Al-Mirsal

SAMA Updates Payment Services Provider Licensing Regime in the KSA

Posted in Regulatory, Saudi Arabia

The updates are part of SAMA’s efforts to promote an innovation-based financial technology ecosystem in the KSA.

By Salman Al-Sudairi, Brian A. Meenagh, and Homam Khoshaim

Last month, the Saudi Arabian Monetary Authority (SAMA) issued an update to the recently implemented Payment Services Provider Regulations (PSPR), which was introduced in January 2020 to regulate Payment Services Providers (PSPs) operating in the Kingdom of Saudi Arabia (KSA). The PSPR provides a clear path for PSPs to obtain SAMA-issued licenses to provide payment services in the KSA. Notably, the PSPR applies concepts implemented by the European Union’s Payment Services Directive (PSD2). This should remove some of the friction involved in international PSPs launching operations in the KSA by allowing them to apply the same business models and operating processes already applied in the jurisdictions in which they operate. Continue Reading

The DIFC Prescribed Company: A Guide to Uses and Requirements

Posted in M&A/ Private Equity

By Christopher Lester and Connie Leung

The Prescribed Company Regulations offer a more flexible incorporation and permitted purposes regime than its predecessor, the Special Purpose Company Regulations.

Prescribed Companies are a type of corporate vehicle available in the Dubai International Financial Centre (DIFC), the financial free zone of the Emirate of Dubai, United Arab Emirates (UAE). Prescribed Companies are categorised as Private Companies under the DIFC Companies Law No. 5 of 2018 (the Companies Law), but are exempted from certain requirements otherwise applied to Private Companies under the Companies Law and the accompanying DIFC Companies Regulations 2018 (the Companies Regulations), such as the requirement to audit or file its accounts with the DIFC Registrar of Companies. Prescribed Companies are subject to lower DIFC incorporation and licensing fees, and are permitted to use, as their registered office, the DIFC registered office of their associated Qualifying Applicant or Registered Person, or to obtain a DIFC registered office through a corporate services provider.

These benefits make Prescribed Companies amenable for use as holding or interim holding entities within wider transaction, financing or asset holding structures, subject to requirements around the ownership and control of the Prescribed Company, and the permitted purposes of the Prescribed Company.

Read the full Client Alert.

 

Technology Contracting and COVID-19 — 5 Key Issues for Middle East Customers

Posted in Technology

Navigating the impact of the pandemic on technology contracting in preparation for a post-COVID-19 world.

By Brian Meenagh and Alexander Hendry*

A recent Latham.London blog post recommended five steps that customers should take when procuring technology and related services in light of COVID-19 and future pandemics. This blog post examines five additional considerations for customers based in the Middle East.

As a starting point, the recommendations in the Latham.London post still apply, and Middle East customers should:

  1. Have an open discussion with the vendor about the potential service impacts of COVID-19
  2. Structure the service in the most resilient way possible
  3. Consider whether internal (or other third-party) solutions can fill any gaps
  4. Make clear which party will bear any remaining risk of service disruption
  5. Ensure that the output of discussions about “risk” flows through to the fee arrangement

In addition, Middle East customers should consider the following.

Continue Reading

COVID-19: Managing Financial Difficulties in the United Arab Emirates

Posted in Banking and Finance, Restructuring & Insolvency

Understanding bankruptcy laws in the UAE and DIFC in the context of COVID-19-related financial pressures.

By Nomaan A. Raja and Aly Kassam

COVID-19 has already caused wide-scale disruption to numerous industries both locally and globally. Whilst efforts are underway to stop the spread and impact of COVID-19, the financial and social impact of the virus will be felt for many months to come. As companies come to terms with working from home arrangements and the new landscape in which they operate, some business inevitably will experience financial difficulties (be it short term or longer term). Governments are releasing stimulus packages which will, no doubt, go some way to assuage some of the impact but given the global impact of the virus it is likely that some businesses will face difficult decisions.

Read the full Client Alert.

Update on the UAE Foreign Direct Investment Law: Part 1

Posted in M&A/ Private Equity

UAE Federal Cabinet approves Positive List of activities eligible for up to 100% foreign ownership.

