Doing Business In... 2019 Comparisons

Last Updated August 02, 2019

Law and Practice

Authors



Hatem Abbas Ghazzawi & Co (Jeddah - HQ) is an independent Saudi Arabian law firm that regularly acts for international clients in disputes before Saudi Arabian courts. It has played an impressive role in high-profile transactions and developed a reputation for providing high-quality advice on some of the largest and most complex transactions in Saudi Arabia. It remains the first-choice Saudi counsel for many foreign companies and international law firms seeking advice on Saudi Arabian law.

Since the creation of the Kingdom of Saudi Arabia on 23 September 1932, it has been the government’s express policy that the country is governed by Islamic Law (Shari’a). This was confirmed in 1992 by the Basic Law of Rule, Royal Order No. A/90 of 27th Sha’ban 1412 Hejra corresponding to 1 March 1992, which is, in effect, the country’s constitution. Historically, the Hanbali school of Islamic Law has been dominant in the territory that is now Saudi Arabia. The Islamic law texts that Saudi jurists regard as authoritative were compiled during the 13th to 17th centuries CE; as such, they reflect the concerns of a pre-industrial society and do not address many commercial, business or economic issues.

Under Islamic Law and, therefore, Saudi Arabian law, a government may issue regulations, provided that they do not conflict with the established principles of Islamic Law. In theory, Islamic Law is meant to be all-embracing, so all legislation is intended to supplement Islamic Law. Indeed, due to Islamic Law sensitivities, Saudi Arabian statutes are referred to as regulations, rather than laws or acts. In practice, there are numerous areas of law where Islamic Law offers few or no guidelines, and where government-made legislation is, therefore, the only law. On the other hand, where a given subject matter is covered in some detail in the authoritative Islamic Law texts, the Saudi Arabian government tends not to legislate in those areas. For example, there is no Saudi Arabian legislation setting out general principles of contract law.

The Islamic Law texts do not set out an all-embracing theory of contract law that applies to all types of contracts. Rather, the texts address certain contracts – such as sales, hire, loans, agency and guarantees – in individual chapters. Accordingly, certain rules that apply, for example, to contracts of sale do not necessarily apply to guarantees, and vice versa. However, it is also acceptable to conclude innominate contracts – ie, contracts that do not fall within one of the contractual schemes mentioned above. The basic principle of Saudi Arabian contract law can be summed up in the maxim “The Contract is the Law of the Parties” (Al Aqd Shari’at Al Muta’aqdin), meaning that, in general, the parties to a contract are free to agree to the terms of their choosing, provided that such terms are not at odds with established Islamic Law principles.

Islamic Law also recognises the binding nature of custom and usage. Therefore, where no clear answer to a given legal issue can be found by reference to the authoritative Islamic Law texts or the contract terms, the Saudi Arabian judiciary or arbitrators may, in appropriate cases, consider custom and usage as binding on the parties to a transaction.

Saudi Arabia has courts that are administered by the Ministry of Justice, and specialised tribunals. The General Courts (also known as the Shari’a Courts), the Commercial Court and the Labour Courts are under the administration of the Ministry of Justice. 

Other specialised tribunals (whose names mostly explain their scope of jurisdiction fully) include the following:

  • the Administrative Court, also known as the Board of Grievances, which has exclusive jurisdiction over disputes to which the government or government agencies are party;
  • the Committee for the Resolution of Securities Disputes, which deals with disputes falling within the ambit of the Capital Markets Regulation and its Implementing Rules;
  • the Committee for Banking Disputes; and
  • the Committee for the Settlement of Insurance Disputes.

The past ten years have seen considerable change to the administration of justice in Saudi Arabia, which was initiated under the Judiciary Regulation, Royal Decree No M/78 of 19 Ramadan 1428 Hejra corresponding to 1 October 2007. The Board of Grievances used to have jurisdiction in commercial disputes, which was transferred to the newly formed Commercial Courts in October 2017, at the same time widening the definition of commercial disputes to include construction cases and commercial property disputes. Labour disputes used to be administered by the Ministry of Labour’s Commission for the Settlement of Labour Disputes, whose jurisdiction was transferred to the new Labour Courts in October 2018. The enforcement of judgments has been reformed, as was arbitration.

Where technical or complex financial issues are raised, it is common for the judges to appoint an expert or experts as advisers to the tribunal. The tribunal has discretion over who it appoints as an expert, and over whether or not it accepts or disregards all or part of the expert’s findings, but, ordinarily, the determination of technical or complex financial issues falls to the expert.

Up to 2000, the opportunities for foreign investment in Saudi Arabia were extremely restricted, essentially limited to foreign minority shareholdings in industrial development projects involving technology transfer to Saudi Arabia. Foreign participation in service or trading businesses was not possible. At the time, the economy was dominated by state-owned monopolies.

With the assistance of The World Bank, a new foreign investment framework was created through the enactment of the new Investment Regulation and the creation of the Saudi Arabian General Investment Authority (SAGIA) in April 2000. Until then, FDI in Saudi Arabia had been treated as a privilege. Under the new law, all business activities were opened to foreign investment, unless they were expressly excluded from foreign investment under the so-called Negative List.

