Author: zubipartners_admin

A Comprehensive Overview of General Assembly Meetings in Bahrain Shareholding Companies

In corporate governance, the processes governing Ordinary General Meetings (OGM) and Extraordinary General Meetings (EGM) serve as frameworks for decision-making within organizations. As per Legislative Decree No. 21 of 2001, promulgating the Commercial Companies Law (“CCL”), as amended from time to time, Joint-stock Companies, known as Bahraini Shareholding Company (“BSC”), and Joint-stock Companies (Closed), known as Bahraini Shareholding Company (Closed) (“BSC(c)”), are required to hold their general assembly meetings. This article covers the requirements pertaining to invitations, legal quorums, voting procedures, and authorities applicable to both public and closed joint stock companies in Bahrain.

Before we dive into the intricacies and differences of the two types of meetings, a brief introduction, BSC shareholders are liable for the company’s debts only to the extent of the value of their shares. A BSC allows negotiable shares, enabling multiple legal or natural persons to subscribe. There are two categories of BSCs: public and closed. Public BSCs are listed on the Bahrain Bourse, the capital market of Bahrain, and their shares are openly traded. Closed BSCs may be listed on the Bahrain Bourse but are not open for public subscription.

In conclusion, the General Assembly Meetings (OGMs and EGMs) in Bahrain Shareholding Companies play a crucial role in corporate governance, ensuring transparency and effective decision-making within organizations. By understanding and adhering to these frameworks, Bahraini companies can enhance investor confidence and propel sustainable growth in the corporate governance landscape.

Insurance Coverage for Rain Damage and Business Interruption

 Last week in Dubai, a storm hit the Gulf Estates, resulting in unprecedented damage to vehicles and property. As a result, all eyes are now on insurance companies as policyholders seek compensation for their losses. It is anticipated that many insurance claims currently being filed are for damaged vehicles, property, and business interruption.

 While it is widely known that most insurance policies provide coverage for rain-related damages, the ability to successfully file a claim hinges on the precise wording and clauses within each policy, including its coverage and exclusions.

For example, a comprehensive vehicle policy explicitly offering protection against rain and natural disasters ensures coverage for rain-related damages. Similarly, property All Risk insurance policies, covering all risks including those arising from natural calamities, typically extend coverage for rain-related damages.

 It is important to note that while damages from heavy rain are generally covered, specific weather-related events such as storms, cloud seeding, hailstorms, and flooding may be excluded unless expressly stated otherwise in the policy. Therefore, insurance professionals and policyholders alike must meticulously scrutinize the terms, conditions, and exclusions of their insurance policies to ensure comprehensive protection against such events.

Regarding business interruption coverage, it is well known that if a business is operational within twenty-four to forty-eight hours after an incident, there may be no eligibility for a business interruption claim under the policy. However, as previously mentioned, the availability of any insurance coverage depends on the precise wording of the insurance policy and its coverage and exclusions. Therefore, it is very important to review the wording of the policy in place carefully before seeking insurance coverage.

As for standard homeowners’ insurance policies, such policies provide coverage for damage resulting from rain-induced flooding. The extent of coverage depends on the specifics of the claim, as these policies typically address perils associated with the property itself, such as accidental leakage within the property. However, some policies may offer the option to include flooding as a covered risk, potentially providing compensation for such damages.

An important factor to consider is that it is essential for policyholders to thoroughly examine and revisit the unique terms and conditions of their insurance policies. Regular review, preferably on an annual basis and in light of any new unprecedented events, is crucial. This practice helps identify any gaps in the required coverage and ensures that the insurance policy adequately protects against any risk.

Contact Us

Should you wish to obtain further clarity on the above matters, please do not hesitate to contact our firm and speak to one of our corporate law experts.

