Monday, January 29, 2018

Taking and Enforcing Security under Omani Law

Most financing transactions will involve the grant of a security or collateral by the borrower to secure the finance amount.  This involves the execution, registration, perfection and enforcement of security. Generally speaking, tangible and intangible assets, moveable and immoveable property, shares, securities and bank accounts are capable of forming collateral under Omani law.  The concept of a floating corporate charge comparable to the English system does not exist as such under Omani law.  Nonetheless it is possible to create a hypothecated charge over a company and its assets by way of a commercial mortgage excluding real estate rights and assets.  The difference between a commercial mortgage and a floating charge is that the corporate assets forming the subject matter of the charge must be identified.  It is also possible to provide real estate rights and assets as collateral to secure financing by creating a separate charge over those rights and assets.  Real estate assets owned or leased, including usufruct rights, can be charged as security by creating a legal mortgage over them.

Under Omani law, a commercial mortgage would be registered in the commercial register of the Ministry of Commerce and Industry (the “MOCI”).  A noting of the charge appears on its commercial registration information print-out.  A legal mortgage is registered with the Ministry of Housing (the “MOH”).  Accordingly, a noting of the charge will be marked on the title document of the real estate asset or the instrument establishing the right in rem.

In addition, banks and financial institutions may require the borrower to assign certain rights in their favour as part of the security package.  It is also possible to provide bank accounts as security.  The usual form of providing security over bank accounts is by assignment or creating a pledge.  A pledge may also be created over securities comprising shares in a company.  A share pledge in respect of a closed or public joint stock company is capable of registration with the Muscat Clearing and Depository Company (the “MCDC”).  Under Omani law, security cannot be created by granting a power of attorney.

As stated above, a commercial mortgage or a legal mortgage must be registered with the MOCI or the MOH, respectively, in order for it to be valid and enforceable.  A share pledge in relation to a joint stock company must be registered with the MCDC.  The MOCI, MOH and MCDC would require that the charge documents are signed before their designated officials, in addition to filing of prescribed forms and payment of fees.  In order to register a commercial mortgage, a fee of OMR 130 is payable.  A commercial mortgage is registered for a period of five years and is renewable for further periods on payment of a renewal fee.  A legal mortgage is subject to payment of a registration fee of 0.5% of the mortgage value subject to a cap of OMR 100,000.

Under the laws of Oman, if a particular charge is required to be registered in order to constitute valid security, that security must be registered in order for it to be enforceable as security.  An unregistered charge does not amount to creation of valid security.  It is hence unlikely that an unregistered charge would be enforced by the courts as security.

In order to enforce the collateral, the lenders would firstly be required to make a formal demand with the borrower.  The borrower’s failure to answer the demand would require the lenders to obtain an order or judgment from the court by filing a lawsuit.  Once a judgment has been obtained on the debt, the lenders would be required to seek the enforcement or execution of the judgment.  In respect of the collateral, the judgment would be executed by carrying out a sale of the charged asset or property by public auction.  Under the provisions of the Law of Commerce of Oman, issued pursuant to Royal Decree 55/1990 (as amended), an agreement between a creditor entitling the creditor to acquire the ownership or to dispose of the collateral without the intervention of the courts is null and void.  Accordingly, self-help remedies are not available under the law and are unenforceable.  The lender may not make recourse without the intervention of the court notwithstanding the fact that the borrower has granted a power of attorney to the lender to unconditionally enforce the collateral.


Monday, January 15, 2018

Effect of VAT Law on Long-Term Contracts

While a value added tax law (“VAT Law”) was originally anticipated to be introduced at the beginning of January 2018, to date Oman has not issued the relevant Royal Decree or law.  It is widely anticipated, however, following a regional framework agreed by the Member States of the GCC that such a law will come into force in the near future.

The UAE has enacted a VAT Law effective from 1 January 2018 and, given the volume of trade between the states, it is difficult to see how trade and commerce will operate efficiently if other GCC members do not enact a similar law prudently.

