Post by Sapphire Capital on Feb 7, 2009 3:15:42 GMT 4
THE FRAMEWORK FOR LITIGATION IN THE UNITED ARAB EMIRATES
What is the Constitutional Structure of UAE legal system?
The United Arab Emirates was formed on 2nd December 1971 by the passing of the
Union Declaration by six states namely, Abu Dhabi, Dubai, Sharjah, Ajman,
Fujairah and Umm Al Quwain. Ras Al Khaimah joined the Federation in 1972. The
UAE is governed in accordance with the Constitution. The Provisional Constitution
was signed on the 18th of July 1971. The Provisional Constitution, with some minor
amendments was made final in terms of the Constitutional Amendment Law No. 1
of 1996.
The UAE Constitution permits each emirate to have its own legislative body and
judicial authority. Accordingly, there are federal courts and local courts in the UAE.
All emirates other than Dubai and Ras Al Khaimah have now brought their judicial
systems into the UAE Federal Judicial Authority. Dubai and Ras Al Khaimah have
retained their own judicial systems which are not part of the UAE Federal Judicial
Authority.
Local and federal courts apply UAE federal laws which are enacted by the UAE
Federal Legislative Authority as well as laws and regulations enacted by the rulers
of the individual emirates.
Although the legal procedures and the laws applicable to courts in the individual
emirates are all fairly similar, there are differences, particularly where a special law
has been enacted and applied in a particular emirate. In the event of a conflict
between the federal and local laws, the federal law will supercede the local law of
the emirate.
What type of judicial system has the UAE adopted?
The UAE is a civil law country and follows a civil law system, as such the primary
source of law is a statutory code. The UAE legal system has been influenced to a
large extent by the Egyptian legal system which has its source in French and Roman
law. The law in the UAE has also naturally been influenced by Islamic law codified
in the Shari’a and embodied in the UAE Civil and Commercial law.
Commercial transactions are governed by UAE Federal Commercial Transactions
Law (No. 18 of 1993). Civil transactions are governed by UAE Law of Civil
Transactions (No. 5 of 1985) as amended by Federal Law No. 1 of 1987. In the
absence of any specific provisions, the Islamic Shari’a will apply. For criminal
matters, the UAE courts apply UAE Federal Criminal Law (No. 3 of 1987), the
Traffic Act of 1967 and, in Abu Dhabi traffic cases, the Traffic Act of 1968.
In matters of procedure, the UAE courts follow the Federal Law of Civil Procedure
(No. 11 of 1992) and Federal Law of Criminal Procedure (No. 35 of 1992) in civil and
criminal proceedings respectively. These laws set out in detail the law and
procedure for conducting civil and criminal cases before the UAE courts, whether
local or federal.
Judges in the UAE federal and local courts apply the provisions of the specific laws,
established usage or custom as well as the Islamic Shari’a.
There is no system of case reporting in the UAE and as is usual in a civil law system,
a judge is under no obligation to take previous decisions of the court into
consideration in an action before him. Such decisions are, however, persuasive and
when repeated by the Supreme Court established principles are laid down which
serve as guidelines rather than a precedent.
TYPE OF COURTS
What types of courts are there in the UAE?
In general, in the United Arab Emirates, both federal and local courts are divided
into the civil courts, the criminal courts and the Shari’a courts. The civil courts hear
civil and commercial matters including private suits and company and insurance
matters.
The Shari’a courts are responsible for civil matters in the UAE for Muslims. Non-
Muslims will not appear before the Shari’a court in any matter. The Shari’a courts
hear mostly matters of family law relating to issues such as divorce, inheritance and
succession, alimony and custody of children. The Shari’a courts will apply the
codified provisions of the law and in the absence of any specific provision, the
Islamic Shari’a will be applied. There is no law as yet governing inheritance,
succession, divorce or custody of children in the UAE and so the Shari’a courts
therefore apply the Islamic Shari’a to such cases. Cases for non-Muslims will be
decided in the Courts based on civil and commercial law in general matters. The
law of the nationality of the husband will decide family matters.
Criminal matters are almost always heard by the criminal courts after referral by
the Police to the Prosecutor’s office for investigation and prosecution. Some crimes
such as assault and adultery may be transferred to the Shari’a courts in some
emirates. However, even where a case is transferred to the Shari’a court, the
provisions of the UAE Federal Criminal Code will be applied. As far as procedure
is concerned, the UAE Law of Criminal Procedure will always apply to a case,
whether it is heard by the criminal court or the Shari’a court.
JURISDICTION OF COURTS
When would a UAE Court have jurisdiction to hear a dispute?
Before filing a claim, a potential litigant should ensure that the UAE courts and the
courts of the emirate concerned have jurisdiction to hear the dispute according to
the provisions of the UAE Law of Civil Procedure. The claimant must determine
not only whether the UAE courts have jurisdiction, but also whether the courts of
the emirate in which the action is to be filed have jurisdiction to hear the dispute.
