DIFC Says Transfer to US Cannot Rely on Safe Harbor

Posted in Regulatory, Technology

By Brian Meenagh

On October 26, 2015, Raja Al Mazrouei, the Commissioner for Data Protection for the Dubai International Financial Centre (the DIFC), issued guidance on the adequacy of US Safe Harbor for the purpose of exporting personal data from the DIFC. The guidance is significant for organisations that transfer personal data from the DIFC to the US and such organisations should urgently review the basis upon which they transfer personal data from the DIFC to the US to ensure that they continue to comply with the DIFC Data Protection Law (No 1 of 2007).

The guidance follows the decision of the European Court of Justice (the ECJ) in Case C-362/14 – Maximillian Schrems v Data Protection Commissioner that Decision 2000/520 of the European Commission, which stated that Safe Harbor-certified US companies provide adequate protection for personal data transferred to them from the EU (the Safe Harbor Adequacy Decision), is invalid.

The key message from the guidance is that:

“the invalidation of the Adequacy Decision by the ECJ provides cause for the Commissioner to reconsider the adequacy status previously afforded under the Law to US Safe Harbor Recipients. However, the Commissioner also understands that there are ongoing negotiations between Europe and US authorities towards an improved Safe Harbor framework and that these negotiations are well advanced. Continue Reading

Abu Dhabi Global Market Publishes New Commercial Regulations and begins Financial Regulation Consultation

Posted in Employment, M&A/ Private Equity, Real Estate, Regulatory, United Arab Emirates


On 15 June 2015, the Abu Dhabi Global Market (Global Market), Abu Dhabi’s financial free zone, published the following six new regulations concerning the regulation of non-financial services in the Global Market:

– Application of English Law Regulations;

– Companies Regulations;

– Operating Regulations;

– Insolvency Regulations;

– Employment Regulations; and

– Real Property Regulations.

As expected from the draft regulations issued by the Global Market earlier this year, the Global Market’s final approach in the regulations follows very closely the English law model. In particular, the Global Market applies English common law, as amended by certain English statutes, as its over-arching legal regime and a slightly modified version of the UK Companies Act (2006) as its company law regime.

On 30 June 2015, the Global Market issued draft regulations and a consultation paper covering the regulation of financial services in the Global Market. The Global Market has stated that these draft regulations are broadly modelled on the UK financial services framework and is seeking feedback on these draft regulations by 11 August 2015.

Please click here to read more about this development.

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The USA Freedom Act: What it Changes and (Mostly) Doesn’t for Cloud Services – And is it Really the Issue

Posted in Outsourcing, Technology

The recent showdown over renewal of certain provisions of the USA Patriot Act (often called simply the Patriot Act) and the subsequent enactment of the USA Freedom Act Abu Dhabi City_dreamstime_4315037have raised a number of questions about the ongoing impact of these laws on data traversing or being stored in the United States. While the new law takes the NSA out of the direct business of maintaining metadata (which includes phone number called, the time and duration of the call, and location information) on all phone calls originating or terminating in the US (with a declared intent of transitioning instead to a program that will allow court-moderated access to phone company data) and reinstates provisions that enable so-called “roving wiretaps” and monitoring of “lone wolves,” it essentially leaves unchanged the underlying laws that govern the US authorities access to data stored in the cloud.

A look back at the history of the Patriot Act and then the specifics of the USA Freedom Act are helpful in evaluating the impact of recent events. First, the Patriot Act.

Rather than create new means of access to data, the Patriot Act primarily streamlined and consolidated various processes that had long been in place—processes similar to those found, it is worth noting, in the laws of many other countries. The Patriot Act made many changes to existing laws, including the Foreign Intelligence Surveillance Act of 1978 (FISA) and the Electronic Communications Privacy Act of 1986 (ECPA), with the stated intent of allowing investigators to “connect the dots” to stop terrorists. From the perspective of a non-US person using a cloud service run by an entity subject to US jurisdiction, perhaps the most significant changes made concerned various thresholds of proof or nexus to gain access to data.  These changes broadened the scope of existing authority and lowered the burden on the government to show the need for access. Despite being passed in the wake of 9/11, the Patriot Act’s enactment was not without controversy and among the compromises made was the inclusion of automatic sun-set for some provisions (in the absence of Congressional reauthorization), including the changes to FISA authorizing enhanced data collection and access. These changes, in Section 215 of the Patriot Act, were largely the basis for the telephone metadata collection program disclosed by Edward Snowden, but are also relevant to access to other data.  So, with the expiration of the most recent extension to Section 215, the changes it made to FISA were swept away, leaving the prior provisions of the underlying statutes in place.

