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Dubai Judge calls for “Certificate of Good standing for expats”

Posted by on September 1, 2016

15th June 16’, Dubai’s Attorney General, Essam Eisa Al Humaidan, has called for the death penalty for a man on the counts of murdering, kidnapping and assaulting a child named Obaida, last month . This was followed by Dubai’s chief prosecutor who asked the judge to implement the stiffest penalty possible, the death sentence, to the alleged rapist and murderer of 8-year-old Jordanian boy Obaida Al Aqrabawi. Reading out the prosecution memorandum after court finished hearing all witnesses in the case, Dr. Ali Mohammed Al Hosani stressed that all evidences point towards a premediated murder of the little boy the 48-year-old accused.

21st August 16’, Judge calls for Certificate of Good Standing: Reference: according to said article: This has led to the whole legal community to call for support of a Certificate to curb criminals entering the UAE. Senior judges, prosecutors and lawyers are pushing for a mandatory certificate of good conduct to prove that those wishing to move to the UAE have no criminal record. The Dubai Criminal Court was told the convicted killer had a long criminal record in Jordan, leading lawyers to ask for a ban on people with criminal pasts to be added to residency laws.

“I am a supporter of such a move,” said Dr Ali Al Galadari, a judge at the Dubai Court of Appeals. “It’s similar to the medical tests mandatory for those moving to the UAE to prevent the spread of contagious diseases.

“In our country, we are aiming for excellence in everything and we are succeeding, but such a move will help us get to where we want safer and faster.”

Before a UAE residence visa is granted, prospective residents must have medical tests at government health centres to prove that they do not have HIV-Aids, Hepatitis B or C, or tuberculosis so such Good conduct certificates, or criminal background checks, would be required for a residency visa like which is in place already for countries like Australia and Canada.

Source: http://www.emirates247.com/news/emirates/death-penalty-sought-for-obaida-s-killer-by-dubai-attorney-general-2016-06-15-1.633153

http://www.thenational.ae/uae/courts/uae-judges-urge-ban-on-residency-for-criminals

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TERMINATION OF SALE AND PURCHASE AGREEMENT “SPA” UNDER THE PROVISIONS OF LAW # 13 FOR THE YEAR 2008, AS AMENDED BY LAW # 9 FOR THE YEAR 2009

Posted by on July 11, 2016

PROVISIONS OF LAW

The Legislator by promulgating the Real Estate laws in the Emirate of Dubai, specifically Law # 13 for the year 2008 with respect to registration of property in Dubai, as amended by Law # 9 for the year 2009 and the Executive Regulations # 6 for the year 2010, was intending to make balancing between the rights of the Developer and the Investor in the United Arab Emirates in order to secure the interests of both Parties and the community in general. The vision of the Legislator is clear that adequate guarantees were laid down to preclude a grievance and injustice and endeavors to achieve justice and equity. Article – 3 of the said law nullified any disposition of the off-plan sold Units when such disposition is not registered with the Interim Real Estate Register. Articles – 4 & 10 invalidates such disposition if it takes place before obtaining necessary approvals. This is in order to protect the interests of Investor, in addition to the penalties prescribed in the event that the amounts of money were not deposited in the Escrow Account in pursuance to the provisions of Law # 8 for the year 2007 with respect to Escrow Accounts leaving the funds of Investors under disposition of the Trustee of Escrow Account. All these measures are aimed for protection of the rights of Investor.

On the other hand, the Developer is an Investor as well who employs thousands of persons and contributes in the economy of the Country and thereby be entitled to be secured. Hence the Legislator was very keen to secure its rights as did with the individual Investor. Article – 11 of Law # 13 for the year 2008, amended by Law # 9 for the year 2009, and Article – 15 of the Executive Regulations vide # 6 for the year 2010 regulated a situation whereby the Developer would be between the rock and hard. When the Investor defaults in payment and thus hinders and negatively affects the process of construction works and completion of the Project. At the same time the Developer may not be able to re-sell the Unit being registered in the name of Investors at the Interim Real Estate Register. Therefore the Legislator gave the Developer the right to terminate the Contract and retain the proportions prescribed by Article -11 referred to herein above.