For the UAE courts to have jurisdiction to deal with a dispute, one of the following
conditions should be satisfied:
1. The defendant is domiciled in the UAE.
2. The case relates to assets located in the UAE or relates to an inheritance located
in the UAE.
3. The action relates to an obligation which was concluded, executed or which
was agreed to be executed in the UAE, or to a contract which was meant to be
authenticated in the UAE, or to an incident which took place in the UAE or to
an insolvency which has been declared in the UAE or by the UAE courts.
4. The action has been filed by the defendant’s wife, who is domiciled in the UAE,
against her husband provided he was domiciled in the UAE.
5. The case relates to alimony for either parent, wife, incapacitated person, a
minor or his relatives or a guardian/trustee of funds or persons provided the
alimony was demanded by the wife, minor or the incapacitated person who
maintains a domicile in the UAE.
6. The action relates to personal status and the claimant is a UAE national or an
expatriate who is domiciled in the UAE if the defendant does not have a
known address abroad or if the local law is applicable to the case.
7. One of the defendants is domiciled in the UAE.
If the defendant (or one of the defendants) is domiciled in the UAE, the following
factors will be considered when determining whether the courts of a particular
emirate would have jurisdiction:
1. The claim must be filed in the court where the defendant has a place of
domicile in the UAE. If the defendant has no place of domicile in the UAE, the
claim should be filed in the courts of the emirate in which the defendant is
resident or employed.
2. The claim may be filed with the court which has jurisdiction over the place in
which the damage has occurred in the cases for monetary or other damage
caused to a person or properties.
3. Commercial matters should be heard by the court having jurisdiction over the
place where the defendant has a place of domicile or the place in which the
agreement was concluded, executed in full or part or where the agreement was
meant to have been implemented.
4. In cases involving several defendants, the court having jurisdiction over the
place where any one of the defendants is domiciled shall be the appropriate
court in which to file the claim.
5. Actions for the repossession of real estate property or the sale of real estate
property must be filed with the court having jurisdiction over the place in
which the real estate property is situated. Claims for money relating to real
estate property must be filed with the court having jurisdiction over the place
in which the real estate property is located or where the defendant (or one of
the defendants) has a place of domicile.
6. In actions against companies, associations and other private entities,
jurisdiction will be accorded to the court having jurisdiction over the place in
which the head office is located. An action may, however, be filed with the
court having jurisdiction over the place in which a branch office is located,
provided the claim relates to that branch office.
7. Actions for the distribution of inheritance shall be filed with the court having
jurisdiction over the last place in which the deceased was domiciled.
8. Cases involving commercial insolvency shall be filed with the court having
jurisdiction over the place in which the commercial entity is located. If the
commercial entity has more than one place of business, the court having
jurisdiction over the place in which the head office is located shall have
jurisdiction.
11. Claims involving supplies, contracting, rents payable for housing, and
employee’s remuneration should be filed with the court having jurisdiction
over the place in which the defendant has a place of domicile or where the
agreement was concluded or executed.
10. Insurance policy claims should be filed with the court having jurisdiction over
the place in which the beneficiaries are domiciled or where the insured goods
are or were situated.
11. Where the defendant does not have a place of domicile in the UAE and it is not
possible to appoint a court of jurisdiction in accordance with the rules outlined
above, an action may be filed with the court having jurisdiction over the
claimant’s place of domicile. In the event that the claimant does not have a
place of domicile in the UAE, the action must be filed in the Federal Court in
Abu Dhabi.
Can a party agree to give jurisdiction to the UAE courts or any other court outside the UAE
jurisdiction?
It is possible for the parties to agree to confer jurisdiction on a particular court to
deal with disputes. In such a case, the jurisdiction will lie with the agreed court and
the court where the defendant has his place of domicile, address or residence,
unless the matter relates to immovable property, a dispute over an inheritance or a
counterclaim filed by one of the defendants in an action already being heard by one
of the UAE courts. However, if the UAE courts have jurisdiction to hear a case, as a
matter of public policy an agreement which purports to give sole jurisdiction to a
foreign court will not be upheld.
A UAE court will not voluntarily exclude its own jurisdiction in an action filed
before it, unless the matter relates to immovable property which is located in a
jurisdiction other than its own. It is up to the defendant to raise jurisdictional
arguments as a preliminary issue before arguing the merits of the case. In the
absence of arguments to the contrary, the courts will assume that the defendant has
submitted to its jurisdiction. However, wrong filing in the incorrect jurisdiction, if
challenged by opponents and accepted by the Court, may lead to a forfeiture of
court fees which are quite high, particularly in Dubai.
Will a UAE court have jurisdiction on a preliminary application or urgent application for an
attachment if it has no jurisdiction on the merits of the substantive claim?
