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Foreclosure and Legislative Challenges for Islamic Banks

November 7, 2019

The way in which Islamic banks (the “Banks”) foreclose on properties they finance due to a default of the customer depends on whether the Banks either: a) register the properties in the names of their customers and mortgage them in favour of the Banks, or b) register the properties under the names of the Banks. In the first scenario, the Banks often sell the properties through an auction pursuant to Law No.14 of 2008 (Clauses 25 and 26) concerning mortgage of properties in Dubai. The process set out by the law is that if a Customer defaults on payment of their debt secured by the mortgage, the Bank will give the customer notarized notice to pay the debt within a maximum period of 30 days. Should the Customer fail to meet this obligation, the Bank may consequently file an application with an execution judge in order to sell the property directly via. an auction. Moreover, the benefit of this process is that the Bank does not need to institute proceedings before the three levels of courts, that is, the Court of First Instance, the Court of Appeal and the Court of Cassation (or Supreme Federal Court as the case may be) in order to sell the property which, at the same time, saves time and money for the Banks in terms of court costs and legal fees. When this concept first started, the Banks were successful in selling the properties by auction because the auction was conducted in the presence of buyers who always bid for best prices available. However, that being said, these auctions were also being conducted online which meant that buyers would also offer low prices for these properties which were insufficient to settle the debt owed by the Customers to the Banks. This sometimes meant that Banks were stuck with unsold properties. It should be noted that the principle for the sale of properties by auction is also recognized by Law No. 3 of 2015 (Clause 53), concerning Regulations of the Real Estate sector, in Abu Dhabi as well. From this, we can conclude that the Banks may only sell properties through an auction in Dubai and Abu Dhabi specifically. Concerning the second scenario, where the Banks register properties in their own names, the title deeds show the owners of the property are the Banks themselves, but it is subject to the terms and conditions of the lease agreement between the Banks (as lessors) and the Customers (as lessees). In this scenario, the Banks cannot apply the aforementioned laws listed above, and they are required to bring proceedings against the Customers in default and ask the court(s) to de-register the lease from the title deeds, permit the Bank to retake possession of the properties and to then claim their compensation – this value would be the difference between the outstanding amount due by the Customer and the market price of the properties. However, this process clearly takes time and causes the Banks to incur court costs and legal fees. That being said, the advantageous aspect of this scenario means that the Banks may sell the properties […]

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Basics of Bounced Cheques in Dubai

October 17, 2019

In the UAE, a country which continues to be a strategic hub with a rapidly growing economy, writing cheques is one of the common forms of payment; whether you’re buying a car, paying rent or any form of purchases and individual transactions, cheques are commonly used as a form of security. The below outlines important factors that one should familiarize themselves with prior to using a cheque as a form of payment. If a cheque is Dishonored/Bounced: When a cheque is dishonored, the drawee bank immediately issues a ‘Cheque Return Memo’ to the payee mentioning the reason for non-payment such as insufficient funds, the incorrect date mentioned on the cheque, signature mismatch, mismatch of the amount and figures, etc. Bearer of the cheque can resubmit the cheque within six months of the date on it if he believes it will be honored the second time. However, if the drawer fails to make a payment, then the beneficiary has the right to prosecute the former. Criminal Legal Action The payee may sue the defaulter/drawer for the dishonor of cheque. To file a criminal case for a dishonored cheque, the beneficiary must initiate the process by formally registering a complaint with the police of the respective emirate against the drawer. In Dubai, the beneficiary can avail the service of the Dubai Police mobile application in lodging such complaints without stepping foot in a station. Accordingly, the police shall communicate with the Drawee Bank to verify the signature of the drawer of the cheque. If the drawer settles the matter by paying the amount of the bounced cheque, no further legal proceedings will be taken. Otherwise, the Police will register a criminal complaint against the drawer. Since issuance of a bad cheque is a criminal offense in the UAE, upon registering the criminal complaint, a travel ban on the drawer will be issued automatically. This will ban the drawer/accused from leaving UAE or he will be detained on arrival if he enters the UAE. The said travel restriction can be removed only upon settlement of the amount of bounced cheque, or a sentence has been served. If the matter remains unresolved, the police will refer the complaint to the public prosecution. Upon receiving both parties’ contentions, if the public prosecutor finds the existence of a criminal basis, he shall transfer the case to the criminal court. The criminal court, based on the evidence submitted by the parties, will issue its judgment. The judgment will either entail a fine which is assessed by the court at its sole discretion (based on the conclusion reached and the value of the cheque dishonored) usually ranging between AED 1,000 to AED 30,000 or more or imprisonment between one year to three years. However, in the Emirate of Dubai, Law no. 1 of 2017 called ‘Criminal Order Law’, enables the Dubai Public Prosecution, without the need for the case to be transferred to the Criminal Courts, to issue a criminal judgment which will be in the form of fines but conclusive in the subject matter of the case. This covers dishonored cheques for a value not exceeding AED […]

