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A Summary of Saudi Arabia’s Mediation Draft Law

Posted on March 14, 2023 - 12:50 pm by perpetual-admin

Saudi Arabia recently introduced a draft law introducing mediation as an alternative way to resolve disputes. This law is currently in the 30-day public consultation phase, and once implemented, it will apply to all legal entities registered with the Ministry of Commerce who are engaged in commercial disputes.

The law defines mediation as a process in which two or more parties come together to resolve their disputes with the assistance of a neutral third party (the mediator). It is intended to provide a more efficient and cost-effective method for resolving disputes between parties outside of the court system while ensuring that their rights are protected.

What Does the Law Mean for Parties Involved in Disputes?

The law lays out a framework for mediation and outlines the requirements that parties must meet in order to participate in this process. Here are some key takeaways from the new draft law below.

Confidentiality and Privacy

Mediation must be conducted in a confidential setting, which includes both in-person and virtual sessions. The mediator is bound by a duty of strict confidentiality and all parties involved in the mediation session must agree to maintain a similar standard of confidentiality. This means that the mediator and all participants must agree not to disclose any confidential information obtained during the mediation process and nothing that is discovered during mediation may be used as evidence in court.

Selecting a Mediator

The mediator must be approved by the Saudi Centre for Commercial Arbitration, with the appropriate qualifications and accreditation. The mediator will act as an impartial arbiter and facilitate communications between the parties in order to reach a resolution that is acceptable to everyone involved. The parties involved in the mediation session are responsible for paying the mediator, and the mediator’s fees should be agreed upon before the mediation session begins.

Terminating Mediation

If one of the parties decides to terminate the mediation, the law states that all information discussed during the session must remain confidential and may not be used in any subsequent legal proceedings. Failure to appear for a mediation session will also result in a termination of the mediation, and any expenses incurred in relation to the session will be borne by the party that failed to appear.

Mediation Agreements

The agreement reached through the mediation session must be recorded in writing and signed by both parties. This agreement will be enforceable by law and the parties are expected to abide by the terms of the agreement. There are a few exceptions to this, such as cases in which one or both parties are discovered to have been fully competent at the time of the agreement or if the mediator seriously violated their duties during proceedings.

How Does This Law Benefit Businesses in Saudi Arabia?

The introduction of this draft law is a positive development for those seeking to resolve disputes through mediation. Not only does it bring the Kingdom in line with international best practices for commercial mediation, but it also facilitates a more business-friendly environment. It creates a framework that ensures fairness, transparency, and privacy for all parties involved.

The law provides legal certainty and clarity, which should encourage more individuals and entities to explore mediation as an alternative dispute resolution method. As a result, businesses will benefit from a faster and more cost-effective way to settle disputes and will benefit from greater peace of mind while operating in Saudi Arabia.

Navigating M&A in KSA: A legal roadmap

Posted on April 3, 2023 - 1:14 pm by perpetual-admin

Mergers and acquisitions (M&A) have become a standard business strategy for companies seeking to expand, diversify or enter new markets. In Saudi Arabia, M&A activity has grown significantly, with the government encouraging foreign investment to promote economic growth and diversification.

M&A transactions in Saudi Arabia are subject to a complex legal framework, and navigating the process can be challenging. A combination of laws and regulations governs the legal framework for M&A. The most significant is the Companies Law, which sets out the requirements for the incorporation, management, and dissolution of companies in Saudi Arabia. Other relevant laws and regulations include the Capital Market Law, the Anti-Monopoly Law, and the Foreign Investment Law.

In addition to these laws, M&A transactions in Saudi Arabia are subject to the rules and regulations of the Capital Market Authority (CMA) and the Saudi Arabian General Investment Authority (SAGIA). The CMA is responsible for regulating the securities industry in Saudi Arabia, while SAGIA is responsible for promoting foreign investment in the country.

The process of an M&A in Saudi Arabia generally involves the following steps:

Due diligence: The acquirer thoroughly analyses the target company to determine its financial, legal, and operational position. This is done to identify potential risks or liabilities associated with the target company.

Negotiation of terms: Once due diligence is complete, the acquirer and target company negotiate the terms of the merger or acquisition, including the purchase price and the transaction structure.

