Are there any specific requirements that parties should be aware of in relation to: (a) Health and safety; (b) Environmental; (c) Planning; (d) Employment; and (e) Anti-corruption and bribery.
(a) Health and safety;
Health and safety on construction sites is regulated by the Act of 4 August 1996 regarding the well-being of employees in the execution of the works and various implementing royal decrees.
Some of these royal decrees were recently codified in the Code on the well-being at work (adopted on 28 April 2017).
The Royal decree of 25 January 2001 relating to the temporary or mobile working areas is one of the main relevant royal decrees in this area and i.a. implements EU Directive nr. 92/57/EEC.
Pursuant to the above regulatory framework, the building direction or the owner must appoint a health and safety coordinator. This person shall supervise the design and the execution phase in order to make sure all health and safety rules are complied with.
In all three regions, operating activities or installations that are potentially harmful to the environment are subject to an environmental permit or notification and/or to general, sectoral and/or specific operating conditions. The regulatory framework is set out by:
- the Flemish Act of 25 April 2014 regarding the integrated environmental permit;
- the Walloon Act of 11 March 1999 regarding the environmental permit;
- the Brussels Act of 5 June 1997 regarding the environmental permits.
All three regions have enacted more or less comprehensive sets of rules relating to material life cycle and waste management and soil pollution. The regulatory framework is set out by, respectively:
- the Flemish Act of 23 December 2011 regarding the sustainable management of waste and the life cycle of materials and Act of 27 October 2006 regarding soil clean up and protection;
- the Walloon Act of 27 June 1996 regarding waste and Act of 5 December 2008 regarding soil management; and
- the Brussels Act of 14 June 2012 regarding waste and Act of 5 March 2009 regarding soil pollution and clean up management.
In the framework of the evolution towards a circular economy, the interplay between EU, federal and/or regional rules oftentimes entails specific obligations (e.g. use of specific materials, energy performance requirements, specific requirements for demolition, etc.).
Pursuant to EU obligations, the 3 Regions adopted specific legislation in order to integrate the requirement of an Environmental Impact Assessment (EIA) for plans and projects.
Planning policy being a regional competence, the regulatory framework is set out by:
- the Flemish Urban Planning Code of 15 May 2009;.
- the Walloon Territorial Development Code of 20 July 2016; and
- the Brussels Urban Planning Code of 9 April 2004.
NB: all three Regions have, to a greater or lesser extent, integrated urban planning law with the environmental permitting scheme, the most notable example being Flanders’ integrated environmental permit (“omgevingsvergunning”).
Belgian labor law is mainly based on the Act of 3 July 1978 regarding employment agreements.
Note that foreign contractors executing a temporary assignment in Belgium must fill in the so-called “LIMOSA-declaration”. Failure to make such a declaration may result in criminal or administrative sanctions.
Furthermore, anyone commissioning construction works with a contractor must, at the time of signature of the contract and afterwards, during the execution of the works, verify that the contractor has no outstanding fiscal or social security debts. If so, one may incur joint and several liability for such debts or will have to retain a certain percentage of the sums due to the contractor (during the execution phase of the works).
(e) Anti-corruption and bribery
Detailed rules on anti-corruption and bribery can be found in the Criminal Code. The offence of bribery is dealt with within articles 246 and following (public bribery) and articles 504bis and ter (private bribery) of the Criminal Code. It is important to know that both active and passive bribery can lead to prosecution. Penalties are increased in transnational and/or public settings.
Partnership for Development obligations
Contractors seeking to undertake construction projects in Oman need to consider the requirements of the law creating the Authority of Partnership for Development (“OAPD”) ( RD 9/2014 -“OAPD Law”). Article 4 of the OAPD requires state administration offices and companies in which the Government owns more than 50% shares, to incorporate in contracts for infrastructure projects exceeding OMR5 million in value, a clause requiring the contracting parties to interact with the OAPD. This interaction requires contractors to agree upon a program for participation in one or more Partnership for Development projects.
Health and safety;
Under the Oman Labour Law (RD 35/03 as amended -“OLL”) an employer must ensure safe site working conditions for employees. Further HSE requirements are set out in MD 686/2008. Construction contracts invariably contain contractor and employer representations, warranties and indemnities with regard to compliance with applicable HSE regulations. A contractual provision seeking to limit the employer and or contractor from liability provided for by law will be null and void.
Contractors generally assume all responsibility for on-site HSE. Construction contracts may require contractors to adhere to the employer’s HSE requirements or to formulate plans and procedures by reference to specified international standards.
Environmental matters are generally governed by the Law on Conservation of the Environment and Prevention of Pollution RD 114/01 (“Environmental Law”). Developers undertaking projects are required to obtain environmental permits on the basis of an environmental impact assessment report submitted to the Ministry of Environment and Climate Affairs (“MECA”). In addition to the Environmental Law, other critical environmental matters addressed by the legislation are:
MD 243/05 regulates the control and management of ozone depleting substances.
The Marine Pollution Law (RD 34/74) prohibits the discharge of pollutants in a pollution-free zone from a ship, shore location or oil transport facility.
The Regulations for the Management of Solid Non-hazardous Waste (MD 17/93)
(a) impose obligations on operators of solid non-hazardous waste treatment facilities and sanitary landfills; regulate the disposal of hazardous waste, including any waste arising from commercial, industrial or any other activities, which due to its nature, composition, quantity or for any other reason is hazardous or potentially hazardous to the environment. Storage facilities for hazardous waste must be licensed by the MECA.
The discharge of wastewater or sludge into the environment is governed by the Regulations for Wastewater Re-Use and Discharge (MD 145/93) and a permit for such activities is required from MECA.
(iv) Sustainable development
Sustainable development in the Oman construction sector is limited to ad hoc developer-led initiatives.
The Supreme Council for Planning of Oman (“SCP”) overseas all planning in Oman pursuant to the powers vested in it by RD 15/07. SCP issues planning regulations in the form of MDs. Ministry of Housing (MOH) may impose planning/development conditions with regard to land through grants/usufructs. Sub-division of land and plotting for construction of residential and commercial purposes must be approved by the MOH. Muscat Municipality prepares and implements urban development plans for the Muscat Governorate in co-ordination with other authorities.
Omani nationals must be registered with the Public Authority for Social Insurance (“PASI”) and expatriate workers must be registered with the Ministry of Manpower (MOM). Expatriate workers require a labour clearance/work permit from the MOM to enter Oman for work purposes, and may only be employed by employers who satisfy minimum Omanisation targets set by government from time to time. Failure to adhere to Omanisation targets may result in an employer being fined, and/or being refused future labour clearances for expatriate employees until the Omanisation target is met.
The employer is responsible for making a social insurance payment contribution to PASI equal to 11.5% of an Omani employee’s gross salary, in addition to the contribution to be made directly by the employee. Employers must pay an end-of-service benefit to expatriate employees upon completion of their term of employment under Article 39 of the OLL.
No income tax is payable by employees.
Anti-corruption and bribery.
The Penal Code, RD 7/18 and the Protection of Public Property and Avoidance of Conflict of Interest Law promulgated by RD 112/11 (the “Anti-Corruption Law”) contain Oman’s anti-bribery and anti-corruption legislation. Under the Anti-Corruption Law, government officials convicted of receiving a benefit for themselves or others in relation to the award of any contracts or projects or for acting as intermediary agents or sponsors of a company participating in the award of a government contract may be given heavy custodial sentences, fined and or removed from their government positions.
(a) Health and safety;
The Danish Working Environment Act and government orders issued thereunder set out health and safety requirements for carrying out work.
For almost any construction work, the employer is responsible for appointing one or more working environment coordinators and for ensuring that they prepare and continually update a health and safety plan for the work. The purpose of the health and safety plan is to identify risks and to establish measures to prevent injuries at the work site.
Where health and safety requirements are not adhered to, the Danish Working Environment Authority can issue specific orders on how to carry out the work and also bring the work to a stand-still until the issue has been corrected.
Danish legislation on environmental matters is wide-ranging and complex. Much of the legislation (such as pollution, contaminated soil, waste disposal, use of chemicals and nature conservation) is based on EU legislation.
Specific requirements for how constructions must be built are set out in building regulations, whereas, the planning legislation sets the framework for where constructions can be built.
