Oman is a civil law jurisdiction. Legislation is the primary source of its laws, not judicial precedent.
Royal Decrees form the bedrock of Oman’s legislative framework, and are often supplemented by secondary/delegated legislation in the form of Ministerial Decisions. Royal Decrees are identified in this article with the initialisation “RD”.
Oman’s Civil Transactions Law RD 29/2013 (the Civil Code) regulates all matters that are not addressed by other specific laws. Under the Civil Code, commercial arrangements between parties are governed by the contract between them, unless the law imposes a contrary requirement. The principles of Islamic jurisprudence, the principles of Shari'a, and customary practices (in that order of descending authority) may also be relevant when interpreting a contract.
The Courts take a purposive approach to the construction of contracts, and will seek to identify the intention of the parties to it. Broadly speaking, a party exercising rights under a contract will be expected to act reasonably and in good faith.
The Basic Law of the State RD 101/96 (the Basic Law) essentially serves as Oman’s constitution. Under the Basic Law, judicial power is independent and vested in the Courts, which operate in accordance with the rule of law.
The judiciary consists of the Primary Courts (otherwise known as the Courts of First Instance), the Appeal Courts, and the Supreme Court (Oman’s highest Court).
Non-Omanis may only conduct business in Oman through a locally registered entity. In practice, this means that non-Omanis must either establish a presence in Oman or conduct their business through a local commercial agent in order to invest in Oman.
Establishing a Presence in Oman
Establishing a presence in Oman has recently become much easier for non-Omanis. Oman’s Foreign Capital Investment Law RD 50/2019 (the FCIL) came into force and effect in January 2020 and its impact has been to significantly relax Oman’s foreign ownership restrictions.
Oman’s Ministry of Commerce and Industry (the MOCI) has recently issued a blacklist of activities that remain subject to foreign ownership restrictions, but in principle all other activities are now open to 100% foreign ownership. The blacklist will be updated from time to time.
There are certain industry sectors that do not appear on the blacklist, despite historically requiring a higher level of local ownership. Oman’s engineering law, for instance, requires engineering consultancy offices to have a minimum of 35% local ownership. The MOCI is expected to continue to apply any such industry sector restrictions.
Even prior to the introduction of the FCIL, foreigners establishing a presence in Oman’s “free zones” or “special economic zones”, or under the US-Oman free trade agreement, or under certain reciprocal arrangements implemented within the GCC, were able to take advantage of less onerous foreign ownership restrictions. However, the blacklist also applies to non-Omanis establishing a presence under these routes.
Conducting Business Through a Local Commercial Agent
Any arrangement under which a foreigner conducts its business through a local commercial agent must be registered with the MOCI. Commercial agents must be duly licensed by the MOCI.
Companies, partnerships, branches and representative offices must be registered with the MOCI. Where the entity being established is owned in whole or part by non-Omanis, the application for registration will need to be processed through the Investment Services Centre of the MOCI. MOCI registration is required before any of these types of entity can commence operations.
Contractual joint ventures (see 3.1 Most Common Forms of Legal Entities) are the exception to this general rule: although they are treated as legal entities formed under the CCL 2019, they do not require registration with the MOCI. At least one of the parties to the contractual joint venture will need to have an appropriately licensed presence in Oman, however.
A foreigner who undertakes investment activity in Oman other than in compliance with the FCIL may be fined between OMR20,000 and OMR150,000. An Omani who participates with a foreigner in an investment project other than in accordance with the FCIL is subject to the same penalty.
The FCIL’s executive regulations were issued in June 2020, and set out the types of investment project that may apply for preferential treatment (eg, projects established in Oman’s less developed regions), and the financial and non-financial conditions that must be satisfied in order for an investment project to qualify for such treatment.
There is no formal procedure to challenge a decision by the MOCI to reject a foreign investment (eg, where the MOCI declines to issue the necessary licence or declines to approve the necessary registration). If an investor believes that an application has been unreasonably rejected, the first response should be to open a dialogue through the appropriate channels at the MOCI. It is prudent to appoint local counsel with an understanding of MOCI’s structures, practices and ethos to assist with these discussions. If that approach is not successful, then it would also be open to an investor to challenge any such decision in Court. Oman’s legal system operates in accordance with the rule of law.
The types of legal entity available in Oman are companies established under the CCL 2019, branches and representative offices.
For new entrants to Oman, a presence is typically established by incorporating a limited liability company/single proprietor company or, in the case of a foreign investor that has been awarded a qualifying government contract, by establishing a branch.
Entities may be established either “onshore” in Oman, or in one of Oman’s industrial free zones (free zones) or special economic zones (SEZs). A company established in a free zone or an SEZ may not undertake commercial activities onshore in Oman.
Companies Established Under the CCL 2019
These may be formed as:
Joint Stock Companies (JSCs)
A JSC must have at least three shareholders.
The minimum share capital of an SAOG is OMR2 million, and the minimum share capital of an SOAC is OMR500,000. Higher share capital requirements may be required, depending on the activities undertaken by the JSC. A JSC must allocate 10% of its net profits to a legal reserve until the legal reserve reaches one-third of the JSC’s share capital.
The liability of a JSC is limited to the amount of its share capital, and a shareholder’s liability is limited to its shareholding in the JSC’s share capital.
Both SAOGs and SAOCs are subject to considerably more onerous regulatory requirements under the CCL 2019 than LLCs. SAOGs must also be listed. As a listed company, an SAOG is regulated by the Capital Market Authority and subject to its rules and regulations.
