Category Archives: Arbitration

Contract Negotiations in Saudi Arabia: Critical Challenges in Shareholders’ Agreements

Posted on June 17, 2025 - 7:29 am by

Contract negotiations in the Kingdom of Saudi Arabia (KSA) have become increasingly complex and strategically significant. As Vision 2030 continues to reshape the national economy, Saudi Arabia’s evolving legal and regulatory environment is attracting both domestic and international investors. One area of particular importance is the negotiation of Shareholders’ Agreements (SHA), which serve as foundational documents defining the rights, obligations, and expectations of shareholders in joint ventures and corporate entities.

 

Alignment of Governance Structures and Shareholder Vision

A recurring challenge in SHA negotiations involves aligning expectations around governance. In Saudi Arabia, many joint ventures comprise a mix of family-owned businesses, government-related entities, and foreign investors, each bringing distinct views on corporate oversight. Disputes often arise concerning board composition, reserved matters requiring unanimous consent, and the level of operational control exerted by individual shareholders. The 2022 Companies Law, effective since early 2023, offers increased flexibility in structuring governance frameworks, allowing more bespoke arrangements that protect minority rights while enabling efficient decision-making.

Dividend Policies and Profit Distribution

Shareholders may hold differing views on how profits should be allocated between dividends and reinvestment. These differences are especially pronounced in early-stage ventures where some investors seek immediate returns, while others prioritise long-term capital appreciation. In the Saudi context, these discussions must also take into account Sharia compliance, including considerations such as profit purification and zakat obligations. Addressing both commercial priorities and religious principles requires careful structuring and alignment.

Share Transfers and Exit Mechanisms

Clauses addressing share transfers and exit rights are among the most heavily negotiated in any shareholders’ agreement (SHA). Provisions such as rights of first refusal, tag-along and drag-along rights, and valuation methodologies must be adapted to local legal enforceability. The maturing of Saudi Arabia’s capital markets and the easing of foreign ownership restrictions in many sectors have expanded the range of viable exit strategies. However, transactions may still require approval from regulators such as the Ministry of Commerce or the Capital Market Authority, which should be anticipated in the SHA.

Dispute Resolution and Arbitration

Selecting the appropriate dispute resolution mechanism is a vital component of any SHA. Arbitration is often preferred for its confidentiality and neutrality, particularly in cross-border ventures. The Saudi Center for Commercial Arbitration (SCCA) has gained prominence, providing an increasingly credible forum for dispute resolution. Moreover, the enforceability of foreign arbitral awards has improved significantly following judicial reforms. That said, parties must ensure that arbitration clauses comply with the Saudi Arbitration Law and broader public policy considerations. Institutions such as the LCIA and ICC remain viable options, although careful selection of the seat and language is essential.

Local Regulatory and Cultural Considerations

A deep understanding of Saudi Arabia’s legal culture is essential. The legal framework is grounded in Sharia law, though it has become increasingly codified through commercial regulations. Investors must factor in regulatory requirements such as Saudisation, sector-specific licensing conditions, and ongoing obligations to the Ministry of Investment (MISA), formerly known as SAGIA. Equally important are local business customs, where trust, consensus, and long-term relationships often influence negotiations more than the written contract itself.

Legal Drafting and Enforceability

One of the more practical challenges in SHA implementation involves localising legal drafting. Clauses that are standard in English law jurisdictions—such as those dealing with penalties, restrictive covenants, or non-compete obligations—may not be enforceable in their original form under Saudi law. Effective agreements require bilingual drafting and input from legal counsel who are familiar with both international standards and local legal practices. The 2022 Companies Law has introduced more clarity on key provisions, but has not removed the need for precise and locally informed drafting.

Minority Protections and Deadlock Mechanisms

Where joint ventures include minority shareholders, protections such as veto rights, put and call options, or escalation procedures are commonly negotiated. Mechanisms to resolve deadlocks—such as Russian roulette or Texas shoot-out clauses—can be effective but must be carefully assessed for practical enforceability under local law. The revised Companies Law enables more structured dispute escalation and shareholder remedies, thereby reducing the risk of operational paralysis in the event of disagreement.

