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Issue:# 4 NEWSLETTER

December, 2008

Welcome to the fourth edition of The Cragus Group newsletter. In this edition, alongside our normal tax and legal updates, we also have a new section entitled "Notes from America" - which we hope will become a regular feature giving insight on global trade and foreign policy. Please feel free to contact us on [email protected]
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We wish you all the best for the holiday season and the New Year!
Gulf countries sign with Singapore to seal first-ever GCC FTA
Singapore and the GCC signed a free trade agreement (FTA), on the 15th of December. It is the first FTA for the six-country Gulf Co-operation Council (GCC). The FTA will allow about 99 percent of Singapore's domestic exports to get free access (without customs tariffs) to the GCC economies, and all exports of goods from the GCC to Singapore will also be tariff-free.

According to Singapore's Ministry of Trade and Industry, bilateral trade with GCC hit a high of S$42.4bn (Dh105bn) in 2007, this was a 127% increase from 2002. Singapore has established itself as a portal, and is hugely dependant on external trade, and has already signed free trade agreements with the US, Japan, Australia, New Zealand, Jordan and India.
EU-GCC free trade agreement now unlikely says France
EU flagAnne-Marie Idrac, France's junior minister for trade, told reporters on the 15th of December, that an EU-GCC trade agreement was now unlikely. In October she had stated that it might be possible.
"We have been working on a free trade agreement between the European Union and the Gulf for 17 years. I hoped for a moment that it would be possible to get there," said Idrac, "Unfortunately it seems that we will not arrive at an agreement. If we were not able to seize the chance of the French (EU) presidency, of Nicolas Sarkozy's high profile... I think that it will be even harder now."
Talks began in 1990 between the GCC and the EU, but delays had been caused by both sides - by the GCC agreeing only in 1999 to move towards forming the current customs pact, and by a new EU negotiating strategy adopted in 2001 that wanted to include the services sector in the proposed FTA. Asides from boosting trade and investment, the FTA would also have pushed other issues such as human rights, illegal immigration and fighting crime / terrorism.
"The point we particularly stumbled on is protectionism" she said. "It is very difficult because the key players are in difficult political situations".
UAE Ministry of Economy tries to gather momentum on long awaited changes
The UAE Ministry of Economy released a detailed report on the 13th of December 2008, detailing its initiatives and the measures taken during 2008 intended to stabilise and ensure the growth of the economy.

"The economic policy pursued by the country has led to good growth levels through the establishment of production units and the development of non-oil sectors of the national economy, whose contribution to the gross domestic product amounted to 64.1 per cent in 2007," a release from the ministry said.

UAE streetOver the last year, the ministry has worked to compile several draft laws and economic legislations - including the long awaited company law which is now expected to be released in early 2009; other draft laws include those on competition & antitrust and foreign investment. They have also issued several decisions over recent months on regulations regarding corporate governance relating to private joint stock companies. An anti-fraud draft law is also being studied by the UAE Ministry of Labour, and a second draft law which curbs trade in precious stones and metals has been approved in principle by the Cabinet.

The inflation rate went over 11% in 2007, and the Ministry of Economy have been under pressure to protect consumers, and 'rationalise' the import / export policy. In November their new customer service centre started offering certificates of origin through a new online system. Under federal law No 24 of 2006 on consumer protection, the ministry began monitoring prices earlier in 2008, and also fixed prices on some basic food commodities to 2007 levels - via various MoUs with co-operatives and some larger groups such as Carrefour and Lulu, and publishing lists of prices in local Arabic press.

The UN Conference on Trade and Development (Unctad) estimated foreign investment in the UAE's free trade zones at $13.2 billion (Dh48bn) in 2007.

In 2008, the Ministry of Economy apparently studied 27 applications to set up private joint stock companies. Of these 12 companies have so far been established, with another 14 entered into the register. Articles of association for 25 companies have been amended, and the ministry has licensed 425 foreign companies. From January to October inclusive, the ministry registered 213 trade agencies and renewed another 2,966 others.

The Ministry of Economy also took on responsibilities to the industrial sector; their trade control department made 5,144 tours (mostly for price variations) / inspections to various sites, and issued 1,402 fines. They continued their efforts to freeze the price of cement with MoUs with local suppliers.