In the light of this comprehensive perspective it has appeared to the Legislator that the Real Estate Projects in the United Arab Emirates is a huge Project which requires a lot of money and that the Developer has sustained damages which affects its personal interest and the interests of community, in general as a result of suspension of construction works and non-completion of the Project due to default in payment by the Investors. Regulations and procedures were laid down in order to secure compensation for damages. The Land Department has been authorized to assume such procedures as being a neutral party. Hence Article – 11 of Law # 13 for the year 2008 and its amendments has included penalties for the default by the Buyer in settlement of the price which is the right of the Developer to terminate the Contract and to retain the proportions referred to in this Article as compensation for the damage sustained by the Developer provided that the procedures for notification shall be followed in the manner mentioned in the same Article under supervision and monitoring of the Land Department.

As it is established within the interpretation rules, the special provision restricting the general provision, Article – 11 of Law # 13 for the year 2008 and its amendments is a special provision of the rules of the general doctrine for termination and does not contradict therewith in respect of retaining of a proportion of the amounts paid by the Investor as compensation. The general doctrine asserts termination by mutual agreement as well as the right of the Judge to order for termination and indemnity.

From the practical perspective, the rulings of the Court of Cassation, Dubai repeatedly decided that the Order issued by the Land Department terminating sale of a Real Estate Unit and giving the Developer the right of retention of the proportions referred to in Article – 11 is a recommendation and administrative order which is not binding to the Courts and that only the Courts shall have jurisdiction to terminate the Contracts. In a recent Judgement, the Court of Cassation decided that termination of Contract by the Developer through the Land Department and re-sale of the Unit to a new Investor is a termination to be made by one of the Contracting Party and in such an event the Developer shall be liable to refund all amounts paid by the first Investor along with legal interest due to impossibility of performance of the Contract, because the Developer by re-sale of the Unit would have deprived the Investor to evade termination by way of payment at any time before the final Judgement, and that the Developer must before re-sale resort to the Court to prove the default of Investor and obtain Judgement for termination of the Contract.

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Basic Conditions of Contract for Works of Civil Engineering Construction in FIDIC Red Book FOURTH EDITION 1987, Common in Construction Disputes: (Part 1)

Posted by on July 2, 2016
construction disputes

Construction Disputes

2.6 Engineer to Act Impartially

2.6.1 Wherever, under the Contract, the Engineer is required to exercise his discretion by:-

(a) Giving his decision, opinion or consent;
(b) Expressing his satisfaction or approval;
(c) Determining value; or

(d) Otherwise taking action which may affect the rights and obligations of the Employer or the Contractor,
he shall exercise such discretion impartially within the terms of the Contract and having regard to all the circumstances. Any such decision, opinion, consent, expression of satisfaction, or approval, determination of value or action may be opened up, reviewed or revised as provided in Clause 67.

10.1Performance Security

If the Contract requires the Contractor to obtain security for his proper performance of the Contract, he shall obtain and provide to the Employer such security within 28 days after the receipt of the Letter of Acceptance, in the sum stated in the Appendix to Tender. When providing such security to the Employer, the Contractor shall notify the Engineer of so doing. Such security shall be in the form annexed to these Conditions or in such other form as may be agreed between the Employer and the Contractor. The institution providing such security shall be subject to the approval of the Employer. The cost of complying with the requirements of this Clause shall be borne by the Contractor, unless the Contract otherwise provides.

10.2Period of Validity of Performance Security

The performance security shall be valid until the Contractor has executed and completed the Works and remedied any defects therein in accordance with the Contract. No claim shall be made against such security after the issue of the Defects Liability Certificate in accordance with Sub-Clause 62.1 and such security shall be returned to the Contractor within 14 days of the issue of the said Defects Liability Certificate.

10.3Claims under Performance Security

Prior to making a claim under the performance security the Employer shall, in every case, notify the Contractor stating the nature of the default in respect of which the claim is to be made.

14.1Programme to be Submitted

The Contractor shall, within the time stated in Part II of these Conditions after the date of the Letter of Acceptance, submit to the Engineer for his consent a programme, in such form and detail as the Engineer shall reasonably prescribe, for the execution of the Works. The Contractor shall, whenever required by the Engineer, also provide in writing for his information a general description of the arrangements and methods which the Contractor proposes to adopt for the execution of the Works.

