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Legal Update: DIFC DEWS Scheme

Will DIFC’s New Workplace Savings Scheme be a Positive Change?

by Dennis Varghese  – Al Dahbashi Gray

With the recent introduction of its New Employment Law, which came into effect on 28 August 2019 (click here for an update on DIFC Law No. 2 of 2019 (“New Employment Law”), the Dubai International Financial Centre (DIFC) is at the forefront of cementing its position as the leading financial hub in the Middle East, Africa, and South-Asia region.

The DIFC is now working on replacing its end-of-service gratuity (“ESG”) benefits scheme with a defined contribution scheme known as the DIFC Employee Workplace Savings (“DEWS”) trust scheme. This article aims to provide everyone, especially employers and employees based in the DIFC, with a brief overview of the current ESG scheme and the highly anticipated DEWS scheme which is expected to come into effect on 1 January 2020. At the end of this article is a Q&A section which aims to respond to any queries readers may have about the upcoming changes.

Al Dahbashi Gray can assist you – If you need any help in understanding the changes and the potential impact it may have on you, your organisation and/or your employees, please feel free to contact us.

First, what is an End-of-Service Gratuity (ESG) Payment in the DIFC?

It is worth noting that ESGs are not unique. The UAE and the other five countries in the Gulf Cooperative Council (GCC) – Saudi Arabia, Bahrain, Kuwait, Qatar, and Oman – all operate similar ESG schemes (albeit with certain variations in calculations and specific termination conditions). But it has been a topic that has been causing much debate over the past decade, both in the DIFC and the GCC as a whole.

ESG schemes were introduced to ensure that when an employment relationship was terminated, employees without pension benefits received a lump sum payment to assist them during the period following termination or for them to put towards their savings.

Regulated by a common law system, and with an independent court system, the DIFC currently implements the defined-benefit ESG scheme. The minimum criteria for a DIFC employee to qualify for the ESG scheme is one year of continuous service. The ESG payment is calculated at 21 days basic salary for each year of service, for up to five years of service, and thereafter 30 days basic salary, for each subsequent year of service.

Key Takeaways of ESG in the DIFC

The EGS payment cannot exceed the amount equivalent of two (2) times the annual wage of an employee. It is calculated as follows (Article 66 of the DIFC Law):

  1. An amount equal to twenty-one (21) days of the employee’s basic wage for each year for the first five (5) years of service; and
  2. An amount equal to thirty (30) days of the employee’s basic wage for each additional year of service.

Employees have the option to receive pension contributions into a non-UAE retirement fund (or substantially similar scheme) instead of an ESG scheme payment, provided the aggregate contributions made by an employer is not less than the ESG payment the employee would have been entitled to receive (Article 66(7) of New Employment Law).

Why has the DIFC decided to shift away from the ESG?

While the concept of being paid lump-a sum of money at the end of employment may seem very attractive, ESG schemes cannot always be relied upon.

Data provided by a leading international law firm revealed that the combined ESG liability of all employers operating in the GCC is estimated at more than AED 54.75bn (USD 15bn). Another survey, by Wills Towers Watson, which covered 300 firms, pointed out that a fifth of UAE companies face ESG liabilities of over US$15 million, with 88% of GCC companies surveyed having no plan to fund gratuities.

The Chartered Institute of Personnel and Development (CIPD), the professional body for HR and People Development, provided that one of the reasons ESG is seen as a high-risk is because businesses keep employees’ gratuities in the corporate bank account and use the monies as working capital until it is due to be paid – which means the risk of an organisation not having access to the gratuity when it is required is very real. To make it worse, it is not currently mandatory for companies in the UAE to set aside payment for the ESG scheme. Therefore, where an employer is in financial difficulties and/or dissolves, employees may have limited prospect of recovering their full entitlement to an ESG. This can be a particular cause for concern during an economic crisis when many businesses may experience financial difficulties

The ESG scheme also does not take into account the full lifespan of an employee – only the years they have worked in each period of employment. This becomes a problem, especially for expatriates, when they reach their retirement age and are relying on the ESG payment to supplement their retirement fund.

A survey carried out by Insight Discovery disclosed that around 49% expatriates in the UAE are only able to save five (5) per cent or less of their monthly income, and only sixteen (16) per cent of expatriates have a fixed retirement plan. In comparison, the savings rate is much higher in other countries, for example, Switzerland, where the savings rate is forecasted to reach approximately eighteen (18) per cent in 2019/20. The survey also made it indisputable that UAE expatriates are eager to start a savings plan.

The move towards the DEWS scheme comes in line with the recent global employee benefits trends – see figure 1.

Figure.1: Source – The DIFC Employer’s Meeting: The Proposals for Reforming the minimum end of Service Gratuity (May 2019)

 

Highlights of the Proposed DEWS Scheme

To put simply, the DEWS Scheme is an opportunity to boost an employee’s retirement savings using a workplace pension scheme. The aim is to create a default position whereby all employees are signed up to a workplace pension in order to increase the proportion of employees saving for retirement.

