality.

Institutions

Art 45 establishes the following federal institutions:

Supreme Council,
President and his Deputy,
Council of Ministers,
Federal National Council, and
the Union Judiciary.

Supreme Council

The Supreme Council consists of the rules of the emirates or their deputies and is the highest authority of the Union (art 46). It exercises executive and legislative powers.

President

One of its most important functions of the rulers assembled in the Supreme Council is to choose the President and Vice-President from among their number pursuant to art 51. The President and Vice-President hold office for 5 years and exercise wide executive powers under art 54. However, a convention appears to be developing that the ruler of Abu Dhabi is ipso facto the President of the UAE. The incumbent is Khalifa bin Zayed Al Nahyan who inherited that office from his father, the first President of the Union.

Council of Ministers

Art 55 of the constitution establishes a Council of Ministers consisting of a prime minister, a deputy prime minister and a number of ministers chosen from citizens of the UAE known for their competence and experience. The Council has responsibility for such matters as defence, foreign affairs, internal affairs, justice, posts and telecommunications, education and public health.

Federal National Council

Art 68 provides for a Federal National Council consisting of 40 members representing the emirates in rough proportion to their population. The Council constitutes the popular element of government though not necessarily a democratic one since art 69 allows each emirate to choose the method of selection of its representatives.

Union Judiciary

Art 95 establishes a Union Supreme Court and Union Primary Tribunals.

Legal System

In addition to the Union Judiciary, each emirate has its own courts. Except for the DIFC (which is a common law enclave) the legal system is based on civil or Roman law though Islamic law remains for family and inheritance matters.

Further Information

Anyone wishing to discuss this article should call me on 0800 862 0055 or get in touch by twitter, Linkedin, Facebook, or my contact form.

Qatar Financial Centre Data Protection Regulations

2011-10-29T02:06:00.000-07:00

On 1 Aug 2011 I referred to an article by James Mitchell of "Privacy Laws and Business" which claimed that the DIFC Data Protection Law made in 2007 was the first data protection law in any Arab country (see "DIFC Data Protection Law", 1 Aug 2011). It seems that Mr. Mitchell and I may have been wrong because the Qatar Financial Centre Data Protection Regulations were made by Mohamed bin Ahmed bin Jassim Al Thani, Minister of Economy and Commerce of the State of Qatar, as long ago as 17 Oct 2005.

Overview

Like the DIFC Data Protection Law, the QFC Regulations seem to have been influenced by the EU Data Protection Directive (Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data OJ L 281 , 23/11/1995 P 31 - 50) and the British Data Protection Act 1998. Doubtless that is because art 25 (1) of the Directive requires EU member states to

"provide that the transfer to a third country of personal data which are undergoing processing or are intended for processing after transfer may take place only if, without prejudice to compliance with the national provisions adopted pursuant to the other provisions of this Directive, the third country in question ensures an adequate level of protection."

Accordingly, the QFC regulations provide for notification, conditions for legitimate processing, rights of access for data subjects and a range of remedies. The regulations are admirably brief cramming these provisions into 17 pages. They are supplemented by the Data Protection Rules which take up another 12 pages.

Application

These regulations came into force on the 17 Oct 2005 and apply to the Qatar Financial Centre. Art 2 of the Regulations provide that to the fullest extent permitted by the QFC law Qatari the laws concerning the subject matter of the legislation that apply to the rest of Qatar shall not apply to the Centre.

The QFC Authority

The Regulations are administered by the QFC Authority, the body whose powers and constitution were considered in my article on the Qatar Financial Centre of 1 April 2011. Art 19 (2) confers upon the Authority powers to:

(a) access personal data processed by data controllers or data processors;

(b) collect all the information necessary for the performance of its supervisory duties;

(d) issue warnings or admonishments and make recommendations to data controllers; and

(e) bring contraventions of the regulations to the attention of ant tribunal.

The Authority keeps a register of personal data processing pursuant to art 18 of the Regulations. It has power to make rules to implement the Regulations under art 21.

Duty to Keep Records

Data controllers are required by art 17 (1) to establish and maintain a record of all wholly or partly automatic personal data processing operations or set of such operations intended to secure a single purpose or several related purposes. Rule 4.1 of the Rules specify that such records must include:

(a) a description of the personal data processing being carried out;

(b) an explanation of the purpose for the personal data processing;

(D) a description of the class of personal data being processed; and

(E) a list of the jurisdictions to which personal data may be transferred by the data controller, along with an indication as to whether the particular jurisdiction has been assessed as having adequate levels of protection for the purposes of the transfer prohibition provisions to be discussed below.

Duty to Notify

Rule 4.2 of the Rules require data holders to "notify the QFC Authority of any of the following Personal Data Processing operations undertaken other than in accordance with a permit issued by the QFC Authority:

(A) any Personal Data Processing operation or set of operations involving the Processing of Sensitive Personal Data; and

(B) any Personal Data Processing operation or set of operations involving the transfer of Personal Data to a Recipient outside of the QFC which is not subject to laws and regulations which ensure an adequate level of protection."

Such notification must include:

"(A) the name of the Data Controller;
(B) the address of the Data Controller;
(C) the name, address, telephone number, fax number and e-mail address of the Person within the Data Controller responsible for making the application for the permit;
(D) the reason for which notification is being provided;
(E) a general description of the Personal Data Processing being carried out;
(F) an explanation of the purpose of the Personal Data Processing;
(G) the Data Subjects or class of Data Subjects whose Personal Data is being processed;
(H) a description of the class of Personal Data being processed; and
(I) a statement of which jurisdictions to which Personal Data will be transferred by the Data Controller, along with an indication as to whether the particular jurisdiction has been assessed as having adequate level of protection for the purposes of Articles 9 and 10 of the Data Protection Regulations."

Data Controllers' Obligations

Art 6 (1) of the Regulations requires data controllers to ensure that the personal data that they process is:

(A) processed fairly, lawfully and securely;

(B) processed for specified, explicit and legitimate purposes in accordance with the data subject’s rights and not further processed in a way incompatible with those purposes or rights;

(D) accurate and, where necessary, kept up to date; and

(E) kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data was collected or for which they are further processed.

Data controllers are obliged by art 6 (3) to establish and maintain systems and controls that enable the to satisfy themselves that they comply with the above requirements.

Legitimate Processing

The conditions for legitimate data processing are set out in art 7:

(1) the data subject has unambiguously given his consent;

(2) Processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;

(3) Processing is necessary for compliance with any legal obligation to which the data controller is subject;

(4) Processing is necessary in order to protect the vital interests of the data subject;

(5) Processing is necessary for the performance of a task carried out in the interests of the QFC or in the exercise of QFC Authority, Regulatory Authority, Tribunal or Appeals Body functions or powers vested in the data controller or in a third party to whom the personal data is disclosed; or

(6) Processing is necessary for the purposes of the legitimate interests pursued by the data controller or by the third party or parties to whom the personal Data is disclosed, except where such interests are overridden by compelling legitimate interests of the data subject relating to the data subject's particular situation.