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Is job offer letter legally binding on the employee and the employer?

October 8, 2019

A Job Offer Letter: It is the intention of an employer to appoint a prospective employee under the conditions and features that are outlined in a job offer. This offer is generally prepared in writing in order to prove its content easily, and it may include terms of contract and spell out specific details of the potential employee’s role such as salary, benefits, description of the position and any pertinent details concerning employment conditions. Other details would be generally discussed upon agreement and the signing of the employment contract which would be conducted by the two parties. Structure of a Job Offer Letter: The job offer may be in the form of a letter on the company or employer’s official letterhead, which is then to be signed and sealed by the company stamp. This letter may be sent to the prospective employee by regular mail, hand delivery, by e-mail, fax or by social media such as WhatsApp or Facebook. Alternatively, it may be in the form of an e-mail sent from the employer’s official e-mail and electronically signed or signed by the head of Human Resources department or by the company’s general manager or any person who has the task of selecting and appointing employees. All these modern means are legally considered as a proof. Legal Obligation of Job Offer Letter of Both Parties: The job offer issued by the employer to the prospective employee is considered an affirmative acceptance issued by the employer, which then is awaiting acceptance from the prospective employee. If the prospective employee amends the job offer letter, this shall be deemed a new affirmation by the prospective employee awaiting acceptance from the employer, in accordance with the general rules of contracts. Alternatively, if the prospective employee agrees with what has been included in the job offer letter, then the contract is concluded, and any other details shall be governed by their agreement in the employment contract. When Employment Contracts Supersede the Job Offer Letter: It is known in contracts that the subsequent contract supersedes the previous. In other words, if the parties in the employment contract agree on terms and conditions which vary or which are in conflict with the job offer letter, in this case, what prevails between the parties is the employment contract as it has been concluded after the job offer letter. This is what has been set out in the Dubai Courts judgements in terms of what is agreed upon in the employment contract is considered in determining the rights and obligations of both the employer and the employee. What has been indicated in the job offer letter is reproduced in the employment contract. The new contract regulates the relationship between the two parties, which means that they may intentionally agree to exclude what was provided or was in conflict with the terms and conditions in the previous contract. (Dubai Court of Cassation judgment No. 182 of 2016, Labor Appeal issued on 10/01/2017) .In the case that the employment contract does not mention some of what has been agreed upon in the job offer letter, the contract shall take into account […]

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Well-Known Trademarks, Standards & Protection