Efforts to increase protection of copyrights (movies / television programmes) led to internet blockings, along with MoUs with trademark owners in and around the GCC.
Iran suspends tax plan after protest
In October, the Iranian President Mahmoud Ahmadinejad ordered the suspension of a new value added tax (VAT), following protests by local traders.
After the 3% VAT had been introduced, gold jewellery merchants and some other bazaar traders closed their shops in protest - fearing that the VAT would increase prices and lower demands.
"This (the strike by shop-owners) has pushed the government o announce that it will review the new VAT mechanism," Iran's Press TV said. The finance minister has since taken to consulting with union representatives while a review process continues.
Tax treaty updates
Iran and Croatia
Both countries signed a tax treaty in Tehran in May 2003, the treaty comes into force on the 30 of October 2008, and will generally apply from 1st January 2009.

Jordan and Azerbaijan
The income and tax treaty signed in May 2008 has now been ratified on the 2nd of October 2008.

Kuwait and Bosnia-Herzegovina
Both jurisdictions signed a tax treaty on the 28th of October 2008.

Libya and UK
Both countries have signed a double tax treaty on 17th November 2008. The treaty largely follows the OECD Model Double Taxation Convention. Important features include, with one exception, the complete elimination of source-country withholding taxes on dividends, interest and royalty payments. In the UK the provisions of the convention will be effective from 1st April 2009. The UK is also expected to approach Ethiopia in the next few months for a similar treaty.

Qatar and China
The income tax treaty signed in April 2001 entered into force on 21st October 2008 and will come into effect on 1st January 2009.
The withholding tax rates are 10% on dividends; on interest (with some exemptions on payments to governments); and on royalties.
Deviations from the OECD model include:
a)building site, construction, or assembly will constitute a permanent establishment (PE) if such a site and activities continue longer than 9 months;
b) farms and orchards can be deemed PEs.
c) a person (not an independent agent) who habitually exercises authority on contracts in the name of their principal, shall be deemed to have a PE (unless their activities are solely covered by the treaty's exclusion clause)

Qatar and Cyprus
A tax treaty was signed between both countries on the 11th of November 2008.

Qatar and Greece
Income tax treaty was signed in Doha on the 26th October 2008.

Qatar and Poland
An income tax treaty was signed between both countries on the 18th November 2008.

Qatar and Portugal
Both countries have begun income tax treaty negotiations; the first round was held in Lisbon in the last week of November 2008.

Qatar and Switzerland
Both countries signed an air transport income tax agreement on the 30th November 2008.

Saudi Arabia and The Netherlands
An income tax treaty and protocol were signed on the 13th October 2008. Maximum rates on withholding tax are 10% on dividends, but 5% if receiving company (excl partnerships) owns directly at least 10% of the company's voting power; 5% on interest (with some exceptions); and 7% on royalties. There are some deviations from the OECD, including a wider definition on the term 'permanent establishment'. The transport tax treaty signed in 1991 remains in effect, and prevails in case of differences.

Saudi Arabia and Uzbekistan
Saudi and Uzbekistan signed a tax treaty in Riyadh on the 18th November 2008.

Syria and Czech Republic
The Syrian parliament has finally approved the income tax treaty and protocol that the two countries signed in May; approval was announced on the 1st of December 2008.

Syria and Slovak Republic
Both countries initialled an income tax treaty and protocol in Damascus on the 22nd of October 2008.

UAE and Germany
Treaty negotiations continued to a third round in October 2008, with the German Ministry of Finance announcing that parties could not agree - whilst intentions were announced to proceed to another round, no further indications have been made public.