Digitalisation of Legal Processes

Saudi Arabia’s commitment to digital transformation has also impacted contract enforcement and regulatory compliance. Platforms such as Absher, Qiwa, and Mudad have streamlined processes, including company registration, contract approvals, and workforce management. These tools can enhance transaction efficiency, but they require early planning and integration into contractual timelines.

As Saudi Arabia continues to liberalise its economy and promote private sector investment, Shareholders’ Agreements will remain a critical tool in safeguarding long-term partnerships. Negotiating SHAs in the Kingdom requires not only legal expertise but also cultural fluency, regulatory awareness, and commercial acumen. By addressing common pain points proactively and leveraging the flexibility introduced through recent legal reforms, businesses can create durable agreements that foster trust, enable growth, and align with both local expectations and global standards.

 

Resolving Family Disputes: Inheritance Challenges and Estate Liquidation in Saudi Arabia

Posted on May 12, 2025 - 5:29 am by

The inheritance of wealth, property, and control over family businesses in Saudi Arabia is not merely a personal matter, it is a legally and strategically consequential transition that often exposes deep fault lines within families. As a new generation steps into leadership and the legal landscape matures, the resolution of inheritance disputes and the liquidation of estates has emerged as one of the most complex legal challenges for high-net-worth families, shareholders, and beneficiaries in the Kingdom.

While family harmony is a cultural imperative, the rise in contested estates and legal proceedings, particularly in multi-branch, high-value families, is forcing both local and international stakeholders to re-evaluate how succession and estate planning are structured, managed, and, when necessary, resolved.

A Distinct Legal Foundation: Shariah Law in Practice

At the heart of the Saudi legal system lies the application of Islamic Shariah, which governs inheritance with mandatory and non-negotiable rules on how estates must be divided. This includes a fixed formula for the distribution of shares among heirs—sons, daughters, spouses, and extended relatives, irrespective of the deceased’s wishes unless very specific pre-conditions have been met.

Unlike many other jurisdictions, there is no concept of a discretionary will that can override Shariah-prescribed allocations. This makes proactive estate structuring and pre-death planning not just advisable, but essential, particularly in families with significant assets, real estate portfolios, or operational businesses.

Inheritance Disputes: Why They Arise

Despite the clarity of Islamic inheritance law on paper, disputes often arise due to real-world complications:

  • Ambiguity in Asset Ownership: Many founders maintain informal ownership of assets or mix personal and business holdings, making it difficult to distinguish what falls into the estate.
  • Heir Disagreement on Valuation and Liquidation: Beneficiaries may contest the valuation of key assets or resist the liquidation of income-generating properties and companies.
  • Exclusion or Disproportionate Benefit Claims: Allegations of unfair enrichment, particularly by second families, distant relatives, or those in managerial roles, frequently trigger formal challenges.
  • Lack of Succession Infrastructure: In many cases, there is no central register of assets, no governance framework for ongoing business operation, and no appointed administrator to oversee the estate. This paralysis can last for years.

These disputes are not only destabilising—they can erode the value of the estate, fracture family unity, and invite regulatory or creditor intervention.

The Process of Estate Liquidation in KSA

The liquidation and distribution of a deceased’s estate in Saudi Arabia typically begins with an application to the Personal Status Court, followed by a formal inventory of the deceased’s assets and a ruling on the rightful heirs. However, in high-value estates or those involving real estate, commercial shareholdings, or offshore components, the process becomes far more intricate.

Where minors are involved, or where the estate includes ongoing businesses, the court may appoint a judicial guardian or administrator. Additionally, estates with foreign heirs or international components often require cross-border legal coordination and recognition of foreign judgments, further complicating proceedings.

Notably, in 2022, the Personal Status Law was codified for the first time under Saudi Vision 2030’s legal reforms, providing more clarity and predictability to issues surrounding guardianship, documentation, and enforcement. Still, estate cases remain time-consuming and procedurally complex without proactive legal guidance.

