Curtis, Mallet-Prevost, Colt & Mosle LLP announced the addition of a premier international trade group, including four partners, to its Washington, D.C. office.
Joining Curtis are partners William H. Barringer, Daniel L. Porter, James P. Durling, and Christopher A. Dunn; counsel Matthew P. McCullough; associates Ross E. Bidlingmaier and Yu Li; and trade analysts Michael Ferrier, Anya Naschak and Jonathan Leeman.
Most recently at Winston & Strawn LLP, the group is particularly noted for its work in trade remedies cases and WTO litigation, Including antidumping, countervailing duty, and safeguard investigations. Their extensive WTO experience includes counseling both governments and corporations in disputes, negotiations and various bilateral and regional trade issues.
Each of the four partners has earned recognition from Chambers and other legal industry directories as leaders in their field.
“The fit here was immediately obvious to both the group and us," said George Kahale III, Chairman of Curtis. "We have a longstanding reputation as an elite international firm, and this is an elite international practice group that shares our outlook on the practice. We are excited about the possibilities this move offers for expanding the services we provide to our international clientele."
“For us, the key was Curtis’ international reputation, orientation and vision," said Mr. Barringer. "We are excited to be joining a firm with such a strong international platform.”
• William Barringer, the most senior member of the team, has been a preeminent trade lawyer for decades. He has been involved in some of the most significant international trade disputes of the last quarter-century. He frequently leads multidisciplinary teams to tackle complex and contentious trade disputes. He earned his J.D. and L.L.M. from Georgetown University Law Center and his A.B. in economics from Brown University.
• Daniel Porter has played a leading role in the group’s trade remedy work, expanding its work to represent numerous Chinese and other foreign companies in trade remedy proceedings. He has also been active providing advice to companies confronting trade regulatory issues on their imports. Mr. Porter received his J.D. from Cornell Law School and his B.A. in Political Science from Columbia University.
• James Durling, in addition to his work on trade remedy cases, has been active in several WTO disputes across a range of issues. He also advises companies making submissions to CFIUS, and confronting international trade regulatory issues in their cross border M&A transactions. Mr. Durling graduated from New York University School of Law and Haverford College.
• Christopher Dunn has also played an active role in the group’s trade remedy work, focusing more on Brazil and Latin America. He has additionally worked with many companies on customs regulatory issues. Mr. Dunn earned his J.D. from Georgetown University Law Center and his A.B. in International Business from Brown University.
• Matthew McCullough, in addition to assisting on all aspects of trade remedy work, provides experience with customs matters, issues related to export controls, anti-boycott regulations, and the U.S. sanctions regime. Mr. McCullough received his J.D. from Catholic University Columbus School of Law and his B.A. from Austin College.
Curtis, Mallet-Prevost, Colt & Mosle LLP is a leading international law firm providing a broad range or services to clients around the world. Curtis has offices in the United States, Europe, Central Asia, the Middle East and Latin America. The firm’s international orientation has been a hallmark of its practice for nearly two centuries. For more information about Curtis, please visit www.curtis.com or follow Curtis on Twitter (twitter.com/curtislawfirm) and Facebook.com/Curtis.Careers).
Monday, January 30, 2012
Curtis, Mallet-Prevost, Colt & Mosle LLP announced the addition of a premier international trade group, including four partners, to its Washington, D.C. office.
Friday, January 27, 2012
With the rise of international trade, there has also been a movement by national governments to protect their domestic industries against what they deem to be unfair trade practices.
One common way to do this is through anti-dumping duties (ADD) and countervailing duties (CVD). The United States, in particular, has a robust framework for imposing such duties. On November 22, 2011, the U.S. Department of Commerce initiated ADD and CVD investigations in relation to carbon welded steel pipe imports from several countries – including the Sultanate of Oman, as well as the United Arab Emirates. This article summarizes what anti-dumping and countervailing duties are and how the U.S.’s ADD/CVD process works.
What is dumping?
“Dumping”, as defined by WTO Agreement, is when an exporting country sells goods abroad at a price which is lower than that in its home market or below its cost of production.
To combat dumping, authorities in the importing country may seek to charge anti-dumping duties on imports that they determine to be sold at “less than fair value” and which cause material injury or threat of injury to domestic producers. Such anti-dumping duties are levied in addition to normal customs duties to offset the price advantage that the dumped products would otherwise enjoy.