September 29, 2019

The UAE Federal Law No. (37) of 1992 on Trademarks defines “well-known” trademark as trademarks that pass borders of the origin country of the trademark to other countries. These may not be registered unless upon a request or official authorization from the original owner. To determine that a trademark is well-known, familiarity with such trademark by the concerned audience due to its promotion shall be considered. Well-known trademarks may not be registered to distinguish commodities or products dissimilar or non-identical to those distinguished by such trademarks if: Use of the trademark indicates to a connection between the commodities or services of owner of the original trademark. Use of the trademark would likely cause damage to interest of the original owner. Many brand owners consider their trademarks as well-known, unfortunately, that may be the reason for losing their cases. If you think that your trademark is well-known, some standards should be taken in consideration. These standards will help you determine if your trademark is well-known. These factors are those which the courts take into consideration along with any circumstances under which the courts may be assumed that the trademark is well-known. The courts will consider documents (including expert report) and information submitted to it with respect to factors from which it may deduce that the trademark is well-known, including but not limited to the following: –              Amount of knowledge of the trademark in the applicable sector of consumers and users; –              Period, and geographical areas of registration, use of the trademark; –              Period, and geographical areas of promotion of the trademark (including advertising); –              The value of the trademark. These standards are only guidelines to assist courts to define whether the trademark is well-known. These are not pre-conditions for obtaining that determination. Hence, the determination in each case will depend on the circumstances and proven facts. Courts usually appoint an expert to determine whether the trademark is well-known. In practice, experts follow these standards in their research to determine if the of trademark is well-known. We, at Al Suwaidi & Company, have handled many successful cases on well-known trademarks. With submission of the proper documents to prove that trademarks are well-known, we obtained a final judgment from the Court of Cassation emphasizing our client’s grounds for its trademark to be classified as well-known and entitled to the mentioned protection under Article (4) of UAE Federal Law No. (37) of 1992. It is the advocate’s responsibility to lead the court to such understanding and recognition, and to increase chances of obtaining a judgment in the client’s favor. Well-known trademark protection, in most cases, is from anything which could be considered as infringement or counterfeiting on that trademark, provided that they are likely to cause confusion to the consumers. Well-known trademarks are often protected, regardless of whether they are registered or not, in respect of services or goods which are the same as or close to be the same as those for which they have gained their reputation. In some countries, such well-known trademarks may, under certain circumstances, also be protected from dissimilar goods and services. In litigation, the following laws and agreements, […]

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Landlord and tenant’s agreement on the jurisdiction of the DIFC Courts with respect to the rental of real estate in Dubai contravenes public order

September 17, 2019

The legal knowledge relating to real estate rent issues in Dubai is an important necessity that all landlords and tenants should be aware of. Especially when it is so easy for landlords and tenants to make mistake in concluding lease contracts. This article will focus particularly on the place of jurisdiction in the event of a dispute. It is necessary to distinguish between the jurisdiction of the Dubai Rental Disputes Center (Center) by considering the disputes arising between landlords and tenants in the emirate or in the free zones and the jurisdiction of the Dubai International Financial Center (DIFC) courts with real estate located in the spatial scope of the DIFC, we clarify this as follows: Article 1: Jurisdiction of the Rental Dispute Center: The Rental Disputes Center in Dubai specializes in all rental disputes in all areas in the Emirate except for disputes within areas that have special committees or competent courts. Article (3) of Law No. (26) of 2007 on regulating relationships between landlords and tenants in the Emirate of Dubai states that the law shall be applicable to leased properties in Dubai, including open and agricultural lands. This excludes hotels and free accommodation provided by natural or judicial persons to their employees. Article (6) of Decree No. (26) of 2013 Concerning the Rental Disputes Centre in the Emirate of Dubai states that: The Centre will have the exclusive jurisdiction to: 1) Determine all Rent Disputes that arise between landlords and tenants of real property situated in Dubai or in free zones, including counterclaims arising therefrom, as well as determine applications for interim or urgent relief filed by any of the parties to a lease contract; 2) Determine appeals from the decisions and judgments that are subject to appeal in accordance with the provisions of this Decree and the regulations and resolutions issued in pursuance thereof; and 3) Enforce the decisions and judgments issued by the Centre in the Rent Disputes that fall within its jurisdiction. The Centre will have no jurisdiction to hear the following Rent Disputes: 1) Rent Disputes that arise within the free zones which have tribunals or special courts having jurisdiction to determine the Rent Disputes that arise within their boundaries; 2) Rent Disputes that arise from a lease finance contract; and 3) Disputes that arise from long-term lease contracts covered by the above mentioned. The above mentioned points clarify that public order contravenes any agreement between the landlords and tenants on the jurisdiction of the DIFC courts to deal with rent disputes outside the scope of the DIFC. Article 2: Jurisdiction of DIFC Courts: The UAE legislator has exclusively defined in the Real Property Law the jurisdiction of the DIFC to hear all real estate disputes that are within the spatial scope of the DIFC. In other words, all real estate located within the spatial and geographical scope of the Dubai International Financial Centre shall have jurisdiction in that case exclusively to the courts of the DIFC. Whereas, by reviewing the Real Estate Property Law No. 10 of 2018 of the DIFC, we find that the issue of jurisdiction has been resolved in […]