Strategic Techniques for Dispute Resolution and Prevention

We approach inheritance disputes not merely as legal cases but as strategic family transitions. Our experience shows that the following frameworks significantly reduce conflict and preserve asset value:

  1. Establishing Clear Legal Documentation in Life
    Founders should formalise asset ownership under registered entities, distinguish between personal and business assets, and, where possible, utilise legal vehicles such as holding companies to structure family participation. Shariah-compliant gift structures (hiba) can also be used pre-death to transfer assets within permissible bounds.
  2. Appointing an Estate Administrator or Executor
    A court-recognised administrator can ensure the timely management and safeguarding of estate assets, particularly where businesses or significant liabilities are involved. We work with families to structure these roles in advance, often embedding them in shareholder agreements or trust structures.
  3. Mediation and Arbitration for Heirs
    Rather than litigating disputes in open court, we have successfully resolved complex inheritance matters through family mediation forums and private arbitration panels, particularly in high-profile families concerned with confidentiality and reputation.
  4. Forensic Asset Mapping and Reconciliation
    In cases of unclear ownership or suspected misappropriation, our team conducts comprehensive forensic reviews to trace assets, reconstruct records, and support rightful claims. This often serves as a turning point in resolving contested matters with transparency.
  5. Structuring Multi-Generational Frameworks
    We advise families to look beyond a single estate event and create governance charters, family councils, and long-term wealth vehicles that preserve intergenerational continuity and avoid piecemeal asset dilution.
Cross-Border and Foreign Investor Considerations

Estate-related disputes in KSA increasingly affect foreign investors—either as co-owners, creditors, or partners in family businesses where a principal passes away. Understanding the application of Shariah law, the role of Saudi courts, and the enforceability of shareholder agreements or buy-sell clauses is critical. Where foreign nationals are heirs or claimants, issues of jurisdiction, documentation, and power of attorney must be handled with precision.

Our firm frequently acts as a liaison between Saudi courts, foreign trustees, and consular services to coordinate multi-jurisdictional estate matters and ensure proper legal standing for non-GCC beneficiaries.

The Stakes Are Higher Than Ever

In today’s rapidly changing Saudi landscape, estate disputes are not just about division of wealth—they are often existential events that determine the future of a business, family cohesion, and the credibility of a legacy. For families looking to preserve what previous generations built, and for external stakeholders seeking clarity, there is no room for ambiguity.

Proactive legal structuring, early intervention, and skilled dispute management are the new imperatives. Saudi Arabia’s courts are evolving, but the burden of foresight remains with families and their advisors.

If your family is navigating a succession event, or if you are a business partner or foreign investor facing the impact of an unresolved estate, our inheritance and disputes team at Hammad & Al-Mehdar is ready to assist with discretion, strategic clarity, and unwavering commitment to legal precision.

The Role of Arbitration in Resolving Construction Disputes in the GCC

Posted on May 8, 2025 - 6:13 am by

The Gulf Cooperation Council (GCC) countries continue to witness exponential infrastructure and real estate development growth, driven by national vision strategies such as Saudi Arabia’s Vision 2030 and the UAE’s Projects of the 50. These long-term transformation agendas have stimulated an unparalleled wave of construction activity, from giga-projects like NEOM and The Line in Saudi Arabia to major transit systems, ports, and digital cities across the region.

 

However, the scale and complexity of these projects have also led to a surge in contractual disputes. Arbitration remains the preferred dispute resolution mechanism for construction-related conflicts, offering neutrality, confidentiality, and enforcement advantages in a region where public court proceedings may lack technical expertise or risk undue delays.

Why Construction Disputes Arise in the GCC

The construction industry in the GCC is shaped by several factors that make disputes more likely:

  • Diverse Stakeholders: Projects typically involve joint ventures between international contractors, regional subcontractors, consultants, and government bodies—all with different legal traditions and commercial expectations.
  • Mega-Project Complexities: Many projects are technologically advanced, logistically complex, and executed over multi-year timelines, increasing the potential for cost overruns, delays, and scope changes.
  • Fragmented Regulatory Environments: While culturally aligned, the GCC countries maintain distinct legal systems, complicating contract enforcement and procedural consistency.
  • Labour and Material Constraints: Recent global supply chain disruptions and local Saudization and Omanisation mandates have also led to delays and cost disputes.
Arbitration as the Preferred Dispute Resolution Method

Arbitration offers numerous advantages over litigation in resolving construction disputes:

