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Exploring Saudi Arabia’s New Economic Zones: Legal Considerations and Implications for Businesses

Posted on May 24, 2023 - 9:52 am by

Under Saudi Arabia’s Vision 2030 plan, the country has established special economic zones (SEZs) that play a pivotal role in driving economic growth, fostering innovation, and generating employment opportunities.

These SEZs represent significant potential for transforming Saudi Arabia’s business landscape. In this article, we delve into the new special economic zones in Saudi Arabia, shedding light on their distinctive characteristics and emphasising the crucial legal aspects that businesses should carefully consider. By understanding these economic zones comprehensively, businesses can make informed decisions and effectively navigate the dynamic business environment in Saudi Arabia.

  1. a) Special Economic Zones (SEZs): SEZs focus on specific industries such as technology, logistics, and manufacturing. They offer tax incentives, simplified regulatory processes, and infrastructure development to attract domestic and foreign businesses.
  2. b) Free Zones: Free zones provide a favourable environment for international trade by allowing duty-free imports, relaxed customs regulations, and simplified business setup procedures. They are typically located near major ports or airports, facilitating logistics and transportation.
  3. c) Industrial Cities: Industrial cities are designed to promote industrial development and manufacturing activities. They provide infrastructure, utilities, and services tailored to the needs of industrial businesses, enabling cost-effective operations.

When establishing or operating a business within Saudi Arabia’s economic zones, it is essential to consider the following legal aspects:

Company Formation: Businesses must adhere to the applicable company formation regulations, including obtaining the necessary licenses, permits, and approvals from the relevant authorities. The legal structure options include limited liability companies, joint ventures, and branches of foreign companies.

Foreign Ownership and Investment: The Kingdom has introduced initiatives to liberalise foreign investment, allowing increased foreign ownership in certain sectors. However, specific regulations and restrictions may still apply, and businesses should review the Foreign Investment Law and sector-specific regulations to understand the extent of foreign ownership allowed.

Employment and Labour Laws: Companies operating within the economic zones must comply with Saudi Arabia’s labour laws, including regulations related to employment contracts, wages, working hours, and the recruitment of foreign workers. Understanding the local labour regulations is crucial to ensure compliance and maintaining healthy employer-employee relationships.

Intellectual Property Rights (IPR): Protecting intellectual property is vital for businesses. It is essential for businesses to register their patents, trademarks, and copyrights. Saudi Arabia has significantly strengthened its IPR laws and enforcement mechanisms.

Businesses that choose to operate within Saudi Arabia’s economic zones can benefit from the following:

Tax Incentives: Economic zones offer attractive tax incentives, including corporate income tax exemptions for specific periods, reduced customs duties, and exemptions from certain local fees. These incentives aim to enhance the business environment and improve the overall competitiveness of the zones.

Access to Markets: Saudi Arabia’s strategic location and extensive transportation infrastructure provide businesses in the economic zones with easy access to regional and global markets. This accessibility can facilitate trade and boost business growth.

Infrastructure and Support Services: Economic zones provide modern infrastructure, utilities, and support services tailored to the needs of businesses. This includes access to transportation networks, power supply, telecommunications, and business support facilities, creating an enabling environment for operations.

Collaboration Opportunities: Economic zones often foster collaboration and knowledge exchange among businesses. This can lead to partnerships, joint ventures, and innovation, providing business expansion and growth opportunities.

Regulatory Flexibility: SEZs have streamlined regulatory processes, making it easier for businesses to establish and operate within the zones. This includes simplified licensing, permits, and approvals procedures, reducing bureaucratic hurdles.

Access to Talent: SEZs promote talent development and entrepreneurship by fostering collaboration between businesses, universities, and research institutions. This encourages knowledge sharing, innovation, and the growth of a skilled workforce, creating a conducive environment for businesses to thrive.

Saudi Arabia’s new economic zones present exciting prospects for businesses looking to establish or expand their operations in the Kingdom. However, understanding these economic zones’ legal considerations and implications is paramount for success. Businesses should be aware of the regulatory frameworks, licensing requirements, and potential tax incentives specific to each economic zone. Additionally, they should carefully assess intellectual property rights, labour laws, and dispute resolution mechanisms applicable within these zones.

It is crucial for businesses to engage legal counsel with expertise in Saudi Arabian laws and regulations to navigate the complexities of operating within the economic zones. Furthermore, maintaining compliance with local laws, regulations, and business practices is essential for long-term success and avoiding legal complications.