These reforms immediately opened most forms of industry and services to 100% foreign ownership. Trading activities remained restricted to Saudi nationals until 2007, when the sector was opened up to 75% participation. 100% ownership of trading businesses has been possible since 2016, but is subject to high entry requirements.

Foreign investors must obtain approval from SAGIA before establishing a presence in Saudi Arabia. Approval is obtained after meeting certain conditions (depending on the investment activity) and providing the required documentation. There are various limitations on foreign ownership of joint stock companies, and these can vary depending on the nature of the activity carried out by such companies. For example, there are foreign ownership limits that apply to banks, insurance companies, and telecommunication companies. In addition,  the Negative List sets out a number of activities that foreign investors are prohibited from undertaking, such as real estate development in the holy cities of Makkah and Madinah.

As a general rule, foreign investors cannot own more than 49% of the issued shares or convertible debt instrument of a listed company.

Foreign investors are required to obtain an investment licence from SAGIA, the application for which is completed online and requires the submission of several documents by each foreign shareholder. The required documentation may differ depending on the activity of the company to be incorporated, but must include the following as a minimum requirement:

  • the authenticated commercial registration certificate of the foreign shareholder; and 
  • the authenticated audited financial statement of the foreign shareholder for the previous financial year.

The online application also requires the applicant to provide some general information with respect to each shareholder, including contact information, to specify the activities that will be carried out by the Saudi company, and to provide some general information with respect to the investment in Saudi Arabia, including the capital and estimated number of employees to be employed by the Saudi company. 

Once the online application is complete, it usually takes between three and seven days for SAGIA to issue the investment licence.

Carrying on unlicensed economic activities or investing in Saudi Arabia without an investment licence is an offence under the so-called Anti Fronting Regulation, Royal Decree No. M/22 of 4 Jumada Awwal 1425 Hejra corresponding to 22 June 2004. The parties involved may be imprisoned and fined, and the assets used in the business may be seized. In addition, a non-Saudi may be deported, and a Saudi may have his commercial registration cancelled and be prohibited from practising the same activity for up to five years. Participation in unlicensed economic activities also often involves tax fraud, in respect of which please refer to 5.5 Anti-Evasion Rules, below.

For most activities, the investor is only required to commit the capital that is required for the proposed activity. However, investment by non-Saudi interests in retail and wholesale activities is subject to the following requirements:

  • at least 25% Saudi Arabian participation;
  • a minimum foreign investment of SAR20 million (USD5.33 million);
  • the minimum size and maximum number of outlets may be prescribed; and
  • a minimum of 15% Saudi employees must be trained each year.

Non-Saudi interests can invest in a wholly-owned trading venture subject to the following requirements:

  • Alternative 1: foreign investment of SAR300 million (USD80 million), with a minimum of 30% Saudi employees trained each year.
  • Alternative 2: foreign investment of SAR200 million (USD54 million), with a minimum of 30% Saudi employees trained each year, coupled with one or more of the following:
    1. Manufacturing: a proportion of not less than 30% of products distributed locally to be manufactured in the Kingdom;
    2. Research and development programmes: a minimum of 5% of its total sales to be allocated for the establishment of research and development programmes in the Kingdom; or
    3. Logistical services and distribution: a centre to provide such services and after sales services to be established.

When an application for an investment licence is rejected, the applicant may lodge an objection with SAGIA’s board within 30 days from the date of receipt of the rejection notice. The board must consider and rule on the objection within 30 days of submission. If the board dismisses the objection, the applicant may appeal to the Administrative Court.

Companies incorporated in Saudi Arabia are usually incorporated as limited liability companies (LLCs) or joint stock companies (JSCs). An LLC can be owned by a single person, but cannot have more than 50 shareholders. There is no minimum share capital requirement for LLCs, but the Companies Regulation requires that the capital of a company is sufficient for carrying out the company activities. 

A JSC can be owned by a single corporate shareholder, but the sole shareholder’s capital must be at least SAR5 million. The JSC’s capital on establishment must be sufficient to achieve its object, and in any event must not be less than SAR500,000. It is possible for a JSC’s share capital to be partly paid up on establishment, provided that it is not less than 25%. An LLC’s capital must be fully paid up on establishment.

The Companies Regulation has recently formalised the establishment of holding companies, which can be either JSCs or LLCs. A holding company is an entity designed to control other JSCs or LLCs by owning more than half of their capital, or by controlling the formation of their board of managers or directors. The subsidiary company cannot be a shareholder in the holding company.

In addition to the above, an individual can establish a sole proprietorship without legal personality, but this is not normally approved for non-Saudi investors.

The first step towards incorporating an entity with non-Saudi shareholders is obtaining an investment licence from SAGIA. Once the licence has been obtained, the shareholders must submit the company’s draft articles of association to the Ministry of Commerce and Investment (MoCI) for review and approval. After they have been approved, the articles must be notarised and published. The next step is to obtain the commercial registration certificate from MoCI, which includes the appointment of management. Once the commercial registration certificate is issued, the company is incorporated and must complete the post-incorporation registrations with the below government authorities:

  • the Chamber of Commerce & Industry;
  • the Ministry of Municipal & Rural Affairs;
  • the Ministry of Labour;
  • the General Organisation for Social Insurance; and
  • the General Authority for Zakat and Tax.

