The Middle East and North Africa (MENA) is home to 14 of the 33 most water scarce countries globally, with six times less water availability than the worldwide average and less than 2 percent of the world’s renewable water supply. The Gulf Cooperation Council (GCC) states – Bahrain, Kuwait, Qatar, United Arab Emirates, Saudi Arabia and Oman – all rank in the top 10 most water scarce countries. The water crisis in the region is exacerbated by exploding demographics, particularly in the GCC states, which have some of the highest per capita water consumption rates in the world. Moreover, the World Bank projects that water availability per capita will be halved by 2050, indicating that most MENA countries cannot sustainably meet current water demand.
85 percent of water is consumed by the agricultural sector in the GCC, supported by extensive irrigation. Despite the shortage and depletion of water resources, typically irrigation water is priced below cost. In addition, energy subsidiaries in many MENA countries result in no groundwater use charges for surface water transfer and pumping of groundwater.
In addition to the above, rapidly changing demographics and continued industrialisation is straining the GCC’s already scarce water supply and fuelling climate change, which in turn is further depleting the region’s freshwater resources. The unprecedented development of the GCC countries has led to dynamic changes in emissions, land surface and resource consumption. Consequently, the region is experiencing rising temperatures and higher rates of evaporation, coupled with a 20 percent decline in precipitation and higher atmospheric concentrations of greenhouse gases. Such climate changes are further threatening MENA water security.
With water security at risk, the GCC has turned to desalination to meet escalating demand. While innovative means to tackle declining rainfall through cloud seeding operations has been underway in the United Arab Emirates for the past few years, the GCC remains heavily reliant on desalinated water. 75 percent of worldwide desalinated water is in the MENA region, concentrated in the GCC countries that make up 70 percent of that total.
Innovating water supply solutions
Faced with ever-rising consumption, the GCC will need to encourage alternative forms of water and energy supply, whilst conserving scarce resources, to sustainably meet future demand. Moreover, water security is prompting more effective monitoring and management of water resources.
Alternatives include large-scale and short distance onshore transfer of water to meet a supply deficit. While being able to leverage existing infrastructure, this process is often regarded as expensive and faces permitting, licensing and geographic barriers. In addition, the transfer of water can be damaging to ecology, water quality and flow regimes.
The long distance underwater transportation of freshwater, or treated grey water, to areas of scarcity has also emerged as a viable alternative. Low energy consumption and no discharge of brines, combined with potential recharge of reservoirs, the “submarine river” solution provides an environmental advantage. Moreover, it is able to meet urban and agricultural needs equivalent to several desalination plants without compromising execution duration and with limited operating and maintenance expenses.
Securing future supply
Depletion of MENA water resources will continue as climate change, population pressure and agricultural production put increasing strain on supply. While desalination has bridged the gap between supply and demand, alternatives will need to be explored to ensure future demand is met sustainably. The “submarine river” is one potential option.
Read more on GCC water projects:
Telemedicine is a product of 20th century information and communication technologies. It is generally defined as the provision of healthcare services from a healthcare professional to a patient from a remote location using a telephone or the internet. International and local health providers are increasingly looking to provide telemedicine services in the region, specifically in Abu Dhabi, Dubai and Dubai Healthcare City (DHCC). The regulation of telemedicine in the UAE, to date, has been inconsistent and needs to be further developed in order to catch up with developments in medical technology.
Federal Regulatory Landscape
In order to market healthcare services in the UAE, a healthcare provider must establish a legal presence and hold a commercial licence to do business in the UAE (or in a free zone in the UAE) and also hold the relevant healthcare provider licence. The authorities that regulate the licensing of healthcare in Abu Dhabi, Dubai and Dubai Healthcare City are: Abu Dhabi Health Authority (HAAD), Dubai Health Authority (DHA) and Dubai Healthcare City Authority (DHCCA), respectively.
Abu Dhabi has a sophisticated regulatory regime for telemedicine and has issued a telemedicine licence to the Abu Dhabi Telemedicine Centre. However, telemedicine licensing has been suspended in Abu Dhabi for the time being and it is not known if or when such suspension will be lifted.
If the suspension were lifted, a healthcare facility wishing to provide tele-consultation services and be based in Abu Dhabi would need to be a HAAD licensed healthcare facility specifically licenced to provide tele-consultation, or an existing HAAD licenced facility that is authorised by HAAD to provide tele-consultation.
The DHA regulations do not address the practice of telemedicine in Dubai, with the exception of providing for teleradiology services, and the DHA is not issuing licences to practise telemedicine at this time.
Dubai Healthcare City
The DHCC appears to be taking the lead in the region for the development of telemedicine and one telemedicine establishment licensed by DHCCA has been operating in DHCC for four years.