By proactively addressing the legal aspects associated with Saudi Arabia’s economic zones, businesses can capitalise on the opportunities presented by these zones while mitigating potential risks. A robust understanding of the legal landscape will enable businesses to make informed decisions, establish a strong foothold in the Kingdom, and contribute to the country’s overall economic diversification goals outlined in Vision 2030.

Keeping it in the Family: Resolving Disputes in Family Businesses

Posted on May 16, 2023 - 9:42 am by

Family businesses are unique in their dynamics, combining the intricacies of both business and personal relationships. These enterprises often span generations, with a deep-rooted sense of tradition and shared history. However, the qualities that make family businesses successful can lead to conflicts and disputes. Disagreements can arise due to differences in vision, management styles, and expectations among family members. Resolving these disputes amicably is crucial to maintain harmony within the family and ensuring the long-term sustainability of the business.

When conflicts emerge within a family business, the stakes are high. Disagreements can not only strain personal relationships but also jeopardise the financial health and reputation of the enterprise. It is essential to address disputes promptly and amicably to prevent them from escalating and causing irreparable damage.

Preserving the family’s unity and fostering a collaborative environment can help overcome challenges and lay the foundation for continued success and prosperity in the family business. Family members can work together to find mutually beneficial solutions by opting for amicable resolution methods. There are several measures available, which include:

Mediation and Conciliation:

Mediation and conciliation often provide a less adversarial and more collaborative approach to resolving disputes, preserving family relationships and business interests. Engaging a neutral third party, such as a professional mediator or a trusted family advisor, can help facilitate open communication and negotiation between conflicting parties.

Review the Business’s Legal Framework:

Familiarise yourself with the legal structure of the family business, including any governing documents such as partnership agreements, bylaws, or shareholder agreements. These documents can outline dispute resolution mechanisms, including arbitration or alternative dispute resolution methods, which may offer a faster and more cost-effective means of resolving conflicts than traditional litigation.

Engage Experienced Legal Counsel:

When legal complexities arise, seeking the advice of experienced legal counsel specialising in family business disputes is essential. A skilled legal professional can guide you through the legal process, help assess the merits of your case, and suggest the most appropriate course of action. They can also provide valuable insights into relevant Saudi Arabian laws and regulations, ensuring compliance and protecting your business interests.

Explore Alternative Dispute Resolution (ADR):

ADR methods, such as arbitration or mediation, can offer advantages over traditional litigation. These processes are often more time-efficient, confidential, and flexible, allowing the parties to tailor the resolution process to their needs. ADR can be particularly beneficial for family businesses, providing a more private and less adversarial setting for resolving disputes and minimising potential damage to family relationships.

Document Agreements and Compromises:

In a settlement or agreement reached through mediation or negotiation, it is crucial to document the terms in writing. This agreement should include clear details regarding the resolution of the dispute, any financial settlements, and future actions or obligations. A written agreement helps prevent misunderstandings and provides a legal reference point in further disputes.

Litigation:

While litigation should be the last resort, there may be instances where it becomes necessary to protect the interests of the family business. In such cases, it is crucial to ensure that all legal requirements are met, including filing the appropriate documents and adhering to prescribed procedures and timelines set by the Saudi legal system. Engaging experienced legal counsel specialising in family business litigation can provide valuable guidance and representation throughout the process.

Family businesses play a vital role in the economic landscape of Saudi Arabia, making substantial contributions to its growth and employment. Given their significance, these businesses are subject to various legal laws and regulations in the country. These laws serve as a framework to ensure the smooth functioning and stability of family businesses, protecting the interests of all stakeholders involved. They aim to promote transparency, accountability, and fairness within family businesses while providing clear guidelines for their management and operations; these regulations include:

Saudi Arabian Companies Law:

The Companies Law, issued by the Ministry of Commerce and Investment, provides the general legal framework for all companies in Saudi Arabia, including family businesses. It covers company formation, governance, shareholder rights, and capital requirements matters.

Commercial Companies Law:

The Commercial Companies Law, enacted in 2015, specifically addresses regulations related to joint-stock companies, limited liability companies, and partnerships in Saudi Arabia. It defines the rights and obligations of shareholders, directors, and managers and rules for capital contributions, profit distribution, and shareholder meetings.

Saudi Arabian Labour Law:

The Labour Law governs the relationship between employers and employees, including family members working in the family business. It addresses employment contracts, wages, working hours, leave entitlements, termination, and dispute resolution between employers and employees.