• Raghad Hammad (Partner & Executive Director) rhammad@zubipartners.com  
• contact@zubipartners.com  

Navigating Franchising Laws in Bahrain: Legal Considerations for Establishing
and Operating Franchise Businesses

Franchising has emerged as a dynamic avenue for business expansion in Bahrain, offering entrepreneurs an opportunity to leverage established brands and proven business models. However, navigating the legal landscape governing franchise operations in Bahrain requires a nuanced understanding of local regulations and compliance requirements. From franchise agreements to intellectual property protection, various legal considerations shape the establishment and operation of franchise businesses in the Kingdom.

In this article, an essential background brief of information for prospective franchisors and franchisees seeking to enter the Bahraini market is provided. By examining key laws and regulations governing franchising, the aim is to offer clarity and guidance for stakeholders looking to capitalize on the burgeoning franchising sector in Bahrain.

Legislative Decree No. 21 of 2001 promulgating the Commercial Companies Law, as amended, governs the establishment and operation of commercial entities in Bahrain, including franchising businesses. It outlines various corporate structures, registration requirements, and corporate governance principles that may apply to franchisors and franchisees.

Bahrain has specific laws and regulations governing the registration, use, and protection of trademarks. These laws aim to safeguard the intellectual property rights of franchisors, including their brand names, logos, and other proprietary assets. Protecting intellectual property rights is crucial for franchisors to safeguard their brand identity and proprietary business methods. Franchisees must adhere to strict guidelines regarding the use of trademarks, logos, and other intellectual property assets. Bahrain provides legal frameworks for the registration and enforcement of intellectual property rights, offering franchisors avenues for recourse in case of infringement.

In addition, there are consumer protection laws in place to safeguard the rights of consumers and regulate commercial transactions. These laws include provisions related to advertising standards, product quality, pricing transparency, and dispute resolution mechanisms.

The Ministry of Industry and Commerce is the primary regulatory authority responsible for overseeing commercial activities in Bahrain. It may issue regulations, guidelines, or licensing requirements that impact franchising businesses operating within the country. The Bahrain Chamber of Commerce and Industry is a prominent business association in Bahrain that provides support and advocacy for businesses, including those involved in franchising. It may offer resources, networking opportunities, and guidance on legal and regulatory matters affecting franchisors and franchisees.

One of the fundamental legal documents in franchising is the franchise agreement. This contract outlines the rights and obligations of both the franchisor and the franchisee, including the use of trademarks, operating standards, fees, and territorial rights. In Bahrain, franchise agreements must comply with local laws and regulations, ensuring fairness and protection for all parties involved.

Despite careful planning and adherence to legal requirements, disputes may arise between franchisors and franchisees. Having robust dispute resolution mechanisms in place, such as mediation or arbitration clauses in franchise agreements, can help mitigate conflicts and protect the interests of both parties. Bahrain offers reliable legal pathways for resolving franchise-related disputes through its judicial system. In the event of disputes between franchisors and franchisees, Bahrain’s judicial system provides channels for resolving legal conflicts. This may include civil courts, which adjudicate commercial disputes according to Bahraini law.

Alternatively, franchise agreements may include provisions for alternative dispute resolution mechanisms such as arbitration or mediation. Bahrain has arbitration and mediation centers that offer neutral and private forums for resolving disputes outside of traditional court proceedings.

 As the franchising sector continues to thrive in Bahrain, entrepreneurs must prioritize a comprehensive understanding of the legal landscape governing franchise operations. By proactively addressing legal considerations such as franchise agreements, intellectual property protection, regulatory compliance, and dispute resolution mechanisms, stakeholders can mitigate risks and maximize opportunities for success in the Bahraini market. With careful navigation of franchising laws and regulations, entrepreneurs can unlock the full potential of franchising as a strategic growth strategy in Bahrain’s dynamic business environment.

Environment Law: Obligations and Prohibitions

Law No. 7 of 2022 promulgating the Environment Law (the “Environment Law”) was issued with the aim of protecting the environment from all activities and practices that pollute or degrade the environment. Preventing pollution and combating environmental deterioration in all its forms (land, air, marine and sound) are principles embodied in the provisions of the Environment Law, through which Bahrain seeks to protect biodiversity and fulfil the United Nations Sustainable Development Goals.