The municipalities are responsible for the physical planning of both cities and rural areas in accordance with the development plans. Local development plans can also set out certain requirements for how constructions must be built, e.g. that roofs of houses within an area must be red.
In Denmark trade unions have the right to negotiate collective agreements with employers and employers’ organisations, which set out basic working conditions in the business or industry.
There is no legal requirement for a company to follow or enter into a collective agreement, but trade unions can and may decide to take industrial action, such as striking, in order to persuade a company to reach an agreement.
Foreign companies working in Denmark must notify the Register of Foreign Service Providers (RUT).
Many public authorities and other public sector employers include in construction contracts social clauses (e.g. requiring that contractors employ a certain number of apprentices) and labour clauses (e.g. requiring that all workers are entitled to working conditions as set out in collective agreements). They may also include chain liability clauses (stating that the main contractor is responsible and liable for the compliance of sub-contractors (of any tier) with labour clauses).
(e) Anti-corruption and bribery;
The Danish Competition Act prohibits agreements and conduct that directly or indirectly restrict fair competition and trade, such as market sharing and price-fixing.
An unlawful act may result in prison, a fine and/or quarantine (a ban on bidding on tenders made by a public entity for a duration of time). EU legislation will apply instead of the Danish Competition Act in cases with cross-border dimensions.
Health, safety and environment;
Regarding health, safety and environment, the Law for the Regulation of Construction and the Technical Code of Construction establish that the buildings have to reach the adequate health standards and water and air tightness so that health, hygiene and environment are dully preserved. Also, an adequate management of waste and a water evacuation system have to be warrantied.
Also, in every construction, the relevant requirements of Law 31/1995, passed on the 8th of November, for the Prevention of Labor Risks and those stated in the relevant municipal collective bargaining agreement have to be fulfilled.
The parties have to be aware and fulfill all the requirements set in the corresponding Town Urban Plan (Plan General de Ordenación Urbana) which is the one defining the authorized uses of the projected building, the buildability percentage and the urban characteristics to be respected such as the front of the building, courtyard, windows, roof, the maximum height of the building, etc.
Yes, if there is hired hand, both the Workers Regulation, approved by Royal Legislative Decree 2/2015, of 23rd of October (Ley del Estatuto de los Trabajadores), the Law for the Prevention of Labor Risks mentioned above and the relevant construction municipal collective bargaining agreement have to be fully respected.
Anti-corruption and bribery;
The promoters are obliged to accomplish the Law of anti-money laundering number 10/2010, passed on the 28th of April (Ley de prevención del blanqueo de capitals y de la financiación del terrorismo).
One of the most important requirements of this law is the need of applying the so-called “due diligence”, implying the need to perfectly identify the real title holder in any operation, the nature and goals of its economic activity and track the development of such activities.
(a) Health and safety:
According to the Construction Law, the service provider and the service user must comply with the safety, security, health, and sustainability standards during undertaking of construction services, which shall at least cover the following matters:
- Material quality standards,
- equipment quality standards,
- work health and safety standards,
- standard of construction services operational procedures,
- quality standard of the proceeds of construction services,
- operational and maintenance standards,
- manpower social security guidelines, and
- environmental protection standards.
In compliance with the safety, security, health, and sustainability standards during operational of construction services, the service provider and the service user must provide approval for the following matters:
- the results of assessment, planning, and/or drafting;
- the technical plan for construction, maintenance, demolition, and/or reconstruction process;
- the implementation of any construction, maintenance, demolition, and/or reconstruction process;
- the utilization of material, equipment and/or technology; and/or
- the results of construction services.
As mentioned in item (2) above, the Construction Law amongst others provide that a construction must amongst others cover the explanation regarding environmental aspects. This sets out the obligations of the parties in complying with the provisions regarding the environment.
There are a number of regulations that must be considered in the planning stage, including the following:
- Zoning Usage:
Law No. 26 of 2007 on Zoning Usage (“Law 26/2007”):
The Zoning Usage Permit is a permit required for zoning usage which implementation will depend on the regional policy of the respective governor/major at the project location. The Zoning Usage Permit will affect the allocation of the building function, including (i) the residential function, (ii) the religious function, (iii) the business function, (iv) the social cultural function, and (v) the special function.
Buildings may have more than one function and should be built according to the national spatial and regional plan (“RTRW”), province’s RTRW, regency/city RTRW, detailed spatial plan (“RDTR”)/zoning determination of regency/city, and/or building and environmental layout plan (“RTBL”). If an area does not have the RTRW, RDTR, and/or RTBL, the regional government may issue a temporary building permit (Izin Mendirikan Bangunan/IMB.
- Land Procurement:
In 2012, Law No. 2 of 2012 on Land Procurement for Public Interest (“Law No. 2”) was implemented by Presidential Regulation No. 71 of 2012 on Land Acquisition for Development on Public Interests as lastly amended by Presidential Regulation No. 148 of 2015, were issued and are the first comprehensive law and regulation which contain the requirement to make the required land available for public purpose development project, focusing on the need to accelerate the land acquisition process to enable development.
The Construction Law classifies the manpower in the construction sector based on the relevant knowledge related to the construction services (including among others architecture, mechanical, the environmental aspect, and the implementation management). The construction manpower comprises of qualification in the positions of:
- technician or analyst, and
All employees working in the construction services sector must possess the following documents:
- Work Competency Certificate which shall be registered by the Minister of Public Works and People’s Housing (the “PWPH”),,
- Registration Certificate of Professional Experience which is issued by the Minister of PWPH as the acknowledgment of professional experience, and
- Foreign workers must amongst others comply with the following requirement:
(a) obtain the plan to utilize foreign workers (RPTKA) and a permit to employ foreign workers (IMTA) and only limited for certain positions;
(b) foreign construction workers with a position of expert in the area of construction services who will be employed must obtain a registration certificate from the Minister of PWPH, which is issued based on the certificate of competence of the foreign construction worker under the law of such foreign construction worker; and
(c) to conduct transfer of knowledge and technology to the assistant staff (for foreign construction works in the position of expert).
(e) Anti-corruption and bribery:
A corporation can be held liable for corruption and bribery offences where the corrupt act is committed by or on behalf of the corporation as stated under Article 20 (1) of Law No. 31 of 1999 on the Eradication of Corruption Criminal Act as amended by Law No. 20 of 2001 (the “Anti-Corruption Law”). The Anti-Corruption Law further elaborates that a corrupt act is deemed to have been committed by a corporation if committed by individual(s) based on their employment or other relationship within the corporate environment.
Article 20 of the Anti-Corruption Law also allows managers to be held liable for acts of bribery committed by a company (including members of its Board of Commissioners and Board of Directors) in the context of a working or other relationship, undertaken within the environment of the corporation, alone or jointly, while representing the company. In such circumstances, the company’s directors and other authorised representatives can be prosecuted.
(a) Health and safety: The “NORMA Oficial Mexicana NOM-031-STPS-2011, Construcción-Condiciones de seguridad y salud en el trabajo.” (Official Mexican Standard NOM-031-STPS-2011 Construction- Safety and Healthy conditions in work projects”) applies to the construction works in connection with Health and Safety. http://dof.gob.mx/normasOficiales/4376/stps/stps.htm
(b) Environmental.- The “LEY GENERAL DEL EQUILIBRIO ECOLÓGICO Y LA PROTECCIÓN AL AMBIENTE” (“General law of Environmental Balance and the Protection to the Environment”) applies to all the country. However there are specific regulations in each state of the Federation and Mexico City.
(c) Planning; There are specific planning laws in each State that regulate the way in which land and building shall be executed.
(d) Employment: The Federal Labour Law, which applies in all the country, has specific provisions on construction; the IMSS Law (Mexican Social Security Law), which is also federal regulates the social security system, that has an important impact on the workforce of construction projects on Employers, Contractors, and Subcontractors.
(e) Anti-corruption and bribery.- The General Law of Administrative Liabilities (which is a Federal law) and the Criminal Code (Federal and the one applicable to each one of the 31 states and Mexico City), establish conducts that are considered corruption actions that are sanctions for individuals and companies including the ones related to construction projects. In the case of General Law of Administrative Liabilities, sanctions are of administrative nature (debarment, fines, liquidation of companies), while the Criminal Codes sanctions are of criminal nature (jail and fines).