Countervailing duties are similar to anti-dumping duties, except that countervailing duties are particularly meant to offset the benefit of subsidies which injure a domestic industry in the importing country.
Pursuant to the WTO Agreement on Subsidies and Countervailing Measures, authorities must determine the following for each alleged subsidy:
• A financial contribution by the government of the exporting country;
• A benefit received by producers in the exporting country; and
• The government program in the exporting country meets the specificity test.
Overview of the U.S. ADD/CVD process
Under U.S. law, U.S. producers are entitled to have anti-dumping and countervailing duties imposed on foreign producers that export to the U.S. if:
• The U.S. Department of Commerce (DOC) finds that foreign exporters are dumping or receiving subsidies; and;
• The U.S. International Trade Commission (ITC) find that targeted imports have caused or threatened material harm to the domestic industry in the U.S..
AD/CVD proceedings typically proceed through the following stages:
• Filing of a petition by representatives of the U.S. domestic industry, and initiation by the U.S. government;
• ITC preliminary injury investigation and determination;
• DOC preliminary investigation of subsidies;
• DOC final investigation of subsidies and final determination;
• ITC final investigation and determination of injury; and
• If order is imposed, annual reviews to calculate specific dumping liability.
The foreign government perspective
These trade cases – particularly CVD cases – often have important implications for the home government of the foreign exporters. In most cases, the primary concern of the foreign government will be the defence of its subsidy programs throughout the U.S. authorities’ investigation process.
It should be noted that it is not possible for a company exporter itself to advance a legitimate defense to a CVD case. Under the law and practice, the Government is a “mandatory respondent” that is required to submit information AND to certify its accuracy. If a defense is to be advanced, it must include active government participation.
Beyond the specific case and products at issue, the government has a broader interest in defending its subsidy programs. The main risk which the Government of Oman should aim to avoid in the instance CVD case is the establishment of adverse precedent on the subsidy determinations which the U.S. authorities would apply in future ADD/CVD cases against that foreign country’s exporters. Naturally, this risk is particularly acute for countries that are newly exposed to ADD/CVD cases, for which precedent has not yet been formed.
Thursday, January 26, 2012
The recently promulgated Royal Decree 113/2011 has made key amendments to some provisions of Oman’s Labour Law (the “Labour Law”). In general, the aim of these amendments is to improve working conditions in the Sultanate and to enhance the legal protections afforded to workers.
Weekends and annual leaves
The most significant of the recent amendments concerns providing workers with legally mandated time off. The Labour Law now guarantees workers two days off per week (compared to the previous one day minimum). Workers are also now entitled to annual leave of thirty days fully paid, which may be applied for after completing six months of service. Emergency leave was also increased from four to six days per year.
Special leave and working hours for female employees
Pursuant to the recent amendments, the Labour Law now entitles working women to a maternity leave of 50 days fully paid, to cover the pre- and post-maternity period. In addition, working hours for women have been amended to prohibit employers from requiring female employees to work between 9 p.m. and 6 a.m. (other than in places and on occasions authorized by the Minister of Manpower).
New overtime rules
The recent amendments to the Labour Law set the maximum working hours to be nine hours per day and forty-five hours per week. During Ramadhan, Muslim workers must not work for more than six hours per day and thirty hours per week.
However, workers may be asked to work overtime, if their work so requires, provided that the worker’s total working hours do not exceed 12 hours per day. Any worker who performs overtime work is entitled to either overtime payment equal to his basic salary per hour plus (i) 25% for extra hours during the day, and (ii) 50% for extra hours are during the night, or time off equal to the amount of overtime worked. In either case, the worker must agree in writing to perform overtime work and to the type of compensation he will receive therefor.
Compensation for unfair dismissal
Significantly, the recent amendments to the Labour Law removed the cap on unfair dismissal compensation that had previously been in force. Prior to the amendment, the maximum compensation that a worker could receive for unfair dismissal was 12 months’ salary. The Labour Law now gives the Omani courts the power to award the worker any amount not less than three months’ salary calculated on the basis of the worker’s last full salary, without a cap. The award should take into account the employee’s unique circumstances and the length of his service, and will be in addition to the end of service gratuity and any other entitlements provided for by Labour Law or in the contract of employment, whatever is greater.
