Tuesday, June 9, 2020

Coronavirus (COVID-19) and the Force Majeure Event: The English Law Perspective

The spread of coronavirus (COVID-19), which was declared a pandemic by the World Health Organization on 11 March 2020, is impacting business relationships around the world and has created novel legal issues which affect various areas of law from contracts to banking, regulatory issues, taxation, employment matters, disputes and many others.

This note focuses on the relevance of force majeure on contracts under English law.

i. Force majeure 

In general terms, force majeure refers to events outside the control of the parties, for example, natural disasters or the outbreak of hostilities, which render performance under the contract impracticable or impossible, or which delay performance. It is common for the parties to a contract to provide that such force majeure events will not make the defaulting party liable if they prevent it from performing its obligations.

The concept of force majeure is derived from civil law, and under English law it is wholly a creation of contract. There is no statute establishing the ability to rely on force majeure, and no statute which defines what will constitute a force majeure event. Instead, force majeure relies on the provisions specific to a particular contract. Therefore, under English law a party can only claim force majeure if the terms of the contract allow it. The details of the agreed contract are particularly important in this context.

Many contracts include force majeure clauses which contain a list of events beyond the control of the parties, such as wars, riots and other civil emergencies, as well as natural disasters such as floods, earthquakes and hurricanes. Parties can also agree to include a pandemic or epidemic as a force majeure event.

Whether COVID-19 falls within the scope of a force majeure clause will depend, therefore, on the language of the clause itself. Clearly, if the force majeure clause relieves a party from performing its obligations in the event of a pandemic or epidemic or government-imposed quarantine, COVID-19 is likely to be a qualifying event. Subject to the specifics of the clause, it may also be necessary to show that the contractual performance is actually being impacted or delayed by COVID-19.

 Even without an express reference to an epidemic or pandemic, the current situation may still be covered by other language in a clause. For example, it is common to have “an Act of God” as a force majeure event. In such a case, it will be important to properly evaluate the entire language of the clause and its specific contractual context in order to assess whether COVID-19 is covered by this term. Currently, the English case law provides little guidance on the point. As such, we consider it likely that there will be significant litigation on this issue in the coming months and years.

ii. How is performance affected?

There must be a fundamental causal nexus between the force majeure event and the ability to perform the contractual obligation. Most clauses operate such that the performance must be prevented, hindered, or delayed. It will usually not be possible to invoke force majeure just because the performance has been made more difficult or less profitable.

In addition, a party invoking force majeure will usually have to show the attempts it has made to mitigate the non-performance and reduce, for example, the damages or the delay in performance. As a matter of evidence, the burden of proof is with the party invoking force majeure.

iii. Consequences of force majeure

The precise effect of successfully invoking force majeure will vary from contract to contract. Often the successful invocation will result in some form of relief from the complete or timely performance of the contract. As well as being relieved from its obligations, the successful party may not be liable for damages as a consequence of its non-performance, or may get an extension of time to perform, or a suspension of certain other contractual terms.

iv. Other considerations

Adequate notices should be provided to the other party in accordance with the contractual provisions. Notices may have to be given within a certain period, and may require complying with certain formalities. The English courts strictly police compliance with such formalities.

In addition, going forward, businesses may consider including “pandemic” or “epidemic” in their force majeure clauses.

v. Compliance with law

It is common for contracts to have a general provision requiring compliance with the applicable law. It is possible that such clauses will provide protection to a party which has had its ability to perform the contract hindered by government-ordered action, even where there is no force majeure clause.

vi. Doctrine of frustration

When the contract is silent and does not contain any force majeure provision, it may be possible under certain circumstances to rely on the common law doctrine of frustration. For a contract to be frustrated, there must be a significant change in circumstances which is not the fault of either party, and which make the contract impossible to perform. In these circumstances, COVID-19 could be invoked as the supervening event.

For example, depending on the type of contract, it may be possible to argue that either one or both of the government lockdown or the COVID-19 virus itself has frustrated the contract. Long-term contracts are less amenable to claims of frustration where the impact of COVID-19 may be severe but temporary. The consequence of frustration is that the contract comes to an end and the parties’ future contractual obligations are automatically discharged.

vii. Conclusion

Businesses which have been impacted by COVID-19 would be advised to carefully:

  • review their contracts;
  • review the force majeure clauses, if there are any, to determine whether the current situation falls within them;
  • analyse the notice provisions for invoking force majeure;
  • consider any compliance with applicable law provisions; and
  • consider whether the contract has been frustrated. 
In all cases the analysis should be targeted on the specific contracts and will have to be applied on a case-by-case basis. 

Read More...



Wednesday, June 3, 2020

eSignatures under Omani Law

In 2008 the Electronic Transactions Law (the “Law”) was promulgated by Sultani Decree 29/2008 in order to regulate electronic commerce in Oman. Since then, eSignatures have become increasingly accepted and used by businesses in Oman.

eSignatures are valid, admissible in court and enforceable, subject to the conditions set out below.

The Law recognises three types of eSignatures:

1. Secure eSignatures (Article 22)

This category of eSignatures is best protected under the Law because reliance on such signatures is presumed to be reasonable. Consequently, protected eSignatures are accepted as valid and have probative value unless otherwise established.

An eSignature is considered “protected” if it is possible to verify, through (1) the implementation of precise authentication procedures as required by the Law (such as by way of an electronic authentication certificate); or (2) as commercially acceptable and agreed upon between the parties, that at the time of its execution, the eSignature is attributable only to the person who used it, and:

  • the signature-generating apparatus is used only by the signatory;
  • the signature-generating apparatus was, at the time of signing, under the control of the signatory and no other;
  • any alteration to the electronic signature after the time of signing is discoverable; and
  • any alteration to the information relating to the signature after the time of signing is discoverable. However, any concerned person may adduce evidence to prove that the electronic signature is reliable or not.