By Christopher Lester and Connie Leung

WAM, the Emirates News Agency, reported on 2 July 2019 (the WAM Report) that the UAE Federal Cabinet has approved 122 economic activities across 13 sectors that will be eligible for up to 100% foreign investment (the July 2019 Cabinet Decision). This approval is the latest development in the UAE’s move towards encouraging foreign direct investment in priority sectors in the country, within the framework of the Federal Law No. 19 of 2018 Concerning Foreign Direct Investment (the FDI Law). The full list of economic activities and sectors (the Positive List) will be confirmed when the July 2019 Cabinet Decision is published in the Official Gazette — expected around 30 July 2019.

Read the full Client Alert.

New UAE Health Law Enters Into Effect

Posted in United Arab Emirates

Healthcare entities should immediately assess whether Federal Law No. 2 of 2019 applies to their practices.

By Brian A. Meenagh

On 6 February 2019, the President of the United Arab Emirates (UAE) in conjunction with the UAE Minister of Health and Prevention (the Minister) issued a new law on the use of information and communications technology (ICT) in health fields in the UAE. Federal Law No. 2 of 2019 (the Law) entered into effect in May 2019 and will likely affect the activities of a number of entities operating in the healthcare sector in the UAE, including healthcare service providers, life sciences companies, cloud service providers, healthcare IT systems suppliers, and medical insurance providers. Continue Reading

DIFC Issues New Direct Marketing and Electronic Communications Guidelines

Posted in United Arab Emirates

The DIFC guidelines provide practical guidance for DIFC-registered entities engaging in electronic direct marketing, including useful “dos” and “don’ts”.

By Brian A. Meenagh, Fiona M. Maclean, and Laura Holden

What Do DIFC-Registered Entities Need to Know?

In January 2019, the Commissioner for Data Protection for the Dubai International Financial Centre (DIFC) issued new Direct Marketing and Electronic Communications Guidelines, aimed at DIFC-registered entities that collect and maintain personal data for electronic direct marketing purposes.

The document provides practical guidance on the rules relating to the collection, maintenance, and use of personal data for electronic direct marketing purposes set out in the Data Protection Law, DIFC Law No.1 of 2007 (DP Law), which is based on the (now superseded) UK Data Protection Act 1998 and EU Data Privacy Directive 1996. However, the guidelines also take into account the latest direct marketing requirements under the General Data Protection Regulation (GDPR) and the Privacy and Electronic Communications Directive 2002, providing practical examples of “do’s” and “don’ts” for entities to consider. The guidelines also appear to leverage provisions from the October 2018 draft of the EC’s new e-Privacy Regulation (ePR) which is currently anticipated to come into force in 2021. Continue Reading

UAE Free Zone Navigator

Posted in Emerging Companies, United Arab Emirates, Venture Capital

 

United Arab Emirates (UAE) free zones are attractive jurisdictions for early and growth-stage companies. Free zones are designed to encourage startups and foreign investors through simpler processes and procedures, permiting 100% foreign ownership. However, the more than 45 free zones in the UAE each have their own  rules and regulations, so choosing the right free zone can be a complicated decision.

Latham & Watkins, in partnership with VentureSouq, has developed the UAE Free Zone Navigator, an innovative online resource to help entrepreneurs, investors, and fast growth companies determine the most appropriate free trade zone when looking to establish a presence in the United Arab Emirates.

The UAE Free Zone Navigator compares 11 popular free zones across 19 industries, from e-commerce to gaming and augmented reality.

Click here to access the Navigator.

 

 

Dubai Health Authority Issues New Telehealth Regulations

Posted in Healthcare

International and local health providers in the UAE are increasingly looking to provide telemedicine services in the region. While the regulation of telemedicine remains inconsistent across the country, Dubai seems to be leading the way with significant regulatory developments in 2017.

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Federal Regulatory Landscape

To market healthcare services in the UAE, a healthcare provider must establish a legal presence, hold a commercial licence to do business in the UAE (or in a free zone in the UAE), and possess the relevant healthcare provider licence. Until recently, the Abu Dhabi Health Authority (HAAD) was the only UAE health authority with a regulatory framework for telemedicine. While the Dubai Healthcare City Authority (DHCCA) has not yet implemented a telemedicine regulatory regime, the Dubai Health Authority (DHA) recently implemented regulations governing the provision of telehealth care services in Dubai.