Retention of Omani project workers
Another significant aspect of the recent amendments to the Labour Law relates to Omani workers on projects that change ownership. When a project, or part of one, is transferred to a new owner, the new owner will be required to retain all of the project’s Omani workers and to maintain their prior benefits and incentives for as long as such project remains ongoing.
Tuesday, January 24, 2012
Conceptually, a mechanic's lien is a security interest granted in a property by the owner of the property to the persons who have supplied labour, materials or services for the improvement or development of the underlying property. Based on the nature of the service supplied, the lien is variously characterised as a construction lien, design professional’s lien or supplier’s lien.
In the jurisdictions where a mechanic's lien is legally recognised, it is a legislative device to protect contractors, subcontractors, architects, civil engineers, labourers, carpenters, electricians, plumbers and any others contributing to the improvement of a property from non-payment for their work as a lien on the title to property is created automatically in their favour by the operation of law.
The statutory creation of a lien clearly offers a more effective remedy for contractors and suppliers than a mere right to sue after the work is completed, especially in the construction industry where the economics of the business could be heavily loaded against them.
A mechanic’s lien also would give the subcontractors and suppliers a direct right to claim against the owner of the property. Typically, the owner of a property contracts only with the prime contractor who, in turn, engages the subcontractors and the suppliers pursuant to various subcontract agreements. In the absence of a statutory lien, the subcontractors and the suppliers would essentially have a contractual right under the relevant subcontract agreement that would be enforceable only against the prime contractor.
Further, a pari passu statutory lien would remove the unequal competition among the contractors and suppliers of materials and services in the event that a construction project fails. As all claimants would have an equal right to payment, the aggrieved parties will not have to race each other to file a payment claim in order to claim priority for their payment.
In countries where a mechanic's lien exists, the procedure might simply be to file a claim in the competent court within a stipulated time from the triggering event. Additionally, the lien holder may have to comply with certain legal prerequisites for maintaining and enforcing the lien such as serving a notice of the lien on the owner.
Considering the recent upsurge in construction activity in Oman, the introduction of appropriate legislation for the statutory creation of a mechanic’s lien would go a long way to avoid unnecessary and often onerous construction litigation.
As discussed in previous posts, a common model for hotel development transactions in the Middle East is for the hotel to have a separate owner and a separate operator.
The owner is the investor or group of investors that provides (i) funding necessary for the construction, maintenance and operation of the hotel, and (ii) high-level (usually financial) oversight of the hotel's performance as a business. The owner typically hails from the country in which the hotel is located, or from elsewhere in the Middle East.
The operator, in turn, is a company that specialises in the planning, design and day-to-day management of hotels, and runs the hotel on the owner's behalf in exchange for fee-based compensation that is typically a percentage of the hotel's gross revenues and operating profits. Most major hotel operators are international companies based in North America, Europe or East Asia.
The owner and operator typically enter into a hotel management agreement that provides a framework to govern their working relationship, detailing their respective rights and responsibilities. One important aspect of this relationship is the owner's right to approve certain key actions by the operator. Such approval rights are obviously important to the owner as a way to help protect its investment in the hotel. However, the operator will resist owner approval rights that would hinder its ability to run the hotel in accordance with its own best judgment.
Typically, the owner will have approval rights with respect to items such as:
• The yearly budget for the hotel as projected by the operator;
• Capital improvements or renovations to the hotel over a certain dollar amount;
• Leases of concessions to third parties (e.g., retailers or spa operators) within the hotel over a certain dollar amount; and
• The appointment of key hotel personnel such as the general manager and financial controller.
Thursday, January 19, 2012
A confidentiality agreement, also known as a non-disclosure agreement, is a legal contract between at least two parties that is designed to protect confidential information provided by one party to one or more parties.
Confidential agreements are commonly signed when two parties, individuals or other entities are contemplating doing business together and disclosure of confidential information by at least one of the parties is required in order to evaluate the potential business relationship.
A confidentiality agreement can protect almost any type of information that is not generally known. Examples of this include:
• financial information;
• customer lists and identities;
• business plans, strategies and methods;
• new inventions while the filing of a patent is pending;
• technical information;
• trade secrets; and
• statistical information.
