UAE Foreign Direct Investment Law

The long awaited Federal Decree No. (19) of 2018 on Foreign Direct Investment (the “FDI Law”) is now in force. The aim of the FDI Law is to create a balanced and sustainable environment to increase the flow of direct foreign investment to the UAE by allowing up to 100% foreign ownership over companies operating in certain sectors. This article highlights the key principles of the FDI Law and discusses the implications and impact that the FDI Law will have on foreign investors in the UAE.

Prior to the enactment of the FDI Law, foreign ownership of UAE companies was restricted to 49% by Article 10 of Federal Law No. 2 of 2015 on Commercial Companies. However, the enactment of Federal Decree Law No. 18 of 2017 relaxed this restriction by granting the UAE Cabinet the discretion to increase foreign ownership in various economic sectors and for companies engaged in certain activities. The FDI Law now introduces the framework under which the UAE Cabinet will exercise the powers granted to it under to Federal Decree Law No. 18 of 2017.

The FDI Law establishes two lists: (i) a negative list which sets out certain sectors which are "unavailable" for foreign investment; and (ii) a positive list stipulating the economic sectors and activities available for foreign investors.

Negative list

The sectors of the UAE economy that are currently on the negative list include:

• Exploring, prospecting and producing oil;
• Investigation, security and military sectors and the manufacturing of weapons;
• Banking and funding activities such as payment systems and cash dealings;
• Insurance;
• Labour services such as recruitment of personnel;
• Water and electricity services;
• Post, telecommunications and audio-visual services;
• Air and land transport services; and
• Medical retail trade including private pharmacies.

The UAE Cabinet does, however, have discretion to add or remove sectors on the negative list.

Positive list

Unlike the negative list, the FDI Law does not currently list or provide details on any specific sectors of the UAE economy on the positive list, although the economy minister has stated that the UAE government aims to publish such a list during the first quarter of 2019. The FDI Law grants the UAE Cabinet the authority to add sectors on the positive list and to:

• mandate the level of foreign ownership permitted in such sector (which does not necessarily need to be 100% but can be a percentage greater that 49%);
• where less than 100% ownership is permitted in a sector, vary the level of foreign ownership permitted depending on the Emirate in which the business operates;
• place restrictions or requirements on the form of legal entity which may carry on the activity;
• set minimum capital requirements for legal entities operating in such sectors; and
• impose Emiratisation requirements on businesses operating in such sectors (ie mandate that a certain percentage of UAE nationals comprise the total number of employees of the business).

The FDI Law sets out the application procedure which foreign investors will need to follow to request increased foreign ownership in a sector on the positive list. The FDI Law also sets out appeal procedure in respect of a rejected application.

Foreign Direct Investment Projects

A foreign investor may also apply for permission to own more than 49% of the shares in a Foreign Direct Investment Project provided that the project’s economic sector is not on the negative list. If permission is granted, a foreign investor will be allowed to establish a Foreign Investment Company (as defined in the FDI Law) to hold its interest in the project.

Administration

Two government bodies have been established under the FDI Law to ensure the proper administration and implementation of the FDI Law: the Foreign Direct Investment Unit (the "Investment Unit") and Foreign Direct Investment Committee (the "Committee").

The role of the Investment Unit will primarily be to suggest and implement (after receiving approval from the UAE Cabinet) foreign direct investment policies in the UAE and to monitor and evaluate the performance of such permitted foreign direct investment.

The Committee shall be primarily responsible for studying and submitting recommendations to the UAE Cabinet on the composition of the positive and negative lists. The Committee will also be responsible for providing recommendations to the UAE Cabinet on the approval of license applications of Foreign Direct Investment Projects not yet on the positive list.

Other provisions

The FDI contains provisions on settling disputes, administrative sanctions, penalties, fees (which are to be set out by the UAE Cabinet) and rejecting or limiting the ownership percentages of a foreign shareholder.

Although the FDI Law has been successfully implemented, it remains subject to interpretation and over the coming weeks and months further clarifications are to be expected including in relation to sectors on the positive list.

Taylor Wessing has a dedicated team of inward bound investment specialists with extensive experience  of advising foreign investors on corporate structuring and related issues in the UAE. We are currently advising some of our multi-national clients on establishing business pursuant to the FDI Law. If you have any questions, please contact Adnan Chida and/or Ronnie Rifai.