Monday, May 21, 2018

Subcontracting under Omani Law

Subcontracting is common in the modern construction industry. It would almost certainly be unmanageable for one contractor to deliver a construction project, especially if the project involves a certain level of complexity, without contracting third parties having various expertise and capabilities to carry out specific portions of the works. On the other hand, from the project owner’s perspective, it does seem more desirable to engage one main contractor who remains responsible for all the subcontractors. That being said, it is not surprising that the main players in most construction projects are the project owner (client/employer), the main contractor and subcontractor(s). This interactive chain naturally gives rise to a number of contractual and legal issues.

There are no provisions in Omani law prohibiting the main contractor from subcontracting the whole or part of the works to a third party without the need to obtain a permission from the employer, unless otherwise stipulated in the contract, or if the performance of the works depends on the personal competence of the contractor.

However, in practice, employers tend to have an element of control over the main contractor in subcontracting the works and the selection of subcontractors. The degree of such control varies. The contract may restrict the scope of subcontracting by way of prohibiting subcontracting the whole of the works. This provision is quite common in standard forms of contract: for example, Clause 4.4 of the FIDIC Red Book 1999 states that “[t]he Contractor shall not subcontract the whole of the Works.” The contract may further require the main contractor to obtain the prior consent of the employer or the engineer to engage a proposed subcontractor if that subcontractor is not nominated by the employer. In this respect, it may be advisable in some instances to ensure that the contract contains a provision that “… [s]uch consent shall not be unreasonably delayed or withheld….”

The subcontractor may be nominated by the employer (nominated subcontractor) or selected by the main contractor (domestic subcontractor). In both cases, the subcontract agreement is to be concluded between the main contractor and the subcontractor. Hence, there is no direct contractual relationship between the employer and the subcontractor. As a result: i) the subcontractor is not contractually liable towards the employer for delayed delivery or defective works; and ii) the employer is not contractually liable towards the subcontractor for the payment of its entitlements under the subcontract agreement. These two issues will be dealt with in turn.

Subcontractor’s liability to the employer 

Privity of contract is a well-established doctrine under Omani law. The subcontractor, not being a party to a contract with the employer, it is not under any contractual obligation towards the employer or the subsequent owners under normal circumstances. The construction agreement between the employer and the main contractor may not impose an obligation on the subcontractor unless such obligation is accepted by the latter.

Accordingly, the main contractor remains liable to the employer for the subcontractor’s performance. Even in the case of a nominated subcontractor, the general rule is that the main contractor’s liability remains in place.

To minimise its scope of liability, the main contractor – especially if the contract does not provide for a right to object to nomination – may require the inclusion of an indemnity clause in the main contract whereby the employer indemnifies the main contractor against any damages that may occur as a consequence of the nomination.

Employer’s liability to the subcontractor 

As illustrated above, there is no direct contractual relationship between the employer and the subcontractor. Consequently, the employer is under no obligation whatsoever to the subcontractor.

The subcontractor therefore has no option but to seek the payment of its dues from the main contractor. Practical problems occur when the subcontract agreement contains a “pay-when-paid” clause, which is commonly imposed by main contractors. Pay-when-paid clauses are enforceable under Omani law. The effect of a pay-when-paid clause is that the subcontractor is not able to claim its dues from the main contractor until the latter has been paid by the employer. If the subcontractor brings legal proceedings against the main contractor before the latter has been paid, the court may dismiss the case on the ground of premature filing of the claim.

To reduce the harshness of “pay-when-paid” clauses, the subcontractor may attempt to obtain a direct payment obligation from the employer when negotiating the contract. However, in practice, this is rarely acceptable to employers.

In some cases the subcontractor may argue that the non-payment by the employer is solely attributable to the main contractor’s fault – for example, if the main contractor fails to provide the performance bond as required under the main contract. In other circumstances, the subcontractor may argue that the main contractor is in breach because of its failure to pursue its claim against the employer. In this connection, it may be advisable that the subcontractor tries to agree a contractual clause whereby the main contractor will be under an obligation to pursue its claims against the employer to the greatest possible extent.

Conclusions 

Subcontracting is permissible under Omani law and is prevalent in practice. Standard forms commonly provide for mechanisms restricting the scope of subcontracting. Under Omani law, subcontracting does not create a direct relationship between the employer and the subcontractor. Thus, the main contractor generally remains liable for the timely completion and quality of the subcontracted works. The main contractor may have grounds to defend itself against the liability for nominated subcontractors in particular circumstances. The subcontractor may not claim payments from the employer unless a direct payment obligation exists. Pay-when-paid clauses are commonly used in Oman. However, there are means to limit the effect of such clauses in particular cases.

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Tuesday, May 15, 2018

United States Withdraws from Iran Nuclear Deal and Reinstates Iranian Sanctions

On May 8, 2018, President Trump announced that the United States will withdraw from the Joint Comprehensive Plan of Action (“JCPOA”)1 and impose sweeping sanctions against Iran.  Forthcoming regulations will reinstate the sanctions in existence prior to the implementation of the JCPOA.   These sanctions will become effective on August 7 or November 5, 2018, depending on the type of activity involved.