The Ministry of Finance and Ministry of Legal Affairs (“MOLA”) are expected to draft, amend and review a VAT Law together. Other government bodies may be involved in the consultation process.  Upon approval by the MOLA, the State Consultative Council will add any additional amendments it deems necessary.  The amended draft is subsequently sent to the Cabinet of Ministers who further review and alter as it sees fit.  A final version is sent to the Sultan for his approval and, if granted, the Sultani Decree is published in the Official Gazette.  The law would come into effect upon publication.

VAT is a tax imposed on most transactions in the production and distribution process.  This consumption-based tax is ultimately paid by the customer in the final price for goods and services.  Applicable businesses are assigned the responsibility of collecting the tax when the good or service is produced and/or distributed.

It might be easy to think that the consequences of such a law can be dealt with once it has been promulgated.  Unfortunately, when it comes to entering into any long-term contracts, the time to act is now, if not before.

Before entering into any long-term contract that might span the date a VAT Law might come into force, it would be foolish not to ensure it contained provisions prescribing how to deal with VAT.  In simple terms, VAT provisions would typically allow the party that invoices for goods or services to charge an additional amount for the relevant VAT.  However, this can be complicated in practice, particularly where goods or services are provided over a period that spans the date a VAT Law came into force.  This is because the amount of VAT payable might depend on what proportion of such goods or services were supplied before or after the relevant date.  It becomes even more difficult where there is no draft of the VAT Law available for guidance.

Construction contracts are an example of a type of contract where careful consideration needs to be given.  Related contracts with subcontractors and suppliers may or may not contain clauses in relation to VAT.  Ideally, a head contractor should ensure that its contracts with each of its subcontractors and suppliers have substantially similar VAT clauses in order to enable VAT to be calculated in the same manner, and passed through.  Such a head contractor would of course need to ensure it had the appropriate clause in its head contract to enable the VAT to be claimed from the project owner.


Tuesday, January 2, 2018

Time Limitations - Don't Allow Your Rights to be Extinguished!

Like most jurisdictions, Oman imposes time limitations within which parties must bring any claims before the courts or arbitral tribunals.  Also, as in most jurisdictions the strength of a claim is irrelevant if it has been brought out of time.  Generally, the courts will not examine the merits of a claim if it has been filed or notified outside of statutory or contractually prescribed timeframes.  It is therefore important to gather evidence and speak with legal advisors as soon as a potential claim has crystalised.

What is a time bar limitation?

A time bar limitation is a maximum period of time established by law or contract within which a party may bring a claim or enforce a judgment or right.  Any legal claim will lapse if it is not exercised within this time period.  Time bar limitations exist for reasons of business efficacy and certainty.

Omani law prescribes a variety of time bar limitations in relation to different types of legal matters.  A unique aspect of Omani law is that time limitations are hidden within many different laws, with the Civil Code providing an overall umbrella.  This article highlights several of these time bar limitations which are relevant to businesses, and discusses potential relief to the strict application of time bars by reference to the Civil Code.

The Law of Commerce

Many of the key time bars applicable to business-related claims in Oman are found under the Law of Commerce (Royal Decree 55/90).  Some examples include:
Carriage of goods claims

In case of damage to goods, a consignee must submit a contestation to the carrier immediately after discovering the damage and no later than seven days from the date of delivery.

The right to seek recourse against a carrier due to damage, partial destruction or delayed arrival shall lapse unless the consignee proves the condition of the goods and lodges an action against the carrier within 30 days from the date of delivery.

The time limitation to bring an action arising from a contract for the carriage of goods or persons or a contract of carriage commission agency shall be one year.  This is known as a long stop limitation.

Any claim in respect of a guarantee/warranty of defect-free goods is one year from the date of delivery of the item sold, unless a guarantee for a longer period has been given by the seller.

Bills of exchange
Claims against the person that accepted a bill of exchange must be brought within three years of acceptance.

General long stop limitation for claims between merchants
Ten years as from when the date for performance of such obligations lapses (unless the law provides for a shorter period).

Other Omani statutes

Certain key time bar limitations are prescribed by other Omani statutes.  Most frequently a subject of concern is liability under the Engineering Consultancy Law (Royal Decree 120/94) and the Labor Law (Royal Decree 35/2003) which impose strict decennial liability provisions.  An oft-overlooked issue is that all claims for defects shall lapse after three years from the time of discovery of the defect.