A JSC is managed by its board of directors. Subject to the CCL 2019 and the JSC’s articles of association, a JSC’s board of directors has all authority necessary to manage its affairs; its board also has a duty to implement any resolutions passed by the JSC’s shareholders in general meetings. An SAOG must have between five and 11 directors, and an SAOC must have between three and 11 directors. In each case, the number of directors (which must be uneven) will be specified in the JSC’s articles of association.
A JSC’s directors are listed in its commercial registration (a document maintained by the MOCI and available for public inspection), which will also set out the authorised signatories of the JSC and any limits on their powers.
The key advantage of JSCs over LLCs is that shares in JSCs may be mortgaged as security. This may be necessary in order for a company to procure debt financing. Unlike SAOCs and LLCs, SAOGs may also raise equity finance in the capital markets, as they are able to offer their shares to the public. Some regulated activities in Oman may only be undertaken by SAOGs.
A Holdco is a JSC that exercises financial and administrative control over one or more JSCs and/or LLCs by holding at least 51% of the shares of each such company. Holdcos are generally subject to the same regulation as JSCs.
An LLC must have at least two shareholders.
An LLC must allocate 10% of its net profits to a legal reserve until the legal reserve reaches one-third of the LLC’s share capital.
The liability of an LLC is limited to the amount of its share capital, and a shareholder’s liability is limited to its shareholding in the LLC’s share capital.
LLCs are managed by one or more managers. Subject to the CCL 2019 and the LLC’s constitutive documents, an LLC’s managers have all the authority necessary to manage its affairs.
An LLC’s managers are listed in its commercial registration (also available for public inspection), which will also set out the authorised signatories of the LLC and any limits on their powers.
LLCs are subject to a considerably less onerous regulatory regime than JSCs, and accordingly are considerably more prevalent.
An SPC must have only one shareholder.
SPCs are be subject to the same regulation as LLCs under the CCL 2019, to the extent such regulations are not inconsistent with the nature of an SPC.
SPCs were introduced for the first time under the FCIL, and are likely to be a popular alternative to LLCs going forward.
A CJV is formed (typically pursuant to a written joint venture contract) by two or more partners. It is described in the CCL 2019 as a “concealed company”, and is the only legal entity in Oman that is not subject to registration with the MOCI.
CJVs are not subject to any minimum share capital requirement.
A CJV does not have a separate legal personality. Each of its partners therefore contracts only in its own name, and has unlimited liability for the obligations and liabilities it assumes under that contract.
If a CJV partner discloses the existence of the CJV to a third party who deals with that partner in the context of the CJV’s activities, then the CJV will become a general partnership. This will result in all of the CJV’s partners assuming unlimited liability for the liabilities and obligations of the CJV.
Investors tend to favour LLCs over CJVs because of the limited liability that LLCs confer. CJVs can, however, offer a quick route into the market and are subject to considerably less onerous regulation under the CCL 2019 than LLCs. Historically, foreign investors have sometimes adopted the CJV structure where they have a single contract to perform (eg, as a contractor on a project) and do not intend to remain in Oman following its completion. As a consequence of the liberalisation of Oman’s foreign ownership restrictions, however, some contractors that would previously have adopted the CJV structure may in future view an LLC as a more attractive option.
GPs and LPs
A GP is formed of two or more general partners, each of whom must be a natural person. The partners of a GP are jointly and severally liable for the GP’s liabilities and obligations.
An LP is formed of at least one general partner and at least one limited partner. The general partners of an LP are jointly and severally liable for the LP’s liabilities and obligations, whereas the liability of a limited partner in an LP is limited to the amount of its contribution.
GPs and LPs have constitutive contracts that regulate their management and operation. Subject to its constitutive documents, all partners of a GP and all general partners of an LP are considered to be managers of the GP/LP. The limited partners of an LP may not be involved in its management.
Neither GPs nor LPs are subject to a minimum capitalisation requirement, and there is also no legal reserve requirement for either structure. However, the unlimited liability of general partners means that GPs and LPs are rarely attractive to investors when structuring their investments.
Subject to very limited exceptions, branch structures can only be established where a foreign company has entered into a “qualifying contract” with the Omani government or with a company in which the Omani government has a material interest. The activities of the branch are limited to performance of the qualifying contract, and the branch must be deregistered on the expiry or earlier termination of the qualifying contract. There are no foreign ownership restrictions on branches, and accordingly a branch’s parent company can be a foreign company.
The permitted activities of a representative office are limited to promoting the business of its parent company; they may not engage in any other commercial activity.
Features common to branches and representative offices
There are no foreign ownership restrictions on branches/representative offices, and accordingly the parent company of a branch/representative office can be a foreign company.
Branches/representative offices do not have a share capital or legal reserve requirement, but their parent companies are required to guarantee their obligations. This guarantee is the letter of undertaking referred to under 3.2 Incorporation Process.
Both branches and representative offices are regulated by the constitutional documents of their parent companies. They are managed by a general manager, who will have the powers and authorities granted to him/her under a power of attorney issued by the parent company.
This section focuses on the formation process for LLCs and branches, as these are the usual alternatives for a foreign investor entering Oman for the first time. The process for establishing an SPC is the same as for an LLC.
In some cases, pre-approval must first be sought for the LLC’s proposed name.
In most circumstances, however, the process to incorporate/register an LLC is initiated by submitting an application to the MOCI.