Background
While the United States has levied sanctions against Iran for decades, it greatly increased its sanctions pressure during the Obama administration.  Congress passed the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 (“CISADA”), the Iran Freedom and Counter-Proliferation Act of 2012 (“IFCA”), and the Iran Threat Reduction and Syria Human Rights Act of 2012 (“ITSR”).  The National Defense Authorization Act for Fiscal Year 2012 (“NDAA”) added additional sanctions to the Iran Sanctions Act of 1996 (“ISA”).  President Obama signed nine separate executive orders implementing Iran sanctions between 2010 and 2013.2
 
These sanctions placed substantial economic pressure on Iran.3   As a result, Iran negotiated with the United States, Russia, China, the United Kingdom, France and Germany (the “P5+1 Group”).4   On July 14, 2015, the parties finalized the agreement that became the JCPOA.5   Under the JCPOA, the P5+1 Group agreed to lift or waive numerous sanctions against Iran.  In exchange, Iran agreed to curtail its nuclear program.6   The International Atomic Energy Agency (“IAEA”) was tasked with confirming that Iran was in compliance with its commitments under the JCPOA.  On January 16, 2016, the IAEA verified Iran’s compliance, and the JCPOA was implemented.7

The JCPOA does not include a clear framework for any party to exit the agreement.8   Yet, given that the JCPOA was not signed by any party, was not ratified by the U.S. Senate, and consists of a series of voluntary commitments, the United States has held that the JCPOA is a non-binding “political commitment.”9 

Operation of Prior U.S. Sanctions 

Prior to the implementation of the JCPOA, the U.S. utilized both primary and secondary sanctions to target Iran.  As a general matter, primary sanctions apply to any “U.S. person,” which is defined in regulations promulgated by the Department of the Treasury's Office of Foreign Assets Control (“OFAC”) as “any United States citizen, permanent resident alien, entity organized under the laws of the United States (including foreign branches), or any person in the United States.”10   The Iran primary sanctions created a sweeping embargo that prohibited U.S. persons from engaging in transactions or dealings directly or indirectly with Iran or its government.11
 
Secondary sanctions apply worldwide, even to persons and entities not subject to U.S. jurisdiction.  Secondary sanctions render every person and entity anywhere in the world subject to U.S. sanctions for engaging in certain activities or transactions with (or for the benefit of) specified individuals or entities, or with (or through) specified countries or regions.  The mechanism by which the U.S. government enforces secondary sanctions is by restricting or excluding a violator’s access to the U.S. economic system.

A principal sanctions tool used by the U.S. government is designation of a targeted individual or entity as a Specially Designated National (“SDN”).  U.S. persons are prohibited from transacting with or for the benefit of any SDN, and must block any property or interest in property in their possession or under their control in which an SDN has an interest.  Prior to the implementation of the JCPOA, the United States had designated hundreds of Iranian individuals and entities as SDNs.

Separately, the United States targeted multiple sectors of the Iranian economy with secondary sanctions, including the financial, energy, insurance, shipping, automotive, precious metals, and industrial metals sectors.  These secondary sanctions evolved over a number of years.  While a detailed discussion of these multifaceted sanctions is beyond the scope of this alert, the following examples from the energy sector illustrate some of the secondary sanctions levied against sectors of the Iranian economy.

The IFCA allowed the United States to “block” — meaning freeze — the assets that are in the United States or in the possession or control of a U.S. person of anyone who “knowingly provides significant financial, material, technological, or other support to, or goods or services in support of any activity or transaction on behalf of or for the benefit of” a “person determined . . . to” (i) “be a part of the energy, shipping, or shipbuilding sectors of Iran” or to “operate a port in Iran.”12   The IFCA also required the President to impose various types of exclusionary and blocking sanctions on any person found to have provided goods or services “used in connection with” the energy sector of Iran.13 

As another example, under Executive Order 13590, non-U.S. persons were subject to various types of exclusionary and blocking sanctions for engaging in transactions with a fair market value of greater than $5,000,000 in a single year “that could significantly contribute to the maintenance or enhancement of Iran’s ability to develop petroleum resources in Iran.”14   The same applied to individuals who engaged in transactions with a fair market value of over $1,000,000 “that could directly and significantly contribute to the maintenance or expansion of Iran’s domestic production of petrochemical products.”15 

Sanctions Lifted Under the JCPOA

On January 16, 2016, the U.S. government began implementing its commitments under the JCPOA.  Those commitments were chiefly focused on easing most secondary sanctions.16   The United States eased these sanctions by taking actions with respect to each of the underlying statutes and orders.  Many of the Obama-era executive orders were revoked.17   The U.S. government waived sanctions under certain programs and committed not to exercise its discretion to impose sanctions under others.18

The primary sanctions were left in place for the most part, but the United States committed to licensing foreign subsidiaries of U.S. entities to do business in Iran.19   OFAC accomplished this through the issuance of General License H (“GL H”).  With certain exceptions, GL H authorized foreign subsidiaries of U.S. companies to transact with Iranian entities, including the Iranian government.20

Finally, the United States agreed to remove numerous specified individuals and entities from the SDN List21,  as well as from other lists of wrongdoers maintained by the U.S. government, namely the list of Foreign Sanctions Evaders (“FSEs”) and the Non-SDN Iran Sanctions Act List.22

Actions Taken on May 8

On May 8, President Trump announced that the U.S. is withdrawing from the JCPOA,  and stated that the United States will implement the “highest level of economic sanctions” against Iran.23   All sanctions in place prior to January 16, 2016 will be reinstated.24   In conjunction with the President’s announcement, OFAC has published Frequently Asked Questions that explain in more detail how and when the sanctions will be reinstated.25 

President Trump did not issue any executive orders on May 8 that would “snap back” the sanctions at once.  To ease the burden of transitioning out of existing engagements with Iran, the U.S. government has provided for a wind-down period of either 90 or 180 days, depending on the type of transaction or sector involved.  The wind-down periods allow activities needed to exit existing relationships and contracts.