Since environmental protection is a collective effort, the Environment Law is applicable to all public and private entities in addition to individuals in Bahrain, with the exception of the Bahrain Defense Force, the Ministry of Interior and the National Guard.

This article will briefly outline the obligations and prohibitions stipulated under the Environment Law that may significantly impact entities and individuals.

Environmental Impact Assessment

Generally, any activity that pollutes the environment, contributes to its deterioration or causes damage to natural resources or living organisms is prohibited in Bahrain. This is monitored by the Supreme Council for Environment (“SCE”), the competent authority empowered to protect the environment and achieve sustainable development in the Kingdom.

The SCE sets the standards, specifications, foundations and controls necessary to evaluate the environmental impact of projects to ensure that all projects do not negatively impact the environment in any form. An environmental impact assessment is conducted by the SCE prior to the implementation, modification, or expansion of any project by an entity.

The said entity must submit an Environmental Impact Assessment Data Form to the SCE prior to obtaining any licenses or initiating the project, thereafter the SCE will determine whether a detailed report is required to grant the license.

Monitoring Waste

Subsequent to the environmental impact assessment conducted by the SCE, all project owners must comply with certain obligations that enable the SCE to accurately monitor the performance of project owners and their waste management. In accordance with the controls and procedures set out by the SCE, project owners must:

• conduct periodic analysis of the project’s waste;
• monitor the discharge and pollutants resulting from the project; and
• record data and submit reports to the SCE.

Reporting Incidents

The Environment Law obliges all concerned entities and individuals to immediately report any kind of pollution incident. This reporting obligation extends to entities and individuals not responsible for the incident.

In the event that an incident of pollution to the marine environment occurs, such as an oil leak, the SCE must be immediately notified with an indication of the circumstance of the accident, the type of leaked material and the measures taken to stop or limit the leak.

General Prohibitions

The prohibitions stipulated under the Environment Law concern all possible forms of pollution, some of which are listed below:

1. All marine means are prohibited from dumping garbage or discharging sewage water, oil, hazardous waste or polluting materials into the marine environment of Bahrain. International treaties ratified by Bahrain and national implementing regulations that regulate the conservation of marine life must be taken into account by the concerned entities and individuals.
2. All entities such as commercial or industrial projects are prohibited from conducting any activity that may cause pollution or deterioration of the costal or marine environment.
3. All entities are prohibited from emitting or leaking air pollutants beyond the permissible limits stipulated under the laws and regulations. Entities must be equipped with the necessary networks and units to monitor and control the air pollutants expelled, and such networks must be electronically linked and monitored by the SCE.
4. All entities and individuals alike must take the necessary precautions when carrying out excavation, construction or demolition works. The import of vehicles, machinery or engines that emit pollutants exceeding the permissible limits is also prohibited.
5. Any activity that directly or indirectly harms soil, affects its natural properties or harms the quality or quantity of vegetation leading to desertification, distortion of the natural environment or change to agricultural areas is prohibited.
6. The import, burial, storage or disposal of hazardous materials and waste are prohibited without obtaining the necessary licenses from the SCE.
7. Exceeding the permissible sound intensity is prohibited, especially with regard to projects that require the operation of machinery, equipment and vehicles that emit loud noises.

The SCE will take the necessary measures to force any violator to rectify the acts committed in violation of the Environment Law, whereby all the repair costs will be borne by the violator.

Furthermore, the violator may face imprisonment or a fine that may range from five hundred Bahraini Dinars (BHD 500) to one million Bahraini Dinars (BHD 1,000,000), and in the case of recurrence of a crime, the penalties may be doubled to their maximum limit.

