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Legal View by K.K Sarachandra Bose

K.K Sarachandra Bose is a Partner/ Corporate, Commercial and Contract Lawyer at Dar Al Adalah Advocates and Legal Consultants. Readers may e-mail their questions to ktedit@emirates.net.ae or send them to Khaleej Times Dubai P.O Box 11243.

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Published: Sun 6 Aug 2006, 10:24 AM

Last updated: Sat 4 Apr 2015, 6:03 PM

In a partnership agreement signed by me with my partner, there is an arbitration clause to settle all our disputes. Now my partner has appointed an arbitrator in whom I do not have faith. Can I appeal against the decision of the arbitrator in the court ?. Can I take a plea that I do not want arbitration and that I want to file the case direct to the court?.

Answer: Arbitration clause in an agreement is a consensual agreement. It was agreed by you and your partner that in the event of any dispute, such dispute shall be resolved by arbitration. Therefore you can not now decide unilaterally that you want to exit from the arbitration clause.

If the arbitration clause in the agreement is specific such as the arbitration shall be held by a single arbitrator, or that each party shall appoint a arbitrator and then both the arbitrators appoint an umpire etc., then such directives shall be strictly followed unless agreed otherwise by both the parties. If the appointment of the single arbitrator or the panel of the arbitrators are not agreed by the parties, the disagreeing party may approach the court to appoint arbitrator(s) in the manner and the way provided in the arbitration clause and in such cases, the appointment of the arbitrator(s) shall be final and binding on both the parties and is not subject to appeal. Up on application by any party, if the court appoints an arbitrator contrary to what has been provided for in the arbitration clause, then such decision is beyond the jurisdiction of the court and is challengeable. The jurisdiction of the arbitrator is as per the arbitration clause provided in the agreement between the parties and not by act of any other law.

If you want to avoid arbitration and submit to the jurisdiction of the court then the only way is to approach the court in the normal way and if the opposite party does not raises his objection to the jurisdiction of the court in the first opportunity citing the arbitration clause, then the court will consider that the opposite party has waived his right to arbitrate and acceded to the jurisdiction of the court to hear the disputes.

I have written a book on a certain topic. Can you please explain what are my rights under the copyright law and whether I have to copyright my book so that nobody else will copy my book without my consent?

The UAE Federal Law No. 7 of 2002 concerning the Copy Rights and Parallel Rights deals with the issue in question. The copyrights protected by the law are two, the moral and the material rights. The moral rights are enjoyable by the author and his successors upon the death of the author, the right to use his work of art and to assign this rights to others, provided that if it is under a prior written permission specifying the subject of the license, the mode, the purpose, the duration and the territory of the usage.

As per the law, 'work of art' is any original authored work of art in the field of arts, fine arts or sciences of whatever type, manner of expression, significance or purpose. The author is the person who originates the work of art and whoís name appears on or is ascribed to the work of art upon publication as an author and shall be considered as the author thereof, unless a proof to the contrary is established. In case of doubt arises, then the publisher or producer of a work of art, whether corporate or natural person, shall be the agent for the author to undertake his rights till the true identity of the author is identified and ascertained.

Being the author, you and your universal successors will have the benefit of non-time-barred and non-assignable copyrights for your book including right to determine the publication of the book for the first time; right to ascribe the work; right to object any modifications to the book, which modifications entail any distortion, deformation of the work or prejudice to your standing; right to cease the distribution of the work in case serious justification arises.

The work of art being an intellectual property of the author and as per the law, your work is copyrighted the moment it is created. This means that if you can prove that it was you who had originally created the work of art, in this case your book, then nobody else can claim its copyright. But this may sometimes result into legal disputes as to authorship and therefore the law also provides for registration of the copyright even though it is not mandatory. You may submit your book to the copyright registration section of the Ministry of Information and obtain a certificate of registration so that it will stand as a proof for you at all times.

I am the Managing Director of the branch office of a foreign company registered in Dubai. After submitting the application for registration to the Ministry of Economy and Commerce, we carried out certain activities by purchasing some goods from the local market as per our company charter and policy. Now the local supplier is claiming the dues which are a huge amount from me personally, even though our company is a limited liability company and the deal was done in the name of the company. The local supplier alleges that our company did not get registration before we made the deal and hence I am personally responsible. I was unaware of the local laws and my company also did not guide me in this respect. The entire benefit out of the transaction has been credited to my companyís account. Could you please advice me and also how to protect me from this huge loss?.

From the facts of the case summarized by you, I understand that you represent the branch office of a foreign company engaged in trading activities in Dubai and your company purchased certain goods from a supplier in Dubai before registering your branch office with the Ministry and now the supplier is claiming the huge amount due to them form you personally.

It is a requirement as per the laws of the UAE that a branch office of a foreign company must be duly registered before entering into any commercial activities in the UAE. A company will get its legal status only after it is properly registered at the concerned departments. If you have entered into commercial transactions in the name of your company prior to obtaining license for your company, then you have done so entirely at your own risk and responsibility. On the other hand, there was every possibility that your company might even have declined all your transactions and plead not liable if it the transaction was a loss and the company had to effect the payment due to failure in your transactions.

As per Articles 314, 315 and 316 of the Commercial Companies Law of the UAE, if the office or branch office of a foreign company carries on any activity in the UAE before being licensed by the competent authority, which in this case is the Ministry of Economy and Commerce, and prior to being registered in the Commercial Register, the person(s) who have carried out such activities shall be personally and jointly responsible for such activities.

Your ignorance of the laws and that your company did not guide you etc., are no defense at all. Every person is bound to know the laws of the state where he conducts his activities. Since you have made the transactions in the name of your company and the entire value is credited to the account of your company, you may enjoin your company as a defendant in the suit and well defend the case so that a judgment may be obtained in the name of your company as well. You may consult your lawyer for further assistance.

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