Although nothing announced on May 8 would appear, on its face, to prohibit entry into new short-term contracts to be completed within the wind-down period, such actions should be avoided based on strong signals from the U.S. government.  In his May 8 press conference, National Security Advisor John Bolton stated that “the decision that the President signed today puts sanctions back in place that existed at the time of the deal; it puts them in place immediately.  Now, what that means is that within the zone of economics covered by the sanctions, no new contracts are permitted.”26   Moreover, OFAC stated in its FAQs that entry into contracts after May 8, 2018 will be taken into account in any future sanctions determinations.27   While the legal status of this issue is therefore somewhat muddled, the reasonable take-away is that, regardless of whether it is technically prohibited to enter into such contracts, it is ill-advised because, at a minimum, it will be taken into account in any future sanctions determinations.

OFAC has advised that payments for pre-existing debts can be collected by non-U.S., non-Iranian persons after the end of the applicable wind-period, but only for contracts entered into prior to May 8, 2018.  So long as the agreement under which the debt arises existed prior to that date, if moneys are owed for goods or services provided before the end of the wind-down period, non-U.S., non-Iranian persons will be permitted to receive payment after the wind-down period according to the terms of the agreement.28   The same applies for payments related to loans extended prior to the end of the wind-down period under financing agreements entered into prior to May 8.29   These allowances will also be extended to U.S.-owned or -controlled foreign entities under a new general license, which will be issued in the near future.30

Applicable Wind-Down Periods

OFAC has stated that sanctions related to the following activities will be subject to a 180-day wind-down period, ending on November 4, 2018:

  • Sanctions on Iran’s port operators, and shipping and shipbuilding sectors, including on the Islamic Republic of Iran Shipping Lines (IRISL), South Shipping Line Iran, or their affiliates;
  • Sanctions on petroleum-related transactions with, among others, the National Iranian Oil Company (NIOC), Naftiran Intertrade Company (NICO), and National Iranian Tanker Company (NITC), including the purchase of petroleum, petroleum products, or petrochemical products from Iran;
  • Sanctions on transactions by foreign financial institutions with the Central Bank of Iran and designated Iranian financial institutions under Section 1245 of the [NDAA];
  • Sanctions on the provision of specialized financial messaging services to the Central Bank of Iran and Iranian financial institutions described in Section 104(c)(2)(E)(ii) of [CISADA];
  • Sanctions on the provision of underwriting services, insurance, or reinsurance; and
  • Sanctions on Iran’s energy sector.31  

OFAC also announced that it will take two additional steps in November 2018.  First, it will re-designate all those removed from the SDN List and FSE list “no later than November 5, 2018.”32   Second, “OFAC intends to revoke GL H,” and therefore any operations under this general license “must be completed by November 4, 2018.”33

The following activities will be subject to a 90-day wind-down period, ending on August 6, 2018, after which secondary sanctions will be reinstated:

  1. Sanctions on the purchase or acquisition of U.S. dollar banknotes by the Government of Iran;
  2. Sanctions on Iran’s trade in gold or precious metals;
  3. Sanctions on the direct or indirect sale, supply, or transfer to or from Iran of graphite, raw, or semi-finished metals such as aluminum and steel, coal, and software for integrating industrial processes;
  4. Sanctions on significant transactions related to the purchase or sale of Iranian rials, or the maintenance of significant funds or accounts outside the territory of Iran denominated in the Iranian rial;
  5. Sanctions on the purchase, subscription to, or facilitation of the issuance of Iranian sovereign debt; and
  6. Sanctions on Iran’s automotive sector.34 

Finally, the following primary sanctions will also be reinstated as of August 7:

  1. The importation into the United States of Iranian-origin carpets and foodstuffs and certain related financial transactions pursuant to general licenses under the [ITSR];
  2. Activities undertaken pursuant to specific licenses issued in connection with the Statement of Licensing Policy for Activities Related to the Export or Re-export to Iran of Commercial Passenger Aircraft and Related Parts and Services (JCPOA SLP); and
  3. Activities undertaken pursuant to General License I relating to contingent contracts for activities eligible for authorization under the JCPOA SLP.35 

What Non-U.S. Companies Must Start Doing Immediately 

Given the relatively short authorized wind-down periods, non-U.S. companies engaged in transactional or investment activities in, through, or for the benefit of Iran or an Iranian company must immediately assess whether those activities are now, or will soon be, prohibited.  In some cases, the answer will be manifest, while in other cases the answer may require careful analysis of the complex secondary sanctions laws that pre-date the JCPOA.

If an investment or the continued performance of a contract will be prohibited at the end of the applicable wind-down period, the non-Iranian party will need to determine the least costly means of withdrawing from the investment or terminating the contract, whether by exercising a put option, invoking a force majeure clause, or by other means.

The U.S. government is not likely to be sympathetic to anyone who refuses to comply with the sanctions on the grounds that compliance would be too costly or economically detrimental.  Being sanctioned by the U.S. government for non-compliance is likely to be far more costly and detrimental, and could result in complete exclusion from the U.S. economic system.

Individuals and entities should also ensure that they are not engaging in business with any of the entities listed on the SDN or other sanctions lists.  The U.S. government has already started restoring persons and entities to the SDN List, and is expected to continue to do so on an ongoing basis.  It is therefore critical to regularly monitor the SDN and other OFAC lists.  Depending on the specifics, impacted parties may need to block the assets of re-designated individuals and entities.  This requirement will also extend to entities at least 50% owned by designated individuals and entities.36

About Curtis

Curtis, Mallet-Prevost, Colt & Mosle LLP is a leading international law firm.  Headquartered in New York, Curtis has 17 offices in the United States, Latin America, Europe, the Middle East and Asia.  Curtis represents a wide range of clients, including multinational corporations and financial institutions, governments and state-owned companies, money managers, sovereign wealth funds, family-owned businesses, individuals and entrepreneurs.