The DIFC DEWS scheme will eventually eliminate the ESG scheme by offering employees a portfolio of global funds to invest their money in. The word ‘invest’ is key here, as employees will be able to allow their money to grow, instead of sitting idle in a bank account. It is expected that employers will contribute a percentage of the monthly salary to DEWS (the contribution rate is set to be the same as the current gratuity accrual rate), while the employees will also have the option to top up to their portfolio by making voluntary contributions through their salary. Employees will also be able to pick how their contributions are invested, choosing between low, medium and high-risk options. When leaving employment in the DIFC, employees will then receive both ESG scheme for service up until the date of the proposed change (1 January 2020) as well as the benefit from the new DEWS scheme.

Key points to note

  1. A DIFC supervisory board will oversee the establishment of the DEWS Trust.
  1. DEWS will be managed by Equiom, an international professional services group, as the master trustee and Zurich Insurance as the scheme administrator.
  1. The DFSA will regulate the trustee and the administrator. The trustee will oversee the governance of the trust. The administrator will perform the operations of the trust.
  1. The DEWS Trust will operate on a funded, defined contribution basis, investing contributions on behalf of employees and paying benefits on leaving service later, if requested.

The proposed changes also benefits employers by allowing them to know what their exact liabilities towards employees are at any given point. For example, in 2016, the DIFC Court of First Instance awarded a penalty of USD$ 1.5million against a company in breach of Article 18 of the DIFC Employment law, for failing to pay the employee his benefits within fourteen (14) days of termination of employment (a doctrine that has been partially overturned recently; you can read more about the recent change under Section-5 of our article on the DIFC’s New Employment Law.

Under the new DEWS scheme, employers will be required to make contributions every month, meaning cash-flow will be smoothed out over the entire employment cycle of an employee, rather than lump-sum payments having to be determined at the date of termination. The terms of existing ESG arrangements – for example, employees’ eligibility, the definition of the basic wage and the timing of payments — would remain in place to ease the administration of the DEWS. Failures by employers to comply with their obligations will likely lead to fines and other potential sanctions. It is also anticipated that employers will be able to establish their own qualifying schemes outside of the DEWS scheme, the rules of which are expected to be announced soon. We shall continue to monitor developments and keep you informed in due course.

Meanwhile, employees will benefit from:

  • receiving their full end-of-service gratuity, irrespective of an employer going out of business.
  • having their contributions professionally managed, cost-effectively and flexibly.
  • the chance to earn a return on their contributions through investments, which is currently not the case. DEWS contributions could be invested in a range of funds with varying risks.
  • visibility and a choice as to how their savings will be managed, catering to a range of risk appetites and including sharia-compliant options.
  • voluntary savings options on top of employers’ contributions and investments, offering an incentive to save more towards their retirement, of up to 100% of their salary and other forms of compensation via payroll.

A similar initiative, the Workforce Protection Program, is under discussion to be implemented by the Jebel Ali Free Zone (Jafza) soon. It is considered likely that the change to the ESG regime within the DIFC will spread to other free zones and the UAE mainland in order to modernise and standardise employee benefits and entitlements.

Question & Answers

  1. What happens if my employer shuts down?

Any pension contributions you and your employer make will be held with the pension provider – not your employer. If your employer dissolves or becomes bankrupt, your pension fund will be ring-fenced, so your retirement savings will not disappear.

  1. Is the scheme voluntary?

No, all DIFC employers and employees are required to participate in the DEWS scheme unless an employer operates a qualifying system of their own.

  1. Who makes contributions to the scheme?

Employer contributions will be mandatory under the DEWS scheme. Employees will also be able to make voluntary contributions to it, up to 100% of their salary and other forms of compensation via payroll. As it stands, based on a fixed statutory formula based on the employee’s years of service and final salary, the contributions are expected to be cost-neutral compared to the existing gratuity system. These have yet to be finalised but are expected to be around 5.83% of basic salary for where service is below 5 years and around 8.33% above 5 years of service.

  1. Can employers still provide a defined-ESG payment on leaving service?

From 1 January 2020, DEWS will be the minimum benefit basis. Employers can, however, choose to top-up DEWS benefits, if they wish to do so.

  1. Can an employee undertake investments?

Yes, employees will be given the option to make investments or use the trustee’s default investment option, which is set according to the employee’s risk appetite. A Shari’ah investment option will also be available.

  1. Who will influence or make the decision on the risk profile of the investments made in DEWS?

It is currently envisaged that the employers will be able to dictate a default risk profile option for investments made using employer contributions to ensure the investments undertaken by the employees are safe. It is also our understanding that employees will be able to choose their risk profile for investments, however, this is yet to be confirmed

  1. What happens to the existing benefits?

The default position is that the ESG will accrue up to the changeover date (31 December 2019) between the current scheme and DEWS but will only be payable to the employee on their eventual termination and will be based on the employee’s final salary on termination.

  1. Will the funds in the new scheme be forfeited if the employee is terminated for cause?

No, the funds will not be forfeited, and will continue to be the property of the employee. Contributions will be made from day one of employment. This will, however, require an amendment to the existing DIFC Employment Law, which currently does not entitle ESG payment to an employee who has not completed a minimum of 12 months of employment.

  1. Will employees have the option to withdraw funds from the DEWS if they are still in DIFC employment?

No, whilst the employment with the contributing employer continues employees will not be able to withdraw funds. Withdrawing funds will only be possible when employment is terminated.

