The Year to Come and Year in Review summarise a selection of major developments you should be aware of from 2021, and a selection of key developments expected in 2022.
This publication has been written in collaboration with Zamakhchary & Co., our alliance firm in Saudia Arabia.
Explore our overview of key developments below.
Updates in
17
key areas in 2021 and 2022
Saudi Arabia’s legal regime has changed dramatically in the last few years. It has undergone an extensive programme of modernisation, in line with Vision 2030 and the National Transformation Programme goals. The pace and scale of legal change, especially in companies’ law and capital markets regulation, is expected to continue in 2022. Investment opportunities are being created by the Privatisation Programme, ongoing measures to stimulate listing on the Saudi Stock Exchange, new Special Economic Zones and the “giga” projects. These measures establish the enabling environment for Saudi Arabia to support economic diversification and attract foreign investment.
Omar El Sayed, Partner, Saudi Arabia
Vision 2030 initiatives to promote the private sector: Enabling the private sector is a key strategic objective of Saudi Arabia’s ambitious Vision 2030 internal reform programme, which aims to support a diversified, thriving economy. Further progressive legal reforms are expected in 2022 to build the required legal and regulatory frameworks to facilitate business, build an advanced capital market open to greater foreign investment and enhance private sector growth.
Special Economic Zones may be established: 2022 may see the Government establish new Special Economic Zones (SEZs) with bespoke regulations. SEZs are expected to further boost investment. Sector-based SEZs (often focused on manufacturing, logistics and services) can incentivise foreign investors to enter the local market, with few or no restrictions on foreign investment, more favourable regulatory and operating environments and tax holidays.
Read more in the Z&Co guide to Special Economic Zones in Saudi Arabia.
Proposed Amendments to Rules on the Offer of Securities and Continuing Obligations to Regulate an Additional Option for Capital Increase: The Saudi Arabian Capital Market Authority (CMA) may introduce amendments to enable public companies to increase their capital by way of a new issuance of shares in which existing shareholders’ pre-emption rights would be suspended. This method of capital increase would be in addition to the current options to increase capital through rights and capitalisation issues, debt conversions, acquisition of a company or asset purchases.
In a public consultation carried out in October 2021, the draft amendments set out the requirements for this type of capital increase, including the minimum requirements for the contents of the shareholder circular to approve the issuance. Key points to note include that the increase in capital for an issuance in which pre-emption rights are suspended must not exceed, for each issue, 10% of the issuer's capital, the categories of potential investors is limited to qualified clients and institutional clients only and investors may not dispose of their shares within six months of acquiring them.
New companies law regime: A new companies’ law regime may be approved in 2022. The Government published a draft new Companies law in July 2020 which, if enacted, would replace the existing regime.
Key changes proposed by the draft law include a new type of simple joint stock company and codified directors’ duties. This would introduce, for the first time, a set of codified directors’ duties applicable to all types of companies. Once enacted, it could see Saudi Arabia increasingly aligned with international corporate governance standards. The impact of this is likely to be improved management practices, greater legal certainty for directors and strengthened investor confidence.
Creating a more modern and transparent system for establishing and managing companies will support the Vision 2030 pillar of “developing a thriving economy” and the Vision Realization Programs which underpin it, including the Privatisation Program. Bringing the local regime for companies more in line with aspects of international and regional best practice should help international investors become more comfortable with the prospect of investing in Saudi Arabia’s growing private sector.
Anti-concealment law compliance grace period: Businesses in Saudi Arabia in which foreign nationals and companies have invested should ensure they comply with the Anti-Commercial Concealment law (Saudi Arabia Royal Decree No. M4/1441 dated 19 August 2020 and Saudi Arabia Cabinet Decision No. 785/1441 on the Approval of the Anti-Commercial Concealment law) by 16 February 2022. The grace period for rectification of breaches was originally due to end in August 2021 but has been extended until February. 2022 highlights Vision 2030 measures to promote private sector development, economic diversification and foreign investment will continue. 2022 highlights New regimes for public private partnerships and public sector participation are expected to provide the legal framework for the privatisation of public services and government-owned assets. 2022 highlights The anti-concealment regime will come into force and promote compliance with the foreign investment regime. Severe penalties may be imposed where a company makes use of side arrangements that enable foreigners to carry on business activities which they are restricted from carrying on under the Kingdom’s foreign investment regime. The severity of the penalties will depend on whether the breach constitutes a criminal offence.
Private Sector Participation implementing regulations expected to come into force: Implementing regulations are expected to be issued to supplement the new Public Sector Participation law (PSP law) which came into force in July 2021. The National Centre for Privatisation and the Public Private Partnerships (PPP) consulted on draft regulations in June 2021. The new regime is expected to promote the privatisation of public services and divestment of government-owned assets in order to secure more foreign investment.
Public Private Partnerships Law and implementing regulations: Implementing regulations are expected to be issued to supplement a new PPP law, which was approved in 2021. The PPP law provides a comprehensive framework for the regulation of arrangements between the Saudi Government and private sector entities in relation to the provision of infrastructure and other public services projects. The PPP law and the implementing regulations are expected to come into force following publication in the Official Gazette. The timeline for implementation is not known.
Regulations expected regarding Government contracts with foreign companies: Regulations are expected to be issued that give effect to the Government’s policy, announced in 2021, to restrict Saudi Arabian government agencies, institutions and funds from entering into contracts with foreign counterparties which do not have their regional headquarters in the Kingdom. The policy is expected to take effect from 1 January 2024.
