The Abu Dhabi Global Market (ADGM) has announced the establishment of the ADGM Arbitration Centre, which will include the Middle East and North Africa representative office of the International Chamber of Commerce International Court of Arbitration. The centre is forecast to be fully operational by January 2018. This marks an important development for arbitration in the region and provides users of arbitration in the Middle East with greater choice.
Decree 19/2016 established a judicial committee tasked with resolving conflicts of jurisdiction between the Dubai courts and the Dubai International Finance Centre (DIFC) courts. Just over six months after the issuance of Decree 19/2016, the committee rendered its first decisions, which have made it clear that an arbitral award rendered onshore in Dubai cannot be enforced in the DIFC courts where proceedings in respect of the same award have been commenced before the Dubai courts.
A recent unexpected change to the Penal Code which criminalises arbitrators' and experts' violations of their duties of integrity and impartiality has stunned the arbitration community. While steps are underway to lobby the UAE government to repeal or amend the new Article 257, it has cast a shadow over the significant efforts in recent years to promote the United Arab Emirates as a regional hub for resolving disputes.
Established in 2013, the Abu Dhabi Global Market (ADGM) has taken steps to put itself on the arbitration map through the enactment of the ADGM Arbitration Regulations 2015. Although largely based on the United Nations Commission on International Trade Law Model Law, the regulations contain a number of modifications and enhancements, including in relation to confidentiality and privacy, the right to object and rules for the appointment of arbitrators.
The Ministry of Economy recently issued Ministerial Resolution 694/2016, which waives the requirement for limited liability companies, joint liability companies and limited partnerships to amend their memoranda of association, as per the new Companies Law. That said, it is advisable for exempt companies to amend their memoranda of association in due course for ease of reference.
Clients often ask how to conduct legal due diligence or background checks on another party in the United Arab Emirates. Unfortunately, there is no straightforward answer. With no centralised company register, and over 40 different free zones, obtaining basic information about UAE free zone companies may pose a daunting challenge. Even so, there are still effective tools available to uncover the necessary information.
International business companies incorporated or proposed to be incorporated in Ras Al Khaimah must note the recent establishment of the Ras Al Khaimah International Corporate Centre which, going forward, will be the sole authority responsible for the incorporation of international business companies. While the existing advantages of incorporating an offshore company in the United Arab Emirates remain, the system is now more flexible and simplified in terms of bureaucracy.
A recent ministerial resolution has sought to clarify some of the ambiguities and uncertainty surrounding the applicability of the Companies Law to limited liability companies (LLCs). While the resolution does not pinpoint the applicability of each joint stock company (JSC) provision to LLCs, it includes a catch-all clause stating that JSC provisions which contradict the nature of LLCs will not apply to LLCs.
The competition law regime established by Federal Law 4/2012 and Resolution 37/2014 has been criticised – in particular, for being ambiguous in relation to merger control, making the law unenforceable in practice. Most notably, the regime lacked defined thresholds for the application of merger control provisions. These issues were recently addressed through two cabinet resolutions. However, considerable ambiguity remains in the interpretation and application of the UAE competition law regime.
As a result of the economy experiencing an upswing over the past year, there was an increase in transactions and deal values in the first half of 2017. Further, because the United Arab Emirates put its plans to diversify its economy away from a dependency on oil into action, M&A activity outside the oil sector has been bolstered. In particular, there has been growth in the healthcare, education and retail sectors.
Investors seeking to acquire an enterprise must consider the liability arising from a multitude of legal engagements. While the nature and complexity of existing contracts that should be reviewed in legal due diligence may differ considerably depending on the area of business in which the target is engaged, employment relationships will be a significant factor in most corporate transactions. As such, recent amendments to the employment regime are highly relevant to M&A transactions.
The gig economy is developing and expanding worldwide and has already had an impact on the UAE regulatory framework. Moreover, it is likely to become more central to the landscape of employee and workforce relationships within the next five to 10 years. It is certainly an area that in-house legal teams, HR professionals and senior managers should pay close attention to in the short to medium term.
Part-time and flexible working arrangements are a fundamental part of workforces in western jurisdictions and serve as a significant incentive that employers can use to recruit and retain their talented employees. While these arrangements are not currently offered by many employers in the United Arab Emirates, this may be about to change in light of a significant statutory development. This development is a win-win for all parties, and businesses should consider creating roles for part-time employees.
There is a huge amount of uncertainty and misunderstanding surrounding the legal approach to redundancies and restructures in the United Arab Emirates. Redundancies were particularly prevalent during the 2008-2009 crash and the more recent oil price slump in 2015-2016. During those periods, many UAE employers received judgments against their businesses after they failed to understand or comply with the legal position and expectations of the local courts when undertaking internal processes.