This month we bring you a special focus on a continent that boasts the world’s largest free trade area, a diverse economic make-up and increasing political stability. The latest edition of Law Update focuses on Africa, a territory that continues to be an attractive business and investment destination.
Like the rest of the world, Africa is still re-building from the impact of COVID-19, however, there continues to be an optimistic view of the opportunities the continent presents. An example of the appetite for investment into Africa was captured in a report we commissioned, titled Legal Leaders in MENA. Our survey of legal leaders revealed a resounding desire to expand into new territories, with 81% naming Africa as their investment destination of choice.Read the full edition
The UAE has emerged as a major access point for foreign investment in the region. Global investors are using the UAE as a platform to enter the wider region. The growth in foreign direct investment in the UAE has led the Government to enhance its efforts in building a sustainable and diversified economy.
In line with the various initiatives to encourage foreign investment in the UAE, His Highness Sheikh Khalifa bin Zayed Al Nahyan issued the Decree Law No 19 of 2018 (‘Decree’), which permits 100 per cent foreign ownership of local businesses by global investors in the UAE mainland to increase Foreign Direct Investment (‘FDI’) in the UAE.
The Decree prescribes a negative list which consists of sectors in which foreign investors cannot own more than the legally prescribed registered shares (‘Negative List’). The Negative List includes the following activities:
While prescribing a Negative List, the Decree also proposes a Foreign Direct Investment Committee (‘Committee’), to be formed pursuant to a resolution by the UAE Cabinet (‘Cabinet’), with the responsibility of recommending to the Cabinet, sectors and activities in which foreign investors may be permitted to own up to 100 a per cent registered shareholding.
On 2 July 2019, the Cabinet issued a resolution approving a positive list, which includes permitted sectors and activities for FDI pursuant to the Decree and covers 122 main activities categorised into numerous sub-activities, in the agriculture, manufacturing, education, health and services sectors (‘Positive List’).
The Cabinet delegated the implementation of the Positive List to relevant corporate regulators in each Emirate of the UAE, which is effectively the Department of Economic Development (‘DED’) in each Emirate.
On 17 March 2020, the Cabinet issued Cabinet Resolution 16 of 2020 Concerning The Determination of the Positive List of Economic Sectors and Activities Eligible for Foreign Direct Investment and Percentage of their Ownership which sets out the activities included in the Positive List which finally paved the way for its publication in the Official Gazette on 31 March 2020 and came into force in the UAE.
Applications pursuant to the Positive List are currently being accepted by the DED in Dubai and Ras Al Khaimah (‘RAK’). The DED in Abu Dhabi did accept a few applications however, for now, it has suspended the same until the upgrade of its IT system can accommodate that applications to be filed online. The other Emirates have not, as of yet, commenced receiving FDI applications under the Positive List. The DED in Dubai and RAK are the only two Emirates that have approved applications and in both instances Al Tamimi & Company assisted its clients to get these approvals.
The aim is to target large companies that are able to positively influence the UAE’s economy.
A foreign investor can submit an application to convert his/her existing company to a FDI company or incorporate a new company, subject to the FDI committee’s approval.
An application can be made to a committee (currently sitting in the DED) alongside any supporting documentation that the committee may request such as:
It is understood that the reason behind requesting the aforementioned documents is that the committee is looking for evidence of the foreign investors’ financial capabilities in UAE, the country of origin and globally.
The Decree defines the foreign capital as fixed assets and intangible rights, such as concession rights, patents, trademarks and trade names owned or registered in accordance with the laws and regulations applicable in the UAE.
The Positive List includes a specific value of capital for each sector. As such, investors are required to submit financial statements and auditors’ reports as evidence of their financial capabilities.
No, it is at the committee’s sole discretion. The application may be approved to allow up to 100 per cent foreign ownership. There are instances in which the committee granted 75 to 80 per cent foreign ownership to the foreign investors.
Although the Decree does not require the appointment of a local service agent, the DED in Dubai requests FDI companies appoint a local service agent that will not have any authority to manage, operate or interfere in the business of the company. Such local service agent will not acquire any rights or interests in the company and will simply provide services on matters that concern federal and local government departments such as fulfilling immigration requirements on the company’s behalf in return for a fixed annual fee. The agent cannot claim any rights over the assets of the company during its operation of after liquidation.
The applications are reviewed by the committee in DED on a case-by-case basis. Where an application meets all the conditions and procedures set out in the Decree, the foreign investor will be able to incorporate a new FDI company or convert his existing company into an FDI company based on the committee’s approval.
As the approval will be granted to a limited liability company, a minimum of two shareholders are required either of which can be corporate entities or natural persons.