2. eSignatures which do not fall into the “protected” category (Articles 11 and 23)

eSignatures which are not considered “protected” pursuant to Article 22 may nevertheless also be recognised as having legal force and effect, as long as reliance on the eSignature is reasonable.

Reasonableness is not presumed in such cases; the court will, in order to determine whether reliance on an eSignature is reasonable, take into account several factors, including the following:

  • the nature, value and importance of the concerned transaction;
  • whether the person relying on the eSignature took appropriate steps to determine whether the eSignature or certificate is reliable;
  • any previous agreement or transaction between the originator and the approved party; and
  • any other relevant factor.
Reliance is not considered reasonable where the eSignature is enhanced with an electronic authentication certificate and the relying party fails to verify the validity, applicability and restrictions of the certificate. In such cases, the relying party will be responsible for all risks resulting from the invalidity of the signature unless otherwise established.

3. Foreign eSignatures (Article 42)

In determining whether a foreign eSignature is valid, any agreement between the parties in respect of the transaction in which that signature is used shall be considered, provided that it is not contrary to Omani law.

The Omani courts accept eSignatures as having legal force and effect as long as they meet the requirements of the Law. For example, in order to consider an eSignature valid, Omani courts will determine whether the eSignature is protected and/or the reasonableness of the reliance a person may have on the eSignature. The Omani courts will also consider available evidence including electronic evidence.

eSignatures in connection with electronic transactions and commerce have probative force. Article 2 of the Law provides that the Omani courts will not, however, accept eSignatures with respect to the following documents:
  1. transactions and matters concerning civil status such as marriage, divorce, and wills and endowments;
  2. court proceedings, judicial summons, proclamations, summons, search orders, arrest orders and judicial decrees; and
  3. any document required by law to be authenticated by a notary public.
With respect to the incorporation of the use of eSignatures, ‘protected signatures’ are the best protected type of eSignature under the Law. In order to avail the benefit of this protection, it is important to ensure the requirements in Article 22 (as listed above) are satisfied.

Steps to adopt in order to incorporate the use of eSignatures include:
  1. Determining a duly accredited person which issues electronic authentication certificates and any services or tasks related to it and to eSignatures as regulated under the Law. In order to be duly accredited, this person must hold a certification services provider license in Oman;
  2. Engaging this person to issue an eSignature tool and electronic authentication certificates for your use; and
  3. Implementing all due care and diligence in your use of the eSignature tool, in line with the directions provided by the certification service provider.
It is also important to ensure, when incorporating the use of eSignatures, that such eSignatures are not used with respect to the classes of documents excluded by Article 2 (listed above).

In summary, when deciding whether the use of an electronic signature will be recognised and enforceable, it is important to consider the following:
  1. Whether the type of document with respect to which the eSignature is used may be signed by way of eSignature under the Law.
  2. Whether the signature qualifies as a protected signature under Article 22;
  3. Where an eSignature is being relied on, other than pursuant to Article 22, whether such reliance would be considered reasonable by the courts; and
  4. The jurisdiction in which the agreement or document will need to be recognised and/or enforced. If a jurisdiction other than Oman is involved, it is important to consider its laws regarding eSignatures.
The use of eSignatures also imposes additional duties on a signatory, set out under Article 19. There may be repercussions if these duties are not fulfilled. These duties include notifying concerned persons, without any unjustifiable delay, in the instance of finding out the signatory’s signature tool was or may have been exposed to safety risks based on circumstances or facts made known to him/her.

What would be the risks of proceeding with eSignatures in the event that the law is vague or does not permit/recognise them?

As long as the requirements set out above are fulfilled, there should be no significant risk that the Omani courts will not consider the eSignatures valid.

That said, certain non-legal concerns that must be addressed, in particular with respect to the possible vulnerability of eSignature tools to cyber-attacks, security breaches or misuse. Misuse of an eSignature may result in significant damage to the authorised person to whom the eSignature is linked.

It is therefore extremely important, in order to protect the signatory from any external or internal misuse, to implement high security measures to ensure only the authorised person to whom the eSignature is linked may access and use the eSignature. Measures that may be undertaken include secure storage of the eSignature and authentication certificate, and not sharing access to the eSignature or authentication certificate with any other person.

Read More...



Monday, May 11, 2020

COVID-19 Announcements by the Omani Government

Last updated: 21 May 2020

The below table sets out the decisions issued by the Supreme Committee and other branches of the Omani Government addressing the COVID-19 pandemic. The table will be updated on a monthly basis to include all key developments.


Updates Topic
(1) General
(2) Private Sector
(3) Public Sector
(4) Annual General Meetings