14.2Revised Programme

If at any time it should appear to the Engineer that the actual progress of the Works does not conform to the programme to which consent has been given under Sub-Clause 14.1, the Contractor shall produce, at the request of the Engineer, a revised programme showing the modifications to such programme necessary to ensure completion of the Works within the Time for Completion.

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8 new businesses in Dubai under commercial licenses

Posted by on June 29, 2016
Omar Bushahab

Omar Bushahab. (Supplied)

The Department of Economic Development (DED) in Dubai has made eight new additions to the list of business activities licensed in the emirate. This takes the total number of activities to 2,133 from 2,125.

The decision follows feedback on local market needs and the demand-supply situation gathered periodically from various industry sectors as part of facilitating business and providing the necessary resources for business development.

The additions include a number of vital and specialised activities, including: Industrial Robots Assembling, Tax Consultant, Security Documents Printing, Scanner Manufacturing, Hazardous Waste Collection and Transport, Health Consultancy, Financing Broker, as well as Social Media Applications Development and Management.

“This is the second time in 2016 that we have added new business activities. Our team constantly evaluates market needs and gathers opinions and suggestions from existing and potential investors across Dubai to understand their requirements in the fast-changing local market,” said Omar Bushahab, CEO of Business Registration and Licensing (BRL) sector in DED.

Bushahab said the decision will strengthen DED’s plan, which emphasises on developing the emirate’s services profile and facilitating license procedures relating to limited liability companies in view of the role of such firms in promoting private sector growth. The additions will further eliminate barriers to business, encourage new business ideas and create new jobs, thereby benefitting investors and the public, he said.

Industrial Robots Assembling activity

Industrial Robots Assembling activity includes remotely operated or computer-assisted robots as well as specially designed vehicles or telescopic arms that can take the place of humans in dangerous tasks such as detecting explosives or radiation, firefighting and manufacturing processes demanding high standards of precision or labour.

Tax Consultant

Tax Consultant activity is meant for specialised firms engaged in tax advisory to foreign companies in the UAE, helping them to avoid double taxation, implement tax treaties between countries, and review company statements. The minimum qualification required to engage in this activity is a bachelor degree in business administration/economics/law/accounting or a related discipline, along with the three years of practical experience.

Security Documents Printing

Security Documents Printing activity covers printing high-value documents with added security features integrated into the document for protection against forgery, counterfeiting, tampering or alteration. The documents may include ballot papers, bank notes, cheques, passports, stock certificates and identity cards.

Scanner Manufacturing

All scanners, including desktop flatbed, drum and hand-held, used to scan text, hand-writing, or an object and convert it into digital image for electronic transmission or upload come under the Scanner Manufacturing activity, in addition to 3D scanners used for industrial design.

Hazardous Waste Collection and Transport

The Hazardous Waste Collection and Transport activity has been included to license collection of solid/liquid/gaseous waste from manufacturing, medical or agricultural activities, particularly those which cannot be disposed in regular landfills or sewer networks due to their potential health risks and hence requiring special treatment. Dedicated vehicles are required to transport such wastes to their disposal sites, assigned by competent authorities.

Health Consultancies

Health Consultancies are those firms providing expertise, guidance and advice to healthcare institutions on improving business functions, patient safety, and holistic approaches in health promotion and disease prevention. The areas of consultancy involve reviewing regulatory compliance, assessing staffing needs and resources, communicating with clients in order to identify operational problems and efficiency gaps, hospital renovation and redesigning and IT solutions. A B.Sc. in Health Care Administration/Business Administration/Economics along with three years of practical experience is mandatory for the Health Consultant.

Financing Broker

Financing Brokers can act as facilitator between borrowers – whether such borrowers be individuals looking for personal loans or businesses looking at acquisition, development or expansion – and lenders. The Financing Broker assists such borrowers in securing the right finance from banks or other lending institutions.

Social Media Applications Management

Firms helping businesses and individuals to utilise social media, including Facebook, Twitter, YouTube, LinkedIn, Instagram etc. to increase visibility and expand their following as a means for growth are classified under the Social Media Applications Development & Management activity. The activity involves providing and managing such social media content as well.

Source:-http://www.emirates247.com/news/8-new-businesses-in-dubai-under-commercial-licenses-2016-06-12-1.632711

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UAE Labour Law: Warning, pay-cut, dismissal… 7 penalties you must know

Posted by on June 29, 2016
UAE Labour Law

There are certain cases where an employer may fine or even dismiss an employee for misconduct and breach of duties. (File)

UAE’s new labour regulations effective January 1 this year ensure that employees are treated fairly, with strict enforcement encouraging businesses in the country to protect the rights of their workers.