For more information about Curtis, please visit www.curtis.com.

Attorney advertising.  The material contained in this Client Alert is only a general review of the subjects covered and does not constitute legal advice.  No legal or business decision should be based on its contents.

Please feel free to contact any of the persons listed below if you have any questions on this important development:

Jacques Semmelman, Partner
jsemmelman@curtis.com
New York: +1 212 696 6067

Daniel R. Lenihan, Partner
dlenihan@curtis.com
New York: +1 212 696 6949

Hyuna Yong, Associate
hyong@curtis.com
New York: +1 212 696 6123

Benjamin Woodruff, Associate
bwoodruff@curtis.com
New York: +1 212 696 6034

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Monday, May 14, 2018

Witholding Tax Update

The law relating to withholding tax in Oman was amended in February 2017, extending its applicability to specific categories of income realised in Oman, as explained in an article in the June 2017 edition of the Client Alert (Oman Introduces Withholding Tax for Foreign Investors).

Following the introduction of the new tax law, the tax authorities published a clarification on their website to the effect that withholding tax on services would apply only to services wholly or partly rendered in Oman, and not to services fully rendered from outside Oman.

In March 2018, however, the Oman tax authorities issued a further clarification modifying the original position. The latest clarification stipulates that withholding tax will now apply to income realised in Oman by foreign persons for the provision of services irrespective of where those services were performed.

Accordingly, payments to foreign service providers will be subject to tax deduction at a rate of 10% of the gross amounts due, wherever the services were rendered.

Potential taxpayers should check Oman’s tax treaty network to determine if a more favourable withholding tax position can be adopted. They are also advised to seek appropriate professional advice on the applicability of the withholding tax.

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Monday, May 7, 2018

Drafting Arbitration Clauses - Part III: Choice of Laws and Procedural Rules

Introduction 

When entering into a contract and drafting an arbitration clause there are a number of choice of law issues that parties must consider. Parties commonly include a clause that sets out the substantive law of the agreement, known as the governing law clause. Often the governing law of the contract is not the same law as where the contract is performed or where an arbitration takes place (the seat of the arbitration). This article will outline a number of key considerations related to the selection of law and procedural rules that should be taken into account when entering into a contract.

Governing law 

The governing law refers to the applicable law governing the contract. This is the main choice of law; it will govern the contract and be the law governing the substantive merits of any dispute arising from the contract. Commonly, parties will select a governing law that does not have any connection with the dispute or the parties entering into the contract. For example, parties entering into cross-border contracts frequently select the law of England and Wales as the law governing the contract as the law of England and Wales is perceived as a certain, stable law with reputable and independent courts.

It should also be mentioned that it is not common for parties to agree to a separate choice of law to apply to an arbitration clause which is different from the governing law of the contract. Having a law the governs the arbitration clause that is separate from the main contact is inadvisable as it would only add an unnecessary layer of complexity to an agreement.

Law of seat of the arbitration 

The seat of the arbitration is the physical place, or in other words juridical place, of the arbitration. Often the law of the seat is different from the governing law of the contract. This is noteworthy in a number of respects. First, the law governing the seat of the arbitration will be the procedural law governing the arbitration. Second, the award will be rendered at the seat of the arbitration and therefore the award will have to comply with legal requirements of that jurisdiction. Third and most importantly, if the award needs to be enforced in a foreign country, the country of the seat of the arbitration should be a signatory to the New York Convention (or other applicable convention) to ensure that it can be enforced. Therefore it is critical that the seat of the arbitration is located in a country that is signatory to the New York Convention to ensure that a potential award can be enforced in a multitude of foreign countries.

Applicable arbitral rules (forum selection) 

The applicable arbitration rules are the set of rules that will govern the dispute and the forum in which the dispute resolution procedure will take place. While this is not a choice of law per say, it is extremely important to select an appropriate set of arbitration rules. Typically parties select an institution to administer an arbitration, and each institution will apply its set of rules to the dispute. Therefore, when selecting an institution, parties must be clear as to the forum that they are selecting. In terms of the relationship between any applicable law and applicable rules, the applicable law will take precedence over any conflict with the rules; however, it is unlikely that a conflict between the law and rules will arise.

Practical drafting considerations 

Most of the time when parties choose multiple laws in a contract, for example, a substantive law that differs from the law of the seat, there are no conflict of law issues that arise. When problems do arise that relate to the selection of applicable laws and procedural rules, this occurs because the choices are not clear or contain errors. One common error is when parties select the “law of the United Kingdom” to govern their agreement: there are in fact four separate systems of law in the United Kingdom. Another common problem is parties naming the rules of a non-existent arbitration center to govern the procedure of a dispute. One last pitfall that seems to reoccur when drafting which is worth briefly mentioning is when parties give courts and an arbitration center overlapping concurrent jurisdiction. This is inadvisable as it creates the possibility of parallel proceedings being litigated at the same time. It is preferable to include a single forum when drafting an arbitration clause to avoid overlapping and parallel proceedings.

The types of errors highlighted above lead to unnecessary fighting, wasted time and unnecessary costs, all which can be avoided by clear drafting. When drafting an arbitration clause, always ensure that the clause is clear and carefully worded. When parties are endeavoring to draft a contract which includes an arbitration clause where there is the potential that multiple laws may conflict with one another, the parties should always seek legal advice before entering into the contract.

