Regulatory Framework for Virtual Assets

 As Oman’s financial market regulator, the Capital Market Authority (CMA) plays an important role in ensuring the stability of the country’s financial system. With the rise in popularity of virtual assets such as cryptocurrencies, the CMA has indicated its intention to establish a regulatory framework to address the unique risks and challenges presented by these new types of assets. 

Establishing a regulatory framework for the virtual asset industry in Oman will likely provide greater clarity and certainty for investors and businesses operating in this space, and help prevent any fraudulent or illicit activities. The CMA’s efforts to regulate this industry will also likely attract more investment and promote innovation in the virtual asset sector. 

Under the proposed framework, virtual asset service providers will be required to: 

• obtain a license from the Central Bank of Oman, 
• comply with anti-money laundering and counter-terrorism regulations, 
• implement robust security measures, and 
• maintain adequate levels of capital and insurance. 

The proposed regulatory framework also includes provisions for investor protection, market integrity, and transparency, such as requirements for disclosure of information, fair treatment of investors, and measures to prevent market manipulation. 

Overall, the establishment of a regulatory framework for virtual assets in Oman is a positive development. The framework will be welcomed by both investors and the sector if it strikes a balance between protecting investors, and ensuring the continued growth and development of this important and rapidly evolving industry, while also protecting the integrity of the financial system.

Read More...

In the Pipeline: New Labour Law Moving Closer to Enactment

The eagerly anticipated replacement for the current Labour Law, RD 35/2003 (enacted in 2003), is progressing closer to enactment. In early March 2023, the Majlis A’Shura completed its review of the law and submitted proposed amendments and additions to some articles of the draft law. The draft Labour Law is now with the State Council to be further considered and progressed. Curtis will keep its clients updated and provide a full summary and analysis of the new law once it comes into force.

Read More...

Arbitration Time Limits

Some well-known standard construction contracts used in Oman contain strict time limits on the process of taking a dispute to arbitration.  In addition, there are time limits prescribed by Omani law regarding the commencement and duration of an arbitration.  This article sets out issues regarding these additional time limits.

An English translation of Article 45 of the Law attached to Royal Decree 47/1997 (often referred to as the Oman Arbitration Law) provides:

1. The arbitration board shall have to pass the final award in respect of the dispute within the time period agreed upon by the parties.  In the absence of any agreement, the award shall be required to be passed within 12 months effective from the date of commencement of the arbitration proceedings.  In all circumstances, the arbitration board may decide to extend the period of the proceedings for a further period.  However such extension shall not exceed six months, unless the parties agree to a period beyond six months.
2. In the event, the arbitration award has not been passed within the period referred to in the preceding paragraph, either party to the arbitration may request the President of the Commercial Court to pass orders prescribing an additional period or have the arbitration proceedings brought to an end.  In such a case, either party may file his claims before the competent Court.

Note that:

1. Unless the period is extended in some way, the arbitral tribunal has only 12 months to issue an award;
2. The tribunal itself may grant itself an extension of six months (i.e., extending the 12 months to 18 months);
3. The parties may agree to any further extension; and
4. The President of the Commercial Court may grant a further extension, on the application of one party.

It is also worthwhile to note that potentially the Commercial Court may extend the time for arbitration, even after the time has expired.  So, all is not necessarily lost if the tribunal fails to issue an award in time but, if you are in such a situation, you should urgently seek legal advice. 

12 months, or even 18 months, is a short period for any arbitration of any complexity, so often parties agree to an extension, remind the tribunal to extend, or are ready to go to Court to get the extension if need be.  Past experience suggests that the Court will tend to give an extension of six months, but naturally this depends on the case, the reasons for the delay, and so forth.

Of particular note for those unfamiliar with arbitration in Oman is Article 27.  Article 27 (English translation) of the Oman Arbitration Law provides:

The arbitration proceedings shall commence on the day on which the defendant receives from the plaintiff the application for arbitration unless both the parties agree upon some other date.

Usually, the defendant is notified when they receive a document typically titled “Request for Arbitration” or “Notice of Arbitration.”  Bear in mind that at this stage the tribunal members have usually not been selected.  The appointment of the tribunal often takes months, and this will eat into the 12-month period.  For this reason, in Oman, it is often agreed in writing between the parties that the commencement date for the arbitration is a later date (such as the date of the first hearing or meeting with the tribunal).  Alternatively, a longer extension for the issuance of an award is agreed to compensate.