  • Neutrality: Essential in international disputes, especially where a government entity is one of the parties.
  • Confidentiality: Helps protect commercial reputations and proprietary information.
  • Technical Expertise: Arbitrators with engineering or project finance backgrounds can better evaluate construction claims.
  • Enforceability: All GCC states sign the New York Convention, facilitating cross-border recognition and enforcement of arbitral awards.
  • Procedural Flexibility: Parties can agree on rules, venues, languages, and laws governing the proceedings.
Recent Developments in GCC Arbitration

Saudi Arabia
In 2023, the Saudi Centre for Commercial Arbitration (SCCA) introduced an updated Fast Track Procedure, which enabled the resolution of smaller claims within six months.

A 2024 Ministerial Circular clarified that government entities can refer disputes to arbitration without Royal Decree if contracts are governed by international law—a significant shift that enables more foreign participation.

Vision 2030 projects like the Red Sea Global and Diriyah Gate have embedded SCCA clauses as standard in EPC contracts.

United Arab Emirates
The Dubai International Arbitration Centre (DIAC) completed its consolidation with the Emirates Maritime Arbitration Centre (EMAC) in 2023, simplifying institutional offerings.

The 2023 DIAC Rules now allow emergency arbitrator provisions and broader interim measures.

The ADGM Arbitration Centre continues to gain popularity for high-value disputes, bolstered by common law jurisdiction and enforceability via the ADGM Courts.

Qatar
In 2024, the Qatar International Centre for Conciliation and Arbitration (QICCA) launched a Construction Disputes Board mechanism to support large-scale World Cup legacy infrastructure projects.

New model clauses align QICCA arbitration with FIDIC Red and Silver Book formats.

Oman, Bahrain, and Kuwait
Oman introduced the Construction Claims Tribunal (CCT) in 2023. This hybrid forum combines adjudication and arbitration features, particularly useful for OMR 10M+ projects.

Bahrain’s BCDR has led in digital arbitration, using AI-assisted document review in complex cases since 2024.

Kuwait has increased court enforcement cooperation with the Kuwait Commercial Arbitration Centre (KCAC), reducing execution time for domestic awards by 40%.

Common Challenges and Risks in Construction Arbitration

Despite its benefits, arbitration in the GCC faces certain hurdles:

  • Cost Concerns: High fees and legal expenses deter SME contractors from pursuing arbitration.
  • Duration Drift: Complex claims often lead to prolonged timelines despite institutional fast-track options.
  • Enforcement Uncertainty: While awards are enforceable under the New York Convention, execution can be delayed due to administrative hurdles in local courts.
  • Cultural Dynamics: Informal dispute resolution (e.g. majlis-style mediation) remains preferred in some jurisdictions, particularly for low-value claims.

To mitigate disputes and ensure effective arbitration outcomes, construction firms should consider the following:

  • Draft Robust Arbitration Clauses: Align with institutional rules (e.g., DIAC, SCCA) and clearly specify governing law and venue.
  • Incorporate Multi-Tier Dispute Resolution: Start with mediation or dispute adjudication boards before escalating to arbitration.
  • Appoint Experienced Arbitrators: Choose professionals with sector-specific expertise and prior regional experience.
  • Plan for Enforcement: Identify jurisdictions with effective enforcement mechanisms at the contract stage.
  • Monitor Legal Updates: Stay informed of new arbitration laws, institutional reforms, and court interpretations.
Outlook: Arbitration as a Pillar of GCC Infrastructure Growth

As the GCC continues to attract billions in FDI and deliver mega-infrastructure projects, arbitration will remain a vital tool for managing risk and preserving relationships. Institutional reforms, technology integration, and alignment with global best practices are expected to streamline dispute resolution further and enhance investor confidence.

In 2025 and beyond, arbitration’s role will no longer be reactive—it will be an embedded part of strategic project planning, governance, and contract design. Investing in dispute avoidance and effective arbitration practices is essential to long-term success for construction firms, legal counsel, and government agencies.

Rethinking Insolvency and Liquidation in Saudi Arabia

Posted on May 8, 2025 - 5:59 am by

In today’s evolving commercial environment, the concept of business failure is no longer synonymous with stigma or scandal. As Saudi Arabia accelerates its economic transformation, the ability for businesses to restructure, wind down, or exit the market lawfully and transparently has become a critical feature of the Kingdom’s modern legal infrastructure. For business owners, directors, creditors, and foreign investors alike, understanding the legal landscape of insolvency is no longer optional—it is an essential component of risk management.

