Saturday, 25 February 2012

DIFC Courts' Jurisdiction: Corinth Pipeworks Appeal Allowed

In CFI 024/2010 Corinth Pipeworks S.A. v Barclays Bank PLC Sir Anthony Colman, Deputy Chief Justice of the DIFC struck out Corinth Pipeworks SA's claim for damages for statements allegedly made by one of the employees of the defendant's Jebel Ali branch on the grounds that the DIFC courts had no jurisdiction to hear a claim for wrongdoing outside the Centre even though the defendant bank carried on business within the Centre. I discussed that case in DIFC Court: Corinth Pipeworks SA v Barclays Bank Plc on 11 March 2011. The claimant appealed.   In CA 002/2011 Corinth Pipeworks SA v Barclays Bank Plc the Court (Chief Justice Michael Hwang SC and Justices Sir John Chadwick and His Excellency Ali Al Madhani) allowed the appeal.

The DIFC Courts' jurisdiction derives from Law No.12 of 2004 in respect of The Judicial Authority at Dubai International Financial Centre.  Art 5 (1) (a) of that law confers exclusive jurisdiction on the Court of First Instance in respect of "civil or commercial disputes civil or commercial cases and disputes involving the Centre or any of the Centre’s Bodies or any of the Centre’s Establishments."  Art 2 defined "Centre Establishments" as
"Any entity or business duly established or carrying on business in the Centre, including any Licensed Centre Establishments."
The same article defined "Licensed Centre Establishments" as "Any entity licensed, registered or otherwise authorised to carry on financial or banking business."  Sir Anthony had held that the branch of the defendant company that carried on business in the DIFC was a "Centre Establishment" but not the bank as a whole.

The Court of Appeal disagreed with Sir Anthony's "reasoning that a "Centre Establishment" can be identified as an unincorporated entity which is permitted to conduct business within the DIFC in accordance with the terms of its license and registration with the DIFC."   In the words of the Chief Justice at paragraph [59]:
"Centre Establishment" must be a legal entity because that is the only way in which the term "entity" used in Article 2 of Law No. 12 can be understood. Where a bank is licensed to carry on business in a place outside its country of incorporation, it is necessary for that bank to carry on business either through an unincorporated branch of the bank or through a separate legal entity which is a subsidiary of the bank. Bank regulators frequently, if not typically, require foreign banks to carry on mainstream banking business through a branch rather than a local subsidiary. However, it would be uncommon for an unincorporated branch of a foreign bank to be treated under local law as a legal entity separate and distinct from its head office unless it has been separately incorporated as a subsidiary. I cannot therefore accept the proposition advanced by the Deputy Chief Justice that a "Centre Establishment" can be an entity which may be (to use the learned Judge's words) "within the corporation". A branch is no different in law from a division, and a division of a corporation is part of that corporation, and has no legal entity of its own (although it may be treated as an accounting entity for certain purposes)."
Having found that an unincorporated DIFC branch of a foreign bank cannot be regarded as an independent entity for purposes of qualifying as a "Centre Establishment", it followed that this term had to be interpreted to mean the defendant bank and its various branches, wherever located. Accordingly, the DIFC Courts had jurisdiction over the conduct of the branch where the alleged wrongdoing took place.

While sharing Sir Anthony's concern as to the limits of the DIFC courts' jurisdiction, the Chief Justice noted at paragraph [68] that:
"(a)    It is entirely within the control of banks and other enterprises carrying on business in the DIFC and the wider Emirate of Dubai as to whether they choose to subject their business within the wider Emirate to the jurisdiction of the DIFC Courts — if they do not wish to do so, they can either trade through separate corporate vehicles in the DIFC and the wider Emirate or (even more simply) include jurisdiction clauses in their contracts choosing where they allocate jurisdiction over any disputes.
(b)    There may well be good reasons why banks and other enterprises carrying on business in both the DIFC and the wider Emirate of Dubai should choose to subject their business within the wider Emirate to the jurisdiction of the DIFC Courts — their business may (as in the present case) be carried on in the English language, and/or their transactions may be subject to a substantive law other than that of the Emirate.
(c)   The situation under consideration will clearly not arise where the "Centre Establishment" is a company incorporated and carrying on business in the UAE outside the Emirate of Dubai or elsewhere. The principles of private international law limit the powers and discretion of the DIFC Courts so as to prevent the exercise of exorbitant jurisdiction, and the DIFC Courts possess the discretion to decline jurisdiction on grounds of forum non conveniens."
Sir John Chadwick and His Excellency Ali Al Madhani delivered concurring judgments.

