European Union added UAE to the blacklist of alleged tax havens. What are the consequences for investors?
From a tax perspective, the last week was quite controversial for the UAE.
On March 11, the Ministry of Finance celebrated the 30th anniversary of the first double taxation agreement to protect and encourage investment. The very next day, on March 12, the European Union finance ministers agreed to add the UAE to a blacklist of alleged tax havens (‘EU Black List’).
Consequences for Investors of EU blacklisting
EU member countries can and are to some extent obligated to apply defensive measures against black listed countries.
These measures may include in the tax area administrative measures like:
- reinforcing transaction monitoring,
- increasing audit risks for tax payers benefiting from the respective regimes, and
- increasing audit risks for tax payers using structures or arrangements involving these jurisdictions.
EU countries are obligated to apply at least one of the mentioned measures.
The fact, however, that the UAE has been added to the EU Black List has no impact on existing double taxation agreements or on any national tax law.
In the light of the above, very little has changed. Businesses domiciled in tax havens have always been in the focus of tax audits. Nevertheless, the blacklisting will certainly increase the intensity of tax audits for European entrepreneurs doing business in the UAE.
Consequently, European investors should be even more cautious. Whether and to what extent the corporate structure of a business or the private environment of an Investor contains risks, only a law expert can decide. However, European investors should – inter alia – make sure that:
- his business in the UAE has a certain substance;
- the management of his business is residing in the UAE;
- in case of a mainland company the agreements with the local sponsor (holding 51% of the shares) do not constitute the beneficial ownership of the foreign investor, as this may trigger tax liability in the foreign investor’s home jurisdiction. In most cases foreign investors use ‘simple’ trustee agreements with the local sponsor which constitute the beneficial ownership of the trustor, i.e. the foreign investor;
- in case a European citizen has a residency in the UAE, he should avoid any arrangements that might indicate another residency in the EU.
The above recommendations are not new. But after the UAE has been added to the EU Black List, it is even more important to comply with the double taxation agreements and the applicable national tax laws of the EU member states.
The EU Black List should be updated at least once per year. Taking into account that the inclusion of the UAE was a particularly thorny issue, with Italy and Estonia pushing until the last minute to get the UAE off the list, and the announcements of the UAE that it will give its best endeavors to comply with international tax standards, it is to hope that the UAE will be removed from the EU blacklist very soon.
New DIFC Employment Law Expected to Introduce Minimum Limit of 50% of Employee’s Gross Salary as Basis for End of Service Gratuity Calculation
The new law is expected to be enacted around Q1 of 2019 and to introduce significant changes to the current DIFC Employment Law (DIFC Law No. 4/2005, as amended by DIFC Law No. 3/2012) as per the consultation papers published in early 2018. For instance, it is expected that the current Article regulating the end of service gratuity will be amended by limiting the minimum percentage at 50% of what an employee’s basic salary may be as a proportion of their gross salary for purposes of calculating the gratuity payment.
Dr. Ghassan gave students of the Institute for Entrepreneurship & Business Excellency an overview of the fiscal pitfalls of e-commerce businesses operating on an international level.
Middlesex University, Dubai. Dr. Ghassan gave students of Institute for Entrepreneurship & Business Excellency an overview of the fiscal pitfalls of e-commerce businesses operating on an international level.
In the UAE post-termination restrictions are a common practice and imposed by the employer to prevent that the employee joins a competitor after terminating the employment. Such covenants are lawful, but only to the extent which is necessary for protection of the legitimate interests of the employer.
In order to be considered valid by the UAE courts, the post-termination restriction must be limited in terms of duration, place, and with regard to the business field.
Regarding the limit to the length of time, 6 months are generally accepted as being reasonable. However, a restriction of up to 12 months might be acceptable by the courts if there are unique reasons in relation to the employee and his position that require a wider restriction. Secondly, regarding the geographical restriction, the restriction to the Emirate in which the employee has been working is generally accepted as being reasonable (for instance Dubai), unless there are specific reasons that might justify a wider restriction. Lastly, the employee’s business field and position has to be determined, whereby the activity sought to be restricted should be well defined and specific.
As a general observation, the degree of probability that non-competition clauses are considered valid rises the higher the employee’s position has been, considering that senior employees are more likely to have access to business secrets.
In case of an invalid non-competition provision, the courts strike them out in their entirety if considered unreasonable in time, place and/or business sought to be restricted, rather to “blue pencil” such agreements.
In case the non-compete clause is ignored by the employee, the employer may not stop the employee or physically prevent the employee via court order from joining a competitor, since injunctions to stop working with a competitor are not available through the UAE courts (different in the jurisdictions of DIFC and ADGM where interim reliefs are available).
However, in the event of breach of a non-compete clause, the employer may commence a civil claim for damages. The statute of limitations for labour cases is one year from the date of alleged breach of a non-compete clause. The employer would have to prove any damages and substantiate the actual amount of loss incurred as a result of the employee’s breach of non-compete clause.