  1. What happens when an employee leaves employment or transfers his employment?

When an employee leaves DIFC employment, they will receive ESG for service up to the changeover date i.e. 31 December 2019 and thereafter the benefit from the new scheme. If the employee decides to resign or transfer employment, the employee can elect to withdraw or leave their funds in DEWS, but no further employee contributions towards the plan will be possible. The decision to leave funds in the DEWS scheme would see a management fee applied.

  1. How will an employee be updated about ongoing activities relating to their contributions?

It is currently predicted that employees will have full transparency on their investment portfolios in real-time (via an app on their phone, tablet or computer).

Announcing ADG’s New Egypt Office

ADG is pleased to announce that it has extended its practice to Egypt with Ahmed Ragab AlKotby Law Firm.

With a full disputes team, headed up by our managing associate Ahmed Ragab AlKotby, we are delighted to now provide all our clients with specialist and expert Egyptian law advice and guidance directly from Alexandria, Egypt. The Firm in Egypt will work seamlessly with our headquarters in Dubai and our representative London office, ensuring that businesses and individuals receive responsive, bespoke and expert advice in and across multi jurisdictions.

We have always considered Egypt to be a major partner to the UAE. We believe the decision to extend our practice to Egypt is a great step towards our goal to consistently provide world class international legal advice from a UAE firm” commented Co-Managing Partner Mohammed Al Dahbashi.

If you have an Egyptian law matter and wish to speak with Ahmed in detail about how ADG can help, he will be delighted to hear from you. Please email him –

UPDATE – Snapshot Of Changes Under New DIFC Employment Law

Snapshot of changes under the New DIFC Employment Law

Written by Josh Kemp and Dennis Varghese of Al Dahbashi Gray

Background

On 12 June 2009, the Dubai International Financial Centre (“DIFC”) enacted DIFC Law No.2 of 2019 (the “New Law”) which repeals and replaces the existing DIFC Law No.4 of 2005 (the “Old Law”).

The New Law comes into effect on 28 August 2019.

In announcing the New Law, His Excellency Essa Kazim (Governor of DIFC) said:

“The DIFC Employment Law enhancements are integral to creating an attractive environment for the almost 24,000-strong workforce based in the DIFC to thrive while protecting and balancing the interests of both employers and employees.”

This update looks at the most significant changes coming into effect, to update employers and employees on their rights and obligations, and to enable employers to ensure that their employment contracts, policies and business practices are ready for commencement of the new regime.

Positives for Employees

  1. Paternity/Maternity Leave

Old Law: No provision for paternity leave.

New Law:

  • Male employees who have been employed for over twelve (12) months will be entitled to five (5) working days paid paternity leave, provided the conditions are satisfied.
  • The conditions are that the employee has provided written notice to his employer eight (8) weeks before the expected week of childbirth or date of adoption (only if the adopted child is less than five (5) years old).

The New Law also expands the rights of female employees returning from maternity leave, for example, by entitling them to nursing breaks if they work for more than six (6) hours a day.

  1. End of Service Gratuity

Old Law: No entitlement to gratuity if terminated for cause.

New Law:

  • Increases the protection given to employees by obligating employers to make a gratuity payment, even if the employment is terminated for cause.
  • Where an employee is terminated before completing twelve (12) months, the gratuity payment will be calculated on a pro-rata basis.
  • Employees may also opt to receive pension contributions as an alternative to the gratuity, provided the pension contributions are not less than the expected gratuity payment.

The changes to gratuity entitlements are perhaps the most controversial changes under the New Law, as the new provision drifts away from the stance taken by the UAE Labour Law, under which employers are not required to make gratuity payments where termination is subject to article 120 of the UAE Federal Labour Law (including “for cause”). However, the lifespan of “end of service” gratuity payments may be short-lived due to the proposed migration of the gratuity regime to a cash accrual regime in 2020.

  1. Part-time Employees

The Old Law: Did not recognise the concept of part-time and short-term employees.

The New Law:

  • The New Law formally recognises part-time employees as those who work less than eight (8) hours per day or less than five (5) days per week (or if the terms of the employment do not constitute full-time employment), with specific statutory entitlements to vacation leave, sick leave and maternity/paternity leave on a pro-rated basis.
  1. Discrimination

Old Law: Protected characteristics of discrimination under sex, marital status, religion, race, nationality and mental and/or physical disability. It did not provide any specific statutory remedy for a contravention.

New Law:

  • Widens the scope of the previous anti-discrimination provisions to include age, pregnancy and maternity.
  • Provides remedies in response to a positive finding of discrimination, by giving DIFC court the power to

i. make a declaration as to the rights of the complainant and respondent;

ii. make a recommendation (which, if not complied with, will lead to increase in compensation), and

iii. order the employer to pay compensation (which may include for injured feelings) capped at one (1) year’s wages (or two year’s wages for a repeat offence for the same employee) (Article 61).

  • Introduces protection for victimisation of employees in relation to claims for breach of the anti-discrimination provisions, which is very largely replicated from s.27 of the Equality Act 2010.

The most notable introduction is arguably the statutory right to compensation for discriminatory conduct. Overall, the changes bring the DIFC into closer alignment with international standards. Case law under the UK Equality Act will continue to be persuasive, but there are limits to the extent of its application, as UK Employment law has greatly been influenced by EU law, which has no legal effect in the DIFC.

