Angels in Dubai

According to its website, Envestors Dubai is the only active business angel network in the region. Angel investment is not entirely new to the Middle East and North Africa or even to the Gulf Co-operation Council region. I wrote a short piece about Angels Den in Qatar on 26 Sept 2011.

For those who are still unfamiliar with the concept I defined a business angel on the Inventors Club website as "a wealthy individual who wishes to invest in a new business." Typically, he or she may well have already built up and sold a business and will therefore have acquired skills, knowledge and experience that can be shared with the new business. Some angels invest as individuals and others as members of syndicates.   In the UK an investment can fall anywhere between £10,000 and 750,000.  I wrote a little primer on angel investment for my former chambers website in "On the Side of the Angels" on 8 July 2011.

Envestors Dubai appears to be the trading name of Envestors MENA Ltd. which is a member of the Braveheart Investment Group plc of Perth in Scotland.  Braveheart was formed in 1997 and manages around £120 million.  It offers equity, loan and mezzanine funding to SME as well as advice on corporate finance and investment readiness. For more information on that country and Envestors see "Envestors to operate YABA" in my IP Yorkshire blog (13 April 2013).

Envestors Dubai claims to have met and advised over 1,000 companies in the last 3 years, and have selected about 20 to take forward and present to its investors, of which approximately 50% have been funded.   A profile of the company's investors appears on the "Our Network" page of its website, The investment opportunities on offer are on the "Current Deals" page.

Anyone looking to invest and indeed anyone seeking angel investment will require advice on company law, contracts, employment, tax and, of course, intellectual property. I can help with IP and I have written a short article "What Business Angels and VCs need to know about IP" which can be downloaded from the JD Supra website. Parties to a licence, joint venture, shareholders' agreement or other transaction can write their contracts in English, choose to govern them according to DIFC law (which is based on the common law) and to refer any disputes to an English speaking common law court with a judge from the United Kingdom or other common law country by inserting a Dubai International Centre Courts jurisdiction clause (see "DIFC Courts: Choice of Jurisdiction Clauses" 28 Dec 2012).

If you want to talk to me about this article, you can reach me through my contact form or call me on any of the above numbers. You can also follow me on Facebook, Linkedin, twitter or Xing.

DIFC Courts Code of Best Professional Practice

On 27 March 2013 the Dubai International Financial Centre ("the DIFC") Courts published a Code of Best Legal Professional Practice (the "Code"). According to the Foreword by the Chief Justice, Michael Hwang SC, the Code has no statutory or regulatory underpinning just yet but the provisions relating to litigation will be incorporated into the Code of Professional Conduct for Legal Practitioners (Practice Direction No. 2 of 2009). Moreover, the courts will regard the Code as a benchmark for behaviour and professional standards and any "failure by a DIFC lawyer or a DIFC firm to behave in accordance with the Code is likely to have consequences for that lawyer or firm in the event that such conduct becomes relevant to any case or hearing that comes before the DIFC Courts."

The Code applies to those who appear as advocates before the courts as well as those who conduct legal business in the DIFC and covers non-contentious as well as contention work  The Chief Justice says that the Code is

"based on established professional conduct rules drawn from different jurisdictions. It has been the subject of review by those who practise in the UAE. It has also been the subject of public consultation."

It certain;y seems to have drawn heavily on both the Code of Conduct of the Bar of England and Wales and the SRA Code of Conduct.

Should anyone require wish to discuss this article he or she can call me on +44 (0)20 7404 5252 or get in touch through my contact form. You can also follow me on Facebook, Linkedin, twitter or Xing.

Enforcing DIFC Judgments in England and Vice-Versa

On 23 Jan 2013 Mr Justice Cooke, the judge in charge of the English Commercial Court, and Mr. Michael Hwang SC, Chief Justice of the DIFC Courts, signed a Memorandum of Guidance as to Enforcement between the DIFC Courts and the Commercial Court, Queen’s Bench Division, England and Wales copies of which are on the English Judiciary and DIFC Courts websites.