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Parallel Import in light of UAE Commercial Agencies Law

September 11, 2019

Parallel importation is genuine product importation from another country without the permission of the intellectual property owner. Parallel import is based on the idea of consuming the intellectual property rights. When a product is first sold on the market territory, parallel importation is authorized to all residents in that state. Some countries allow it, but others do not. In the UAE, when there is importation of genuine products, the brand owner cannot take any action under the UAE Trademark Law to stop the importation of genuine products to the UAE. There is no such law prevailing to stop this kind of importation. Under the UAE Law, there is no direct term recognized as “Parallel Import”. Parallel import is implied in Article 23 of Federal law No. (18) of 1981 on Regulations of Commercial Agencies, which says: No person may import any commodities, products, manufactures, or any other material subject to any commercial agency registered in the ministry in the name of another person with the aim of trading except through the Agent. The customs department shall not release such imports brought through another person without the consent of the ministry or of the Agent. At the request of the Agent, the customs department and competent authorities, as appropriate, shall seize such imports and deposit them in the warehouse of the importer until the dispute is resolved, save the material trading which is liberalized under a resolution of the cabinet. The ministry shall remove the commercial agencies in connection with such materials from the commercial agencies register. Based on this article, the sole procedure to stop the parallel import is to enter into a Commercial Agency Contract with a Local Agent and to get this contract registered in the Ministry as per the Law requirements. The Ministry of Economy notifies the municipalities, customs department, the Federation of Chambers of Commerce and Industry, and chambers of commerce and industry in the State of names of agents recorded in the commercial agents register of any change, modification cancellation made to such registration within thirty days of the date of such modification or cancellation. So, the legal protection is provided to the agents once the commercial contract is registered on the Commercial Agency Register, but the registration itself doesn’t stand as a sole procedure to obtain the full legal protection. The duty of an agent is to coordinate with competent authorities to make sure that these authorities are duly notified, and keep following up with these authorities, showing them that the agent is extremely interested to get the full legal protection. Furthermore, the Agent is also having the right to prevent the import of products included in the agency contract if the Agent is not the consignee. Exclusive distributors may apply for this legal protection if they register their contracts in the Ministry and such contract matches the Ministry requirements for such protection. Finally, if you are seeking the right legal protection from parallel import, you have to register you agreement in the Ministry of Economy as agent or exclusive distributer, and to make sure that the competent authorities are duly notified with this […]

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Dubai Judiciary’s approach to investors’ request to cancel sale and purchase agreements and compensation for delay in completion of real estate projects