Appointment, Retirement, Resignation, and Removal of a Director in Bahraini Companies

This article delves into the processes surrounding appointing, retiring, resigning, and removing directors within companies operating under Bahraini law. As financial institutions are governed by the Central Bank of Bahrain (“CBB”) and the provisions of the rulebook, this article will not cover them.

The pertinent legislation governing directorship in Bahrain includes Legislative Decree No. 21 of 2001, which enacts the Commercial Companies Law (“CCL”), as amended, and Ministerial Decree No. 19 of 2022 concerning the amended Corporate Governance Code (the “Code“). The Code applies to all joint-stock companies registered under the CCL, while limited liability companies are exempt from its provisions.

Definition of a Director

A director is an individual elected to oversee a company’s daily operations along with other directors. They have authority over the management, administration, and supervision of the company’s affairs.

Director Qualifications and Requirements

In accordance with Article 173 of the CCL, a director must fulfill the following conditions:

•  Full legal capacity to act.
• Have not been convicted of a crime involving negligent or fraudulent bankruptcy, a crime affecting honor or a breach of trust, or a crime on account of his violation of the provisions of the CCL unless he has been reinstated.
• Have not been prohibited from assuming the directorship of a joint stock company pursuant to the CCL or any other law in force in Bahrain.
• With respect to the chairman and the deputy chairman, a director must not simultaneously assume such positions and the position of the most senior executive in the company.
• Any other conditions specified in a regulation applicable to the executive, non-executive, and independent directors of companies that are not licensees of the CBB as specified in a regulation issued by the competent Minister of Industry and Commerce.
• Any other conditions specified in the company’s Memorandum of Association (“MoA”).

Types of companies

This article will explore two types of companies in Bahrain: A Limited Liability Company (“WLL”) and a Bahrain Shareholding Company (“BSC”), also known as a joint stock company. A brief introduction: A WLL can be established with one or more legal or natural persons (companies or individuals). It limits liability to the company’s assets, with each partner liable only to the extent of their share in the capital unless specific circumstances apply.

Like WLLs, BSC shareholders are liable for the company’s debts only to the extent of the value of their shares. A BSC allows negotiable shares, enabling multiple legal or natural persons to subscribe. There are two categories of BSCs: public and closed. Public BSCs are listed on the Bahrain Bourse, the capital market of Bahrain, and their shares are openly traded. Closed BSCs (“B.S.C (c))” may be listed on Bahrain Bourse; however, they are not open for public subscription.

In conclusion, directors play a crucial role in managing the company’s affairs, and it is essential to ensure that they meet the requirements outlined by the law.

Compliance and Accountability of Auditors

Auditors play a vital role in ensuring the transparency and integrity of companies. Shareholders entrust auditors to safeguard their interests and accurately report the company’s financial statements and internal controls.

This article will briefly outline the obligations and rights of auditors, shedding light on the general provisions of the Commercial Companies Law No. 21 of 2001, as amended (the “CCL”) and the common ground between Bahrain Shareholding Companies (“BSC”) and Partnerships Limited by Shares (“PLS”).

Auditors’ Obligations

The general objective of auditors is to perform an independent assessment of the company’s performance, through which the shareholders will significantly depend on their findings for decisions. Therefore, in addition to the External Auditor’s Law No. 15 of 2021, the CCL lists general reporting requirements and obligations.

Auditors of a BSC and PLS must attend general assembly meetings of the company and discuss the audit report with the shareholders. The audit report prepared must adhere to international auditing standards, and the CCL lists the main components as follows:

1. Whether the auditors obtained the information necessary to perform the audit.
2. Whether there are discrepancies between the balance sheet and the profit and loss account.
3. Whether the balance sheet and the profit and loss account were prepared in accordance with international accounting standards, or the standards approved by the authorities.
4. Whether the balance sheet and profit and loss account reflect the actual financial position of the company.
5. Whether the company maintained regular accounts.
6. Whether the company’s inventory was conducted in accordance with the recognized standards.
7. Whether the Board of Directors’ report is in conformity with the information contained in the company’s books.
8. Whether there are violations of the company’s Articles of Association or the provisions of law.

