Rechtsanwalt, Partner, Head of Employment & Reward, Germany
Out-Law Guide | 20 Nov 2019 | 10:28 am | 8 min. read
Under the existing regime, UAE law provides that foreign investors generally can only own up to 49% in a UAE mainland company. At least 51% of the shares in a UAE mainland company must be owned by one or more UAE nationals, or a company which is itself wholly owned by one or more UAE nationals. This means that the constitutional documents of a UAE mainland company would state both the name of the local shareholder, as the legal owner of not less than 51%, and the foreign shareholder, as the legal owner of not more than 49%, making the foreign shareholder a minority shareholder.
In addition, the conduct of certain commercial activities such as those relating to real estate, general transport, certain media activities and labour supply is reserved exclusively for UAE nationals or companies owned exclusively by UAE nationals. Accordingly, foreign investors are restricted from carrying out such activities and from investing in companies that carry out such activities.
The introduction of the new FDI law has come as a welcome development for foreign investors and, with its introduction, we may see a more streamlined approach to investment in the UAE with a reduction in the need for side agreements.
As an exception to the foreign ownership restriction, UAE companies may be owned entirely by nationals of Gulf Cooperation Council (GCC) countries or companies owned by nationals of GCC countries. However, any direct or indirect non-GCC shareholding in the UAE company would mean that the principle described in the first paragraph would again apply and at least 51% of the shares would have to be held directly or indirectly by UAE nationals. In these circumstances all non-UAE shareholders, including GCC individuals and companies, would be deemed to be foreign investors.
A further exception to the foreign ownership restriction is within Free Zones. Free Zones are specially designated areas within the Emirates established to attract foreign investment by encouraging companies to set up businesses and locate their operations in the UAE. Each Free Zone has its own administration and licensing authority responsible for issuing Free Zone licences and registering companies. The key difference between a Free Zone and mainland entity is that a Free Zone entity may be wholly owned by non-UAE nationals, meaning that foreign investors can own up to 100% of the shares in Free Zone companies.
To overcome the disadvantages associated with the foreign ownership restrictions in the UAE, many foreign investors carry out business in the UAE mainland by engaging a UAE national to hold 51% of the share capital of the UAE company, effectively as a nominee shareholder, on behalf of the foreign investor (UAE Nominee), with the foreign investor holding the remaining 49%. Typically, a separate set of private, meaning not subject to registration, 'side agreements' are put in place between the foreign shareholder and the UAE Nominee.
Collectively these side agreements seek to transfer the beneficial ownership, meaning the benefits and rights associated with holding the shares, from the UAE shareholder to the foreign shareholder in return for a fixed annual fee. This transfer of beneficial ownership tends to:
As the UAE is a civil law jurisdiction, there have been historical concerns in the UAE regarding the legal validity of these side agreements and their enforceability in the case of a dispute, creating risks such as an enforceability risk in light of the UAE Anti-Fronting Law. Parties to such agreements may put in place sophisticated corporate structures involving Free Zone holding companies - such as special purpose vehicles (SPVs) in the Abu Dhabi Global Markets Free Zone (ADGM) or special purpose companies (SPCs) in the Dubai International Financial Centre Free Zone (DIFC) - to take advantage of the common law regimes which allow for more sophisticated contractual structures to be put in place. However, the validity of side agreements has not, to date, been tested in a court of law in the UAE so, despite the risk mitigation efforts of various companies, their true enforceability has never been an absolute certainty.
The introduction of the new FDI law has therefore come as a welcome development for foreign investors and, with its introduction, we may see a more streamlined approach to investment in the UAE with a reduction in the need for side agreements.
In November 2004 the UAE enacted a law aimed at preventing arrangements which seek to circumvent the restrictions surrounding foreign ownership of UAE companies ('Anti-Fronting Law'). One of the rationales behind introducing the Anti-Fronting Law is to prevent the use of side agreements /arrangements with UAE nationals similar to the ones described above.
The Anti-Fronting Law provides that "it is prohibited to act as a front for any foreigner - whether a natural person or a body corporate - by using the name, license or commercial register of the front…". The Anti-Fronting Law defines the term 'front' as "any natural or body corporate enabling a foreigner - whether a natural person or a body corporate - to practice any economic or professional activity he is prohibited to do inside the UAE".
The Anti-Fronting Law not only renders such arrangements invalid, but also imposes sanctions for breach of the law. Sanctions can be imposed on both the local partner and the foreign investor and include fines of up to AED100,000 (US$27,000) and possible imprisonment for a period of up to two years. In addition, any 'condemnation judgment' issued following a breach of the Anti-Fronting Law will provide that the name of the 'front' be deleted from the commercial register, effectively requiring the foreign company to close its business or make alternative arrangements in strict compliance with the regulations. A company involved in a 'fronting' arrangement will be deregistered from the commercial registry with respect to the activity involved and its licence may be revoked.
Although the Anti-Fronting Law is technically in force and effect, there has been no indication that the relevant authorities would take a proactive role in enforcing it. In addition, we are not aware of any instance whereby the Anti-Fronting Law was enforced despite foreign investors becoming more open about their side arrangements with UAE Nominees.
The much-anticipated FDI Law came into force on 23 September 2018. The FDI Law now lays the framework for up to 100% direct foreign, meaning non-UAE, investment in the UAE.
The FDI Law classifies activities into three different categories:
The negative list includes the activities that will fall outside of the new regime, meaning that the existing regime - which restricts foreign ownership to 49% - will still apply. The industries in the negative list include:
The positive list has recently been issued following consultation with the Foreign Direct Investment Committee and includes 122 commercial activities. These are the activities that will fall under the new regime, thus potentially allowing for 100% foreign ownership. The industries in the positive list include:
The UAE Cabinet has further confirmed that it will be left to the discretion of the local governments at an Emirate level to decide on the percentage of foreign ownership for each sector/activity. Notably, the FDI Law leaves room for each of the seven Emirates to permit up to 100% foreign investment for different activities, subject to the Federal authority's approval. To date, no confirmation has been provided in respect of the sectors and corresponding percentage ownership restrictions that will be adopted in each Emirate.
Activities not falling on either the positive list or the negative list (i.e. activities which are not expressly permitted or restricted) will be subject to the discretion of the authorities to determine whether up to 100% foreign direct investment will be allowed on a case by case basis.
Companies incorporated under the new FDI Law, Foreign Investment Companies (FIC), will be registered in a special FIC register held with the Ministry of Economy and will be treated as UAE companies. The process for registering an FIC will be largely similar to registering a mainland company in the UAE, with the application first being submitted to the local licensing authority, then to the relevant authority in the Emirate for approval. The FDI Law also allows the foreign investor to appeal in the event an application is rejected.
It is unclear whether existing UAE on-shore companies could be converted to FICs. In any event, we expect to see an increase in M&A/corporate restructuring activity in the UAE as a result of the FDI Law.
In practice, applications to set up FICs will only be accepted once the relevant authorities are duly formed and the sectors and corresponding percentage ownership restrictions that will be adopted in each Emirate have been confirmed.
The UAE government is taking foreign investment seriously and encouraging diversification in the economy. The FDI Law is evidence of this and is a positive step towards increasing diversification across various sectors and promoting the UAE's ambition to become a global leader in attracting foreign investment.
In light of the new FDI Law, companies are advised to take future-proofing actions in anticipation of the changes ahead. For example, companies should:
Rechtsanwalt, Partner, Head of Employment & Reward, Germany