(a) Health and safety;
According to Decrees 0171 of 2016 and 1072 of 2015, construction companies have the obligation to adopt an occupational health and safety management system to ensure worker and workplace safety. This system must include indicators and statistics, as well as risk identification, valuation and assessment systems. This process must be supervised by Health Risk Administrators.
Environmental requirements may vary depending on the kind of infrastructure that will be built. In general, there are two kinds of specific environmental requirements that constructors must meet: (i) environmental licenses, in those cases where the development of infrastructure projects may affect, according to laws and regulation, the environment, natural resources or negatively modify the natural landscape; and (ii) those infrastructure projects where, although there is no need for an environmental license, an adaptation to the environmental guide plan (PAGA) must be developed to ensure the supervision, quality and control, so that the environmental authorities can verify that the project has no negative environmental results.
However, any construction project that is meant to be done in Colombian territory, require minor environmental permits and in any case the builders must respond for environmental damage caused.
In regards to this topic, there is a distinction between public and private construction projects. In public projects, their structuring must comply with the planning principle. This principle forces the public administration to elaborate and design all the procedures needed before the beginning of the public procurement process which includes the obligation to at least have the projects’ feasibility, while private projects must meet the urban planning standards and regulation. Colombia has an extensive number of legal norms relating to specific kinds of projects.
As for the employment rules that constructors must observe, Colombia has a strong history of employee protection and therefore there are numerous requirements that govern employment relationships.
The protectionism mentioned above has led to even the law courts tend to be biased in favor of employees. This aspect is important regarding construction, where the occurrence of labor related accidents are common. So, this is why it is important for constructors to develop and execute health and safety management systems following up all legal requirements that apply.
It is important to mention that there is also a regulation in that obligates –in public projects- the constructors to have a minimum number of local employees, as well as ex-illegal armed group members and handicapped. These are all requirements that the potential constructors of a project have to take in consideration when presenting an offer in a public bidding process.
(e) Anti-corruption and bribery.
Colombia has legislated several types of regulation and crimes related with corruption and bribery and therefore constructors operating in the country must comply with all of them.
The most important of them are (i) Law 80 of 1993 that regulates the public procurement in Colombia, (ii) the anti-corruption statute (Law 1474 of 2011) that created corrective actions for the prevention, investigation and sanction of acts of corruption and the effectiveness of the control of public management, and (iii) Law 1573 of 2012 which adopted the convention to combat bribery of foreign public servants in international commercial transactions.
It its important as well to mention that in 2015, the law that aims to combat transnational corruption was enforced. This new law establishes a sanctioning regime for people -both natural and legal- who participate in a transnational bribery behavior and complements the criminal type of bribery contained in the Colombian Penal Code mentioned above.
Specific requirements exist in relation with the following topics
A) In respect of health and safety, for older buildings (generally speaking, those who were built before the ‘90s), building permits are subject to an asbestos-analysis, and in some cantons, to a PCB/leaded-paint analysis. In case the building contains asbestos (or PCB/leaded-paints), special requirements for workers must be complied with by the contractor (duty to report, paper trail, special equipment to be used by the workers, etc.) and the relevant materials must be eliminated in authorized waste disposal areas.
B) In respect of environmental regulations, in case of existence of hazardous material and/or soils pollution, the parties have to comply with specific federal/cantonal provisions regarding the removal and the waste management and treatment of such hazardous material/pollution. The sale of polluted sites in particular requires a special authorization.
C) In respect of planning regulations, the most important point is that the construction project complies with the planning and zoning regulations applicable to the zone area where the construction project is located, it being specified that such regulations are usually cantonal and/or communal depending on the Canton. In particular, the construction project has to comply with the permitted allocation and the construction regulations of the area, which are laid down in legal acts and/or in zoning plan or neighborhood plan. On top, projects in touristic areas having more than 20% of holiday homes must comply with the requirements of the so-called “Lex Weber”.
D) In respect of employment regulations, the contractor has to comply with general principles such as equality of treatment, non-discrimination, rules applicable to foreign workers, pension funds and social insurances, etc. The contractor has further to comply with provisions on health and safety at work with respect to its employees.
E) In respect of anti-corruption provisions, no specific rules apply to the construction sector solely, and standard anti-corruption and bribery regulations apply.
(a) Health and safety;
Model work, health and safety ('WHS') laws have been implemented across jurisdictions to achieve significant harmonisation. The common statutory regime imposes obligations on persons conducting a business or undertaking to provide safe work premises, maintain safe plant, manage risk, and obtain insurance and workers' compensation insurance for employees. Specific obligations are also imposed on entities which have been appointed as a principal contractor for building and construction work.
At a federal level, a construction project that is likely to have a significant impact on nationally protected matters, such as threatened species of flora or fauna and heritage properties, may be referred to the environment minister. The minister may approve a project unconditionally or with conditions, refuse a project, or decide that federal assessment is required.
Environmental requirements vary between jurisdictions. Generally, approval or licencing will be required if the project generates air pollution, noise, if it impacts biodiversity or heritage items, or involves environmentally hazardous chemicals or contaminated land
Planning legislation regulates development within specific zones. Where a construction project is permissible with consent in a zone, a development application is submitted to the designated planning authority and will be subject to specific development controls (e.g. building height, setbacks and floor space ratio). Where a construction project is permitted without consent, it can proceed without a development application (although other building and environmental consents may be required).
Employment relationships are generally governed by the Fair Work Act 2009 (Cth), which sets national minimum standards for maximum weekly hours, leave, notice of termination and redundancy pay. The Australian employment regime is unique in the application of 'awards' with force of law which establish additional minimum standards for employers and employees in industry and occupational-based sectors. Employees in the construction industry may be covered by the Building and Construction General On-site Award 2010, for example. Additional employment obligations are imposed on entities that have tendered for Commonwealth-funded work. Industrial disputes are subject to a Conciliation and Arbitration legal system which regulates how industrial action may proceed and allows for judicially imposed settlement of disputes.
(e) Anti-corruption and bribery.
Under the Commonwealth Criminal Code, it is an offence to provide, offer to provide, or cause a benefit to be offered or provided to a person that is not legitimately due to that person. The offer must be made with the intention of influencing a foreign public official to obtain or retain business or a business advantage that is not legitimately due to them.
The Code imposes penalties of either imprisonment or significant fines for individuals and corporations. Additionally, if a contractor has illegally obtained the award of a contract, it will likely be void and unenforceable.
Some states have independent corruption investigatory bodies, with significant legal powers to investigate corruption affecting government bodies.
(a) Health and safety;
The Construction Client Regulations require that a custom health, safety and environment plan is created before the project is started. The plan must take into account all potential risks to health and safety.
In Norway there are strict regulations which aim to protect the environment.
For example, the Planning and Building Act of 2008 and the Pollution Act of 1981 set out requirements relating to energy consumption and the environmental impact of building materials used, the completed building's indoor environment, energy used during the building's lifetime, and what impact it has on the external environment.
A breach of environmental regulations may constitute a criminal offence.
Most construction work requires necessary permits from the planning and building authorities before work can commence. For larger projects, obtaining building permission happens in two stages. Initially an application for a general permission must be made. Only after the first application has been approved, the application for a project start-up permission can be made. The latter provides the right to commence the work.
In relation to employment, parties should be aware of that minimum wage rates are mandatory in all construction projects and apply to both skilled and unskilled workers on construction sites.
(e) Anti-corruption and bribery.
The Norwegian Penal Code criminalises active and passive bribery, trading in influence, fraud, extortion, breach of trust and money laundering. A company can be held criminally liable for corruption offences committed by individuals acting on its behalf.
(a) Health and safety;
Swedish law includes comprehensive legislation on work environment. The Work Environment Act and associated statutes contain specific provisions for construction projects. Under these provisions, “a person who orders the execution of building or construction works”, i.e. usually the owner/employer under the construction contract, is responsible not only for his own employees, but carries an overall responsibility for the coordination of work environment matters in the project. The obligations include, among other things, to prepare a work environment plan and to appoint a work environment coordinator for both the planning and design phase and the on-site construction phase. These obligations can be delegated to a contractor, provided that the contractor has a sufficiently independent role in the project.
Swedish law includes comprehensive environmental legislation, including the Environmental Code and various special statutes. Environmental permits will usually be required for large construction projects, e.g. for water or groundwater activities.
