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Khalil Khazindar Law Firm
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JASON HUF INTERNATIONAL pc
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Kingdom of Saudi Arabia
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  • Eid Al Adha, Labor Day & Observance of the Anniversary of September 11

    JHI wishes our many friends in the Muslim world a happy Eid Al Adha holiday. To those able to perform Hajj rites, congratulations.  We would also like to advise clients and friends who do not observe this holiday to expect delays in certain services due to office closures - particularly banks and government offices - throughout the Middle East region during the holiday, which is scheduled to begin at sundown on Friday, September 1, 2017.
    In the United States, to all those who labor, have a happy Labor Day weekend. JHI will keep its doors closed until Tuesday, September 5. In the case of urgent matters, Mr. Huf will be available remotely during the weekend, including Monday, September 4.

    JHI ordinarily issues bills for professional services rendered during the previous month on the first business day of the following month. However, for only the second time in the Firm's history thus far, we will issue August's invoices on the second business day of the month (in this instance, September 5).

    Liberty Tower - World Trade Center (WTC), NYC, NY, USA   [ Never Forget:  Liberty ALWAYS Rises ]

    Per Firm custom, at 5:00pm on Thursday, September 7, JHI's NYC HQ will close again, this time in observance of the anniversary of the September 11th terrorist attacks on our country. We will reopen our doors on Tuesday, September 12.
    On September 11, we honor and remember those loved ones and fellow countrymen lost to sudden and senseless evil. But, there is never a day wherein we forget.

    The best way to honor them, especially in New York - the greatest city in the world, is to LIVE (in every sense of the word). To that end, coming soon, we will publish Mr. Huf's report on a productive and enjoyable summer (well, really, a very good year thus far it seems) as part of our Work-Life Balance series. This will be followed by a note on the famously "tax-free" United Arab Emirates' imposition of a tax scheme, including a Value Added Tax and certain Excise Taxes. We also plan, in the very near future, to introduce JHI's new Youtube channel; and, provide on update on EB-5 (Investor) Visas & legal services related to applications for such.

    Mr. Huf at Madain Saleh, Hijaz, Saudi Arabia  (Another day at the office... Exploring the Boundaries of Your Business)

    Watch this space. In the meantime, whatever you are celebrating and/ or observing over the next two weeks as summer comes to a close, we hope that it is meaningful and that you and your families enjoy it.
  • Big Firm Resources Without the Massive Overhead

    By R. Jason Huf

    Some of you may have obtained entry to the "Monastery" (as I've taken to calling my office) as and when business has required. However, for most of those reading this, I realize that I'm letting you in on a little secret: the advertised address of JHI's NYC HQ office is just a mail stop associated with a shared space & services operation on the 6th floor of good old 11 Broadway.  To maintain my strict "No Pop-Ins" Policy, the exact location of the Firm Headquarters Office/ Monastery's actual physical presence is kept confidential, and that confidence is only breached when necessary.

    Being able to advertise the mail stop as the office address, and the convenience of renting conference room space by the hour on the 6th floor, both enable me to concentrate on my work with minimal interruption.  In addition to this "buffer", availing myself of the shared services when certain tasks need to be performed rather efficiently assists me with keeping costs down, which in turn contributes to my ability to maintaining hourly rates that are very competitive.

    The World is Yours (As an old boss of mine used to say, "This is not the Fish Market"; but, with our competitive rates and innovative price structures, there may not be much need for you to bargain when seeking high-quality, world-class International Legal Services that your company can afford)


    Perhaps most fundamentally to those of you (still) reading this piece, JHI can make available to your company the seamless provision of professional services spanning just about the entire legal prism, without having to figure massive overhead costs into our hourly rates (or more innovative billing arrangements). The outfit that runs the 6th floor operation only caters to attorneys, and many of these attorneys elect to house their firms and solo practices in physical office space on the site. Irrespective of the level of their arrangement, all who participate in some form or another are listed in a directory and, over time, some of us get to know each other reasonably well.

    These attorneys practice in virtually every area of the law, and possess a variety of experience levels. In short, I have at my fingertips a storehouse of legal minds to draw upon, from commercial real estate specialists, to business litigators, to tax professionals - even a very smart fellow who focuses on energy trading. And, like myself, they tend to maintain a relatively unburdensome level of overhead costs, which in turn, permits them to be reasonable with their fees as well.