Memorandum of Understanding (MOU): The parties sign a non-binding MOU outlining the key terms of the transaction.

Approval from regulatory authorities: The transaction is subject to approval from regulatory authorities, including SAGIA and the CMA. The parties must submit the required documents to the authorities, including a share purchase agreement, audited financial statements, and other relevant documents.

Shareholders’ approval: The transaction is subject to approval by the shareholders of both companies. A meeting is held to obtain the necessary approvals.

Closing: Once all approvals have been obtained, the transaction is completed. The acquirer pays the agreed-upon purchase price, and the target company’s shares are transferred to the acquirer.

Post-merger integration: After the transaction, the acquirer and target company must integrate their operations. This includes IT systems, combining departments, and restructuring the organisation.

The exact process may vary depending on the nature of the transaction and the companies involved.

M&A in Saudi Arabia is subject to a range of legal requirements that must be carefully considered by the parties involved. Some of the essential legal requirements to consider include the following:

Regulatory approvals: M&A transactions in Saudi Arabia require approval from regulatory authorities, including the Saudi Arabian General Investment Authority (SAGIA) and the Capital Market Authority (CMA). The parties must submit the required documents to the authorities, including a share purchase agreement, audited financial statements, and other relevant documents.

Foreign investment restrictions: Certain industries in Saudi Arabia are restricted or closed to foreign investment. The parties must ensure compliance with these restrictions and obtain any necessary approvals or licenses.

Anti-trust regulations: transactions may be subject to anti-trust regulations, which prohibit anti-competitive behavior. The parties must ensure that the transaction does not result in a dominant market position or otherwise violate anti-trust laws.

Employment laws: M&A transactions may have implications for the employment of staff of the target company. The parties must comply with Saudi Arabia’s employment laws and ensure that staff is treated fairly and appropriately during the transaction and integration process.

Tax laws: The parties must ensure compliance with Saudi Arabia’s tax laws and seek appropriate advice to manage any tax implications of the transaction.

Intellectual property rights: The parties must ensure that any intellectual property rights associated with the target company, such as patents, trademarks, and copyrights, are transferred adequately as part of the transaction.

Contractual obligations: The parties must carefully review any existing contracts or agreements of the target company to ensure that the transaction does not violate any contractual obligations.

It is important to note that the above list is not exhaustive, and the exact legal requirements will depend on the specific circumstances of the M&A transaction. Therefore, it is recommended that the parties seek legal and financial advice to ensure compliance with all applicable laws and regulations.

Suhaib Hammad and Rakesh Bassi have presented a comprehensive analysis and insightful perspectives on strategic mergers and acquisitions in the Saudi Arabian market. Their expertise and acumen in this field are evident in the thought-provoking insights and valuable contributions that this article offers. Should you wish to engage in further discussions or seek clarifications, please reach out to the authors on info@hmco.com.sa

An Insight into Kuwait’s Economic Market

Posted on April 3, 2023 - 2:33 pm by perpetual-admin

Situated at the tip of the Persian Gulf, Kuwait is a small but fascinating oil-rich nation, with a population of just over 4 million people. Before its reinvention as a global oil supplier, it was a busy trade port, connecting merchants and traders between ancient Mesopotamia, Persia, and India. Today, Kuwait is considered one of the most prosperous countries in the Middle East – it has one of the highest GDPs per capita and is a major player in the global oil industry.

It currently holds around 7 percent of the world’s oil reserves and is one of the wealthiest nations in the region. But there is more to modern-day Kuwait than just oil. In this article, we will explore some of the exciting investment opportunities that Kuwait has to offer.

Exploring Kuwait’s Economic Opportunities

There are plenty of reasons why Kuwait should be on the radar of investors. Thanks to its long history of oil production, Kuwait has benefited from a stable economic foundation on which to build further prosperity. Here are some of the economic opportunities Kuwait has to offer:

Infrastructure Development. Kuwait’s government is making enormous investments in infrastructure projects, aiming to build a new subway system and modernize its airport in the coming years.

Oil-backed economy. While Kuwait makes gains in developing other economic sectors, its significant oil reserves provide investors with a stable economic foundation for investment.