Furthermore, the auditors must provide the Ministry of Industry and Commerce (“MOIC”) with copies of the report and advise whether there are any violations or breaches of any nature.

Auditors’ Rights

The rights stipulated under the CCL empower auditors to fulfill their obligations with little to no hinderances from the company. Audit reports must be transparent regarding company violations; therefore, it is essential to authorize auditors and empower them to take action against the Board of Directors and the company’s employees if there is a lack of cooperation.

Considering the extensive obligations mentioned above, the CCL empowers auditors to access all the company’s books, registers and documents in order to fulfill their auditing duties. The auditors may ask for particular information or documentation necessary for the preparation of the audit report, whereby the CCL grants auditors the right to verify the company’s assets and liabilities.

If the company’s employees do not enable the auditors to exercise their rights under the law, the auditors may submit to the Board of Directors a report, through which the Board of Directors must facilitate the auditors’ tasks. If the Board of Directors is not cooperative, the auditors may invite the ordinary general assembly to decide on the matter.

Conflict of Interest

Auditors are appointed due to their independence and impartiality, which are crucial aspects to an accurate audit report. The CCL emphasizes the prohibition of appointing an auditor who is in conflict with the company and specifies the instances where a conflict of interest is present.

In accordance with the CCL, the appointed auditors must not be conflicted with the by holding the following positions:

1. Chairperson of the Board of Directors.
2. Member of the Board of Directors.
3. Managing Director.
4. Any administrative position.
5. Any supervisory position of the company’s accounts.

Moreover, the auditors may not be appointed if they have a relative (up to the second degree) that supervises the company’s accounts. During the auditing period, the auditors are prohibited from purchasing or selling shares of the company. This is to ensure that there is no insider trading considering that the auditor is privy to sensitive information during the audit period.

Auditors’ Liability

Due to the critical and sensitive nature of audit reports, the auditors are answerable for the accuracy of any information contained therein and may be liable to the company for damages sustained as a result of the inaccuracies of their reports. In the event there are multiple auditors who jointly participated in the inaccurate report, the auditors will be jointly liable to the company.

The statute of limitations regarding the liability of auditors is one year from the date of the general assembly meeting during which the auditor’s report was discussed. In the circumstance that the violation of the auditors was considered a criminal act, the claim against the auditors will not be heard before the judgment of the criminal case is issued.

Auditors’ liability may result in the right to compensation to shareholders and third parties as a result of non-compliance with accounting principles and standards, or professional wrongdoing.

In conclusion, to diligently examine company documents, financial statements and internal controls, an unbiased assessment is possible through the enforcement of the obligations, rights and liabilities of auditors as stipulated by law. The CCL governs auditors’ integrity, compliance and accountability to ensure that those characteristics are reflected in audit reports.

Basic Steps to Setting Up a Company in Bahrain

In Bahrain, establishing a company requires adherence to specific laws and regulations outlined by the Ministry of Industry and Commerce (MOIC) and, for banks and financial institutions, the Central Bank of Bahrain (CBB). This article outlines the fundamental steps involved in setting up a company in Bahrain, providing insights into the incorporation process, required documentation, and regulatory considerations.

This article will explain two types of commercial registrations: incorporating a company with or without a license application. These options and relevant details will be discussed, and the process can be initiated through the Sijilat portal.

Relevant Laws

• Law No. 21 of 2001, promulgating the Commercial Companies Law (CCL) and its amendments.
• Ministerial Order No. 6 of 2002, promulgating the Implementing Regulation of the Commercial Companies Law issued by Law No. 21 of 2001 and its amendments.
• Legislative Decree No. 7 of 1987, promulgating the Law of Commerce.
• Legislative Decree No. 27 of 2015 regarding the Commercial Registration Law and its amendments.
• Ministerial Order No. 126 of 2016, issuing the Implementing Regulation of Legislative Decree No. 27 of 2015 regarding Commercial Registration.