    A few people still tend to think of my practice as rather narrow, until I dispell them of that illusion - JHI is a Commercial, Corporate, Energy & Banking law firm and we perform a wide range of services for clients hailing from a broad variety of industries.  We just happen to have extensive experience in the Middle East, which may occassionally give rise to some folks instinctively thinking of JHI as a boutique servicing a particular "specialty" area.  However, JHI's capabilities are even broader than I previously reasoned:

    Between the NYC HQ, our Jeddah, Saudi Arabia Office, additional reources in the UAE (Abu Dhabi & Dubai) and access to Singapore and various major cities in India, JHI as a Brand is known as a capable provider of professional services in the Middle East and South Asia, ranging from company formation to arbitration, for those who have invested - or are looking to invest - in those regions in the world.

    What JHI is not (yet) necessarily known for is our ability to assist businesses based in the Middle East and elsewhere with their expansion into the US "mega-market". Whether you are an individual foreign investor entering through the EB-5 Visa process, or a family-owned conglomerate of businesses looking to invest in US real estate, or a publicly traded company in Riyadh entering a joint venture, or a participant in the new US public-private partnerships designed to reform the nation's infrastructure, JHI is well-placed to help get you started as well as protect your US-side business interests down the road.

    We have access to an entire network of intellectual assets encompassing a variety of practice areas ordinarily comanded only by big law firms, without having to factor "big firm" overhead into our fees. So, when investing from West to East, or East to West, consider the cost-effective but powerful option of contacting JHI for your legal needs.

    Feel the difference and put our NYC HQ and affiliated Community of Attorneys to work for you in concert with our Jeddah office and/ or resources in the UAE, India & Singapore (wherever you're from!) as we help you and your company Explore the Boundaries of Your Business.

     – Jason Huf
    Wednesday, August 8, 2017
    New York, NY

  • Saudi Arabia's "Companies Law" of 2015

    Saudi Arabia's (KSA) new Companies Law of 2015 came into effect on May 2, 2016.  At JHI, we wished to see the new law in practice and how it would be enforced by Saudi authorities before commenting.  In the meantime, much has already been written about the new law and we need not cover the same ground here.

    Of particular interest to clients and potential clients of JHI is, we believe, the law's provision of the option of Sole Proprietorships (or "Single-Shareholder" companies), and how applications for the licensing and registration of such by foreign investors are treated by the Ministry of Commerce and Investment and the Saudi Arabian General Investment Authority (SAGIA).

    As a general matter, the new law provides that SAGIA may continue to impose additionally stringent incorporation requirements on companies being established with the backing of foreign investors.  While the process of approving incorporation applications has been somewhat streamlined at SAGIA, a certain level of uncertainty, especially at the beginning stages of such an application, remains.

    When considering establishing or reforming an entity in the KSA, JHI feels that if a foreign investor has a trustworthy local partner/ agent (or "sponsor") then, for the time being, it may remain prudent to make use of such local parties when doing business in the Kingdom.  In addition to possibly enjoying a smoother approval process, one might avoid any potential bureaucratic pushback by some recalcitrant officials who may still be resistant to the Vision 2030 reforms more generally.

    The relationship with one's local sponsor can be further clarified via a side letter to the sponsorship agreement.  Such sideletters have been enforced by Saudi courts with increasing regularity.  And, JHI hopes that the provision for Single-Shareholder companies in the new Companies Law is not seen by the local judiciary as a rationale for reversing this trend.

    We will have more to say about the execution and enforement of the new Companies Law and other reforms as events (rapidly) progress.  Speaking of events, recent news indicates a very real likelihood of a shift in the direction of investment capital flowing between the Untied States and the Kingdom of Saudi Arabia.