Swedish law includes comprehensive planning and building legislation, including the Planning and Building Act and associated statutes. There is a system with municipal zoning plans that have to be complied with, and building, ground or demolition permits are required for all construction projects.
Swedish law includes comprehensive legislation in the field of employment. The labour unions in Sweden, including the Construction Workers Union, have a strong position and regularly go on strike. Blockades and other labour actions are often taken against foreign companies which do not have collective bargaining agreements or do not respect labour laws that are equivalent to the laws in Sweden.
(e) Anti-corruption and bribery.
Sweden has anti-corruption and bribery laws that are similar to the laws in most other Western jurisdictions. Bribery is regulated under the Penal Code and is a criminal offence. There is no distinction between bribery of public officials and private persons. However, there is usually a higher risk that a benefit given to a public official will be deemed to be a bribe.
(a) Health and safety
The Occupational Safety and Health Ordinance (Cap. 509) provides for the safety and health protection to employees in workplaces, both industrial and non-industrial. This ordinance stipulates the role that employers, occupiers of premises and employees have to play in creating a safe and healthy workplace. The Occupational Safety and Health Regulation (Cap. 509A) sets down some basic requirements for accident prevention, fire precaution, workplace environment control, hygiene at workplaces, first aid, as well as what employers and employees are expected to do in manual handling operations.
The Factories and Industrial Undertakings Ordinance (Cap. 59) provides for the safety and health protection to workers in the industrial sector. This ordinance imposes general duties on proprietors and persons employed at industrial undertakings to ensure safety and health at work. Under this ordinance, there are 30 sets of subsidiary regulations (including the Construction Sites (Safety) Regulations (Chapter 59I)) covering various aspects of hazardous work activities in factories, building and engineering construction sites, etc. The subsidiary regulations prescribe detailed safety and health standards on work situations, plant and machinery, processes and substances.
The Environmental Protection Department of the Hong Kong Government is the main body that enforces the anti-pollution laws, which include Air Pollution Control Ordinance (Cap. 311), Noise Control Ordinance (Cap. 400), Waste Disposal Ordinance (Cap. 354), Water Pollution Control Ordinance (Cap. 358), and Dumping at Sea Ordinance (Cap. 466).
These laws encourage operators not to pollute, and to provide a framework for offenders to be punished. Penalties generally include fines of up to HK$5 million (approx. US$640,000) and provisions for jail terms.
The principal body responsible for statutory planning in Hong Kong is the Town Planning Board (“TPB”). It is formed under the Town Planning Ordinance (Cap. 131).
Statutory plans known as Outline Zoning Plans (“OZPs”) are prepared by the TPB to show the land use zones, development parameters and major road systems of an individual planning area.
Prior to commencement of development, in order to know whether an application to the TPB is required, a developer must check the land use zone of the site/premises on the relevant OZPs to which the proposed use or development relates and the terms of the OZPs.
(d) The Construction Workers Registration Ordinance (Cap. 583) prohibits unregistered persons from carrying out construction work on a construction site.
A contractor may also be liable to pay wages and compensation to its sub-contractor’s employees.
The Employment Ordinance (Cap. 57) provides the general statutory framework for employment issues. One specific part of the Ordinance relevant to construction protects subcontractors’ employees by providing a mechanism for an employee to claim wages, which its own employer fails to pay within a specified time, from the principal contractor or any superior subcontractor (which that party may then recover from the employee’s employer).
The Employees’ Compensation Ordinance (Cap. 282) provides that when an employee of a sub-contractor is injured at work, the principal contractor is liable for any claim of compensation made by the injured employee. The principal contractor may, however, take action to recover from the sub-contractor any payment which he is required to make.
(e) Anti-corruption and bribery.
The Prevention of Bribery Ordinance (Cap. 201) is the main anti-corruption legislation in Hong Kong; it is enforced by the Independent Commission Against Corruption. This Ordinance outlaws corruption in both the public and private sector. Under this Ordinance:
• It generally is illegal for public servants to solicit or accept any advantage. The offeror of the advantage also is guilty of an offence.
• In relation to public contracts, it is an offence for public servants to solicit or accept any advantage as an inducement to or reward for giving assistance or using influence in matters relating to public contracts. The offeror of the advantage also is guilty of an offence. It also is unlawful to offer any advantage to other persons for the withdrawal of a tender for public contracts or for that other person’s refraining from bidding at any auction conducted by any public body.
• In the private sector, no agent (usually an employee) is allowed to solicit or accept any advantage without the permission of his principal when conducting his principal's affairs or business. The offeror of the advantage also is guilty of an offence.
a) Health and safety
The Health and Safety at Work Act 1974 sets out the basic health and safety duties of a company, its directors, managers and employees. Extensive obligations are imposed on employers, and individual director and company officers can be held criminally responsible for health and safety offences. Under the Corporate Manslaughter and Corporate Homicide Act 2007 companies can be convicted of corporate manslaughter.
The Construction (Design and Management) Regulations 2015 affect most construction projects in the UK. Their main purpose is to ensure that the employer appoints competent consultants and contractors, and a Principal Designer, although duties are imposed on all the main participants.
There is a trend towards increasingly stringent environmental controls, largely through the adoption of EU legislation. The main environmental law regimes address contaminated land, water pollution, nuisance, permitted emissions, waste, asbestos, the EU Emissions Trading Scheme, various energy efficiency measures and protection of biodiversity, habitats and wildlife.
BREEAM is the Building Research Establishment’s Environmental Assessment Method, which sets best practice standards for the environmental performance of buildings through design, specification, construction and operation. Although not compulsory, many developers, local planning authorities and government projects may require BREEAM certification (or equivalent) for new or refurbished buildings.
Any “development” of land under the Town and Country Planning Act 1990 (including a change in use) requires planning permission.
Applications must be submitted to the local planning authority or the Secretary of State. An application must be decided within 8, 13 or 16 weeks depending on the nature of the development and whether an environmental impact assessment is required. If granted, planning permission may be subject to certain conditions, obligations or a “community infrastructure levy”.
If planning permission is refused, the applicant has the right of appeal to the Secretary of State. A grant of planning permission cannot be appealed, but a defective decision can be challenged by way of judicial review within six weeks of the decision.
Planning applications for “nationally significant infrastructure projects” are examined by the Planning Inspectorate, which provides a recommendation to the Secretary of State as to whether a development consent order (DCO) should be granted. Certain developments have their own hybrid Act of Parliament, such as the Crossrail Act 2008.
Subcontracting is rife throughout the construction industry. Subcontractors are generally accepted to be independent contractors rather than employees, so contractors will not have vicarious liability for the negligence of a subcontractor where it carries out the work for which it was engaged, unless, exceptionally, it can be shown that there was a relationship analogous to employment.
Where there is a service provision change or a transfer of all or part of an undertaking, for example where a developer changes contractor, brings the work in-house or outsources various works and services, the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) may apply. Employees automatically transfer across into the employment of the transferee, there are obligations to inform and consult with representatives, and employees have enhanced protection against dismissal.
The Modern Slavery Act 2015 requires large commercial organisations that operate in the UK and have a turnover of £36 million to prepare an annual statement setting out what steps have been taken to ensure that their business and supply chain are free from slavery and human trafficking.
e) Anti-corruption and bribery
The Bribery Act 2010 captures offences committed by anyone inside the UK. For people or companies with “a close connection with the UK”, the Act extends to the same offences committed outside of the UK.
The four main offences are bribing another person, being bribed, bribery of a foreign public official, and failure of a commercial organisation to prevent bribery. Where the Act is breached, the consequences can include potentially unlimited fines, up to ten years’ imprisonment, and debarment from competing for public contracts.
(a) Health and safety;
The federal Occupational Safety and Health Act, 29 U.S.C. Sec. 15 (1970) extends to all employers and their employees in all 50 states, the District of Columbia, Puerto Rico and other territories under federal jurisdiction. The law was enacted to ensure worker and workplace safety, with the intent to require employers to provide workplaces free from recognized hazards to safety and health, such as exposure to toxic chemicals, excessive noise levels, mechanical dangers, heat or cold, or unsanitary conditions. The law is enforced by the Occupational Safety and Health Administration (OSHA), which is a division of the U.S. Department of Labor.