  1. Penalties

Old Law: Employers are obligated to pay all wages and other amounts owing to an employee within fourteen (14) days of the employee’s termination date. Failure to make the payment within 14 days requires the employer to pay the employee a penalty equivalent to the employee’s daily wage for each day the entitlements remain unpaid.

New Law:

  • Retains the obligation to pay wages to an employee within 14 days.
  • Introduces a new system for penalty payments:

i. no penalty applies if the outstanding payment after 14 days is less than one week’s wages;

ii. the penalty will be capped at six month’s wages;

iii. no penalty accrues during the time a dispute is pending before the Court; and

iv. the Court may waive the penalty where the employee’s unreasonable conduct is the material cause of the failure to receive the amount due

The new regime strikes a greater balance of rights between employer and employee. The former provisions were generally regarded as draconian due to the potentially unlimited duration of the penalty and the fact that any penalty would continue to accrue during the course of litigation.

  1. Contracting-out

Old Law: Any waiver by an employee of any of the statutory employment rights was void, unless the Old Law specifically permitted it.

New Law: An Employer and Employee may now enter into a written agreement to terminate the Employee’s employment or to resolve a dispute, in which the employee agrees to waive certain entitlements, provided the employee (a) warrants that he/she had an opportunity to obtain independent legal advice; or (b) the parties took part in court-ordered mediation prior to the agreement.

Positive Update for Employers

  1. Sick Leave

Old Law: Employees are entitled to sixty (60) days of paid sick leave in an aggregate twelve (12) month period.

New Law:

  • Retains sick leave at sixty (60) days.
  • However, changes have been introduced to amend the calculation of paid sick leave:

i. first ten (10) working days of sick leave: full pay;

ii. next twenty (20) working days of sick leave: half-pay; and

iii. last thirty (30) working days of sick leave: unpaid (Article 35).

The changes quite significantly favour the employer when compared to the both the Old Law and the normal application of the UAE Labour Law, which requires employers to make full payments for the first fifteen (15) days, and half-pay for the next thirty (30) days.  Nonetheless, at a global level, the minimum rights under the New Law remain favourable to the employee – for example, when compared with the statutory minimums in the US (in which not all states provided for any paid sick leave at all) and the UK.

  1. Limitation Period

Old Law: Does not specify a limitation period to bring a claim against an employer.

New Law:

  • Introduces a six (6) month limitation period effective from the employee’s termination date.
  • In cases of discrimination, the claim must be brought six (6) months from the date of the alleged discriminatory act. However, the court has the power to disapply the limitation period if “there are circumstances which justify” or “such other period which the court considers reasonable” (Article 61(1)).
  1. Vicarious Liability

Old Law: Employers are vicariously liable for an act of an employee committed in the course of employment unless it is proven that the employer took reasonable steps to prevent it.

New Law:

  • While there are substantial wording changes, the substance merely reflects the English common law position as developed by recently decided cases. In relation to discrimination or victimisation, the changes align with the statutory defence of an employer in the UK Equality Act (ie where the employer took all reasonable steps to prevent the discriminatory conduct).
  • The changes are that an employer will be held vicariously liable:

i. for claims relating to loss, damages or compensation arising from an employee’s conduct, if it is shown that the conduct is sufficiently connected with the employee’s employment and it is “fair and just” to hold the employer liable; and

ii. for claims relating to discrimination or victimisation, if it is shown that the employer did not take adequate steps to prevent the employee from carrying out the conduct.

Other key changes:

  • “Opting in”- the Old Law was restricted to employees that were either based in the DIFC or were operating within or from the DIFC. Employers and employees outside of the DIFC can now contractually “opt-in” to the New Law.
  • “Minimum recruitment age” – the New Law has amended the minimum recruitment age from 15 years to 16 years of age.
  • Secondments – the New Law Recognises the concept of employee secondments as employees working temporarily within the DIFC for no longer than 12 months or such period approved by the DIFC.
  • Unpaid Special Leave – the New Law reduces the allotment of unpaid Special Leaves to a Muslim employee from thirty (30) days to twenty-one (21) days. Special Leave is only applicable if the employee has completed at least one (1) year of continuous employment.
  • Probation – The New Law formally recognises the concept of probation periods (not specifically recognised under the Old Law) of up to six months, provided they are included in an Employee’s Employment Contract.
  • Short-term employees – the New Law recognises the concept of short-term employees as those whose period of employment does not exceed an aggregate of thirty (30) days over a twelve (12) month period. Article 17(5) provides several provisions in the New Law, which do not apply to short-term employees, including sick-leave and end-of-service gratuity.
  • Paid time off – the New Law removes an employee’s right for paid time off to look for alternative employment during their notice period.
  • Carrying forward leave – employees will only be permitted to carry over five (5) days of accrued leave (not 20 days as per the Old Law) to the following year.

Shifting the balance towards the employee?

While the New Law does purport to strike a balance between the rights of employers and employees in, arguably it is employees that stand to benefit most from the New Law, as a result of more family-friendly provisions surrounding leave, the strengthening of anti-discrimination provisions, the expansion of gratuity rights to employees terminated for cause, and the prescription of fines for general contraventions of the Law by employers.