COVID-19 Updates: General Developments (1)
21 May 2020  ROP has issued Decision No. 151/2020 in relation to the criteria and controls in dealing with those found in violation of the decisions issued by the COVID-19 Supreme Committee. The decision states that ROP is responsible for  monitoring the extent in which individuals and public and private sector establishments are in compliance with the decisions issued by the supreme committee. ROP are permitted to stop those that they suspect may be in violation of the decisions and to take the procedure they see necessary with the violators.
18 May 2020 The COVID-19 Supreme Committee has issued the following decisions:
  •           All Eid Al Fitr gatherings are banned.
  • ROP has been entrusted to monitor the commitment, the public sector and the private sector. ROP has the authority to impose fines on those who are held in violation of these decisions. 
  • More commercial activities have been reopened.
  • Everyone is obliged to wear a face masks in commercial outlets, public spaces and all workplaces in both the public and private sector and public transport. 
The Ministry of Finance issued Circular No. 16/2020 in relation to the reduction of ministerial and governmental budgets. This circular comes as a result of the financial measures addressing the slump in oil prices by decreasing spending in order to reduce budget deficit. 
13 May 2020
The Ministry of Finance issued Circular No. 16/2020 in relation to the reduction of ministerial and governmental budgets. This circular comes as a result of the financial measures addressing the slump in oil prices by decreasing spending in order to reduce budget deficit. 
07 May 2020 The COVID-19 Supreme Committee has announced the end of the school year of 2019-2020. 
05 May 2020 The COVID-19 Supreme Committee has stated that the lockdown in Muscat has been extended until 29 May 2020, 10 pm. 
04 May 2020
The Ministry of Commerce and Industry (MOCI) permits the transfer of ownership of commercial registries to be implemented via Sanad offices, advocates offices and auditing offices.


The application is submitted online through the InvestEasy Portal, once the application is reviewed and approved by an MOCI employee, the buyer and seller must visit Knowledge Oasis, 4th Building or departments that are affiliated to the ministry in order to complete the documentation of the application.  
28 April 2020
The COVID-19 Supreme Committee has stated that some commercial activities will be reopened. The list includes:
  •          Vehicle repair workshops.
  •           Fishing boat repair workshops.
  •       Car parts sale shops.
  •           Outlets selling spare parts of fishing equipment.
  •           Outlets selling electronic and electrical appliances and computers.
  •           Outlets repairing home electrical appliances/equipment.
  •           Satellite transmission equipment outlets.
  •           Car rental offices.
  •       Equipment and machinery rent offices.
  •           Sale in outlets specialized in stationary and office supplies.
  •           Printing presses.
  •           Sanad offices.
  •           Quarries and stone crushers.
  •           Money exchange.
      A limit of two customers is to be applied by the following commercial activities:
22 April 2020 The Central Bank of Oman (CBO) issued a circular addressing all banks and finance leasing companies to defer loan instalments by the low-income Omani workforce. This shall be effective for a period of three months from the date the loan is postponed and this will be implemented from May 2020 until further notice.

The repayment of the loans shall be with no interest or any additional fees; also, if seen necessary, the entities must reschedule the loans.
20 April 2020 The COVID-19 Supreme Committee held that Ramadhan gatherings are prohibited, and also emphasised that Taraweeh shall not take place at the mosques. Also, the lockdown on Muscat was extended until 10 am on 8 May 2020.
11 April 2020 The Ministry of Commerce and Industry (MOCI) has instructed commercial centres to adhere to the necessary preventive measures to combat the spread of COVID-19. MOCI further stated that there must be a distance of two metres at all counters and that all surfaces and trolleys must be sanitised. Legal action shall be taken if found in violation.
8 April 2020 The Oman Chamber of Commerce and Industry (OCCI) requested that landlords and the owners of commercial centres take into consideration the impact on their tenants during the ongoing spread of COVID-19. OCCI suggested that this takes place through exemptions, postponement of payments or reduction in rent.

Pursuant to the decisions of the COVID-19 Supreme Committee, Muscat shall be in lockdown from 10 am on 10 April 2020 until 10 am on 22 April 2020. Also, control checkpoints have been put in place to ensure compliance with the lockdown in Muscat.
2 April 2020 The COVID-19 Supreme Committee has stated that Muttrah shall be in lockdown from 2 April 2020.
31 March 2020 After the Royal Oman Police suspended renewal services, the Capital Market Authority (CMA) has requested that insurance companies provide coverage for vehicles with expired licenses until the end of the spread of COVID-19. Also, CMA has instructed that insurance is provided in case of traffic accidents, despite license expiration.

The Tax Institution undertook several procedures in order to mitigate the financial position of tax-governed entities during the spread of COVID-19. These include:
  • Disclosures and tax may be submitted/paid within a period not exceeding three months.
  • Tax may be paid in instalments.
  • The additional 1% of tax in the Tax Law will be waived.
  • In case of objections against modifications by the taxpayer, the objection must take place within a period of 45 days from the date of notification.
  • An additional grace period may be requested by the taxpayer for the submission of documents/clarification.
29 March 2020 During a meeting of the COVID-19 Supreme Committee, it was held that the suspension of all domestic and international flights shall take effect from 29 March 2020 (with the exception of air cargo and Musandam).
24 March 2020 The Ministry of Manpower (MoM) urged companies/establishments not to request that employees who are quarantined go to the workplace as legal action may be taken against them.
23 March 2020 The Telecommunications Regulatory Authority announced that it will allow the use of Skype, Voice Over Internet, Google Meet and Zoom in the Sultanate of Oman.
19 March 2020 The Financial Affairs and Energy Resources Council approved the following:
  • Budget cuts of 5% by ministries, the military and security units, which must be adhered to by the entities.
  • Revision of general spending articles in order to further minimise expenditure.
18 March 2020 The COVID-19 Supreme Committee held a meeting and took the following decisions, to be effective from 18 March 2020:
  • Banning entry to Oman through land, air and sea to Omani nationals only.
  • Omanis are currently suspended from leaving Oman.
  • Closure of all mosques (except for the Athaan).
  • Closure of all non-Muslim worship areas.
  • Suspension of all gatherings, conferences and activities.
  • Closure of all tourist sites.
  • Prohibition of assembling in public areas (including beaches, wadis, mountains, water springs, waterfalls and parks).
  • Closure of all shops in malls (except for those supplying food, pharmacies and optics).
  • Closure of traditional souq/markets (Muttrah, Nizwa, Al Rustaq, Sinaw).
  • Suspension of all weekly fairs/markets.
  • Hotels, restaurants and cafes are prohibited from serving food with the exception of take-aways.
  • Closure of all sports facilities, sports halls, sports courts, health clubs, barbers and salons for both men and women.
CBO issued incentive measures that include accepting deferment requests regarding loan instalments/profit/interest, particularly SMEs, for a period of six months.
17 March 2020 The Competition Protection and Monopoly Prevention Centre has advised all parties against the exploitation of the current global pandemic. The Centre has warned parties that The Law on Protection of Competition and Prevention of Monopoly shall be applied against offenders that are found to be increasing the prices of products that are high in demand as a means of exploitation. Legal action shall be taken through liaising with the relevant regulatory departments.
15 March 2020 The Public Authority for Consumer Protection (PACP) has reaffirmed that it is monitoring and regulating the markets all over Oman. PACP has formed teams in order to regulate the potential increase in prices by suppliers and to ensure the availability of supplies with standard prices.