As noted above, the USA Freedom Act extended the effectiveness of the otherwise sun-setting provisions of the Patriot Act, but with notable changes to the collection of phone metadata. The USA Freedom Act, which passed the House of Representatives prior to the expiration of the Patriot Act provisions it replaces, was drafted with the intent of amending and extending the expiring programs. Instead, the relevant Patriot Act provision sun-set before the Senate passed USA Freedom and, not wanting to risk passage or delay implementation of the collection programs, the Senate passed an unamended version of USA Freedom. As a result, USA Freedom does not expressly reinstate the changes made by Section 215 of the Patriot Act, but instead purports to amend the law as it was in place prior to expiration. Therefore, there is some murkiness as to exactly what the new law is, but either way, the underlying basic laws that existed prior to the Patriot Act remain essentially in place and provide for access to information (including data in cloud services) subject to various procedures and levels of review.

The broad rule under the USA Freedom Act is the same as that under the Patriot Act; the government may make requests from the private sector for the production of  “tangible things” (including books, records, papers, documents, and other items) related to foreign intelligence, counterterrorism, and criminal investigations. The USA Freedom Act attempts to strengthen judicial oversight of these requests, making modest changes to the Foreign Intelligence Surveillance Court and significantly prevents the “bulk” collection of records by requiring enhanced specificity in requests. Despite a great deal of discussion in the press, the USA Freedom Act does not appear to create new duties on the private sector to comply with government requests (though the existing duties remain and are substantial). Congress did however grant new protections to the recipients of access requests, including a new right to consult with an attorney before responding to the confidential request.

In any case, with or without the changes in the USA Freedom Act—or with or without the original changes made by the Patriot Act—the US is not the only government with  laws granting law enforcement access to data (including records held by cloud service providers). Indeed, other countries have such laws (or take such actions)—sometimes with less or no process and limited review. France, the United Kingdom, and Canada are among the jurisdictions with such laws, many of which have implemented changes that expand their scope. To be clear, there is no suggestion here that these laws are all the same. The salient point is that the world is full of jurisdictions with laws that afford access to records in cloud storage (not to mention jurisdictions that effectively offer no practical protection against such access). Indeed, setting aside laws and lawful government action, private data—whether stored in a shared cloud or using local storage —is likely far more at risk of unauthorized access from criminal acts and covert state actors (acting both domestically and internationally) than from judicially monitored access grounded in the USA Freedom Act.

As a result, those investigating data protection issues arising from the use of cloud services might be well advised to consider how encryption with customer-held keys might address all of these issues. While governments with jurisdiction over the cloud customer may demand access to corporate records whether they are encrypted or not, the adoption of effective, well managed encryption technology essentially eliminates concerns about other access. And, as the US Office of Personnel Management has been made painfully aware in the past weeks—encryption is something that data subjects (or at least those out for their votes) have come to expect.

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Kuwait Power and Water Projects to Take-Off Following Publication of PPP Regulations

Posted in Kuwait, Power, Project Development and Finance, Regulatory

PPPNew PPP Regulations

Further to the publication of the new PPP law in August 2014, the corresponding executive regulations were published in the official gazette on 29 March 2015.

The new regulations provide developers with additional information and clarification on key procurement matters such as prequalification, bid submission requirements, bid bond requirements, bid evaluation procedures, selection of and negotiation with the preferred bidder, and award of the project. Such clarifications should provide developers with greater certainty as to the procurement process for important upcoming projects such as those mentioned below.

Developers may also be interested to learn that the new regulations permit developers to take the initiative and propose projects to the Kuwait Authority for Partnership Projects (KAPP) which, if accepted, offer certain economic benefits with respect to the costs of the feasibility study for such proposal.

The KAPP has yet to publish an updated PPP Project Guidebook, which developers will be looking towards for practical guidance as to how the new PPP law and regulations are to be interpreted.

Project Pipeline

The KAPP is currently procuring two major independent power and water production complexes in accordance with the new PPP law and executive regulations and the IWPP law and executive regulations.

The first of these complexes is Az-Zour North which is expected to be developed in 5 phases with a total capacity of 4,850 MW of power and 283 MIGD of water. The second of these complexes is Al-Khairan which is expected to be developed in 3 phases with a total capacity of 4,500 MW of power and 125 MIGD of water.

