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The introduction of the New Engineering Contract (NEC) encourages a systematic approach to contracting which is multidisciplinary in nature and fully interlocked in form. The NEC is intended by its supporters to be more flexible and easier to use than any current leading traditional standard forms of contract. It is believed that these features reduce adversariality and disputes. The NEC seeks to achieve this aim primarily through co-operative management techniques and incentives built into the NEC’s procedures. This commentary analyses and evaluates these and related claims of innovation.

The New Engineering Contract: A legal commentary examines the background to the NEC, its design objectives, structure, procedures and likely judicial interpretation to determine whether it improves upon the traditional standard forms of contract. Special attention is given in the commentary to the development and the significance of the principles underlying preparation of the NEC as well as the arguments in favour of and against them. Throughout the detailed commentary upon the NEC clauses comparisons to the traditional forms are also made to highlight unique features and principles of general application.

The conclusion reached is that the NEC does make a significant contribution to the development of standard forms of contract, addresses many of their short comings and offers one of the best models for their future development, direction and design. The commentary draws upon the body of the project management literature and legal analysis to support its conclusions.

The New Engineering Contract: A legal commentary will be essential reading for lawyers, barristers and solicitors, as well as engineers and project managers.

Click here to read more….

Copyright cakes.

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In this article, I’m going to zoom in all the way on the topic of “copying” when it comes to cake designs. I’m going to explain the difference between what’s illegal, what’s unethical, and what’s perfectly fine when it comes to the work you sell and share online. My goal is to help you avoid legal trouble, avoid committing social media blunders, and discover ways to be awesome.

Trademark Violation

It is against the law to sell cakes that depict trademarked characters without permission from the trademark owner. D*sney in particular has been known to crack down on bakeries and when they do, the punishment is a whopper of a fine. So if you have photos with that theme on your website or social media profiles, I recommend taking them down and letting future customers know that it is against the law for you to depict trademarked material on desserts.

Now there is one exception called the “First Sale Doctrine.” According to this rule, if you purchased something from the trademark owner like a licensed figurine or a DecoPac template then you can sell a character cake without obtaining permission. The reason why this is okay is because then the owner of the trademark earns a royalty on your sale.

Copyright Infringement #1
Photo Theft

It is against the law to use someone else’s photo without their permission. When I say “use,” I mean copying and pasting it onto your personal blog or business website or brochure or any other kind of marketing material. Your photos, my photos, everyone’s cake photos and logos are automatically copyright protected. That means the majority of images that you find online when you do an image search are not up for grabs. Even when there’s no watermark or the link is broken so you can’t figure out who the owner is, the original copyright still holds. In the US, copyright laws do not require the creator to include a copyright notice. And copyrights are good for the life of the creator plus 70 years. Or if the creator is unknown, the copyright is good for 95 years from the first date of publication. So unless you are reading this article in the year 2086, it’s safe to assume that every image is copyright protected.

In case you are still considering risking the idea of straight up using someone else’s photo, let me warn you that bakers who’ve been around for a while tend to recognize each other’s work. The cake community essentially polices itself when it comes to this sort of thing. So by pinching the photo, not only are you breaking the law but you could end up dealing with an angry online mob of bakers.

But do not despair. If you are just looking to populate your site with more images because you don’t have enough of them, you can buy images from websites like istock. Of if you want free stuff, you can search on websites like morguefile and pixabay that offer high resolution images that are in the public domain or that have been licensed under creative commons CC0. But don’t put photos in your portfolio of work that is out of your technical range of abilities. Then you’re misrepresenting your own skills, which can result in unhappy customers.

To read more click here…..

Foreign Investment Funds in UAE

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The New Fund Regulations have been long-awaited and have replaced both the Board of Directors Resolution No. 37 of 2012 (Concerning the Regulation of Mutual Funds) (“2012 Fund Regulations”) and the Board of Directors Resolution No. 13 of 2013 (on Amending the Regulation of Investment Funds) (the “Private Placement Exceptions” and together with the 2012 Fund Regulations, the “Former Regulations”). The New Fund Regulations were published in the UAE Federal Gazette dated 31 July 2016 and are currently in force. We note that SCA has also recently circulated certain draft regulations for review and comment which will also be of relevance to fund regulation in the UAE. Accordingly, we note that the New Fund Regulations will need to be read in conjunction with any applicable resolution, regulation, directive or circular issued by SCA from time to time, including those in relation to the arranging and promoting of financial products and securities. 