The company may also need to obtain additional approvals from the relevant authority regulating its activity.

The timing for incorporating a company from the date of the SAGIA application up to the issuance of the commercial registration certificate is usually four to six weeks, depending on whether SAGIA has any comments on the documents submitted and the deviation of the draft articles of association from the standard articles issued from time to time by MoCI.

The timing for completing the post-incorporation registrations can range from three to six months.

Any amendments to the articles of association of a company must be submitted to MoCI for review and approval, and must be notarised and published. This includes any change in shareholding, any increase or decrease in the capital of the company, or any change to the activities of the company. Furthermore, the names of the general manager or members of the board of directors are included in the commercial registration certificate of a company and therefore any change in management must be reported to MoCI for amendment of the commercial registration certificate. 

An LLC’s management must send a report to MoCI in respect of each financial year, including the company’s financial statements, a report on the company’s activity and financial status, and the management’s proposals for the distribution of profits.

JSCs are managed by a board of directors, which has the widest powers to manage the company to achieve its objects, subject to the limitations set down by the shareholders’ general assembly. Board members are elected by the shareholders in the ordinary general assembly, except for the first board, which is appointed by the constituent general assembly or in the JSC’s articles or bylaws. 

The Companies Regulation now requires the shareholders of a JSC to form an audit committee of between three and five members who are not executive members of the board of directors. The resolution forming such committee must specify its functions and rules, and the remuneration of its members.

LLCs have more flexibility than JSCs to put a management structure in place that suits the company’s shareholders. An LLC can be managed by one or more of the shareholders, or by another person or persons. The shareholders are allowed to appoint a sole manager or managers in the articles of association or by a separate contract, for either a specified or unspecified period. The shareholders can resolve to form a board of directors if there are multiple directors.

Article 78 of the Companies Regulation makes the members of the board of directors of a JSC jointly liable towards the company, its shareholders and third parties for “any damage arising out of their mismanagement of the company’s affairs or their breach of the provisions of the Regulation or the company’s bylaws.” Similarly, Article 165 (2) of the Companies Regulation makes the managers of an LLC jointly liable towards the company, its shareholders and third parties for losses caused by “any defaults on their part in the performance of their work.” The term used for managers is mudīr, which means a manager or director with the power to bind the company pursuant to its articles of association or a shareholders’ resolution. In the context of Article 165, a default is more than an honest mistake, but it does not need to be a deliberate act. Provisions absolving the board members or managers from their liabilities are void.

Saudi Arabian courts respect the juristic personality of a body corporate and will not make the shareholders liable for the company’s debts. However, there are important exceptions to this general rule under Article 150 of the Companies Regulation in respect of JSCs, and under Article 181 of the Companies Regulation in respect of LLCs.

When a JSC’s losses exceed 50% of its capital, Article 150 of the Companies Regulation requires the officers or auditors to notify the chairman of the board immediately, and the board must summon an extraordinary general shareholders’ meeting within 45 days. The shareholders must decide whether to increase the capital to bring the losses below 50%, or to dissolve the company. Failure to call the shareholders’ meeting, or to reach the requisite resolution, or to inject the capital within 90 days results in the company’s termination. Continued trading in these circumstances may expose the shareholders to responsibility for the company’s debts.

When an LLC’s losses reach 50% of its capital, Article 181 of the Companies Regulation requires the managers to record the fact in the commercial register and call a shareholders’ meeting within 90 days. At the meeting, the shareholders must pass a resolution to either carry on trading or liquidate the company. If no meeting is called or if the shareholders do not pass the required resolution, the company ceases to exist, in which case the shareholders may be liable for the company’s debts. It is not clear from the wording of Article 181 whether the liability arises only in respect of debts incurred after the cut-off point, but there is a risk that a Saudi Arabian court may hold the shareholders liable for all of the company’s debts, regardless of when they were incurred.

When the shareholders hold a meeting as required and pass a resolution to carry on trading without injecting new capital, and the shareholders’ resolution is published on the MoCI’s website, the company continues to exist. Article 181 is silent regarding whether or not the shareholders will become liable for the company’s debts in this scenario, but it can be argued that they will not be liable for the debts because parties that do business with the company have been put on notice by the announcement on MoCI’s website.

A failure by the management to notify the shareholders pursuant to Article 150 or Article 181 is likely to be viewed as mismanagement or default, creating a liability for the directors or managers.

The main Saudi Arabian statute governing relations between employers and employees is the Labour Regulation, Royal Decree No. M/51 of 23 Sha’ban 1426 Hejra corresponding to 27 September 2005, as amended by Royal Decree No. M/46 of 5 Jumada Thani 1436 Hejra corresponding to 25 March 2015. The Labour Regulation lays down certain mandatory minimum standards, and any agreement lessening an employee’s minimum rights is void.

The basic rule under the Labour Regulation is that Saudi employees shall not represent less than 75% of the total workforce, but that the Minister of Labour may decrease the percentage temporarily. Since 2011, the Saudi Ministry of Labour has implemented a detailed list of quotas, known as the Nitaqat system, which are determined by the business sector and size of the business entity, with the percentages of Saudi employees classed in Red, Yellow, Low Green, Green, High Green and Platinum sections. To employ new staff, one must be in at least the Green section.