Sensitive Personal Data

"Sensitive personal data" is defined as personal data revealing or relating to racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership and health or sex life." Art 8 (1) provides that sensitive personal data shall not be processed unless:

(A) the data subject has given his explicit consent to the processing of that personal data;

(B) Processing is necessary for the purposes of carrying out the obligations and specific rights of the data Controller in the field of employment law;

(C) Processing is necessary to protect the vital interests of the data subject or of another person where the data subject is physically or legally incapable of giving his consent;

(D) the Processing is carried out by a foundation, association or any other non-profit-seeking body in the course of its legitimate activities with appropriate guarantees that the processing relates solely to the members of the body or to persons who have regular contact with it in connection with its purposes and that the personal data is not disclosed to a third party without the consent of the data subjects;

(E) the processing relates to personal data which is manifestly made public by the data subject or is necessary for the establishment, exercise or defence of legal claims;

(F) Processing is necessary for compliance with any legal obligation to which the data controller is subject;

(G) Processing is necessary to uphold the legitimate interests of the data controller recognised in the international financial markets, provided that such is pursued in accordance with international financial standards and except where such interests are overridden by compelling legitimate interests of the data subject relating to the data subject's particular situation;

(H) Processing is necessary to comply with auditing, accounting or anti money laundering obligations that apply to a data controller; or

(I) Processing is required for the purposes of preventive medicine, medical diagnosis, the provision of care or treatment or the management of health-care services, and where that Personal Data is processed by a health professional subject under national laws or regulations established by national competent bodies to the obligation of professional secrecy or by another person also subject to an equivalent obligation of secrecy.

However, these conditions do not apply where a data controller obtains a permit to process sensitive personal data from the QFC Authority and applies "adequate safeguards" with respect to the processing of such data (art 8 (2)). Rule 2 of the Rules sets out the procedure for applying for such a permit.

Transfer of Data outside the QFC

Subject to the following exceptions, a data controller may only transfer personal data to a recipient located in a jurisdiction outside the QFC if an adequate level of protection for that personal data is ensured by laws and regulations that are applicable to the recipient (art 9 (1)). The adequacy of the level of protection depends on all the circumstances including but not limited to

(A) the nature of the data;

(B) the purpose and duration of the proposed processing operation or operations;

(C) if the data does not emanate from the QFC, the country of origin and country of final destination of the personal data; and

(D) any relevant laws to which the recipient is subject, including professional rules and security measures (art 9 (2)).

Guidance for assessing such adequacy is provided by rule 3.1 of the Rules.

Alternatively, data may be transferred outside the QFC if any of the following conditions are met:

(A) the QFC Authority has granted a permit for the transfer or the set of transfers and the data controller applies adequate safeguards with respect to the protection of the personal data;

(B) the data subject has given his unambiguous consent to the proposed transfer;

(C) the transfer is necessary for the performance of a contract between the data subject and the data controller or the implementation of pre-contractual measures taken in response to the data subject's request;

(D) the transfer is necessary for the conclusion or performance of a contract concluded in the interest of the data subject between the data controller and a third party;

(E) the transfer is necessary or legally required on grounds important in the interests of the QFC, or for the establishment, exercise or defence of legal claims;

(F) the transfer is necessary in order to protect the vital interests of the data subject;

(G) the transfer is made from a register which according to laws or regulations is intended to provide information to the public and which is open to consultation either by the public in general or by any person who can demonstrate legitimate interest, to the extent that the conditions laid down in law for consultation are fulfilled in the particular case;

(H) the transfer is necessary for compliance with any legal obligation to which the data controller is subject;

(I) the transfer is necessary to uphold the legitimate interests of the data Controller recognised in the international financial markets, provided that such is pursued in accordance with international financial standards and except where such interests are overridden by legitimate interests of the data subject relating to the Data Subject's particular situation; or

(J) the transfer is necessary to comply with auditing, accounting or anti money laundering obligations that apply to a data controller which is established in the QFC.

The procedure for obtaining a permit is set out in rule 3.2 of the Rules.

Information to Data Subjects

Art 11 (1) of the Regulations requires data controllers to provide the following information to their data subjects as soon as they begin to collect information from them:

(A) the identity of the data controller;

(B) the purposes of the processing for which the personal data are intended; and

(C) any further information in so far as such is necessary, having regard to the specific circumstances in which the personal data are collected, to guarantee fair processing in respect of the data subject, such as:

(i) the recipients or categories of recipients of the personal data;

(ii) whether replies to questions are obligatory or voluntary, as well as the possible consequences of failure to reply;

(iii) the existence of the right of access to and the right to rectify the personal data;

(iv) whether the personal data will be used for direct marketing purposes; and

(v) whether sensitive personal data will be processed and whether it will be transferred outside the QFC.

If they process data that are not collected from the data subject, data controllers should supply the above information to the data subject as soon as they start to record the data together with particulars of the data or categories of data concerned. If the data are to be disclosed to a third party the data controller must supply such information at the time of the disclosure (art 12 (1) of the Regulations).

Processing by Third Parties

Art 13 of the Regulations prohibits the processing of personal data except on the instructions of a data controller unless required to do so by law.

Security of Processing

Data controllers are required by art 14 (1) to" implement appropriate technical and organisational measures" to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access and against all other unlawful forms of processing, in particular where sensitive personal data is processed or data are transferred outside the QFC. Art 14 (2) provides that regard may be had to the cost of implementation and the nature of the data when determining the appropriateness of those measures. Data controllers who contract out their processing should choose data processors providing sufficient guarantees in respect of the technical security measures and organisational measures governing the processing to be carried out, and must ensure compliance with the above measures (art 14 (3)).

Data Subjects' Rights

Art 15 of the Regulations confers on data subjects the right to request at reasonable intervals and without excessive delay or expense:

(1) confirmation as to whether personal data relating to him is being processed and, if so, information at least as to the purposes of the processing, the categories of personal data concerned and the recipients or categories of recipients to whom the personal data is disclosed;

(2) communication to him in an intelligible form of the personal data undergoing processing and of any available information as to its source; and

(3) as appropriate, the rectification, erasure or blocking of personal data the processing of which does not comply with the provisions of the regulations.

Data subjects also have the right under art 16 to:

(A) object at any time on reasonable grounds relating to his particular situation to the processing of personal data relating to him; and

(B) be informed before personal data is disclosed for the first time to third parties or used on their behalf for the purposes of direct marketing, and to be expressly offered the right to object to such disclosures or uses.

Enforcement

A person who believes on reasonable grounds that he has been adversely affected by a contravention of the regulations in respect of the processing of his personal data or as regards the exercise of their rights under the above articles may file a claim with the QFC Authority under art 23 of the Regulations. The process for lodging a claim is set out in rule 5.1 of the Rules and guidance is given in rule 5.2. The QFC Authority may enquire into any claim filed with it. If it believes the claim to be well founded the QFC Authority may direct the data holder:

"(A) to do or refrain from doing any act or thing within such time as may be specified in the direction; or
(B) to refrain from Processing any Personal Data specified in the direction or to refrain from Processing Personal Data for a purpose or in a manner specified in the direction."

