INTRODUCTION TO THE DIFC. 42 countries Population of 2.2 billion people Combined economy US$ 2.5 trillion

Transcription

1 DIFC Companies Law

2 INTRODUCTION TO THE DIFC 42 countries Population of 2.2 billion people Combined economy US$ 2.5 trillion

3 DIFC Region

4 Financial Free Zone 100 percent foreign ownership; Zero percent tax rate on income and profits; Wide network of double taxation treaties available; No restrictions on foreign exchange or capital/profit repatriation; US dollar denominated environment; Transparent operating environment; Strict supervision and enforcement of money laundering laws; and Modern office accommodation, state-of-the-art technology, sophisticated infrastructure.

5 Laws, Rules and Regulations

6 COMPANIES LAW DIFC Law No. 3 of 2006; Governs the formation and registration of companies in the DIFC; Administration of their affairs; Membership and share capital; Duties and responsibilities of directors; and Accounting and auditing requirements.

7 Companies Regulations These regulations prescribe the procedures for: the incorporation of a company in the DIFC; the registration of a foreign company in the DIFC; the transfer of incorporation of a foreign company to the DIFC; and the transfer of incorporation of a company from the DIFC.

8 Registrar of Companies Establishment Article 7 of the Companies Law Role and Responsibilities incorporate/register and dissolve the DIFC entities examine and store the DIFC entities information delivered under the applicable laws and regulations make this information available to the public Companies Register administer the Companies Law and Regulations

9 Companies Register Reg Cert. Business Name Trading Name Date of Issue Status 0001 The GCC Energy Fund Managers Limited Active 0002 Julius Baer (Middle East) Limited Active 0003 Sovereign Global Investment Limited Active

10 DIFC Authority Established under Dubai Law No. 9 of 2004 Regulatory entity; Developing overall strategy for the DIFC and providing direction; Promoting the DIFC and attracting licensees to operate in the DIFC; and The development of laws and regulations to cover all aspects of non-financial services.

11 Dubai Financial Services Authority The DFSA is the regulator responsible for the authorisation, licensing and registration of institutions and individuals who wish to conduct financial and professional services in or from the DIFC.

12 DIFC Judicial Authority The DIFC Courts were established in 2004; Autonomous body to administer and enforce the civil and commercial laws of the DIFC; Court of First Instance and a Court of Appeal A Chief Justice and a Deputy Chief Justice; English is the official language of the DIFC Courts; and The DIFC laws are applicable to all disputes coming before the DIFC Courts, unless the parties choose the laws of another jurisdiction.

13 Other Registrar of Securities The DIFC-LCIA Arbitration Centre

14 COMPANY FORMATION & REGISTRATION

15 COMPANY FORMATION & REGISTRATION Legal Personality Company Types Company Limited by Shares (LTD) Limited Liability Company (LCC) Limited Liability Partnership (LLP) Limited Partnership (LP) General Partnership (GP) Branch of a Foreign Entity (Recognised Entity) Investment Company Protected Cell Company (for the sole purpose of conducting insurance business)

16 Role of DFSA Proposed business is financial or ancillary services

17 Role of the ROC Incorporate and register all companies seeking to establish a presence in the DIFC

18 Registration Process Business Development Team; Article 11; Name of proposed company; Proposed legal entity (one of the above, excluding a protected cell company); Proposed business activity; If the applicant firm is a publicly traded company, details of the listing stock exchange; and If the applicant firm is a subsidiary, the number of employees of the parent company and the locations from which the parent company conducts business;

19 Registration Process (Cont'd) If the proposed registration is for a branch (recognised company), details of ultimate shareholders; Registered office; Business plan proposal; Proposed visa requirements; Proposed office area requirement in the DIFC; Registration Review Committee; Two to four weeks; and Provisional approval from the RRC.

20 Commercial License DIFC Operating Regulations; Purpose of a Commercial License; License number as well as the licensee's name; and Renewed annually.

21 Company Limited by Shares (LTD) Part 7 of the Companies Law; No minimum capital requirements for non-financial services business nor are there any foreign investment limitations; Shares in a DIFC Company can have any rights attached; See Part 6 and Article 35; and AOA.

22 Company Limited by Shares (LTD) (Cont'd)

23 Company Limited by Shares (LTD) (Cont'd)

24 Company LTD Shares may be redeemed; A Company may purchase its own shares; Dividends may be paid as resolved by the directors of a Company (subject to minimum reserve requirements and conformance with any preferential rights attached to certain shareholder criteria being met); Share capital may be altered (increased, consolidated, sub-divided, cancelled, or reduced); Rights allotted to shares may be varied; and No bearer shares.