These procedural issues are all manageable, providing you receive advice from those experienced in handling them.  However, they cannot be ignored, and you should be aware of the need to quickly and diligently proceed with any arbitration.

Read More...

Dispute Resolution Provisions and Staged Processes – Issues to Consider

When agreeing to the terms of a contract at the outset of a relationship, parties sometimes include explicit contractual provisions setting out steps that must be complied with should a dispute arise.  Parties may choose to adopt a staged approach such as including service of a notice of dispute, an initial meeting of the parties or directors of those entities to engage in negotiations, formal mediation between the parties, and a period that should be allowed before a dispute can be referred to either the court or arbitration.  Contractual provisions of that nature are known as dispute escalation clauses and are commonly seen in long-term agreements such as construction contracts.  A failure by one party to comply with the exact process prescribed may give rise to arguments that the court or tribunal lacks jurisdiction to hear the dispute.

At the time of drafting such a clause, it is, therefore, important to consider the impact a dispute escalation clause may have later in the relationship should a dispute arise, and whether the contractual provisions accurately reflect the intention of the parties.

When enforcing a dispute escalation clause such factors to consider include whether the clause makes clear what steps must be taken by the parties, and that those steps are mandatory.  When drafting this type of clause, it is therefore crucial to ensure that each step is clearly defined and there is no ambiguity as to the time period for completion of each step.  To avoid potential deadlocks, it is essential to specify clear deadlines if parties are required to complete each step before moving on to the next, e.g., 30 days for a meeting of directors, 30 days for negotiation to take place thereafter, and 60 days for a mediation to take place.  Regarding mediation in Oman-related disputes, it is important as well to consider whether to include any such provisions requiring parties to enter into a mediation, given the absence in Oman of the concept of “without prejudice” negotiations in a mediation. 

Another issue to consider is whether such dispute contains all issues as currently between the parties.  For example, if new issues and disputes arise between the parties during the course of the dispute resolution process, consideration should be given whether the new disputes form part of the current dispute or are separate, and whether a party needs to revert to the beginning of the dispute resolution process in order to comply with the dispute escalation provisions as agreed between the parties. 

Failure to comply with the requirements

So, what is the effect of failing to meet the established pre-arbitral requirements?  Failure to comply with dispute escalation provisions could result in a party facing a preliminary issue or jurisdiction challenges in an arbitration.  Although a number of International Institutional Arbitration Center Rules (LCIA Rules 2020, DIAC Rules 2022, ICC Rules 2021) give a tribunal the power to rule on its own jurisdiction, a tribunal may nonetheless be reluctant to accept jurisdiction on the basis that the pre-arbitral stages in a dispute resolution procedure have not been complied with. 

The New York Convention is important in the context of enforcement.  Articles II.1 and II.3 provide that where there is an agreement in writing to submit a dispute to arbitration, and unless that agreement is null and void, inoperable or incapable of being performed, the court of a Contracting State shall recognise an arbitration agreement between the parties and, at the request of a party, refer the dispute to arbitration.  Parties should therefore be mindful not to render the agreement “inoperable” on the basis that pre-arbitral stages in a dispute resolution procedure have not been complied with.

In summary, when agreeing to the terms of a contract at the outset of a relationship, parties should be mindful of the requirements and dispute escalation provisions as agreed in a dispute resolution clause in a contract.  If a dispute arises between the parties, a party should also be mindful of accurately and fully complying with the escalation provisions as set out in the dispute resolution clause so as to avoid any potential issues and challenges to jurisdiction arising in any subsequent arbitration.

Read More...

Curtis Delivers More Firsts for the Government of Oman in its Defence Against U.S. Trade Measures

On 16 August 2022, the U.S. Department of Commerce issued its final determination in its countervailing duty (“CVD”) investigation of steel nails from the Sultanate of Oman. A Curtis team led by partner Matt McCullough helped secure a favourable final result for the Government of the Sultanate of Oman (“GSO”), including a first-ever finding by the Commerce Department in an Oman CVD case that the provision of electricity conferred no subsidy benefit on the company respondent.