PACP stated that legal action shall be taken against those that are exploiting the spread of the coronavirus.

The COVID-19 Supreme Committee held a meeting and took the following decisions, to be effective from 17 March 2020:

  • All non-Omanis are banned from entering Oman through land, sea and air, except GCC citizens.
  • Quarantine shall be imposed on all passengers arriving in Oman through land, sea or air (including Omanis).
  • Closure of all parks and play areas.
  • Suspension of Friday prayers.
  • Prohibition of all social gatherings (including weddings and funerals).

12 March 2020 The COVID-19 Supreme Committee was formed by orders from His Majesty and held its first meeting on 12 March 2020. During the meeting, the COVID-19 Supreme Committee took several decisions, to be applied for a period of 30 days:
  1. Stop the issuance of tourist visas.
  2. Suspension of all sports activities.
  3. Prohibition of all external student activities.
  4. Suspension of the entry of all cruise liners in Omani ports.
  5. Court sessions are limited to the concerned parties only.
  6. Banning of shisha at all outlets.
  7. The Committee recommends that travel abroad is limited to cases of emergency.
  8. Preventive measures must be implemented at gatherings and places of worship.
  9. The Committee recommends not going to the cinema frequently.

COVID-19 Updates: Private Sector (2)
Date Updates
10 May 2020
The Ministry of Manpower has urged the private sector to request their employees to go for a screening for the Coronavirus in the case that any employee is displaying symptoms. 
15 April 2020 A package of incentives has been announced in order to provide support to the private sector to enhance its ability to adjust to the conditions imposed as a result of COVID-19.
  • Private sector establishments are not permitted to terminate the Omani workforce and must maintain their stability.
  • The private sector is required to reconstruct their systems to enable them to function during the spread of the coronavirus.
  • Use of technology is urged as it allows employees to work remotely.
  • Safety measures must be taken to ensure that there is enough space between the employees at the workplace.
  • Employees that are quarantined are entitled to their salaries, as long as they provide a certificate for the end of their quarantine.
  • Private sector establishments that have shut down as a result of COVID-19 may offer advanced annual paid leave for the workers.
  • Companies in the private sector that have been affected by COVID-19 may negotiate a reduction in the salaries of employees for a period of three months in exchange for reduced working hours; this is applicable after an employee’s outstanding paid leave has been exhausted.
  • For companies in the private sector that have shut down as a result of COVID-19, the company is entitled to grant annual paid leave to the workers, to be implemented from May 2020, if seen necessary.
  • For the Omani workforce facing a reduction in their salaries, their bank and financing loans shall be postponed, the loans are to be paid back after rescheduling, and will be paid back with no interest or additional fees; also, their water and electricity bills shall be postponed until June 2020.
Non-Omani Workers
  • In relation to the non-Omani workforce, the private sector may terminate contracts with non-Omani workers if the company has been affected by COVID-19 and provided that the company adheres to all its payments due to the employees prior to their departure from Oman.
  • If the establishment has shut down, the employee’s annual leave may be paid in full advance.
Incentives Offered by the Government to the Private Sector:
  • There will be a reduction in the renewal fees of labour cards from OMR 301 to OMR 201 for expatriate workers.
  • Fees and delayed fines shall be exempt.
  • Extension of MoM expat licenses.
  • Temporary approval and provision of preliminary work permits to expats.
  • In case of an emergency, secondment of workers from the private sector for another entity may take place.
MOCI Incentives for the Private Sector:
  • MOCI is offering exemptions for the payment of fees for the renewal of Commercial Registrations from 15 April 2020 until late June 2020.
  • MOCI has also stated that public sector companies shall abide by their contracts with the private sector in the field of services.
  • SMEs that have been affected by COVID-19 may pay water and electricity bills in instalments or postpone payments for a period of three months.
  • Exemptions shall be provided for the renewal fees of licenses and fines for a three-month period for governmental units.
  • Exemptions and flexibility measures shall be offered to government projects that have been completed.
  • The Public Authority for Social Insurance shall postpone subscription fees for the months of March, April and May. These may be paid in instalments.
Water and Power Sector:
  • For establishments in the private sector that have been affected by COVID-19, they may postpone the payment for water and electricity for a period of three months.
  • SMEs may pay in instalments.
  • Workers facing a reduction in their salaries shall be given National Fuel Subsidy Cards.
1 April 2020 MoM has stated that establishments in the private sector are required to take the steps they see necessary in order to decrease the number of employees at the workplace to the minimum, without impacting business performance.
31 March 2020 The private sector establishments are required to decrease the number of employees to a minimum and should also put in place necessary preventative measures. These measures take effect from 1 April 2020.
24 March 2020 MoM has requested that companies in the private sector inform their employees to not go out during holidays and weekends and to stay home. The employees must be told in all applicable languages to avoid any language barriers. MoM stressed that all labour gatherings shall face legal action.