Click here to read Drafting Arbitration Clauses - Part I
Click here to read Drafting Arbitration Clauses - Part II

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Tuesday, May 1, 2018

Third-Party Funding - Questions and Answers

With the increase in the use of third-party funding (“TPF”) for litigations and arbitrations across the world, Curtis’ lawyers reached out to Harbour Litigation Funding to gain a better understanding of the workings of third-party funding from the perspective of funders. We had a chat with Ruth Stackpool-Moore, Director of Litigation Funding.

Q: When evaluating whether to fund the legal costs of a claim, what are the key considerations that Harbour takes into consideration? 

Having funded claims for over 10 years we have the experience to know that the following factors must be investigated in our initial review:

• the ability of the defendant or the respondent(s) to pay, including consideration of the value of their assets and where they are located – this is of primary importance since success is only success if an award is paid;
• strong legal merits;
• reasonable economics, which we assess by comparing the estimated costs to bring the proceedings, how realistic they are, and what proportion we are being asked to fund with the realistic value of the claim (which will include consideration of the client’s view on reasonable settlement) – we look for a significant gap between the two; and
• the legal team’s experience in the relevant area of law.

It is important to remember that a funder of a claim is taking all of the financial risk. If the claim is unsuccessful, the claimant does not need to repay the legal costs and Harbour’s investment is lost. You can therefore understand why we want to invest in the most experienced lawyers and specialists in the practice area(s) involved.

Q: What do you need to be able to assess the legal merits? 

One of our first questions will be: have you received written legal advice, and from whom? In that written advice we would expect to find answers to questions such as: is the case on liability good? Is there a clear basis to claim damages? How long will the case take to come to trial or final hearing? Is settlement a possibility, and how likely?

We focus on understanding the key issues, formulated by the lawyers who have reviewed the wider documentation.

Q: Is there a minimum claim amount that needs to be met in order to receive funding? 

We do not work on the basis of a minimum claim value for funding but, rather, we assess the overall economics in any particular case. That will involve a review of the funding required, the value of the claim and sensible settlement expectations. At Harbour, you work with an experienced team of dispute lawyers that has been funding for over a decade. It won’t take us long to talk through your case along the lines explained above. If we think Harbour could fund the dispute, we will immediately discuss the next steps. I would recommend that if you think your case would benefit from funding, the best thing is to contact us for a quick chat. After all, each case is unique.

Q: In our introductory article on TPF last year, concerns of an increase in frivolous claims were raised. What is your take on this? 

This is a misconception we hear often, but is simply not true: we don’t back cases unless we believe they will win. If a case is unsuccessful, we lose our investment and therefore it is not in our interest to fund cases that we don’t think will win.

Q: It has also been said that funders aggressively manage the cases they fund, or push for them to go all the way through to hearing or trial, because of the perceived need to deliver a certain return. Is that true? 

This is not the case at all at Harbour. We agree our return upfront with the claimant and do not interfere with strategy as the case progresses. It is the claimant and its legal team that run the case. Settlement should be considered at all times, if it is in the best interest of the claimant. As far as we are concerned, having a case determined at hearing or trial represents uncertainty; settlement does not, and is ultimately appealing to us. Ultimately the decision whether to settle or proceed rests with the claimant and its legal team.

Q: Could you offer some examples of the kinds of disputes you fund? 

Globally we have funded a wide range of commercial litigation such as breach of contract, breach of statute and competition law, IP and patent disputes, insolvency, fraud-related, tort and trust claims. We also fund international arbitration, both commercial and investor-state, under a number of different sets of arbitral rules in a variety of jurisdictions. In geographies such as Australia and the UK, class actions are another category of claims which receive funding. Such claims can include everything from shareholder claims to product defects to environmental issues causing economic loss or personal injury.

Q: What types of activity have you seen in the Middle East market in the last year? 

The team regularly visits the region. For example, in January 2018 one of my colleagues spoke at the World Litigation Forum in Dubai. We regularly receive requests for funding from the Middle East, including Oman, and we have seen interest increase in the last few years. Most of these contacts related to construction claims.

Q: What differentiates Harbour from other funders? 

One of the key differences is experience. Harbour has been funding for a long time and our team is made up of lawyers coming from first-class private practices and senior in-house positions. We are also a truly global funder. We have funded in 13 jurisdictions and under four sets of arbitral rules in relation to most areas of law.

This extensive experience, combined with a large amount of capital immediately available, means that when issues arise - as they do in the unpredictable world of dispute resolution - we have the expertise and the capital to deal with them.

Another significant advantage of working with Harbour, and which is not the same for all funders, is that when the Harbour funds invest in a claim, the entire budget is ring-fenced from day one. Our funds are not leveraged. So not only do we have a large amount of capital, immediately available, but we can also guarantee the full budget throughout the life of the case, offering the claimant peace of mind.

Q: Are there any upcoming developments we should be aware of? 

We see new users and new uses of funding. TPF has moved from financing impecunious claimants otherwise unable to access justice to well-resourced corporates who are interested in the risk management or hedging qualities of third-party funding.

The positive developments in Singapore, Hong Kong and Dubai related to third-party funding have consolidated its global acceptance. Singapore’s Ministry of Law recently launched a public consultation to seek feedback on the third-party framework they introduced in early 2017 to understand how the system has been received and whether or not its expansion beyond arbitration should be considered, and Hong Kong is expected to clear the final hurdle, implementation of its code of conduct, in Q3 2018.

From Harbour’s own point of view, we launched our fourth fund, with £350 million of additional capital, in March 2018 bringing our total funds raised to £760 million. This new fund gives Harbour even greater flexibility in relation to the cases it can fund, as we are able to address every type of dispute funding from seed money for investigations, single case or portfolio funding to support for even the largest class action and single case budgets.

