Table of Contents
This paper aims at presenting a set of feasible entry strategies for a health care construction operator to start up in the Emirate of Dubai. Bearing in mind that market entry is supposed to take on a joint venture according to Sharia-based company law, it has been shown how a limited liability company could be the best solution irrespective of whether a sensitive operations profile qualifies for regular presence as opposed to free zone mediated cooperation.
Competing versus Overlapping Jurisdictions
According to the UAE constitution, sharia is the primary source of law on a federal level, which is binding and dominant over the Emirates’ law. At the regulatory or deregulatory level, any health services in Dubai are subject to oversight and licencing by the Ministry for Health as well as Dubai Health Authority when it comes to standards and fatwa compliance in each particular case. Ironically, though, it is this area that may allow for peculiar interchange between jurisdictions, with Emirate-level legacy amounting to either extraterritorial or otherwise binding and dominant arrangements as compared to federal-level rules or procedures.
For instance, although no foreign or national concern can, according to Federal CCL 1984-1998 (Commercial Company Law), enjoy a controlling stake in a joint venture anywhere outside free or specialized zones (Singh 2015), this prerequisite does not hold within these areas that are routinely subject to common law. Alternatively, contracts can be seen as enforced by the English law without necessarily invoking the precedent base of the UK. In fact, one of the common law covenants suggests that, whenever one makes use of an inter-jurisdictional dispute settlement, only local precedence makes common law and enjoys a binding status (Samuel 2006).
However, for the sake of convenience, there is always an option that allows to embed clauses that make any defective patterns or poor outcomes, as between unscrupulous parties to M&A or joint venture and strategic alliances, subject to lawsuits and case hearings in one of the US arbitration courts, normally within the New York State jurisdiction, which is known for its history of administering effective plea bargain rulings as part of damages award. One caveat has to do with the possibility that Dubai International Financial Center (DIFC) is not directly qualified as a health or constructions related free economic zone. On the other hand, it is all the less plausible that its loose jurisdiction cannot be extended by precedent to related sectors such as those mentioned above. These options will be discussed shortly.
UAE Health Care Sector Background
Oncology could be seen as a key priority for UAE health care with regard toany set of criteria (Freedman et al. 2001). On the one hand, malignant tumors and their developments rate are among top concerns, with the full agenda pertaining to the acute and chronic phases alike. Although this segment calls for more inpatient-targeting facilities along with highly trained personnel as a complementary prerequisite, the implicit ratio of outpatients could be much higher, as coronary diseases and inflammation processes are routinely correlated with considerable odds of malignance developing into carcinoma in situ.
The part of the troubling patterns and trends have developed due to increasingly unhealthy diets and lifestyles that have been ushered in with the advent of Western-style cuisines and their most popular representatives, such as the major fast food outlets. Although these had initially targeted the expat audience, the rest of the agglomeration areas got accustomed eventually, although this trend is stunningly at loggerheads with the health-conscious modes of life that are increasingly entertained in the West. In fact, the situation has aggravated in light of the corrupt setup involving collusion between pharmacists and drug consumers, whereby prescription medicines are sold over the counter without requiring any recipe (Yeboa & Yeboa 2014).
The flipside of this situation has been the large-scale Emirati health care programme allotting 2.5% of the GDP to innovation outlays that are aimed at augmenting human capital while striking a balance between sustainable development and rapidly improving standard of living. Also, this agenda may gain further momentum with regard to demographics as the ageing of the population requires long-term and systemic health care management solutions . Saxena (2008) has reported that partial coverage has been made available Arab countries. However, in the UAE, it has been tied to citizenship.
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The gerontological dimension ought to be consistent with sustained self-actualization, which renders satisfactory medical attainment as a goal and a major investment in public good, accruing in each sector. For that matter, insofar as infrastructure at large and its social layer in particular are conducive to accelerated growth, the efficiency side could be secondary at first, in line with the Islamic notion of cost sharing that emphasizes the societal boon and collective advancement. In this context, Ott’s (2011) finding on a bell-shaped relationship between the quality of the government and unequal distribution of happiness might in a way reveal how the alliance could be fulfilling from the participants’ standpoint, which depends on the governance model.
From another point of view, the young Arab population has lately been addressed as well as engaged in deploying digital technology such as medical records in order to decrease infant mortality and reproductive cycles (Miller & Tucker 2011), while raising health awareness via online resources and monitoring (Bader et al. 2007).