COVID-19 Updates: Public Sector (3)
31 March 2020 The COVID-19 Supreme Committee held that for those working in the public sector, employees are not required to go to the office and should work remotely except for employees whose nature of works requires their physical presence.
The heads of governmental departments/units are required to ensure that standard procedures are not impacted by the downsizing of workforce and must also put in place necessary preventive measures.

The above is enforced from 1 April 2020.
23 March 2020 The COVID-19 Supreme Committee has taken a decision to limit the number of employees in the public sector to only 30%, enough to provide their services and for the remaining employees to work remotely.


COVID-19 Updates: Annual General Meetings (4)
26 April 2020 The Muscat Clearing Depository (MCD) issued Circular 2/20200F detailing the user manual for electronic AGM-EGM management services for public joint stock companies and investment funds; EAGM.
20 April 2020 The CMA has announced that annual general meetings of SAOGs and investment funds shall be resumed through an electronic portal of MCD. The rules include the following:
  • Attendance and voting shall take place through an electronic portal.
  • MCD shall administer the electronic portal and will send the agenda to the shareholders.
  • Board of director nomination forms shall be submitted five days before the date of the meeting.
  • For an elected board member, the company shall be required to provide his CV through the Muscat Securities Market (MSM) website three days before the date of the meeting.
  • Shareholders are entitled to vote through the electronic portal three days before the date of the meeting.
  • All voting shall remain confidential until the meeting.
  • Authorisation of the shareholder may be cancelled only 24 hours prior to starting the meeting.
  • Quorum: this will be counted when the shareholder activates the general meeting’s page when the meeting begins. Also, those who have voted during the three days prior to the date of the meeting shall be included in the quorum.
  • A time period not exceeding five minutes for voting on each item, except for the items in relation to the election of board directors which shall be given a time period not exceeding ten minutes.
  • Under the current circumstances, the publication of the agenda shall take place ten days prior to the meeting.
  • If there is a reduction in a shareholder’s balance, his voting prior to the meeting shall be void. He may vote again.
  • If a proposal in the agenda is changed, the voting of the shareholder shall remain valid unless the shareholder changes his vote on the day of the meeting.
18 March 2020 CMA issued Circular 3/2020 addressing all public joint stock companies and investment funds to suspend AGMs until further notice. The CMA also issued Circular 4/2020 approving the dividends set out in the agendas to shareholders.
17 March 2020 MOCI extended the time period for Annual General Meetings to take place for Closed Joint Stock Companies (SAOC) until June 2020. In addition, MOCI has announced the suspension of all exhibitions, seminars and conferences until June 2020.
16 March 2020 CMA extended the time period for convening AGMs until 30 April 2020 rather than 30 March 2020. For companies that wish to postpone the convening of the AGM, this must be disclosed on the MSM website.

CMA instructs all public joint stock companies, legal advisors and auditors to adhere to the preventative measures in order to prevent the spread of the coronavirus during AGMs.

Circular 1/2020 includes a list of the preventive measures that must be taken by the companies that still wish to convene their AGMs, including limiting the attendees of the meetings to stakeholders and shareholders only; providing sanitisers; avoiding handshaking during the meetings; and limiting the time of the meeting. Also, shareholders have been urged to only ask questions that are directly related to the matters discussed at the meeting.


Read More...



Wednesday, April 8, 2020

Considering Dispute Resolution Clauses in Oman Part 1: Courts or Arbitration


Often, when parties enter into a new agreement, the dispute resolution clause is not considered as carefully as other important terms of the contract.  There are numerous considerations that, depending on the context, both parties should bear in mind when drafting their dispute resolution clause.  This series of articles will take a look at a number of these considerations in the context of entering into contracts in Oman.
This first article considers the issue of whether parties should choose courts or arbitration to determine their disputes.  Some of the main considerations are as follows.
If parties decide that their dispute will be resolved by the Omani courts, the following will apply:
  • Proceedings will be held in Arabic.
  • Parties will have several rights of appeal of decisions.
  • The costs paid to the court will be much lower than costs paid to a tribunal.
  • A court decision will be enforceable in Oman as well as other countries that are party to the Riyadh Convention on Judicial Cooperation 1983.[1]
If parties choose arbitration to resolve their disputes, some of the key characteristics are as follows:
  • Proceedings will be held in the language agreed to by the parties, which is often English.
  • There is no right of appeal; however, an application will need to be submitted to the court to have the award enforced, even if the arbitration is held in Oman and subsequently enforced in Oman.
  • There are higher administrative costs related to arbitrations; however, a tribunal has the authority to award the successful party these costs, though it is not certain that a successful party will have all of its costs paid.
  • An award is enforceable in the 161 countries that are party to the New York Convention.
Building on the points above, parties will need to consider many factors when deciding what type of dispute resolution mechanism they will choose.  If contracting with a counterparty that has little assets in Oman but significant assets in other countries, it will be critical that any award or decision can be enforced against the counterparty; therefore, where an award or judgment is going to be enforced also needs to be taken into consideration when choosing a dispute resolution mechanism.
Another key consideration is that the process in arbitration and in courts can be very different.  In Oman, all submissions are made through documents rather than through oral arguments and witness testimony.  If parties choose arbitration rather than courts, the parties will determine with the arbitrator what the arbitral process will entail, often a more common law style of proceeding with oral arguments and oral witness testimony being adopted.  However, some arbitrations, particularly those where the parties choose Arabic as the language of the arbitration, more often follow the procedures of Omani courts.
Overall it can be said that depending on the nature of the dealings between the parties as well as any potential dispute that may arise will determine whether courts or arbitration is most appropriate.  Unfortunately, it will not be possible for parties to opt for courts or arbitration at the time a dispute arises; therefore, careful consideration of a number of factors must be weighed up at the time of entering into a contract when deciding what dispute resolution mechanism the parties should choose.



