Tuesday, September 13, 2022

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.

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Tuesday, September 6, 2022

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. 

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Tuesday, August 30, 2022

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. 

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Thursday, June 16, 2022

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.

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Tuesday, June 14, 2022

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. 

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Monday, May 9, 2022

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. 

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Thursday, March 31, 2022

Omani Personal Data Protection Law

Oman has recently issued a national privacy legislation with the publication of a new Personal Data Protection Law, promulgated by Sultani Decree 6/2022 (the “Law”). The Law was issued on 9 February 2022, and will come into effect on 13 February 2023. The Law will repeal Chapter Seven of the Electronic Transactions Law that limited obligations related to the protection of private data in the field of electronic transactions. The issuance of this Law in Oman follows the recurring trend of data protection regulations in the Middle East. 


Who It Applies To 

The Law applies to the processing of personal data, which is defined as “data that identifies a natural person or makes him identifiable, directly or indirectly, by reference to one or more identifiers.” This consists of the name of the person, ID number, location data or data relating to their genetic, physical, mental, psychological, social, cultural or economic identity. 

Who It Does Not Apply To 
  • The Law includes a substantial list of excluded categories to which the provisions of the Law will not be applicable: 
  • Protection of national security or public interest. 
  • Implementation of the units of the administrative apparatus of the state and other public legal persons of the competences prescribed to them by law. 
  • Implementation of a legal obligation imposed on the controller by virtue of any law, judgment, or decision by the court. 
  • Protection of the economic and financial interests of the state. • Protection of a vital interest of the individual to whom personal data relates (data subject). 
  • Detection or prevention of a crime on the basis of a formal written request by the investigation entities. 
  • Execution of a contract to which the data subject is a party. • If the processing is within the personal or family sphere. 
  • For the purposes of historical, statistical, scientific, literary, or economic research, by entities authorised to carry out such works, provided that no indication or reference relating to the data subject is used in the published research and statistics, to guarantee that the personal data is not attributed to an identified or identifiable natural person.
  • If the data is available to the public in a manner that does not impose any violations against the provisions of the Law.
Main Features

Organisations are under the obligation to process personal data within the framework of transparency,
honesty, and respect for human dignity and to grant individuals the right to revoke consent to processing of their personal data, the right to request for their personal data to be amended or erased, the right to have a copy of their personal data and the right to have personal data transferred to another party.

Controllers are required to identify a personal data protection officer.  In addition, there will be controls
on transfers of personal data outside of Oman.  Controllers and all third parties that are appointed to process  the  personal  data  may  be  required  by  the  Ministry  of  Transport,  Communications  and Information Technology to appoint an external auditor in order to verify their compliance. 

A general restriction is placed on the processing of sensitive personal data (genetic and biometric data,
health data, ethnic origin, sex life, political/religious opinions or beliefs, criminal convictions, security measures) without initially obtaining an approval from the Ministry of Transport, Communications and Information  Technology.    Furthermore,  the  processing  of  a  child’s  personal  data  will  not  permitted without the express consent from the guardian unless the processing of such data is in the best interest of the child. 

The executive regulations that will be published in due course will provide further clarifications to the
extent of the requirements and restrictions. 

Consequences of Breach

Data subjects hold the right to file an official complaint to the Ministry of Transport, Communications
and Information Technology if they believe that the processing of their personal data is in breach of the Law.  Furthermore, the Ministry of Transport, Communications and Information Technology has the discretion, in the case that it suspects a violation of the Law, to order rectification and erasure of personal data.

The penalties in relation to the disclosure of secrets or any other applicable privacy offence under the
Oman Penal Law and other laws will continue to be in effect. 

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Wednesday, January 26, 2022

Major Changes To Dubai Arbitration Landscape

In recent years, many Oman-based companies have included DIFC/LCIA arbitration clauses in their contracts.  It has been a popular choice for dispute resolution as it combined the certainty of the well-known and trusted LCIA rules, with the convenience of locally administered institutional arbitration within  the  DIFC.    Dubai  Decree  No. 34  of  2021  -  Dubai  International  Arbitration  (the  “Decree”), accompanied by a new statute (the “Statute”), reforms the framework for arbitration in the Emirate of Dubai, and carries important changes for those negotiating and administering contracts. 