Art 22 (2) provides a right of appeal to the tribunal referred to above.

Further Information

Anyone wishing to discuss this article, the QFC data protection law or data protection generally should call me on 0800 862 0055 or fill in my contact form.

Angels Den in Qatar

2011-09-25T16:15:00.000-07:00

According to its website Angels Den is a network of 4,000 business angels and 10,000 entrepreneurs. It is organized in every region of the United Kingdom except Northern Ireland plus Hong Kong, Singapore and Qatar.

Angels Den in Qatar has two regional managers, Elaine Gold and Dave Trevena.

Gold has a website and blog on her personal interests with a specific emphasis on living and working in the Middle East. Her latest post is "'Be an Angel' - Invest in Qatar" dated 16 Sept 2011. After explaining what an angel is, the article asks whether the angel model can work in the Gulf.

Trevena is commercial director of Distinction which is part of the Kepco Group that claims to "introduce new ideas and innovative companies, technologies, products and services to the Qatari market place." Distinction's website has articles on Qatar, starting a business in Qatar, finding investment in Qatar through Angels Den and Distinction's services. There is also a blog on Distinction's website with a number of articles by Trevena since 11 Sept 2011.

The Angels Den website has announced two business funding clinics at the Renaissance Hotel in Doha for 29 Sept and 30 Oct 2011.

Any Qatari investor who is minded to become an angel should know something of intellectual property. As good a starting point as any is my primer "What Business Angels and VCs need to know about IP". He or she will need to satisfy him or herself that the business is properly constituted, that there is adequate intellectual property protection in place, that its terms of business, standard contracts and employees' service contracts are robust and that there is full compliance with Qatari and all other applicable laws.

The entrepreneur for his or her part will also need legal advice and representation in negotiating with the angel. Ideally they will draw up a shareholders' agreement with the angel to set out their respective rights and responsibilities.

The Qatar Financial Centre has its own legal system based on the common law with judges from England and other common law jurisdictions (see my articles on the Qatar Financial Centre and the Qatar Financial Centre: Civil and Commercial Court Regulations). Although the Centre's jurisdiction is narrowly defined it should be the jurisdiction of choice in agreements between overseas investors and Qatari nationals wherever possible.

Anyone who wants to discuss any of the topics discussed in this post should get in touch through my contact form.

Intellectual Property Law in Oman

2011-08-31T14:14:00.000-07:00

Oman has an estimated population of 3.6 million in a land area of 309,501 square kilometres. It is a member of the Gulf Co-operation Council ("GCC") and the World Trade Organization ("WTO"). Formerly one of the least developed states in the Gulf, the Sultanate has made such rapid progress since 1970 in economic, political and social development that the United Nations Development Programme acclaimed Oman as the most improved country in the world (see the UNDP Human Development Report for 4 Nov 2010).

Treaties

As a member of the WTO Oman is party to TRIPS (the Agreement on Trade Related Aspects of Intellectual Property Rights) and is thereby bound by the obligations discussed in my article on "Intellectual Property Law in Kuwait". As a member of the GCC, the GCC Patent Regulation and Implementing Bylaws apply in Oman. Oman is also party to the Paris and Berne Conventions, the WIPO Copyright and Performances and Phonograms Treaties, the Patent and Trademark Law Treaties, the UPOV Convention and the Patent Co-operation Treaty, Madrid Protocol and Hague Agreement (see the WIPO Treaties Contracting Parties page for Oman).

Legislation

Oman implements its obligations under those treaties through a number of Royal Decrees made in 2000 on patents, copyrights and neighbouring rights, trade marks and unfair competition, industrial designs, geographical indications and semiconductor topographies. The Sultanate's copyright law has been supplemented by Royal Decree No. 65/2008 Promulgating the Law on Copyright and Related Rights and its law on industrial property rights by Royal Decree No 67/2008. Royal Decree No 49/2009 on the protection of plant breeders' rights has come into effect this year the text of which is available in Arabic.

Intellectual Property Office

The Ministry of Commerce and Industry is the intellectual property office for the Sultanate. The English language page of the Ministry's website suggests that it will soon be possible to file patent, utility model and trade mark applications on-line.

Dispute Resolution

Oman has enacted robust arbitration legislation which would resolve licensing, joint venture and other disputes relating to intellectual property. A press release on 16 March 2010 indicated that the Oman Chamber of Commerce and Industry planned to establish an international arbitration centre in the country. A delegation from the Bar of England and Wales visited Oman in December 2010 (see the Bar Council's press release of 3 Dec 2010).

Further Information

Oman is a country of considerable potential and one that I follow particularly closely. Anyone who wishes to discuss this article or any other issue concerning intellectual property law in the Gulf should call me on 0800 862 0055 or complete my contact form.

DIFC Data Protection Law

2011-08-01T10:27:00.000-07:00

The 45 hectare free zone in Dubai known as the Dubai International Financial Centre has its own data protection law (DIFC Law No 1 of 2007). According to James Michael, editor of Privacy Laws & Business this is the first data protection law in an Arab country (see his interview with the DIFC data protection commissioner, Nasser H. Saidi of Feb 2007 (Issue 86)).

Why the DIFC has a Data Protection Law

On the day that Syrian troops attack Hama and with civil war raging in Libya one would have been forgiven for thinking that the Arab world would have had more pressing concerns. So why does the DIFC bother? In "Why Data Protection Matters" the DIFC Data Protection Commissioner offers this answer:

"The result of the processing and mishandling –voluntary or involuntary- of personal data can have significant consequences, including credit card and identity theft. It is crucial that individuals’ right to privacy is protected by establishing effective data protection laws and enforcing legal safeguards to secure and protect personal data and its processing. Today governments and regulators world-wide, with the EU countries in the fore-front, are increasingly calling for measures to protect privacy and the adoption of data protection regimes to enforce such safeguards."

In other words, financial institutions in Dubai need to be able to exchange personal data with financial institutions in London and other financial centres in the EU and they can do that only if they offer protection for such data that is comparable to the protection available in the UK and other EU member states.

Application

Art 5 of Law No. 1 of 2007 ("the Law") makes clear that it applies to the DIFC only. There is no comparable legislation for the rest of the emirate or the other emirates of the UAE.

Commencement

According to art 4, the Law replaces a Data Protection Module that had been in force since 2004. The new legislation appears to have been implemented by an order k known as "Enforcement and Compliance Notice Circular No 1" issued by the Data Protection Commissioner ("the Commissioner") on 27 May 2007.

Secondary Legislation

The law is supplemented by the Data Protection Regulations 2007 ("the Regulations") which are made by the DIFC Authority pursuant to art 27 (1) of the Law. It is also necessary to refer to the Enforcement and Compliance Notices known as "Circulars" made by the Commissioner from time to time. According to the DIFC website there have been two such circulars so far:

Circular No. 1 of 27 May 2007 which has already been mentioned as it appears to serve the same purpose as a commencement order in England; and
Circular No. 2 of 27 Aug 2009.

The legislative institutions of the DIFC are introduced in my short article on the DIFC Courts.