[1]  Algeria, Bahrain, Djibouti, Iraq, Jordan, Kuwait, Lebanon, Libya, Mauritania, Morocco, Oman, Palestine, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, UAE, Yemen.

Read More...



Tuesday, April 7, 2020

Employment Issues Relating to COVID-19 Under Omani Law

As more COVID-19 cases are detected in the Middle East, employers with international workforces in Oman will need to monitor the impact of the outbreak and take steps to protect their employees and workplace where necessary.

 
The outbreak of COVID-19 raises important points of Omani employment law with particular considerations for a predominately expat workforce. Specific legal advice should be sought where necessary, as the situation is changing daily.
 
Government announcements
 
Oman has a predominately expat workforce and many employees are following news reports in both Oman and their home countries with interest, often via reports shared on social media. It is easy for rumours and misinformation to spread quickly; therefore, employers should advise all employees to follow official government announcements and to avoid sharing rumours without verifying statements from official sources.
 
Employers should remind employees of the defamation laws that apply in Oman and consider updating and recirculating their internet use and social media policies to reflect this.
 
Employer measures

 

We are aware that some employers are taking steps to have their employees screened to confirm that they are healthy and not presenting any risks to other colleagues. Before implementing any such practices, employee consent should be obtained and consideration given to what steps the business will take if an employee is showing any symptoms.
 
Whether employers are entitled to require an employee to self-isolate and work from home is likely to depend on:
  • whether the employee is symptomatic – in which case, it is likely that they should be on sick leave and therefore not working; or
  • whether the employee is able to work from home.
Employers should now be considering whether they need to take any additional steps to facilitate home working and whether employees should ensure that they have the correct set-up at home to be able to work there, if required to do so.
Relevant considerations may include:
  • ensuring that all employees have a way of logging on to secure systems from home;
  • whether any employer liability insurance would cover a personal injury sustained by an employee while working from home;
  • how the employee will be supervised while working from home;
  • what measures need to be put in place to protect the confidential information of the business and personal data of employees and customers; and
  • where there is no established company home working policy in place, recording the arrangement with relevant employees in writing.
Employers should review their employment contracts and policies to determine whether and to what extent they are able to require employees to work away from the office. Employers have a general obligation to maintain overall health and safety of all employees, and will understandably be keen to avoid the spread of illness through their staff as this could disrupt business for several weeks.
Suspension may be an option where an employee who has been advised to self-isolate refuses to do so, but employers should consider whether they have the right to suspend in these circumstances. In the absence of a disciplinary sanction having been handed down as a consequence of a formal disciplinary procedure, the general position is that any period of suspension should be on full pay. Where no express contractual right to suspend exists, legal advice should be sought.
 
Should employees be placed on annual leave, paid sick leave or any other type of leave?
 
The position will depend on the employer’s contractual terms and policy, the position of the employee and any other material factors, such as the employee’s health. Options available to employers in Oman include:

  • inviting employees to take a period of paid annual leave voluntarily;
  • placing employees on a period of mandatory annual leave;
  • for employees with symptoms, allowing them to take sick leave. Article 66 of the Oman Labour Law provides that, subject to the provisions of the Social Insurance Law, an employee is entitled to sick leave for one or more periods which shall not exceed ten weeks in a year regardless of whether the leave is divided or continuous. Sick leave salary entitlements will be granted in the following manner:
    • First two weeks leave: full pay
    • Following two weeks leave: paid ¾ of the full salary
    • Following two weeks leave: paid ½ of the full salary
    • Following four weeks leave: paid ¼ of the full salary
 The employee must produce a medical certificate to establish his/her sickness, and in the event of a dispute, the matter has to be referred to the medical committee, whose decision in matters of sickness is final.
 
Whilst the Oman Labour Law grants the employee the right to sick leave, Article 43 of the Oman Labour Law provides that the employment contract may be terminated if the sickness of an employee compels him/her to discontinue work for a continuous or an interrupted period of not less than ten weeks during a year;

  • enabling employees to work remotely wherever possible; and
  • where an employee voluntarily self-isolates and remains away from the workplace without discussing this with the employer, there may be more scope for considering such leave to be unpaid.
Legal advice should be sought before introducing any measures which seek to reduce employees’ statutory benefits, such as a mandatory period of unpaid leave or requesting that employees take a temporary pay cut.

Far-reaching privacy laws are in place in Oman. Any employee’s medical records therefore should be dealt with strictly confidentially and only shared with relevant personnel on a ‘need to know’ basis. Best practice is to obtain advance written consent from the employee before the details of any medical test or report are shared, even where there is a provision in the employment contract confirming how personal data will be processed within the organization.
 


Read More...



Monday, April 6, 2020

COVID-19 And Lease Agreements Under Oman Law

Contractual force majeure


Under Omani law, parties are generally free to agree the contractual terms that will govern their relationship, so long as there is no conflict with a mandatory provision of Omani law or any contravention of public order or morals. The concept of force majeure is recognised and judicially well understood in Oman, and force majeure provisions are commonly included in commercial contracts in the region. In general terms, parties should expect that express contractual force majeure provisions, which may include exhaustive or non-exhaustive definitions of the scope of a force majeure event (that could potentially encompass epidemic or pandemic scenarios), will be enforceable in contracts governed by Omani law. Similarly, contractual notice requirements that must be satisfied before force majeure can be relied on will usually be upheld.