Relying on a team drawn from Washington, D.C., Paris and Geneva, and on the ground in its Muscat office, Curtis delivered a victory for the GSO, with the final CVD margin for the lone Omani company respondent, Oman Fasteners, set at just 2.49%. The low margin will help Oman to retain its competitive edge. This result follows two earlier Curtis wins for the GSO. A year ago, the same Curtis team secured a huge victory for the GSO in a case involving aluminum foil, in which the GSO successfully beat back allegations of government-directed lending to the respondent in that case. In 2016, another Curtis team also led by partner Matt McCullough delivered a de minimis CVD outcome, resulting in no CVD order on exports of PET resin from Oman.

“We are proud of what we have achieved for the GSO,” said partner Matt McCullough. “These are complex cases and the U.S. Department of Commerce investigation process requires careful attention under incredibly tight deadlines. I firmly believe that no other firm can deliver both the expertise and the commitment that Curtis brings to the table in Oman and elsewhere.” McCullough was recently identified in Legal 500 USA as regarded by many to be “the top countervailing duty lawyer in DC.”

The result “reflects Curtis’ position as market-leading counsel to sovereign clients in complex disputes,” said Muscat Managing Partner Simon Ward. “Our platform delivers high-level substantive experience, a deep understanding of the GCC region, and a committed team of experienced lawyers that can be called upon across our numerous global offices,” Ward added.

Mr. McCullough’s team included Geneva and Paris associates Arthad Kurlekar and Amrane Medjani, as well as Muscat associate Budoor Al Zadjali. Muscat partners Simon Ward and Mehdi Al Lawati were also instrumental in the defence.

Read More...

Restarting Suspended Construction Projects – A Quick Guide to Preventing Disputes

It is common for employers and contractors to fall into dispute over suspended projects and their recommencement, particularly in regards to time and costs, changes in design and scope of works. With many projects that were stalled during the Covid pandemic, and the period of lower oil prices, now being restarted, Curtis provides an overview of the key issues to consider together with the main causes of disputes and how to successfully navigate restarting suspended projects.

Pre-Suspension Losses

Contractors should consider what losses they may have incurred prior to a project being suspended. It is very common that, prior to receiving an instruction to suspend works, the employer will have slowed the contractor down in their works which will have caused a loss in productivity. A contractor should consider whether a claim for prolongation or disruption exists prior to suspension.

To establish disruption, a contractor would be required to undertake a review of its productivity in carrying out the works over the schedule in order to determine when lower productivity occurred and what work activities were impacted. It is likely expert analysis will be required to determine the loss of productivity arising out of the disruption events, and the resulting financial loss. As always, good records are essential. 

Suspension

• Costs incurred protecting the works against any deterioration, loss or damage. 
• Downtime/standing time of plant/equipment and labour. 
• Depreciation of equipment. 
• Prolongation costs – staff, insurance, bonds, extended warranties, accommodation, storage facilities. 
• Making good unavoidable deterioration of the works. 
• Loss of revenue. 
• Interest. 
• Other general damages suffered.

Extension of Time

A contractor should be careful to document the employer’s suspension of the works, and carefully maintain project documentation/evidence in order to support any claim for extension of time. It is almost certain that any claim for extension of time will need to be supported by a delay analysis, and therefore a contractor should collect and preserve evidence of progress and instructions to suspend work. This evidence will be critical to support a delay analysis. A contractor should ensure that the following are carefully maintained during execution of the works, and carefully stored and controlled during suspension: 

• Minutes of meetings. 
• Site inspection records. 
• Daily, weekly and monthly reports. 
• Schedules/programs. 
• Design documents. 
• Equipment logs. 
• Photographs of progress and key milestones.

Such documentation will be essential to undertake a helpful analysis examining the status of the works and the critical path prior to any slow down or disruption prior to suspension.

Project Restart – Practical Considerations and Costs

Key issues that a contractor should examine and consider prior to restarting suspended project works:

• Is there an agreed and documented procedure for restarting? 
• Is the design still correct and/or viable? 
• Is the existing project execution plan still workable? 
• What project documentation/records are still in place? 
• Is it possible to jointly agree a condition survey with the employer? 
• Can variations be agreed prior to recommencement? 
• How are the project restart works priced? 
• Is timing, sequence and quantity agreed? 
• What is the basis of pricing the restart works? 