The Commissioner

Art 21 (1) of the Law provides for the appointment of the Commissioner by the President of the DIFC. The Commissioner is required by art 7 (1) to administer the Law and Regulations. The Commissioner has powers under art 25 that are broadly comparable to those conferred by Part VI of the Data Protection Act 1998 on the Information Commissioner in England.

Duty to Notify

Art 19 (2) requires data controllers (that is to say, persons in the DIFC who alone or jointly with others determine the purposes and means of processing personal data (para 3 of the Schedule)) to notify the Commissioner of their processing. Regulation 6 of the Regulations sets out in detail the content of such notification. Art 2 of Circular No. 1 set a deadline of 30 June 2007 for such registration in the case of existing businesses.

General Requirements

The equivalent of the data protection principles in the British legislation are set out in art 8 (1) of the Law:

"Data Controllers must ensure that Personal Data which they Process is:
(a) Processed fairly, lawfully and securely;
(b) Processed for specified, explicit and legitimate purposes in accordance with the Data Subject’s rights and not further Processed in a way incompatible with those purposes or rights;
(c) adequate, relevant and not excessive in relation to the purposes for which it is collected and/or further Processed;
(d) accurate and, where necessary, kept up to date; and
(e) kept in a form which permits identification of Data Subjects for no longer than is necessary for the purposes for which the Personal Data was collected or for which they are further Processed."

As in the UK there are special provisions for the processing of sensitive personal data which is defined as personal data "revealing or concerning (directly or indirectly) racial or ethnic origin, communal origin, political affiliations or opinions, religious or philosophical beliefs, criminal record, trade-union membership and health or sex life."

Sensitive Personal Data
Sensitive personal processing requires a permit from the Commissioner under art 10 (2) of the Law unless the requirements of art 10 (1) are met. The procedure for obtaining such a permit are set out in Regs 2 to 4.

Data Subjects' Rights
Data subjects have the following rights under art 17 (1) of the Law:

"(a) confirmation as to whether or not Personal Data relating to him is being Processed and information at least as to the purposes of the Processing, the categories of Personal Data concerned, and the Recipients or categories of Recipients to whom the Personal Data are disclosed;
(b) communication to him in an intelligible form of the Personal Data undergoing Processing and of any available information as to its source; and
(c) as appropriate, the rectification, erasure or blocking of Personal Data the Processing of which does not comply with the provisions of the Law."

In addition, they are entitled

"(a) to object at any time on reasonable grounds relating to his particular situation to the Processing of Personal Data relating to him; and
(b) to be informed before Personal Data is disclosed for the first time to third parties or used on their behalf for the purposes of direct marketing, and to be expressly offered the right to object to such disclosures or uses."

Transfer of Data Abroad
Art 11 (1) prohibits the transfer of personal data outside the DIFC without a permit from the Commissioner under art 12 except to a country or territory listed by the Commissioner that offers comparable protection for personal data. The latest list includes the countries of the European Economic Area including the United Kingdom, Channel Islands and the Isle of Man and, interestingly, the USA to companies that comply with the Commerce Department's "Safe Harbor" Policy. Reg 5 of the Regulations sets out the procedure for obtaining a permit for the transfer of personal data outside the DIFC.

Enforcement
The Commissioner has very extensive powers of investigation and enforcement under art 25 (3). These include the power to fine under art 25 (3) (f) and to initiate a claim for compensation under art 35 for contravention of the law to the detriment of a data subject under art 26 (3) (g). Data subjects may complain in the first instance to the Commissioner under art 33 (1) who may mediate between the data subject and data controller under art 33 (2). Data controllers may appeal from the Commissioner to the DIFC Court under art 34 (1). The DIFC Court is, of course, a common law English language court before which I and other members of the English Bar can appear.

Contact
Further information about data protection in the DIFC can be obtained from the The Data Protection Administrator at the
Dubai International Financial Centre Authority
Level 14, The Gate
PO Box 74777,
Dubai, United Arab Emirates
Email: administrator@dp.difc.ae
Tel : +971 4 362 2623
Fax: +971 4 362 2656

Further Information
Should you require further information or advice in a specific case or representation in a mediation or appeal or application to the DIFC Court, do not hesitate to call me on 0800 862 0055 if you are in the UK or use my contact form. As you can see data protection has been one of my interests since 1984.

Intellectual Property Law in Kuwait

2011-07-14T08:28:00.001-07:00

Kuwait has an estimated population of just under 3.6 million in a land area of 17,820 square kilometres. It is one of the member states of the Gulf Co-operation Council ("GCC") (see "Gulf Co-operation Council Constitutional Framework" 10 June 2011 and "Patents: Gulf Co-operation Council" 20 Jan 2011).

International Obligations

This small but significant country is one of the founding members of the World Trade Organization ("WTO"). As such it is party to TRIPS (The Agreement on Trade Related Aspects of Intellectual Property Rights) which requires WTO members to give effect to the provisions of that agreement. That includes

complying with arts 1 to 12 and art 19 of the Paris Convention for the Protection of Industrial Property ("Paris Convention") pursuant to art 2 (1) of TRIPS;
complying with arts 1 to 21 of the Berne Convention for the Protection of Literary and Artistic Works ("Berne Convention") pursuant to art 9 (1) of TRIPS;
protect the work of performers, sound recording studios and broadcasters in accordance with art 14 of TRIPS;
provide for the registration of trade marks pursuant to arts 15 to 21 of TRIPS;
protect geographical indications pursuant to arts 22 to 24;
protect industrial designs pursuant to arts 25 and 26;
provide patents for inventions in all fields of technology provided they are new, involve and inventive step and are capable of industrial application pursuant to arts in accordance with arts 27 to 34;
protect semiconductor topographies in accordance with certain provisions of the Treaty on IP in Respect of Integrated Circuits ("the Washington Treaty") pursuant to arts 35 to 38 of TRIPS;
protect undisclosed information pursuant to art 39; and
provide civil remedies, criminal sanctions and other provisions for the enforcement of intellectual property rights under Part III of the Agreement.

Kuwait has been a member of the WIPO since 14 July 1998 but it does not appear to be party to the Paris or Berne Conventions or the Washington Treaty. Indeed, the only convention listed on the WIPO website to which Kuwait is party is the WIPO Convention.

The Kuwaiti government has entered a number of bilateral investment treaties with a number of countries (though not with HM government) which usually require the protection of intellectual property. Citizens of either party can sometimes claim compensation in ICSID (International Centre for the Settlement of Investment Disputes) against the government of the other party for non-compliance with such a treaty (see Metalclad Corp. v Mexico (30 Aug 2000)).

Legislation

A summary of Kuwait intellectual property laws and related legislation appears in WIPO lex. The main statutes appear to be:

Law number 4 of 1962 relating to patents, designs and industrial models as amended by law number 3 of 2001 (Arabic and English);
Law number 64 of 1999 concerning intellectual property rights (Arabic and English); and
Decree number 68 of 1980 on trade marks as amended by decree no 10 of 1987 (Arabic only).