The application will need to be made by the LLC’s founding shareholders, and must be accompanied by all necessary supporting documents.
These supporting documents include the LLC’s new constitutive contract, certain resolutions of the LLC’s founding shareholders, a copy of the most recent audited accounts of the LLC’s founding shareholders, a foreign investment form (where applicable), and passport copies of the LLC’s first authorised signatories/managers. Preparation of these supporting documents can involve considerable lead time, not least because some of them will need to be notarised (or, in the case of foreign shareholders, apostilled) before submission to the MOCI. The constitutive contract must either be in Arabic or be provided with an Arabic translation (dual language constitutive contracts are permissible). The licensing process will involve seeking approval for the specific activities to be undertaken by the LLC.
The steps following incorporation include registration with the Chamber of Commerce and Industry, and application for a municipality licence. To apply for a municipality licence, the LLC will need to submit a copy of its tenancy agreement.
As noted in 3.1 Most Common Forms of Legal Entities, branch structures can generally only be established where a foreign company has entered into a qualifying contract with the Omani government or with a company in which the Omani government has a material interest. It will therefore generally not be possible to commence an application to establish a branch until the relevant Omani government entity has issued a sponsorship letter in favour of the parent company of the branch.
Once this sponsorship letter has been issued, an application can be made by the parent company to the MOCI for registration of the branch. The supporting documents that will need to be provided include the parent company’s constitutional documents, certain resolutions of the parent company, a power of attorney by the parent company in favour of the branch’s general manager, a letter of undertaking by the parent company to indemnify the branch from its liabilities, and passport copies of the general manager and the branch’s authorised signatories. The preparation of these documents can take some time for the same reasons given in relation to LLCs above. The letter of undertaking and the power of attorney must be in Arabic or provided with an Arabic translation. As with an LLC, the activities of the branch will need to be specifically licensed.
The branch is usually registered by the MOCI within one week of the application.
As with LLCs, the steps following incorporation include registration with the Chamber of Commerce and Industry, and application for a municipality licence. To apply for a municipality licence, the LLC must submit a copy of its tenancy agreement.
Any change to the constitutional documents or commercial registration certificate of an entity registered with the MOCI needs to be approved by the MOCI before it takes effect.
As noted in 3.1 Most Common Forms of Legal Entities, all companies established under the CCL 2019 (other than CJVs), all branches and all representative offices need to be registered with the MOCI. Accordingly, MOCI approval and registration are needed for any change to any such entity’s constitutional documents (eg, its constitutive contract or articles of association) or commercial registration certificate, including in relation to its managers/authorised signatories or its share capital/shareholders.
Most entities registered with the MOCI are required to file approved financial statements with the MOCI (although exceptions apply).
JVCs are subject to considerably more stringent reporting requirements than LLCs. Analysis of these requirements falls outside the scope of this article.
LLCs are managed by one or more managers. Subject to the CCL 2019 and the LLC’s constitutive documents, an LLC’s managers have all the authority necessary to manage its affairs. The CCL 2019 and the LLC’s constitutive documents specify the matters that are reserved to be decided by its shareholders.
Branches are regulated by the constitutional documents of their parent companies. They are managed by a general manager, who will have the powers and authorities granted to him/her under a power of attorney issued by the parent company.
The rules governing the liability of management and shareholders will depend on the type of Omani legal entity in question. The comments below are confined to an overview of the main rules applicable to LLCs and branches.
The managers of an LLC are jointly or severally liable to the LLC and third parties for, inter alia, their violation of the CCL 2019 and/or the LLC’s constitutive documents, and their negligence in the management of the LLC.
The CCL 2019 also provides that the managers of an LLC are subject to the same liability as the directors of a JSC, irrespective of any provision to the contrary in the LLC’s constitutive documents.
Conflicts of interest
The CCL 2019 contains several provisions that subject a manager to liability where he/she contravenes the CCL 2019’s provisions requiring a manager to avoid conflicts of interest.
Piercing the corporate veil
The general rule is that the liability of an LLC is limited to the amount of its share capital, and a shareholder’s liability is limited to its shareholding in the LLC’s share capital.
There is, however, the potential in certain limited circumstances for the corporate veil to be pierced in the event of an LLC’s bankruptcy, and managers can also become liable where they act outside their authority. In certain limited circumstances, managers may also become criminally liable under the Penal Code RD 7/2018 (the Penal Code) in the event of an LLC’s bankruptcy.
The liability of the directors/managers and officers of a branch will, generally speaking, be determined based on the laws applicable in the jurisdiction of incorporation of its parent company, and the constitutional documents of its parent company.
The general manager of a branch will also be personally liable if he/she exceeds the authorities granted in their power of attorney (as will any other authorised signatory of the branch who exceeds their authorities).
The parent company of a branch is required to guarantee the obligations and liabilities of the branch pursuant to the letter of undertaking referred to under 3.2 Incorporation Process. The liability of a branch is not therefore ringfenced.
The employer/employee relationship in Oman is regulated by the Labour Law RD 35/2003 (as amended – the Labour Law). Regulations are issued from time to time by the Ministry of Manpower to further regulate particular aspects of the employment relationship.
The Labour Law prescribes an employee’s minimum benefits and entitlements, such as maximum working hours, annual leave entitlements and sick leave entitlements. The employment contract may include benefits and entitlements that exceed these minimum requirements.
Employee unions are recognised in Oman. Collective negotiations may take place between the employer and employees’ trade union, with a view to improving the terms and conditions of work, enhancing productivity and settling disputes. Employees have a right to peaceful strike, provided certain procedures are followed.