Some cost considerations to be considered before restarting the project:

• What is the impact of suspension/restart on the project’s material costs? 
• Has there been any impact by inflation, escalation, commodity prices, availability of material? 
• Have suppliers changed during the suspension period and, if so, does this impact time or cost? 
• Is it necessary to revisit BOQs and rates/prices? 
• Will there be a need to replace already installed material? There have been significant increases in prices during 2020-2022 of concrete, steel, cabling, timber. This should be factored in and agreed before restarting works.

Impact on Personnel and Rate of Progress

A review should be undertaken to consider what, if any, changes in personnel have occurred. Changes in personnel can result in a decrease of rates of progress and efficiency, due to loss of project and site knowledge. Any such losses should be taken into account and provided for. Some issues to consider:

• Have there been any regulatory or procedural changes during the period of suspension that have increased costs during remobilization? 
• Any changes in regulation also may impact pricing if specified materials have changed or are no longer available due to supply chain restrictions, sanctions, or availability of materials produced overseas. 
• Are subcontractors still available? 
• Has the introduction of VAT had any impact on costs? 

Key Takeaways

Prior to restarting a suspended project, both parties should give serious thought to the issues above, and be realistic and aligned: the original project schedule will unlikely still be suitable for the project. At a minimum, the parties need to undertake a review of the schedule, consider prolongation costs, and reconfirm the scope of works. The parties need to work together if restarting a suspended project is going to move successfully towards completion without disputes arising. 

Read More...

Sanctions Update - EU Sanctions

 Across the EU, almost every aspect of enforcement of sanctions varies from member state to member state. The EU publishes regulations, but then it is up to each member state to implement those into domestic law. The EU’s regulations do not deal with most aspects of enforcement; penalties, limitation periods, defences, ancillary offences, even the necessary mental element for the offence are all left to the domestic law of each member state. Indeed, in some member states the breaching of sanctions is not even a criminal offence, while in others the prosecution can choose between criminal or administrative enforcement.

The result is a legal patchwork across the EU. To address this,on 25 May 2022 the EU Commission issued a proposal that would add sanctions to the list of so-called “EU crimes.” The effect of this would be to place sanctions on the same level as crimes such as money laundering and mean that the EU itself could legislate via directives.

The European Parliament, the Council and the Commission are involved in the legislative process to adopt this proposal. In the coming weeks it is expected that the various required steps will be taken, and likely follow the Commission’s far-reaching proposals to bring about a fundamental change to almost every aspect of the enforcement of EU sanctions including:

• Reporting obligations. 
• Adding the violation of Union restrictive measures to the areas of crime. 
• Directive on criminal penalties for the violation of Union restrictive measures. 
• Requirement to supply immediately any information which would facilitate compliance with this regulation, such as information on accounts and amounts frozen. 
• Create new failure to report offences for (amongst others) not reporting a sanctions breach, or not reporting activities that seek to circumvent sanctions. This would align the EU with the position in the UK where, since 2017, there has been a positive reporting obligation in relation to breaches of sanctions, and since Brexit a wider reporting obligation in relation to frozen assets and to entities owned or controlled by a designated person. 
• Offences for Legal Persons - The Commission’s proposal also includes wholly new criminal offences for legal persons which would significantly expand the exposure for companies and other businesses. The proposal appears to be designed to address issues of criminal attribution to companies. If implemented, it could create a “failure to prevent” offence. A company would commit this offence if, through a lack of supervision or control by those in leading positions within the company, an offence was committed by others. 
• Penalties and Sentencing Powers - The proposal would also mean the imposition of standardised penalties, and the adoption of a broad range of significant sentencing powers; penalties could potentially be calculated as an unspecified percentage of worldwide turnover in the previous financial year. More wide-ranging still are some of the proposed non-monetary penalties which range from the winding-up or liquidation of the defendant, through the temporary or permanent closure of local subsidiaries or branches that were involved in the commission of the particular offence, to the temporary or permanent disqualification from continuing a business line involved in the offence, and public procurement and public funding debarment.
• Limitation Periods - The Commission’s proposal seeks to standardise the limitation periods for the commencement of a prosecution and for the enforcement of penalties.
• Jurisdiction - The proposal would also see a significant expansion of the jurisdictional reach of the EU’s sanctions, as well as giving to member states the option to expand their jurisdiction yet further. Currently EU sanctions regulations apply to a non-EU business “in respect of” any part of that business done within the EU. Under the proposal, member states would be “required to extend their criminal jurisdiction to non-EU persons outside EU territory insofar as their business has an EU nexus (which may, by extension, also concern their assets).” This would mean that an Omani company could be prosecuted for breaches of EU sanctions committed say, in Thailand, if the Omani company has assets in the EU. This would be a significant change. Moreover, the proposal also states that criminal jurisdiction could be exercised if an offence was committed “in whole or in part” within the EU. Again, this would be a significant extension of EU jurisdiction where despite some part of the offence being committed outside the EU, the member state would still have jurisdiction. The proposal would also allow member states to further expand their criminal jurisdiction over offences committed globally by those habitually resident in a member state (as opposed to the current rules which are limited to nationals), as well as over offences committed globally for the benefit of an EU legal person.
• Asset Confiscation - The EU proposal also seeks to ensure that asset seizure powers are more readily available for sanctions breaches. The Commission’s proposal seeks to achieve this by use of the existing confiscation and civil recovery powers under the relevant anti-money laundering legislation, with any funds obtained or retained through sanctions breaches being “criminal property.” In addition, however, the Commission has put forward a proposal for a separate directive on asset recovery and confiscation.