Inheritance Law:

Family businesses are often closely tied to inheritance in Saudi Arabia. The Sharia-based inheritance law governs the distribution of assets and shares within the family upon the death of a business owner. It outlines the rights and entitlements of heirs, including family members involved in the family business.

Regulatory Laws:

Family businesses may also be subject to sector-specific regulations and laws based on their industry or activities. For example, finance, healthcare, real estate, or construction businesses may have to comply with specific laws and regulations about those sectors.

Compliance with these legal requirements is crucial for family businesses to uphold their integrity, sustain long-term growth, and navigate potential challenges effectively. By adhering to the applicable laws and regulations, family businesses in Saudi Arabia can foster a favourable environment for business continuity, preserve family harmony, and contribute to the overall economic prosperity of the nation.

Resolving legal disputes within family businesses requires a delicate balance between protecting the business interests and maintaining family relationships. Family businesses can effectively navigate and resolve disputes by employing mediation, exploring ADR methods, seeking legal counsel, and ensuring compliance with relevant legal frameworks. Ultimately, the goal should be to preserve family harmony and the long-term sustainability of the business.

Saudi Arabia Passes New Amendments to the Personal Data Protection Law

Posted on May 2, 2023 - 5:09 pm by

Saudi Arabia has taken a momentous stride towards safeguarding individual privacy by passing the new amendments to the Personal Data Protection Law (“PDPL”). In a rapidly evolving digital landscape, privacy regulations have become crucial in ensuring personal data’s secure collection, processing, and storage.

This article delves into the key revisions introduced by the new amendments to the PDPL in Saudi Arabia and their potential implications for businesses and individuals. The Saudi Council of Ministers recently approved the amendments to the PDPL pursuant to Royal Decree No. M147 dated 05/09/1444H corresponding to 27/03/2023G. The PDPL was originally issued in September 2021 and was planned to come into effect during March 2023 due to it being revised and subject to public consultation which has seen some changes made to the original PDPL. The amended PDPL will now come into effect 720 days following its publication in the official gazette, which will be by 14/09/2023, where those who are subject to the PDPL being granted a one-year grace period to comply with the PDPL.

The PDPL brings about significant changes to the existing legal framework for data protection, aimed at aligning the country’s data protection practices with international standards. The key factors and changes introduced by the PDPL and its amendments include:

Applicability:

The PDPL applies to the processing of personal data of individuals in the Kingdom of Saudi Arabia (“KSA”), including if such processing of data occurs from outside of KSA. An exception to this is where the processing of personal data is done by an individual for personal or family use, so long as such personal data is not published or disclosed to others. It should be further noted that the upcoming Implementing Regulations should clarify the meaning of ‘personal or family use’.

Legitimate interests for processing:

Controllers may now process and disclose personal data on the basis of legitimate interest, as long as it does not breach the data subject’s rights or interest under the PDPL and that such data is not regarded as ‘sensitive data’. The forthcoming Implementing Regulations are expected to provide further guidance with respect to what constitutes ‘legitimate interest’.

Data breaches:

Unlike the previous PDPL, controllers are now relieved from the obligation to immediately notify the competent authority upon discovering a data breach, including unauthorized access or loss of personal data. The Implementing Regulations are expected to provide the deadline for such notifications in case any personal data has been leaked or damaged.

International data transfers:

The amendments have brought about one of the most significant changes to the original PDPL. Under the old framework, controllers were prohibited from transferring personal data outside of KSA or disclosing it to any entity outside KSA, except under extreme circumstances, which typically required the approval of the competent authority. However, under the recent amendments, controllers are no longer required to obtain approval from the competent authority prior to transferring or disclosing personal data to an entity outside KSA. The transfer or disclosure of personal data is generally allowed (with certain conditions) under the amendments for specific purposes, including obligations under international agreements in which KSA is a party, serving national interests, performing obligations to which the data subject is a party, or for any other purpose as determined by the Implementing Regulations.

However, controllers must comply with certain conditions when transferring or disclosing personal data outside the Kingdom for any of the aforementioned purposes. These conditions include ensuring that the transfer or disclosure does not adversely affect the national security or vital interests of KSA and ensuring that the jurisdiction to which the personal data is transferred or disclosed has protection measures that are no less than those provided under the PDPL and its Implementing Regulations. The Implementing Regulations may exempt controllers from these conditions under certain circumstances as specified by SDAIA.