As Kuwait is party to the GCC, the Patent Regulation and the Implementing Bye-laws of the GCC will also apply.

Dispute Resolution

Industrial property disputes can be resolved through arbitration pursuant to Law No. 11 of 1995 regarding judicial arbitration with respect to civil and commercial matters (Arabic and English). The Kuwait Chamber of Commerce and Industry appears to provide arbitration services.

Intellectual Property Offices

According to WIPO the competent authority for patents and trade marks is the Trade Marks and Patent Department of the Ministry for Commerce and Industry at PO Box 2944, Safat 13030, Kuwait City, Tel +956 22 42 44 26. That Ministry is also responsible for copyright policy.

The GCC Patent Office is at the GCC Offices, PO Box 340227, Riyadh, Saudi Arabia 11333 (see Patents: Gulf Co-operation Council 20 Jan 2011).

Further Information

Anyone requiring further information about this article should call me on 0800 962 0055 or use my contact form. I have two contacts in Kuwait to whom I shall be glad to refer any enquiries on any substantial issue of Kuwaiti law.

IP News Round Up

2011-07-08T00:27:00.000-07:00

The Gulf Co-operation Council Patent Office ("GCCPO") which I mentioned on 20 Jan 2011 has recently launched a new website . It offers information on filing, searching, published applications and statistics. So far it is available only in Arabic but English speakers can still access the old English language site. For general background information on the Gulf Co-operation Council ("GCC") see my article "Gulf Co-operation Council Constitutional Framework" which I uploaded on 10 June 2011.

Joelle Morini published an article entitled "Where to find Patent Documents from the Patent Co-operation Council"in the Intellogist blog on 24 May 2011. It provides a useful introduction to the GCC and the GCCPO, provides examples of GCC patent specifications and lists the databases where GCC patents are to be found. Her article also refers to my post on Saudi Arabian IP law.

The International Bar Association will hold its annual conference in Dubai between 30 Oct and 4 Nov 2011. The advance programme promises interesting discussions on intellectual property, communications and technology. Particularly intriguing is "No more secrets and the right to oblivion? The consequences of ubiquitous computing" which is an all day event on the Wednesday.

Qatar Financial Centre: Civil and Commercial Court Regulations

2011-06-28T08:27:00.000-07:00

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.

Jurisdiction

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

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).

Remedies

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.

Appeals

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.

Gulf Cooperation Council Constitutional Framework

2011-06-10T13:23:00.000-07:00

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.

Constitution

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).

Related Articles

GCC Secretariat General "The Organizational Structure"

Saudi Arabia: Overview of Intellectual Property Law

2011-05-22T15:58:00.000-07:00

Saudi Arabia has been party to the Berne Copyright and Paris Industrial Property Conventions since the 11 March 2004 and a member of the World Trade Organization since 11 December 2005.

Its basic intellectual property statutes are:

Unofficial translations of these statutes and other legislation are to be found on the Saudi Arabia resources page of the WIPO website.

There is no intellectual property office as such. Patents, industrial designs, chip topographies and plant varieties are registered by the The King Abdulaziz City for Science and Technology ("KACST") which is also the Saudi Arabian national science agency, national laboratory and internet authority for the .sa country code top level domain. Trade Marks are registered by a department of the Ministry of Commerce known as the Trademarks Register while copyright and related rights are the responsibility of the Ministry of Culture.

According to the statistics page of the KACST website, there were 931 patent and 493 industrial design applications in 2010 and 262 patents and 412 design registrations were granted in that year.

Further information on Saudi Arabian intellectual property law can be obtained from Jane Lambert

Dubai: Consultation on Proposals to amend the Rules of the DIFC Court

2011-05-12T04:15:00.000-07:00

As I said in my introduction to the DIFC Court, the Dubai International Financial Centre ("DIFC") has its own court. This is a special common law jurisdiction with its own legislation. I have already discussed the Centre's laws of confidence and passing off in this blog.

The Rules of the DIFC Court ("RDC") appear to be based on our Civil Procedure Rules ("CPR"). They share, for example, the same overriding objective and terminology. For instance, claims are brought by claimants and not by plaintiffs.

On 20 April 2011 proposed a number of amendments to the RDC following extensive discussions with the Rules Sub-Committee of the Court Users Committee. Details of the proposed rule changes can be viewed here. Many of these proposed changes will facilitate electronic filing of court documents.

The consultation ends on 23 May 2011. Responses should be emailed to consultation@difccourts.ae

The DIFC Law of Passing Off

2011-04-07T10:40:00.000-07:00

In my article on the DIFC law of confidence of 27 Jan 2011 I wrote:

"The DIFC (Dubai International Financial Centre) is like a little bit of London in the Gulf. Covering an area of 45 hectares - slightly smaller than Kensington Gardens - it is a free zone for the banking, insurance, trading and other financial services industries with its own legal system. As I said in my article on The DIFC Courts, the interesting attribute of this legal system is that the laws are in English and its courts apply the common law."

The law of confidence is one of two areas of intellectual property law for which there is legislation in the DIFC. The other area is the law of passing off. Both derive from the same source, namely the Law of Obligations.

Art 38 (1) of that law provides:

"A defendant is liable to a claimant if:
(a) the claimant's goods, services or business have acquired a goodwill or reputation in the market and are known by some distinguishing feature;
(b) the defendant makes a misrepresentation which confuses or deceives persons in relation to the goods, services or business of the claimant, or is likely to do so; and
(c) the claimant suffers or is likely to suffer damage as a result of that belief."

Art 40 (1) gives "misrepresentation" the same meaning as in contract law save that a statement made without regard for its truthfulness which is in fact untrue and which induces the representee to enter into a contract, whether or not that was the intention of the representor, shall be a misrepresentation for these purposes. Instances of confusion or deception include the reasonable belief that

(a) the defendant's goods, services or business are the goods, services or business of the claimant, or vice versa;

(b) the claimant's goods or services of one class, quality, condition or state are of another class, quality, condition or state;

(c) the defendant's goods or services belong to a class of goods or services with a discrete reputation, when they do not; and

(d) goods are covered by the claimant's guarantee when they are not so covered.

Art 38 is clearly derived from the Lord Oliver's speech in Reckitt and Colman Products Ltd v Borden Inc and Others [1990] 1 WLR 491, [1990] 1 All ER 873, [1990] UKHL 12, [1990] RPC 341:

"The law of passing off can be summarised in one short general proposition - no man may pass off his goods as those of another. More specifically, it may be expressed in terms of the elements which the plaintiff in such an action has to prove in order to succeed. These are three in number. First, he must establish a goodwill or reputation attached to the goods or services which he supplies in the mind of the purchasing public by association with the identifying "get-up" (whether it consists simply of a brand name or a trade description, or the individual features of labelling or packaging) under which his particular goods or services are offered to the public, such that the get-up is recognised by the public as distinctive specifically of the plaintiff's goods or services. Secondly, he must demonstrate a misrepresentation by the defendant to the public (whether or not intentional) leading or likely to lead the public to believe that goods or services offered by him are the goods or services of the plaintiff. Whether the public is aware of the plaintiff's identity as the manufacturer or supplier of the goods or services is immaterial, as long as they are identified with a particular source which is in fact the plaintiff. For example, if the public is accustomed to rely upon a particular brand name in purchasing goods of a particular description, it matters not at all that there is little or no public awareness of the identity of the proprietor of the brand name. Thirdly, he must demonstrate that he suffers or, in a quia timet action, that he is likely to suffer damage by reason of the erroneous belief engendered by the defendant's misrepresentation that the source of the defendant's goods or services is the same as the source of those offered by the plaintiff."