The Labour Law requires a contract of employment to be in writing; it must in Arabic and must be translated into a language that both employer and employee can understand, where applicable. A contract of employment must include certain specified information, and may be for a fixed term or an unlimited term.
An employee may not be required to work for more than nine hours a day or 45 hours a week, including at least a half hour break. Employees should have a lunch break of not less than half an hour, if the continuous period of work is six hours or more.
An employee is entitled to no less than 48 consecutive hours of rest per week after five continuous working days.
If an employee is required to work overtime, then the employer must pay the employee overtime equivalent to the employee’s basic salary for the extra work hours, plus at least 25% of such salary (for day-time work) and 50% of such salary (for night-time work); if the employee agrees in writing, the employer may grant the employee leave from work in lieu of the overtime.
An employee who works on an official holiday is entitled to either salary for such day plus an additional overtime pay equal to at least 25% of such pay, or an additional rest day.
An employment contract will terminate:
Although an employer may terminate an employment contract by notice, the Supreme Court has held that termination should be based on a legal justification.
The Labour Law contains no provision that entitles an employer to terminate an employee on the grounds of redundancy if the employer remains solvent.
If termination of an employee’s contract of employment is arbitrary or without legal justification in accordance with the Labour Law, then an employee may file a claim for unfair dismissal. In such circumstances, the Court may order reinstatement of the employee or the payment of compensation of not less than three months’ salary.
There are currently no definitive guidelines for the Courts to take into account in determining unfair dismissal claims or how compensation for unfair dismissal is calculated.
The Labour Law does not include any such rights.
Personal Income Tax
Omani citizens and residents are not subject to personal income tax unless they solely own an establishment (as defined in 5.2 Taxes Applicable to Businesses).
Each permanent employee in the private sector who is an Omani national and is aged between 15 years and 59 years must contribute 7% of their gross salary to the Public Authority for Social Insurance (PASI). This amount is deducted from their salary and paid by the employer. The employer is also required to make a contribution to PASI equal to 11.5% of the gross salary of an Omani national. A total of 18.5% of the gross salary of an Omani national must therefore be remitted to PASI. The gross salary is restricted to OMR3,000 per month for calculating these contributions.
Three categories of person (Omani taxpayers) are liable to income tax in Oman: establishments, Omani companies, and permanent establishments. The rate of tax is generally 15% of taxable income, although a lower rate of 3% applies to certain small taxpayers where prescribed conditions are met.
For these purposes:
Special provisions apply to the taxation of income derived from the sale of petroleum.
Value Added Tax
Although Oman is a signatory to the treaty among the Gulf Cooperation Council countries to introduce VAT, at the time of writing Oman has not yet implemented VAT.
Omani taxpayers are required to withhold tax on any of the following types of payment to foreign entities that do not have a permanent establishment in Oman:
Withholding tax is applied at the rate of 10% of the gross income from the above sources, as modified by Double Tax Treaties entered into by Oman. The withholding on payments of dividends and interest applies only to JSCs and investment funds.
Oman’s Capital Market Authority announced on 16 May 2019 that the Government had agreed to “suspend the income tax related to dividends on shares and interests at 10% imposed after the issuance of the Income Tax Law promulgated by Royal Decree No. 9/2017 for three years as from May 6, 2019 extendable.”
The worldwide income of an entity formed in Oman is taxed in Oman. Tax credits are available to Omani taxpayers (as defined in 5.2 Taxes Applicable to Businesses) who are subject to foreign taxes on income that is also taxed in Oman. The credit is limited to the amount of tax incurred in Oman.
The FCIL’s executive regulations set out the types of investment project that may be exempted from tax, customs and other charges.
The income of companies established in the Salalah free zone, the Sohar free zone, the Al Mazunah free zone and the Duqm SEZ is exempt from tax for a period of 30 years (or 25 years in the case of the Sohar free zone).
Exemptions from tax are given in two ways – exempt activities and exempt income.
Tax exemptions are available only for industrial (manufacturing) activities; the exemption is for a period of five years and cannot be renewed.
Examples of income exempt from tax include the following:
While taxable under law, foreign companies engaged in oil and gas exploration activities normally have their liability to tax discharged by the government under the terms of their oil and gas concession agreements.
Foreign companies working for the government in projects deemed to be of national importance may be able to negotiate a tax protection clause whereby any tax paid by them is reimbursed by the government.
Oman does not have a regime of tax consolidation. Each taxable entity is required to file its own Annual Return of Income.
If the debt-to-equity ratio exceeds 2:1 in the case of related party debt, interest on the excess debt is not deductible for tax purposes. This rule applies to all Omani taxpayers other than banks and insurance companies, permanent establishments of foreign companies, or proprietary (Omani-owned) establishments. Interest paid to related parties is allowed only to the extent the loan terms are at arm's length.
Transactions between related parties must be valued at arm’s length. There is no specific guidance on acceptable methods for determining an arm’s-length price. In practice, the Oman tax authorities apply transfer pricing rules in accordance with OECD guidelines.
Oman has stringent anti-evasion rules.
Where a taxpayer fails to declare the correct income in their income return, Oman’s Secretary-General of Taxation may impose a fine of between 1% and 25% of the difference between the tax value of the taxpayer's actual taxable income and the tax value as per the return submitted.