    Where the Riyals of the Sovereign Wealth Fund go, other Saudi-based investment capital tends to follow.  With that in mind, JHI is seriously considering offering the shepherding of EB-5 (Investor) Visa applications to the menu of professional services our firm offers to incoming companies that invest in the United States, particularly New York, Pennsylvania and/ or New Jersey, where Mr. Huf is admitted to bar.  JHI will have more to say on this in the near future as well.
  • "A Day in Riyadh": An Exhibition of History, Culture, Modernization & Reformation

    During the last week of September, immediately following the opening of the United Nations (UN) General Assembly in New York, a series of seminars, workshops and interactive displays collectively coined "A Day in Riyadh" was showcased at the UN.  This week-long "Riyadh Day" was sponsored by the High Commission for the Development of Arriyadh (Riyadh), and particularly featured the ongoing work of the Arriyadh (Riyadh) Development Authority (ADA).  As a Representative (Observer) for a Non-Governmental Organization (NGO) to the UN, and an attorney with an office in Saudi Arabia, Mr. Huf, Principal of JHI, was pleased and excited to attend.

    Riyadh (Saudi) Exhibition at the United Nations
    Focused on the capital city of Saudi Arabia (KSA, or the Kingdom) and the governate (province) of Riyadh, the series of presentations covered subjects relevant to the economy, culture, commerce and development of the entire Kingdom, and the Arab and Islamic worlds more generally.

    Of particular interest to those who follow this space will be the planned reformation of Riyadh's transportation system which, if fully executed, may be the single-largest public works project on earth during the period of construction. However, we will list all of the subjects covered by the panel presentations at the UN between September 27 - 30, to provide a broad look at the planned continued development of Riyadh (one of the chief purposes of the conference) which, in turn, may give us a better view of the Kingdom-wide social and economic reforms known as Saudi Arabia's "Vision 2030".

    Eng Khalid Al Hogail, CEO Saudi Public Transport Company  Saudi Nuclear Program  Arriyadh Development Authority

    9/27 "Riyadh:  Planning for People" - the overall City Plan (by 2030) moving forward, including details on Riyadh's new "Smart City" initiative.

    9/28 "Riyadh:  A Sustainable & People-Friendly City" - details concerning the Sustainable Development of Riyadh.

    9/29 "Riyadh:  On the Move" -  The King Abdulaziz Project for Riyadh Public Transport.

    9/30 "Riyadh:  Development of Civilization and Social Partnership" - Plans for the continued social, economic and intellectual development of the city's population in line with Islamic principles and the traditions of Arabia, particularly youth and especially young women, empowering them to take a more active role in the growth of the city and the future of the Kingdom as a whole.

    Dr. Sana H Alorf and Jason Huf
    (Jason Huf and Dr. Sana Alorf.  Dr. Sana is extraordinary, but not unique. She is a medical doctor working in Riyadh who also participates in many charitable and civic endeavors.  She volunteered, along with many other young Saudis, to travel to New York and talk about their culture, heritage and way of life in side bars at the exhibition.  Many ladies are taking up professions [including and increasingly fields such as law, medicine and science], starting businesses and participating in life outside their homes in the Kingdom.  Dr. Sana has a wealth of information that dispells many of the illusions concerning Saudi society and highlights the progress Saudi women have made - and continue to make.)

    The public transortation project, scheduled for completion in 2018, is a massive affair that could revolutionize life in Riyadh.  In addition to a new bus service, the project includes the construction of a commuter railway (Riyadh Metro) with six lines, dozens of stations, a main terminal for each line, and services areas at each stop, including large-scale shopping complexes at each of the main terminals.  Anticipating use by roughly 3.6 million residents daily, over 3,000 transport stands will be constructed to accomodate waiting commuters.

    With billions of Saudi Riyals being invested into the project, and given the rather brief time frame, this will generate a labor boom in the capital for qualified Saudis and expatriates.  Mr. Huf asked Eng. Hassan Al Musa, Deputy Director of the Transport Planning Department of the High Commission for the Development of Riyadh, if resources had been allocated to process what should be a substantial spike in Visa applications.  Potential contractors and subcontractors will be interested to know that the Deputy Director responded that his office is in touch with the Ministry of Labor on a regular basis as they set up for this contingency.  So long as employers comply with their filing requirements, he said, there should be no delays in the project caused by a labor shortage brought about by paperwork backlogs.