Art 38 (2) adds that it is not necessary for the purpose of art 38 that the persons confused or deceived should be aware of the claimant's identity, provided that they are accustomed to the claimant's goods, services or business. It is spelt out in art 38 (3) that it is no defence that the defendant did not intend to cause deception or confusion. A defendant is liable under art 39 if he knowingly assists or facilitates passing off by another person.

Qatar Financial Centre

2011-04-03T00:12:00.000-07:00

Like Dubai, Qatar has established a financial centre with its own legal system which is called the Qatar Financial Centre ("QFC"). The Centre has its own constitution, primary and secondary legislation and institutions including a Civil and Commercial Court that is distinct and separate from, and independent of, all other Qatari courts.

The QFC Constitution

The CFC is established by Law No. 7 of 2005 ("the QFC Law") which was signed by the Emir of Qatar on 9 March 2005 and came into force on 1 May of that year. Art 2 (1) of the QFC Law provides for a business and financial centre to be located initially in Doha. It is possible under art 2 (3) for businesses located elsewhere in Qatar to be treated as though they were operating in the Centre provided that they undertake to relocate to the Centre. Art 3 (1) provides for the QFC to be governed by a QFC Authority consisting of a Board chaired by the Minister of Economics and Finance of Qatar and up to 9 other members appointed by the Council of Ministers. The Board's duties include laying down general policies and plans for the centre (para 5.1 of Sched 1 to the QFC Law) and proposing legislation to the Minister (para 5.2). Art 8 establishes a regulatory authority, regulatory tribunal and Civil and Commercial Court. The Minister has power under art 9 to enact primary legislation known as "regulations" for the QFC within the scope of Schedule 2 which includes intellectual property (para 10 of Sched 2).

Legislation

So far the Minister has made regulations for arbitration, companies, contracts, data protection, employment, financial services, immigration, partnerships, tax and trusts. Some of those regulations provide for the QFC Authority to make secondary legislation known as "Rules". Art 21 (1) of the Data Protection Regulations 2005. for example, enables the QFC Authority to make rules in respect of any matter relating to the processing of personal data and data controllers. Accordingly, the Authority has made the Data Protection Rules which cover the processing of sensitive data, transfers of data out of the QFC, notification and claims to the Regulatory Authority for relief for alleged breaches of the Data Protection Regulations.

The Civil and Commercial Court

Para 1 of Sched 6 of the QFC Law provides for the Civil and Commercial Court to be governed by a Chairman and a number of other legally qualified members none of whom may be members of the Board. None of those members may sit on the Board, regulatory authority or any other QFC institution. Para 8 of that Schedule provides for the Court to have original and appellate jurisdiction for which purpose it sits in First and Appellate Circuits.

Judiciary

The President of the QFC Civil and Commercial Court is Lord Woolf . the former Master of the Rolls. Other judges include Lord Cullen, Lord Scott, Sir Philip Otton, Sir Peter Gibson and Barbara Dohmann QC. There are also judges form other jurisdictions and academia.

Case Law

Judgments of the Court are published on the QFC website. Particularly interesting is the recent decision of the Court in Re Al Mal Bank LLC, Omara and Another v Al Mal Bank LLC where it considers its jurisdiction to make freezing orders in a company insolvency in the absence of a rule book.

Further Information

Any member of the Bar of Qatar or of any other jurisdiction may appear before the QFC Court. There is already a set of chambers in Qatar though none of its members claims expertise in intellectual property. Should anybody wish to discuss this article further he or she can get in touch through my contact form.

DIFC Court: Corinth Pipeworks SA v Barclays Bank Plc

2011-03-20T02:41:00.000-07:00

In the introduction to my leaflet on the Dubai International Financial Centre Courts (which may be downloaded from the JD Supra website) I wrote:

"The governments of the United Arab Emirates and Dubai have established a free zone for financial services in Dubai known as the Dubai International Financial Centre ("the DIFC") in the hope that it will become a major financial centre to rank alongside London, New York, Tokyo and Singapore. According to KPMG the DIFC already ranks 7th in its list of the world's leading financial centres.
One of the reasons for the DIFC's success is a special jurisdiction in the zone with its own laws and law courts. Although Dubai and the UAE are civil law jurisdictions and their official language is Arabic the laws of the DFIC are in English and based largely on UK statutes and the English common law.
The DIFC courts conduct their business in English. Their rules and procedure are based on the English Civil Procedure Rules. Most of the judges of the DIFC courts come from England and Wales or other Commonwealth countries. Most counsel and solicitors from England and Wales can qualify to practise before the DIFC Courts quite easily.

In CFI 024/2010 Corinth Pipeworks S.A. v Barclay's Bank PLC (8 Feb 2011) a Greek company carrying on business in Athens tried to extend the jurisdiction of the DIFC court to a cover any claim against an entity with a branch within the DIFC. The cause of action arose out of an allegedly false statement by an employee of the Jebel Ali branch of Barclays Bank. Jebel Ali is, of course, in Dubai but it is outside the DIFC. However, Barclays does maintain a branch in the Centre. It was on the strength of the Bank's presence in that zone that the claimant launched its action.

The defendant Bank applied for a declaration that the DIFC Court had no jurisdiction in this action under rule 12.1 of the Rules of the DIFC Court (the equivalent of CPR 11.1). The application came on before Sir Anthony Colman, Deputy Chief Justice of the DIFC Court.

Sir Anthony summarized the claimant's case as follows at paragraph [53]:

"The argument in favour of that jurisdiction is very simple. When by the process of registration of a business and the granting of the necessary licenses a Centre Establishment is created, it is the entire corporation body to which that registration and those licenses are granted because the process involves registration and grant in the name of that corporation alone and not in the name of any other exclusively DIFC legal person. Moreover, when the corporation enters through its DIFC branch into a commercial transaction it is the corporation as a whole that does so. Therefore, a dispute arising out of a transaction entered into by a branch of the corporation located outside the DIFC is as much a dispute involving a Centre's Establishment as a dispute arising out of a transaction entered into by a branch of that same international corporation authorised to carry on business within the DIFC."