Under the terms of a confidentiality agreement, the recipient of the confidential information undertakes not to use the information except for the specified purpose (e.g., to evaluate a business proposal) and not to disclose it to third parties, subject to certain exceptions. These exceptions are typically where the information:
• is already in the public domain;
• is already known to the recipient and has been reduced to writing by the recipient prior to the date of the confidentiality agreement;
• has been received from a third party under circumstances which involve no breach of the confidentiality agreement; or
• has been independently developed by the recipient, again, in circumstances which involve no breach of the confidentiality agreement.
If one of the exceptions applies, then the recipient is free to use the confidential information as it chooses.
Confidentiality agreements often include a term that the recipient can disclose the information to certain parties such as their employees or professional advisers, subject to those parties agreeing to be bound by a confidentiality agreement on similar terms.
Confidentiality agreements can be mutual, where both parties will supply information they wish to keep confidential, or one-way, where only one party is providing information they wish the other party to keep secret.
The term of a confidentiality agreement can be extremely important and such agreements often include a provision that the information remains confidential for a period after the expiration or termination of the agreement.
Thursday, January 12, 2012
A bank loan should be drafted in a form that is specifically tailored to the borrower’s needs. This article considers the first type of bank loan which could be used, namely an overdraft. Other types of bank loans will be considered in subsequent articles, namely term loans and revolving facilities.
The basic function of an overdraft is to solve short-term cash flow problems. It is sometimes referred to as a "working capital facility" as it provides access to cash to meet any temporary shortfalls in working capital.
An overdraft will generally be an uncommitted facility. (An uncommitted facility is one that allows the lender discretion for advancing money to the borrower or the lender can refuse to lend at all.)
An overdraft is repaid on demand, i.e., the lender can demand repayment at any time. This makes it an unsuitable form of borrowing for some transactions, for example, it would be inappropriate to use an overdraft to fund a major acquisition. One effect of the "on demand" nature of an overdraft is that it is a current liability for the purpose of the borrower’s balance sheet. The on demand nature of an overdraft is not as onerous as it may suggest as there generally will be an understanding that the lender will not demand repayment of the overdraft unless and until the borrower’s financial position or activities give it cause for concern.
Advantages of an Overdraft
An overdraft is usually available from a company’s existing lender. Interest rates on an overdraft are generally higher than those on a term loan but overall may be cheaper as interest is calculated on the basis of the overdraft at the end of each day rather than the maximum of the overdraft limit.
As it is an uncommitted facility, there is no commitment fee to pay. (A commitment fee may be required on “committed” facilities where once the facility agreement has been executed, the lender is under an obligation to advance money when requested by the borrower subject to compliance with certain pre-agreed conditions by the borrower. The commitment fee is calculated as a percentage of the undrawn funds that the lender has to keep committed to the borrower from time to time. The fee covers the costs incurred by the lender in committing funds to this loan which it cannot then lend to anyone else.)
An overdraft is usually evidenced by documents in the lender’s standard form.
Disadvantages of an Overdraft
The disadvantage of using the lender’s standard form documents is that there is little scope for amendment by the borrower. The basic flexibility of an overdraft is limited in that an overdraft will always have an upper limit.
In some cases, an overdraft facility may include a "clean-up" provision which requires the borrower to bring the overdraft down to an agreed sum at a specified time of year for a specified period (usually a number of consecutive days). The purpose of a clean-up provision is to ensure that the overdraft is used as intended, namely, to solve short-term cash flow problems.
The main disadvantages of an overdraft are that the lender’s charges are relatively high to reflect the administrative burden of an overdraft and that it is repayable on demand.
Tuesday, January 10, 2012
On 20 October 2011, His Majesty Sultan Qaboos issued Royal Decree 99/2011 introducing historical amendments to the Basic Law of the State. These amendments, which are seen as a significant milestone in the country’s legal and political development, include amending the succession process and expanding the role and duties of the Council of Oman.
Background to the Basic Law
The Basic Law is Oman’s first formal constitution which was introduced by His Majesty Sultan Qaboos in November 1996 to mark a new phase in the development of Oman’s system of government and to strengthen the State’s legal foundations.
The Basic Law consists of 81 Articles establishing the legal and political framework within which the State operates. It defines the roles and responsibilities of the State and provides for the political, economic and social principles guiding its policies. It also guarantees fundamental rights and freedoms, protects property rights and upholds the independence of the judiciary.