25 Shareholders Minimum number of shareholders is one are no maximum No restrictions on the nationality or residence of shareholders No restrictions on the holding of shares by another company Nominee shareholders permitted Details must be recorded in the Company's share register (see Article 34 and 39)

26 Directors Management of the business of a Company rests with its Directors Appointed by the shareholders Hold office for periods specified in the Articles (see Article 51) Minimum of two directors is required for a the DIFC incorporated Company (see Article 51)

27 Company Secretary Must appoint a Secretary No requirement for the Secretary to be a resident of UAE Company secretary cannot also be a director

28 Meetings Chapter 8 of Part 7 Annual general meeting of each calendar year and not more than six months after the end of its financial year held outside of the DIF minutes kept at the DIFC registered office Business conducted at annual general meeting is regulated by the Company's Articles Typically includes consideration of the Company's annual accounts Reports of the directors and auditors Declaration of dividends Election of directors in place of those retiring, and the appointment and fixing of the remuneration of the auditors Annual accounts of the Company must be filed with the ROC within seven days of annual general meeting

29 Records A Company is required to maintain: A register of its members and shares held; A register of directors; A register of secretaries A minutes register; and Adequate accounting records.

30 Financial year Every company is required to prepare annual financial statements In accordance with accounting principles or standards approved by the ROC (International Financial Reporting Standards) Member of an international corporate group can apply to be covered by diff rules ROC approval.

31 Limited Liability Company (LLC) Not an activity regulated by the DFSA under the DIFC Regulatory Law of 2004; An LLC may not raise capital through public subscription; and Intention that this form of company be used for nonfinancial services, such as food operators.

32 Other Entity Types Limited Liability Partnership (LLP) Law No. 5 of 2004 Limited Partnership (LP) Law No. 4 of 2006 General Partnership (GP) Law No. 11 of 2004 Branch of a Foreign Entity (Recognised Entity) Company Regulations a foreign company, a limited liability partnership or a limited partnership establishing a place of business in the DIFC

33 Investment Company Under Part 10 the Companies Law and Part 13 of the Companies Regulations; Open Ended Investment Company or a Closed Ended Investment Company; General purpose is to establish and manage investment funds; and Convert from one to another provided that the company's Articles of Association and the DFSA permit it to do so.

34 Investment Company (Cont'd) Application to incorporate or convert must be accompanied by The Constitutions of funds operated by the Investment Company; Prospectuses of funds operated by the Investment Company; Certification by the legal advisors indicating that each fund's constitution abides by the applicable laws; Details of the kinds of property in which the Investment Company intends to invest; A statement of the objectives of the Investment Company with regards to its investments in property; Any other requirements of the DFSA under the Collective Investments Law; Incorporation either as a Public Fund (more than 100 unitholders), or as a Private Fund (less 100 unit-holders).

35 Protected Cell Company Companies Law and will operate, for the sole purpose of conducting insurance business; A "cell" is created for the purpose of segregating and protecting cellular assets; and The cell share capital comprises the cellular assets attributable to the cell in respect of which the cell shares were issued.

36 Company Migration Part 12 of the Companies Law and Law No. 4 of 2006 The process of migrating involves the following The Company's/Partnership's name and, if different, its trade name; The address of the Company's/Partnership's place of business in the DIFC; The nature of the Company's/Partnership's business; The names and addresses of the Company's directors or Partnership's partners; and Any other declaration, certification, information, document or confirmation required by the ROC

37 Transfer of incorporation from the DIFC Under Article 122 of the Companies Law possible for a the DIFC Company/Partnership to migrate from the DIFC to another jurisdiction Application to the ROC accompanied by: A certified copy of a special resolution of the Company's partnership's members, approving the transfer of the Company's/Partnership's incorporation, and its continuation as a Foreign Company; Evidence acceptable to the ROC that the laws of such other jurisdiction allow the Company/Partnership to transfer its incorporation and be continued under the laws of another jurisdiction; The DFSA's written consent if the Company/Partnership is an Authorised Firm, Authorised Market Institution, or an Ancillary Service Provider; Any declaration, certification, information, document, or confirmation required by the ROC; and The relevant fee.

38 Takeover Offers Part 7, Chapter 9 of Companies Law It must be offer on terms which are the same in relation to all the Shares in the Class Revision shall not be regarded as fresh offer

39 Right of Offeror to Buy Out Minority Shareholders Nine-tenths in value of the Shares Within 120 days of the close of the takeover offer Notice to holder of any Shares that he desires to acquire those Shares Send a copy of it to the Company together with a declaration by him stating that the conditions for the giving of the notice are satisfied "The acquisition value" Offeror shall be entitled and bound to acquire those Shares Amount to not less than nine-tenths The holder of the Shares to which the offer relates who has not accepted the offer may by a written communication addressed to the offeror require him to acquire those Shares

40 Any queries please contact: Pervez Akhtar Partner Dubai Tel +971 (0) Rob Cant Associate Dubai Tel +971 (0)

41 Questions? These are presentation slides only. The information within these slides does not constitute definitive advice and should not be used as the basis for giving definitive advice without checking the primary sources. Allen & Overy means Allen & Overy LLP and/or its affiliated undertakings. The term partner is used to refer to a member of Allen & Overy LLP or an employee or consultant with equivalent standing and qualifications or an individual with equivalent status in one of Allen & Overy LLP's affiliated undertakings.