Registration requirement and appointing local representative:

Prior to the amendments, the original PDPL mandated controllers to register through SDAIA’s electronic portal and pay an annual fee not exceeding SAR 100,000. However, the amendments have removed this obligation. Nevertheless, the Implementing Regulations will outline situations where controllers are required to designate one or more personal data protection officers and define their responsibilities in accordance with the provisions of the PDPL.

Penalties and criminal sanctions:

The amended PDPL has now removed the restrictions and penalties relating to the transfer of personal data outside of KSA which were imposed by the original PDPL, as the criminal sanctions under the amended PDPL have now been somewhat limited. Such sanctions under the amended PDPL would be applicable in the event of unlawful publishing or disclosure of sensitive personal data in breach of the provisions of the PDPL if it was done with the intention of harming the personal data subject or for the purpose of personal gains. Such penalties include a fine not exceeding SAR 3,000,000 and/or imprisonment for a period not exceeding two (2) years. Further sanctions may be imposed in case of violating the PDPL including issuing a warning or a fine not exceeding SAR 5,000,000 which may be doubled in case of repeat violations.

Compliance Checklist: Essential Steps for Companies to Comply with the PDPL:

Organizations and businesses subject to the PDPL are required to take necessary steps to ensure compliance with the law upon its commencement on September 14th, 2023. In order to comply with the PDPL, businesses are advised to:

  • Conduct staff training on the PDPL and integrate data protection policies and measures in the business.
  • Revise internal and external policies, such as privacy notices, to ensure compliance with the PDPL.
  • Identify the types of data collected and the purpose of collection.
  • Implement data minimization procedures to limit personal data processing and collection.
  • Monitor internal data flow to ensure transparent storage and transfer of personal data.
  • Develop and amend policies and procedures, including contracts, to reflect individual data rights and obligations.
  • Implement technical and organizational procedures to safeguard and protect personal data.

The data privacy landscape in KSA is changing rapidly, requiring companies to adopt effective privacy practices. To ensure compliance with the PDPL, local and international businesses should conduct a privacy audit assessment and follow the steps outlined above. Developing and implementing a clear privacy framework will help inform employees and consumers about internal processes that keep information secure and the individuals responsible for managing the program. It is important to note that privacy frameworks can and should be tailored to a business’s specific needs, resulting in an appropriate privacy governance framework that meets the necessary standard under the PDPL.

If you need further support or information regarding the PDPL or require assistance with your privacy policies, please do not hesitate to contact us.

Unlocking the Potential of Project Financing in Saudi Arabia’s Energy Sector

Posted on May 2, 2023 - 9:59 am by

Project financing has played a significant role in the development of the energy sector in Saudi Arabia. The Kingdom is a critical player in the global energy industry, and its vast oil and natural gas reserves have helped fuel economic growth for decades. In recent years, however, the Saudi government has recognized the need to diversify the country’s energy mix and reduce its reliance on fossil fuels. As a result, there has been a surge in investment in renewable energy projects, which has required innovative financing solutions.

Project financing is a method in which the lender provides financing for a specific project based on its expected cash flows rather than the borrower’s assets. This method of financing is often used in large infrastructure projects, such as those in the energy sector, where the risks and costs are high. In Saudi Arabia, project financing has become an increasingly popular method of financing energy projects, particularly those involving renewable energy sources.

The Saudi government has set ambitious targets for renewable energy development, with plans to generate 9.5 gigawatts of renewable energy by 2023 and 58.7 gigawatts by 2030. The government has launched several initiatives to achieve these targets, including the National Renewable Energy Program (NREP) and the Green Middle East Initiative, which aim to attract private sector investment in renewable energy projects.

One of the advantages of project financing is that it allows investors to spread their risks across multiple stakeholders. In the energy sector, this means that lenders can share the risks associated with the project developers, contractors, and other stakeholders. This approach can help reduce the project’, making it more attractive to investors.

Another advantage of project financing is that it provides a structured framework for managing the project’s cash flows. This is particularly important in the energy sector, where projects can have long lifetimes and complex cash flow structures. Project financing allows investors to manage these cash flows in a predictable and structured manner, which can help to mitigate the risks associated with the project.

In Saudi Arabia, project financing has been used to fund a range of energy projects, including solar and wind power plants and transmission and distribution infrastructure. For example, in 2018, the Saudi Arabian government signed an agreement with a consortium of international lenders to finance the 300 MW Sakaka solar project, which is expected to generate electricity for 75,000 households. The project is being developed by ACWA Power, a Saudi-based energy developer, and is one of the first utility-scale solar projects in the country.