The Court of Appeal's decision in Corinth Pipeworks follows hot on the heels of the decree of 31 Oct 2011 which extended the DIFC courts' jurisdiction to cover any business dispute from any part of the world.     I commented on the extension of the Court's judgment in "DIFC Courts Spread Their Wings" on 7 Dec 2011.   The combined effect of the decree and appeal is to enhance considerably the convenience of the court for determining all manner of commercial disputes including those relating to intellectual property.

Though an IP case is yet to come before the DIFC courts there is no reason why it should not handle one effectively.   Sir John Chadwick heard plenty such cases when he sat in the Chancery Division in London.   Part 25 of the Rules of the DIFC Courts enable those courts to grant interim injunctive relief as quickly and effectively as any court in the world. 

Should anyone wish to discuss this topic further he or she can call me on +44 161 850 0080 or fill in my contact form. He or she can also contact me through Facebook, Linkedin, Xing or twitter.

Tuesday, 21 February 2012

Doing Business in Dubai

Yesterday afternoon I attended the seminar on Doing Business in Dubai that I announced on 24 Jan 2012.. Shortly before the event I was advised that it had been moved from Knowles Warwick's offices to the Double Tree Hilton Hotel.  As you can see, the hotel's website is not particularly informative and nobody in the area seemed to have heard of an hotel by that name (though they had heard of a Moat House which had been there some years earlier).   There was not even a "Double Tree Hilton" sign outside the hotel.   As a result I missed Steve Knowles's speech altogether and the start of Zayd Maniar's.  However, I did get the slides for both presentations.

According to the slides, Steve dealt with two issues:
  • the benefits of people from the UK doing business abroad; and
  • how doing business abroad can actually reduce risk.
He also chaired the meeting.

The benefits that he identified were as follows:
  • Tax Incentives: some countries offer lower tax rates or other concessions which enable businesses to retain a bigger share of the profits and reduce their costs;
  • Cost Advantages: lower labour and raw materials costs;
  • Enhancing Brand Value: brands gain prestige if they are used outside the UK;
  • Diversification: new ides and technologies;
  • Economies of scale: and 
  • Enhanced competitiveness.
Doing business abroad reduced risk by enabling businesses to reducing exposure to the adverse economic conditions prevailing in the UK.

Zayd is the international liaison partner for Horwath MAK, Crowe Horwath's office in Dubai.  He read economics at Reading and qualified as a chartered accountant in England and Wales..   His background appears on the "Our Partners" page of the firm's website.  The slides that I missed were about Horwath MAK which has carried on business in Dubai for the last 30 years and an overview of the economic situation in Dubai.   According to the slides, the UAE had experienced a period of high inflation as a result of a property boom but that has now come to an end and the country expected strong and stable growth from tourism, transport, manufacturing and services as well as energy.

I joined the presentation as Zayd outlined the constitutional structure of the UAE (a topic that I had discussed  in "The Legal Order of the United Arab Emirates" on 11 Nov 2011) and profiled the emirates of Dubai and the federal capital, Abu Dhabi.  The economy of the Union has been boosted by the establishment of a number of free zones where foreign owned businesses could operate without a local partner and repatriate their profits as and when they wished.  Some of these zones were located around ports but others are specialist zones such as the Commodities Centre, the Knowledge Village and, of course, the Dubai International Financial Centre.  Zayd said Horwath MAK were in several of those zones.

Zayd outlined the types of businesses entity that can be established in the UAE. These are very much the same as everywhere else, namely public and private limited companies, general and limited partnerships and "partnerships limited with shares" which I took to be limited liability partnerships.  Except for businesses in the free zones, it is necessary to incorporate in the UAE with a local partner.  There is no federal income tax on salaries or wages but the federal government is thinking of introducing VAT and there are high import duties on certain goods.   

At this point, Steve chipped in to point out the absence of income tax meant that there was nothing against which one could get tax relief.  If losses were to be expected in the early stages of an enterprise it could be better to bear those losses here or some other country and somehow export the business to the UAE.  However, that will require a lot of thought and some care because Steve and Zayd also warned in a later discussion that tax is levied in the UK on earnings of businesses that are managed from this country wherever the income is generated.   Zayd told a very sad tale about one small business which was landed with a £400,000 tax bill because it failed to heed Zayd's advice to get tax advice from the UK as well as the UAE. It is worth mentioning that Steve's nickname is "tax champion".

Knowles Warwick had asked for questions to be submitted in advance and I had asked two to which I already knew the answers.   My first question was on the nature and extent of IP protection in the UAE. Zayd confirmed that the authorities took a dim view of counterfeiting and piracy. He mentioned a case in which he had been involved where Burgerking had moved against a fast food restaurant whose proprietor's surname was the Arabic word for King.  IP infringements can often be resolved without recourse to litigation because customs officers intercept infringing goods at the border or other administrative action can be taken. The penal code of the UAE is as tough as Texas's in that almost any offence is punished with a custodial sentence and/or deportation. There are, however, lacunae in that the emirates have their own laws which sometimes allow anomalies.   My second question was on the DIFC court which Zayd thought was a good thing.  He went into some detail about its small claims jurisdiction.  I made a few supplemental observations about the recent extension of jurisdiction and that the court was an English speaking, common law enclave with English and Commonwealth judges and counsel in a civil law federation.