The DHCCA licences telemedicine to entities operating as outpatient clinics. An entity in the DHCC can take the form of a free zone limited liability company, a branch of a foreign company, or a branch of a UAE company. An advantage of practising telemedicine in DHCC is that because it is a free zone there are no national restrictions on foreign companies wishing to establish a legal presence in DHCC.
One of the key drawbacks in practising tele-medicine in the UAE at this time is that it is unlikely that any regulator 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. Although there is no regulation precluding prescribing medication in Dubai, we understand that the telemedicine practice operating in DHCC does not prescribe medication without an in-person consultation.
For the past few decades, the obligations of companies with losses reaching 50% or more of their share capital has been a topic of high debate in the Kingdom of Saudi Arabia. That is due to the uncertainty surrounding the application of Articles 148 and 180 of the current Companies Law (Current Companies Law), which regulate this matter in connection with joint stock companies (JSCs) and limited liability companies (LLCs), respectively. On 9 November 2015, however, a new Companies Law (New Companies Law) was enacted, which addressed some of the ambiguities relating to this matter under the Current Companies Law. The New Companies Law will repeal and replace the Current Companies Law with effect from 2 May 2016 (Effective Date).
Below is an overview of the required steps to be taken by the management of an LLC or a JSC with accumulated losses reaching 50% or more of its share capital under the New Companies Law.
Within 90 days of becoming “aware” of the losses reaching 50% of the LLC’s share capital, pursuant to Article 181 of the New Companies Law, which applies to LLCs, the managers of the LLC must record the event in the Companies Registry with the Ministry of Commerce and Industry (MoCI) and convene a shareholders meeting to resolve to either continue or dissolve the LLC.
The resolution to continue or dissolve the LLC requires the approval of shareholders representing 75% of the LLC’s share capital, unless its articles of association specify otherwise. In both cases, the resolution must be published on the MoCI website. It is important to note that, unlike the Current Companies Law, under the New Companies Law, the LLC’s corporate veil may no longer be pierced if the managers fail to call for a meeting or the shareholders are unable to resolve to either continue or dissolve the LLC. Instead, the LLC will be deemed dissolved by operation of the law.
It is difficult to ascertain from the New Companies Law what constitutes “awareness” by the managers of the losses reaching 50% of the LLC’s share capital thus triggering an Article 181 event and the start of the 90 day period set out in Article 181. We are hopeful that the expected rules for implementing the New Companies Law will address this issue.
Pursuant to Article 150 of the New Companies Law, which applies to both closed JSCs and listed JSCs, the following steps must be followed if the losses of a JSC reach 50% or more of its share capital at any time during its financial year. First, the JSC’s auditor or any of its officers must notify the chairman of the board of directors immediately upon becoming aware of such losses. Second, the chairman of the board must in turn immediately notify the board of directors of such development. Next, the board of directors must convene the extraordinary general assembly within 45 days of becoming aware of the losses. And finally, the extraordinary general assembly of the JSC must resolve to either increase or decrease the JSC’s share capital or, alternatively, dissolve the JSC.
It is important to note that the JSC will be deemed dissolved by the force of law if the extraordinary general assembly does not convene within the specified 45-day period, convenes but is unable to adopt a resolution on the matter, or approves increasing the JSC’s share capital but the shares issued are not fully subscribed for by its shareholders within 90 days from the date of the resolution to increase the share capital.
While closed JSCs may face less difficulties in complying with the 90-day period within which the share capital must be increased, it will be exceedingly difficult for listed JSCs to comply with such requirement. This is because a capital increase of a listed JSC requires the approval of the Capital Market Authority (CMA) and, in some cases, requires also the filing of a prospectus with the CMA (i.e., when the share capital increase represents 10% or more of the JSC’s share capital). This 90-day period indeed poses a regulatory challenge to listed JSCs with losses reaching 50% or more of their share capital and jeopardizes their existence altogether.
In addition to the provisions set forth in Article 150 of the New Companies Law, listed JSCs with losses reaching 50% or more of their share capital are subject to the “Procedures for Companies with Accumulated Losses Reaching 50% or More of their Capital” issued by the CMA, which impose further obligations on listed JSCs. It should be noted that failure to comply with these Procedures may have negative effects on the listed JSC and could potentially lead to the suspension of trade in its shares or its delisting.
It is of imperative importance that the management of a company (whether LLC or JSC) follow the abovementioned steps as the New Companies Law has introduced criminal sanctions on management that neglect to take the necessary actions prescribed under the law and made them subject to imprisonment for no more than five years and/or a fine of no more than SAR 5 million.
