Business Invest Road Show: AccEssMeeting UAE-Russia akingump.com 2013 Akin Gump Strauss Hauer & Feld LLP
Legal Landscape in the UAE To conduct business in the UAE, a foreign investor must establish a formal legal presence through one of the following ways: Incorporating a local entity under the Companies Law or the Civil Code Registering a branch or representative office of a foreign company Establishing a free zone entity Entering into a commercial agency relationship with a UAE national / whollyowned UAE entity. A business must acquire and maintain a proper license and the license impacts on the scope of activities of the business. These licenses include: trade licenses, industrial licenses, service licenses, professional licenses, and commercial licenses. 1
Legal Landscape in the UAE Non-Free Zones Non-Free Zones Major laws affecting foreign investment in the UAE are the Commercial Companies Law, the Commercial Agencies Law, the Civil Code and the Commercial Transactions Law; The Commercial Companies Law makes it conditional that companies are wholly owned by nationals or that nationals own at least 51% of their share capital, while the remaining 49% may belong to foreigners. The law provides that commercial companies established in the UAE may take any of the following legal forms: General Partnership Company Partnership in-commendam (Limited Partnership) Public Joint Stock Company Private Shareholding Company Limited Liability Company Professional Companies (Professional Partnership) Sole Proprietorship Firm to Practice a Profession Branch or Representative Office of a Foreign Company Branch and representative offices must appoint a UAE national to serve as a national service agent for licence application and various other matters; It is strongly advised that pre-approval be obtained from the Department of Economic Development (DED) of the relevant Emirate in order to determine which legal form the business should take. The DED provides commercial licensing and trade name registration. 2
Legal Landscape in the UAE Non-Free Zones The Commercial Agencies Law applies to all registered commercial agents. The Civil Code governs unregistered commercial agencies. The Commercial Agencies Law requires that foreign principals distribute their products in the UAE only through exclusive commercial agents that are either UAE nationals or companies wholly owned by UAE nationals; In the UAE, it is mandatory to register a new company s name with the immigration authorities and the Ministry of Labour, which, upon registration of the company, issue Immigration Establishment Card and Labour Establishment Card and, respectively. 3
Legal Landscape in the UAE Free Zones Free Zones The purpose of free zones is to encourage foreign direct investment into the UAE; Free zones are authorized to enact their own laws and regulations in specific areas, which should not contradict federal and Emirate laws on the subject matter. However, the Dubai International Financial Centre (the DIFC) is unique in that it is a financial free zone within Dubai, has its own body of law, including corporate law, contracts law and employment law, as well as its own court system; A free zone entity will generally take one of the following three forms: a branch or representative office of a foreign company, a free zone company or a free zone establishment; Free zones are set-up to license companies who apply to operate under the following principles: 100% foreign ownership Capital and profits can be freely repatriated Exemption from all import (into the free zone) or re-export duties (except into the UAE) No restrictions on hiring foreign employees; Regulations to refer to when setting up a company in a free zone: Commercial Companies Registration Regulations Business Licensing Regulations Employment Regulations; The naturalization and residency department issues work permits and residence visas to the companies and organizations in free zones. 4
Legal Landscape in the UAE Free Zones Principal free zones in Abu Dhabi: KIZAD Masdar Twofour54 Abu Dhabi Airport Free Zone Al Bateen Airport Free Zone Al Ain International Airport Free Zone; Abu Dhabi also established a Specialised Economic Zone (SEZ) overseen by the Higher Corporation for Specialised Economic Zones (ZonesCorp) Zonescorp offers investment incentives in the form of low cost infrastructure support, simplified approvals processes and residential areas for employees Duty exemptions are also provided inside ZonesCorp, however, an SEZ is not meant to be a FZ for the purposes of customs exemption, which suggests that the Abu Dhabi Government may be reimbursing foreign companies operating in the Industrial City of Abu Dhabi (ICAD) SEZs are not exempt from the Commercial Companies Law requirements. Principal free zones in Dubai: DIFC Jebel Ali Free Zone (JAFZA) Dubai Airport Free Zone (DAFZA) Dubai Technology and Media Free Zone (TECOM); 5
Legal Landscape in the UAE Dispute Resolution Dispute Resolution Both foreign and locally based businesses in the UAE may select arbitration for dispute resolution. The UAE is a signatory of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards which means that the UAE should enforce foreign arbitral awards without reviewing the merits of the case unless the limited grounds to resist enforcement in the New York Convention are satisfied. Available Arbitration Venues: Abu Dhabi Commercial Conciliation and Arbitration Center (ADCCAC) Dubai International Arbitration Center (DIAC) Dubai International Financial Center - London Court of International Arbitration Center (DIFC-LCIA) Parties may also choose other arbitration venues such as ICC, LCIA, and others. Several companies have sought dispute resolution at the Court of Dubai International Financial Center (DIFC). The DIFC Court system operates independently of the UAE legal system on commercial disputes as part of the DIFC free zone. The DIFC Courts have exclusive jurisdiction over civil or commercial cases and disputes involving the DIFC or any company licensed to operate from the DIFC. Any Dubai-based business can use the English language DIFC Courts to resolve commercial disputes. Any court judgments or arbitral awards issued from the DIFC are enforceable beyond its borders pursuant to DIFC laws and the New York Convention. 6
Salient Features of Relevant UAE Laws The regulatory and legal framework in the UAE contains certain restrictions that favor local over foreign investors. The commercial companies law prevents foreign investors from owning more than 49% of UAE companies (as opposed to companies incorporated in free zones). The percentage is even less in the finance insurance sector where it is reduced to 40% and the insurance sector where it is reduced to 25%. In the event of incorporating a company in any of the UAE s free zones foreign investors should note that UAE law precludes such companies from operating outside of the free zone and within the UAE without some form of UAE national participation, whether in the form of UAE national commercial agents or distributors or UAE national majority shareholders. 7
Existing Arrangements Between UAE and Russia Existing Framework 2005 establishment of the Russian Emirates Business Council 2011 signed MoU between Russian and UAE governments for economic and political collaboration 2012 Russia-GCC Business Forum in Sharjah 2013 signed MoU between Dubai Multi Commodities Centre (DMCC) and Russian Business Council 2013 Meeting of the Russian-Arab Business Council. Existing Russian Businesses in the UAE There are approximately 450 Russian companies and joint ventures operating in the UAE, including: Rosneft VTB Capital Lukoil Gazpromneft INTER RAO Representative Transactions 2008 - Stroytransgaz signed a USD 418 million contract with a UAE construction company Dolphin Energy Ltd. for construction of the Taweelah-Fujairah gas pipeline in the UAE 2010 - Rostekhnologii signed an agreement with a UAE seaport operator Gulftainer Company to set up a USD 500 million fund to invest in infrastructure projects 2013 - Prominvest signed agreement with a UAE developer Damac Holding to establish a USD 300 million fund to invest in real estate projects. 8
Reasons to Invest in the UAE One of the fastest growing economies of the world Political and economic stability Transparent economic policy, minimal government control and private sector regulation Investment and tax incentives and liberal currency regulations: 0% income tax Up to 100% profit repatriation in Free Zones Up to 100% foreign ownership in Free Zones Favorable immigration and labor laws Recognition of Dubai as world global leader and economic hub (The UAE will host the World Expo 2020 in Dubai). 9
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