The KAPP was receiving qualifications for Phase 2 of Az-Zour North and Phase 1 of Al-Khairan up until 9 April 2015 and is expected to release the request for proposals (RFP) for Phase 2 of Az-Zour North ahead of the RFP for Phase 1 of Al-Khairan to avoid any overlap in the procurement process for, and to ensure a high level of private sector participation in, both projects.

The projects represent Kuwait’s second and third IWPP, building on the success of Phase 1 of Az-Zour North which established the Kuwaiti IWPP model in 2013.

PPP Infrastructure in Kuwait

Power and water are not the only sectors to be developed in accordance with the new PPP law and executive regulations.

The Government of Kuwait plans to spend USD$47.2 billion on infrastructure projects outlined for 2015 according to

Together with the KAPP, the Ministry of Communications intends to procure a metropolitan rapid transit system (KMRT) and a railway system which are both in the feasibility and study phase. In addition, the Kuwait Municipality intends to procure the KABD Municipal solid waste to energy project, which is in the prequalification phase, and the Ministry of Public Works intends to procure the Umm Al Hayman wastewater project, which has completed the prequalification phase.

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UAE Corporate Law Reform

Posted in Capital Markets, Investment Funds, United Arab Emirates

United Arab Emirates, new commercial Law

The UAE has recently passed a new commercial companies law and approved some key changes to its public takeover regime.

1. New UAE Commercial Companies Law

UAE Federal Law No. (2) of 2015 Concerning Commercial Companies (2015 CCL) was published in the Official Gazette on 31 March 2015 and comes into force on 1 July 2015.

The 2015 CCL is substantially similar to the 2013 draft of the Commercial Companies Law (2013 Draft CCL). The key differences from the 2013 Draft CCL are:

  • Decrease in shareholding required for directors and employees to be related parties to companies in which they hold shares from 35% to 30%
  • Clarification that transactions between joint stock companies and related parties in excess of 5% of the company’s share capital require board and general assembly approval
  • Express provisions which provide for shareholders to elect directors of joint stock companies by way of cumulative voting
  • Increases in several fines for breaching the 2015 CCL, including an increase from AED100,000 to AED1,000,000 for participating in transactions for the purpose of influencing the price of securities.

More generally, the 2015 CCL represents an evolution rather than a revolution for the UAE’s existing commercial companies law. In particular, the rules on foreign ownership remain unchanged. The 2015 CCL retains an odd provision from the 2013 Draft CCL, which provides that all provisions applicable to joint stock companies also apply to limited liability companies. This provision is likely to create much uncertainty – e.g. on the face of this provision, the new prohibition on joint stock companies providing financial assistance would also apply to limited liability companies.

2. New Mandatory Offer Rule

Following reviews conducted by the Emirates Competitiveness Council, the Board of the UAE Securities & Commodities Authority (SCA) has approved changes to several instruments in order to raise the competitiveness of the UAE on the minority investor protection index.

The most significant change is SCA Board approval for a new article to be added to the Disclosure and Transparency Regulations requiring a mandatory offer to all shareholders in accordance with procedures determined by the SCA for any shareholder (or associated parties) in a listed public joint stock company who owns 50% or more and wishes to increase their level of ownership.

The mandatory offer rule and other changes approved by the Board of the SCA are not expected to come into force until June 2015.

The mandatory offer rule would have had a greater impact on the UAE takeover landscape if the threshold had been set at a lower level, such as 30%, which is common in many other jurisdictions.  In addition, it is not yet clear what procedures the SCA will require offerors to follow.

Click here to read more about the new UAE Corporate Law reform.

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Financing the Middle East’s Shopping Spree

Posted in Banking and Finance, Islamic Finance, Qatar, Real Estate, Saudi Arabia, United Arab Emirates

Mall financingThe continuing strong economic conditions of the UAE and other GCC economies has led to an upsurge in consumer spending in recent years. With retail sales in the region expected to reach US$284.5 billion by 2018, the need to meet the growing demand for consumer goods has led to a boom in planned shopping mall developments in the Middle East.


Dubai might be the world’s most visited retail destination thanks to The Dubai Mall, which attracted nearly 80 million visitors last year, but it’s not the only GCC city investing in the retail industry: in Abu Dhabi, 8 new mega shopping centres are to be constructed over the next three years; in Doha, a QAR1.65 billion contract was awarded in 2014 for the construction of the mega Doha Festival City development; and in Jeddah, Al Futtaim Group will partner with Kayannat Real Estate Company to build and operate the SAR6 billion Mall of Arabia.