The DIFC Courts

Paragraph 5 of the memorandum describes the DIFC Courts as follows:

"The DIFC Courts form part of the legal system of the United Arab Emirates, albeit that this memorandum only states the position as it applies to the DIFC Courts. They deal with civil and commercial disputes which are connected to the Dubai International Financial Centre or in respect of which the parties have agreed that the DIFC Courts should have jurisdiction. The DIFC Courts consist of a Small Claims Tribunal (SCT), a Court of First Instance and a Court of Appeal. They were established by Dubai Laws 9 and 12 of 2004 and operate as a common law court, applying the highest international standards of legal procedure. The Courts’ judiciary is selected from common law jurisdictions around the world and from Dubai and enjoy the highest international renown."

I have already written quite extensively about the DIFC Courts. Readers are referred in particular to my article "DIFC Courts" 7 Jan 2011 on JD Supra and my posts "The Legal Order of the United Arab Emirates" 12 Nov 2011, "DIFC Court: Corinth Pipeworks SA v Barclays Bank Plc" 20 March 2011, "DIFC Courts' Jurisdiction: Corinth Pipeworks Appeal Allowed" 25 Feb 2012, "DIFC Courts Spread Their Wings" 7 Dec 2011 and "DIFC Choice of Jurisdiction Clauses" 28 Dec 2012 in this blog. 

The Commercial Court

Paragraph 4 describes the Commercial Court as

"a specialist court within the Queen’s Bench Division of the High Court of England and Wales. It deals with complex cases arising out of business and financial disputes, both national and international, which fall within its jurisdiction. It was established as a separate court within the Queen’s Bench Division by section 3 of the Administration of Justice Act 1970 (now section 6(1)(b) of the Senior Courts Act 1981), although a specialist Commercial List had operated since 1895 for the hearing of commercial cases, to which specifically designated judges with commercial experience were assigned. The Court is internationally recognised for its experience and expertise in commercial dispute resolution."

Readers who wish to know more about the Commercial Court and its practice are referred to the 9th edition of The Admiralty & Commercial Courts Guide.

Status of the Memorandum

The memorandum is not a treaty or legislation.and it makes clear that there is no treaty between the governments of the United Kingdom and the United Arab Emirates whereby British judgments may be enforced in the UAE or Emirates' judgments in the UK.    The memorandum has no legal effect, it is not binding on the judges of either party, it does not supersede any existing laws, judicial decisions or court rules, it is not intended to be exhaustive or to create or alter any existing legal rights or relations.   Its purpose is simply to set out the parties’ understanding of the procedures for the enforcement of money judgments of one party in the courts of the other.

How to enforce Judgments

In both legal systems, judgments of the other party may be enforced as a debt in accordance with the following principles.   It is important to stress that these principles are not confined to the parties' judgments.   They apply equally to the judgments of any foreign court where there is no treaty for the enforcement of judgments between the UK (or as the case may be UAE) and the foreign jurisdiction.

Where a foreign court of competent jurisdiction has determined that a certain sum is due from one person to another, a legal obligation arises on the debtor to pay that sum.  The judgment must be final and conclusive, though it may be subject to appeal.   A foreign court is considered to have competent jurisdiction where the judgment was against a person:

(a)   who was present within its jurisdiction when the action began;

(b)   started proceedings or counterclaimed in the foreign court;

(c)   submitted to the jurisdiction of the foreign court; or

(d)   agreed to submit to the jurisdiction of the foreign court before proceedings began.

There are, however, some foreign debts that cannot be enforced in this way such as taxes, fines and other penalties.