Companies are granted a one-year grace period before they are required to fully comply with the New Companies Law. It is unclear, however, whether this grace period applies to the provisions of Articles 150 and 181 of the New Companies Law. We hope that the expected rules for implementing the New Companies Law will clarify this issue.
Finally, it expected that MoCI and CMA will publish the rules for implementing the New Companies Law prior to the Effective Date. Stay tuned for an update on this article once these rules have been published.
Saudi Arabia’s recently announced plans to privatise several key industries in the Kingdom has once again brought the Kingdom’s privatisation agenda back into the spotlight. The announcements form part of the countries transformational initiatives as part of The 2016-2020 National Transformation Plan (NTP) to improve public sector efficiency and boost non-oil revenues in the region, and will reportedly include airports, municipalities, hospitals and education.
Privatisation covers many types of transactions but typically includes the divestiture, whether by sale or lease, of state-owned assets to private investors. The Kingdom already has an established history of such privatisation through the partial sales of Saudi Telecom Company (2003), Saudi Arabian Mining Company (Ma’aden) (2008) and, most recently, the National Commercial Bank’s privatisation through its US$6 billion IPO (2014).
Although the Kingdom reduced its use of PPPs in recent years (instead procuring the development of such infrastructure projects directly through an engineering-procurement-construction (EPC) arrangements), recent market announcements suggest a comeback with the GACA currently tendering Taif Airport as a PPP – the GACA’s first since 2012.
However, with a larger number of diverse public services to potentially be privatised, each with its own unique capex requirements and strategic importance, we are likely to see a wider range of PPP options coming to the market.
These may include:
- Service Contracts A private sector entity is hired to perform a short term service. The government remains the primary provider of the service and outsources specific elements to the private sector. The private sector entity must perform the service at the agreed cost and typically satisfy key-performance-indicators (KPIs) in return for a fixed fee and incentive payments payable against the KPIs.
- Management Contracts An expansion of a services contract which may include some or all of the management and operation of a public service. Again the government entity remains the primary provider of the service but day-to-day management and authority are assigned to the private sector entity.
- Lease Contracts A private sector entity takes full responsibility (and risk) for the provision of a service. The underlying asset is typically established and financed by the public sector and then transferred to the private sector entity for full management and operation at its expense and risk (including losses and unpaid user fees). The private sector entity typically does not own the underlying asset but directly collects the user fees.
- Concessions A private sector entity takes full responsibility (and risk) for the construction or rehabilitation, financing, management and operation of an asset and the provision of related services. The private sector entity may or may not (depending on the terms of the concession) own the asset but directly collects the user fees (which are established in the concession).
- BOT A private sector entity takes fully responsibility (and risk) for the development, construction, financing, operation and maintenance of a new infrastructure project. There are many variations of a BOT structure (including design-build-finance-operate (DBFO) and build-own-operate (BOO)) but the common and important features of all such variations are that the private sector entity provides the finance for the project and owns the project assets for a set period of time. The distinction from concessions is that BOT arrangements are typically used for large greenfield projects requiring substantial capex.
Fig. 1: Overview of key features of PPP options
Outsourcing has historically not been a major pillar in Middle East public and private sector organisation’s strategic architecture. While the benefits of outsourcing are understood and recognised, organisations have sought to engage with major outsourced service providers through managed service agreements and joint ventures. This approach has generally worked well. It has enabled local organisations to maintain control of their infrastructure, environments, people and third-party contracts and, in the case of joint ventures, provided organisations with the potential opportunity to benefit from any upside growth in the value of the joint venture entity.
Notwithstanding that, the current financial climate in the Middle East and pressure on organisations to reduce capital and operating expenditure while maintaining, or improving services, may mean that 2016 is the year that outsourcing comes of age in the Middle East and starts to deliver on its promise of enabling organisations to deliver better services while reducing their costs.
If your organisation is considering outsourcing in 2016, then we have distilled 3 key considerations that should be assessed and worked through before you proceed to execute an outsourcing agreement with your preferred service provider.
- Why are you outsourcing?
It is critical to articulate your organisation’s objectives for the transaction and obtain a broad management consensus in support of them. Are you outsourcing to cut costs? To facilitate organisational change? To free up resources? If there are multiple reasons, consider which are the real drivers and what the relationships are among them? The answers to these questions will help you identify the key issues you will need to address and develop appropriate responses to them.
- What is the scope of the services you are outsourcing?
Does your organisation have a clear understanding of the:
- Scope – The scope of the services it is considering outsourcing.
- Service levels – The alternatives for measuring the performance of those services by a third party vendor.
- Costs – The costs it incurs today and is likely to incur during the term of the contemplated agreement if it were to continue those services.