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Monday, April 23, 2018

Assignment as a Form of Security under Omani Law

Introduction 
There are a number of different ways in which lenders in Oman can take security over a borrower’s assets so as to help ensure repayment of a loan. These include mortgages over land, commercial mortgages, pledges over shares or bank accounts, and various different types of assignment. Lenders should be aware, however, of the restrictions under Oman law that might affect the nature and enforceability of the available forms of security.

Assignment of rights under Oman law 
Neither the assignment of rights nor the assignment of debts (or obligations) had been expressly regulated in Oman until the introduction of the Civil Transactions Law by Sultani Decree 29/2013 (the “Code”). The Code now has provisions governing the assignment of debts, but it still does not address the assignment of rights directly, nor does it set out the requirements for such an assignment. 

While the requirements for the assignment of debts are clear under the Code, care must be taken when attempting to assign rights by way of security - and special caution is required when considering the creation of security by way of a purported conditional assignment.

In practice, the assignment of contractual rights is recognised in Oman - based on current commercial custom and comparative law - subject to the terms and conditions of an assignment agreement entered into between the assignor and the assignee, and provided the assignor notifies the debtor of the assignment.

As assignee, the lender should, as a matter of best practice, obtain from the debtor an acknowledgement of the assignment in order to perfect the assignment as a contractual arrangement. 

Lenders should note that Oman law does not recognise an assignment as true security, so the assignment need not, indeed cannot, be registered. Accordingly, an assignment of rights will not give a creditor security that can be enforced against other creditors. The assignment is only enforceable against the assignor in contract, and the assignee will rank only as an unsecured creditor in the event of the assignor’s bankruptcy.

Conditional assignment 
Under Oman law an assignment must be absolute. Full legal ownership is transferred to the assignee on the effective date of the assignment. A conditional assignment - whereby the secured asset would be transferred to the creditor only in the event of a default by the assignor - might be respected as between the contracting parties, but would be unenforceable against third parties in the event the condition, i.e., default on the obligation secured by the assignment, had not yet been fulfilled. 

Lenders should beware the possibility that, in such circumstances, there is at least a theoretical risk that the Oman courts could consider a conditional assignment agreement to be void, notwithstanding the intention of the parties, because its effect would be to transfer title to the secured asset to the creditor before the debt is due to be repaid.

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Monday, April 16, 2018

Oman and the Law of the Sea: Part III

In October 2017, the Sultanate of Oman submitted a formal application to the United Nations to extend its continental shelf. The first and second articles in this three-part series outlined the framework of the international Law of the Sea as relevant to Oman and the international legal process involved when a country seeks to expand its marine territory. This third and final article in the series will explore the dynamics behind and potential benefits arising from Oman’s recent application. 

While Oman’s formal submission marked only the beginning of the process of review and determination by the United Nations Commission on the Limits of the Continental Shelf (the “Commission”), the submission was the culmination of a decade-long process of exploration and research by Oman into the possibilities of extending its continental shelf, which requires a detailed science-based submission to be compiled and then presented to the United Nations demonstrating the link between Oman’s landmass and its offshore continental shelf area beyond 200 nautical miles from its coastline.

In 2008, Oman formed its Continental Shelf Boundaries Extension Committee (the “Committee”) following a decision of the Council of Ministers to prioritise the issue. The multidisciplinary Committee spearheaded the application to the Commission and received support from many institutions in Oman, including the Ministries of Foreign Affairs, Defence, Oil and Gas, Commerce and Industry, Legal Affairs, Agriculture and Fisheries, the Interior, Environment and Climate Affairs, Transport and Communication, the Royal Oman Police, the Royal Oman Navy, and Sultan Qaboos University, among others.

In 2013, Oman signed a consultancy and supervision services contract with New Zealand-based hydrocarbons research and exploration company GNS Science. In 2015, Oman awarded a contract to Singapore-based joint venture Gardline CGG to facilitate a marine geotechnical survey which consisted of three technical phases: bathymetry, gravity, and magnetic data acquisition; detailed bathymetry and sub-bottom profiling; and deep water rock dredging. The survey formed the basis of the technical data gathered to inform Oman’s application to the Commission.

While applications to the Commission are incredibly technical and extensive, an Executive Summary of Oman’s application may be viewed on the Commission’s website. The Executive Summary discussed what it terms the “Owen Terrace,” the area of continental shelf comprising the subject matter of the application. The Executive Summary describes the Owen Terrace as being composed of continental crust and rocks that are “by nature and origin the same as those of the landmass of Oman,” but importantly are distinct from the materials found on the deep ocean floor and in the nearby Gulf of Aden.

It is probable that Oman’s investment into the extension of its continental shelf will prove worthwhile. In 2014, after being invited by Oman’s Ministry of Oil and Gas to test within offshore oil and gas exploration blocks, Masirah Oil Limited announced the first offshore oil discovery in the east of Oman after more than three decades of exploration activities. The discovery of the presence of oil off the eastern seaboard has lifted hopes for new hydrocarbon finds in Oman’s largely unexplored offshore domain, which stands to be further enlarged if Oman’s application to the Commission succeeds.

While the timeline of the determination of Oman’s application to the Commission remains unclear, a successful submission would greatly benefit Oman as it would allow the Sultanate to exercise exclusive rights over a large area of seabed in the northern Arabian Sea, including the right to explore for and claim oil and gas and other non-living resources.

Click here to read Oman and the Law of the Sea: Part I
Click here to read Oman and the Law of the Sea: Part II

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Monday, April 9, 2018

Know your Business Partners - Part I: Basic Due Diligence Tips

Due diligence, in the legal context, means research and analysis of a company or organisation done in preparation for a business transaction. It normally involves data rooms and complex documents to be analysed and interpreted by a variety of professional consultants to establish assets and liabilities and evaluate the commercial potential of the business.