Many of these mall developments are financed through a combination of debt and equity, allowing lenders to mitigate their exposure and ensuring sponsors hold enough risk to be incentivised to deliver a successful project. Below are five key considerations to note when financing shopping malls in the region:

1. Market Knowledge: Lenders will typically require a market study as part of their due diligence. Recently, in Saudi Arabia there has been a gap in the market for luxury malls and lenders have generally been happy to fund these projects absent the need for a market study.

2. Tenant Profiles: The most successful mall developments have an anchor tenant profile comprised of (i) a mixture of brands with an established track record in other malls in that market and/or region and (ii) high profile brands and franchises which are new to the market. To successfully commit financing, a developer needs to secure leases from a select basket of anchor tenants for a period of time at least as long as the tenor of the financing.

3. Financing Structure: Mall developments have typically been structured as structured financings rather than project financings. Key structuring aspects to note include:

  • Sponsors are required to contribute equity up-front and to cover cost-overruns.  Occasionally, there may be cost overrun facilities (but with increased pricing).
  • Sponsor guarantees cover completion of the project, cost overruns and amounts due to lenders under the financing and are usually in place for the tenor of financing.
  • Stringent account waterfall structures (often with cash-sweeps) are documented with security granted over accounts.
  • Security will also be taken over shares in the project company, all real property, rights over tenancy contracts and other material contracts, performance bonds, insurance policies and other significant income streams.

In light of the sponsor support identified above, the covenant and reporting regimes tend to be lighter than those documented in a project financing.

4. Construction Risk: The support arrangements described above also means that limited (if any) due diligence is performed on the construction contracts.

5. Zoning and Permitting Issues: Zoning, permits and utilities are key; these can be time consuming to obtain but are required as a condition to funding.

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How Oil and Gas Companies can Optimize Technology Performance and Costs During Oil Price Volatility

Posted in Oil & Gas, Outsourcing, Qatar, Saudi Arabia, Technology, United Arab Emirates

An unexpected surge in production coupled with weakened global demand has resulted in a 50 percent drop in the price of crude oil since June 2014 and currently averaging US$50 a barrel. The Organization of the Petroleum Exporting Countries (OPEC) announced it would leave market forces to determine crude oil price and would not cut oil output. The current oil price is the lowest it has been since Spring 2009. As oil and gas companies begin to feel the pressure of oil price volatility, efforts become focused on reducing capital and operating costs while maintaining, or improving operational services, particular technology services.

In parallel with this trend, the Middle East is one of the world’s fastest growing information technology markets with total technology spend predicted to have exceeded US$32 billion in 2014 and 10.71 percent of such spending attributed to the GCC oil and gas sector. Executives in the oil and gas sector recognise the need to invest in technology goods, software and services in order to maintain competiveness in global energy markets and to protect the critical infrastructure of their companies from cyber security threats. In the foreseeable future this recognition will be balanced against the need to manage or reduce costs associated with technology services.

So how can oil and gas companies achieve this? Here’s four approaches to consider:

1. Effective asset management: Does the company pay maintenance fees for “shelfware”, i.e. software or hardware that was bought in bulk but is not actually being used? Such fees rapidly erode any volume-based discount obtained for buying the software or hardware in the first place and over time can become a significant drain on technology budgets with no corresponding benefit to the company. In addition, the absence of centralised asset management capabilities within a company can sometimes result in the procurement of additional licenses to use software or additional hardware, notwithstanding existing stockpiles of unused software licenses or hardware in a separate part of the company. According to a Gartner research paper from 2013, introducing an effective asset management programme can help companies achieve savings of 30% in associated technology costs within one year. Part of an effective asset management program includes reviewing existing technology vendor agreements to understand the company’s ability to reuse or transfer software and hardware within the company, to return unused software or hardware and to terminate ongoing maintenance and support arrangements related to unused software and hardware.

2. Renegotiate existing vendor agreements: If a vendor agreement is coming up for renewal, or if the company is planning to procure additional goods or services from a vendor then the company should seek to renegotiate the commercial terms previously agreed with the vendor to share the risk caused by the volatility in oil prices. This may be achieved by agreeing on lower rate cards for personnel involved in the provision of services, discounted unit prices for software and hardware and a flexible pricing mechanism that allows the company to reduce its spend with the vendor as needed to reflect changing demand within the company for the vendor’s goods and services.