Subject to any harsher punishment specified in the Penal Code or any other law, the following are punishable by imprisonment for a period of between six months and three years and/or by a fine of between OMR5,000 and OMR50,000:
Anti-competitive practices in Oman are regulated by the Competition Law RD 67/2014 (as amended – the Competition Law).
Any person who intends to take any action that will result in an “economic concentration” must submit a written application to the Protection of Competition and Prevention of Monopoly Centre (the Competition Authority). The Competition Authority was formed in 2018 pursuant to an amendment to the Competition Law.
An “economic concentration” is defined in the Competition Law as “any act that results in the transfer of the ownership of all or part of the assets, shares, stocks, use, rights or obligations of one person to another person or establishing consortiums or amalgamations or combining two or more managements under one joint management, which is likely to cause a person or a group of persons directly or indirectly to be in a dominant position.” Joint ventures are therefore potentially caught by this definition.
Any action that would lead to an economic concentration resulting in the acquisition of more than 50% of the market concerned may not be approved by the Competition Authority, which has discretion to approve or reject applications falling below this 50% threshold.
The scope of the Competition Law is broad and applies to all activities of production, commerce, services and any other economic or commercial activities practised in Oman, and to any economic or commercial activities performed outside Oman, which would have consequential effects inside Oman.
The Competition Law also regulates the abuse of IP rights, where this would have an adverse effect on competition. It does contain limited exemptions, however, including for public utility companies and certain R&D activities.
The Competition Authority will examine any application for clearance of an economic concentration (see 6.1 Merger Control Notification) and issue a decision within 90 days (and will be deemed to have approved the application if it does not respond within such timeframe).
The Competition Law provides that any agreement, arrangement or practice (whether concluded inside or outside Oman) that has the object of preventing, limiting or weakening the competition is prohibited.
Collusion in bids or tenders among persons, or drawing up provisions in the conditions of tenders such as the inclusion of the trade mark of the commodity or specification of its type (ie, cartels), are expressly given as examples of prohibited practices.
The Competition Law contains a non-exhaustive list of practices that would be treated as having the object of preventing, limiting or weakening competition.
The abuse of a dominant position is prohibited under the Competition Law. Any person who enjoys a dominant position is prohibited from carrying out any practice that is likely to prejudice, restrict or prevent competition. The Competition Law also contains a non-exhaustive list of practices that would be caught by this prohibition on abusing a dominant position.
A dominant position is defined by the Competition Law as the ability of a person or a group of persons who directly or indirectly work jointly to control or influence the market concerned, including the acquisition of more than a 35% share of that market. The “market concerned” is also defined in the Competition Law, and has two key elements: the products in question and the geographical area. Identifying and applying the scope of the “market concerned” to the activity/practice in question is key to determining whether a dominant position has arisen; the Competition Law envisages that executive regulations will be issued providing guidance in this regard, but at the time of writing these executive regulations have yet to be issued.
Agreements and arrangements (whether concluded inside or outside Oman) that have the object of securing the monopoly of the import, production, distribution, sale or purchase of any goods or circulation thereof or performing any monopolistic act that would affect the market are also prohibited. For these purposes, a “monopoly” is defined in the Competition Law as the control by a person or a group of persons directly or indirectly of the quantity and prices of a kind of goods or service in a manner that would result in a restriction or cause an adverse effect on the freedom of competition.
Under the Industrial Property Rights Law RD 67/2008 (as amended – the IPR Law), an invention is patentable if it is new, involves an innovative step, and is capable of industrial application.
Broadly speaking, the procedure to register a patent is as follows:
A patent generally expires 20 years after the filing date.
The IPR Law also regulates trade marks. A trade mark is any sign capable of being represented graphically in a manner that distinguishes goods or services of one supplier from another supplier.
Broadly speaking, the procedure to register a trade mark is as follows:
The trade mark will then be published in the Official Gazette within the prescribed period.
The trade mark is open to objection from members of the public for nine months.
If no objections are filed, the trade mark will be published in a local newspaper.
The registration certificate for the trade mark will then be issued by the MOCI, subject to payment of the prescribed registration fee.
The period of protection for a trade mark registered in Oman is ten years from the filing date, and this may be renewed.
Industrial design is defined under the IPR Law as “any combination of lines, colours or any three-dimensional form whether connected with lines or colours or not, provided that such combination or form which gives a distinctive appearance to an industrial or a handicraft product forming a sign of an industrial or a handicraft product which is visually perceptible with an unaided eye.” To be eligible for registration, an industrial design must be new, must not have been disclosed to the public, and must be industrially applicable.
The term of protection for an industrial design registered in Oman is five years, which may be renewed for two consecutive periods of the same duration upon the owner’s request and after payment of the prescribed fees.
Broadly speaking, the procedure to register an industrial design is as follows:
An industrial design expires five years from the filing date, and is renewable for two consecutive periods of the same duration upon the owner’s request.
The Author's Copyrights and Related Rights Law RD 65/2008 (as amended – the Copyright Law) regulates copyright law in Oman. Oman ratified the Berne Convention for Protection of Literary and Artistic Works in July 1999.
Protection under the Copyright Law is provided to original literary, technical and scientific works, irrespective of the value of these works, their nature or the method of expression used or the purpose of their authorship. Computer programs and databases read from a computer or from elsewhere are also protected by copyright. Mere ideas, procedures, methods of work, mathematical concepts, principles, inventions and data are not protected by copyright.