UPDATE – FDI in UAE

Update on Federal Decree No. 19 of 2018 (The “New Investment Law”)

By Serena Jackson (with Karim Salem) – Al Dahbashi Gray

The UAE recently announced a significant increase in the types of business where 100% foreign ownership is permitted. In future, the types of business will be determined by a newly formed Foreign Direct Investment Committee, chaired by His Highness Sheikh Mohammed bin Rashid, Ruler of Dubai and Prime Minister of the UAE.

In the recent past, most sectors required whole or majority ownerships for “onshore” companies, with only free zone companies and certain professional partnerships able to be entirely foreign-owned.  The new announcement allows 100% foreign ownership in companies across 13 different sectors, including construction, manufacturing, agriculture, renewable energy and entertainment. While there are still restricted sectors, notably in oil production, banking and insurance, these are becoming the exception rather than the rule.

Allowing for FDI in main on-shore businesses in the UAE, this decision could be a game-changer for the UAE economy.

Background

While the UAE operates and recognizes free zones where foreign investors can own up to 100% of their company, the same was not true outside the free zones, proving a challenge for companies entering the UAE looking to attract clientele and business on a national scale.

Looking to increase its GDP and, at the very least, maintain its position as one of the largest receivers[1] of foreign direct investment in the Middle East and North Africa (MENA) region, in late 2018 the UAE issued a decree that sought to lighten limitations on foreign ownership of UAE based and registered companies. The resultant Foreign Direct Investment Law (“New Investment Law” No. 19 of 2018) provided a framework for the Cabinet of the UAE to permit foreign shareholders to own up to 100% of companies in specifically designated sectors.

The New Investment Law therefore initiated a move in the right direction with regards to opening business operations and opportunities for non-nationals. The New Investment Law sought to redefine the UAE’s investment landscape and combat the development of a stagnant economy. It appeared to go hand in hand with other reforms such as the allowance of long-term residency options for investors and professionals in the country.

Limitations of the New Investment Law

The New Investment Law permitted foreign investment in sectors of the economy if those sectors do not appear in a ‘negative list’ and specific sectors on the ‘positive list’ would be given the privilege of operating under the new law.

Whilst the 2018 decree listed a number of sectors in the ‘negative list’ including oil production, banking and insurance, no such sectors were listed in the ‘positive list’. FDI was therefore not immediately permitted pursuant to the New Investment Law.

UAE Cabinet Meeting of 2 July 2019

The UAE Cabinet meeting of 2 July 2019 formed the FDI Committee, which has the right to create, alter, remove or add any economic sector to the ‘positive’ and ‘negative’ lists.

It announced that 100% foreign ownership of businesses in 122 economic activities across 13 sectors were approved to appear on the ‘positive list’. Sectors such as agriculture, renewable energy, construction, manufacturing and entertainment are now on the ‘positive list’. [2]

Looking To The Future – FDI In The UAE

As per the new legislation, these business ventures with FDI must integrate smoothly with the strategic plans of the UAE and look to increase innovation and employment opportunities for UAE nationals. The government is also looking to ensure there is a positive impact on the environment and a tactical use of technology and technological developments. Overall, the ‘positive list’ is determined at the discretion of the FDI Committee and looks to streamline success between foreign and local investors.

While this recent approval for inclusion of activities on the ‘positive list’ was made by a nation-wide cabinet, each local government (throughout the seven Emirates) reserves the right to decide on the appropriate percentage of ownership in each respective field. In some cases, and some Emirates, certain activities may require an Emirati shareholder, as foreign ownership may have increased from the original 49% possible for a foreign investor but may not reach 100%[3].

Despite these limitations, this New Investment Law allows for foreign businesses and investors to increase their scope of possibilities within the now broader economy of the UAE. However, it is also written to ensure that local interests are protected and continue to be fostered and developed. Future ramifications of this legislation appear to be mostly positive. The UAE is hopeful that this will not only ease the possibility of doing business but that it will encourage businesses to make the UAE their base and headquarters for operations.

 

[1] “Foreign Direct Investment, Net Inflows (BoP, Current US$).” Data. Accessed July 11, 2019. https://data.worldbank.org/indicator/BX.KLT.DINV.CD.WD?locations=ZQ&most_recent_value_desc=true.

[2] Mohammed, HH Sheikh. “In a Cabinet Meeting…” Twitter. July 02, 2019. Accessed July 11, 2019. https://twitter.com/HHShkMohd/status/1146036928892080128.

[3] Planning to Set up a Business – The Official Portal of the UAE Government. Accessed July 11, 2019. https://www.government.ae/en/information-and-services/business/planning-to-set-up-a-business.

ADG’s Africa Practice

Did you know that a significant amount of our work at ADG concerns Africa? Many of our lawyers and staff are African, and most of those that are not have extensive experience in the continent. We advise and assist governments and investors, individuals and corporates, major Asian companies, start-up western investors and much in between. We concentrate on bringing deals together, resolving disputes and getting the job done.

Recognising that most significant conversations and decisions depend upon personal relationships, and a first-hand understanding of the needs and national interests of each African country, our team spend a great deal of time travelling. It helps that Dubai (our headquarters) is an African hub, is only four hours from many prominent African cities, and only about eight hours to some of the more distant major cities, such as Johannesburg, Abuja and Accra.

 

This diagram shows just a selection of the countries we visit and/or have a connection with. If you want to talk, or learn more, about Africa, give us call. We’ve also put together a brochure about Africa which challenges many preconceptions. We think it makes for a fascinating read – let us know if you’d like an e-copy.