Dubai

Previously, the DHA did not permit the licensing of telemedicine, with the exception of teleradiology. However, the DHA issued new regulations (DHA Regulations) on 21 February 2017 (effective on the date of issuance), permitting the licensing of telehealth care services (including telemedicine). The DHA Regulations stipulate that any natural or legal person wishing to establish, operate, or provide telehealthcare services in Dubai must obtain a licence from the DHA. The DHA Regulations also expressly allow healthcare facilities to add telehealthcare services to their existing licences.

Abu Dhabi

HAAD implemented a sophisticated regulatory regime for telemedicine in 2013, under which it issued a telemedicine licence to the Abu Dhabi Telemedicine Centre. However, HAAD had suspended telemedicine licensing in Abu Dhabi for several months. Latham understands that HAAD recently lifted this suspension, as HAAD is currently accepting applications from parties interested in obtaining a telemedicine license.

A healthcare facility wishing to provide teleconsultation services from Abu Dhabi must be a HAAD-licensed healthcare facility specifically licenced to provide teleconsultation, or an existing HAAD-licenced facility authorised by HAAD to provide teleconsultation.

Dubai Healthcare City

The DHCC initially appeared to be taking the lead in the region in developing telemedicine as the DHCCA had reportedly licensed at least one hybrid telemedicine establishment. However, Latham understands that the DHCCA is now no longer licensing telemedicine establishments in the DHCC until the UAE government issues federal regulations that specifically govern telemedicine in the country. Notwithstanding the foregoing, the DHCCA is currently accepting applications from parties interested in practicing telemedicine in the DHCCA to determine if the practice can be permitted under an existing license category in the DHCC. The DHCCA will review such applications on a case-by-case basis.

One of the key drawbacks in practicing telemedicine in the UAE at this time is that it is unlikely that any of the three regulators will allow a healthcare provider to prescribe medication for patients without an in-person consultation.

  • The HAAD Standards in Abu Dhabi strictly preclude licensed telemedicine practices in Abu Dhabi from prescribing medication.
  • The DHA Regulations appear to be more ambiguous on this point. While the DHA Regulations prohibit a physician from prescribing any medication before conducting a physical examination of the patient, the regulations also provide that the preparation of medical prescriptions falls within the scope of teleconsultation services. A conservative reading of the DHA Regulations would suggest that prescribing medications is only permissible after a physical examination.
  • Although there is no telemedicine regulatory framework in the DHCC, the hybrid telemedicine practice operating in the DHCC does not prescribe medication without an in-person consultation.

Entities looking to practise telemedicine in the UAE are advised to approach the relevant regulatory authorities and seek legal advice as soon as possible in order to ensure compliance with existing regulations.

Key Considerations for Middle East Entities Looking to Invest in US Technology Companies

Posted in Intellectual Property, Technology, Uncategorized, United Arab Emirates, Venture Capital

Digital Media concept Wall of screens smart TV

Four of Latham & Watkins’ leading emerging company partners in Silicon Valley, Luke Bergstrom, Tad Freese, Jim Morrone and JD Marple, recently hosted a webinar titled “Achieving Successful Outcomes as a Non-US Company Investing in or Acquiring Technology Companies in Silicon Valley”. The webinar can be viewed here.

In this blog we have sought to draw out some of the key observations in the webinar that are relevant to Middle East entities considering investing in US technology companies.

Unique Challenges

While many of the factors that influence the ‘investment in’ or ‘acquisition of’ technology start-ups is common to other types of companies, technology start-ups present their own unique challenges and opportunities resulting from either the long term goals of the founders or the motivation of the potential investors.

When dealing with a technology start-up, stakeholders should keep in mind (i) the key assets of the start-up and the due diligence focus and (ii) the key investment considerations and factors required for structuring a successful outcome.

Key Assets and Due Diligence Focus

The key assets of a technology start-up include its intellectual property, founders, employees and key customer relationships.