OSHA has enacted numerous regulations governing health and safety for construction activities. Any entity performing construction work within the United States or its territories must comply with OSHA regulations governing construction safety. See 29 CFR 1926. The OSHA standards for construction govern a diverse range of safety and health issues from safety training and education, to the types of personal protective and life safety equipment required. Careful review and compliance with these regulations is important, as substantial fines can be assessed for non-compliance.
In addition to OSHA, many states have enacted their own occupational safety and health laws. For example, Maryland has adopted the Maryland Occupational Safety and Health Act (MOSH Act) for all non-federal projects within the State of Maryland. Under the MOSH Act, all employers are required to comply with health and safety regulations adopted by the Maryland Department of Labor, Licensing, and Regulation -- Division of Labor and Industry. These regulations closely mirror the Federal Occupational Safety, but include a number of distinct substantive regulations. Failure to comply with MOSH regulations can result in significant daily penalties as well as criminal liability for willful violations.
Maryland is not unique. Many other states, such as Alaska, California, Hawaii, Indiana and the District of Columbia also have state health and safety plans governing construction projects. Knowing and understanding the obligations imposed upon employers through these regulations is critical to avoiding costly penalties that can undermine the success of a construction project.
Construction projects involving clearing, grading, excavation or demolition may require compliance with federal environmental regulations. In addition, if the Project will involve dredging or the discharge of fill material into a waterway or wetland specific sections of the Clean Water Act apply and strict compliance with those sections is required. Additional requirements under the Clean Air Act may apply to heavy-duty trucks used for construction and may require regulation of dust emissions at your construction site. Other requirements apply to the use of hazardous materials as well as to requirements mandating reporting of any spill of a hazardous chemical.
Most of the environmental requirements applicable to U.S. construction projects are regulated by the United States Department of Environmental Protection (US EPA). The US EPA has, however, delegated authority to states to regulate certain aspects of the Clean Air Act as well as other regulatory programs. Non-compliance with environmental regulations can result in civil penalties and even criminal liability.
As noted below, most jurisdictions have land use and zoning laws that must be adhered to. Knowing the applicable zoning laws and allowable uses for your property prior to commencing design and construction is imperative. Failure to comply with applicable zoning or land use laws can result in fines and, potentially, demolition of non-conforming work. Typically, these issues are addressed during the permitting phase of the project. At that stage the local permitting authority reviews completed construction drawings for compliance with building codes and land use and zoning laws prior to issuing a construction permit.
In the United States, there are numerous requirements that govern employment relationships for construction. For example, when performing construction work in the United States, it is common to encounter union labor. Special legal requirements apply when union labor is used. Even if union labor is not used, however, there are several other employment requirements applicable to construction projects.
In 1935, the National Labor Relations Act (NLRA) was passed in the United States. The NLRA provides the framework and foundation for collective bargaining between unions and employers. Collective bargaining is the process by which an employer and a union negotiate wages, benefits and other terms of employment. The NLRA is administered by the National Labor Relations Board (NLRB). The NLRB has exclusive jurisdiction over certain labor disputes between an employer and a union including the right to investigate unfair labor practices, levy charges, bring cases and issue enforcement orders. The nuances relating to the use of union labor in the United States could fill an entire chapter of its own. Understanding the requirements imposed by the NLRA and the implementing regulations promulgated by the NLRB, however, is important if union labor will be used during any aspect of the construction process.
Other major employment laws applicable to construction in the United States include the Fair Labor Standards Act and corresponding state laws (e.g., Maryland Wage and Hour law), state wage payment and collection laws and the Davis-Bacon Act.
The Fair Labor Standards Act (FLSA) is a federal law that mandates minimum wage, overtime pay and youth employment protections. While the FLSA does exempt some employees (e.g., certain executive, administrative and professional employees) construction workers are typically non-exempt and covered by FLSA. As a result, construction employees are entitled to be paid at least a federal minimum wage as well as time and a half for all hours worked over 40 in a work week. Many states have also enacted their own wage and hour laws that are applicable to most construction employees. Maryland, for example, requires employers to comply with state minimum wage laws and provides an employee with a private cause of action against an employer for violating the law. Numerous other states have enacted similar laws. Failure to comply with FLSA or applicable state laws can result in significant penalties and damages. In some instances employers may also have to pay the legal fees incurred by an employee to recover his or her unpaid wages.
Finally, the Davis-Bacon Act, and its corresponding regulations, mandates the wages paid for work performed on any federal construction project. The Davis-Bacon Act applies to all federal government or District of Columbia contracts in excess of $2,000 for the construction, alteration, or repair of public works. See 49 U.S.C. Sec. 3141-3148. Under the Davis-Bacon Act, all contractors and subcontractors are required to pay workers in accordance with the wage rates set by the Secretary of Labor. If a contractor fails to comply with the Davis-Bacon Act, the government can withhold payments due to the contractor under the contract. As with wage and hour laws, many states have enacted laws similar to the Davis-Bacon Act requiring contractors and subcontractors to pay prevailing wage rates on state construction projects.
(e) Anti-corruption and bribery.
The United States Department of Justice (DOJ) aggressively prosecutes bribery and corruption both within the United States and globally. The principal U.S. law governing bribery and anti-corruption is the Foreign Corrupt Practices Act (FCPA), 15 U.S.C. Sec. 78dd-1, et seq. In addition, 18 U.S.C. Sec. 201 makes bribery of public officials and witnesses in the United States a crime.
Pursuant to 18 U.S.C. Sec. 201, it is a crime to directly or indirectly offer or promise anything of value to any public official or person who has been selected to be a public official with the intent to influence an official act or induce such person to do any act in violation of the lawful duty of such person. 18 U.S.C. Sec. 201(b). It is also illegal to directly or indirectly give or promise anything of value to a public official, former public official or person selected to be a public official because of an act performed by such person. See 18 U.S.C. Sec. 201(c). In short, contractors operating in the United States cannot bribe a public official or offer a gratuity after benefiting from an official act. While bribery is somewhat self-explanatory, what constitutes a gratuity is not always intuitive. Under United States law, an illegal gratuity is any gift to a public official after an official act occurred and does not require any quid pro quo. See United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 404-05 (1999). To avoid criminal liability construction professionals should avoid making any gifts to public officials in the United States. Otherwise, such professional expose themselves to potential criminal liability.
The FCPA prohibits offering to pay, paying, promising to pay, or authorizing the payment of money or anything of value to a foreign official in order to influence any act or decision of the foreign official in his or her official capacity or to secure any other improper advantage in order to obtain or retain business. The FCPA’s provisions can apply to conduct both inside and outside the United States. Construction entities operating within the United States, even if not domestically incorporated, must be aware of, and comply with, the FCPA. This is because the FCPA applies to foreign nationals or entities that, either directly or through an agent, engage in any act in furtherance of a corrupt payment while in the territory of the United States or that involves interstate commerce (this can be triggered by simply placing a telephone call or sending an email, text message or fax from to or through the United States or by sending a wire transfer from or to a U.S. bank). The law can also reach to officers, directors, employees, agents or stockholders acting on behalf of such persons or entities that are subject to the FCPA.
For example, in one recent case a vendor of air-conditioning, ventilation and refrigeration equipment and services supplier, through its subsidiaries, paid approximately $522,500 to an intermediary who used the funds to pay certain government officials in the UAE. Payments were made to secure contracts related to the construction of a government-owned luxury hotel. Although vendor did not make any of the payments to the UAE officials itself, vendor knew that its intermediary was making the payments on its behalf to secure certain contracts. Vendor made similar payments to obtain contracts in Iraq, Bahrain, Egypt, India, Turkey, China, Nigeria and various other European and Middle Eastern Countries. The payments made by Vendor to its intermediary were recorded as “consultancy payments.”
As a result of these payment, the U.S. Department of Justice and the U.S. Securities and Exchange Commission filed criminal and civil charges against Vendor. Those charges included violations of the FCPA’s anti-bribery provisions, failure to devise and maintain internal controls to prevent and detect violations and failure to accurately record the bribes. Vendor paid $10 million to settle the criminal charges and was required to engage an independent FCPA compliance monitor for a period of three-years. Vendor’s settlement with the Securities and Exchange Commission included disgorgement of $8,949,132 in profits, payment of $1,083,748 in prejudgment interest and a civil penalty of $2 million.
The United States prosecutes bribery and corruption cases aggressively. Construction professional operating in the United States must be sure to comply with such laws. This includes insuring compliance on projects outside the United States. Failure to comply with these laws can result in massive penalties, disgorgement of profits and criminal liability.