An author or his representative may, before publication of the author's work, deposit an application for protection of his/her work to the MOCI in the prescribed form, together with three copies of the work. The Copyright Law considers such deposit tantamount to ownership. The applicant will be provided with a deposit number and the deposit will then be published in the Official Gazette. Thereafter, an application is submitted to the Ministry for the data deposit certificate for the work.
The financial rights of an author of a literary work including computer programs are protected during the period of his life and for 70 years starting from the commencement of the calendar year following the year of his death.
Registration of title to the authorship of a work acts as proof of ownership to the work (Registered Owner), and the onus to prove that the work does not belong to the Registered Owner is on the infringer. In addition to the civil and penal remedies available, a titleholder is also entitled to remedies at borders and to interim/ex-parte remedies. Civil remedies include orders to prevent export/import of the goods involved in the infringement, orders to cease the infringement, and claims for compensation based on losses incurred and profits made by the infringer. If copyright infringement is established, the Court must pass a judgement for confiscation of any assets resulting from the infringement. Except in exceptional cases, the Court must also order the confiscation of all the commodities involved in the infringement and the material and equipment used to commit the act of infringement, and order their destruction at the expense of the judgment debtor or their disposal outside the trade channels if the destruction is liable to undermine public health or environment.
Under the Penal Code, a person who becomes acquainted with a secret by virtue of his profession, occupation or work and (without the consent of the concerned person) discloses it other than in the circumstances permitted by law, or uses it for his personal benefit or for the benefit of another person, may be imprisoned for between one month and one year.
Oman does not have a dedicated data protection law. However, data protection is regulated by sector-specific laws such as the Telecommunications Regulatory Law RD 30/2002, and by many general laws, including:
The Basic Law recognises an individual’s right to confidentiality in all forms of communication. There are no guidelines or safe harbours under the Basic Law.
The Electronic Transactions Law applies to any dealing or contract concluded or performed wholly or partly through “electronic messages”. A person who is in control of personal data by virtue of their engagement in “electronic transactions” must, prior to processing any such data, inform the data subject what procedures they follow to protect the personal data. These procedures must specify:
It is an offence under the Electronic Transactions Law for a person to intentionally, without authorisation, disclose confidential data that they are able to access using their authorities under the Electronic Transactions Law or any other law.
The Cyber Crimes Law also regulates unauthorised access to electronic sites or IT systems. The law is focused on penalising criminal behaviour.
Under the Electronic Transactions Law, the transmission of personal data outside Oman or to third parties requires consent from the person concerned, and the use of data protection measures.
Oman does not have a central data protection agency.
The last 18 months have seen significant changes to Oman’s legal and regulatory framework. Key legislation that has come into effect during this time includes the Commercial Companies Law RD 18/2019 (the CCL), the Foreign Capital Investment Law RD 50/2019 (the FCIL), the Privatisation Law RD 51/2019 (the Privatisation Law), and the Partnership between the Public and Private Sectors Law RD 52/2019 (the PPP Law). The Bankruptcy Law RD 53/2019 (the Bankruptcy Law) was also gazetted in 2019 and comes into effect in July 2020.
In common with many other countries, Oman faces a significant economic downturn in 2020 due to the COVID-19 pandemic and the depressed price of oil. Several measures have been introduced by Oman’s Ministry of Finance (the MOF) to address the exigencies of Oman’s state budget in this new economic landscape.
Against the backdrop of these legislative and fiscal developments, economic activity in 2020 is expected to centre around restructurings, PPP projects, privatisations and distressed M&A. Litigation will also increase. There are likely to be delays to many government-owned projects, capital markets offerings, and real estate developments.
2020 has also marked the sad passing of HM Sultan Qaboos bin Said. Sultan Qaboos was the Arab world’s longest serving leader, having ruled Oman since 1970, and transformed both Oman and its economy. He was highly respected and held in great affection by Omanis and residents alike. The transition to his successor, HM Sultan Haitam bin Tariq, has been seamless. Sultan Haitam shares Sultan Qaboos’s progressive outlook, and is widely expected to further reform, modernise and diversify Oman’s economy.
Recent Legislative Developments
The CCL came into force in April 2019, with the objective to refine, rather than revolutionise, the law applicable to Omani companies.
One short-term practical impact of the CCL has been to require all Omani companies to update their constitutional documents in line with the CCL. The deadline for making these changes was 30 April 2020. The CCL has made particularly wide-ranging changes to corporate governance rules, and this has been the focus of many amendments to constitutional documents.
The CCL also introduced a new type of legal entity, called the “single proprietor company”. The main difference between a single proprietor company and a limited liability company is that the former must only have one shareholder (as its name suggests), whereas the latter must have at least two. Shareholder resolutions of single proprietor companies are passed in writing. Statutory pre-emption rights on share transfers do not arise. Where a limited liability company is presently under common control, conversion to a single proprietor company is an option.
Under the FCIL, which came into force in January 2020, a foreigner may only carry on investment activity in Oman though an establishment or a company that has been duly licensed to undertake those activities by the Ministry of Commerce and Industry (the MOCI).
The practical impact of the FCIL has been to significantly relax the foreign ownership restrictions that previously applied to Omani companies. Generally speaking, it is now open to a foreigner to establish a 100% foreign-owned limited liability company (or single proprietor company), unless its activities are expressly closed to foreign investment. Earlier this year, the MOCI published a list of activities that remain closed to foreign investment; this list is expected to evolve over time.