3. Outsourcing: Outsourcing of a company’s specific technology or business process functions is a proven way of reducing both capital and operating costs. By outsourcing, a company can transfer the need to make significant capital expenditure, such as large investments in technology infrastructure, to their vendor and enter into an arrangement whereby the vendor agrees to provide the outsourced function, like application management and support, back to the customer over an agreed period of time for a lower cost than the customer can itself provide the same function.

4. Cloud computing: The cost-efficiency benefits of cloud computing are widely acknowledged yet concerns relating to data security and integration have impeded large-scale deployment in the region. According to IDC only 30 percent of oil and gas companies operating in the Middle East and Africa have implemented a private cloud solution, and only 15 percent have adopted the public cloud. The cloud is not the solution for all of a company’s technology needs, but can present an effective solution for hosting volume-intensive public-facing components of a company’s technology environment, such as corporate websites and customers apps.

One, or a combination of these approaches, can form the basis of effective strategy for oil and gas companies to deal with the competing challenge of increasing technology performance while reducing technology cost. Execution of such a strategy not only requires collaboration and alignment across a company’s technology, procurement and finance functions, but also requires the involvement of a company’s internal or external lawyers to ensure that the company understands its ability to achieve cost savings in existing vendor agreements and captures agreed performance improvements and cost savings in new or renegotiated vendor agreements, as well as identifying and mitigating risks associated with the procurement of technology.

In addition, execution of any cost-reduction strategy should not sacrifice or dilute a company’s information security and governance mechanisms or increase the risk of the company being subject to a cyber-attack. Cybercrime is, unfortunately, a growing trend in the Middle East and globally and companies must continue to take measures to maintain and strengthen their defences against security vulnerabilities and ensure they have a plan in place to deal with the consequences of a security breach. See our previous blog post “5 Ways to Protect your Business from a Cyber Attack” for more information on this topic.

Latham & Watkins’ technology transactions and outsourcing team has advised on many of the world’s largest and most complex business process, IT and network outsourcing transactions and is ranked as one of the top technology and outsourcing legal practices in the world. Please contact us if you would like to receive further information or discuss this topic further.


What You Need to Know About Abu Dhabi Global Market’s New Draft Regulations

Posted in Banking and Finance, Capital Markets, Regulatory, United Arab Emirates

The Abu Dhabi Global Market, Abu Dhabi’s new financial free zone, located on Al Maryah Island, recently issued a first wave of draft regulations and related consultation papers.

The Global Market’s general approach in the draft regulations follows very closely the  English law model. In particular, the Global Market is proposing to apply English common law and certain English statutes in the Global Market. No draft financial services regulation was included in the first wave of regulation. The draft financial services regulation is expected to follow later this year.

In addition, the Global Market flagged that its initial key anchor sectors will be private banking, wealth management and asset management, which represents a much narrower focus than contemplated in the Global Market’s earlier press releases.

Please click here for more detail on this development.

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Navigating the Risks of Omnichannel Retail

Posted in Intellectual Property

Digital innovation is reinventing the retail experience. IT is changing the way retailers interact with customers by integrating sales and communication channels, enabling in-store digital interfaces and diversifying payment platforms.

As retailers look to fuse existing operational silos in favour of an omnichannel strategy, the role of IT is increasingly recognized as critical to achieving seamless and integrated retail experiences.

Omnichannel retailing combines the bricks and clicks aspects of retail, allowing for multiple, easily accessible retail touchpoints or channels. At the same time, it can effortlessly customize the  customer interface, based on their past purchases and preferences.

Key Considerations for Omnichannel Retail Success

  • Integration: Aspiring omnichannel retailers seeking to connect inventory, supply-chain, order management & distribution, Customer Relationship Management (CRM), marketing and Point of Sale (PoS) systems are likely to face back-office technology integration challenges as traditionally these operational functions have worked autonomously. Yet centralizing these systems is key in achieving an omnichannel strategy. Currently there exists a disconnect between internal technology and business functions. Therefore retailers must align the capabilities of its IT assets with overall business strategy.
  • Investment: Technology investment is too often evaluated from the perspective of cost-reduction. Retailers need to assess the advantages IT can bring to business operations such as service innovation, customer analytics and product development. For example, centralizing all data can enable retailers to more effectively understand customer behaviour and detect purchasing trends which may not be visible to an organization that houses data by department.
  • Innovation: Innovation is quick to outdate. The industry is just beginning to trial and implement digital technologies such as mobile PoS, virtual mirrors, interactive displays and RFID inventory. As such, retailers need to implement flexible and interoperable systems that can adapt and expand with the needs of their business.