Season’s Greetings from the ADG Team

As we look back upon our first full year as Al Dahbashi Gray, we would like to acknowledge those who have helped us shape our business – clients, referrers, suppliers, consultants and employees. Thanks to each and every one of you, and we hope that 2019 will bring you all much happiness and success.

DUBAI OFFICE MOVE

IMPORTANT INFORMATION

We are excited to announce that our Dubai office is in the process of moving to new office premises in Bay Square, Business Bay.

During the move, there will be certain unavoidable disruption. From Sunday 2 September to Thursday 6 September, please contact our Dubai team by email or on their mobile number. Work will continue as normal during the move.

ENFORCING AN ARBITRATION AWARD IN THE UAE

The United Arab Emirates (the “UAE”), as a financial and business hub of the Middle East, with dynamic economy development and a pleasant business environment, attracts many international investors.

The tremendous flow of investment gives rise to a great number of transactions between the investors and the development of trade relationships both with and within the UAE.

However, in practice, there are many breaches of contractual obligations, which create disputes between the parties. Referring these disputes to local courts is often time-consuming and unpredictable decisions are made. Arbitration is often more favourable to parties in trade relationships, than traditional court proceedings.

The UAE Government strives to encourage investors, as well as to create an efficient legislative system. Accordingly, it seeks to react to loopholes in the legislation system and it recently issued Federal Law No.6 of 2018 on Arbitration (the “New Arbitration Law”) on 3rd of May of 2018, and it is already in force across the UAE.

The New Arbitration Law has superseded the Civil Procedure Code’s clauses, which previously regulated arbitration procedures in the UAE. The New Arbitration Law is based upon the UNICITRAL Model Law of Commercial Arbitration.

By adopting a new, separate arbitration law, the UAE has taken a big step towards modernizing its laws and adopting best international arbitration practices.

SCOPE OF APPLICATION OF THE NEW ARBITRATION LAW

The New Arbitration Law applies to:

  1. Any Arbitration conducted in the UAE, unless the Parties have agreed that another law should govern the Arbitration, (but note that the choice of another Law must not conflict with the public order and morality of the State)
  2. Any international commercial arbitration conducted abroad, if the Parties have chosen this law to govern such Arbitration.
  3. Any arbitration arising from a dispute in respect of a legal relationship, whether contractual or not, governed by UAE law, save as excepted by special provision.

ARBITRATION AGREEMENT

The New Arbitration Law envisages that the parties enter into an arbitration agreement before any dispute arises, by either incorporating an arbitration clause within the agreement governing their relationship, or as a separate arbitration agreement. This agreement, whichever form it may take, must be in writing, otherwise it shall be considered null and void.

An arbitration agreement may also be concluded even if the dispute has already arisen and action has been brought before the court, in which case the parties must agree to refer the dispute to arbitration in writing before the relevant court.

One of the important requirements in relation to the arbitration agreement is that the agreement shall be signed by the respective and duly authorized person, who is entitled to sign an arbitration agreement or arbitration clause on behalf of parties. Our advice to clients is always to ensure the capacity of the counter-party’s representative, because apparent authority creates a number of issues in the UAE.

Arbitration clauses shall be deemed as separate independent agreements, and shall not be subject to invalidity and nullity, even if another part or the whole of the containing agreement is considered null and void.

CHALLENGING ARBITRAL AWARDS

Article 53 of the New Arbitration Law sets out the procedure to challenge an arbitration award and lists the circumstances where it may be challenged.

An interested party may challenge an arbitration award before the Court either by filing a case to nullify the award or by contesting the process when the application is already submitted to enforce the award.

The following circumstances may lead to an order to set aside or nullify an award

  • Where there is no arbitration agreement entered into by the parties or such agreement is nullified, or it was lapsed.
  • Where one of the parties in the moment of signing the arbitration agreement, was not duly authorized to do so or under some incapacity.
  • Where the representative of a party had no legal capacity to sign an arbitration agreement or arbitration clause. Signatories to an arbitration agreement/clause must have direct authorization to do so.
  • Where a party did not comply with required procedure of notification on arbitration process or appointment of Arbitrator or the Arbitral Tribunal breached due process or for any other reason beyond his control.
  • Where the arbitral award excludes the application of the Parties’ choice of law for the dispute.
  • Where the arbitral tribunal or arbitrator was appointed in breach of law or of the arbitration agreement/clause.
  • Where the arbitral proceedings were marred by irregularities that affected the award or the arbitral award was not issued within determinate time frame.
  • Where the award contains decisions on matters not falling within the terms of the submission to arbitration or beyond its scope, provided that, if the decisions on matters submitted to Arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to Arbitration may be set aside.

BINDING FORCE

The award issued in compliance with the New Arbitration Law will be binding on the parties and no longer subject to appeal, and the award shall be enforced by the Court.

ACTION TO SET ASIDE AWARD  –

The Arbitration award is final, however it may be challenged by virtue of action to set aside the award in whole or in part To set aside an award means to “declare the award to be disregarded in whole or in part[1].

 

The Courts decision to set aside the award is final. Nevertheless, the Law allows a decision to set aside to be appealed in the Court of Cassation

 

The law in Article 54 determines the time limit for the seeking party to file an action to set aside the award as:

 

“An action to set aside an arbitral award shall be time barred after 30 days from the date of notification of the award by the party seeking to set it aside.”