As it pertains to COVID-19, any broad force majeure clause language should apply as it is unlikely any court would decide that any tenant caused COVID-19. Many force majeure clauses specifically include "epidemic" or "pandemic" in its laundry list of qualifying events. Even without that specific reference, COVID-19 should qualify under most force majeure clauses, owing to the government-imposed travel bans and quarantines.




Tenants could have trouble proving damages if business was already down. Omani courts require the party claiming force majeure to show that the event was (a) not foreseeable; and (b) directly caused the failure to meet its contractual obligations.




As in any lease matter, strict compliance with the technical requirements of the lease may be necessary for a tenant to invoke a force majeure clause. Typically a lease requires prompt notice of a claim of force majeure. Several courts have refused tenants’ force majeure claims when they failed to provide adequate notice under the lease.




A common and particularly controversial clause in situations such as the present is one that contains wording along the following lines:



"Nothing in this Section, however, shall excuse Tenant from the prompt payment of any Rent or the obligation to open for business on the Commencement Date."




The intention of the parties appears to be that a tenant may be excused by force majeure of complying with a continuous operation clause in the event of a pandemic, but it still must pay rent. Under the current circumstances, one could perhaps try to make an argument that these clauses are unenforceable because they are unconscionable and against public policy.




Statutory force majeure


In the absence of (or supplementing) express contractual force majeure provisions, Sultani Decree 29/2013 Enacting the Civil Transactions Law (the "Civil Code") contains several articles that provide for relief in the case of force majeure and other exceptional circumstances. Unlike common law jurisdictions, where force majeure may result in the suspension of contractual obligations, the default consequence of establishing force majeure in Oman is termination.



Article 172(1) of the Civil Code provides that if a force majeure event supervenes that renders performance of a contract impossible, all contractual obligations will cease and the contract will be automatically cancelled. Under Article 172(2), in cases where the force majeure event renders only part of the obligations impossible to perform, only that part of the contract will be extinguished and the remainder will continue in effect. Article 172(2) permits the obligor, in respect of the partially impossible obligation, to cancel the entire contract on giving notice to the obligee. If a contract is cancelled under either Article 172(1) or 172(2), the parties are to be restored to the position they were in before they entered into the contract; if that is not possible, damages may be awarded by way of compensation to a party that has suffered a loss as a result of the inability to unwind the contract.

Even though Articles 172(1) and 172(2) of the Civil Code do not require notice to be given to effect cancellation of a contract (and Article 549 is silent on notice), a party seeking to rely on the Civil Code in force majeure circumstances would be well advised to provide notice of cancellation to its counterparty in order to avoid any allegation of breach of the general obligation under the Civil Code to perform the contract consistent with the requirements of good faith.

Article 177 of the Civil Code provides that:



"If a person can prove that a loss proceeded from an extraneous cause in which he played no part, such as a natural disaster, an unforeseeable accident, force majeure, an act by a third party, or an act by the injured party, he shall not be liable for compensation...."




In other words, a defendant will not be liable to compensate a claimant if he can show that the loss at issue was the result of an external cause in which he had no hand, such as an unforeseeable accident, or an act of (a) God, (b) a third party, (c) force majeure, or (d) the claimant himself.



Article 159 of the Civil Code provides that if exceptional circumstances of a public nature that could not have been foreseen occur, as a result of which performance of a contract becomes oppressive for a party, but not necessarily impossible, the judge (or arbitral tribunal in an arbitration) has discretion, after weighing the interests of each party, to reduce the obligation to a reasonable level if justice requires it. It is necessary for a party to commence court or arbitral proceedings if it seeks to obtain relief under Article 159. Unlike the Civil Code provisions that concern force majeure, the operation of Article 159, which is equivalent to the hardship doctrine available in other jurisdictions, does not result in the termination of the contract.




Although the Civil Code refers to force majeure and exceptional circumstances as the basis for relief from performance of contractual obligations, it does not provide any definition of what constitutes force majeure or exceptional circumstances. The starting point for any analysis of whether COVID-19 may constitute a force majeure event or exceptional circumstance is the contract in question and, in particular, whether there are any definitions that could encompass an epidemic or pandemic scenario. If the contract is silent or unclear, then it will be for the court or arbitral tribunal to determine whether the existence and effects of an epidemic or pandemic constitute force majeure or exceptional circumstances in the context of the Civil Code.



Omani courts have held that it was a settled principle that the determination of whether an “extraneous cause” (i.e., an event that was not caused by the parties) could permit a party to a contract to avoid liability was within the sole discretion of the court (or arbitral tribunal). To the extent that the effect of an epidemic or pandemic could be said to be a normal commercial risk that could be caused by other, less serious circumstances, this might be said to tend against a finding of force majeure. However, while a finding of force majeure can be a close call in, for example, weather-related natural disasters, it is hard to imagine a pandemic resulting in mass closures of all public events and schools being considered to be a close call. This is not a normal “risk of doing business.”




Summary




If the lease agreement in question does not contain a force majeure clause that could be invoked by the tenant in respect of COVID-19, it will be necessary to fall back on the statutory provisions in the Civil Code dealing with force majeure and/or "exceptional and unforeseeable circumstances of a public nature."



Omani courts have interpreted force majeure clauses very narrowly, stipulating that for an event to qualify as force majeure it must make performance of the contract literally impossible, unforeseeable and uncontrollable. An event judged to constitute mere hardship or uneconomic balance between the parties to a contract would not be sufficient.