Considerations When Incorporating a Company

1. Company Type
   • What is the minimum capital required?
   • What is the proposed management structure?
   • What are the disclosure requirements?
2. Shareholders
   • How many shareholders are there, and what is their nature (corporate or individual?)
   • What are the nationalities of the shareholders?
3. Commercial Activities
   • What are the relevant commercial activities? Is only one activity required or more?
   • Are there any foreign ownership restrictions? Are there any restrictions on the company type?
   • What are the approvals, supporting documents, and special licenses required?
4. Licenses required (if any)
   • What documentation and information required for obtaining licenses?
   • What are the licensing conditions?
   • What are the applicable laws and regulations?

 Commercial Registration (CR) without License Application

Step 1: Submission of documents to the MOIC

Information:

1. 1. Proposed commercial name;
   2. capital amount
   3. total number of shares;
   4. distribution of shares amongst shareholders;
   5. new company’s director(s), email addresses, and mobile numbers (marital status, education, occupation if not a GCC national); and
   6. selected commercial activities.

•  Documents:

1. 1. Copies of passports/ identity cards of the new company’s directors;
   2. copies of passports/ identity cards of the new company’s authorised signatories; and
   3. if the shareholder(s) are:

Natural persons

1. 1. 1. A copy of each shareholder’s passport/ identity card, mobile, and email (marital status, education, occupation if not a GCC national); and
      2. A copy of the signed letter authorizing the professional body to submit the application (or notarized and ratified (where relevant if a submission is taken by a third party) Power of Attorney).

Juridical person

1. 1. 1. Copies of the ratified commercial registration and constitutional documents; and
      2. original resolution approving the setup of the new company duly ratified and notarized (if relevant).

Step 2: Security clearance approval by Nationality, Passports & Residence Affairs (NPRA)

Step 3: MOIC Approval

Step 4: Payment of application fees

Commercial Registration (CR) with License Application

Step 1: UBO & Commercial Address

• • Details of Ultimate Beneficial Owner(s) (UBO): name, mobile, email address, Tax Identification Number (TIN), Proof of TIN and UBO Declaration of each UBO;
  • copy of the signed lease agreement for the new company’s office in Bahrain;
  • copy of the address card;
  • pictures of the leased offices from the inside and outside of the address plate;
  • copy of any document showing that an Electricity and Water Authority (EWA)/ Municipality Account was opened by the new company;
  • termination letter of the previous tenant;
  • evidence that the lease agreement was registered at bh; and
  • resubmit CR WO/License Documents.

Step 2: Licensing Entity Approval

• • Submitting the documents required by licensing entities.

Step 3: Obtaining Municipality Affairs preliminary approval

Step 4: Obtaining licensing entities’ preliminary approval

Step 5: Final Municipality Affairs approval (where relevant)

Step 6: MOIC approval of Constitutional Documents

• • Submitting the draft constitutional documents of the new company.

Step 7: Notarization of Constitutional Documents

• • Know Your Customer (KYC) form;
  • original notarized authority document of any representative signatory; and
  • identity card/ passport of the signatory.

Step 8: Capital Certificate

• • Capital certificate from the bank evidencing the deposit of the new company’s share capital; and
  • notarized constitutional documents.

Step 9: Final site approval by licensing entities

Step 10: Final MOIC approval

Step 11: Payment of application fees 

Establishing a company in Bahrain involves a meticulous process governed by a set of laws and regulations. Each step requires careful attention to detail and compliance. By following the outlined steps and ensuring the submission of required documents, entrepreneurs can navigate the incorporation process smoothly, paving the way for a successful venture in Bahrain’s vibrant business landscape.

Contact us at Zu’bi and Partners to directly assist you in setting up your company in Bahrain. Our dedicated team is committed to guiding you through the entire process, ensuring compliance with all legal requirements.