 

A Legal Framework Built for Economic Resilience

The introduction of the Saudi Bankruptcy Law in 2018 marked a significant shift in the Kingdom’s approach to managing financial distress. Enacted under Royal Decree No. M/50, the law provided a structured and commercially credible framework for businesses to manage insolvency, preserving economic value and market integrity. Its alignment with global norms—particularly the UNCITRAL Model Law on Cross-Border Insolvency—also signalled Saudi Arabia’s intent to position itself as a globally integrated and investor-friendly jurisdiction.

What sets the Saudi regime apart is its dual focus: it offers tools for early intervention when recovery is possible, and it provides mechanisms for orderly exit where continuation is no longer viable. This flexibility has been crucial in destigmatising bankruptcy and fostering a more proactive, compliance-driven corporate culture.

The Human and Commercial Stakes

For directors and shareholders, insolvency is not just a financial event—it is a test of governance. Saudi law imposes clear duties on company leadership once financial instability is evident. Ignoring warning signs or continuing to operate while insolvent may not only worsen outcomes for creditors but could result in personal liability or sanctions. The role of the Bankruptcy Commission, established under the new regime, is to ensure fairness, transparency, and consistency while holding individuals accountable where negligence or misconduct is identified.

Creditors, meanwhile, have a defined path to recover value through structured repayment hierarchies and legal participation in proceedings. Secured creditors, employees, and government authorities are granted priority; however, even unsecured creditors have a meaningful standing in shaping the outcome of restructuring plans or liquidation terms.

A Tool for Economic Continuity, Not Collapse

Too often, liquidation is viewed as the end of the road. In reality, Saudi Arabia’s legal system treats insolvency as a legitimate—and sometimes even strategic—means of market correction and economic renewal. Whether it involves resolving failed startups, distressed joint ventures, or underperforming family businesses, the law offers mechanisms that protect stakeholders and preserve remaining value.

Smaller entities benefit from simplified procedures that ease administrative burdens. Larger firms can explore supervised restructurings that salvage viable operations. In extreme cases where debts exceed asset value, administrative liquidation ensures a fair and efficient closure with regulatory oversight. This layered system reflects a mature and responsible approach to economic management.

Cross-Border Implications and the Need for Legal Foresight

In an increasingly interconnected Gulf economy, cross-border insolvency poses a significant risk that extends beyond theoretical considerations. Multinational entities, foreign investors, and joint ventures operating in the KSA must be acutely aware of how Saudi law interacts with the legal principles of their home jurisdictions. Recognition of foreign insolvency proceedings, creditor claims from abroad, and the handling of assets across borders are complex but navigable areas, provided legal counsel is engaged early.

From Crisis to Compliance

The reality of doing business includes the possibility of failure, but how that failure is managed can define a company’s legacy, protect reputations, and shape future opportunities. Saudi Arabia’s Bankruptcy Law has laid the groundwork for a responsible, transparent, and modern approach to corporate distress. Yet the law alone is not enough. Business leaders must act early, seek legal advice, and approach distress not as a crisis to be concealed, but as a legal process to be navigated with discipline and foresight.

At HMCO, we advise clients across sectors on strategic responses to financial instability, ensuring their decisions today create options, protections, and clarity for tomorrow.

 

 

Navigating Commercial Litigation and Arbitration in Saudi Arabia

Posted on February 24, 2025 - 1:36 pm by

Saudi Arabia’s legal landscape has undergone significant transformation in recent years. These changes have extended to the dispute resolution framework, with enhanced mechanisms for commercial litigation and arbitration. Understanding the evolving legal environment is critical for businesses operating in Saudi Arabia or engaging in cross-border transactions involving the Kingdom. This article explores the key trends, challenges, and strategic approaches to navigating commercial litigation and arbitration in Saudi Arabia.