The  Decree  dissolves  the  DIFC  arbitration  institution  and  the  Emirates  Maritime  Arbitration  Centre

(“EMAC”), and provides for a framework under which the existing Dubai International Arbitration Centre (“DIAC”) will become the default center for arbitration in Dubai.  This is an important change to note for companies with existing DIFC/LCIA clauses, or those accustomed to including such clauses by default.  The following is a summary of the key changes:

  • Centralisation of Arbitration in the Emirates:  The Decree abolishes the EMAC and the DIFC arbitration institutions.  Both institutions’ operations shall be transferred to DIAC. 
  • Amended Management Structure for DIAC and Introduction of the Court of Arbitration:  DIAC is now composed of three main bodies:  (1) Board of Directors; (2) the Court of Arbitration; and (3) the Administrative Body.  The DIAC Court of Arbitration will consist of 13 members.  The President  of  the  Court  will  be  appointed  by  the  Board  of  Directors.    The  DIAC  Court  of Arbitration is charged with supervising and reviewing draft arbitral awards prior to tribunals issuing the same.  It is hoped that this will reduce any issues faced during enforcement.
  • Supervisory Jurisdiction of the Dubai Courts and DIFC Courts:  Determination of the place or seat of arbitration and the Court with supervisory jurisdiction is intended to be clarified.  There has  been  in  the  past  uncertainty  as  to  whether  the  Dubai  Courts  or  the  DIFC  Court  is  the competent supervisory court with jurisdiction over enforcement and/or nullification of DIAC awards or arbitral awards generally in Dubai.  Article 4 of the Statute clarifies this uncertainty.  The Dubai Courts are bound to accept jurisdiction as a supervisory court if the DIAC arbitration is seated in Dubai, and the DIFC Courts are required to deny jurisdiction in those circumstances (i.e., if the arbitration is not seated within the DIFC).  It should be noted that the DIFC is the default seat of DIAC arbitration proceedings if the parties do not agree otherwise. 
  • Arbitration Funding:  Article 8.4 of the Statute permits the DIAC Board of Directors to establish rules concerning funders of arbitration. 
  • Publication of Revised DIAC Rules:  These have been in the pipeline for some time and, with the expanded and prominent role of DIAC, are expected to be released soon.
In short, now is a good time to review your contracts, and seek legal advice as to how best tailor your arbitration  clauses  to  ensure  that  they  reflect  these  changes,  and  continue  to  meet  the  needs  and intentions of the parties and the subject matter/value of the contract involved.


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Thursday, December 2, 2021

Curtis Successfully Defends The Sultanate of Oman and Oman Aluminium Rolling Company LLC in U.S. Department of Commerce Trade Case

Curtis’ International Trade practice delivered a significant victory for the Government of the Sultanate of Oman and local aluminum sheet and foil producer Oman Aluminium Rolling Company LLC (OARC) in a year-long investigation by the U.S. Department of Commerce into allegations that the Sultanate unfairly subsidised OARC’s operations.

The pivotal issue in the case was the charge that the Sultanate directed banks in Oman to provide OARC with preferential lending. An international Curtis team, comprising lawyers in Muscat, Geneva, and Washington, successfully beat back the allegations. The result was a “negative” finding on the banking issue by the U.S. Commerce Department and only minimal duties for OARC, preserving its access to the U.S. market.

This is Curtis’ second major victory in Oman involving allegations of unfair subsidies led by partner Matthew McCullough, who specialises in U.S. countervailing duty law. In 2015, Mr. McCullough directed a Sultanate defense representing both the Government and a local PET resin producer to a complete victory in a similar U.S. proceeding.

“Such cases give a government the opportunity to demonstrate internationally that its economy works on competitive, transparent, market-oriented terms,” commented lead partner Matthew McCullough. “A successful result like this helps to preserve and attract inward investment and deters new cases by showing the allegations to be baseless.”

Muscat Managing Partner Simon Ward added, “This case also demonstrates Curtis’ ability to provide immediate legal support in Oman, while drawing on our international team to deliver effective, practical, and efficient legal services in highly specialised areas of international and commercial law such as U.S. countervailing duty law.”

The Curtis team was led by partners Matt McCullough (Geneva/Washington) and Mehdi Mohamed Al Lawati (Muscat), and included associates James Beatty (Washington), Arthad Kurlekar (Geneva), Amrane Medjani (Geneva) and Reem Al Mahrizi (Muscat). 

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Tuesday, November 23, 2021

Minority Shareholders’ Rights Under Omani Law

It is common for Omani companies to have at least one minority shareholder – i.e., a shareholder that owns less than 50% of the company’s shares. Some companies are formed with minority shareholders as part of the original ownership structure, such as a joint venture company in which the majority partner owns 70% of the shares and the minority partner owns 30% of the shares. Other companies add minority shareholders at a later stage, for example by granting a minority interest to a new investor in exchange for an infusion of capital.

For any such company, minority shareholder rights represent a key corporate governance issue. The minority shareholder will desire legal protections to ensure that the majority shareholder cannot use its voting control over the company to abuse the minority shareholder’s interests. Protections for minority shareholders not only promote fair and responsible governance, but also encourage investment by giving parties comfort to invest in companies in which they will not be able to exert voting control.

Minority shareholder rights mainly come in two forms: (i) rights conferred by statute, and (ii) contractual rights between the minority shareholder and the company’s other shareholders, enshrined either in the company’s charter or in a shareholders’ agreement. 

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