Procedure for enforcing a DIFC Judgment in England

Paragraph 21 of the memorandum provides that n order to enforce a judgment of the DIFC Courts in the Commercial Court, a party must issue a claim form in the Commercial Court, providing a concise statement of the nature of the claim and claiming the amount of the judgment debt. A certified copy of the judgment should be exhibited to the claim form.  A certified copy of a DIFC Court judgment may be obtained by making a without notice application to the DIFC Courts exhibiting a copy of the judgment which is to be certified. The certified copy will be endorsed by a certificate that it is a true copy, signed by a judge or registrar and sealed with the seal of the DIFC Courts.   In most cases a judgment creditor will be entitled to summary judgment under CPR Part 24 unless the debtor can persuade the court that the judgment was obtained by fraud, it was contrary to public policy; or the proceedings were conducted in a manner which the Commercial Court regards as contrary to the principles of natural justice.

Procedure for Enforcing an English Judgment in the DIFC

The DIFC procedure is very similar to that of the Commercial Court.   The Rules and forms of the DIFC Courts are very similar to the those of the English courts.   In particular, Part 24 of the of the Rules of the DIFC Courts  which provides for immediate judgment is similar to CPR Part 24.

Further Information

On 11 Feb 2013 I was invited to join 4-5 Gray's Inn Square which is one of the leading sets of the English bar with expertise not only in intellectual property but also arbitration and alternative dispute resolution, chancery, commercial, construction. tax and other areas of work that fall within the jurisdiction of the DIFC courts.   This connection should enable me to expand my practice in the Gulf and to facilitate a more comprehensive service to clients in that region.   Should anyone wish to discuss this article or any other legal matter connected with the Gulf he or she should call Stephen Broom on +44 (0)20 7404 5252 or use my contact form.   He or she can also follow me on Facebook, Linkedin, twitter or Xing..

Patent Law in Oman

I have already mentioned the intellectual property law of Oman ("Intellectual Property Law in Oman" 31 Aug 2011), the Intellectual property treaties and conventions to which Oman is party and its intellectual property office ("Gulf Co-operation Council Member States - Treaties and Intellectual Property Authorities" 10 May 2012). As Oman is party to the Gulf Co-operation Council Charter, those seeking patent protection in Oman can apply to the GCC Patent Office for a GCC patent or to the Ministry of Commerce and Industry of Oman for an Oman patent.  I discussed GCC patents in my article "Patents: Gulf Co-operation Council" on 21 Jan 2011.  In this article I shall consider the domestic patent law of Oman.

Legislation
The sources of this law are the Royal Decree No. 67/2008 relating to Industrial Property Rights and their Enforcement for the Sultanate of Oman ("the Decree") and Regulations No. 105/2008 under the Law on Industrial Property Rights & Their Enforcement for the Sultanate of Oman ("the Regulations"). The Decree came into force on the 17 May 2008 and the Regulations on the 2 Dec 2008. Both the Decree and Regulations provide for utility models, industrial designs, semiconductor topographies, trade marks, geographical indications and unfair competition as well as patents for inventions.

Registers
S.96 (1) of the Decree requires the Director of Intellectual Property (referred to as "the Registrar") to keep separate registers for patents, utility models, industrial designs, layout designs, marks, collective marks, certification marks and geographical indications.   Those registers are open to public inspection and  are maintained by the Oman Ministry of Commerce and Industry.

Patentability
A patent may be granted if the invention is "new, involves an inventive step and is industrially applicable" pursuant to s.3 (1) of the Decree,  S,2 (1) excludes the following from patent protection:

"(a) Discoveries, scientific theories and mathematical methods;
(b) Schemes, rules or methods for doing business, performing purely mental acts or playing games;
(c) Natural substances; this provision shall not apply to the processes of isolating those natural substances from their original environment;
(d) Known substances for which a new use has been discovered; this provision shall not apply to the use itself, where it constitutes an invention under Section 1;
(e) Animals other than micro-organisms, and essentially biological processes for the production of animals and their parts, other than non-biological and microbiological processes;
(f) Inventions, the prevention within the territory of Oman of the commercial exploitation of which is necessary to protect ordre public and morality; such exclusion shall not be made merely because the exploitation of those inventions is prohibited by law."