(a) Health and safety;
Employer is obliged to provide healthy and safe work environment to the employees, i.e. to the engaged personnel. Rights, obligations and liabilities in regard to health and safety at workplace have to be regulated either by general or individual act of the employer.
The main law that regulates the respective area is Law on safety and health at workplace. Aside from the said law, in terms of health and safety at construction sites, Republic of Serbia ratified the ILO Convention No. 167 on Safety and Health in Construction which provides general rules that have to be followed by the employers who engages personnel for the work on construction sites.
Also, two additional acts regulate matter of safety and health at construction sites - Regulation on safety and health at workplace on temporary and movable construction sites and Rulebook on safety at work during conducting construction works.
One of the main duties stipulated by the aforementioned bylaws is that the principle constructor is obliged to appoint coordinators for health and safety for the phase of project development and for the phase of conducting the construction works. Obligation of the coordinator for health and safety for the phase of project development is to prepare the Prevention Measures Plan. Once the construction works begin, the coordinator for health and safety for the phase of conducting the construction work shall oversee whether the Plan is being followed by all the contractors and whether it any amendments should be made or not. Therefore, aside the persons in charge for health and safety at workplace/construction site, which shall be appointed by each employer, principle constructor is responsible to appoint the aforementioned coordinators. Number of coordinators depends on the number of subcontractors, i.e. it should be proportional. If the aforementioned coordinators are not appointed, principle constructor could be liable for misdemeanour, i.e. penalized with a pecuniary fine of up to RSD 1.000.000.
The Law on Environmental Protection prescribes the general obligations on environmental protection, as well as the special obligations which must be fulfilled regarding the environmental issues before/during and after finishing of the construction.
The investors must comply with the general rules regarding the environmental protection, but in some cases, depending on the type of the future facility and/or the location, the investors might be obliged to prepare the Environmental Impact Assessment (EIA). The contents of the Environmental Impact Assessment always depend on the type of the facility and location and, prior to preparing the EIA the competent state body renders special decision on the contents of the future EIA for the specific project. During preparation of the EIA the investors shall have to apply the sectorial laws (Law on Water, Law on Forests, Law on Protection of Nature, Law on Agriculture Land) and communicate with different authorities in order to finalize the EIA in accordance with legal requirements. Therefore the preparation of EIA may be time consuming.
For some projects and in the process of preparation and enactment of specific spatial planning documents the preparation of the Strategic Environmental Study is required.
Technical documentation for the construction of facilities is to be prepared by companies, respectively other legal person / entrepreneurs that are registered in the register of business entities. Technical documentation for the construction of facilities, for which the building permit is issued by the ministry in charge of construction matters, i.e. a competent authority of the autonomous province, may be produced by a company, i.e. other legal person registered in the appropriate register for production of technical documentation for that type of facilities which employs persons holding a license of a responsible designer who have appropriate professional results in the production of technical documentation for that type and purpose of the facility.
Such responsible designers are natural persons with a college degree of the appropriate profession, i.e. course, in the academic studies of the second degree (master academic studies, master of professional studies, specialist academic studies), i.e. in the basic academic studies lasting at least five years and holding a license to design, issued in accordance with the Law on Planning and Construction. The licenses of responsible designers may be obtained by a natural person holding a college degree of the appropriate profession, i.e. course, with a passed professional exam and at least three years of work experience with professional results in preparing technical documentation and with references from at least two responsible designers, or the Engineering Chamber of the Republic of Serbia.
The investor appoints a head designer who is responsible for compliance of the extract from design with the information from the design intended for the building permit, and who also confirms, with his signature and seal of personal license, that all individual parts of the design are harmonized. The head designer has to fulfil the requirements for the responsible designers, as pointed out herein above.
Labour law represents the basic law that regulates employment and labour relations in Republic of Serbia. Employers are obliged to provide the employees with the minimal rights granted by the respective law. Otherwise, they could be responsible for misdemeanour.
Labour law regulates rights and obligations of both employers and employees and should be applied regardless of the business activity of the employer. Therefore, in terms of employment and labour relations, there are no specific rules that should be applied to the personnel engaged on the construction sites.
Having in mind the aforementioned, depending on the basis of engagement, engaged personnel has to be provided with adequate receivables, rests during work, as well as daily, weekly rest and annual leave, etc.
Employers can engage foreigners for conducting construction work in Republic of Serbia, but only upon conducting the procedure of obtaining mandatory residence and work permits (except in cases when respective permits are not necessary).
(e) Anti-corruption and bribery;
The anti-corruption and bribery legal framework regarding construction does not exist in Serbia.
However, since every real estate has to be inscribed in the Real Estate Cadasters, certain practices may occur regarding the anti-corruption and bribery regulation. The Real Estate Cadastres are state bodies whose employees represent state servants and therefore official persons which are obliged to comply with the anti-corruption and bribery rules.
The main laws that regulate the respective area are Criminal Law and Law on the Anti-corruption Agency. Aside from the said laws, in terms of anti-corruption and bribery, Republic of Serbia ratified the Civil Correction Convention on Corruption adopted of 4 November 1999 in Strasbourg, The Criminal Law Convention on Corruption adopted on 27 January 1999 in Strasbourg and The United Nations Convention against Corruption, adopted in New York on 31 October 2003.
Criminal law regulates the receiving of bribery by official person, as well as giving of bribery to the official person as a criminal offence, which can lead to a prison sentence from 2 to 12 years of prison sentence for the official person receiving a bribe and a prison sentence from 6 months to 5 years in case of giving the bribe.
The Law on the Anti-corruption Agency prescribes that the official person must not receive a gift in connection with performing a public function, except for a protocol gift, which cannot be money and securities. An official person who has been offered a gift which he/she is not allowed to accept shall reject such offer and inform the one offering the gift that the gift, if accepted, will become public property. If the official person could not reject the gift, he/she shall hand over the gift to the body competent to manage property in public ownership and submit a written report. Otherwise, the official person could be responsible for misdemeanour with a fine ranging from RSD 50,000 to RSD 150,000. Additionally, the security measure of prohibiting the responsible person from performing specific activities may be ordered against an official person for a period of one year.
(a) Health and safety;
Federal Law No.8 of 1980 contains an ‘Industrial Safety, Preventative Measures, Health and Social Care for Workers’ section which requires the Employer to ensure the health and safety of their employees, including adopting “all the safety measures prescribed by the Ministry of Labour and Social Affairs”.
Individual Emirates may also have specific regulations that govern the health and safety of labourers; indeed Abu Dhabi and Dubai have published guidelines intended to improve health and safety standards for labourers in the construction sector. In 2016 Abu Dhabi released the Abu Dhabi Building Codes, modelled on those published by the International Codes Council. The codes consider construction safety and environmental protection. Breaches of some health and safety laws can attract criminal liability under the UAE Penal Code.
Most construction contracts oblige the Contractor to ensure the safety and security of the site, with some contracts requiring the implementation of a health and safety system or plan – this is largely dependent on the Employer’s requirements. Commonly, the health and safety obligations are limited to those set out in the FIDIC Red Book 1999 without significant amendment (Clause 6). Sub-Clause 6.2 of FIDIC requires that the Contractor observes standards (of wages and other conditions) which are not lower than the general levels observed locally by other Employers.
Unless the Employer imposes particular requirements, the contractual obligations to the environment typically reflect the standard established in the FIDIC Red Book 1999 – taking all reasonable steps to protect the environment and to limit damage and nuisance to people and property from pollution, noise and other results of his operations (Sub-Clause 4.18).
The Contractor is also obliged to comply with its obligations under the local applicable law; being the Federal Law No. 24 of 1999 for the protection and development of the environment.
In 2016 Abu Dhabi released the Abu Dhabi Building Codes, modelled on those published by the International Codes Council. The codes address a number of green building factors, including, light, ventilation, use of utilities and energy efficiency. The Abu Dhabi Codes also consider construction safety and environmental protection. The Green Building Regulations and Specifications released in Dubai are focussed solely on green building aspects and apply to all buildings in Dubai. These movements are in line with the Abu Dhabi 2030 Vision, and the Dubai Strategic Plan 2015, which each set environmental targets for the UAE, particularly in relation to emissions and sustainable building practices.