However, there are certain cases where an employer may fine or even dismiss an employee for misconduct and breach of duties, and it is important for all employees to understand the circumstances when these penalties can be imposed.

According to Article 102 of the UAE Labour Law, there are seven disciplinary rules that an employee should be aware of.

These include:
1) A warning
2) A fine
3) Suspension with reduced pay for a period not exceeding ten days
4) Deprivation from or deferment of periodic bonus in establishments containing a system for such bonuses
5) Deprivation from promotion in establishments applying a system for such promotion
6) Dismissal from work without prejudice to the end of service gratuity
7) Dismissal from work and deprivation from the total end of service gratuity or a part thereof.

These disciplinary rules may be inflicted by the employer or his/her representative. However, the law elaborates that such penalties will not be inflicted for reasons other than the ones mentioned exclusively in Article 120.

What is included in Article 120?

There are several clauses in Article 120 under which these disciplinary actions can be taken.

• Termination during probation or on its expiry.
• If the worker has adopted a false identity or nationality or submitted forged certificates or documents.
• If a worker makes a mistake causing substantial material loss to the employer provided the employer notifies the relevant labour department within 48 hours of the accident.
• If the worker disobeys instructions regarding industrial safety or the safety of the workplace provided the instructions have been issued in writing and are posted conspicuously in the workplace in a language accessible to the employee or explained to him orally.
• If the worker does not perform his basic duties under the contract and persists in violating these despite being investigated and receiving a written warning notifying him of termination in the event of repeat offences.
• If the worker reveals his employer’s trade or business secrets or confidential information.
• If the worker is finally sentenced by a competent court for an offence involving honour, honesty or public morals.
• If the worker is drunk or under the influence of an illegal drug during work.
• If while working the worker assaults the employer or his manager or a colleague.
• If the worker is absent from work without a valid reason for more than 20 non-consecutive days or more than 7 consecutive days.

Article 103 of the Law further states that a model list of disciplinary rules and rewards list can be made available to guide employers in setting their own rules in this regard.

Source:- http://www.emirates247.com/news/emirates/uae-labour-law-warning-pay-cut-dismissal-7-penalties-you-must-know-2016-06-28-1.634253

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Dubai Court ruling: Off-plan property investors can get full refund

Posted by on June 29, 2016
DLD cancellation process

The DLD cancellation process appears to have permitted developers to address issues related to losses from defaulting purchasers quickly. (File)

“The court took the view that the Article 11 Cancellation Process are simply a set of administrative guidelines/recommendations and they do not override the general requirement that a court should determine the matter and decide whether or not the contract is to be terminated due to the purchaser’s default,” Walid Azzam and Karim Mahmoud wrote in the report.

This general requirement is found in Article 267 of the Federal Law 5 of 1985 (‘the Civil Code’), which provides that a contract can only be terminated “by mutual consent [of the parties], court order, or under a provision of the law”, they said.

The Court of Cassation was reported to have said that if a developer re-sold a repossessed unit; the purchaser (even if he was in default) may be able to recover the payment(s) he made.

“Given the recent ruling, the developer’s actions in repossessing the unit and reselling it constitutes a unilateral termination of the contract, so making the developer liable to repay any amounts received from the defaulting purchaser,” the lawyers said.

In the court’s view, Article 11 Cancellation Process is just an administrative step which is separate from obtaining the court’s approval to the termination of the contract.

The law firm further mentioned that in case of a defaulting purchaser, even if the developer is able to de-register the unit from the interim register prior to re-selling that particular unit, it would be strongly recommended to file a claim against the defaulting purchaser to implement the compensation provisions of Article 11 and to secure a court order for the termination of the contract.

The Dubai Land Department (DLD) cancellation process arises out of Law No. 13 of 2008 regulating the Interim Property Register in Dubai (Law No. 13), which was later clarified and amended by Law No. 9 of 2009 (Law No. 9). The revision of Law No 13 by Law No. 9 was intended to set up a clear termination mechanism and to provide guidelines in case purchasers stopped making their contractual payments.