His lordship remarked that "the argument advanced on behalf of the Claimant would, if correct, have potentially far-reaching consequences." He added:

"Many members of the legal professional conversant with the DIFC and its Courts would assume that, given that the purpose of the Court was to provide a dispute resolution facility for the DIFC and with regard to transactions associated or connected with it or the commercial enterprises carrying on trade within the DIFC, an international company with a branch licensed to carry on business in the DIFC would be confined to bringing claims within the DIFC Courts in respect of disputes connected with the business of that branch in the DIFC. The suggestion that an international company incorporated and having its head office in, say, the United States or the United Kingdom, but with a branch registered and licensed to do business in the DIFC, could start proceedings in the DIFC Courts or could be sued in that Court in respect of a claim wholly unconnected with the DIFC or the business of its DIFC branch would, on the face of it seem distinctly improbable. Were that so, the scope of jurisdiction of the DIFC Courts would have an international dimension which had not hitherto been generally perceived."

Allowing the application and striking out the claim the judge had no doubt that the claimant's argument was fundamentally defective. The flaw lay in

"according to the entire business of the corporation that characteristic which only the DIFC-authorised part of the business has. The fact that all the branches of the corporation may be part of a single legal person with a single corporate name emphatically does not result in all the branches of the corporation being part of a Centre's Establishment. The international corporation is a Centre's Establishment only to the extent to which its branch is authorised to conduct business in and from the DIFC and a claim or dispute only "involves" a Centre's Establishment when that claim or dispute is connected with or arises out of the activities of the corporation conducted by its DIFC branch or division. The requirement that the corporation as a whole must be a party to the proceedings and in its corporate name is simply a procedural consequence of its branch or division having no separate legal personality by which it can sue or be sued. What matters as regards jurisdiction under Article 5(A)(1)(a) is that it is with the conduct of the DIFC-authorised business that the cause of action is connected. The function of the DIFC Courts is to provide a justice system for the DIFC itself and to adjudicate on disputes connected with the commercial and civil activities of its organs (Centre's Bodies) and its population of those who are authorised to conduct a business in the DIFC in respect of which disputes have arisen."

His lordship's analysis is probably right but it does limit considerably the attractiveness of the DIFC Court as a forum for the resolution of commercial disputes. Herbert Smith has discussed this case and others in their article "The Courts of the DIFC - Can they hear your Dispute" in the March 2011 issue of the Middle East Exchange which appears on that firm's website.

Bahrain: a Forum for the Resolution of IP and Technology Disputes?

2011-01-30T02:01:00.000-08:00

According to "Our Vision", from regional pioneer to global contender the economic vision 2030 for Bahrain", the government of Bahrain plans substantial investment in advanced manufacturing particularly in the motor and food production industries, information and communications technology and financial services over the next 20 years. There will inevitably be disputes and differences between researchers and developers, their investors and distributors. The Bahrain Chamber for Dispute Resolution ("BCDR") is already a forum for the resolution of commercial disputes with the emphasis on arbitration of construction, financial services, insurance and energy cases. This article examines the legislative decree establishing the BCDR and the BCDR Rules and considers their appropriateness for intellectual property and other technology-related disputes.

Legislative Decree number 30 of 2009 was promulgated by the King of Bahrain on 29 June 2009. Art 2 establishes an independent chamber for the settlement of economic, financial and investment disputes to be known as the "Bahrain Chamber for Dispute Resolution". The chamber consists of a board of trustees who oversee the BCDR which includes making its procedural rules and administrative and technical personnel. Art 9 provides:

"The Chamber shall have jurisdiction to settle the following disputes originally within the jurisdiction of Bahrain courts or other entities having judicial jurisdiction, for cases in which the value of the claim exceeds Five Hundred Thousand Dinars:
1. Disputes among financial institutions licensed according to the provisions of the Law of Central Bank of Bahrain or between these institutions and other institutions, companies, and individuals.
2. International Commercial Disputes. The dispute shall be deemed international if the location of one of the disputant parties or the place where a substantial part of the obligations of the commercial relationship is to be performed, or the location most closely connected with the dispute is outside the Kingdom.
A dispute shall be deemed commercial if its subject matter, contractual or non-contractual, concerns relationships of a commercial nature including any transaction of supplying goods or services or the exchange thereof, distribution agreements, commercial representation or commercial agency, managing rights before others, hiring to purchase, construction of factories, consultation services, engineering works, issuing licenses, investment and financing, banking transactions, insurance, franchising agreements, joint ventures, any other forms of industrial or commercial cooperation, and transporting commodities or passengers by air, sea or land."

The definition of "commercial dispute" provided by that article would clearly cover computer supply, licensing, joint venture and similar disputes. There is no reason why it should not include infringement disputes though perhaps not those in which the validity of an intellectual property right is an issue. Art 11 (1) allows the parties to agree upon the applicable law and in the absence of such agreement the law of Bahrain is to prevail. There is limited right of recourse to the Cour de Cassation (Bahrain's highest civil court) under art 13.

Arbitrations are commenced by service of a notice of arbitration which must contain a statement of claim that includes the following:

"(a) a demand that the dispute be referred to arbitration;
(b) the names, addresses and telephone numbers of the parties;
(c) a reference to the arbitration clause or agreement that is invoked;
(d) a reference to any contract out of or in relation to which the dispute arises;
(e) a description of the claim and an indication of the facts supporting it;
(f) the relief or remedy sought and the amount claimed; and
(g) may include proposals as to the means of designating and the number of arbitrators, the place of arbitration."

(Art 2 of the BCDR Rules). The defendant must respond with a defence or defence and counterclaim within 30 days. Most importantly for intellectual property disputes, art 21 confers on the arbitrator an extensive range of powers including injunctive relief and measures for the protection or conservation of property. That would seem to include interim injunctions, search orders and freezing injunctions.

As in all arbitrations and other forms of alternative dispute resolution, the parties must agree to refer their disputes to the BCDR. The words that the BCDR suggests are as follows:

"Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be determined by arbitration administered by the Bahrain Chamber for Dispute Resolution (BCDR-AAA) in accordance with its Arbitration Rules."

The BCDR also suggests that parties should consider adding provisions as to the number of arbitrators, the city and country in which the arbitration will take place and the language or languages of the arbitration.

If anyone wants to discuss representation before the BCDR, dispute resolution of future disputes before the chambers or any other matter relation to arbitration or mediation in general, he or she should contact me through my contact form.

DIFC Law of Confidence

2011-01-27T01:10:00.001-08:00

The DIFC (Dubai International Financial Centre) is like a little bit of London in the Gulf. Covering an area of 45 hectares - slightly smaller than Kensington Gardens - it is a free zone for the banking, insurance, trading and other financial services industries with its own legal system. As I said in my article on The DIFC Courts, the interesting attribute of this legal system is that the laws are in English and its courts apply the common law.

There is now a comprehensive body of civil and commercial law for the Centre covering such matters as companies, contracts, insolvency, partnerships and data protection. DIFC Law No. 5 covers obligations which includes much of the law of tort (negligence, nuisance and deceit) and equitable obligations (fiduciary duties and confidence).

The DIFC law of confidence is set out in art 37 of this Law of Obligations. Paragraph (1) provides:

"Subject to Article 37 (4), a person has a duty not to misuse specific information which he has received from another (a "confidant"), directly or via an intermediary, and which can reasonably be regarded as confidential, where he knows or ought to know that the information is confidential."