Depending on which asset the start-up derives its key value from, any due diligence exercise undertaken with respect to an investment should focus on such assets with an aim to uncover red-flag issues.  More detailed due diligence exercises tend to be conducted in anticipation of full-blown acquisitions. Investors should also remember that start-ups will rarely have the required processes in place to provide timely and efficient responses to due diligence request lists. Instead, management calls often tend to be a useful tool in running the due diligence process.

An investor’s due diligence approach can also often colour how the founders and employees of the company envisage working with the investor and the investor should note this impact in determining and executing its approach to diligencing the relevant target.

Key Investment Considerations and Factors

Start-ups tend to be reliant on equity financing as debt finance is often not readily available. Founders will generally hold multiple fund raising rounds with each round providing capital sufficient for between 12 and 18 months and each new round of financing may involve new outside investors as well as the existing investors.

When investing in a technology start-up, it is important to identify the categories of existing shareholders as each will have different motivations that need to be considered as part of the investment process. For example:

  • The Venture Capitalist: Venture capitalists tend to have a short-term investment horizon seeking the highest return for the lowest investment. They also prefer a clean-exit with minimal post-closing obligations.
  • The Serial Entrepreneur/Founder: The founder is often the idea generator who dedicated time and commitment to the start-up. Serial entrepreneurs, however, often tend to move onto the ‘next big thing’, which can impact discussions relating to any applicable non-compete provisions.
  • Employees: Employees of the start-up are often concerned with issues such as the opportunities available to them in the new organisation structure (which may or may not focus on the developed technology), their role and their compensation structure.
  • Other Stockholders: Other stakeholders will be concerned with their return relative to their original investment and the types of obligations they are required to sign up to.

Along with identifying the categories of existing shareholders, it is also important to give consideration to those issues which most often necessitate negotiation between the parties.

The common areas of negotiation vary depending on whether the transaction is being treated as an investment or an acquisition.

In an investment, key areas of negotiation include:

  1. Governance Rights: Governance rights deal with an investor’s right to manage the company. Governance rights can exist in the form of board representation, observer rights or veto rights with respect to certain decisions.
  2. Transfer Rights: Transfer rights deal with an investor’s ability to transfer their shares in the company. For example, a minority investor may require tag-along rights pursuant to which if a majority investor sells their stake in the company, the purchaser will also need to make an offer to purchase the minority investor’s shares. Alternatively, a majority investor may have found a purchaser for his shares but the purchaser requires that as part of the sale, he also acquires the shares of the minority investors. Drag-along rights will enable the majority investor to ‘drag’ the minority investors into such sale.
  3. Rights relating to the Sale of the Company: These are similar to transfer rights and relate to an investor or founder’s ability to sell his shares in the company. For instance, some investors may require that the shares held by the founders of the company be subject to a right of first refusal whereby if the founder wants to sell his shares in the company, he must first go to the market and get a price for such shares and then allow the investor to step into the proposed purchaser’s position and purchase the shares at the agreed price. An alternative to such right is the right of first offer whereby before a shareholder can sell his shares to a third party, the shares must be offered to the existing shareholders of the company.

In an acquisition, key areas of negotiation include:

  1. Employee Incentive and Retention Mechanisms: These are types of management/key employee incentive schemes meant to incentivise key employees and management to remain with a business after an acquisition and can take the form of cash and/or equity payments.
  2. Purchase Price Structures and Formulations: A key negotiation point is how the purchase price will be structured and can include discussions around stock v cash payment to the founders, holdback and escrow arrangements.
  3. Indemnity Limitations: A full blown acquisition may involve the sellers providing certain indemnities in relation to the business which will result in negotiation around any caps and time limitations applying to such indemnities.
  4. Conditionality Provisions: A full blown acquisition may also be contingent on factors such as the accuracy of any representations made by the sellers, any material adverse effects on the business, any outstanding third party consents or other material factors unearthed during the due diligence process.

We also note that there are certain advantages of investing early in technology start-ups as opposed to making a full-blown acquisitions include (i) greater long term visibility over the team and product (e.g. access to reports, financial statements and board access); (ii) diversification of risk by betting on different companies in their infancy; (iii) early awareness of possible sale transactions; and (iv) the ability to act quickly prior to the final acquisition.

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