Insolvency Reform in United Arab Emirates on the Horizon
The United Arab Emirates (UAE) appears to be finally in the process of issuing a long-awaited new federal insolvency law. Described by some as a game-changer, the government announced in July that its Cabinet has approved a draft of the new law replacing the old (and largely unused) insolvency regime. The highly anticipated law is now pending the approval and ratification of the Federal National Council and Supreme Council before it receives final approval by Sheikh Khalifa bin Zayed bin Sultan Al Nahyan, the UAE President.
Similar announcements have been made since 2010 based on the growing demand for a clear and modern insolvency law in the wake of the global financial crisis. Currently, while the UAE ranked 22nd in the World Bank’s influential Doing Business 2015 index last October, up from 25th position for the previous year, the country’s ranking for resolving insolvency matters slipped to 92nd position from 88th, below countries including Cote d’Ivoire and Mongolia. The need for improvement in this important sector is clearly evident.
The new law follows a series of new legislation issued in 2015 such as the considerably revamped Commercial Companies’ Law, Law No. 2 of 2015 (“Companies Law”), which came into effect on 1 July 2015, and the Law Respecting the Partnership between the Public and Private Sectors in the Emirate of Dubai, Law No 22 of 2015 (“PPP Law”) which will take effect from 18 November 2015.
The existing insolvency and bankruptcy regulations are scattered across different federal laws of the UAE such as the Companies Law, the Commercial Transactions Law, Law No. 18 of 1993 (“Commercial Transactions Law”) and the Civil Procedures Law, Law No. 5 of 1985 (“Civil Code)”. Whereas commercial companies are offered liquidation as a solution to their insolvency under the Companies’ Law, the Commercial Transactions Law regulates the bankruptcy of persons who are considered ‘traders’ while the Civil Code regulates those persons who are not classified as traders. All of these laws have failed to provide debtors, investors and businesses alike with a modern insolvency and/or bankruptcy scheme, an impediment that has caused some investors’ reluctance to enter the UAE market. In fact, among the main disadvantages of the current regulations is not only the criminalization of bad cheques but also the potential imprisonment of the issuer of the bounced cheque, who might, for example, be the manager of a company carrying on business in the UAE.
Particulars of the new law have yet to be revealed and there is some confusion as to how it will be structured. Some commentators have suggested that the new law is likely to include provisions inspired by Chapter 11 of the US Bankruptcy Code; others have stated that the new law will be largely based on French insolvency practices, drawing on a number of provisions from German law, as well as legal codes from countries such as the Netherlands and Japan.
Certainly one of the most significant changes as announced earlier this summer would be the decriminalization of “bad cheques” which is considered ground breaking for existing and future investors in the UAE as well as for domestic lenders and other financial institutions. Presently, the writing of a cheque with insufficient funds to back it may be considered an act of criminal fraud. The use by banks of post-dated cheques for security has been cited as a real impediment to local banks adopting proper credit checks and other contemporary safeguards and practices.
Several announcements have been made by government officials endorsing the issuance of the new law. Sheikh Mohammed bin Rashid Al Maktoum, UAE Vice President and Ruler of Dubai, stated in The National – Business newspaper on 6 July 2015 that the law aims to ‘mitigate risks of bankruptcy and ensure a safe and attractive business environment in the UAE that nurtures and supports investments’.