UAE and Japan
Both countries are close to concluding a tax treaty. Negotiations were launched in November 2006, closely followed by talks between Japan and Kuwait. The plans will add further incentives for Japanese firms to do business with the UAE, which provides almost 28% of Japan's oil, second only to Saudi Arabia, which provides 29.5%. The treaty would also benefit the estimated 2,800 Japanese nationals currently residing in the UAE. Plans for a Free-Trade Agreement (FTA) between Japan and the Gulf Cooperation Council (GCC) are also believed to be progressing.
FDI controversy in India highlights debate on DTAs and FTAs
The Indian tax revenue authorities advised the Foreign Investment Promotion Board (FIPB) last month to reject a proposal by Japan Tobacco International (JTIL) Mauritius Pvt Ltd, part of the world's third largest tobacco company, to raise its stake in its Indian venture from 50 to 74 per cent on the basis that this would be considered "treaty shopping". If JTIL's foreign investment proposal was approved, future capital gains, should JTI Mauritius sell its shares, will not be taxed under the provisions of India-Mauritius Double Tax treaty. The government is making efforts to revise the India-Mauritius treaty due to substantial revenue losses.
This is not the only case, the ministry has also attempted to block other FDI efforts including one by the private equity firm 3i also using a Mauritius vehicle, and in August a proposal by Daltotrade, based in Cyprus, to take a shareholding in Meta Telecomm being rejected on the basis of Cyprus being a tax haven. With overseas companies structuring their investments to maximise benefits and minimise tax cost by routing investments through tax havens, preventing abuse of tax treaties is high on the agenda of the Indian revenue authorities.
JTIL's proposal is considered a test case in India, given that there has not been any application to FIPB related to tobacco since 1998 owing to vehement opposition from the domestic tobacco lobby and parts of the government. However, what is more interesting is how this may fuel a debate between the cross-over between tax treaties and Bilateral Investment Treaties/ Free Trade Agreements. After all had an investment treaty been applicable (e.g. EU and India) then any blocking by the FIPB would have given good reason for investors to seek third party arbitration.
Whilst many international industry groups would believe that FTAs should follow tax treaties and vice versa, this could be seen as increasingly dangerous by others.
SA fourth best tax reformer in world
South Africa has improved its e-filing system, despite previous delays to the launch, the new system appears to be a success. South Africa has also brought in other reforms to reduce the tax burdens on companies by reducing the number of taxes paid and the rates of secondary tax on businesses. A new report has been published by the World Bank, IFC and PwC, unsurprisingly declaring South Africa as the top African performer, though also making it 4th globally. There are three sub-Saharan Africa countries that appear in the top 25 for 'ease of paying taxes': Mauritius (11), Botswana (17), and South Africa (23) - 181 countries were surveyed in total.
Notes from America: The Next USTR?
A curious thing happened on the way to the construction of President-elect Obama's Cabinet. Someone said "no". California Democrat Xavier Becerra, a rising star in the U.S. House of Representatives, on December 17th declined Obama's request to serve as the United States Trade Representative. Tellingly, although the Congressman's office issued an anodyne statement noting his desire to work with the new president from within the legislature, Becerra himself told Spanish-language newspaper La Opinion that he turned down the job because "trade would not be priority number one, perhaps not even two or three" for the Obama Administration. This should lead us to inquire of the fate of trade policy, and to turn out attention to an unlikely new USTR, former mayor of Dallas, Texas, Ron Kirk.

Becerra -- Indicative of a Democrat Trend

"It's become very obvious that our system for devising trade agreements, so very important to this country's functioning around the world, has not only broken, but is broken completely." Congressman Becerra, July 2006

It is not apparent that Becerra would have brought to the job a well-developed personal perspective on the role of trade within broader foreign policy matters, or how trade policy relates to U.S. engagement with the world. Although he sits on the House Ways and Means Committee, he does not occupy a seat on the vital Subcommittee on Trade; his experience on trade legislation is thus largely indirect. Becerra's voting record on trade, however, provides a road map of the evolution of the contemporary Democratic Party on the issue of economic liberalization. Moreover, that the Obama team approved of his stance on trade is indicative of the types of candidates who may now be vetted for USTR.

Becerra Past Trade Votes -

VOTED YES:
NAFTA; 1994 WTO Treaty; China PNTR; Singapore FTA; Chile FTA; Australia FTA; Morocco FTA; Bahrain FTA; Peru FTA.
VOTED NO:
1993 Fast Track; 1998 Fast Track; 2002 Trade Promotion Auth.; 2005 WTO Withdrawal; Oman FTA; CAFTA.