Similar to the 2012 Fund Regulations, the New Fund Regulations include provisions on licensing, management, offer document requirements, subscription, and issuance and listing of fund units. However, the New Fund Regulations also feature some changes to the Former Regulations, including the introduction of provisions for specialized categories of funds, such as umbrella and feeder funds. While the majority of these changes will largely affect UAE domiciled funds, there are new provisions that will also affect foreign funds. This article covers some of the key aspects of the New Fund Regulations.

Foreign Funds

The New Fund Regulations greatly simplify the requirements for the promotion of foreign funds in the UAE. The seven articles (containing twenty-two clauses) under the 2012 Fund Regulation have been pared down to just one article (of five clauses), perhaps reflecting that most foreign funds are currently promoted on a cross-border basis or under the private placement exceptions. Both the 2012 Fund Regulations and the New Fund Regulations only relate to the promotion of a foreign fund in the UAE through a local distributor who has a duty to register the fund with the SCA and comply with certain requirements. The New Fund Regulations essentially pare the requirements down to requiring registration of a foreign fund and annual renewal of registration where a local distributor is used.

That said, promoters of foreign funds should note that the private placement exceptions under the New Fund Regulations have been narrowed in scope. Under the Former Regulations, the 2012 Fund Regulations did not apply in respect of the private promotion of foreign funds targeting:

  • federal or local government financial portfolios;
  • companies, institutions or entities trading on their own account whose main purpose, or one of their main purposes, is to invest in securities; and
  • investment managers who have a discretionary investment mandate.

To read more click here…..

Court Side Justice

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The creation of the Court represented the culmination of a long development of methods for the pacific settlement of international disputes, the origins of which can be traced back to classical times.

Article 33 of the United Nations Charter lists the following methods for the pacific settlement of disputes between States: negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, and resort to regional agencies or arrangements; good offices should also be added to this list. Among these methods, certain involve appealing to third parties. For example, mediation places the parties to a dispute in a position in which they can themselves resolve their dispute thanks to the intervention of a third party. Arbitration goes further, in the sense that the dispute is submitted to the decision or award of an impartial third party, so that a binding settlement can be achieved. The same is true of judicial settlement (the method applied by the International Court of Justice), except that a court is subject to stricter rules than an arbitral tribunal, particularly in procedural matters.

Mediation and arbitration preceded judicial settlement in history. The former was known in ancient India and in the Islamic world, whilst numerous examples of the latter are to be found in ancient Greece, in China, among the Arabian tribes, in maritime customary law in medieval Europe and in Papal practice.

The modern history of international arbitration is, however, generally recognized as dating from the so-called Jay Treaty of 1794 between the United States of America and Great Britain. This Treaty of Amity, Commerce and Navigation provided for the creation of three mixed commissions, composed of American and British nationals in equal numbers, whose task it would be to settle a number of outstanding questions between the two countries which it had not been possible to resolve by negotiation. Whilst it is true that these mixed commissions were not strictly speaking organs of third-party adjudication, they were intended to function to some extent as tribunals. They reawakened interest in the process of arbitration. Throughout the nineteenth century, the United States and the United Kingdom had recourse to them, as did other States in Europe and the Americas.

The Alabama Claims arbitration in 1872 between the United Kingdom and the United States marked the start of a second, and still more decisive, phase. Under the Treaty of Washington of 1871, the United States and the United Kingdom agreed to submit to arbitration claims by the former for alleged breaches of neutrality by the latter during the American Civil War. The two countries stated certain rules governing the duties of neutral governments that were to be applied by the tribunal, which they agreed should consist of five members, to be appointed respectively by the Heads of State of the United States, the United Kingdom, Brazil, Italy and Switzerland, the last three States not being parties to the case. The arbitral tribunal’s award ordered the United Kingdom to pay compensation and it was duly complied with. The proceedings served as a demonstration of the effectiveness of arbitration in the settlement of a major dispute and it led during the latter years of the nineteenth century to developments in various directions, namely:

  • sharp growth in the practice of inserting in treaties clauses providing for recourse to arbitration in the event of a dispute between the parties;
  • the conclusion of general treaties of arbitration for the settlement of specified classes of inter-State disputes;
  • efforts to construct a general law of arbitration, so that countries wishing to have recourse to this means of settling disputes would not be obliged to agree each time on the procedure to be adopted, the composition of the tribunal, the rules to be followed and the factors to be taken into consideration in making the award;
  • proposals for the creation of a permanent international arbitral tribunal in order to obviate the need to set up a special ad hoc tribunal to decide each arbitrable dispute.

