DIFC Data Protection Law

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

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

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

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

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

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:

• the Law of Patents, Layout Designs of Integrated Circuits, Plant Varieties, and Industrial Designs;
• the implementing regulations on copyright; and
• the Law of Trade Marks

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

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