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ASAR highlights important issues relating to arbitration and PPP projects in Kuwait

ASAR – Al Ruwayeh & Partners (ASAR), Kuwait’s leading and most prominent corporate law firm, and one of the region’s top tier firms, recently held a panel discussion which focused on the choice of arbitration venue and recent developments in BOT law and practice. The event was arranged in collaboration with the Kuwait Chapter of the Association of Corporate Counsel Middle East (ACCME), at the JW Marriott Hotel – Kuwait City.

Arbitration and PPP Projects

During the event, Mr. Ahmed Barakat (Managing Partner at ASAR) and Mr. Ibrahim Sattout (Partner at ASAR), discussed a number of topics including the choice of arbitration as a means to resolve disputes and the recent developments in public private partnership (PPP) projects pursuant to the promulgation of the PPP law no. 116 of 2014 and its executive regulations.

Pros and cons of arbitration

During the seminar, Mr. Barakat provided guidance on the pros and cons of arbitration, the considerations and factors to be taken into account in drafting arbitration clauses, and most particularly in choosing the venue of arbitration. Mr. Barakat also discussed the possible resort to arbitration in respect of governmental offshore projects and PPP projects. Furthermore, Mr. Barakat shared his experience with the audience with regards to local and international arbitration, and focused on the various regional and international arbitration institutions to which disputes are usually referred to, including the ICC, the LCIA, the DIAC and the DIFC-LCIA.

“ASAR continues to assist the government and investors with their involvement in PPP projects through providing sound legal advice on the country’s business regulations. Over the years, the firm was able to help an array of foreign entities in line with the established framework for PPP projects,” said Mr. Barakat

Highlighting the most important amendments and innovations in the recently issued BOT law, Mr. Sattout said: “The new Public Private Partnership law, which replaced the BOT law of 2004, brought more clarity and introduced new concepts to the legal landscape governing BOT/PPP projects in Kuwait. For instance, the PPP Law now explicitly provides that PPP projects are not subject to the [Public Tender Law]. In addition, relevant to the financing of the project, the law introduces a distinction between the state assets, the project assets and the assets owned by the investor, and permits investors to provide security over certain specific assets to the lenders. In line with this, the law also introduced the “step in rights” concept which is well established in global project finance projects and allows lenders to replace the investor in the event of default. Those concepts have been welcomed by the practitioners in the market, though their implementation in practice is yet to be seen.”

Mr. Robert Drolet, Board Member of the ACCME in Kuwait said: “We are grateful to ASAR for sharing their expertise with the in-house counsel community in Kuwait so generously. Corporate counsels have a growing presence in all types of organizations and operate at the most senior levels where their sound practical advice facilitates operations and transactions and helps manage risk. With these responsibilities comes the need for keeping up to date in a variety of areas of the law, network with other in house counsel and build up their company’s legal capability by leveraging the resources that we offer. The ACCME offers a unique platform for doing all of this, working closely with sponsor law firms and with the global libraries and expert systems developed by the 35,000 member strong ACCME Association of Corporate Counsel.”

The ACC is a professional body exclusively for in-house counsel in the Middle East. It includes more than 300 active members, a network of 500+ in-house counsels and over 1000 practicing lawyers in the Middle East, and has recently extended its operations to Kuwait. This seminar was organized as part of a series of free events sponsored by leading law firms in the Middle East, and is designed to promote the development of in-house lawyers across the GCC along with supporting the business growth and development in Kuwait and elsewhere in the GCC region.

With dedicated offices in Kuwait and Bahrain coupled with its associated offices and relationships, ASAR provides clients across an extensive range of industry sectors with comprehensive legal advice and support for their business activities in Kuwait, across the GCC and beyond.

The firm has been consistently rated as the leading corporate and commercial law firm in Kuwait by reputable legal guides such as the Chambers Global Guide, International Financial Law Review and Legal 500. In their annual law firm Global Guide for 2015, Chambers & Partners have for six consecutive years ending with 2014, ranked ASAR as Kuwait’s tier 1 law firm for business law. In 2014 ASAR was awarded ‘National Law firm of the Year’ by the International Financial Law Review (IFLR), the market-leading guide for financial law firms worldwide.