Mergers & Acquisitions in a Constructions Cluster
The new oncology centre under study may be not only relevant but also challenging due to the lack of specific project construction experience. The Emirates may pose as a tourist and hospitality attraction on the strength of its recent groundbreaking projects such as Burj al-Khalifa. Although this project deserves its fame as the world’s tallest building, it may not be automatically translated into substantive as well as substantial construction forte applicable to health care management, at least not to cancer treatment. Steel-and-glass solutions might not work for projects where thermal mass is critical for curbing daily temperature amplitudes, with corrosion-proof designs for reinforced concrete, which does not quite stand up to the test of arid and dry climate. For that matter, although the emerging areas of sustainable construction operating according to energy minimization might pose less challenges in an energy-endowed region, this is not the case on a more traditional level of sustainable materials. There is a suggestion that these should best be sourced locally, but it remains to be seen whether recycled concrete or crushed stone could suffice for sand-intensive, glass-dominated solutions as they are not able to do it properly now.
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On the other hand, due to the scarcity of the construction input, the projects are prone to sustainability as it is defined by their design, yet the scrap phase of the life cycle is to be delayed indefinitely. Technically, strength of concrete is bound to be high only if there is a low water-to-cement ratio that is driven by water shortage, or a need for sewage management as a dominant facet of operational sustainability. This sector-specific analysis may run counter to generic denial, for example, in Selby (2005).
In other words, the project hinge on well-trained personnel manning the cutting-edge technology, and the early construction stage of the project management requires major cross-regional or international cooperation in terms of the design and related civil engineering issues. As a rule, each major construction or infrastructural project takes practical initiative as well as incremental financial outlays, which amount to high operating leverage or the dominant share of fixed costs in the expense structure. Although the overhead does not directly detract from cash inflows or at any rate acts as tax-deductible operating cost items, adding up to earnings based on EBITDA , private players may have neither liquidity nor patience to complete it. On the whole, markets are not known for productive work when it comes to providing for public goods as long-term or large-scale projects do not pay off handsomely. The fringe benefits or socially favourable externalities, as sought by Islamic legacies, are not reflected in books and are not valued by the stock market, which is one source of clash with the Western corporations.
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Nevertheless, consolidation via ad-hoc strategic alliances or M&A type FDI could be deemed to be effective for breaking even, as the overhead can be shared without compromising the joint efficiency scale. Therefore, medical technology importers could benefit from reaching a heretofore untapped market for health care products or services in the UAE as a host milieu. Alternatively, engineering contractors may expect a contract that is either lenient with regard to a delivery schedule or generous enough in terms of early outlays as compared to Western legacies that have seen a recent bubble burst in the real estate that once heavily relied on subprime bond financing amid growing price expectations (Gorton 2009).
In any event, the fact that the Western counterpart would inevitably find himself/herself operating in the real sector should be consistent with Sharia law of avoiding gambling or undue gains as well as excessive risks. In fact, the latter issue could be mitigated via risk sharing and a scattering of the project’s scale and lifetime, notably at the cost of all excessive ROI or internal rate of return pruned via a tender based or bidding procedure. Furthermore, the discounting rate can hardly be very high as the Islamic host is affluent and law-obedient enough to afford reasonably high NPV of the project.
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The engineering design and regulatory facets might be inherently intertwined in that, even though the project could draw upon the Cairo code for best practices in health care type construction, compliance with English common law for dispute settlement purposes a call on the parties to deploy the Eurocode adapted to the UK standards. Since the joint venture is set up as a limited liability company, according to the very definition of minority holding, the number of participants cannot be fewer than two. Although it will hardly outnumber the legal threshold of fifty in any event, the actual number will be determined by process optimization as well as the dominant governance model, which under the common-law option contains an odd number of parties between five and eleven so as to render a formation of coalition; bargaining and dispute resolution are costly or time consuming, somewhat in line with Hariri (2015) on the nature of Islamic bargaining.