The Implementing Rules of the Labour Regulation set out a standard employment contract, certain provisions of which are mandatory. A written employment contract must be executed, but the provisions of the Labour Regulation apply if the employer fails to do so.

Employment contracts with non-Saudis must be on a fixed-term basis, but Saudi Arabian employees can be employed on fixed-term contracts or indefinite term contracts. If a fixed-term contract expires and the parties continue the relationship, it becomes an indefinite term contract for Saudi employees. If a fixed-term contract contains a renewal provision, it can be renewed twice for less than four years and remains a fixed-term contract. If the contract is renewed three times or the employment period exceeds four years, the contract becomes indefinite for Saudi employees. Accordingly, a Saudi Arabian national who has been employed by the same employer for more than four years or whose contract has been renewed three times will automatically be employed on an indefinite term basis.

As a general rule, working hours are eight hours per day for six days per week, with a total of 48 hours per week. During Ramadan, working hours for Muslims are reduced to six hours per day for six days per week, with a total of 36 hours per week. Article 99 of the Labour Regulation provides that statutory working hours may be increased to nine hours per day or decreased to seven hours per day for certain work categories determined by the Minister of Labour. According to Article 101 of the Labour Regulation, workers may not work continuously for more than five hours at a time, with breaks for meals, rest and prayers of not less than half an hour at a time. Breaks are not counted as working hours, but workers may not remain at the workplace for more than 11 hours per day.

Article 106 of the Labour Regulation provides that the maximum actual working hours may be increased to up to ten hours per day or up to 60 hours per week without a day of rest in certain circumstances, which include if the “employment has the purpose of facing an unusual work pressure.” In such situations, overtime is payable at 150% of the employee’s base wage.

Under Saudi Arabian law, staff can be dismissed in the following circumstances:

  • non-renewal of a fixed-term contract;
  • for a cause listed under Article 80 of the Labour Regulation; and
  • termination of an indefinite term contract under Article 75 of the Labour Regulation.

A fixed-term contract comes to an end when its term expires. Therefore, an employee can be dismissed by being giving notice that the contract will not be renewed. In such circumstances, no compensation is payable other than the statutory end-of-service award, and repatriation costs for non-Saudis.

Article 80 allows an employer to terminate a contract for certain specified causes, most of which involve misconduct. Article 80 (2) permits termination “if the worker does not perform his essential duties arising out of the contract of employment or if he does not obey lawful orders or if he deliberately ignores instructions posted in a conspicuous place by the employer, relating to the safety of work and workers despite written notice being given to him.” This is a catch-all provision, and is applicable to any breach of the essence of the contract of employment, but the breach must be material. Ordinary, trivial errors are punishable only by disciplinary measures.

Any dismissal under Article 80 requires that the employee is given a chance to justify his conduct. For this, a meeting must be called at which at least two management representatives must be present, and which must be minuted. If the employee fails to respond within a reasonable time, it may be assumed that he has no valid objection to the termination, or that he is not interested in prolonging the employment relationship. Dismissal under Article 80 can only be invoked in isolated instances, and not, for example, to reduce a company’s workforce.

Article 75 of the Labour Regulation permits the termination of an indefinite term contract for lawful cause, upon 60 days’ notice, although the term "lawful cause" is not defined. In principle, it can include any reason, such as the Labour Regulation and other applicable laws, contractual obligations, social, religious and customary rules, public policy, impossibility or frustration of purpose, the employer’s bylaws and work rules, and real business considerations. However, anything that appears arbitrary or discriminatory will not be accepted by the Labour Courts.

When a fixed-term contract is terminated prematurely without cause, Article 77 of the Labour Regulation requires the courts to award compensation to the end of the contract (however long this may be), with a minimum of two months’ salary. The right to compensation applies not only when the employment contract is terminated early by the employer, but also when the employee terminates early without good cause.

When an indefinite term contract is terminated without cause, the employee receives 15 days’ salary for each year of service, or pro rata for an incomplete year, with a minimum of two months’ salary, unless compensation for unlawful termination is set out in the employment contract. The compensation is in addition to the end-of-service benefits (ESBs) that are payable in any event.

Under Article 84 of the Labour Regulation, when an employment contract comes to an end, as a general rule the employee is entitled to:

  • one-half of one month’s wages for each of the first five years of employment (or pro-rated part thereof); and
  • a full month’s wages for each year of employment thereafter (or pro-rated part thereof).

Where an employee has resigned for reasons other than force majeure, the ESB is calculated as follows:

  • one third of the Article 84 ESB for two to five years of employment;
  • two thirds of the Article 84 ESB for six to ten years of employment; and
  • the full Article 84 ESB for employment of more than ten years.

A waiver of the right to ESB is ineffective under Saudi Arabian law. The ESB is calculated with reference to the employee’s gross remuneration, which includes housing and transport allowances, regular bonuses, and the like. Where housing and transport are provided to the employee, the actual value or fair market value of such benefits is taken as the basis of the calculation.

There are no trade unions in Saudi Arabia. Employees’ interests are represented by the Ministry of Labour. The Labour Regulation sets out rules governing the investigation of complaints by labour inspectors.