The Evolving Legal Framework

Saudi Arabia has made substantial progress in aligning its dispute-resolution mechanisms with international standards. Establishing specialised commercial courts under the Saudi Ministry of Justice has streamlined the litigation process, providing businesses with a more efficient platform to resolve disputes. These courts handle cases involving trade, contracts, and corporate matters, ensuring that judges with relevant expertise address commercial disputes.

In addition to commercial courts, Saudi Arabia has strengthened its arbitration framework. The Saudi Center for Commercial Arbitration (SCCA) has emerged as a key institution for resolving disputes outside the courtroom. The SCCA’s rules align with the United Nations Commission on International Trade Law (UNCITRAL) standards, offering flexibility, neutrality, and efficiency. These rules are designed to cater to domestic and international parties, making arbitration a preferred choice for businesses seeking an alternative to litigation.

Recent legislative reforms, including amendments to the Saudi Arbitration Law, have further enhanced the arbitration process. The law explicitly recognises the enforceability of domestic and foreign arbitral awards under the New York Convention, to which Saudi Arabia is a signatory. This has significantly improved investor confidence in the Kingdom’s legal system.

Challenges in Commercial Dispute Resolution

Despite these advancements, businesses navigating commercial litigation and arbitration in Saudi Arabia face several challenges. One of the primary issues is the interpretation of local laws in the context of international disputes. While Saudi courts and arbitral tribunals have made strides in embracing global standards, there can be inconsistencies in applying Sharia principles to commercial matters.

Another challenge is enforcing foreign judgments and arbitral awards. Although Saudi Arabia adheres to the New York Convention, practical hurdles such as procedural delays and variations in judicial interpretation can complicate enforcement efforts. Businesses must ensure their contracts are carefully drafted to minimise potential disputes and streamline enforcement.

Cultural and linguistic differences can also pose challenges for foreign parties. Effective communication and understanding local legal nuances are essential to successfully navigating disputes. This underscores the importance of engaging local legal experts familiar with Saudi Arabia’s judicial and arbitration systems.

Trends Shaping Dispute Resolution in Saudi Arabia

Several trends are shaping the future of commercial litigation and arbitration in the Kingdom. The increasing use of technology in the judicial process, including electronic filings and virtual hearings, has improved accessibility and efficiency.

There is also a growing emphasis on mediation as a dispute resolution. Saudi Arabia’s Ministry of Justice has introduced initiatives to promote mediation as a cost-effective and less adversarial alternative to litigation and arbitration. This trend reflects a global shift towards amicable dispute resolution methods.

Additionally, the SCCA has launched specialised panels for disputes in key sectors such as construction, finance, and technology. This sector-specific approach enhances the efficiency and effectiveness of arbitration by ensuring that experts with relevant industry knowledge preside over disputes.

Strategic Approaches for Businesses

Businesses should adopt proactive and strategic approaches to navigate commercial litigation and arbitration in Saudi Arabia. First, it is essential to draft robust contracts with clear dispute-resolution clauses. These clauses should specify the governing law, jurisdiction, and choice of arbitration rules to minimise ambiguity in the event of a dispute.

Engaging local legal counsel with expertise in Saudi laws and dispute resolution mechanisms is critical. Local experts can provide valuable insights into the legal environment, cultural considerations, and procedural requirements, helping businesses build a strong case.

Businesses should also explore alternative dispute resolution (ADR) methods, such as mediation, to resolve disputes amicably. Mediation can save time and costs while preserving business relationships, making it an attractive option for many parties.

Finally, staying informed about regulatory and procedural updates is essential for businesses operating in Saudi Arabia. The legal landscape is evolving rapidly, and businesses that remain adaptable and well-informed are better positioned to navigate disputes effectively.

Saudi Arabia’s modernised approach to commercial litigation and arbitration reflects its commitment to creating a business-friendly environment that aligns with international standards. While challenges remain, the Kingdom’s evolving legal framework offers significant opportunities for businesses willing to navigate its complexities strategically.

By leveraging robust legal strategies, engaging local expertise, and embracing alternative dispute resolution methods, businesses can effectively resolve disputes and foster long-term success in one of the Middle East’s most dynamic markets. As Saudi Arabia continues to refine its legal systems, businesses that adapt to these changes will be well-positioned to thrive in the Kingdom’s rapidly transforming economy.