Sustainability initiatives: 2022 is likely to see a range of sustainability initiatives, as the Kingdom works towards its pledge to achieve net zero carbo emissions by 2060. The pledge was announced at the first Saudi Green Initiative Forum in October 2021. Renewable energy initiatives are expected to be a key focus, as Saudi Arabia plans to generate 50% of its energy from renewable sources by 2030.
Fintech ecosystem - open banking: In 2022, the Saudi Central Bank is expected to introduce measures to facilitate open banking following the announcement of its open banking policy in January 2021. The Saudi Central Bank is expected to consult with market participants on a new regulatory framework for open banking and the use of enabling technologies, such as application programming interfaces (APIs). Enabling the use of new technologies to offer innovative products and services in the financial services sector is a key aim of the Financial Services Development Program, under the umbrella of the Vision 2030. This move is expected to diversify the financial services sector and enhance Saudi Arabia’s existing supportive environment for Fintech start-ups.
New framework for foreign investment in strategic sectors: A new “Permanent Ministerial Committee for Examining Foreign Investments” was established by the Cabinet in September 2021 (Cabinet Decision No. 83 Of 1443 H. issued on 30/01/1443 H. and corresponding to 07/09/2021). Chaired by the Minister of Investment, members of the new committee are drawn from a wide range of Government departments and authorities, including the Ministry of Commerce, the General Authority for Competition (GAC) and the CMA. The new committee is responsible for determining the list of activities excluded from foreign investment and assessing and determining foreign investment applications, taking into account security and public order considerations.
In performing this role, the committee will establish and maintain a list of sensitive and strategic sectors that directly or indirectly affect security or public order, and determine the maximum percentages of direct and indirect ownership by foreign investors in the share capital (and other securities) of Saudi companies operating in sensitive and strategic sectors.
Competition law update – economic concentrations: 2021 has seen the GAC play an increasingly active role in supervising competition across the markets in Saudi Arabia and overseas jurisdictions where the Saudi Arabian market is affected in accordance with the Competition law enacted in 2019. One of the most significant aspects of the Competition law are the regulations for “economic concentrations”, including mergers and takeovers. During the exceptional circumstances created by the pandemic, the GAC expedited procedures for the review and determination of economic concentration applications. The GAC has seen an increase in applications for approval of transactions year on year, as applications relating to mergers and acquisitions rose to 237 in the first nine months of 2021 – up from 137 in 2020 and 57 in 2019, according to the head of mergers and acquisitions at the GAC and statistics published in the GAC’s 2020 Annual Report. The GAC attributes the increase in activity, in part, to the impact of the pandemic.
The GAC has published Guidelines for Reporting Economic Concentrations and Merger Review Guidelines, which provide welcome clarity for market participants on when a transaction is notifiable (addressing matters such as the calculation of the total annual turnover of the parties and the likely effect on competition in the relevant market). Where the transaction involves a business in Saudi Arabia, it may be necessary to file an application with the GAC to have the transaction pre-approved within 90 days prior to the completion date if certain conditions are met.
CMA amends the Securities Business and Capital Market Institutions Regulations: The CMA has revised the range of regulated securities activities that require authorisation to be carried out by way of business with a person in Saudi Arabia. Amendments to its Securities Business Regulations and Authorised Persons Regulations (now the Capital Market Institutions Regulations) came into force in November 2020, and further changes will come into force in 2022. Read more in a briefing by Z&Co.
New data protection framework: The collection and processing of personal data in the Kingdom by businesses or public entities is now regulated under a new data protection framework designed to support an increasingly digital economy.
Royal Decree M/19 of 9/2/1443H (16 September 2021) approving Resolution No. 98 dated 7/2/1443H (14 September 2021) regulates data subjects’ rights, consent (and withdrawal of consent) to the processing of personal data, privacy policies, marketing, controller obligations (including a requirement to register on a new national record of controllers) and data breaches. Aspects of the new framework draw on elements of international data protection regulations. The supervision of the new regime is to be carried out initially by the Saudi Data and Artificial Intelligence Authority and may subsequently be transferred to the National Data Management Office.
PPP law and PSP law approved: New laws regulating PSP and PPP were approved in 2021 to facilitate privatisations, one of the cornerstone policies of Vision 2030.
In July, new PSP law came into force which provides a comprehensive framework for the regulation of arrangements between the Government and private sector entities in relation to the provision of infrastructure and other public services projects. It regulates required approvals, the acquisition of land for projects, the provision of credit support by the Ministry of Finance, private sector party rights and obligations, compliance with the competition regime and dispute resolution.
A new PPP law has been approved, which will regulate tendering PPP and privatisation contracts. The PPP law, together with the expected implementing regulations, will come into force following publication in the Official Gazette.
New environmental law: The Kingdom’s new environmental regime significantly increases licensing/permit requirements for the protection and conservation of the environment and the scale of potential liabilities. Royal Decree No. M34/1422 Related to the Approval of the General Environment Law (Saudi Arabia Cabinet Decision No. 193/1422 Approving the General Environment Law) supports the environmental aims of the Saudi Green Initiative. The Saudi Green Initiative aims to increase the Kingdom’s reliance on clean energy, offset the impact of fossil fuels and combat climate change.
Revised funds regulations: 2021 saw changes to several CMA regulations which are designed to improve the governance regime for investment funds and improve investor protection in line with international best practices and standards. Revised Investment Funds Regulations, Real Estate Investment Funds Regulations and a Glossary of Defined Terms came into force in May 2021.
Created in collaboration with Zamakhchary & Co.
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