There is no personal income tax in Saudi Arabia. However, in 2018 the government imposed monthly charges on expatriate employees, implemented on a sliding scale as follows:

  • Expats equal to or less than the number of Saudi employees:
    1. SAR 300 in 2018;
    2. SAR 500 in 2019;
    3. SAR 700 in 2020.
  • Expats exceeding the number of Saudi employees:
    1. SAR 400 in 2018;
    2. SAR 600 in 2019;
    3. SAR 800 in 2020.

In addition, a monthly charge is imposed on expatriates’ dependents, as follows:

  • July 2017 to July 2018 – SAR 100 per month per dependent;
  • July 2018 to July 2019 – SAR 200 per month per dependent;
  • July 2019 to July 2020 – SAR 300 per month per dependent; and
  • July 2020 to July 2021 – SAR 400 per month per dependent.

While the charges on expatriate employees must be borne by the employer, many employers do not cover the levy on dependents, which is therefore, in effect, a form of income tax.

Saudi Arabian interests pay zakat, which is a religious wealth tax based on the taxpayer’s net worth, not income. The effective rate is 2.5% of the net worth of natural persons and 2.5% of the total capital resources of companies. For companies, the tax base for the calculation of zakat excludes fixed assets, long-term investments and deferred costs from total capital resources, but includes profits from foreign investments that do not consist of investment in real property.

Under the Income Tax Regulation, Royal Decree No. M/1 of 15 Muharram 1425 Hejra corresponding to 7 March 2004, foreign interests that conduct business in Saudi Arabia (other than in hydrocarbon-related industries) pay income tax at a flat rate of 20% of the profits. When a company has Saudi and non-Saudi shareholders, the Saudi shareholders pay zakat, and the non-Saudi shareholders pay income tax.

Payments to a non-resident with no permanent establishment in Saudi Arabia for any amount realised from a source in the Kingdom are subject to withholding tax at the following percentages of the gross payment:

  • management fees: 20%;
  • royalties or proceeds; payments for services to a head office or related company: 15%;
  • payments for rent; payments for technical and consulting services; payments for air tickets, air freight and maritime freight; payments for international telecommunications services; dividends; loan charges; insurance or reinsurance premiums: 5%; and
  • other payments: 15%.

Value-added tax is payable at the rate of 5%.

Net operating losses may be carried forward by non-Saudi investors from one year to the next. Any loss that has been carried forward may be deducted from the tax base of future taxable years until the cumulative loss is fully offset.

No information was provided relating to tax consolidation.

No information was provided relating to thin capitalisation rules.

Article 63 (c) of the Income Tax Regulation gives the General Authority of Zakat and Tax (GAZT) the power to re-allocate income and expenses between related parties as may be necessary to reflect the income that would have been realised if the parties had been independent and unrelated. While this rule has been in force since 2004, it was not widely applied until this year. On 15 February 2019, the GAZT introduced transfer pricing by-laws based on the OECD’s Base Erosion and Profit Shifting Recommendations.

Under the Income Tax Regulation, failure to pay income tax results in a delay fine of 1% of the unpaid tax for each 30 days of the delayed payment, plus an additional 25% of the unpaid tax if fraud is involved.

The first Saudi Arabian Competition Regulation was enacted under Royal Decree No. M/25 of 4 Jumada Awwal 1425 Hejra corresponding to 22 June 2004. A new Competition Regulation has been enacted under Royal Decree No. M/75 of 29 Jumada Thani 1440 Hejra corresponding to 6 March 2019, and will enter into force on 25 September 2019. At the time of writing, the Implementing Rules of the 2019 Regulation have not been published, so the relevant rules under the 2004 Regulation are stated below, pending publication of the new Rules.

Under Article 7 of the 2019 Regulation, businesses that plan to engage in a transaction resulting in an economic concentration exceeding a specified threshold must notify the General Authority for Competition (GAC) at least 90 days before the transaction is completed. The threshold under the 2019 Regulation is to be determined in the Implementing Rules. The threshold was 40% under the 2004 Regulation, and it is unlikely that the threshold will be higher under the 2019 Regulation.

Economic concentration is defined as “any act resulting in the total or partial transfer of ownership of assets, rights, shares, stakes or obligations of an enterprise to another enterprise, or the combining of two or more managements into a joint management,” subject to further rules to be set out in the Implementing Rules. Therefore, a full merger or acquisition is not necessary to trigger the reporting requirement; for example, the formation of an unincorporated joint venture or a consortium may also be sufficient.

GAC approval may also be required where a transaction places a business or group of businesses in a dominant position, which can be reached by being able to control or influence market prices even without having reached a set percentage of the market share.

Depending on the parties’ activities, it may also be necessary to obtain approvals and comply with the additional requirements of sector-specific regulatory bodies, such as the Saudi Arabian Monetary Agency (SAMA) for banks and insurance companies, and the Communications and Information Technology Commission (CITC) for telecommunication companies.

Special rules apply to mergers and acquisitions involving listed companies, which are set out in the Merger and Acquisitions Regulations, Resolution of the Board of the Capital Market Authority No. 1-50-2007 of 21 Ramadan 1428 Hejra corresponding to 3 October 2007 Gregorian, as amended by Resolution No. 3-45-2018 of 7 Sha’ban 1439 Hejra corresponding to 23 April 2018.