Engineering, procurement, and construction (EPC) contracts

It is a common for EPC contracts to contain time limitations applicable to related claims.  Some contracts will state that a claim must be brought within 28 or 90 days of having a request for an engineer’s decision refused or ignored.

It is all too common for a contractor to neglect to bring a claim in respect of delay and prolongation costs within contractually prescribed periods.  The question then arises as to whether a contractor's failure to notify claims in time in compliance with the EPC contract results in the contractor losing its right to claim.  The answer to this question is that the courts will carefully examine the facts and the course of dealing between the parties. 

When considering how the courts (or an arbitral tribunal properly informed under Omani law) will approach the issue of a claim brought out of time, it is useful to first understand the principles that the Omani courts must apply when interpreting contracts and the enforcement of contractual conditions.  The courts adopt the following hierarchy when deciding a dispute:

(i) Legislative provisions.
(ii) The terms of the contract.
(iii) Rules of custom and practice.
(iv) The provisions of Sharia law (however, usually only in the absence of provisions (i), (ii) and (iii) above is Sharia law considered in any dispute before the Omani courts).

Therefore, when interpreting a contract and its time limitations on related claims, a court or tribunal must examine the express terms of the subject contract.  However, where these are absent, their meaning is inadequate, or the parties’ course of dealing diverges from the contractual terms, the custom and practices established between the parties may also be taken into account.

The Omani courts will normally consider the enforcement of contractual time limits on a case-by-case basis, bearing in mind all the relevant facts and the exact wording of the clause.

The starting point as stated above and under Article 2 of the Law of Commerce is that the courts must recognise and give effect to agreed contractual terms.  However, the courts are prepared to examine whether any prejudice is caused by a failure to comply with contractual time limits.  If the court considered that there was no loss or prejudice caused by failing to comply with a time limit, or that the prejudice of applying the time limit outweighed the prejudice of allowing a claim, then it may decide to allow the claim despite the lapse of a contractual time limit.

The Civil Code makes specific reference to contracts of adhesion, which are standard form contracts that cannot be negotiated; Article 83 thereof provides that contracts of adhesion are to be treated differently.  Article 158 of the Civil Code (Royal Decree 29/2013) is relevant and provides:

If the contract is made by way of adhesion and contains unfair provisions, the court may amend those provisions or exempt the adhering party therefrom in accordance with the requirements of justice, and any agreement to the contrary shall be void.

Standard form construction contracts can potentially be considered contracts of adhesion as they are standard form contracts drafted by one party (the employer) and signed by a relatively weaker contract party (the contractor), who must adhere to the contract and does not have the power to negotiate or modify the terms of the contract.  In these circumstances, the Omani courts (and therefore an arbitrator properly instructed under Oman law) would potentially be entitled to conclude that the prejudice caused to the contractor by applying the strict time limits outweighs the employer’s right to impose the time limits, and apply Article 158, in order to allow justice to be done between the contract parties.  However, each case will be decided on its own merits, which again emphasises the importance of careful project record keeping.  The contractor would be assisted for example if it could identify and evidence instances where the employer has waived contractual time limitations during the course of the life of the contract.

We note that the issue of contractual time limits within contracts is not settled in Oman.  In certain circumstances, Article 158 of the Civil Code permits the court to amend or ignore the time limits if it considers this to be in the interest of justice.  The court may also examine the parties’ conduct during the life of the contract, and if a party has waived its rights or remained silent, then the court can deem this to be an amendment of the contract (Article 74 of the Civil Code).

The courts will however analyse the impact of the limitation, and may ignore a limitation if it leads to a miscarriage of justice, or if there is no prejudice to the parties by ignoring the reduced time limitation.  Finally, it should be noted that there is also a general reluctance under Sharia law to allow a party to benefit from a contractual time limitation.

Time limits underpin all commercial claims, and it is essential to comply with statutory or agreed limits.  Given that time limits are often hidden throughout contracts and legislation, it is a small but very important investment to seek advice from your legal advisor as soon as an issue is encountered which may give rise to legal recourse.