It also established a specific compensation mechanism that correlates to the construction level of the project at the time of the purchasers’ default. Law No. 9 also made the specific article, Article 11, apply retrospectively.

Article 11 of Law No. 9 provides that:

1. In the event the purchaser shall be in default of any of the terms and conditions of the contract for the sale of a real estate unit entered into with the developer, the developer must notify the DLD of such default. Thereupon, the department shall give the purchaser, by hand, registered post or e-mail, a 30-day notice to fulfill his contractual obligations.

2. If at the end of the notice period stipulated in the preceding paragraph the purchaser has not fulfilled his contractual obligations, the following provisions shall apply:

a. In case the developer has completed at least 80 per cent of the project, the developer may keep the full amounts paid and request the purchaser to settle the remaining amount of the contract price. If this was not possible, the developer may request that the property be auctioned in order to collect the remaining amounts due to it.

b. In case the developer has completed at least 60 per cent of the project, the developer may revoke the contract and deduct up to 40 per cent of the purchase price of the real estate unit stipulated in the contract.

c. In case of projects where construction commenced, but did not reach 60 per cent, the developer may revoke the contract and deduct up to 25 per cent of the purchase price of the real estate unit stipulated in the contract;

d. In case of projects whereat construction has not yet commenced for reasons beyond the developer’s control without any negligence or omission on its part, the developer may revoke the contract and deduct up to 30 per cent of the total amounts paid by the purchaser.

Based on this cancellation process, when a purchaser was sent a notice and did not rectify his position, the DLD traditionally de-registered the property from the interim register and re-registered it in the name of the developer.

The DLD cancellation process appears to have permitted developers to address issues related to losses from defaulting purchasers quickly and without having to go through a lengthy court process.

Likewise, the developer also had recourse under Article 15 of Executive Council Resolution No. 6 of 2010 to apply to the courts in the event the monies paid by the defaulting purchaser did not meet the thresholds outlined in Article 11, and to claim for the balance.

“Generally, these laws appear to provide a balance between the needs of developers (who are harmed by both defaults and having to wait for a court judgment to recoup losses) with the interests of purchasers (who stand to have a part of their deposits returned to them).

“However, due to a recent Dubai Court of Cassation judgment, any developer considering terminating a contract through the DLD for lack of payment now faces a great deal of uncertainty,” the lawyers said.

Source:http://www.emirates247.com/news/landmark-dubai-court-ruling-off-plan-property-investors-can-get-full-refund-2016-06-22-1.633677

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Summery on Federal Law No. 5 of 2012 on combating Cybercrimes – List of offenses in the provisions of New Cyber Crime Law

Posted by on June 27, 2016

cyber crime laws

1- Illegally Accessing an electronic site without permission is penalized under articles 2,3,4 and 5 of New Cyber Crime law.

2- Forgery of any electronic document of the federal or local government or authorities or establishments and uses of this forged electronic document with knowledge that the document is forged is penalized under article 6 of New Cyber Crime law.

3- Obtain, modify, destroy or disclose information obtained online, related to medical records, examinations, diagnoses, treatment or care, without permission is penalized under article 7 of New Cyber Crime law.

4- Hinder or obstruct access to the computer network or to a website or an electronic information system is penalized under article 8 of New Cyber Crime law.

5- Use a fraudulent computer network protocol address by using a false address or a third-party address by any other means for the purpose of committing a crime or preventing its discovery is penalized under article 9 of New Cyber Crime law.

6- Willfully and without authorization run software on the computer network or an electronic information system or means, and caused them to stop functioning is penalized under article 10 of New Cyber Crime law.

7- Criminal fraud through the computer network, or an electronic information system or means is penalized under article 11 of New Cyber Crime law.

8- Access without legal right, to credit card numbers or bank accounts numbers by using the computer network or an electronic information system or means and forge, counterfeit or reproduce a credit card or debit card or any other electronic payment method by using any information technology means or computer program is penalized under article 12 and 13 of New Cyber Crime law.

9- Obtains without legal right, a secret number, code, password or any other means to have access to an information technology means, website, electronic information system, or computer network is penalized under article 14 of New Cyber Crime law.

10- Without authorization, deliberately receive or intercept any communication through any computer network or disclose the information obtained through illegal reception or interception of communications is penalized under article 15 of New Cyber Crime law.

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