Under the Implementing Rules of the 2004 Regulation, an application for GAC approval must provide detailed information, including the following:

  • details of the parties, their addresses and branches, their board members, existing agreements and distribution channels;
  • constitutional documents and financial statements, including those of branches, for the preceding two years;
  • the draft contract;
  • the commodities or services in which each party deals, and alternatives thereto;
  • their most important customers and competitors;
  • the parties’ sales volumes;
  • the market and the annual volume of transactions;
  • factors affecting prices in the preceding five years;
  • the volume of the productive capacity available, and the proportion of exploitation thereof;
  • the concentration that will be achieved through the transaction;
  • when the transaction will be implemented; and
  • the positive and/or negative effects that may result from the transaction.

Once the application is received, the GAC must publish the application at the applicant’s expense, and request comments from interested parties. Following public consultation, the GAC must evaluate the application in light of the following factors:

  • the level of competition in the market;
  • the degree of ease of entry for new enterprises into the market;
  • the effect of the application on the price of the commodity;
  • the existence of any legal or factual obstacles affecting the entry of new competitors;
  • the level and historical directions of practices disturbing competition in the market;
  • the degree of probability that the economic concentration will result in the concentrating parties having power in the market;
  • the variable characteristics of the market, including growth, innovation and invention; and
  • the views of interested parties.

If the GAC determines that the transaction may have a negative effect on competition, it must also determine whether the transaction may have positive effects that would outweigh the negative.

The period of enquiry is set at 60 days, but may be extended if so determined by the GAC. At the conclusion of the enquiry, the GAC may approve or reject the application, or may set conditions for its approval. If no ruling is made within 90 days of submission of the application, the application is deemed to be approved.

Article 5 of the 2019 Regulation prohibits practices that have the effect of disturbing competition, or that are intended to disturb competition. Such practices can involve express or implied agreements between businesses, but a single entity can also be guilty of engaging in anti-competitive practices.

Article 5 sets out a non-exclusive list of practices that are considered anti-competitive, as follows:

  • fixing or proposing prices for goods and consideration for services and conditions of sale or purchase and the like;
  • fixing the volumes, weights or quantities of production of commodities or the performance of services;
  • restricting the freedom of flow of commodities or services to the markets, or wholly or partially removing the same therefrom by concealment or storing of the same without right, or refusing to deal therein;
  • any conduct tending to impede the entry of an enterprise to the market, or excluding it therefrom;
  • withholding commodities or services available on the market wholly or in part from a particular enterprise or enterprises;
  • dividing up the markets for the sale or purchase of commodities or goods, or allocating them in accordance with any criterion, particularly according to geographical areas, distribution centres, types of customers, or seasons and periods of time;
  • freezing operations of manufacture, development, distribution and marketing and all other modes of investment, or restricting the same; and
  • colluding or co-ordinating in bids or offers in governmental or other auctions or tenders in such a manner as to disturb competition.

Since the GAC was established in 2004, originally as the Competition Protection Council, it has brought actions against and convicted businesses in the cement, medical gases, rice, sugar and soft drinks industries, among others.

Under the 2004 Regulation, a dominant entity was defined as having a 40% market share in a given year of the ability to control or influence prices. The market share required for dominance has not yet been defined under the 2019 Regulation, but it is unlikely to be greater than that under the 2004 Regulation.

Dominant businesses may not abuse their position, nor disturb or limit competition. Article 6 of the 2019 Regulation sets out the following non-exclusive list of practices that are prohibited for dominant businesses:

  • selling a commodity or service at a price less than the total cost, in order to exclude enterprises from the market or to expose them to grave loss, or to impede the entry of potential enterprises;
  • fixing or imposing prices or conditions for the resale of commodities or services;
  • reducing or increasing the available quantities of products in order to control prices or fabricate a non-genuine abundance or shortage;
  • discriminating in dealings between enterprises in respect of similar contracts with regard to the prices of commodities or consideration for services or conditions of sale or purchase thereof;
  • refusing to deal with another enterprise without objective cause, in order to restrict its entry to the market;
  • imposing a requirement on an enterprise that it should refrain from dealing with another enterprise; and
  • making the sale of a commodity or the providing of a service conditional upon the assuming of obligations or the acceptance of goods or services that – by their nature or under commercial usage – are unconnected with the commodity or service that is the subject matter of the original contract or transaction.

At present, intellectual property rights are administered and protected by three different government authorities:

  • King Abdulaziz City for Science and Technology (KACST) for patents;
  • MoCI for trade marks; and
  • the Ministry of Media for copyrights.

In late 2018, the Saudi Arabian government set up the Saudi Authority for Intellectual Property (SAIP), which aims to organise, support, sponsor, protect and promote intellectual property in the Kingdom, in accordance with global best practices.

For the time being, SAIP’s functions include providing information on intellectual property rights and making it available to the public, and raising awareness of the importance of intellectual property and the protection of its rights. There are plans for these activities to be expanded to include the administration and protection of intellectual property rights in due course, but for the time being SAIP defers to KACST, MoCI and the Ministry of Media in these contexts.