A full due diligence is a time-consuming and expensive undertaking, usually reserved to major business transactions and not of practical use in the day-to-day business of a company. Nonetheless, in a simpler form, some research and analysis should be part of every company’s process whenever it is considering a new business partner, a new agent or any third party with which it looks to contract. A basic level of information can avoid a number of unpleasant surprises but companies, more often than not, neglect this simple task entirely.

Modern technology enables remote access to public records all over the world and this opportunity should be taken advantage of. In this article we will look at what information can and should be gathered by a foreign company considering doing business with an Omani company. A second article will focus on what information can and should be gathered by an Omani company with respect to a potential foreign business partner.

1. Ministry of Commerce and Industry (“MOCI”) 
All Omani legal entities have a unique identification number, the Commercial Registration (“CR”) number. This number may be found in the company’s letterhead, in the company seal and sometimes on the website. If you have the CR number, you can gather basic information about the entity by using the “Search Commercial Registration” section on the MOCI website (business.gov.om). If you don’t have the CR number, you may attempt a search of the entity’s name, bearing in mind that some Omani entities are registered only under their Arabic name and therefore the English name may not return results.

This search will provide basic details, including the form of legal entity, the registration date, the branches/offices of the entity and their locations and the registered activities. It will also show if the entity is “active” or “in liquidation.” The registered activities are identified by the relevant ISIC Codes i.e., the numeric codes set out in International Standard Industrial Classification of all Economic Activities, the international reference classification of productive activities. To verify what the relevant ISIC Codes correspond to and what activities the Omani company is actually authorised to carry out, the same website (business.gov.om) includes a searchable database of the ISIC Codes under Services → Find Business Information → Business Activities List (ISIC).

The information so gathered will provide a preliminary overview of the company’s experience, the existence of offices/shops in various locations, and the business activities the company is licensed to carry out. Further information, including the share capital, the names of the partners and the names of the authorised signatories are set out in the entity’s CR Certificate, which can be obtained from the MOCI. As online access from abroad is difficult, the Omani entity directly or, if preferable, another locally established contact person may be asked to procure a copy of the Certificate.

2. Muscat Securities Market (“MSM”) 
Omani companies are generally not required to publish their financial statements. An exception to this general rule relates to listed joint stock companies, locally identified by the acronym SAOG (the full company name will be “Company XYZ SAOG”). If you are considering contracting with a “SAOG,” the MSM website will provide a wealth of information, including mandatory disclosures, composition of the board and financial statements. Through the search box of msm.gov.om you will find the company’s dedicated page, where you can browse the “News” section and the “Financial Reports” section.

3. Tender Board 
If you are interested in business opportunities involving government contracts, it is recommended that you make yourself familiar with the rules applicable to public tendering in Oman. To simplify, the Omani government and its entities may issue international or local tenders. International tenders, usually for either massive projects or highly specialised contracts, are open to foreign companies regardless of the presence of an entity registered in Oman. Conversely, local tenders are reserved to companies incorporated in Oman and registered with the Oman Tender Board. If your proposed Omani partner is being selected with a view to participating together in government tenders, you should check if such partner is actually registered with the Tender Board and, if so, for which activities and with what grade. This will ensure that the partner will actually be able to purchase the tender documents and participate in the tender, usually with your company as joint venture partner or sub-contractor. Contractors, for example, may be classified in descending order from Excellent Grade to Fourth Grade; only Excellent Grade companies have access to all tenders.

The website etendering.tenderboard.gov.om publishes a list of the registered companies. It also publishes and updates a list of tenders.

4. OPAL If your interest is in the Oil & Gas sector, you may consider checking whether your proposed business partner is a member of OPAL, the Oman Society for Petroleum Services, which has, among its members, the most reputable companies of the sector. Please note that membership in OPAL is required in order to be awarded certain projects; therefore, it is useful to know whether your local partner is a member. A members’ list is available at opaloman.org. In the same sector, one should ascertain that all applicable procedures in respect of the Oil & Gas Joint Supplier Registration System are complied with (more information on this can be found on businessgateways.com).

As part of the ongoing e-government initiative, all websites mentioned in this article have an English version and are rather modern and user-friendly. Still, always allow for spelling issues (names are often transliterated between English and Arabic with variable results) and provide for assistance as some documents, such as CR Certificates, are not entirely translated into English.

Finally, from the very beginning of negotiations with a potential local partner, if you cannot find the information you need or some of your findings raise questions, do not be afraid to ask questions!

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Monday, April 2, 2018

Drafting Arbitration Clauses - Part II: Ad Hoc or Administered Arbitration

Introduction 
When drafting an arbitration clause, the choice of “ad hoc” or “administered” arbitration (also known as institutional arbitration) is a critical issue that parties should consider. Both ad hoc and administered arbitrations have their own advantages. This article will outline some of the key characteristics of each of them.

Ad hoc 
Ad hoc arbitration is an arbitration framework that is defined by the agreement between the parties (subject to the law of the place of the arbitration). Ad hoc arbitration is more flexible than administered arbitration as the arbitral framework is based on party autonomy rather than institutional rules. Ad hoc arbitration is also less expensive than institutional arbitration as there is no institution to which fees need to be paid, which is a major reason many people opt for ad hoc arbitration. In ad hoc arbitration the parties must agree on all facets of the arbitral framework that are otherwise provided for under institutional arbitration, including tribunal fees and procedural deadlines.