As for computer programs, s.2 (2) provides that s.3 (1) shall not apply to the following inventions:

"(a) Process inventions which, in whole or in part, consist of steps that are performed by a computer and are directed by a computer program; and
(b) Product inventions consisting of elements of a computer-implemented invention, including in particular:
(i) Machine-readable computer program code stored on a tangible medium such as a floppy disk, computer hard drive or computer memory; and
(ii) a general purpose computer whose novelty over the prior art arises primarily due to its combination with a specific computer program "

Applications
S.5 (1) provides:

"The application for a patent shall be filed with the Registrar and shall contain a request, a description, one or more claims, one or more drawings (where required), and an abstract. It shall be subject to the payment of the prescribed application fee."

Art 3 (1) of the Regulations requires applications for a patent to be made on a prescribed form which can be downloaded from the Ministry website together with the tariff of the applicable fees.  If the Registrar is of opinion that the Decree has been complied with he must grant a patent pursuant to s.10 (1).   Otherwise the application must be refused.

Scope of Monopoly
 S.11 (1) of the Decree provides that:

• a patent shall confer on its owner the right to prevent third parties from exploiting the patented invention in Oman; and
• the right of the patent owner is defined by the claims.

Patents are granted for 20 years (s.12 (1)) but are subject to compulsory licensing under s.13 and revocation under s.14.   Infringements of those rights are actionable in the courts of Oman under s.66 of the Decree.  Remedies include injunctions (interim as well as perpetual) and compensatory damages.

Further Information
Should anyone wish to discuss this article or any aspect of intellectual property law in Oman, he or she can call me on +44 (0)20 7404 5252 or send a message through my contact form.   I am now practising from 4-5 Gray's Inn Square in London which has considerable expertise in international and intellectual property law. You can also follow me on Facebook, Linkedin, twitter and Xing.

DIFC Courts: Choice of Jurisdiction Clauses

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

If the parties want the DIFC courts to have exclusive jurisdiction, they can use the following words for future disputes:

"Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be subject to the exclusive jurisdiction of the Courts of the Dubai International Financial Centre.
This contract shall be governed by and construed in accordance with the law of [INSERT PLACE]."

Or this formula for existing disputes:

"A dispute having arisen between the parties concerning [DEFINE DISPUTE], the parties hereby agree that the dispute shall be subject to the exclusive jurisdiction of the DIFC Courts.
The governing law of this agreement shall be the law of [INSERT PLACE]"

If they want to confer non-exclusive jurisdiction they can choose the following clause:

"Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be subject to the non-exclusive jurisdiction of the Courts of the Dubai International Financial Centre.
Each party irrevocably submits to the jurisdiction of the DIFC Courts and waives any objection it may have to disputes arising out of or in connection with this contract being heard in the Courts of Dubai International Financial Centre on the grounds that it is an inconvenient forum (forum non conveniens).
This contract shall be governed by and construed in accordance with the law of [INSERT PLACE]."

Should anybody require further information he or she can call me on +44 (0)161 850 0080 or email me through my contact page. You can also follow me on Facebook, Linkedin, twitter or Xing..

Gulf Co-operation Council Commercial Arbitration Centre

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

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

Art 2 of the Charter provides:

"The Centre shall have the power to examine commercial disputes between GCC nationals, or between them and others, whether they are natural or juristic persons, and commercial disputes arising from implementing the provisions of the GCC Unified Economic Agreement and the Resolutions issued for implementation thereof if the two parties agree in a written contract or in a subsequent agreement on arbitration within the framework of this Centre."

According to the chapter on the GCCAC in WikiMediation, it resolves disputes relating to "banks, financial institutions, insurance, reinsurance, constructions, engineering, various contracting, intellectual property covering commercial and industrial, copyrights, and all types of international commercial contracts."

Art 10 of the Charter provides:

"An Arbitral Tribunal shall be formed by appointing a single arbitrator or three arbitrators as may be mutually agreed upon by the parties under an Arbitration Agreement or Contract.  In case there is no Agreement, the Rules of Procedure issued by the Board of Directors shall be applicable."