The generalized Democratic position on free trade has been driven increasingly by a belief in the primacy of the Constitutional powers afforded the Congress, and by a rising concern that the domestic price of open markets has become too high. Moderate and conservative Democrats, who used to reliably support free trade votes during the Clinton Administration, have since dwindled in number, and come, too, to doubt the broad economic benefits of liberalization. It may be most accurate, then, to posit that any USTR nominee will be a "fair trade" advocate who seeks to protect US workers from the difficult disruptions associated with economic globalization.

Who's Next? Meet Ron Kirk

The Obama transition is proving to be nothing if not efficient. Within hours of the Becerra bowing out, the transition quickly settled on Ron Kirk as its nominee. Media is now confirming that Kirk will be formally announced at noon, December 19th.

Ron Kirk was a highly popular mayor of Dallas, TX, from 1995-2001, and served prior to that as the Texas Secretary of State. He ran unsuccessfully for the U.S. Senate in 2002, losing to Republican Jon Cornyn. Kirk, formerly a staff aide to U.S. Senator, and former Treasury Secretary, Lloyd Bentsen, was known as a strongly pro-business mayor, who touted the benefits of the NAFTA while in office. Kirk has worked as a partner at the global law firm of Vinson & Elkins since 2002. His legal, business and lobbying background include high level work for the energy, tobacco and transportation industries.

Kirk has no voting record on trade, and has never been involved with trade policy in any legislative sense. His pro-business bona fides, however, and past affiliation with the moderate Democratic Leadership Council, provide a notable contrast to the fair trade themes now sounded by the Democratic leadership in the House. Indeed, one of the strongest qualities Kirk may bring to Washington is a pronounced lack of loyalty to the Pelosi faction in the Congress - a fact which would likely have undermined a USTR Becerra. The flipside of this, however, means that Kirk's lack of policy and international experience, coupled with little real working experience with the Congress, may handicap his ability to broker significant policy achievements. Although Kirk's colleagues credit his political acumen, penchant for deal-making and genial personality, the challenges of the trade post may pose at stern test at the outset of his tenure.

What Kirk will do during that tenure remains largely unclear. The Obama transition team has been exceptionally quiet on trade matters.

Political and Policy Implications

We posit that Kirk's nomination could herald four developments in US trade policy:

· Domestic over Global: USTR Kirk would have to anticipate significant pressure from the Democratic Congress, organized labor, and NGO interest groups to turn the Democratic critique of the costs of free trade into clear new policies aimed at protecting core constituencies from global competition. Faced with this challenge to his general pro-business leanings, Kirk may find himself at a disadvantage in Washington, particularly if, as Congressman Becerra warned, the USTR will not enjoy the strong backing of the White House. The US business lobby would be forced to rally support for free trade, particularly in a market environment where export-led growth will be hotly pursued. Kirk's greatest allies in supporting free markets may well be the professional bureaucracy at USTR, which has traditionally favored free trade and negotiation over litigation and other protectionist measures.

· A New TPA: Kirk is likely to face a major test with the Congress regarding the negotiation of legislation to renew presidential Trade Promotion Authority. TPA has been the preferred mechanism through which Congress grants its Constitutional mandate over trade policy to the executive branch. The new Congress is certain to take a more activist role on trade, and to secure greater privilege for Congressional intervention in any nascent TPA legislation. This certainly will complicate matters for trading partners and industry alike, and may also provide another test for White House relations with the Congress over the limits of executive authority. For USTR Kirk, the attempt to create a new grand political bargain with the Congress over trade may make or break his tenure in office.

· Foreign policy disconnect: It is highly unlikely that, in the near term, a USTR Kirk would independently articulate a strategic view of trade policy that is linked to the Administration's broader foreign policy agenda. He will occupy the office at a time of general retrenchment and preoccupation with the domestic impact of trade, and he has yet to demonstrate an appreciation for the strategic implications of America's economic integration with the world. The task of correcting this will fall to foreign leaders and diplomats, the business community, and other elements of the Administration.