Navigating the Risks of Omnichannel Retail

In addition to these strategic considerations, the contract for the implementation of an omnichannel retail system needs to address a number of key commercial, operational and legal risks:

  • Operational and delivery risk including running over budget or time; incompletion; failure of system to meet business requirements; over-engineering, poor quality, inefficient maintenance; and changing requirements over time.
  • Intellectual Property Risk such as ensuring that the retailer has sufficient rights to use the system; owns any bespoke developments or innovations which give it an advantage over its competitors; and is not “locked in” to a relationship with a vendor by virtue of having no rights to use the system should it terminate its relationship with the vendor.
  • Liability risk such as protecting the retailer from third-party claims related to its use of the omnichannel system; ensuring that the retailer may bring a claim to recover its actual losses in the event of a breach by the vendor; and ensuring that the retailer’s exposure to liability from the vendor is commensurate with the fees being paid by the retailer to the vendor.

Each of these risks are significant and result in material losses caused by failure. It is essential that retailers address these risks in agreements with vendors and take great care in determining the manner in which a systems implementation is priced, vendor performance is incentivised and implementation is governed and managed.

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Kuwait Projects to Press Ahead Following PPP Law Publication

Posted in Kuwait, Power, Project Development and Finance

The financial close of the 1500 MW and 105 MIGD Az Zour North independent water and power project (IWPP) in January 2014 served as the trailblazer for the start of the public-private partnership (PPP) programme in Kuwait, representing the first project under the new PPP Law. The development of the Kuwaiti PPP projects market hinges on the publication of the executive regulations to the new PPP law which was published in August 2014. The Director General of the Partnerships Technical Bureau (PTB) suggested that the executive regulations are substantially complete and on schedule for publication in early 2015 at the recent MEED Kuwait Projects conference held in November this year.

Executive Regulations Target 2015 Launch

The new PPP law provides that the executive regulations should be published within six months of the new PPP law, which suggests a long-stop date of sometime in February 2015. According to Kuwait’s National Assembly Financial and Economic Affairs Committee, given Kuwait’s need for mega-financing and advanced technology transfer, all new projects are intended to be implemented pursuant to the new law.

5 Considerations of Kuwait’s New PPP Law

Project developers and lenders should be aware that Kuwait’s new PPP law impacts:

  • Existing Projects: Permitted to continue in accordance with the terms of their concession and related licenses until they expire, or terminate earlier in accordance with their terms but no amendments to the concession or related licenses are permitted after the new PPP law takes effect. This is an important provision for developers of and lenders to existing projects who may be questioning what impact such a change in law may have on their existing projects.
  • New Regulators: The Supreme Committee for Projects will be replaced by the Supreme Committee for PPPs (SCPPP) who will, among other things, approve new PPP projects, handle land allocations for such projects and approve both the successful bidder and the project documents. The PTB will also be replaced by the Public Authority for PPPs (PAPPP) who will, among other things, nominate the successful bidder and prepare the project documents and establish the public joint stock company which will undertake the project. PTB’s transition to a formal government entity should help expedite the procurement process and it is anticipated an updated PPP Project Guidebook will shortly follow to reflect how the new law and executive regulations will impact project procurement and implementation.
  • Shareholdings: The previously set 26 percent floor continues to apply to the successful bidder and although it is a floor, depending on the proposed shareholding offered to bidders, developers (and lenders) will be focused on how the successful bidder secures management and board control in the project company. Conversely, the 24 percent ceiling continues to apply to the relevant public authority, although there is now also a 6 percent floor. In addition, the 50 percent allocation for public offering continues to apply. PAPPP is envisaged to subscribe for the shares allocated to both the relevant public authority and the public.
  • Project Financing: Lenders may be interested to learn that whilst restrictions still exist on taking security over the land allocated for the project, the project company may encumber the other project assets as part of the security package. As was the case under the old laws, it seems only the successful bidder may, with the SCPPP’s approval, pledge its shares in the project company.
  • Extended Term: Whereas the old laws limit the concession period from 25 to 40 years, projects may now have up to a 50 year concession period.

Project Pipeline

New projects such as the 1500 MW and 100 MIGD Az Zour North IWPP Phase 2, the 2500 MW and 125 MIGD Al Khairan IWPP and the 280 MW Al Abdaliyah Integrated Solar Combined Cycle Project along with many others, have been on hold pending the publication of the new executive regulations. Consequently, 2015 could be a very active year for developers and lenders in the Kuwaiti projects market.

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