Another notable project in Saudi Arabia is the Dumat Al Jandal wind farm, which is being developed by a consortium led by French energy company EDF Renewables. The project, which is expected to have a capacity of 400 MW, will be the country’s first utility-scale wind farm and is expected to generate electricity for up to 70,000 homes. The project is financed through a mix of equity and debt, with international lenders providing project financing.

Project financing is a complex process that requires careful consideration of various legal aspects. This is particularly true in Saudi Arabia, where the legal system is based on Islamic law, and local regulations can differ from those in other countries. This article will explore some critical legal aspects investors and developers should consider when seeking project financing in Saudi Arabia.

Contractual Frameworks

One of the most important legal aspects of project financing in Saudi Arabia is the contractual framework that governs the project. The contractual framework should clearly define the rights and obligations of all parties involved in the project, including the lender, borrower, and other stakeholders. It should also establish dispute resolution mechanisms in case of disagreements.

In Saudi Arabia, project agreements are typically governed by Saudi Arabian law, and ensuring that the contracts comply with local regulations is essential. Investors should also consider incorporating Shariah-compliant financing structures based on Islamic finance principles.

Security and Collateral

Another critical legal aspect of project financing in Saudi Arabia is the security and collateral required to secure the loan. Lenders typically require a range of security and collateral to protect their investment, including mortgages, pledges, and guarantees.

In Saudi Arabia, the legal system recognizes various forms of collateral, including real estate, movable assets, and shares in a company. Ensuring that the collateral is appropriate and enforceable under Saudi Arabian law is important. It is also essential to ensure that the collateral is sufficient to cover the loan in case of default.

Regulatory Compliance

Saudi Arabia has a highly regulated business environment, and project financing transactions are subject to various regulatory requirements. Investors and developers must comply with various laws and regulations related to foreign investment, taxes, and environmental protection.

Working with experienced legal advisors familiar with the local legal and regulatory environment is essential to ensure regulatory compliance. Before starting the project, investors and developers should also obtain all necessary licenses and permits.

Dispute Resolution

Disputes are an inevitable part of any project financing transaction, and it is essential to establish clear and effective dispute resolution mechanisms. In Saudi Arabia, disputes can be resolved through various methods, including arbitration, litigation, and mediation.

Arbitration is often preferred as it is more efficient and confidential than litigation. Investors should ensure that the dispute resolution mechanism is clearly defined in the contractual framework and complies with local regulations.

As the Kingdom progresses toward a more sustainable future, project financing in the energy sector will undoubtedly play a crucial role. By prioritizing the legal aspects of project financing, investors and developers can ensure that their renewable energy projects in Saudi Arabia are set up for success. With the right approach and partnerships, project financing in Saudi Arabia can unlock opportunities for growth, innovation, and long-term success in the energy sector.

However, investors and developers must know the various legal aspects of project financing in Saudi Arabia. This includes ensuring the contractual framework is transparent and complies with local regulations, providing sufficient collateral, and meeting all necessary regulatory requirements. Effective dispute resolution mechanisms must also be established to mitigate potential conflicts. Working with experienced legal advisors can help ensure a successful project financing transaction in Saudi Arabia.

Powering Up: M&A in Saudi Arabia’s Energy Sector

Posted on May 2, 2023 - 9:57 am by

Mergers and acquisitions (M&A) within the energy sector in Saudi Arabia has become increasingly common in recent years. With the country being the largest oil exporter in the world, the energy sector is a critical component of the Saudi Arabian economy. As such, M&A activity within this sector has significant implications for both the country and the global energy industry.

M&A activity within the energy sector in Saudi Arabia is primarily driven by a desire to increase operational efficiencies, gain access to new technologies, and expand market share. Additionally, the recent economic and political reforms in the country have encouraged foreign investment, which has further fuelled M&A activity within the energy sector.

One notable example of an M&A within the energy sector in Saudi Arabia is the acquisition of a 70% stake in Saudi Basic Industries Corporation (SABIC) by Saudi Aramco, the state-owned oil company. The acquisition was completed in 2020 and was one of the largest M&A deals in the world, valued at $69.1 billion. The acquisition allowed Saudi Aramco to diversify its business and expand its downstream capabilities, while also giving it access to SABIC’s technology and expertise.

Another notable example of an M&A within the energy sector in Saudi Arabia is the acquisition of a 51% stake in ACWA Power, a leading developer and operator of power generation and desalinated water plants, by the Public Investment Fund (PIF), the sovereign wealth fund of Saudi Arabia. The acquisition was completed in 2018 and was valued at $1.2 billion. The acquisition allowed PIF to expand its investments in the renewable energy sector and support the country’s efforts to diversify its energy mix.