Patents

There are currently two overlapping patent systems in Saudi Arabia. The GCC Patents of Inventions Regulation of 2001 was approved in Saudi Arabia by Royal Decree No. M/28 of 2001, and is an amendment of an earlier statute of 1992. It permits the registration of patents with effect throughout the GCC countries. The GCC Patent Office is based in Riyadh.

Under Saudi Arabian law, patents are governed by the Patent, Layout Designs of Integrated Circuits, Plant Varieties, and Industrial Models Regulation, Royal Decree No. M/27 of 20 Jumada Awwal 1425 Hejra corresponding to 17 July 2005, which gives effect to the Paris Convention for the Protection of Industrial Property under Saudi Arabian domestic law.

A protection document is granted by the Saudi Patent Office at King Abdulaziz City for Science and Technology, which gives full protection within the Kingdom to an invention, a layout design of an integrated circuit, a plant variety, or an industrial design. The protection document grants the owner the right to commercially exploit the subject matter of protection. 

In accordance with the provisions of the Patent, Layout Designs of Integrated Circuits, Plant Varieties, and Industrial Models Regulation, a patent may be granted for an invention if it is novel, involves a creative step, and is capable of industrial application. The invention may be a product or an industrial process, or may relate to either.

Applications for a protection document must be filed at the Saudi Patent Office in the Arabic language, and must include the following:

  • the names and addresses of the applicant(s) and inventor(s);
  • the name and address of the local agent and the authorisation, if the applicant resides outside the Kingdom;
  • a brief title of the subject matter of the application, an original copy and certified copies of the complete specification and certified copies of other relevant details thereof, like examination and research reports;
  • priority and disclosure information, including previous filings; and
  • evidence of payment of the filing fee at a designated bank, stipulated by the Directorate.

The protection document is the personal right of the owner, who may transfer or assign it, or grant a contractual licence to others to commercially exploit the subject matter of protection. Protection is granted to the owner for 20 years for an invention, ten years for an industrial design and a layout design of an integrated circuit, and 20 to 25 years for a new plant variety. These periods are renewable, for an annual fee.

Trade marks are regulated under the Gulf Cooperation Council Trademark Law, which defines a trade mark as “anything having a distinctive form such as names, words, signatures, letters, figures, drawings, logos, titles, hallmarks, seals, pictures, engravings, packs or any other mark or group of marks if used or intended to be used either to distinguish goods, products or services of a facility or other facilities or to indicate the rendering of a service or the control of inspection of goods or services.”

Applications for the registration of trade marks are made online and must include the following: 

  • a copy of the trade mark to be registered;
  • the name, title, address, nationality and trade name of the applicant (if any). If the applicant is a juristic person, the name, address of the head office and nationality must be provided;
  • the name, title and address of the attorney where the application is submitted by an attorney;
  • a description of the trade mark to be registered;
  • the products or services in respect of which the trade mark is to be registered, and the classification thereof;
  • a copy of the power of attorney; and
  • payment of the application fee.

In Saudi Arabia, it is not permitted for anyone other than the rightful owner to register a trade mark that is similar to an internationally known mark. Registration of a trade mark provides the holder with protection for ten years from the date of registration, renewable for similar periods. Any renewal must be specifically applied for before the end of the last year of expiry of the registration, and the procedure for renewal is the same as that for the initial registration of the trade mark. A trade mark is deemed owned by the person who effects the registration. Once the registration is effected in the trade marks register, the party who has registered the trade mark shall be considered the owner thereof, to the exclusion of others.

A trade mark can be licensed, pledged or transferred by the rightful owner. The trade mark may be deleted or cancelled if it is not used for five consecutive years. 

Penalties for infringement of a valid trade mark include imprisonment for a period of no more than three years and a fine of no less than SAR5,000 and no more than SAR1,000,000. Any civil or criminal disputes arising from the infringement are settled by the Commercial Court.

Industrial design is defined as “a collection of two-dimensional lines or colours, or a three-dimensional form that gives any industrial product or product of traditional crafts a special appearance, provided that it is not merely for a functional or technical purpose, including textile designs.” The industrial design is protected by a protection document called an “industrial design certificate”.

Industrial designs are governed by the Patent, Layout Designs of Integrated Circuits, Plant Varieties, and Industrial Models Regulation. A protection certificate shall be granted for an industrial model if it is novel and has features that distinguish it from known industrial models. The industrial model shall be deemed novel if it was not disclosed to the public through publication anywhere in a tangible form, by use or by any other way, prior to the date of filing the registration application or the priority application.

Protection is granted to the owner for ten years for an industrial design. The abovementioned regulation gives the owner of an industrial model protection certificate the right to initiate an action before a committee formed pursuant to a resolution by the Council of Ministers against any person who infringes the industrial model by exploiting it for commercial purposes without his consent within the Kingdom through the manufacture, sale or importation of a product that includes or represents a wholly or substantially copied industrial model.

Note that the procedure for applying for a protection certificate for an industrial design is similar to the procedure for registering a patent, as described above (please see 7.2 Trade Marks).