· Commerce in the Lead?: Fortunately for free trade advocates, Commerce Secretary nominee Bill Richardson has both the standing and the independence to speak out for economic liberalization. The President-elect has already stated publicly that Richardson, the current governor of New Mexico, will act as an "economic diplomat" for the nation. Richardson's past experience in the cabinet, on Capitol Hill and as Bill Clinton's ambassador to the UN should stand him in good stead for an expanded role for Commerce. We anticipate that under Richardson's drive, Commerce could seek to eclipse USTR on trade policy to a degree not seen since the earliest years of the Special Trade Representative position. Such conflict could reverberate throughout the trade interagency process, and send conflicting signals to foreign trade partners and business alike. The dynamism of the USTR-Commerce relationship will be an important development in the
first year of the Administration.
This contribution was gratefully received from Eric Shimp - Special Advisor to UAE regarding the UAE-USA FTA Negotiations, and Senior Director, Global Business Strategy, Alston & Bird, LLP.
Cragus tax leaders appear as "world's leading"
Euromoney Survey
This year has seen The Cragus Group through a number of awards and triumphs, including:
  • Being recognised by International Tax Review magazine as a leading tax transactional firm in the GCC;
  • Receiving nominations from the European CEO magazine for their First Annual Legal Awards, and being one of two firms shortlisted for the Best International Tax Team of the year 2008 in the United Arab Emirates (primarily due to research from Reuters and Financial News);
  • Appearing in World Tax 2009 as one of the leading tax firms (ranked number 2) in the GCC;
  • We are now delighted to also announce that Reggie Mezu, Dr Robert Peake and Mark Stevens (strategic advisors), have all been nominated by their clients and peers to appear in the Euromoney Guide to the World's Leading Tax Advisers, which is published every two years. Cragus had more individuals nominated than any other firm in the Middle East.

The Cragus Group would like to thank its clients and friends for their continuing support.

If you would like further information on The Cragus Group or tax matters relating to the Arabian Gulf or surrounding region, please contact:

Dominic Treays, Director of Practice Development, on [email protected]

Or visit our website www.cragus.com

Sincerely,

Gemma Eagle

Marketing Manager

The Cragus Group

[email protected]

In This Issue
GCC signs first FTA
EU-GCC treaty failing
UAE Ministry of Economy making changes
Iran suspends tax plan
Treaty updates
FDI controversy on treaty shopping
South African tax reform
Notes from America: The Next USTR?
Cragus continued 2008 success
Quick Links
About The Cragus Group
The Cragus Group is made up of hand-picked individuals from tax, legal and accounting backgrounds, with experience of international tax in the Middle East dating back 20 years. Primarily dealing with corporate international tax planning, they also provide advice on transfer pricing, tax controversy, legal structuring, oil and gas and general corporate advisory services. They serve a range of clients across the Middle East and Africa.
The Cragus Group consists of well known international tax advisors based in Dubai and a long standing network of trusted independent Member law firms, correspondents, and advisors of high professional reputation in Kuwait (Kuwait City), Oman (Muscat, Salalah, Sohar), Saudi Arabia (Jeddah), Qatar (Doha), UAE (Abu Dhabi, Dubai), and the USA (Washington DC).
Tax Leadership:

Reggie Mezu

(Tax Leader)
Over 20 years tax and
legal experience: including roles from the UK, Nigeria, Singapore, The Netherlands, and the UAE; within Andersen, Price Waterhouse, and Shell (most recently serving as regional tax manager for the Middle East, Caspian, and South Asia).
Mark Stevens
(Strategic Adviser)
Over 20 years tax and legal experience within "big 5" audit firms, including 10 years based in the Middle East. Formerly part of the original Ernst & Young International Tax Services team in the region, then serving with Arthur Andersen, and later also heading tax and legal for PwC in the Lower Gulf.
Robert E. B. Peake
(Strategic Adviser)
International tax advisor experienced in advising global investors on managing tax risks and maximizing investm
ent return by reducing tax liabilities. Formerly, Director and Partner of International Tax Services with Ernst & Young Middle East and Head of Tax and Legal Services for Lower Gulf with Arthur Andersen. Subsequently, senior tax advisor to a government investment institution and a member of the UAE Free Trade Agreements negotiation team with particular responsibility for matters relating to investment and dispute settlement.

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