Here are some continued themes impacting the energy sector in Saudi Arabia:

Diversification of the energy mix: Saudi Arabia has set ambitious goals to diversify its energy mix and increase its share of renewable energy. The country plans to develop 58.7 gigawatts (GW) of renewable energy capacity by 2030, which would account for 30% of the country’s energy mix. This shift towards renewables is expected to reduce the country’s reliance on oil for power generation and support its efforts to reduce greenhouse gas emissions.

Continued investment in the energy sector: Saudi Arabia has signaled its commitment to investing in the energy sector to support its economic growth and diversification goals. The country’s Public Investment Fund (PIF) has announced plans to invest $40 billion annually in the domestic economy, with a significant portion of this investment expected to be directed toward the energy sector.

Expansion of Renewable Energy: The country has set ambitious targets for renewable energy, with a goal of generating 50% of its electricity from renewable sources by 2030. This target is expected to drive significant investment in the renewable energy sector, particularly in solar and wind power.

Increased Foreign Investment: Saudi Arabia has been actively seeking foreign investment in the energy sector, particularly in the form of joint ventures and partnerships. The recent reforms in the country, coupled with its large reserves of oil and gas, are likely to attract continued foreign investment in the sector.

Growth in the downstream sector: The country has significant downstream capabilities, with its state-owned oil company, Saudi Aramco, being one of the largest downstream players in the world. The country is expected to continue to invest in its downstream sector to capture more value from its oil and gas resources and support the growth of its petrochemicals industry.

Adoption of new technologies: Saudi Arabia has been exploring the use of new technologies in the energy sector, such as carbon capture and storage (CCS) and hydrogen production. These technologies could help the country reduce its carbon footprint and increase its energy efficiency. Saudi Arabia is expected to adopt new technologies to increase operational efficiencies and reduce costs in the energy sector. This includes the adoption of digital technologies such as artificial intelligence, the internet of things, and blockchain to improve efficiency, reduce costs, and enhance safety.

Impact of Global Energy Transition: The global transition to cleaner energy sources is likely to have a significant impact on the energy sector in Saudi Arabia. While the country is taking steps to diversify its energy mix, it remains heavily dependent on oil exports. As the demand for oil declines in the global market, Saudi Arabia may need to adjust its energy strategy to remain competitive.

M&A activity within the energy sector in Saudi Arabia is subject to a range of legal and regulatory requirements. The Saudi Arabian General Investment Authority (SAGIA) and the Capital Market Authority (CMA) regulate M&A activity in the country and must approve all transactions. Several laws impact energy companies in Saudi Arabia who are considering an M&A. Some of the key laws are as follows:

Companies Law: The Companies Law in Saudi Arabia governs the formation, operation, and dissolution of companies in the country. The law provides guidelines on the various types of companies that can be formed, their legal structure, and the rights and obligations of shareholders. Any M&A transaction involving a company in Saudi Arabia must comply with the requirements of the Companies Law.

Antitrust Law: The Saudi Arabian General Authority for Competition (GAC) is responsible for enforcing the country’s antitrust laws. These laws prohibit anti-competitive practices, such as price fixing and market allocation, and require that M&A transactions be reviewed for potential anti-competitive effects.

Foreign Investment Law: The Saudi Arabian General Investment Authority (SAGIA) is responsible for regulating foreign investment in the country. The Foreign Investment Law outlines the rules and regulations governing foreign investment in Saudi Arabia, including the procedures for establishing and registering foreign-owned companies.

Environmental Laws: Energy companies in Saudi Arabia are subject to a range of environmental laws and regulations that are designed to protect the environment and public health. These laws cover areas such as air and water pollution, waste management, and environmental impact assessments.

Tax Laws: M&A transactions may have tax implications for energy companies in Saudi Arabia. The country has a complex tax system, with different tax regimes for different types of companies and industries. Energy companies should seek professional tax advice before engaging in an M&A transaction.

Securities Law: The Capital Market Authority (CMA) regulates the securities market in Saudi Arabia. Any M&A transaction that involves a public company or the issuance of securities must comply with the requirements of the Securities Law.

In conclusion, the energy sector in Saudi Arabia is expected to undergo significant changes in the coming years, driven by a range of factors such as diversification, renewable energy, foreign investment, new technologies, and the global energy transition. While these changes may bring challenges, they also present opportunities for the country to adapt and thrive in a rapidly evolving energy landscape.