Politically stable. Kuwait ranks well in terms of political stability, providing a beacon of security among the turbulent political climates of other countries in the region.

Business-friendly. Kuwait has created a business-friendly atmosphere, with its open economy characteristics, favorable taxes, and an active venture capital market.

Kuwait’s Most Well-Developed Sectors

Kuwait boasts a diversified economy and is home to some of the most innovative start-ups and modern business ventures in the Middle East. The government has made considerable strides towards liberalizing the economy, making it easier to invest and start businesses. Let’s take a look at some of the most profitable opportunities (outside of the oil sector) in Kuwait.

Renewable Energy

With the increasing demand for electricity and the growing threat of global warming, Kuwait has invested heavily in renewable energy sources. With a goal of 15% of its energy needs being supplied by renewable sources by 2030, solar and wind projects are featuring prominently in Kuwait’s energy sector.

Finance

Kuwait boasts a flourishing banking sector, making it an attractive option for investors looking to take advantage of its highly competitive financial services industry. Regional and international banking institutions are well-established here, so businesses in the finance domain will find all that they need to explore the market.

Technology

As the government seeks to digitize the nation’s healthcare system and bring its other industries up to international standards, technology and ICT companies are finding excellent opportunities for growth in Kuwait. Cybersecurity, mobile application development, and software development are some of the most in-demand industries in the country.

Real Estate

Although Kuwait is a small nation, demand for housing is beginning to pick up pace. The government has recently started to devote its resources to the development of this sector, creating even more attractive opportunities for investors.

Kuwait’s Trade Relationship with Saudi Arabia

Kuwait and Saudi Arabia have a long history of trade ties, with Kuwait often serving as the gateway to regional markets. The two countries share many cultural and economic similarities, making Kuwait an ideal partner for Saudi businesses and investors.

The United Nations COMTRADE database on international trade has revealed that Saudi Arabia’s imports from Kuwait totaled US$566.55 million in 2021, and in the same year, Kuwait imported US$149.89 Million in goods from Saudi Arabia. KSA primarily imports petroleum-related products, paper, iron, and steel from Kuwait, whereas Kuwait largely imports Saudi dairy products, plastics, and soaps.

Kuwait: A Strategic Investment Hub

For investors with an eye for the Middle East, Kuwait is an obvious choice. With its strong economic fundamentals and strategic location, Kuwait provides investors with a stable opportunity to diversify their portfolios. Non-GCC, foreign-owned companies can own 100% of their subsidiary in Kuwait with approval from the Kuwait Direct Investment Promotion Authority (KDIPA). Alternatively, non-GCC foreign investors may join forces with a local Kuwaiti partner and own up to 49% of the company. There is no double taxation treaty between Kuwait and KSA, however, Gulf nationals are not required to pay corporate or personal income tax in Kuwait. Except for the requirement to retain 5% of the contract or transaction value by entities in Kuwait on payment to any incorporated body (which will be released at the presentation of a tax clearance certificate), Kuwait does not have any other form of withholding tax regime on payments made by residents to a non-resident.

The Unified Registry for Commercial Pledges Takes Effect in Saudi Arabia

Posted on August 29, 2019 - 8:56 am by perpetual-admin

The Saudi Arabian Ministry of Commerce and Investment (MCI) launched on 17 March 2019 the Unified Registry for Commercial Pledges (URCP) and published the regulations for its implementation. The announced procedural rules envisaged in the Commercial Pledge Law (CPL) that came into effect in April 2018. The CPL stipulates the regulations and procedures for creating, granting, perfecting, and enforcing pledges over movable and future assets as security for “economic” debts.

Whom Should the URCP Regulations Concern?

URCP regulations apply to creditors (pledgees), debtors (pledgers), and any interested third parties. Registering a pledged movable asset with the URCP in strict compliance with the relevant procedural rules gives the pledgee a valid priority security claims over the asset or a recognized right provided for by the CPL against other interested entities.

What are Pledgeable Assets?