In case a liquidated damage clause has been included in the agreement the employer who is seeking compensation under the liquidated damage clause would need to prove the fact that loss was incurred, without substantiating the actual amount of loss. It would be up to the employee to challenge the amount agreed upon in the clause. The court then may vary the parties’ agreement and accordingly set aside entirely the liquidated damages in case of the employer suffering no loss or award lesser damages reflecting the actual loss.
An arbitration case comes to the end with the issuance of an arbitration award to each party. If the losing party does not honour the arbitral award, the enforcement institutions of the state in which the assets of the losing party are located, need to be called.
What the winning party needs to do
In the UAE, the enforcement of an arbitral award requires the submission of request regarding issuance of both – the confirmation of the award and the order to enforce the award (the ‘Enforcement Order’). With the new Arbitration Law, the enforcement proceedings now commence directly before the UAE federal or local Court of Appeal and not before the Courts of First Instance as earlier. With by-passing of the Court of First Instance, the time and cost consuming procedures to challenge the Enforcement Order have been reduced. This is a very positive development.
Said Request for enforcement must be accompanied by the original award or a certified true copy thereof, a copy of the arbitration agreement, a certified Arabic translation of the arbitral award, and a copy of the transcript of filing the judgment with the court.
Within 60 days, the court shall confirm and enforce the arbitral award unless, it finds that one or several reasons for annulment of the arbitral award, as mentioned in Art. 53 of the new Arbitration Law, exist.
The Grievance to challenge the Enforcement Order or the rejection thereof must be filed within 30 days following the date of being notified thereof.
It is important to mention that, besides submitting the request regarding issuance of Enforcement Order, the winning party may and shall seek a freezing order from the civil court to preserve the losing party’s assets until the arbitral award can be enforced.
The losing party’s options
Within 30 days following the notification of the arbitral award, the losing party can file a so called ‘Action for Annulment’ and prove the existence of one or several reasons for annulment as mentioned in Art. 53 of the new Arbitration Law, like the absence of an arbitration agreement, lack of capacity of one of the parties, no proper notice of the appointment of an arbitrator, and/or the violation of the litigation principles, etc.
The judgment rendered by the court upon the Action for Annulment is not subject to appeals. However, the court from which the annulment of arbitral award is sought may – upon request – suspend the annulment proceedings for a period not exceeding 60 days and give the Arbitral Tribunal the opportunity to take any action that may eliminate the causes of annulment without affecting the content of the arbitral award.
We think that the new Arbitration Law achieves a very welcomed shortening of the enforcement procedure. Apart from this, it remains to be seen how the new Arbitration Law will be implemented by concerned enforcement bodies.
Dr. Ghassan teaching ‘international taxation’ at SRH Hochschule in Berlin. The university appointed Dr. Ghassan who is an accredited tax lawyer in Germany as visiting professor for ‘international taxation’. Ghassan’s lecture covers several fiscal aspects of doing business on an international level with a clear focus on Double Taxation Agreements between the Gulf states and European countries.
Following the ratification of the OECD’s Common Reporting Standard (CRS) in July 2014, some 104 countries have now dedicated themselves to financial transparency. While 55 countries, including most EU countries, already started to automatically exchange information beginning January 1st, 2017, the remaining countries will do so a year later.
The UAE is one of the countries that will start collecting data from January 1st, 2017 and will report all data collected during the period of January 1st till December 31st 2017 in September 2018.
Accounts that existed prior to January 1st, 2017 (“Pre-Existing Accounts) will be exempted from the Automatic Information Exchange if the account balance is less than USD 250,000.
What does automatic information exchange mean?
On the basis of CRS, participating countries exchange data on a global scale in order to share information on the assets of income of residents in different countries. The information is obtained by local financial institutions so that local tax authorities automatically exchange with other jurisdictions. The purpose is to track individuals who may have been attempting to avoid paying tax in the country they are resident.
Far-reaching exchange of information
Financial institutions in Dubai are obliged to report all individual accounts and also accounts opened by a financial entity, including financial information on interests, balances, dividends and sales proceeds from financial assets and also information on who owns which company shares.
Information exchange only on non-UAE- residents
As far-reaching as CRS is, it only affects non-residents as it is not bound on citizenship.
The UAE “tax resident definition” provides that an Individual is a UAE resident, who holds:
- A valid Emirates ID and
- A valid Residency Visa.
This allows for many individuals to be exempt from stating personal financial information by getting a UAE resident visa. So far, the “residency test” does not require to provide the bank with a “utility bill” or a lease contract. However, to be prepared for any tightening, one should consider to have such documents in place or to arrange for a tax residence certificate.
Is a Legal Entity subject to the Automatic Information Exchange?
An entity that is incorporated, registered, managed and controlled within the territory of the UAE is not subject to the Automatic Information Exchange.
It seems that in practice even for legal entities a physical address will be required in order to exempt them from the CRS. This practical approach is reasonable as a legal entity without a physical presence would not be able to manage and control the company from the UAE.
In the light of the above, Offshore Companies or the so-called International Business Companies (IBCs) registered in one of the Offshore Jurisdictions in the UAE, such as JAFZA, Ajman Free Zones or RAK ICC (former: RAKIA Offshore), do not have physical addresses in the UAE. A registered address (with the Offshore agent) will naturally not be considered as a physical address.