Before the FCIL came into effect, many foreign investors accessed the Omani market either by appointing an Omani commercial agent, or by entering into a contractual joint venture with a local partner, or by establishing a branch office. In many cases, it is anticipated that the limited liability company (or single proprietor company) will now offer a more attractive and permanent structuring option for foreign investors.
The general rule prior to the FCIL was that a minimum of 30% local ownership was required to establish a limited liability company. Now that this restriction has been relaxed, many foreign investors will seek to extricate themselves from their joint ventures with local partners. Indeed, some of these joint ventures will have been expressly drafted so as to give the foreign investor a call option over their local partner’s shares in the event of a relaxation of foreign ownership restrictions.
In December 2020, the China National Electricity Grid Corporation completed the acquisition of 49% of the Nama Group (the Omani Electricity Holding Company) for around USD1 billion. This transaction formed part of a wider government programme to privatise several public utility companies and infrastructure projects. The Nama Group privatisation was the last of its kind to complete before the new Privatisation Law came into force in January 2020.
The Privatisation Law is relatively short, and applies to any public project wholly or partly owned by the government which the Council of Ministers decides to transfer to a private person. The transfer can relate to the ownership and/or the management of a public project.
Under the Privatisation Law, a successful bidder for privatisation of a public project must establish an Omani joint stock company, into which all of the project’s assets and liabilities are to be transferred. Foreign ownership of the joint stock company is unlimited, and the bidder does not need to hold a minimum shareholding percentage in the joint stock company.
A pre-privatisation restructuring may be undertaken. This could, for example, involve hiving down relevant assets into a new joint stock company.
The protection of the Omani workforce is a strategic priority for the Omani government. The Privatisation Law has therefore been designed to protect employees who might otherwise have been vulnerable to post-privatisation “rationalisation” measures. In particular, the Privatisation Law mandates that employees transferred to the joint stock company may not be dismissed during an initial five-year period.
MOF Circular 2/2020 explicitly encourages the use of PPP structures. The objective of Circular 2/2020 is “to consolidate the efforts exerted by the government in the framework of partnership between the public and private sectors and to facilitate and expand the competitive environment for the private sector for participation in the development of the national economy.” In very broad terms, Circular 2/2020 requires government companies and subsidiaries of government companies to give priority to the private sector (eg, through a PPP structure) before conducting any new business activities and/or expanding any existing business activities. Where this is not possible, the approval of the MOF and/or the Financial Affairs and Energy Resources Council must be obtained as a condition to government participation.
It is therefore to be expected that many projects initially slated for government ownership will be recast as PPP projects. As with privatisations, the PPP Law is most likely to be applied to infrastructure projects and projects involving public utilities. The government has tendered a number of projects since the PPP Law came into force in January 2020, and some of these tenders have already resulted in an award and the commencement of negotiations.
The PPP Law describes the types of project that can be established through a public-private partnership, and regulates the terms of those partnerships. A partner bidding for a PPP project must be from the private sector; for these purposes, “private sector” excludes any entity in which the Government holds 40% or more of the share capital.
A successful bidder under the PPP Law must establish a project company, whose sole objective is to execute the PPP project. This project company may be 100% foreign owned. There is scope under the PPP Law for a public partner to acquire/hold an equity stake in the project company, although this would require MOF approval. Any equity participation by the public partner would clearly be a major structuring decision.
The document regulating the public/private relationship is described in the PPP Law as a “partnership contract”. This is a contract entered into by the project company “under which it is charged, within a specific period, with the finance, establishment and preparation of infrastructure and public utility projects, management operation, utilisation and maintenance thereof, and performance of their services and participation in the performance of their functions for which the project company will obtain a consideration.”
On a strict reading of the PPP Law, therefore, the project company will always be responsible for financing, establishing (ie, building), operating and maintaining the PPP project. As the PPP Law does not specify who will be responsible for designing the PPP project, this would be open to commercial negotiation.
The PPP Law does not mandate who will own the PPP project, so this key issue will also need to be addressed in the partnership contract. In most cases, it is anticipated that the project company would own the PPP project, which generally involves the project company assuming revenue/market risk.
For those structures in which the project company owns the PPP project (which will resemble a Build-Operate-Own-Transfer – or BOOT – model), the public partner will need to grant a usufruct over any land required for the project. If the public partner is willing to share in project company risks/rewards, the consideration for this grant could be structured as an issue of shares in the project company – although as noted above this would require MOF approval.
Those structures in which the project company does not own the PPP project are expected to follow a Build-Operate-Transfer – or BOT – model. This structure is commonly used for infrastructure projects (eg, projects for schools/hospitals). Ownership of the land would remain with the public partner, and so instead of a usufruct the public partner would need to grant a concession to the project company. In this structure, the public partner would typically receive the project revenues and undertake to make an availability payment equal to the project company’s investment/financing costs, operation and maintenance (O&M) costs and return on investment.
Irrespective of ownership structure, under the PPP Law the assets of the PPP project will automatically vest in the government by operation of law and without payment of consideration on the expiry or earlier termination of the partnership contract (noting that the term of a partnership contract may not exceed 50 years). Although the partnership contract is not usually expected to vary this position, the private partner should give some thought to whether any assets should be excluded from these automatic vesting provisions, and/or whether any value should be paid for them on reversion to the State.
The Bankruptcy Law will regulate restructurings, preventative compositions and bankruptcies when it comes into force in July 2020.
The previous rules and procedures regulating preventative compositions and bankruptcies have been updated and improved by the Bankruptcy Law, but preventative compositions and bankruptcies are not fundamentally new concepts under Omani law.