According to the CPL, lenders can register commercial pledges with the URCP over any of the following asset categories:

Companies: An economic enterprise may agree to a pledge over its entire tangible and intangible business assets.
Receivables: The law now recognizes potential business earnings as valid collateral. For example, an organization may qualify for construction financing after agreeing to the registration of a pledge on its future revenue.
Bank accounts and deposits: Lenders can take security over pledged bank accounts, deposits, or balances. The pledge agreement on a current account remains valid even if the borrower deposits more funds after the date of the URCP contract registration.
Inventory: Enterprises can grant a pledge over their stocks to secure financing. One tool they can use is the floating pledge.
Shares: There is now a legal framework for pledging shares, including limited liability companies.

Registering a Commercial Pledge Under URCP Procedural Rules

A person must first open an electronic account to log a pledge with the URCP. The MCI has set up an online portal for this purpose as no other method is acceptable for registering movable assets going forward. Below are some of the mandatory steps in commercial pledge registration:

The pledgee sends a registration application to the URCP via the official online registry. The applicant must attach a copy of the pledge contract and any other pertinent documents to the request. Vital information to provide includes the name and contact details of all parties to the pledge agreement, the value of the pledged asset, date of the security contract, and the secured debt’s maturity date.
The URCP notifies the pledger of having received the pledgee’s application for registration. The URCP can decline the registration request if the pledger formally objects to it within seven days from the date of notification.
The URCP continues acting on the pledgee’s registration request if the pledger approves it or does not object to it within seven days after receiving the URCP’s notification of the application.

Notifying Specialized Registries

Certain pledgeable assets require registration under other regulations besides URCP. For instance, the General Department of Traffic at the Ministry of Interior registers all vehicles in Saudi Arabia. Once the URCP completes the registration of a pledge over such an asset, it must share the contract details with the relevant specialized registry to tag the asset in question as pledged in the appropriate database.

Rules for Amending a Registered Pledge

The new CPL recognizes future assets as pledgeable, and it allows for the creation of securities over the same. What if the status of a future pledged asset changes to current? The pledger must, immediately or soon afterward, formally request the URCP to update the registry account in question with the new status of the pledged asset. The amendment request stands with or without the pledgee’s approval.

A typical case in point is when a bank creates security over future proceeds for money it lends to a business, and it registers the pledge with the URCP. In this scenario, the pledger (borrowing enterprise) must notify the URCP soon after collecting the secured or pledged receivables because they have become available movable assets.

If the pledgeable future asset is subject to pledging procedures in compliance with other relevant regulations, the URCP processes the amendment requests before sending any updates to the applicable specialized registry to capture the new asset status. The URCP notifies the pledger and the pledgee once the amendment is complete.

Criteria for Terminating Any Pledge Registration

Ways to terminate the pledge registration are:

The pledgee can request termination, or a judicial body may order the cancellation;
Expiry of the pledge duration, subject to condition three below;
Termination can take effect 60 days after an enforcement document is issued. Nonetheless, the law permits the pledgee or enforcement agent to request the URCP to extend the pledge term by an additional 60 days.

The law requires the pledgee to end the pledge registration with the URCP not later than three days after terminating the pledge contract, or after the execution of relevant enforcement actions on the property in question.

Who Can Search the URCP Database?

Upon request, the URCP may allow the pledger and the pledgee to view all details pertinent to a registered pledge. To third parties, however, the URCP may only confirm whether an asset is the subject of a registered pledge.

For a fee and with the pledger’s consent, the URCP may provide specific details of a registered pledge to a third party. Approval is contingent on the URCP receiving the name of the individual requiring the information and the particulars that the person is requesting.

When to Commence Enforcement

The pledgee or execution agent may enforce a pledge on an asset registered by the CPL only after obtaining an enforcement document from the URCP. The regulator must not provide the requested paperwork until the pledgee has the legal right to enforce the pledge contract.

The pledgee should request and can only obtain the prerequisite enforcement paperwork before the pledge registration period with the URCP expires. The regulator cannot issue these documents for execution on a future asset. For example, the pledger must first own the pledged asset, such as a car, before the pledgee has the right to initiate the enforcement process.

Perfection and Priorities

To guarantee priority against third parties, the pledgee should complete the pledge registration process with the URCP. However, there can be multiple pledges of varying priority levels over a single movable asset. Still, the pledger may agree with the relevant pledgees to alter the pledgees’ order of precedence over the same pledged property.