Other questions covered setting up branches and businesses, restrictions on the import of goods such as medicines and medical devices, market research and making contacts.   We were told to familiarize ourselves with different business norms and customs.  Initial connections can be made through UK Trade and Investment and occasionally through the British consulate.

Altogether, we had a very good afternoon.  I already knew Steve quite well and I was pleased to meet Zayd. I had already worked with a forensic accountant in one of a Horwath's British offices in several cases and got to know several others over the last 20 years.   Should anyone wish to follow up this discussion, he or she can call me on +44 161 850 0080 or fill in my contact form. He or she can also contact me through Facebook, Linkedin, Xing or twitter.

Saturday, 11 February 2012

Copyright and Related Rights in the United Arab Emirates: Part II

This article continues and concludes my introduction to copyright and related rights in the United Arab Emirates ("UAE"). In Part I I discussed the treaties and conventions to which the UAE is party, the implementing legislation, copyright works and performances, economic and moral rights and the term. In this Part I consider subsistence, licensing and assignment, regulation of collecting societies, infringement and remedies.

Federal Copyright Copyright Law
The basic copyright law statute is Federal Law No. (7) of the Year 2002 Concerning Copyrights and Neighbouring Rights ("FL7"). An English translation appears on the WIPO website.

Art 2 of FL7 confers upon owners of copyright and neighbouring rights the protection of this law against an aggression against their rights. Art 4 establishes a system for the registration and deposit of copyright works.According to the WIPO website, the copyright office for the UAE is the Ministry of Publishing and Copyright Department, P.O. Box 901, Abu Dhabi Tel +971 506 162 120, Fax +971 262 62 867. The Director of the authority is Fawzi Abdel Aziz Algabri.

Transfer of Rights
Subject to art 15, art 9 of FL7 permits a copyright owner to transfer all or part of his economic rights provided that he does so in writing and specifies the right, purpose, duration and place of exploitation.  Art 10 permits such transfer to be in consideration of money or moneysworth provided that the fairness of the transfer may later be reviewed by the courts under art 11. Art 15 prohibits the alienation of all or more than 5 prospective works.

Compulsory Licensing
Art 21 of FL7 permits any person to apply to the Ministry of Information and Culture for a compulsory licence for the translation or reproduction of a copyright work. The Ministry sets the terms of such licence.

Exceptions to Copyright
Copyright is not infringed by any of the following acts:

  • making a single copy of a copyright work (other than a work of fine or applied art, work of architecture of computer program except as otherwise provided) for personal and non-commercial or professional but personal use of the copier under art 22 (1);
  • making a single copy of a computer program for back-up purposes by a licensed user for so long as the licence subsists under art 22 (2);
  • use in judicial proceedings under art 22 (3);
  • making a single copy subject to acknowledgements for the purpose of preserving the original or research or private study if not otherwise licensed under art 22 (4);
  • quotation of short passages for the purposes of criticism, discussion or review provided that the extract is accompanied by a proper acknowledgement under art 22 (5);
  • performing a work in private to a domestic or academic audience without remuneration under art 22 (6);
  • including publicly available fine arts, applied or plastic works of art or works of architecture in a broadcast under art 22 (7); and
  • reproduction of extracts from written works, sound recordings or audio-visual performances for cultural, educational, religious or vocational training provided that no more is taken than is reasonably necessary for the purpose, the author is mentioned, no profit is intended and it is not possible to obtain a licence by other means under art 22 (8).
Art 23 permits newspapers, periodicals and broadcasters to copy excepts from published works and speeches for reporting news and current affairs upon the conditions specified in the article.

Regulation of Collecting Societies
Collecting societies have to be licensed annually by the Minister of Information and Culture pursuant to art 32 of FL7.They are required to keep records of their members and finances which may be inspected by the Ministry. Licences may be withdrawn at any time.

Copyright infringement is an offence punishable by fine or imprisonment under art 37 of FL7.  Allegedly infringing copies of copyright works may be impounded by customs under art 36.  There is also a right of pre-emptive seizure under art 34 provided that proceedings are instituted within 15 days (art 34 (6) FL7).

Further Information
Should anybody wish to discuss this topic further, he or she can call me on +44 161 850 0080 or fill in my contact form. He or she can also contact me through FacebookLinkedinXing or twitter.