For this reason, the Sharia model may dominate even within the free zone jurisdiction. One alternate way around the alliance issue for the foreign player is to already enjoy local presence via a wholly UAE owned and controlled subsidiary. However, this could invoke the very same scenario of dominant Sharia governance when common law is nearly inapplicable. It remains to be seen, however, whether the subsequent drafts of CCL will allow for ownership versus control or any other aspects of relative and absolute property rights being split before they can be shared or alienated. One example of disjoint or partial ownership versus control could be illustrated by foreign 80% share in the profits (jus frutandi) and partial or complete leeway in staffing or outsourcing.
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Finally, even though free zone extraterritoriality could be one other option of enabling dominant or outright foreign ownership as in Dubai Multi Commodities, that can neither be applied to whole clusters as opposed to select segments nor strategic sectors such as health care where the otherwise possibly all-overseas technologies will come under close UAE scrutiny, stressing quality control over taxing. Consequently, an FZCo could allow for a split between ownership and control as the number of effective stakeholders is not related to the number of key contractors, even though the very particular form of incorporation is restricted or qualified by varying capital adequacy or paid-in equity as an entry lump-sum outlay signalling commitment. In addition, the representative office could use a mode of fostering the agency outside direct or core operations.
One final cut-off is that an LLP is not an option for non-citizens or even their UAE agents or attorneys. By contrast, the LLC profile carries over within as well as outside UAE and GCC jurisdictions with regard to the fact how squarely it fits into a joint venture definition for all practical purposes. However, at this stage, the operating domains are effectively split as well as restricted, in that the LLC or joint venture can apply to manufacturing but not services. The situation could become peculiar as the non-UAE party may be prevented from acting as an engineering designer or architect, let alone providing medical expertise while building the premises or providing the technology. In effect, neither the foreign participant nor its UAE counterpart will be able to tap into the health-care segment directly beyond the construction and maintenance phases, which is one reason why they may want to establish a FZCo type representative office for constructions in a free zone that would not reveal a direct agency vis-à-vis the Specialty Hospital Oncology except for a go-between contractor. However, should a scheme like that come to be perceived as corrupt or unscrupulous, both might be denied any further approval anywhere outside Sharia jurisdictions with free zones confining their scope or portfolio.
When it comes to employment contract enforcement and settlement, Arabic-language contracts shall prevail, which further reduces the free zone discretion outside the tax related cost optimization. Even though that can be extended to outsourcing or sub-contracting, manipulative transfer pricing is not something the offshorer cashes in on relocation into a free zone. At the same time, the health care type construction engineer could enjoy some leeway shaping an entry strategy for as diverse qualified Dubai free zones as Health Care City (DHCC), Outsource Zone (DOZ), Knowledge Village, Tech Park, and Logistics City, to name just a few.
As a bottom line, an LLC is far less costly in Dubai (AED 300 thousand as opposed to 2M to 10M for private versus public JSC respectively); setting up one as a JV equivalent will be aimed, among other things, at sharing the entry cost in the first place. Laxer capital allocation or lower asset specificity, alongside sub-75% voting enforcement or the requirement of a quorum, accrue as extra discretion benefits (UAE Ministry of Economy 2014).
Afterthoughts & Conclusion
Based on a set of alternate criteria, an LLC appears to be the optimal embodiment of a joint venture given it operational profile, whether as a pure or mixed strategy designed according to sectors or zone jurisdictions.
Apart from avoiding maysir and gharar as generic premises confronting any for-profit projects, M&A or alliance specific terminology could broadly be interpreted and applied as follows. Whereas ‘adl or an equitable design could be obtained by defining the risk and outlay, scattered as well as shared, the awliya or bona-fide partners may want to abide by dhimmi immunity premises, reaping rewards of cultural diversity in an inherently multi-cultural legacy rather than weakly complying with the institutional constraints, if cross-cultural alliance is to be at all viewed as relevant on margin or non-fasid in major ways at all. The notion of fitra based ijtihad as natural and self-spawned law could be presumed as the counterpart of the ‘reasonable person’ maxim in common law when it comes to cross-jurisdictional settlement.
The overhead related to the operating leverage could be treated along the lines of kharaj, with the land tax and lease terms revealing an analogy to inform meaningful fiqh. Jahl as structural uncertainty or deliberation cost could be eliminated or mitigated outside gharar avoidance by seeing systemic risks as a flip-side of the systemic complexity that allows menhajj. Niyyah or incentive compatibility should be weighed against qadar as a subject to tawfiq settling, all the more so when human health is at stake.