Free Zone Companies and Mainland Companies do have physical addresses. However, even these entities should take precautious measurements in order to make sure that the requirements are met in order to be exempt from the CRS.
Considering CRS’ high efficiency profile, it is advisable to get professional advice. We will advise and help you with your questions regarding CRS, and assisting you with applying for a resident visa or setting up a free zone company.
Dubai Court Ruling on Non-Registered Distribution Agreement:
- No automatic renewal of a limited-term Distribution Agreement by the continuation of Trade
- No compensation for non-renewal/termination of a Distribution Agreement
Azhari Legal Consultancy successfully defended its client, a German manufacturer (the “Client”), in a lawsuit against a UAE authorized distributor (the “Distributor”) seeking compensation for the termination of an authorized distributor agreement before the Dubai Courts.
The Client appointed a UAE-based trading company as its exclusive distributor for the UAE and other GCC countries. Since the distributor agreement was not registered with the Ministry of Economy, the provisions of the UAE Agency Law did not apply.
The Client and the Distributor entered into a distributor agreement (the “Distributor Agreement”), in 2011, which had a fixed term of 3 years and contained a provision that the Distributor Agreement can be renewed if agreed so by the parties in writing. After the expiry of the Distributor Agreement, the parties negotiated the terms of a new distributor agreement. However, the parties failed to agree on all terms of the new agreement, and consequently, they never signed a new agreement. The Client did not appoint a new authorized distributor in the UAE. Instead, the Client only delivered to the Distributor whenever a purchase order was received from the Distributor.
Later on, as the Distributor failed to pay the purchase price, the Client initiated legal proceedings with the aim to get a judgment regarding its outstanding purchase price amounting to EUR 300,000.
During the legal proceedings the Distributor raised counter-claims requesting an amount of approximately AED 2 million as a compensation for the ‘termination’ of the Distributor Agreement. The counter-claims sought to recover expenses of marketing, costs of training of employees and renting of warehouses as well as a compensation for loss of business and income because of the termination.
The legal question in this case was – inter alia – whether the existence of the trading relationship between the Client and the Distributor after the expiry of the Distributor Agreement constituted an implied extension of the expired Distributor Agreement.
In its final judgment, the Dubai Court opined that (1) the continuation of the trading relationship between the parties did not constitute an implied extension of the expired Distributor Agreement as this Agreement provided that any extension requires to be in written form and (2) the non-renewal of the Distributor Agreement does not give rise to a compensation claim against the Client. Moreover, the Dubai Court regarded the Client as merely a supplier and the Distributor as an independent merchant and compelled the Distributor to pay the claimed amount.
Registered vs Non-registered Commercial Agency
The case decided by a final judgment of the Dubai Courts refers to a non-registered commercial agency.
If the commercial agency agreement would have been registered with the Ministry of Economy, the outcome might have been different in a drastic way for the Client.
The UAE Commercial Agency Law (Federal Law 18 of 1981) has strict requirements that govern the relation between the commercial agent and the principal. For instance, the commercial agent must be a UAE national (or a legal entity 100% owned by a UAE national(s)) and the agreement between the agent and the principal must be attested (notarized) and registered with the Ministry of Economy.
Termination or non-renewal of an agency agreement (or the distribution agreement), once registered with the Ministry of Economy, requires legal ground. Without a justifiable legal ground, which is defined very narrowly by the courts, or mutual agreement, it can be extremely difficult to terminate the agency agreement. Moreover, depending on the circumstances of the termination, the courts may give the agents substantial compensation for the damages suffered as a result of the termination.
In practice, even though the idea of entering the market through a local agent has its perks, such as the agent’s knowledge of the market, it could be more attractive for the principal to enter into an agreement which is not subject to the UAE Commercial Agency Law, as a registered agreement would be extremely difficult to terminate (even if there are fixed terms), would give exclusivity to the agent and ultimately substantial control for the agent over the subject matter of the agreement.
Therefore, it is very crucial to carefully draft an agency agreement, whether subject to the UAE Commercial Agency Law or not, in order to avoid adverse legal consequences.
Azhari Legal Consultancy (“ALC”) is currently representing a significant client, a foreign engineering and architecture company, in an International Chamber of Commerce (“ICC”) Arbitration case in Dubai. In this case, ALC team of attorneys and professional staff is offering its breadth of experience and knowledge to arbitrate a dispute in connection with one of the most distinguished construction projects of the region. We will keep you updated on the progress of the case.
On November 14, 2016, Nima Michael Moshggoo, Esq., attorney-at-law from Azhari Legal Consultancy, held a presentation as part of a seminar in respect of financial planning in the UAE. Titled “Protection and Financial Planning in UAE,” the talk focused on what expatriates in the UAE can do to properly manage their finances and protect their assets. Nima covered the topic of Wills and Guardianship and explained the different solutions for protecting the expats’ assets and children when the family goes through difficult times of losing a loved one.