Conclusions

The proposal, if adopted, represents a complete overhaul and reform of the legal basis for the criminal enforcement of sanctions across the EU. There is no doubt that this is timed in response to, and as part of, the unprecedented range and number of restrictive measures imposed against Russia and, to a lesser extent, Belarus. Curtis will provide updates on these reforms to friends and clients as they progress. 

Read More...

US, EU, AND UK Sanctions and Export Controls Imposed Against Russia: What Every Business Should Know

On 12 April 2022, the Curtis Sanctions and Export Controls Committee hosted a webinar titled “US, EU, and UK Sanctions and Export Controls Imposed Against Russia: What Every Business Should Know Right Now.”

Curtis’ sanctions experts presented a comprehensive outline of the recent and escalating sanctions and export controls imposed on Russia by the United States, the United Kingdom, and the European Union, starting in mid-February 2022. The presentation details how these measures affect the operations of any business that intersects with Russian entities, Russian economic sectors, and designated Russian persons. Issues covered in the presentation include:

• Compliance programs and other safeguards in place 
• Types of international sanctions 
• Embargoes 
• Financial sanctions and asset freezes 
• Prohibition on transacting with listed persons 
• Trade restrictions (export/import) 
• Travel restrictions 
• US Office of Foreign Assets Control (OFAC) penalties for sanctions violations 
• Penalties can include imprisonment and fines 
• UK Office of Financial Sanctions Implementation penalties for sanctions violations 
• EU penalties for sanctions violations

The key takeaway is that all companies operating in this complex and rapidly evolving legal environment should:

1. Monitor the rapidly changing sanctions landscape 
2. Establish and maintain a robust compliance program including 
• Written compliance materials 
• Employee training 
3. Screen all transactions diligently 
4. Be alert for red flags 
• Geographic 
• Counterparty-specific 
• Transaction-specific 
5. Draft protective contractual provisions 
• Representations and warranties 
• Force majeure 
6. Consider application to agency 
• Clarification 
• Specific license

Developments in sanctions laws are sudden and fast-moving, and Curtis would be happy to provide advice and assistance as required. If you would like to watch a recording of the webinar, please click here. The access code is: S@nctions2022. 

To download a copy of the presentation, please click here.

Read More...

The Advance on Costs in Arbitration – Issues to Consider

The payment of advances on costs in arbitration aims to ensure that an arbitral institution has sufficient funds  to  cover  the  payment  of  arbitrators’  fees  and  expenses,  as  well  as  costs  incurred  in  the administration of arbitral proceedings.  The advances on costs paid to arbitral institutions do not include party costs, such as legal fees and expert fees.  Each of the major arbitral institutions requires that parties furnish some form of advance on costs before an arbitration can proceed. 

Whilst payment of the advances on costs is often perceived as one of the more perfunctory steps in an arbitration, in practice it can give rise to strategic considerations, and can have the effect of bringing an arbitration to a standstill. 

Certainly in Oman and other countries in the Middle East, respondents often treat the payment of the advances on costs as the claimant’s financial burden to discharge if the claimant wishes to obtain a final award.  As such, it is not unusual to encounter a respondent who is unwilling to pay its share of the advances on costs.