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Oil and Gas Bahrain

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Unlike its neighbours in the Gulf, the Kingdom of Bahrain is a minor oil producer, with only 124.6 million barrels of proven reserves. The country’s oil is developed largely by key state players such as Bahrain Petroleum Company (Bapco), National Oil and Gas Authority and its investment arm, Nogaholding. With such small reserves, Bahrain began diversifying and liberalising its economy in the 1970s and now boasts developed non-hydrocarbons sectors such as Islamic banking, tourism, and construction, as well as refined infrastructure.

The government still relies on oil and gas for roughly 86% of its revenues. Of these revenues, roughly 80% come from the 300,000-bopd Abu Safa offshore oilfield, which is owned and operated by Saudi Aramco but from which 50% of the revenues are transferred to Bahrain. The remaining 20% comes from Bahrain’s only oilfield, Awali, which reached record production levels in June 2015, producing some 56,000 bopd. Bahrain’s domestic consumption of oil has doubled from 25,000 bopd in 2001 to 50,600 bopd in 2015.
On December 10, 2016, Bahrain pledged to cut around 10,000 bopd from its production in 2017 in order to beef up oil prices.

Bahrain is taking a series of steps to expand its capacity to produce and refine oil and gas. Nogaholding is also investing heavily in the oil industry. In March 2016, Nogaholding announced it had signed a USD 570-million Murabaha [kind of Islamic financing structure] financing facility, which will serve to fund oil and gas projects such as Bahrain’s newbuild LNG terminal. Other projects include the expansion of Bahrain’s Sitra refinery from its current level of 267,000 bopd to 360,000 bopd. Sitra currently refines 250,000 bopd from Saudi Arabia’s Abqaiq processing facility, which is fed by the Arabia-Bahrain (AB) pipeline. Saudi Aramco is currently replacing the old AB pipeline with a new one that will expand capacity from 230,000 bopd to 350,000 bopd and appears on a schedule to open in 2017.

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 MSC Mediterranean Shipping Company SA v. Cottonex Anstalt [2016] EWCA Civ 789
A container line, whose containers had been detained for a few months and seemed to be unlikely to be returned for some time, was not able to claim demurrage from the Shipper for an open-ended period.
This case arose out of the shipment of 35 containers of cotton from Middle Eastern ports to Chittagong, Bangladesh. When the market price for cotton fell, the Buyers refused to collect the cargo and, as a result, the containers remained uncollected at the Port of Chittagong. The customs authorities also indicated that they would not allow anyone to remove the containers without a local court order. The Shipper allegedly tried to but did not get this order. The Carrier, who owned the containers, brought a claim against the Shipper under the bill of lading for over US$ 1 million in respect of container demurrage. The Shipper objected to this on the basis that the replacement costs of the containers amounted to just over US$ 100,000.
To understand the judgment, there are three key dates to keep in mind:

(1)  The containers were discharged in Chittagong between May and June 2011;

(2)  on 27 September 2011, the Shipper informed the Carrier that it did not own the cargo because it had already been paid, that it would not be paying the demurrage claimed and it suggested that the Carrier recover this money from the bank, who had paid the Shipper for the cargo;

(3)  on 2 February 2012, in an attempt to break the deadlock, the Carrier offered to sell the containers to the Shipper. The parties nearly agreed a price, but the Shipper thought the Carrier was asking too much, so the deal fell through.
To read more click here…

Mortgage of Movable Assets

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In a move that will be welcomed by financial institutions across the UAE, Federal Law No. 20 of 2016 concerning the Mortgage of Movable Assets to Secure a Debt (“Law”) has been passed. We are not aware as yet when the Law will be published (if not already), however the Law will come into force 90 days from publication. The Law fundamentally changes the ability of lenders to take effective security over move-able assets, a problem both lenders and debtors have struggled with for some time.

The Law introduces direct enforcement procedures through the summary judge meaning streamlined and quicker enforcement remedies for secured parties.

The enforcement provisions in the Law also give the court wide powers to either permit the mortgagee to sell the mortgaged assets at a price of not less than the market price without following the sale procedures under the Civil Transaction Law (i.e.no public auction required) or to allow the mortgagor to sell the mortgaged assets if it is proven that the mortgagor can obtain a better price (under the supervision of the court).

The Law penalizes the mortgagor, the mortgagee, the debtor or the possessor of the mortgaged assets in case of the disposal or damaging the mortgaged assets contrary to the mortgage agreement. The penalty is the imprisonment and fine of not less than AED 30,000. If such criminal actions are committed by a corporate entity, the penalty shall be applied to the board members, the joint shareholders and appointed employees at the corporate entity committing such acts.