All too often companies that outsource start the process without first having gathered this critical information and inevitably they are disadvantaged as a result. In our experience, organisations that can describe their objectives, outline the scope, identify the service level metrics and accumulating service level data, and determine their own base costs are in a much stronger place to structure a transaction that will deliver the organisation’s anticipated benefits and savings.
- Run a competitive procurement
We understand that running a competitive procurement process requires an organisation to commit significant time, resource and effort to an outsourcing project and in the face of this upfront commitment “sole-sourcing”, i.e. selecting one service provider at the outset and negotiating directly with them, appears attractive and economical. The reality is that sole-sourcing delivers a false economy and in our experience sole-sourcing actually takes longer, costs more money and produces a less favourable result for the organisation that is looking to outsource, compared to a competitive process. We firmly believe that an organisation can use the procurement process to significantly reduce the time and cost required to execute a contract that better protects the organisation’s interests as illustrated in the diagram below.
Diagram 1: Mitigating risk through effective procurement
To put it simply, an organisation has much greater leverage to negotiate legal and commercial terms before it down-selects to one service provider and doing so enables the organisation to get to contract signature on its terms in a faster period of time than seeking to negotiate legal and commercial terms when there is only one service provider left in the race. In making a decision to run a competitive procurement, it is important to recognise that in an outsourcing transaction, price, scope, service levels, and risk are all integrally related and for a competitive procurement to be successful it must address each of these aspects of the transaction by way of reasonably detailed contract terms (including clear agreement on scope and service levels) and not simply focus on price.
In conclusion, for outsourcing to deliver the benefits and savings your organisation requires, it pays to take time at the outset to consider your organisation’s objectives, scope, service levels and cost base and to effectively utilise the procurement process to maximise your leverage in negotiating the best deal for your organisation. At Latham & Watkins we have decades of experience in assisting organisations in the Middle East, Asia, Africa, Europe and the US in taking first steps into outsourcing and renegotiating existing outsourcing transactions. If you require further guidance and whitepapers on this topic, please do not hesitate to contact Andrew Moyle or Brian Meenagh.
In 2015, Egypt issued its unified Electricity Law no. (87), paving the way for market liberalisation of its power generation and distribution services. A few months on from its introduction, what are some of the key takeaways?
The Electricity Law has promised to reform the electricity market and allow for private sector participation (both locals and foreign entities) by introducing a simple licensing regime. With a transitional timeframe of 8 years granted, the Egyptian Electricity Transmission Company (EETC), which currently exercises market monopoly over power transmission and operation of the grid, is expected to restructure to adopt to a far more competitive environment. The government has obliged EETC to provide equal third-party access to the national grid yet will retain control of network charges.
As part of the reforms, two distinct power markets have been created; a competitive market consisting of wholesale and competitive retail and a regulated retail market. Whilst full market liberalisation is not anticipated at this stage, it is expected that the government will increasingly scale back the scope of the regulated market to eventually achieve full market liberalisation. The law has also unbundled the electricity business chain (i.e. generation, distribution, grid operator, market operator, authorised suppliers and qualified consumers) to provide the private sector with more opportunities to participate in Egypt’s electricity market.
Proactive on Pricing Regulation
The Egyptian Electric Utility & Consumer Protection Agency (ERA) will now be taking a more active role in pricing regulation under revised law. No longer solely a monitoring function, ERA is tasked with defining the appropriate rules and economic basis for the calculation of power tariffs to non-qualified consumers, calculating power exchange prices in the regulated market and determining consideration for the use of transmission and distribution networks.
Transitioning to a Liberalised Market
The Electricity Law has also granted more powers and autonomy to EETC, formalising its natural autonomy and consequently reducing Egyptian Electricity Holding Company’s (EEHC) control over the electricity utility. The law now stipulates that EETC exclusively undertakes grid operation and electricity transmission services and is responsible for defining commerce and settlement in collaboration with other utility participants. Notably, EETC has been tasked with ensuring no preferential arrangements occur between any of the producers or consumers and to promote efficiency and competition in power sale and purchase. EETC will be required to step-up its role in securing the power supply needed for the regulated market by purchasing it from generating companies.
EETC has 8 years to restructure and become compliant with the law and 3 years to conduct necessary grid capacity and expansion studies. With EETC taking a more active and independent role in the future of Egypt’s electricity market, the EEHC will also need to adapt to a more liberalised market. It is unclear at this stage whether EEHC will opt to operate as a private sector corporation or whether existing state-owned generation assets will be privatised.
To read more about Egypt’s Electricity Law, download the full guide: The New Electricity Law Explained
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
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.