Restructurings are new. To initiate a restructuring, a trader will need to file a restructuring petition with the MOCI, which will then hold meetings with all interested parties to mediate and seek to settle the issues identified in the restructuring petition. A restructuring committee of experts will be appointed to review the petition. The role of the restructuring committee is to prepare a report containing the reasons for the trader’s economic disorder, a restructuring feasibility study and a restructuring plan.
This report must be prepared within three months of the date of the restructuring committee’s appointment, and the restructuring plan must be capable of implementation within five years.
Where a settlement is agreed, the trader and the relevant creditors will execute a settlement agreement (and restructuring plan, where applicable), which will then be submitted to the court for approval, and the court-approved plan will become binding on all signatories to the settlement agreement.
If a settlement is not agreed, the restructuring petition will be considered rejected (subject to the trader’s right of appeal).
In view of the current economic climate, restructuring applications are expected to be commonplace in 2020. The restructuring procedure gathers together all interested parties in one room, and therefore offers a different approach to holding a series of unmediated one-to-one negotiations with individual creditors.
Other Developments and Trends
Recent MOF budgetary measures
The MOF has recently issued several circulars designed to address Oman’s state budget deficit. These circulars apply to government companies and, in some cases, to companies in which the government holds a material interest. This is a fast-moving area of regulation, and persons potentially affected by the measures will need to regularly assess the position and monitor developments.
The current economic climate has negatively impacted the balance sheet of many companies. A joint stock company with balance sheet losses exceeding 25% of its share capital must (under the CCL) implement measures to restore that company to profitability. Where the losses exceed 50% of the company’s share capital, these measures must be approved by the company’s shareholders. Several joint stock companies are having to seek such approval.
Balance sheet losses can be absorbed by effecting a share capital reduction, although this is unlikely in itself to restore a company to profitability. In addition, if the share capital reduction results in the company’s share capital falling below the minimum level required by law, then the company will need to be recapitalised within the following 12 months (and a failure to do so will result in dissolution).
Many companies will face liquidity and solvency challenges over the next 12 months, and will accordingly be seeking to renegotiate both their debt facilities and their arrangements with commercial counterparties. As noted above, the Bankruptcy Law offers a new procedure to assist with these negotiations where required.
Other companies will be seeking new equity finance (from their existing shareholders or third parties) to meet these challenges. It is reasonable to surmise that fire sales of shares/assets will also become increasing prevalent during the economic downturn.
Economic conditions in 2020 will undoubtedly force some companies to apply to the Omani courts for preventative composition or dissolution. Management and auditors of companies experiencing financial difficulties will need to be mindful of their duties and liabilities under the Bankruptcy Law.
Omani law prohibits the recruitment of non-Omani employees in certain sectors and roles; sales representatives and sales promoters are the latest roles to become subject to this prohibition. For those sectors and roles that are, in principle, open to foreign workers, Omanisation requirements apply. In December 2019, Oman’s Ministry of Manpower announced the launch of an initiative to increase the Omanisation rates across the country’s expanding tourism, industrial and logistics sectors for 2020.
The government is committed to the increasing Omanisation of the workforce, and public opinion strongly supports any measures that will help to achieve this. The economic downturn and the state budget deficit are likely to accelerate further reforms.
To illustrate this trend, MOF Circular 4/2020 requires all government companies and private sector establishments to co-ordinate with the National Centre for Employment before publishing any notices/advertisements of employment, and reminds government companies of their responsibilities under Circular 20/2016 and Circular 1/2019 (regarding employment terms and the transfer of employees). Circulars 8/2020 and 11/2020 also require government companies to re-assess expenditure on employee salaries/benefits to comply with the MOF’s measures to address the state budget deficit.
Many foreign investors operate in Oman through a local commercial agent. These commercial agents must be duly licensed by the MOCI, and have historically sought to make their arrangements with foreign investors exclusive. In line with the spirit of the Competition Law RD 67/2014 (as amended), which discourages (and arguably precludes) exclusive arrangements, it is understood that the MOCI has adopted a new practice under which it will not register new exclusive arrangements.
There has been an increase in disputes in relation to commercial agency arrangements, and it is anticipated that some of the common issues giving rise to these disputes will need to be interpreted by the Omani courts over the coming 12 months.
The Capital Market Authority (CMA) continues to explore ways in which its investment funds regime can be enhanced. New rules specifically regulating real estate investment funds were introduced in 2018. The CMA announced in January 2020 that a new initiative in relation to exchange-traded funds had been launched, and it is understood that draft regulations for this type of fund are currently being prepared by the CMA.
To encourage foreign investment in Oman’s investment funds, it was announced last year that income tax related to dividends on shares and interests of investment funds had been suspended for three years, commencing 5 May 2019. The government has the discretion to extend this suspension.
The CMA has also recently circulated a draft code of corporate governance principles for state-owned enterprises. This code remains at the consultation stage.
Earlier this year, the Oman Power and Water Procurement Company (OPWP) notified Independent Water Producers and Independent Power Producers of their intention to suspend investment fees from energy and water capacity fees. On 21 May 2020, the MOF issued a statement confirming its commitment to provide “the necessary financing for the electricity sector.”
Social distancing measures implemented by Oman to combat the COVID-19 pandemic have resulted in the suspension of court hearings and, consequentially, a backlog of cases. It is reasonable to assume that economic conditions in 2020 will result in a spike in contractual disputes and defaults. The Omani courts are expected to be busy for the remainder of 2020.