Among the main topics covered under the Basic Law are succession and the Council of Oman, which were the focus of the recent amendments.
Prior to the amendment of the Basic Law, the Ruling Family Council (RFC) was responsible for selecting a successor to the throne, within three days of the position of Sultan becoming vacant.
If the RFC does not agree upon a successor within three days, the Defence Council, composed of the highest ranking military officers, shall take over the process and confirm the appointment of the person designated by His Majesty the Sultan in his letter to the RFC.
According to Royal Decree 105/96, the Defence Council is headed by the Sultan, and composed of the Minister of Royal Office, the General Inspector of Police and Customs, the Head of Internal Security Services, the Commander of the Royal Navy, the Commander of the Royal Air Force, the Commander of the Royal Guards, the Commander of the Royal Army and the Commander of the Sultan’s Armed Forces. The composition of the RFC, on the other hand, is not known publicly.
This process was amended by Royal Decree 99/2011 to include the presidents of the State Council, the Shura Council, the Supreme Court and two of its oldest deputies, together with the Defence Council in taking over the process and appointing the person nominated by His Majesty the Sultan in his letter.
By including the presidents of the State Council and the Shura Council, this amendment allows some degree of public participation in the succession process, making it more transparent and enhancing its legitimacy. In addition, the presence of the president of the Supreme Court and two of its oldest deputies brings the process under judicial supervision, ensuring that due process is followed and preventing any potential manipulation or undue influence by one party.
The Council of Oman
The most significant changes introduced by Royal Decree 99/2011 are in relation to the Council of Oman.
Prior to the amendments, the Basic Law had only one Article on the Council of Oman establishing its two chambers: the appointed State Council and the publicly elected Shura Council. Power was given to the legislature to specify the powers of each of the Councils, the length of their terms, the frequency of their sessions, the number of members of each Council, the method of their selection and appointment, the reasons for their dismissal, and other regulatory provisions.
The recent amendments, however, introduced 45 new Articles outlining in detail the composition, membership, and responsibilities of the Council of Oman.
The powers of the Shura Council were expanded to include legislative powers and the authority to scrutinise the government’s performance. Under the new provisions, any draft law prepared by the Government must be referred to both the Shura and the State Councils for their approval or amendment. It will then be submitted directly to the Sultan to be endorsed and promulgated. The Council also may propose draft laws and refer them to the Government for consideration.
Remarkably, the Shura Council may, at the request of at least 15 of its members, question any of the ‘public service’ ministers in relation to exceeding their powers and violating the law, and refer its conclusions to the Sultan. The ‘public service’ ministers also will have to submit an annual report to the Shura Council on the performance of their ministries.
Furthermore, the recent amendments give the Council of Oman the power to review and provide its recommendations in relation to development plans, annual budget and any proposal to accede to or conclude an economic or social agreement.
This clearly means that the status and significance of the Council of Oman has changed dramatically from being a mere consultative body to become a legislative power.
Thursday, January 5, 2012
Where two parties owe each other money, it often makes sense for one of the parties to employ the concept of ‘set-off’ to reduce or eliminate its liability to the other party.
For example, assume that Party A owes RO 100 to Party B under a loan agreement; but that Party B also owes RO 60 to Party A under a separate (and perhaps unrelated) arrangement. In this scenario, Party A could in theory ‘set-off’ the RO 60 that Party B owes to him against the RO 100 that he owes to Party B – with the result that Party A now owes RO 40 to Party A (original debt of RO 100 minus set off of RO60 equals remaining debt of RO 40) and Party B no longer owes anything to Party A (original debt of RO 60 minus set-off of RO 60 equals zero).
Of course, for this to work in practice, Party A also must have the legal right to employ such a set-off mechanism. Such a right can arise by force of law, or by contract.
In the United Kingdom and certain other jurisdictions, there is detailed legislation and case law specifying various types of set-off available, for example:
• Legal set-off – a defence to a court action where more than at least one claim and cross-claim is being contested;
• Banker’s set-off – where a customer has more than one account with a bank, at least one of which is in debit and one in credit;
• Equitable set-off – available to a debtor where his cross-claim arises from the same or a closely related transaction;
• Insolvency set-off – often triggered by a party’s entry into liquidation; and
• Contractual set-off – where set-off is included as a provision of a contract.