    Eng Hassan Al Musa and Jason Huf
    (Eng. Hassan Al Musa and Jason Huf.  Mr. Huf found him to be capable, earnest and modest.  Although entrusted with day-to-day management of a massive public works project, with a tight schedule, he always gives credit to others, refering to his "Army" of dedicated public servants.  "That makes you a General", responded Mr. Huf, who later added, "Eng. Hassan is a nice guy".)

    In addition to the lifestyle transformation and relief of traffic congestion that will take place once this project is complete, young Saudis who are lacking in resources such as cars of their own will be able to much more easily venture beyond the confines of their own neighborhoods to look for satisfying work and important educational opportunities.  And, everyone who lives in Riyadh should enjoy the benefit of cleaner air arising from fewer cars on the highways.

    The entire program provided a window through which one could sample Saudi Arabia's Vision 2030, the rapid modernization and other wide-ranging reforms ordered by King Salman and spearheaded by Deputy Crown Prince Mohammed bin Salman, with the aim of guiding a modern but authentically Islamic Saudi Arabia that remains true to its people's history and traditions into a future "Post-Oil" economy.

    These reforms include the KSA's Sustainable Development program, which closely follows the UN's Sustainable Development Goals while keeping in conformity with Kingdom's Islamic principles; increased opportunities for youth & women; and, Saudi Arabia's nuclear power program.

    At JHI, we have offered our own modest suggestions for the shaping of such sweeping reforms, with an emphasis on attracting increased Foreign Direct Investment in the Saudi market.

    With an incoming US Administration that seems keen on utilizing America's energy resources; and, (if feasible) working with Russia to defeat ISIS (which, in addition to commiting henious atrocities, has been fighting forces led directly or indirectly by the Iranians), some may see such investment from the West as slow in coming, and the KSA's reception of it to be less-than-enthusiastic.

    Seen by some as signalling potential push-back against the further development of US energy resources and other recent or possible future policy changes, Prince Alaweed bin Talal of Kingdom Holding Company (Saudi Arabia's soverign investment apparatus) suggested selling holdings previously classified "not sellable" (such as shares in Citi Group and US Treasury bonds), which would be a divorce from Saudi Arabia's long-standing policy of having "buy-ins" in important American economic institutions and, thus, the American economy - effectively giving the US a stake in the KSA's existence and continued success.

    Noises concerning such potential push-back seem unlikely to stem the increased exploitation of US energy resources (another dip in the price of oil, for example, would seem more likely to give pause to an increase in US production).  And, the US-Saudi alliance of over seven decades, while fraying a bit over the last several years, should remain rather tightly tethered:  after ISIS is destroyed, a check on Iranian ambition will have been eliminated, and the US and the KSA will more clearly and simply share strong interests in containing Iran and managing increasingly complicated relationships with Russia.

    In fact, the strong relationships the KSA enjoys with the West, the interest Western countries have in seeing the continued modernization of Arab states, and Western companies' keen eye to continue - and, possibly increase - their investments in the Gulf region were reinforced recently by UK Prime Minister Theresa May in her mid-December visit to the Gulf Cooperation Council summit in Bahrain.

    Overview City Plan Riyadh 2030
    Pending changes to the Kingdom's commercial and corporate laws, which continue to be rolled out, and given at least one or two geopolitical uncertainties, JHI presently and on the whole views it likely that the environment for Foreign Investors will become even more attractive as the Vision 2030 reforms are implemented in the KSA.  As to the Great Social & Economic Reformation of the Kingdom known as "Saudi Arabia's Vision 2030", Mr. Huf doesn't think its on par with the Maji Restoration (the radical transformation experienced in Japan during the late 19th century), but he does see it as the most significant series of reforms in the history of the KSA since the reign of King Faisal (perhaps in the Kingdom's entire history - we'll see) and the most positive collection of developments to take place in the Arab world thus far in this new, turbulent 21st century - and, he certainly viewed the exhibition at the UN positively.

  • Qatar's International Commercial Court

    As Co-Chairman of the New York County Lawyers' Association's (NYCLA) Foreign & International Law Committee, Mr. Huf enjoys the occassional pleasure of hosting some rather interesting guests.

    Just this past March, the Foreign & International Law Committee welcomed the Honorable Gerald Lebovits, Justice of the New York Supreme Court in Manhattan and Adjunct Professor of Law at Columbia, Fordham and NYU.  Justice Lebovits provided a presentation covering the Qatar International Court and the time he spent in Doha teaching local attorneys there.