Hammad & Al-Mehdar Contributes the Saudi Arabia Chapter to The Mergers & Acquisitions Review, 14th Edition

Posted on July 2, 2021 - 10:08 am by

HAMMAD & AL-MEHDAR CONTRIBUTES THE SAUDI ARABIA CHAPTER TO THE MERGERS & ACQUISITIONS REVIEW, 14TH EDITION

Hammad & Al-Mehdar partner Abdulrahman Hammad and senior associate Samy Elsheikh author the Saudi Arabia chapter of The Mergers & Acquisitions Review, 14th edition, published by Law Business Research.

The chapter provides a deep dive into the relevant laws and regulations relating to the Saudi Arabia’s M&A sphere, and is an important comparative reading for counsel and managers looking acquisitions or divestitures in the Kingdom.

The chapter is available for download here.

Updated Regulations for JAFZA Offshore Companies Introduce New Benefits for International Investors

Posted on July 2, 2021 - 10:23 am by

UPDATED REGULATIONS FOR JAFZA OFFSHORE COMPANIES INTRODUCE NEW BENEFITS FOR INTERNATIONAL INVESTORS

The Jebel Ali Free Zone Authority (“JAFZA”) issued a new Companies Regulation pertaining to offshore companies (“New Regulations”), which repeals and replaces the JAFZA Offshore Companies Regulations 2003. Whilst the set enforcement date is not yet announced, JAFZA have already verbally confirmed that a specific date will be announced shortly. The New Regulations provide foreign investors new ways to structure their investments in the UAE, mitigating against potential risks of carrying out business in the UAE, whilst also granting them additional announced privileges to help attract foreign investment and ensure stability.

New Privileges

  • Residence visas. An Offshore Company, which owns a property in a designated freehold area in the UAE can now apply to JAFZA for residency visas for its members (such as directors and shareholders).
  • Increased permitted activities. An Offshore Company can now own a property in any of the designated freehold areas in the UAE as well as use the property as its registered office. The Offshore Company can also own a stake in another operating company onshore in the UAE.
  • Conversion and redomiciliation. Subject to conditions, a foreign company may re-domicileas a JAFZA Offshore Company. Offshore Companies in JAFZA can now also re-domicile to a foreign country. This ability to re-domicile simplifies the transition for a foreign company to the JAFZA as it no longer requires the establishment of a branch or new company.

Enhanced Governance

  • Multiple share classes. An Offshore Company can now create different classes of shares giving the company the ability to allocate different voting rights or rights to dividends Amongst shareholders.
  • Streamlined director requirements. The director requirements for an Offshore Company have now decreased from a minimum of two directors to a minimum of one director. The director is no longer required to be a natural person and can now be a body corporate entity (subject to the approval of JAFZA)
  • Resolution requirements. A minimum percentage of shareholders required to pass any resolution is now 75%, increased from the previous requirement of a simple majority.

The Value of a Term Sheet

Posted on July 2, 2021 - 10:23 am by

THE VALUE OF A TERM SHEET

Many businesses, small and large, retain attorneys to draft transaction documents and simply let them have at it. This is especially the case if there is a pressured timeline. What many business leaders forget, however, is that bare-bone, “high-level” agreements amongst themselves are not always sufficient to reach execution of the intended transaction. So when lawyers return with first drafts, most of the terms, many of which are vital to the transaction, will be seen (or maybe even heard of for less weathered SMEs) for the first time by the decision makers. Negotiations then ensue on commercial terms, sometimes transaction structure, as well as drafting and legal language. Not only does such a wide scope of negotiations results in delays to closing, but it also yields a high transaction cost with lawyers at both sides attempting to address a minefield of commercial, structural, drafting, and legal input. This takes place despite agreement on some of what the proprietors thought were the “high-level” terms, mostly commonly: valuation, duration, and what is being transacted, and results in frustration and agitation with the process. In many instances a deal falls apart despite agreeing on price and duration because the parties fail to reach agreement on other major terms such as warranties, guarantees, protective provisions, and liability limits.

In some circumstances, incurring high transaction cost can even form additional pressure to close on the transaction and therefore weaken the party’s negotiating hand because it will not be able to justify the high legal costs on a failed or abandoned transaction.