August 5, 2019

The United Arab Emirates (UAE) is one of the fastest-growing countries in the field of construction and real estate development. Among the seven emirates in UAE, the Emirate of Dubai is one of the leading contributors in the speedy growth of construction and real estate development through the issuance of comprehensive real estate legislations as mechanisms to create protection, assurance and security to the developers, both local and foreign investors and all parties involved in the real estate sector. Due to the influx of real estate investment in Dubai, it is inevitable that some property buyers experienced difficulties, such as delay in the completion of projects by real estate developers, which make the investors and buyers in constant concern and lead them to seek judicial protection by filing cancelation of the Sale and Purchase Agreement, request for compensation for delay and claim for refund from the real estate developer. In this regard, the judicial trend in Dubai has three aspects: First: whether the project’s status is effective and the project’s achievement percentage exceeds 70%. Second: Whether the project status is ineffective and the project’s achievement percentage is low. Third: If the status of the project is canceled. In this article, we present the position of the Dubai Court of Cassation on the first aspect which is if the percentage of the project exceeds 70% and the project status is effective. Is the judiciary going to cancel the contract or not? – and clarify this according to the following: Whereas, the Dubai Court of Cassation determined that, pursuant to the principle of good faith set out in Article 246 of the Civil Transactions Law, it is not permissible for any of the contract parties to refrain from fulfilling their obligation or request cancelation of the contract if the other party has fulfilled his corresponding obligation or a large part of their obligation so that what is not implemented is minimal to the extent that it does not justify the other party who has failed to perform his obligation to take such an action because he is  lacking the good faith in using his right. And that the provisions of Article 272 of the Civil Transactions Law – it has been clarified in the memorandum to this law that the judge does not force the debtor to respond to the request to cancel the contract in case the debtor fails to fulfill his obligations, therefore, the judge may grant him specified additional time, thus, the cancelation shall be governed only by the existence of three conditions: First:  the implementation of the contract is still possible; Second:  the creditor requests the cancelation of the contract without its implementation; and Third: the debtor refrains to fulfill his obligations, so the decision to cancel is justified. The delay in implementing the contract which gives the parties the right to request the cancelation of the contract shall be decided by the competent court, which has the power to evaluate and understand the facts of the claim. Dubai Court of Cassation judgment issued on 27-04-2014 appeal no 216 /2013 real estate The above-mentioned judgment by the Dubai […]

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Eligible Sectors for 100% Foreign Ownership in the UAE Now Defined

July 15, 2019

The United Arab Emirates Cabinet passed a landmark decision last year to allow 100% foreign ownership of companies onshore and have recently announced the industry sectors that are eligible. This marks a significant change from the prior law where foreigners must seek a local partner to set up business in the UAE, onshore and where the alternative for 100% foreign ownership in free zones. International companies seeking to establish an onshore presence would have to team up with a UAE national who is required to own 51% shares of the company. With the Foreign Direct Investment Law (Federal Law No.19 of 2018) (the FDI Law) that came into force on 23 September 2018, 100% foreign ownership of UAE onshore companies will now be allowed in eligible sectors. This move is expected to boost the UAE economy, attract foreign direct investment and reaffirm UAE’s position as an international hub for commerce and an optimal environment for doing business. The specific sectors in which 100% foreign ownership shall be allowed include 122 economic activities across 13 sectors such as: Renewable energy Agriculture Information and communications Food services Hospitality Logistics Manufacturing Space Transport Professional, scientific and technical activities Educational activities Healthcare Art and entertainment Construction Through the inclusion of these sectors in the 100% foreign ownership eligibility list, the UAE aims to attract foreign investment into the production of solar panels, green technology, hybrid power plants and power transformers. The UAE also aims to stimulate foreign ownership into transportation and storage which is expected to increase economic activity in supply chain, logistics, cold storage and e-commerce transport. 100% foreign ownership also extends to specific professional, scientific and technical activities across the identified sectors. For example, investors can now own laboratories for research and development in biotechnology. The UAE Cabinet has indicated that the local governments at an emirate level has the discretion to decide on the percentage of foreign ownership for each sector / activity. A negative list has already been released along with the FDI Law’s publication in the Official Gazette last year. The sectors where 100% foreign ownership shall remain restricted include: Oil and gas Banking Utilities Road and air transport Telecoms Medical retail (including pharmacies) We at Al Suwaidi and Company are continuing to monitor any further legal developments in these areas and shall advise our clients as and when further information and details are released regarding foreign ownership and foreign direct investment into the UAE.

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Labour Law in Dubai

How to File A Labour Case in Dubai Court?