    JHI has briefly covered Qatar's Bifurcated Legal System in an earlier piece and we refer you to it for some of the bare bones basics.

    Justice Lebovits, in addition to describing his teaching experience in Doha, discussed the history of Qatar's International Court (the Court) for hearing commercial disputes, the caliber of its personnel, its procedures and costs.  He also discussed some of the decisions already rendered by the Court, where he participated as one of its distinguished Judges.

    Clara Flebus, Gerald Lebovits, Jason Huf
    (Left to right: Clara Flebus, Co-Chair, NYCLA Foreign & International Law Committee; Hon. Justice Gerald Lebovits; and, Jason Huf)

    Justice Lebovits pointed out, at length, what he viewed to be the efficiency of the Court relative to Arbitration facilities elsewhere in the Gulf region. The speed, cost and fairness of the proceedings made the Court, from his perspective, an ideal solution for Dispute Resolution and wondered aloud why parties did not avail themselves of the use of the Court more often in the dispute resolution clauses of their agreements.

    Mr. Huf agrees that, on paper and based on performance thus far, the Court is an attractive facility. However, the Court was founded relatively recently (2009), and as an active international practitioner who focuses on the region, Mr. Huf made the point that attorneys might be more receptive to the idea of recommending the use of the Court to their clients after more data is at hand (that is to say, after the Court has adjudicated more disputes). Of course, with attorneys perhaps hesitating to suggest that their client be something of a new legal system's "guinea pig", it may take some time before such additional data is generated.

    That said, you would be hard-pressed to find a lawyer in New York City who is as knowledgeable of the inner workings of the Court and the procedures it employs than Justice Lebovits.  His entire presentation – including his positive view of the Court's cost and time-effectiveness – was well-informed and compelling.

    JHI invites you to research the Qatar International Commercial Court and Dispute Resolution Centre and draw your own conclusions:

    www.qicdrc.com.qa


    After all, as very good lawyers, aren't we always in search of the next "better idea"?

  • Saudi Arabia's Vision 2030 & "Riyadh Day" at the UN

    You are about to see a rapid-fire (for this space, anyway) succession of as yet unpublished updates covering a period from Spring 2016 to present.  We will start with an initial discussion of Saudi Arabia’s “Vision 2030”, touted as the most sweeping series of reforms in the Kingdom’s history.
     
    In a nutshell, Saudi Arabia’s Vision 2030 is a collection of planned economic and social reforms designed to construct a “Post-Oil” Saudi Arabia, in line with globally-held concepts of Sustainable Development. King Salman has invested his son, Deputy Crown Prince Mohammed bin Salman, with broad, sweeping powers to enable him, his advisors and other subordinates to design and execute these reforms between now and the target date of 2030.
     
    Within the stated goals of weaning the Kingdom (KSA) off of being an Oil-based economy and becoming an industrialized state, with greater Foreign Direct Investment (FDI), full employment for working-aged males, improved access to high-quality education, greater rights for women and a more liberal social structure generally, two items are immediately obvious:  we are seeing Riyadh’s intent to finalize the end the era wherein OPEC, the powerful cartel of oil-producing states, has been the world’s definitive maker of oil policy; and, a rapid and intense military build-up intended to strengthen a block of states that includes the KSA, Egypt and the smaller Gulf States determined to withstand growing Iranian and Russian influence in the Gulf region following continued declining US influence and interest there and in the greater Middle East.
     
    While JHI is not a policy think tank, we feel it is important to know the backdrop and overall purpose of any upcoming reforms.
     
    Our principle concern is FDI, and the impact any reforms may have on the attractiveness of FDI in the KSA. This program is still young, so specific laws and regulations impacting FDI are not yet in effect. For the time being, there is nothing set in concrete that a law firm can dissect for the benefit of its clients.
     
    Therefore, in our typical less-than-modest fashion, JHI offers some suggestions on how to make FDI in the KSA more attractive to potential investors:
     
    1.  The Corporate Income Tax should continue to be (gradually) lowered, and personal income tax should remain zero.  Although declining oil revenues and their impact on the national government’s budget needs to be addressed, increasing the number of companies investing in the KSA, rather than increasing the tax existing companies pay, seems the best way to address the current budget shortfalls giving rise to the KSA’s national debt.
     