Planning law in the UAE is still at the early stages of development. Each Emirate has created its own system for reviewing and assessing applications for new development. Perhaps unsurprisingly, the two most sophisticated systems are those found in Dubai and Abu Dhabi.
Dubai’s vision for the Emirate can be found in the Dubai 2020 Urban Master Plan (the “Dubai Plan”). The Dubai Plan covers the Emirate of Dubai including the offshore areas within 12 nautical miles and the desert and rural areas (excluding the Hatta area).
The plan was developed by the Dubai Municipality in coordination with key government entities and other stakeholders including the development community. The stated objectives of the plan are to ensure the efficient utilisation of existing infrastructure, increasing investments opportunities, creating an integrated land use and transportation/mobility network, protecting key economic assets, preserving the environment and diversifying energy sources.
Although there is no planning law as such, there are a number of Executive Council Resolutions and Decisions which provide some guidance on the way that development is regulated.
In Dubai, no development can be lawfully carried out without the necessary permit. The type of permit required is determined by the development activity being proposed. For example, a demolition permit is require before a building or part of a building can be lawfully demolished. A list of the various permits and the forms required to apply for these permits can be obtained on the Dubai Municipality website.
There is no public register of permits. Therefore, when undertaking property due diligence on the purchase of property and attempting to confirm whether or not the required permits were obtained for the development, these enquiries should be made of the seller.
Abu Dhabi’s strategic plan is outlined in 'Plan Abu Dhabi 2030 - Urban Structure framework Plan' (the “Abu Dhabi Plan”) which was prepared by the Abu Dhabi Urban Planning Council (since merged with the Abu Dhabi Municipality). It provides conceptual solutions to shape the growth of the Emirate addressing the following issues:
- land use
- open space
- image of the capital city.
The Abu Dhabi Plan is supplemented with a Development Code which includes detailed policy criteria and use regulations against which proposed developments are assessed.
It is mandatory for developers to propose master plans in line with the Abu Dhabi Plan. All new master plans go through a rigorous approval process. The details and required documents can be found on the Department of Urban Planning and Municipalities (the “DUPM”) website.
Permit applications must be submitted to the DUPM together with documents, drawings and plans relating to the buildings or the works. Drawings and plans must be approved by an engineering firm. The DUPM is required to determine the application within 30 days of receipt of a complete submission. Should an application be refused, the rejection must be accompanied by reasons. The absence of a decision shall be deemed refusal.
As in Dubai, a building cannot be occupied until such time as a building completion certificate has been issued. There is also no public register of permits and therefore copies of the relevant permits must be obtained from the seller.
Employment is governed by Federal Law No. 8 of 1980 on Regulation of Labour Relations. This law prohibits the employment of non-nationals (i.e. non Emirati) without:
(a) obtaining approval from the Labour Department; and
(b) obtaining a work permit which is in accordance with the requirements of the Ministry of Labour and Social Affairs.
The welfare of labourers is also closely regulated in the UAE (see above at “Health and Safety”).
Construction contracts will typically make the Contractor solely responsible for obtaining and maintaining any required visas, and repatriating individuals (unless these costs are incurred in certain circumstances, i.e. following termination for convenience under FIDIC Red Book 1999).
Working hours are also regulated, with the standard employment being a maximum of 48 hours per week, with exceptions made for management or supervisory roles. During Ramadan, the working day is reduced by two hours. Working hours are also adjusted to take into account the summer heat (see above at “Health and Safety”).
(e) Anti-corruption and bribery.
These types of practices are governed by Federal Law 3 of 1987 (the Federal Penal Code). Articles 234 – 239 prohibit and criminalise bribery by private individuals or public officials.
The Penal Code sets out penalties for those who offer and accept bribes; however the penalty that applies is different for the public and private sectors. In the public sector, an individual can be penalised for offering or accepting a bribe –and in either case, will be required to reimburse the benefit, pay a fine equivalent to the benefit, and may be subject to imprisonment (maximum 5 years for offering and 5 – 10 years for accepting).
(a) Health and safety;
Most German health and safety laws apply to the employment sector (e.g. Labor Protection Law (Arbeitsschutzgesetz), social security code (Sozialgesetzbuch - SGB) and workplaces ordinance (Arbeitsstättenverordnung, Occupational Safety Act (Arbeitssicherheitsgesetz), Ordinance on Hazardous Substances (Gefahrstoffverordnung) Safety regulations of the professional associations (Sicherheitsvorschriften der Berufsgenossenschaften) Construction Site Ordinance (Baustellenverordnung)).
The protection of the environment is anchored in German constitutional law (Article 20a of the German constitution). However, there is no central body for environmental law. Legislative provisions concerning environmental issues are widely scattered across many laws. A central provision of German environmental law is the Federal Nature Conservation Act (Bundesnaturschutzgesetz - BNatSchG), another the Federal Pollution Control Act (Bundesimmissionsschutzgesetz - BImSchG).
Planning law in Germany consists of the technical planning and construction planning law. In accordance with special regulations (Federal Highway Act - FStrG, General Railway Act - AEG, Air Traffic Act - LuftVG, Energy Industry Act - EnWG), a plan approval procedure must be carried out regularly. Otherwise, the regulations of the Building Code (BauGB) apply to "normal" construction projects.
The employment sector is highly regulated in Germany. Many German employment laws are based on European legislation. German employment law is codified in the German Civil Code (Bürgerliches Gesetzbuch – BGB), in the German Protection Against Dismissal Act (Kündigungsschutzgesetz - KSchG), in the German Labor Protection Act (Arbeitsschutzgesetz) and in many other laws and regulations.
(e) Anti-corruption and bribery.
The most relevant anti-corruption provisions are laid down in the paragraphs 331 seqq. of the German Criminal Code (Strafgesetzbuch – StGB). However, there are anti-corruption provisions in other laws like the law on combating international corruption (Gesetz zur Bekämpfung internationaler Bestechung).
Rules in the area of health and safety are found in the Building Codes.
Rules in the environmental area are found in a host of environmental statutes.
Rules in the area of anti-corruption and bribery are found in the Criminal Code.
(a) Health and safety;
French law provides for numerous regulations, set notably by the French Labor Code (Code du travail), in relation to health and safety applicable to a construction or engineering project. These rules provide for obligations for all the parties involved in the project, including the consultants, the contractors and even the project owner himself.
They include, inter alia:
- the obligation for the project owner to appoint, from the design stage, a specific consultant, the health and safety coordinator (Coordonnateur Sécurité-Protection-Santé), who will be in charge of the coordination of the different contractors involved on the project for health and safety issues,
- numerous health and safety prescriptions to be applied by the contractors on the work site to protect the workers,
- the obligation for the project owner to have a specific maintenance file (dossier d’intervention ultérieur sur l’ouvrage) issued after completion of the works.
Non-compliance with health and safety regulations can constitute a criminal offence sanctioned by the Criminal Code (Code Pénal).
Environmental regulations provide for several obligations, which will depend on the type of projects. For instance:
- building construction projects in France have to comply with thermic regulations (the so-called RT 2012 regulations), aiming to optimize the energy consumption of the future building;
- some projects (especially industrial or logistic projects) are subject to regulations relating to facilities classified for environmental protection (installations classées pour la protection de l’environnement - ICPE). These regulations will depend on the type of activity that will be carried out within the project after its completion. These rules entail, inter alia, an obligation to secure a prior declaration or authorization prior to the start of construction works and prior to the start of the operation of the project;
- several types of mandatory environmental assessments, declarations or authorizations may also be applicable to a construction project, depending on whether such project will have an impact on the environment, agricultural land, or the aquatic environment;
- depending on the use contemplated for the project, existing site conditions with respect to pollution may lead to removal and/or monitoring obligations;
- obligations apply in case of works to be performed in a site containing hazardous materials (such as asbestos). This includes the obligation to perform specific diagnostics prior to the start of the works and to comply with specific regulations for the performance of the works.
Apart from mandatory provisions, it is now a market practice for owners of real estate project in France to pursue environmental certifications for their buildings. This is an additional source of environmental prescriptions for the construction, as the certifications will only be obtained if the building meets the environmental standards and criteria set by the certifying authorities.
Town planning rules under French law include national and local rules. Most cities in France have a local urban planning plan (PLU) which will provide for the local planning rules that each construction project will have to comply with.