The option of simply waiting for the defaulting party to pay its share of the advances on costs should be approached with caution.  The arbitration will not proceed where the advances on costs remains unpaid.  Aside from causing delays to the timetable and frustrating busy arbitrators, the Court will eventually dismiss the reference without prejudice to either party’s right to bring fresh proceedings concerning the same claims at a later stage.  Whilst this may sound superficially appealing to some respondents, thought should be given to the consequences of having a reference dismissed without any conclusion.  Where disputes really do need to be fully and finally resolved (such as where the employer is withholding certificates and/or performance security after completion), this uncertainty may not be a satisfactory outcome for either party.

The  parties’  obligations  to  make  payment  of  the  advances  on  costs  are  an  extension  of  the  parties’ obligations in the arbitration agreement.  Accordingly, a refusal by either party to pay the advances on costs will constitute a breach of contract.  The usual remedies for breach of contract are available against a party failing to pay its portion of the advances on costs.

However, the Court or tribunal will not levy any sanction against a party for failing to pay its portion of the advances on costs.  The Court is, at that stage, concerned only with securing payment of its own costs and the costs of the tribunal.  Usually, the Court will ask the compliant party whether it wishes to pay in substitution for the defaulting party.  A party that elects to pay in substitution has the option of seeking reimbursement. 

Unlike in litigation, where public resources are finite and there is less tolerance for non-compliance, institutional Courts and tribunals often demonstrate more patience to parties who fail to satisfy their obligations to pay the advances on costs.

It is not uncommon in the Middle East to encounter a party who refuses to pay its portion of the advances on costs, at times receiving reminders from the Court or tribunal for several months to make payment, given  multiple  warnings  before  the  tribunal  is  finally  instructed  to  suspend  work.    Alternatively,  a tribunal in Oman may allow the arbitration to proceed, and deal with payment of tribunal costs in its final award.  It may therefore fall to the parties, rather than to the Court or tribunal, to be proactive in ensuring the expeditious resolution of disagreements about payment of the advances on costs, where this is achievable.

Parties arbitrating in the Middle East should be prepared for non-paying respondents, and should be aware of the important strategic considerations of the options available under the relevant institutional rules – whether paying by substitution, splitting the advances on costs, or raising the issue in a related security for costs application.

In short, issues on the advances of costs in an arbitration should be given careful consideration and the appropriate legal advice obtained at an early stage to resolve any issues that might arise. 

Read More...

Partial and Interim Arbitral Awards in Oman

It is relatively common in arbitration proceedings for a party to seek an interim or partial award on a discrete issue. The issue may concern fundamental matters such as the tribunal’s jurisdiction, time bars on proceeding, and so forth, or preliminary points which may limit the need for certain evidence to be heard.  There are a variety of reasons why an interim or partial award may be sought.

A key issue arises in relation to interim awards in which the governing law is Oman. The Law accompanying Royal Decree 47/1997 (also known as the Oman Arbitration Law) does not contain any procedure for partial or interim awards. That would not prevent an arbitral tribunal from issuing an arbitral award, but questions arise about what a party may do to challenge an interim or partial award.

Some interim or partial awards may have the effect of concluding a matter in favour of one party or another. In such cases, the interim award is in effect a final award, and (depending on the details of the proceeding) could most likely be challenged in the same way and to the same extent that a final award might be challenged, pursuant to Articles 52 to 54 of Royal Decree 47/1997. 

However, where a partial or interim award only concludes certain aspects of an arbitration proceeding, and the arbitration continues, or where the issue had the potential to conclude the arbitration, but the award as issued did not, then any party wishing to challenge the award has a problem.  Article 54 provides that a party seeking to set aside an award must do so within 90 days.  However, because the Oman Arbitration Law does not allow for interim or partial awards, there is some uncertainty whether the 90 days commences from the receipt of the interim or partial award, or from receipt of the final award, which will in part reflect the earlier award. To date there appears to be no case law on the issue.  If a party is placed in such a situation, and thinks it has good grounds, it may be prudent to at least apply to set aside an unfavourable interim award within 90 days of its receipt, but this is a matter that should be carefully considered by a party in conjunction with its legal advisors. 

Read More...