    2.  Saudization is seen, by and large, as a form of tax by potential foreign investors. The best way to address the employment crisis in the KSA is not by compelling investors to hire Saudi nationals, but by making the hiring of them more attractive.  Foreign investors ordinarily love to avail themselves of a local workforce – after all, importing staff and finding housing for them is pretty darned expensive!  Many such imported workers do not know the language or withstand the culture shock very well.  Unfortunately, fairly or unfairly, the idea of hiring Saudis is generally considered unattractive, thus the current Saudization requirements.  Rather than increase these requirements, education should be improved and made more accessible, and a sense of work ethic (rather than entitlement) needs to be instilled in the Kingdom’s youth.  And, the world needs to actually KNOW of the existence of such an educated, hard-working labor pool – numbering in the millions, and proud of real accomplishment at the workplace.  Do this, and Saudization will no longer be necessary at all.
     
    3.  Make the process of obtaining a business license less burdensome and more efficient.  Telling clients that it could take a minimum of six (6) months to obtain the necessary documentation before proceeding with business activity tends to be something of a turn-off for them.  Additional agencies designed to steer and otherwise regulate foreign investment eases nothing and are simply additional "layers” of bureaucracy.  Streamlining, rather than adding to, the process of licensing incoming businesses would be a productive step.
     
    4.  Women’s rights, and human rights generally, should be broadened – and, can be without offending the Kingdom’s religious sensibilities or its historical traditions.  It is much easier, on multiple levels, for a company to invest in a country whose culture is not the focus of controversial discussions centered around notions of equality and individual human dignity.  Additionally, it is essential that people throughout the Kingdom feel some sense of “ownership” in their country and their respective futures (see, 2. above).  They need to feel that their rights are being protected by their government, not denied.  This isn’t a call for the overnight imposition of Jeffersonian democracy.  Quite the contrary:  JHI asserts that the keys to unlocking a more liberal social structure (without rocking the stability of the KSA) lay within the old tribal and other cultural traditions of the modern Kingdom.
     
    5.  The labor market, and the regulation of such, should be loosened, and greater rights should be provided to foreign “unskilled” laborers and household staff.  As above (see, 4.), this is a matter of conscious for many potential investors, as well as foreign professional staff who visit the KSA.
     
    6.  Banking reform is a must.  The KSA is one of the most – if not the most – “underbanked” markets on the face of the earth.  While new banks and fresh capital and competition need to be allowed in, stronger regulation and monitoring needs to be in place, giving rise to stronger internal compliance programs.  While banking needs to be more readily available in the KSA, companies and governments around the world also need to have more confidence in the country’s banks.
     
    7.  For local and foreign companies alike, receivables can be something of a headache in the KSA.  Its no secret that debt, and the collection of debt, can be problematic there.  As the Kingdom undertakes judicial reform, it should continue to consider the importance of the confidence a company can have in the investment it makes in Saudi Arabia.
     
    8.  One of the most crucial assets in play when investing in any country is a company’s intellectual property. Intellectual property protections and anti-piracy measures need to be greatly strengthened, and quickly.  It is important for any company (say, you sell shampoo and find yourself competing with a counterfeit knock-off of your product – that’s not good), but when looking to attract high-tech industries, especially, it is absolutely fundamental that such companies have confidence that intellectual property worth hundreds of millions, perhaps billions, of US dollars will not be stolen from them and effectively rendered next to worthless overnight.
     
    These are eight basic principle points upon which JHI would like to see the building of any reform package affecting FDI in the KSA.
     
    JHI will track any concrete steps within this subject, and Mr. Huf hopes to learn more when “Riyadh Day” (its actually a week of symposiums, workshops and other such meetings), sponsored by the KSA’s High Commission for the Development of Riyadh, is held at the United Nations in New York at the end of September.
  • Bankruptcy Protection -- in the UAE... ???

    In a somewhat pioneering step, the United Arab Emirates (UAE) is close to finalizing an Insolvency Law modeled after Chapter 11 of the United States Bankruptcy Law.