 

The Court may suspend the setting aside process for 60 days, in order to give the Arbitral Tribunal an opportunity to take any action or amend the form of the award which may then eliminate the grounds for setting aside  without affecting the substance of the award.

 

ENFORCEMENT OF AN ARBITRATION AWARD

The most crucial issue for the winning party of the arbitration is to enforce the award once issued. The Arbitral award is final and binding on parties once it is issued, and if the parties do not comply with the award, then further steps can be taken to enforce the award in the UAE.

Previously, to enforce an arbitration award, the winning party had to file a case in the local courts to ratify it. The enforcement process in the local courts was a time-consuming process due to lack of the legislation system regulating arbitration.

The New Arbitration Law contains a new, less complicated, procedure of enforcement. Article 55 of the New Arbitration Law sets out the following requirements to enforce the award:

The parties to the dispute must submit a request for the confirmation and enforcement of the arbitration award with the Chief Justice of the Court, supported by the following documents:

  1. The original award or a certified copy
  2. A copy of the Arbitration Agreement
  3. An Arabic translation of the arbitral award, attested by a competent authority, if the award is not issued in Arabic
  4. A copy of the minutes of deposit of the award in Court

Within sixty days upon submission of the request, the Chief Justice of Court and any other judges delegated by the Chief Justice of Court, shall order the arbitral award to be confirmed and enforced, unless it finds one or more grounds for setting aside the award under section 1 of Article 53.

However, we must highlight that the Chief Justice of Court has not yet issued any order confirming awards and no delegation has been granted to another judge. From a practical point view, it would seem that this provision is currently not applicable because the court system is currently under technical development.

STAY OF ENFORCEMENT OF AWARD

Article 56 states that a action to set aside an arbitral award does not stay its enforcement. Nevertheless, the Court seized of the action to set aside the award may order a stay of enforcement if so requested by a Party showing good cause.

The interested party shall provide a security or monetary guarantee, if the court orders a stay of enforcement. The court shall decide, within 60 days from the date of the order, what action to take.

The Law does not specify what grounds can defined as a good reason for the court to order a stay of enforcement.

RECOURSE AGAINST ENFORCEMENT OF AWARD

The seeking party may file an appeal to the competent Court of Appeal within the 30 days from the date following notification of the Court’s decision to grant or deny enforcement of an arbitral award.

CONCLUSION

Before the New Arbitration Law came into place, arbitrations were governed by Civil Procedure Code in Articles 203 to 218. Such a lack of developed arbitration legislation framework often led to complications with enforcing arbitration awards.

Although many uncertainties remain from a procedural point of view, (i.e. as the practical application of the law yet remains to be seen) and the Court system still has not launched the option to submit the above-mentioned request for enforcement of an arbitration award, it is understood that this shall take place in the near future.

We believe that New Arbitration Law will shed light on existing ambiguities in arbitration procedures.  Enforcement will facilitate solutions to current problems of the framework which will, hopefully, in turn result in an efficient and explicit legal framework governing arbitration proceeding, as well as the enforcement of arbitration awards.

In more simplified terms, a claiming party can now directly enforce an arbitration award in the UAE rather than having to file a case to ratify the award first.

[1] Redfern, A., Hunter, M., Blackaby, N. and Partasides, C., Law and Practice of International Commercial Arbitration, London 2004, Sweet & Maxwell

 

Al Dahbashi Gray– Malika Kashagonova  – 28 August 2018

Al Dahbashi Gray is a full-service UAE firm that provides an unparalleled legal service, connecting international clients and partners seamlessly with the region, and promoting a better understanding of the Middle East internationally.

 

Exciting Job Opportunity at ADG

Exciting Opportunity for a Senior Associate in Dubai

We are looking for a Senior Associate to join our thriving and ambitious team.

The ideal candidate will be 8+ years qualified (with an emphasis on litigation, but ideally also some corporate experience). You must be technically excellent and fluent in both English and Arabic.

You must have at least three years’ experience practicing UAE Law in the civil courts (criminal and/or Shar’ia experience is a bonus).

You will lead a friendly and collaborative team, ensuring that it continues to provide high quality, responsive and commercial advice.

We strive to maintain a positive working environment. We embrace diversity and gender balance in our employment practices, and actively encourage talented fee-earners who wish to strike a balance between work and family life, to work on a part time basis.

Please contact Rewa Cooper (rc@adglegal.com) with your CV if you are interested in joining us.

Somalia – The Next Investment Opportunity?

By Jan-Carl Stjernswärd

Somalia – not your typical travel destination. “Black Hawk Down”, tv footage of dead bodies, pirates and starving children flash through the mind. Yet the disastrous civil war and American intervention occurred more than 25 years ago. Piracy was largely eliminated around four years ago. Today’s Somalia is a very different place and is currently undergoing an economic renaissance. Bustling ports, modern highways, mineral deposits and fresh seafood entice investors and adventure-seekers alike. This millennia-old civilization is once more taking its place on the world stage.

What has led to this interest? In short, its location and Ethiopia’s growth. This, and some of the opportunities available are discussed below.

Strategic Location

Real estate agents always say location is the single most important factor when choosing whether to buy a property or not. Geopolitics is no different.