Compliance with town planning rules are subject to a prior control by the authorities: indeed, construction works are subject to the prior obtaining of town planning authorisations (generally a building permit to be issued by the City).
After its issuance and for a limited period of time, a building permit can be subject to claims from third parties or from the Prefect (local representative of the French State) and to a withdrawal right from the City.
French law provides for a body of very strict labor rules relating to employment contracts (type and content of the employment contract, duration, dismissal, etc.), health and safety and fight against illegal work.
Specific regulations have also been adopted to control and regulate the use of “posted workers” employed by foreign contractors but who are temporarily assigned to work on a project in France. These regulations bind the contractors themselves, but also the project owner, who has specific control obligations in this respect.
Compliance with employment regulations is controlled by labor inspectors, who are government officials with the authority to proceed to on-site controls of work sites.
(e) Anti-corruption and bribery.
French law provides for strict anti-corruption and bribery rules and sanctions, especially with respect to public projects, which were recently reinforced by the so -called “Sapin 2” law dated 9 December 2016.
These rules include, inter alia, the obligation to organize public tenders for the procurement of public construction contracts (the type of tender will depend on the amount of the project).
As a side note, we currently witness a new trend to provide for express anti-corruption and bribery provisions in contracts for private projects, especially for project involving international investors subject to US or UK regulations.
(a) Health and safety;
Pursuant to Law 3850/2010, applicable on both public and private projects, all enterprises seated in Greece shall employ a technical security specialist, whereas enterprises employing at least fifty (50) employees shall, additionally, employ an occupational physician. Moreover, the employer shall take all necessary measures to ensure the application of health and safety rules at work, inform both the employees' representatives and the Labour Inspectorate on a number of health and safety related issues, as well as encourage further training of its personnel. Finally, the employer is under the responsibility to keep a registry of all accidents at work and to notify them to the Labour Inspectorate.
As per Art. 2 of Law 4014/2011, covering both public and private projects, in order for new projects or activities likely to cause significant effects on the environment to be carried out, it is required that an environmental licensing procedure be established through conduct of an environmental impact study and issuance of a decision approving the environmental terms, while projects or activities with local and limited impact on the environment are subject to certain standard environmental commitments, as prescribed by same law. Further to the above, the issuance of such environmental terms approvals is a prerequisite for any other administrative permits/approvals required for a specific project or activity.
Based on Art. 29 para. 1 of Law 4495/2017, any construction work, such as the erection, modification and restructuring of buildings/facilities, requires the prior issue of a building permit. Such building permits are subject to renewal, in accordance with Art. 42 of the aforementioned law. In addition, as per Art. 10 of Law 3028/2002, in case of works to be performed on or in the proximity of monuments and historic buildings, a ministerial consent is required as a prerequisite for the granting of the building permit.
In a typical construction agreement, the works are performed by building workers employed by the contractor. Consequently, the contractor shall follow any labour related obligations set out by the applicable legislation. Primarily, according to the Greek labour legislation, the eight-hour workday system applies, whereas overtime work and relevant payment, as well as annual leave matters are also strictly regulated. Employment contracts of indefinite duration can be terminated at any time, unilaterally by either party, either with or without prior notice, such termination being subject to mandatory formal requirements; it being understood that, in case of termination by the employer, the employee is entitled to the applicable severance payment (Law 2112/1920 as amended by Law 4093/2012), whereas failure of the employer to pay the applicable severance payment renders the termination null. Finally, in order for an entity to legitimately employ any person in Greece, registration with the competent Greek tax authority and the relevant social security fund is mandatory; in this respect, the employer is under certain tax withholding obligations and is responsible for the payment of the statutory social security contributions for its personnel.
(e) Anti-corruption and bribery.
Based on the Greek anti-corruption legislation, all payments and expenses must be in accordance with one's economic activity and duly registered in the records of a commercial entity, otherwise such payments or expenses may be perceived as fictitious transactions. Further to the above, commercial payments are also scrutinised under tax legislation (primarily Law 4174/2013) and money laundering legislation (Law 3691/2008), non-compliance with which incurs heavy sanctions, such as administrative fines, temporary or permanent cease of activities, prohibition of certain business activities and ban from public procurements. Moreover, Greece has ratified the UN Convention on Combating Corruption (Law 3666/2008), whereas a General Secretariat against Corruption was recently established by Law 4320/2015. Further to the above, Greek Criminal Code penalizes bribery under multiple provisions (Art. 159, 159A, 234-237, 237A, 237B, 239).
Furthermore, Art. 38 of Public Procurement Law provides for the operation of a Central Electronic Register of Public Contracts, which aims at the collection, processing and publicity of data regarding public contracts concluded by contracting authorities/entities and central purchasing bodies. Additionally, Law 3310/2005, relating to the transparency of public contracts, imposes disclosure obligations on any private entity that has been awarded a public contract.
(a) Health and safety;
Health and safety at work is governed by the Labour Regulation of 2015 and delegated legislation issued by the Ministry of Interior and the Ministry of Labour.
Environmental matters are governed by the General Environmental Regulation of 2001, which requires environmental impact assessments and environmental permits for most types of projects.
Planning is regulated by the concerned municipalities or administrations of industrial zones or industrial cities.
The main Saudi Arabian statute governing relations between employers and employees is the Labour Regulation, as amended in 2015, which is generally employee-friendly. There are strict quotas limiting the employment of non-Saudis, which depend on the size of the business and the sector in which it operates. For example, a financial institution with more than 50 employees must achieve a Saudization ratio of 65%, while a construction company of the same size need only reach 6%.
(e) Anti-corruption and bribery.
The Anti-Bribery Regulation of 1992 makes the payment to or receipt by public officials of money or gifts in connection with their office an offence. The Regulation defines as public officials state employees, and employees of businesses in which the government has a share, as well as employees of businesses that carries out government contracts.
A. Health and safety
The Department of Occupational Safety and Health (“DOSH”) is responsible for enforcing three pieces of legislation:
(a) Occupational Safety and Health Act 1994 focuses on provisions for securing the safety, health and welfare of persons at work, for protecting others against risks to safety or health in connection with the activities of persons at work. There are also provisions to promote occupational environment for person at work to adapt to their physiological and psychological needs.
(b) Factories and Machinery Act (Amendment) 2006 seeks to ensure the fitness of machineries deployed during the course of construction works and similarly imposes a positive obligation on employers/owners to ensure the safety, health and welfare of persons employed.
(c) Petroleum (Safety Measure) Act 1984 consolidates laws relating to safety in the transportation, storage, and utilization of petroleum and to provide for matter relating thereto.
The Department of Environment is entrusted with ensuring a clean, healthy and safe environment. It is empowered by the Environmental Quality Act 1974 which regulates air, noise, sea and land pollution. If the proposed project falls within the list of “prescribed activities” under the Act, an environmental impact assessment must be carried out as part of the approval process.
Planning is a state matter, and does not fall within the federal jurisdiction, except in the Federal Territories. The approval process is fairly standardized and does not differ greatly between the different municipal authorities in each state/city. The approval process briefly involves the following stages:
(i) Land use conversion
There are three categories of land use in Malaysia: building, industry and agriculture. Dependent on the nature of the project, it may be necessary to apply for a conversion of the land use prior to project implementation.
(ii) Planning permission or development order approval stage
Any project categorized as a “development” within the meaning of the Town and Country Planning Act 1976 (Act 172) requires prior planning permission from the local planning authority. This includes any material change in use of the land. The Development Order may be granted with certain conditions imposed.
(iii) Building plan approval stage
Building plans must be submitted by a qualified person as defined under the Street, Drainage and Building Act 1974.
Employees earning less than RM2,000 per month or employed for manual work are protected under the Employment Act 1955. The Children and Young Person (Employment) Act 1966 prevents exploitation of child labour by limiting the working hours and nature of work a child is allowed to undertake.
Foreign labour working in Malaysia is required to hold a valid work permit under the Employment (Restriction) Act 1968. The Workman’s Compensation Act 1952 contains provisions safeguarding the rights of foreign workers who encounter accidents at work, or contract employment-related diseases.
E. Anti-corruption and bribery
Under the Malaysian Anti-Corruption Commission Act 2009, both receiving and giving any gratification as an inducement for anything is illegal. Corruption is also proscribed under the Penal Code, the Customs Act, and the Anti-Money Laundering and Anti-Terrorism Financing Act 2001, amongst others.