    The devil will be in the details, but here is what we've heard thus far:

    Under the supervision of a UAE court, a distressed company that successfully files for such protection will be able to restructure its debt with outstanding creditors;

    The law may include some degree of decriminalization of issuing dishonored, or "bounced", checks (cheques, for our British friends); and,

    The overarching goal of this legislation is to improve the business environment by removing (or, at least, mitigating) some of the uncertainty of risk that may arise when investing in a country which may be rich with disposable income, but which is still "developing" - where the economy, laws and political system are still rapidly evolving.

    Dubai, UAE, Emirates, Arab, Bankruptcy, Insolvency, Law, Business, Commercial, Corporate, Firm, Chapter 11

    The extent to which such protections would be available to companies with some element of foreign ownership remains unclear.  However, if it is well done, this new Insolvency Law could prove to be a significant long-term development for the economy of the UAE, and (perhaps) the Gulf Cooperation Council region more generally.

    With the election of a new Federal National Council, one might anticipate final passage of the new Insolvency Law soon.  Perhaps.  Inshallah.  More to come...

    UAE, Arab, Emirates, Dubai, Abu Dhabi, GCC, Gulf, Bankruptcy, Insolvency, Development, Economy, Law, Legal, Firm, Company, Business, Commercial, Corporate, Banking, New York, NYC

  • Saudi Banking Market to Open Up?

    During King Salman's recent visit to Washington, DC, members of the Saudi delegation issued several announcements concerning planned commercial reforms and other developments that could prove significant to Foreign Direct Investment (FDI) in Saudi Arabia (KSA) as the Kingdom looks to broaden its economy at a time when low oil prices are projected to be the norm for the medium term.  We will highlight some of the more significant announcements in this and subsequent notes.

    While Saudi Arabia remains committed to continuing its current record-setting output of light sweet crude (one of the major factors contributing to low oil prices), the KSA is now facing projections of massive budget deficits and rapidly depleting cash reserves.  Increased FDI, particularly from the United States, appears to be critical to the KSA's strategy for coping with the downsides of consistently low oil prices. 

    Reforms in the Arab world often begin with teasers that function as "trial balloons".  This note will reference such a trial balloon floated by a Saudi official associated with the Deputy Crown Prince.  In a closed door meeting with business leaders in DC, this official announced that the Kingdom is considering opening the Saudi banking market to permit entry of additional foreign banks - especially American ones - wishing to do business in the Kingdom.  In additional to financing major projects, it is hoped that such banks would also cater to small businesses and individual depositors.

    Even with the recent entry of a branch of a bank based in fellow Gulf Cooperation Council (GCC) Member State Qatar, Saudi Arabia is still seen as, perhaps, the most "under-banked" market in the world.  To attract additional FDI, which has been in slight decline in recent years, some see the entry of additional Foreign banks and the capital they bring as critical.  Entry by foreign banks based elsewhere in the GCC has been helpful, but it will take the power of additional American and other western banks to take a more broad-based growth to the next level.

    Not stated, but understood, in this announcement is Saudi Arabia's desire that western powers continue to see that they have a stake in the stability of the Kindgom vis-a-vis its continuing conflict with Iran and, increasingly, Russia.

    Of course, the devil is in the details: What will be required to gain entry? And, once in the market, how secure is a bank's investment in the Kingom and how will such a bank be regulated and taxed?  How might such a venture impact an investing bank's legal and regulatory position at home?

    JHI will continue to track the flight path of this trial balloon and let you know where it lands...
  • A Deal's a Deal. Right?

    In the Middle East, the old joke among Western lawyers goes something like this:  “First you negotiate the contract, then you close the contract. And then, you renegotiate the contract… ”

    All good jokes are rooted in the truth.  While there certainly are some local parties in the Middle East who are committed to keeping their word and sticking to the deal they negotiated, there does exist this unfortunately common dynamic wherein the local party will test, stretch and even flat-out ignore the terms of an agreement they just executed.  One might even lose money betting against a breach occurring before the ink dries.

    And yet, throughout the Gulf Cooperation Council (GCC) region, billions of (US) dollars worth of business is successfully transacted each and every year by and between foreign and local parties.  How does that work?