In Oman, while the Law of Commerce (Royal Decree 55/90) does contemplate the set-off concept, as a practical matter set-off rights frequently arise as contractual rights – e.g., via set-off clauses in loan agreements governed by English law, or by the laws of another foreign jurisdiction.
The contractual set-off rights often found in loan agreements typically will allow the lender to set off a matured obligation due from a borrower against any matured obligation owed by the lender to that borrower, regardless of the place of payment or currency of either obligation. If the obligations are in different currencies, the lender often may negotiate the right to convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.
The result of exercising a contractual right of set-off is similar to enforcing security. However, set-off is a personal right rather than a proprietary right; unlike a security right, it does not grant an interest in the counterparty’s property.
It should also be noted the Omani Courts are unlikely to apply a set-off unless a contractual set-off scenario exists.
Finally, it is important to note that set-off provisions in loan agreements often favor the lender over the borrower. While set-off clauses in commercial contracts often will apply symmetrically (e.g., permit or prohibit set-off altogether), in many loan agreements the right of set-off is accorded only the lender, with the borrower prohibited from setting off any amounts owed to it by the lender.
Wednesday, January 4, 2012
We often are asked by clients what the burden of proof is in the Omani Courts. For example, some clients may be accustomed to the U.S. court system where the “preponderance of the evidence” standard commonly applies to civil cases, and the “beyond a reasonable doubt” standard typically applies to criminal cases.
However, the truth is that burden of proof is an undeveloped area of Omani law.
The general premise is that, in a civil or commercial case, the claimant has the burden of proof; but the reality is that defendants have to prove their lines of defence to the Court’s satisfaction.
Ultimately, each Omani case turns on its own idiosyncratic facts. The key to success is to be the most persuasive litigant in any given case. The Courts have to believe that your arguments are both legally sound and supported by the evidence.
Similarly, there is no codification regarding the burden of proof in Omani criminal cases. However, the reality is that the burden of proof is very high in a criminal matter – the case has to be proven beyond any reasonable doubt.
Tuesday, January 3, 2012
In a previous post, we provided an overview of the role that engineering consultancies play in Oman’s many large-scale construction projects, as well as the Omani statute which governs the profession, the Law Regulating the Work of Engineering Consultancies (Royal Decree 120/94, as amended) (the “Engineering Consultancy Law”). This month, we discuss special requirements under the Engineering Consultancy Law that apply to foreign engineering consultancies.
While the Engineering Consultancy Law exempts foreign engineering consultancies from certain provisions of the Foreign Capital Investment Law, it stipulates several onerous conditions for foreign engineering consultancies.
Experience Requirements for Foreign Engineering Consultants
Foreign consultancy companies seeking to form an engineering consultancy in Oman are required to have at least ten years of experience in engineering consulting projects. This condition can pose difficulties for newer engineering consultancy companies, particularly those in cutting-edge sub-fields of engineering where length or experience is unavailable and expertise is in any case more crucial. As a practical matter, this condition can potentially restrict a newer foreign engineering consultancy’s ability to work for private-sector clients in Oman.
Setting up an Engineering Consultancy
The registration and licensing process for foreign engineering consultancy companies in Oman is often lengthy. Pursuant to the Engineering Consultancy Law, such registration and licensing must be approved by a committee headed by the Director-General of Commerce and comprised of representatives from nine distinct government departments. While this committee structure may provide the benefit of bringing together a broad base of expertise to decide on license applications, it often comes at the logistical cost that the time required to constitute the committee can lengthen the period necessary to establish the branch.
Although it theoretically may be possible for foreign entities with government or quasi-government contracts to bypass all or part of the above-described registration process based on protections implied in the Foreign Capital Investment Law, our recent experience suggests that a foreign engineering consultancy which has contracted with the government is also required to go through the licensing process in order to form a branch.
Omani Shareholding Requirement
Finally, we note that, for foreign engineering consultancies formed as companies (e.g., limited liability company or joint-stock company, as opposed to branches), at least 35% of the shares must be held by an Omani national authorized to carry on a similar type of engineering consultancy. Also, an Omani national cannot partner with more than one foreign consultant partner to form a local consultancy.