Should the tenant be unable to argue that COVID-19 constitutes force majeure for the purposes of Article 172, it may be able to fall back on either Article 177 or Article 159, each of which provides for more nuanced relief than restitutio in integrum (as provided for by Article 172, set out above). If the tenant can show that its inability to pay a part of the rent owing to COVID-19, whether it qualifies as an "extraneous cause" for the purposes of Article 177 or as an "exceptional and unforeseeable circumstance of a public nature" for the purposes of Article 159, then the courts have the discretion either (a) to write off the loss to the landlord, if applying Article 177; or (b) to reduce the tenant’s obligation to a reasonable level, if applying Article 159.




At this stage, it is difficult to predict how the courts in Oman (or arbitrators considering contracts governed by Omani law) will deal with force majeure and the exceptional issues raised by COVID-19.




A key issue will be when the impact of COVID-19 is deemed to have become foreseeable. Was it 31 December 2019 when the WHO first warned of the threat of COVID-19? 30 January 2020, when the Director-General of WHO determined the outbreak of COVID-19 to be a Public Health Emergency of International Concern? Or 11 March 2020, when the WHO declared it a pandemic?


Tenants who entered into leases after the effects of the virus became foreseeable – whenever the courts deem that to be - will find it harder, if not impossible, to rely on the statutory provisions above.





Read More...



Tuesday, March 24, 2020

Issuance of Health Insurance Rules


In October 2019, the Capital Market Authority (the “CMA”) issued Ministerial Decision 78/2019 Issuing the Health Insurance Rules (the “Rules”) in respect of the Unified Health Insurance Policy (the “Policy”), the details of which were previously issued under Ministerial Decision 34/2019 and discussed in our July 2019 article, Oman Rolls Out Unified Health Insurance Policy – or ‘Dhamani.’  The Rules set out the obligations of the various stakeholders in the health insurance relationship, i.e., insurers, third-party administrators, health services providers, employees and employers.
Insurance coverage
The Rules provide that the Policy will determine the extent of the health insurance coverage to be provided under the Policy, provided that such coverage should not be below the basic health services the insured should enjoy.
Insured persons are entitled to cancel their health insurance policy at any time by providing 30 working days’ prior written notice, in which case the insurer is required to refund the insured the amounts in respect of the cancelled term in accordance with the terms of the insurance policy.  Such refund should be provided within 30 working days of the date of cancellation of the insurance policy.
The amount of the insurance premium will have to be agreed on between the parties, as long as such premium does not exceed the market pries for health insurance in Oman.
The health insurance coverage will expire under the following circumstances:
          Expiration of the term of the insurance policy.
          Exhausting the maximum limit of the benefits under the policy.
          Death of insured.
          Departure of the insured expatriate out of Oman.
          Transfer of service of insured from one entity to another.
Any claims arising from a health insurance policy shall not be heard until one year has lapsed from the date of expiration of the relevant policy.  Statutes of limitations shall be considered paused by claim measures or procedures stipulated in the Rules.
Issuance of licence
The Rules provide that without prejudice to the provisions of Ministerial Decision E/31/2007 regarding licensing requirements for insurance companies, a company will also need to submit an application in the form stipulated in the Rules.  The CMA will examine the licence application within 60 days of submission.  In the event that the application does not provide all the required documents, the applicant is required to provide the required document within 30 days of being notified to do so.  Failure to provide the documents within the stipulated time period will result in the application being cancelled.  Once an application has been cancelled, another application cannot be submitted for a period of 90 days from such cancellation.  If the application is granted, the Executive President of the CMA will issue a decision granting the licence within 60 days of receipt of all the required documents within the prescribed time period.  If no decision is issued within the 60-day period, the application will be deemed to have been rejected.
A licence will be valid for a period of two years and renewable for similar periods.  The application for renewal will need to be submitted by the insurer at least 30 days prior to the expiration of the licence.
Provision of health insurance
All relevant parties are required to implement the Health Insurance Electronic Platform, as discussed in the Policy and in accordance with other decisions and notifications of the CMA.
Health insurance activities and operations may not be undertaken unless the relevant licence has been obtained from the CMA.  Healthcare providers licensed to provide health insurance services are barred from providing health insurance services unless they have satisfied the CMA’s enrollment requirements and paid the stipulated fees.
Except as permitted in accordance with the terms and conditions issued by the Executive President of the CMA, no insurer may own or operate a health care provider or third-party administrators, and no healthcare provider may own shares in companies licensed to undertake health insurance activities, insurance brokers or agents for health insurance companies, or third-party administrators.
Health insurance providers are required to retain a minimum of forty per cent. (40%) of the net health insurance premiums within Oman.
The Rules also set forth the obligations of the insurers, healthcare providers, and the insured vis-à-vis each other.
Health insurance dispute settlement committee
The Rules provide for a committee to be formed by a decision of the Executive President of the CMA to settle disputes arising from practicing health insurance activities.  The committee will be entitled to consider disputes arising between or among insurance providers, healthcare providers, the insured, third-party administrators and insurance brokers and agents; decide on claims that have been rejected, returned, or deducted by the insurance company; and any other matters which the Executive President deems necessary to bring before the committee.
The committee shall issue its decisions within 30 days from the date of the matter being put before it.  Concerned or interested parties will have the right to appeal against the decision of the committee to the Executive President within 60 days from the date of notification, or the date when the appellant became categorically or undoubtedly aware of the decision.  The appeal must be decided within 30 days from the date of its submission.  The expiry of the said period shall be considered as a rejection of the appeal.
Sanctions
Notwithstanding the sanctions listed under the Insurance Companies Law, the CMA shall be entitled to impose the below sanctions in the event of violation of the Rules:
          Warning.
          Administrative fine of OMR 1000-5000.
          Suspending the licence for a maximum of six months.
          Revocation of licence.
          Cancellation of healthcare service provider enrollment.

Read More...