When parties agree to ad hoc arbitration, they often also agree to a certain set of arbitral rules that will apply and can be used as guidance for the framework for the arbitration, but this is not always the case. When the parties do not agree to a set of arbitral rules to govern the procedure or the parties agree to a set of rules that does not address a particular aspect of an arbitration, the law of the seat of arbitration (the legal jurisdiction to which the arbitration is tied) will be used in conjunction with the agreement of the parties. For example, in Oman if parties fail to agree on an arbitrator, the statutory appointing authority is the Oman courts. Much can be said for the flexibility and party autonomy to define the procedural framework of each arbitration.

Administered arbitration
Administered arbitrations are arbitrations that are administered by an arbitration centre. Arbitration centres play a number of roles when administering arbitrations and offer various services to the parties aimed at providing efficiency to the arbitral process. Each arbitration centre has its own set of rules that guide the arbitral procedure. Each centre has a secretariat in place to assist with administrative and logistical tasks, as well as a body which deals with high-level issues such as challenges to the appointment of arbitrators when parties cannot agree on who will be appointed. 

Most sets of arbitral rules provide a fee scale or other mechanism setting out how much tribunals are to be paid.** Often, the fixed fees for arbitrators are calculated based on the amount in dispute. These fees can be advantageous to parties in terms of the certainty of the costs of arbitration. Similarly, ad hoc arbitrations in Oman are often based on fixed fees.

Another important role that the arbitration centres fulfil is the mechanism for collection of fees for arbitrators. At various stages throughout the arbitration, a centre will ask the parties for advances on arbitrator fees that are held in escrow and paid to the arbitrators. Collecting these fees removes the burdensome administrative task of collecting and holding funds from the jurisdiction of the arbitrators in an ad hoc arbitration.

Another major advantage of administered arbitration is the scrutiny of arbitral awards, which is a service provided by some arbitration centres including the International Chamber of Commerce and the Singapore International Arbitration Centre. Following the tribunal issuing its award, the secretariat of the arbitration centre will review the award for any major errors. This is done for various reasons including quality control and to ensure that an award is not set aside. While this may seem to be a minor feature that is provided by an arbitration centre, it drastically reduces the likelihood that an award will be unenforceable.

Further considerations 
One of the most significant factors parties ought to consider when deciding whether to opt for ad hoc or administered arbitration is the degree of supervision that may be required over the arbitration. 

While ad hoc arbitration provides for a greater degree of party autonomy and flexibility, this can also lead to a higher risk of the arbitration proceedings getting derailed by a party that does not want to participate in the proceedings. For example, in institutional arbitration, if a party is engaging in dilatory tactics the arbitration centre in its supervisory capacity will be able to step in and ensure that the arbitration stays on track. This does not always hold true in ad hoc arbitration. It can be said that administered arbitration follows a tried and tested framework while ad hoc arbitration is based on flexibility, and relies to a greater degree on party consent. In most cases administered arbitration is preferred over ad hoc arbitration.

In Oman both ad hoc and institutional arbitration are used. Given the significant differences between the two, parties should carefully consider whether to choose ad hoc or administered arbitration when drafting their arbitration clauses, having regard to each contract’s circumstances and nature.

**The London Court of International Arbitration Rules use hourly rates, and under the Hong Kong International Arbitration Center Rules parties can opt for hourly rates or fixed fees.

Click here to read Drafting Arbitration Clauses - Part I

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Monday, March 26, 2018

New Register for Overseas Companies Owning UK Property or Bidding for UK Government Contracts

The UK government is to establish a register to show the true beneficial ownership of overseas companies that own, or propose to own, UK property in order to bolster the reputation and integrity of the UK property market. The register will be the first of its kind in the world and will require overseas companies that own or buy property in the UK, or who wish to participate in UK government procurement, to provide details of their ultimate owners.

Generally speaking, these include shareholders with more than 25% of the shares or voting rights in a corporate entity; or individuals, such as directors or managers, who otherwise exercise significant influence or control over the entity.

The UK has already taken major steps to increase corporate transparency, with the introduction of the “people with significant control” (PSC) register, a public register of those who control UK companies. Now UK property is being brought into play in the battle against money laundering. It is hoped that the register will minimise opportunities for criminals to use anonymous shell companies to launder criminal proceeds via UK properties, and will make it easier for law enforcement agencies to track illegal funds.

The new register will apply to both existing and future property ownership, and to freehold and leasehold properties of more than 21 years. Overseas entities that have not been registered will not be able to charge or grant, let alone buy or sell, a long lease of UK property. Entities that already own UK property when the legislation comes into effect will be given a year to comply with its requirements, or to sell if they do not want to do so. At the end of the year, any such entities will be prevented from selling their property or from creating a long lease or charge if they have not registered, and a restriction will be put on the title accordingly.

Further, overseas entities which have not provided information about their beneficial owners to the UK’s Companies House will not be able to bid for UK government contracts. Bids for UK government contracts by overseas entities which fail to include information on the bidder’s beneficial ownership will be excluded and, if received, will be rejected as incomplete or non-compliant.

The proposals are also intended to apply across the UK, in England, Scotland, Wales and Northern Ireland. While Scotland has set forth similar proposals separately, the UK government indicates that it will work with the devolved administrations as the proposals develop.

The new register will be held by Companies House. Once registered, overseas entities will be given a registration number. The Land Registry will not register the title of an overseas company without a valid registration number. Anyone will be able to check the register free of charge.

The government has committed to publishing a draft bill this summer and introducing it in Parliament by next summer.

This will be a significant consideration for overseas companies investing in UK property or bidding for UK government contracts, so that the registration process does not end up causing delay, or preventing a purchase from being registered. Evidence of registration will need to be sought early on, and before the exchange of contracts.

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