July 6, 2019

*please make sure no Intellectual property is violated by this article. We know that most of us are so timid that we cannot have a word withour employers to claim our entitlements. This results to a void between employees and employers. In some situations, employers take away rights of the employees and the latter do not say a word. This is not right and it should not be tolerated. As a result of fear or whatever, you wish to call it, a lot of individuals do not submit labor cases in Dubai on time. The workers go on postponing the filing which eventually makes them lose the opportunity. People should recognize how important it is to take heed of Dubai law recommendations as everything can disappear at a blink an eye. Legal Time for Pursuing at the Labour Law Case The legal time frame for filing a case is just one year. If the workers wish to file a complaint against their companies, they have to do it within one year. After a year has passed, their case will not be accepted and they will inevitably be left empty-handed. If somebody is working in a company on an unlimited contract and they were not provided all their rights, it appears that it is their very own fault. This is due to the fact that before leaving the firm, employees need to check on every advantage they need to get after leaving the company or getting terminated. The staff members need to understand what was mentioned in their last settlement as well as what they are actually near completion of their work. They should confirm each and every little thing prior to leaving the firm and also signing the final document so that they may obtain every little thing they have a right on. If a staff member discovers benefits mentioned in the negotiation are not dealt with, he can report that to the employer. If the company disagrees with any one of the discussed benefits, the worker can refer to the Ministry of Human Resources and Emiratisation. Releasing or foregoing anything just because you assume you can not do something about it, is not proper. You ought to deal with it because what is yours should be yours. Employer and Employee Both Can File A Case Both employees and companies can file labour complaints if there are any employment-related issues. BUT this should be filed within one year. No insurance claims of both the workers and the companies will be paid if a year has passed since the event giving rise to the claim. Additionally locate more information: Dubai court work conflicts Work Department in UAE If the employee or a company encounters any type of work issue, they need to report it to the labour department before it is too late. The concerned work division upon filing of the report will execute all the essential actions to address the case. After submitting the case, both of the parties will be ordered to meet to address the situation amicably. Right after getting the demand, the court will convene within three […]

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TRADEMARKS – A BRIEF GUIDE TO PROTECTING YOUR BUSINESS IN THE UAE RELATING TO NON-USE AND LICENCES

July 4, 2019

General rule There is a general rule in most countries worldwide that states one must use their registered Trademark, or it may be subject to a potential cancellation by a competitor. The concept is known as ‘non-use’. In the UAE, use of a trademark is not required for registration or renewal. However, a trademark is vulnerable to revocation by any interested party if there has been no genuine, effective, or continuous use of the mark (except possibly by a bona fide licensee) for a period of 5 consecutive years beginning on the registration date. As a sole exception, this rule is not applicable on world-renowned trademarks as per article 4 of trademarks law. In other words, any application to cancel a world-renowned trademark based on the non-use for continuous 5 years, will be rejected. UAE Federal Law The UAE Federal Law No. (37) of 1992 is an important reference point. The mentioned law is applicable for the seven Emirates of UAE: Abu-Dhabi, Dubai, Sharjah, Ras Al-Khaimah, Ajman, Fujairah and Umm Al-Quwain. Article 22 of this law is the appropriate provision in dealing with non-use. It states the following: “At request of a concerned party, the competent civil court may cancel a registered trademark, if it is proven that such trademark has not been used for five successive years,  unless the trademark owner proves that non-use of such trademark was for reasons beyond his control including, but not limited to, import restrictions and other government conditions imposed on the commodities and services related to such trademark.  For the purposes of this Article, use of the trademark by a person authorized its owner to do so shall be deemed a use of such trademark” Initially, the applicant must demonstrate that the trademark owner has not used the mark as required by Article 22. If the applicant can put forward a robust case, then the burden of proof is on the owner of the mark to prove that there has been continuous use, contrary to the applicant’s claim. Furthermore, as Article 22 implies, if the trademark owner can demonstrate a reason for non-use relating to import restrictions or imposed government conditions which are beyond his control, cancellation can be avoided. Within this law, article 17 states that once a trademark is used continuously within 5 years of the date of registration, its ownership cannot be disputed. There is an exception: if the challenger can show the mark was registered illegitimately. Article 6bis of The Paris Convention for the Protection of Industrial Property states, “no time limit shall be fixed for requesting the cancellation or the prohibition of the use of marks registered or used in bad faith”. Licensed use Turning to the position where a trademark is used by a licensed business operator, in a distribution agreement, for example. In the absence of use by a registered holder during the initial 5 years, there is some ambiguity concerning use by a licensee where the license is not a matter of record. If this is the case, it reduces the likelihood that use by a licensee will constitute genuine use to keep the mark […]

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