Enter the well-structured term sheet: a summarized version of the major terms of the transaction set out in a simple table format that can be easily understood and negotiated by the business proprietors and decision makers, and provides a concrete basis for legal drafting. The term sheet is brief and flexible enough to allow the commercial teams to negotiate the various terms without needing to incur the added expense of lawyers, yet is detailed enough to give a solid foundation for the lawyers when they draft the definitive documents. Putting together the term sheet is commonly advised on in the first instance by lawyers, but its existence reduces the scope of negotiation after the decision makers sign the term sheet to drafting and legal language.

To give an example from our practice, a corporate client (“Buyer”) shook hands with its counterpart (“Owner”) of a healthcare facility to acquire a 51% share of the facility company for USD 10,000,000, and sent us an email to commence drafting with definitive document drafts due at the soonest as the parties reached agreement and wanted to execute. Soon after we commenced drafting, it surfaced to us that while Owner understood that the transaction was for the sale of shares, the Buyer had intended subscription, with the funds going to the co-owned company for use in the facility rather than going to the Owner. It then took two months of negotiation and several rounds of meetings to agree on a combined subscription and partial exist structure, and of course new documents had to be drafted. After that, negotiations ensued on the scope of the representations and warranties, board and shareholders’ rights, company capital structure, and many other vital terms the parties had not considered previously, with each change and revision by the client requiring changes to the definitive agreements, and necessitating a full review of the documents to ensure that the change is reflected and harmonized throughout the documents. At the end it took nearly 6 months for this transaction to reach signing.

This prolongation and the costs associated with it could have been avoided had an accurate, well-structured, and professionally-advised term sheet been drafted at the forefront, then negotiated and agreed by the parties. The Owner and the Buyer would have had clarity and mutual understanding of the major commercial and legally material elements of the transaction before incurring definitive agreement drafting costs.

Methodical transaction-focused businesses deploy term sheets with rigor. We see this with banks, venture capital and private equity firms, and professional joint venturers. These transaction experts have honed their transaction skills and optimized transaction costs, including legal spend, and as lawyers, we concur with their practice. Term sheets help reduce legal fees, and provide for a better overall transaction structure and experience.

The Unified Registry for Commercial Pledges Takes Effect in Saudi Arabia

Posted on July 2, 2021 - 10:23 am by

THE UNIFIED REGISTRY FOR COMMERCIAL PLEDGES TAKES EFFECT IN SAUDI ARABIA

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:

1.    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.

2.    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.

3.    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:

1.    The pledgee can request termination, or a judicial body may order the cancellation;

2.    Expiry of the pledge duration, subject to condition three below;

3.    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.

OECD Now Requires All Zero-tax Countries to Apply Substance Criteria

Posted on August 19, 2021 - 3:09 pm by

The Organization of Economic Cooperation and Development (OECD) has put a spotlight on the privileged tax regimes of all zero and low tax jurisdictions. In order to level the playing field between jurisdictions in a context where taxpayers can easily relocate their mobile activities in response to tax considerations or with the intent to evade applicable substantial activity requirements, OECD aim to impose substance criteria on zero and nominal tax jurisdictions and provide guidance on their implementation. The OECD’s substance criteria is mainly grounded in minimum operations requirements and transparency of information.

Whom it applies to (OECD, 2018):

  1. Jurisdictions that do not impose a corporate income tax.
  2. Jurisdictions that impose only nominal corporate income tax to avoid the requirements.
  3. NOT jurisdictions that have been reviewed on the basis of the preferential regimes they offer (unless they undertook reforms that abolish their corporate income tax altogether).

The business activities that are subject to the substance criteria fall into the categories of headquarters, distribution centers, service centers, financing, leasing, fund management, banking, insurance, shipping, holding companies and the provision of intangibles (OECD, 2018).

The requirements (OECD, 2018):

  1. Define the core income generating activities for each relevant business sector.
  2. Ensure that core income generating activities relevant to the type of activity are undertaken by the entity and are undertaken in the jurisdiction.
  3. Require the entity to have an adequate number of full time employees with necessary qualifications and incurring an adequate amount of operating expenditures to undertake such activities.
  4. Have a transparent mechanism to ensure compliance and provide an effective enforcement mechanism if these core income generating activities are not undertaken by the entity or do not occur within the jurisdiction.

Note: OECD’s report points do not automatically bind any entity until legislation has been enacted for the purpose of complying with these requirements; therefore, it is important to observe the precise laws Saudi Arabia and other jurisdictions will introduce in this regard.

For more information regarding OECD’s substantial activity requirement please contact Kenan Nagshabandi at:

E: kenan.nagshabandi@13.233.247.59

M: + 971 (0)502355321 / +966 (0)599986020

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