The Copyright Regulation, Royal Decree No. M/41 of 2 Rajab 1424 Hejra corresponding to 30 August 2003 and its Implementing Rules define copyright protection to include architectural designs, speeches, theatrical, musical, photographic and cinematographic works, as well as works for radio and television, maps, video tapes and computer software. Copyright protection is not subject to any registration or renewal. The Regulation gives the author financial and moral rights to print or publish the work, make amendments or delete the work, withdraw it from circulation, and  assign it as he or she wishes. 

In general, the duration of protection afforded to different types of copyrighted works is as follows:

  • the period of protection of copyright for the author of a work shall be for the duration of his or her life and for a period of 50 years following his or her death;
  • the period of protection for works where the author is a corporate entity, or if the author’s name is unknown, shall be 50 years from the date of the first publication of the work;
  • the protection period for sound works, audio-visual works, films, collective works and computer programs is 50 years from the date of the first show or publication of the work, regardless of republication;
  • the protection period for applied art (handcrafted or manufactured) and photographs shall be 25 years from the date of publication; and
  • the protection period for broadcasting organisations shall be 20 years from the date of the first transmission of a programme or broadcast materials.

A special Copyright Violations Committee under the authority of the Ministry of Culture and Information presides over copyright infringement issues and has broad powers to punish the infringer of a valid copyright, including with a fine of up to SAR250,000 for first-time offenders, which can be raised to SAR500,000 if there is repeated infringement. The Committee may issue injunctions in certain cases and also order the imprisonment of an offender. Any decision of the Violations Committee can be appealed by filing a claim with the Board of Grievances.

There is no additional information on other IP rights.

There is no specific data protection regulation in force in the Kingdom. However, data protection is regulated under several regulations, including the following.

The Anti Cyber Crime Regulation, Royal Decree No. M/17 of 8 Rabi Awwal 1428 Hejra corresponding to 26 March 2007 defines data as “information, commands, messages, voices, or images which are prepared or have been prepared for use in computers” and imposes a penalty of imprisonment for a period not exceeding one year and/or a fine not exceeding SAR500,000 for committing any of the following crimes: 

  • spying on, intercepting or receiving data transmitted through an information network or a computer without legitimate authorisation;
  • unlawful access to computers with the intention to threaten or blackmail any person to compel him to take or refrain from taking an action, bet it lawful or unlawful; or
  • invasion of privacy through the misuse of camera-equipped mobile phones and the like.

The Health Profession Practice Regulation, Royal Decree No. M/59 of 4 Dhul Qada 1426 Hejra corresponding to 6 December 2005 provides that a medical practitioner must not disclose any confidential information obtained during the course of his or her work. The regulation lists a few exceptions to this rule, such as a court order requiring disclosure.

The Telecommunications Regulation, Royal Decree No. M/12 of 12 Rabi Awwal 1422 Hejra corresponding to 3 June 2011 provides that “the privacy and confidentiality of telephone calls and information transmitted or received through public telecommunications networks shall be maintained. Disclosing, listening or recording the same is not permitted, except for the cases stipulated by the relevant regulations.

The Cloud Computing Regulatory Framework defines customer data as any data falling under at least one of the following categories, insofar as that data is, or has been, part of the customer content or is, or has been, generated by the cloud service provider with regard to one or more of its cloud customers or cloud users:

  • any data relating to a cloud user that is or can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors that allow said cloud user to be identified; 
  • any data relating to a cloud customer’s business activities, business information or financial affairs. Such data can include, for example, the cloud customer’s prices, data on its personnel, product or client lists, its financial, audit and security data, and its business and product development data, even if such data or other information is in the public domain. Notwithstanding the above, a cloud service provider (CSP) may exclude some or all of a cloud customer’s business data from the above definition of customer data, subject to the cloud customer’s prior consent; or
  • any data generated by, or for, the CSP concerning the cloud customer’s activity log, billing, usage volume, statistics or other cloud customer-specific information associated with its use of the cloud services offered by the CSP.

The Cloud Computing Regulatory Framework provides for the protection of customer data and states that a CSP may not provide or authorise another party to provide customer content or customer data to any third party – including but not limited to any individuals, legal entities, domestic or foreign government or public authorities – nor process or use customer content or customer data for purposes other than those allowed under the cloud computing agreement with the cloud customer concerned.

The data protection rules in place are not sophisticated enough to provide the applicability of these rules to a foreign company located outside the Kingdom.

There is no single agency in charge of enforcing data protection rules: each government authority supervising an activity listed in 8.1 Applicable Regulations is responsible for enforcing its specific data protection rules. 

Hatem Abbas Ghazzawi & Co.

Office Number 113, First Floor
Saudi Business Centre, Madina Road
Jeddah 21442
Saudi Arabia

+966 12 650 4475

+966 12 657 2007

secretariat@saudilegal.com www.saudilegal.com
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Hatem Abbas Ghazzawi & Co (Jeddah - HQ) is an independent Saudi Arabian law firm that regularly acts for international clients in disputes before Saudi Arabian courts. It has played an impressive role in high-profile transactions and developed a reputation for providing high-quality advice on some of the largest and most complex transactions in Saudi Arabia. It remains the first-choice Saudi counsel for many foreign companies and international law firms seeking advice on Saudi Arabian law.

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