    It starts with understanding what local businessmen already know:  going to court, dumping your local agent (or, colloquially speaking, your “sponsor”), etc, are usually your last best options.  You can see your company effectively frozen out of the market if you make such a move without an almost perfect sense of deftness.  And, even if eventually successful, should your company go this route, you have embarked on a long, aggravating and expensive disruption of business that will give rise to discussions that start with, “Why don’t we just pull out of there?”

    We will talk about arbitration clauses (and, the enforceability of them in GCC jurisdictions) in a subsequent posting.  For now, you also need to understand that the local sponsor, or other local parties with whom your company does business, who busies himself with stretching the terms of your agreement is primarily (if not entirely) in the business of sponsoring foreign enterprises (or otherwise makes his money conducting business with foreign parties).  Maintaining sponsorships or other replationships with foreign investors (and, protecting their reputations and pride) tend to be the top priorities of local companies.  So, when such companies appear to breach their agreements, what do they hope to gain by playing around?

    Usually, more money.  And, usually, not much more.  More often than not, you can settle the matter by amending a couple of terms and (slightly) goosing up their sponsorship “fee” (or, whatever other payment, profit or compensation they may be receiving).

    What about the law of contracts?  Why can’t I look for a new sponsor and/ or seek judicial recourse?

    Remember that the laws requiring you to obtain a sponsor in the first place are protectionist in nature.  On an unofficial level, shopping around for more pliant for cooperative sponsors isn’t designed to be easy.

    Also, while consideration, reliance and other concepts are necessary to show a promise made in contract is enforceable under the laws of the United Arab Emirates (UAE), such is not the case to show the existence of an enforceable contract in Saudi Arabia (KSA).  In the KSA, if you make a promise, you’re stuck with it.

    Isn’t the other side stuck with it, too???

    Well, in the Middle East, there is the law the way it is written, and the law the way its enforced.  And, to further complicate things, that which is enforced is not always written, and that which is written is not always enforced.  If you wind up in a KSA court, you may have a judge whose primary concern is sending a signal to his government, more than adjudicating a dispute between the parties before him.  In the UAE, much may depend on whether the judge enjoyed his breakfast, or if he is miserable from a belly ache, as he reads your company’s brief… (And, keep in mind, the UAE imports its judges from other countries – those judges tend to be mindful of who gave them their jobs.)

    As to getting another sponsor, while the UAE and the individual Emirates therein may not employ “black lists” per se (as does the KSA), you should nonetheless do your best to avoid running afoul of bureaucrats at relevant ministries and other governmental offices who may have a cousin, friend, or other acquaintance who may just happen to be your soon-to-be former sponsor or other business partner/ associate.  Business licenses have to be renewed every year, and your specific business may well depend on successfully bidding on government tenders; and, while Abu Dhabi and Dubai, for example, may look like big cities, they still very much operate as “small towns” on many different levels.

    That’s not to say successfully changing your sponsor and/ or winning a contractual dispute with a local party in the Middle East is impossible.  Such has been known to happen in Abu Dhabi, and even in Jeddah (where arbitration clauses are less likely to be deemed enforceable by local courts, even though the KSA is a party to the New York Convention).  Accordingly, you should protect yourself in the governing documentation the way you would in any other international agreement.

    Have the standard choice of law, venue, and language clauses, as well an arbitration clause (which can be something of a contract unto itself) and, especially, a (carefully written) termination clause.  If an American-based company (or, even if you are based in another Western country but have operations in the US), make sure the documentation includes language concerning your refusal to violate the provisions of the US Foreign Corrupt Practices Act (over the last several years, the trend has been increasingly robust enforcement of the FCPA).  American companies might also think to include a so-called “anti-boycott” clause in the agreement, given the on again/ off again enforcement of boycotts against Israel by some Arab states.

    Although the general mood in the GCC seems to favor a direction wherein the laws are being changed to relax the hold local parties (especially those deemed “sponsors”) have over foreign direct investment in their respective markets/ jurisdictions, it is usually best to try to renegotiate when a breach occurs.  Such renegotiation should, generally speaking, settle upon a slight increase in the amount of earnings the local party derives from the deal.