One of the miracles of economic growth over the last decades has been Ethiopia. This thriving consumer economy of 120 million has had its GDP increase by six fold from around USD 12 billion in the year 2000 to around USD 72 billion as of 2017. Yet this landlocked economy has not had a port of its own since Eritrea seceded as an independent state in 1991. Relations deteriorated, leaving the country dependent upon neighbouring Djibouti. This in turn led to Djibouti’s remarkable development.

As well as hosting one of Africa’s busiest and most efficient container terminals, Djibouti has a major oil terminal and now a mixed use port, the latter built with Chinese money. It also hosts French, American, Japanese, Chinese and EU bases, with Spanish and other Europeans also permanently based there.

Although relationships between Ethiopia and Djibouti remain strong, relations between Djibouti and certain other nations – particularly the UAE – are more fragile. In part this (and the strategic need for Ethiopia to have more than one route to the sea) have led to an increased interest in Somalia and Somaliland.

DP World signed to develop Berbera (Somaliland) in 2016, and recently agreed to develop a free zone there. Its subsidiary, P&O Ports, then signed with Bosaso, Somalia, in 2017. Meanwhile, Chinese and Turkish interests are developing other parts of the country – with Turkey a major investor in Mogadishu. Currently, Berbera and Bosaso are seen as the two most strategic plays, both being on the Red Sea, through which flows some 60% of the world’s shipping.

Each of Berbera and Bosaso could serve Ethiopian demand – as well as help Somaliland and Somalia develop themselves – both via Djibouti (if transit is permitted) and directly through various overland routes.

In short Somalia sits on some prime geopolitical real estate. As Ethiopia continues to grow, it will require several ports to service it. The only other potential player – Sudan – requires over 1,500 km of transit over non-asphalted roads. While this has led to rivalry between the three ports, outside commentators would note that Ethiopia’s economy will (and may already) be strong enough to sustain all of them.

Goods will not only be flowing in. As Ethiopia imports vehicles, wind turbines and machinery, it exports agricultural produce, leather goods and – soon – oil and gas. Again, each of Djibouti, Somaliland and Somalia are vying to host the export terminal. Reports of Djibouti being chosen appear premature.

Foreign Players

Somalia was once shunned by the international community as a pariah state. Now it is being courted as a bride by many a wealthy prince. The UAE, Turkey and Saudi Arabia all seek to establish military bases in Somalia. Even the US is reported to have a semi-covert presence in the country.

What all this means is that the security situation is rapidly improving. The most problematic region remains the capital, Mogadishu, with Puntland (Bosaso Port) and Somaliland (Berbera Port) both being stable and relatively safe.

The Hospitality Sector

At present, there is no international hotel operator in Somalia, but companies from Europe, Turkey and China have all been recently eyeing the market. It is rumoured that a new hotel may open in Bosaso, Puntland, and Garowe, Puntland, as port engineers, oil prospectors, geologists and surveyors all flood the city. The highway from Bosaso to Garowe is 500km but takes only about 4.5 hours to drive – Garowe, a pleasant leafy garden city and the capital of Puntland, is only a short distance from the Ethiopian border. A dry port is planned for the border area as well as a free zone in Bosaso.

For the non-business traveller, virgin mountain ranges, deserts, geothermal springs, bush and pristine beaches await to be explored. Combine this with ancient architectural sites, organic cuisine and friendly locals and you have a growing market for tourists looking for a fresh experience.

A Flat Society

Somalis have for centuries been nomads. As with other nomadic societies that this correspondent has visited in Central Asia and Africa, there is an ingrained sense of hospitality and trust between people. There is no real class pyramid, and pauper and businessman alike often share the same table at restaurants, political meetings and social gatherings. For a foreign investor, this is refreshingly different from many other sub Saharan countries, underpinned by a strict pecking order of rent seekers.

This sense of grass roots democracy is reflected in some of Somalia’s political life. No President in either Puntland or Somaliland has ever been elected for two consecutive terms – transition of power has been peaceful and uncontested, as this correspondent can attest to having attended the inauguration of the current Somaliland President in Hargeisa in December of 2017.

Also enriching Somalia’s economic and social life are its large diaspora community (stemming mainly from people fleeing the civil war of the early 1990s). Somali communities exist in the UK, North America and Scandinavia. Encountering an otherwise normal looking Somali with a heavy Mid Western drawl peddling his wares in a lively provincial town is becoming an increasingly more frequent experience as educated diaspora members return to Somalia to capitalize on new opportunities. Large sums of cash are remitted through this network, using the Islamic finance system of hawala, in and out of the country. Indeed, in the absence of banks, Somalia has developed some cutting edge solutions to cater for payment solutions, including e-wallets on your phone through which most payments can be made.

 

All in all, while inter clan rivalry remains an issue, foreign guests are invariably shown respect and friendship by the ordinary Somali.

The Future

Even though political and security challenges remain, it seems likely that Somalia’s economic boom will iron out these problems over the next few years. Meanwhile, for the investor seeking potentially triple digit returns and with a healthy appetite for risk (and seafood), Somalia offers many interesting opportunities in the energy, hospitality, finance and infrastructure sectors.

Jan-Carl Stjernswärd, 27 February 2018
jcs@adglegal.com

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