The arbitrator must be "a legal practitioner, judge or a person enjoying a wide experience and knowledge in commerce, industry or finance" and he "must be reputed for his good conduct, high integrity and independent views" (art 11). Such arbitrator may, but does not have to be, selected from a panel prepared by the chambers of commerce of the GCC member states.

Interestingly, art 2 (1) of the Rules of Procedure requires arbitration agreements to "preclude the reference of the dispute before any other authority" and also "any challenge to arbitration award passed by the Arbitral Tribunal."  Art 2 (2) proposes the following text for an arbitration agreement:

"All disputes arising from or related to this contract shall be finally settled in accordance with the Charter of the Commercial Arbitration Centre for the States of the Cooperation Council for the Arab States of the Gulf."

An arbitration is started by a written application to the Secretary-General of the GCCAC containing the following information:

(1)  The full name, address, nationality and capacity of the applicant;

(2)  The full name, address, nationality and capacity of the other party;

(3)  A statement of the nature of the dispute annexing relevant documents;

(4)  The name of the arbitrator (if any); and

(5)  A copy of the arbitration agreement and related documents (art 9 of the Rules of Procedure).

If everything is in order and all fees are paid, the documents are sent to the other side who has 20 days in which to respond which can be extended for a further 20 (art 11).

Art 29 requires the tribunal to apply the following principles in resolving the dispute:

1. The contract concluded between the two parties as well as any subsequent agreement between them.
2. The law chosen by the parties.
3. The law having most relevance to the issue of the dispute in accordance with the rules of the conflict of laws deemed fit by the Tribunal.
4. Local and international business practices.

Arbitrators have power under art 28 to make interim orders such as 

"ordering the deposit of the goods with third parties or sale of the perishable items thereof in compliance with the procedural rules in the country where the interim measure is adopted."

Members of these chambers would be glad to advise and represent parties to technology licensing or other intellectual property disputes before arbitrators appointed under these provisions.   Further information can be obtained from +44 161 850 0080 or you can send a message through my contact page. You can also follow me on Facebook, Linkedin, Xing or twitter.

Cybersquatting Emirates Style: the UAE Domain Name Dispute Resolution Policy

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

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

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

An index of the decisions appears below:

• <bayer.ae>: Bayer AG v Lin Shen 21 June 2012;
• <rbs.ae>: Royal Bans of Scotland Plc v Pavel Kornilov 21 June 2012;
• <flickr.ae>: Yahoo Inc. v Lin Shen 1 June 2012;
• <me-enterprise.ae>: Enterprise Holdings Inc. v Enterprise ME Car Rental LLC 18 April 2012;
• <youtube.ae>: Google Inc. v Mobitronix LLC 29 March 2012;
• <skype.ae>: Skype Ltd. v Mobitronix LLC 23 Jan 2012;
• <gulftalent.ae>: Gulf Talent FZ-LLC v. F. A. (RWG000000000B0D5)  Feb 2011;
• <ferrariworld.ae>: Ferrari S.p.A. v. ST Network International Limited 25 Nov 2009;
• <hardees.ae>: Hardees Food Systems Inc. v. Ali Abdelwahed (AEORG-MAHMEDO) 30 Sept 2009;
• <dunkin-donuts.ae> and <dunkindonuts.ae>: DD IP HOLDER LLC v. Ali Abdelwahed (AEORG-MAHMEDO) 28 Sept 2009;
• <baskin-robbins.ae> and <baskinrobbins.ae>: BR IP Holder LLC v. Ali Abdelwahed (AEORG-MAHMEDO) 25 Sept 2009;
• <yahoo.ae>: Yahoo Inc. v Fady Alassahd a/k/a Fady Al Assaad  2 April 2008;
• <ebay.ae>: eBay Inc. v. Akram Mehmood  16 June 2007; and
• <sonyericsson.ae>:  Sony Ericsson Mobile Communications International AB and Others v Mohamed Ali Aal Ali  23 Oct 2006.

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