It should be noted that the word "confidant" has a special meaning in this article in that it refers to the person imparting information rather than the person to whom information is confided (cf my note on "The Law of Confidence" in IP/IT Update). Art 37 (2) continues:

"If a person breaches his duty as defined in Article 37(1), he is liable to the confidant."

"Misuse" in the DIFC code includes but is not limited to disclosure (art 97 (4)). There is no attempt to define confidential but art 97 (3) provides that "unless non-confidentiality is otherwise expanded by agreement, information is not confidential if:

(a) it is in the public domain;
(b) it is trivial or useless; or
(c) it is in the public interest that the information should not be confidential."

The obligation of confidence is subject to the following limits in art 97 (4):

"(a) the confidant has consented, expressly or by implication, to its disclosure;

(b) its disclosure is required by law;

(c) its disclosure is required in the interests of the confidant;

(d) it is no longer confidential; or

(e) it is disclosed to a person who has a legitimate interest in receiving it."

Finally, it is no defence that the defendant did not know that he was misusing confidential information (art 97 (5)).

There does not appear to be any case law on the obligation of confidence. The only other relevant legislation that I have been able to find is art 29 of the DIFC Law of Contracts:

"Where information is expressly given as confidential by one party in the course of negotiations, the other party is under a duty not to disclose that information or to use it improperly for its own purposes, whether or not a contract is subsequently concluded. Where appropriate, the remedy for breach of that duty may include compensation based on the benefit received by the other party."

This provision would clearly apply to discussions between those with a business proposition such as inventors and potential backers such as angels or venture capitalists. However, it should be noted that the information must be disclosed "expressly in confidence" which implies a confidentiality agreement of the kind I have drafted for use in England (see my "Confidentiality Agreement" on the JD Supra website).

I should be glad to discuss this article with anybody who has any questions. He or she can contact me through my on-line form.

Domain Names: New Domain Name Dispute Resolution Policy for ".ae" and "امارات." Top Level Domains

2011-01-22T05:42:00.000-08:00

The .ae Domain Administration (".aeDA") is the domain name authority for the ".ae" and "امارات." top level domains. It is a department of the United Arab Emirates Telecommunications Regulatory Authority. On 29 Sept 2010 the .aeDA adopted a new Domain Name Dispute Resolution Policy known as the "UAE DRP" for those domains.

The UAE DRP is based substantially on ICANN's Uniform Domain Name Dispute Resolution Policy (UDRP) for generic top level domain names. The UAE DRP is incorporated by reference into all agreements for the registration of all ".ae" and "امارات." ccTLDs. As in the UDRP the key provision is the warranty and representation that appears at s.4 of the UAE DRP:

"By applying to Register a Domain Name, or by asking a Registrar to maintain or renew a Domain Name Registration, you hereby represent and warrant to us and the relevant Registrar that:
a) the statements that you made in your Registrant Agreement are complete and accurate;
b) to your knowledge, the Registration or the use, direct or indirect, of the Domain Name by you does not and will not infringe upon or otherwise violate the legal rights of any third party;
c) you are not Registering or will not, directly or indirectly, use the Domain Name for an unlawful purpose; and
d) to the best of your information, knowledge and belief, you are not Registering or will not, directly or indirectly, use the Domain Name in violation of any applicable laws or regulations.
It is your responsibility to determine whether your Registration or use of the Domain Name Registration infringes or violates someone else's rights,"

Each applicant agrees to refer to a panellist appointed by the WIPO any dispute where a third party asserts that:

(i) the domain name is identical or confusingly similar to a trade mark or service mark in which he or she has rights; and

ii) the domain name proprietor has no rights or legitimate interests in respect of the domain name; and

iii) the domain name has been registered or is being used in bad faith.

As In the UDRP, the complainant must prove that each of those three elements is present.

The .aeDA has accredited a number of registrars to issue ".ae" and "امارات." domain names. Decisions in respect of the UAE DRP can be viewed on the the WIPO website.

If you need advice or would like one of us to represent you in an ".ae" domain name dispute or would simply like to discuss this post. please contact us through this form.

Patents: Gulf Co-operation Council

2011-01-20T17:14:00.000-08:00

The Gulf Co-operation Council (Co-operation Council for the Arab States of the Gulf) is an economic, political and to some extent military union of the states of Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates. The Council's objectives are

To effect coordination, integration and inter-connection between Member States in all fields in order to achieve unity between them.
To deepen and strengthen relations, links and areas of cooperation now prevailing between their peoples in various fields
To formulate similar regulations in various fields including the following: Economic and financial affairs Commerce, customs and communications Education and culture
To stimulate scientific and technological progress in the fields of industry, mining, agriculture, water and animal resources; to establish scientific research; to establish joint ventures and encourage cooperation by the private sector for the good of their peoples.

To further the last objective the Supreme Council of the Gulf Co-operation Council has established a Gulf Co-operation Patent Office ("GCCPO") at Riyadh in Saudi Arabia. The GCCPO grants Gulf Co-operation Council patents for inventions which stand alongside national patents in all the GCC member states. The legislation establishing the GCC patent is the Patent Regulation for the Co-operation Council for the Arab States of the Gulf.

The GCCPO opened for applications on 3 Oct 1998. A list of granted patents appears in a journal known as the "Bulletin Patents" which is published on the GCCPO website.

Related Articles

11 June 2011 "Gulf Cooperation Council Constitutional Framework" NIPC Gulf

Why Dubai? Or the rest of the Gulf for that matter?

2011-01-14T16:18:00.001-08:00

The Bar Council has sent three missions to the Gulf since 2008:

3 -8 May 2008: Dubai, Qatar and Bahrain
24 - 28 May 2009: Abu Dhabi, Bahrain and Dubai
3 - 8 December 2010: Oman, Qatar and the United Arab Emirates.

Those missions have focused on construction, financial services, company and insolvency work and on the opportunities offered by the DIFC (Dubai International Financial Centre) Courts and the Qatar Financial Centre Civil and Commercial Court. None of the missions has included members of the intellectual property bar which is hardly surprising since none of the cases that have been decided by the Dubai and Qatar courts has turned on intellectual property.

However things may be changing. Madeleine Heal has discussed proposals for a new intellectual property code and a specialist intellectual property tribunal for the DIFC in Proposed DIFC Intellectual Property laws – A Hub for Innovation. The development of Dubai Internet City, Dubai Media City and Dubai Studio City and Education City in Qatar and the Qatar Science and Technology Park will attract investment from around the world. Equally, businesses, universities and research institutes in those centres generate intellectual assets that will require legal protection around the world. There will inevitably be disputes and differences which will need to be resolved locally.

As Madeleine said in her article the English Bar can help with that. I have already helped to decide the aljazeera.com domain name dispute as a neutral (WIPO case D2005-0309 Jazeera Space Channel TV Station v. AJ Publishing aka Aljazeera Publishing). I hope to do more work as an advocate and advisor as well as arbitrator and mediator in the region. Also, as the Gulf falls midway between manufacturers in India and China and mineral and agricultural commodity producers in Southern and East Africa and also between the financial centres of Western Europe and the Western Pacific Basin, there should be more than just local work.