UAE courts have jurisdiction to determine urgent preliminary applications for
attachment and urgent applications for precautionary matters even if the UAE
courts have no jurisdiction to hear the substantive claim. Judgments have
confirmed that pursuant to Articles 22 and 38 of the UAE Law of Civil Procedure,
UAE courts have jurisdiction to attach assets and hear precautionary matters within
the UAE jurisdiction even if the UAE courts have no jurisdiction to hear the merits
of the substantive claim.
Can parties agree to refer matters to arbitration?
It has been established by the UAE Law of Civil Procedure that the parties to an
agreement may agree to refer a dispute relating to that agreement to arbitration.
Such an agreement must be in writing and in a clear text in the agreement. In the
absence of any governing rules or procedure for the appointment of arbitrators or
the arbitration forum, the court will appoint the arbitrators.
PROCEDURE FOR FILING AN ACTION
How does one file an action before a UAE court?
An action or suit is filed by lodging a Statement of Claim with the court clerk of the
appropriate court, according to the jurisdiction provisions referred to above.
Reconciliation Committees at the Federal Courts
It is now compulsory for the parties to comply with Federal Law No.4 of 2001
before filing an action in a Federal Court. This is not applicable in Dubai or Ras Al
Khaimah.
This law was passed on the 3rd of January 2001 and provides for the appointment
of one or more reconciliation committees at the Federal Courts of First Instance by
the Minister of Justice. The committees consist of two members of the judicial
authority and are presided by a judge. The purpose of the reconciliation committees
is to encourage and facilitate the amicable settlement of commercial and civil
disputes of whatever value.
Any party is, however, entitled to apply for a letter of no-objection from the relevant
reconciliation committee should they not wish to resolve their dispute amicably.
The Court of First Instance may not hear a case unless the matter has been before
the relevant reconciliation committee or a letter of no-objection has been filed from
the relevant reconciliation committee.
In terms of Article 2 of Federal Law No.4 of 2001, reconciliation committees do not
have authority over the following:
1. Summary and provisional orders and claims, labour claims, state cases, rent
claims which are to be decided by rent mediation committees or any other
cases to be considered by any other reconciliation committee.
2. If a claimant has imposed an attachment on his opponents assets or taken any
summary measures.
3. Cases filed before the Federal Courts as from the date of validity of Federal
Law no 26 of 1999 until the date of enforcement of the Federal Law no 4 of 2001.
4. The Ministerial Decree provides that the reconciliation committee may not look
into any dispute in which the attendance of the public prosecutor is required.
5. It may not look into any dispute relating to family matters of any kind or
financial disputes that may arise from family issues.
A reconciliation committee may not look into any dispute unless the parties to it are
present and have signed an acceptance that the committee will look into their case,
a copy of this acceptance must be filed.
Initiating an Action
The Statement of Claim will normally contain a brief summary of the facts of the
case and end with a request to the judge to deliver a judgment against the
defendant for the amount claimed (or any other relief required) together with
interest and costs. The Statement of Claim must be drafted in Arabic and be
accompanied by supporting documents together with Arabic translations thereof if
the documents are in a language other than Arabic.
With the Statement of Claim and supporting documents, a power of attorney
drawn in favour of the attorney acting on behalf of the claimant must also be filed
with the court clerk. The court clerk then assesses the court fees and requests the
claimant’s attorney to pay the court fees. Upon payment of the court fees, the court
clerk opens a court file for the matter, allots a case number and schedules a hearing
date for hearing the case. The claimant or his attorney is immediately notified of
the date of the hearing. The court clerk then hands the matter over to the court
bailiff who is required to effect service of the summons on the defendants not later
than 10 days from the date the Statement of Claim was filed. Service of the
summons is affected by the court bailiff on the defendant at the address shown in
the Statement of Claim. If the defendant fails to attend before the court at the
scheduled hearing despite having been personally served, the case may be reserved
for delivering judgment ex parte. However, if the defendant was not personally
served (unless in summary matters), then the Court should adjourn the hearing for
a second notification.
If the defendant has not been properly served, the court will adjourn the case at the
first hearing to enable further attempts to be made to effect service on the defendant
in accordance with the legal procedures set out by the Law of Civil Procedure.
If the defendant’s place of domicile is outside UAE, service of the summons is
affected through diplomatic channels (Ministry of Justice and/ or Ministry of
Foreign Affairs). If the defendant has no place of domicile or known address in the
UAE, an application can be made to court for service of summons by publication in
local newspapers.
The defendant may appear personally or through his attorney (who must hold a
duly notarised power of attorney). Failure by the defendant or his attorney to
attend a hearing may result that the defendant be pronounced absent and
judgment being delivered against the defendant in abstentia.
Who can act and appear as an attorney?
Only advocates who hold a valid license from the Ministry of Justice can appear
before the UAE courts. However, the engagement of an advocate to act in court
proceedings is not required by law, except in proceedings before the Dubai Court of
Cassation and the Abu Dhabi Supreme Court as these courts are courts before
whom appeal can be brought only on points of law. Accordingly, a claimant or
defendant may represent himself personally in litigating a case before the Court of
First Instance and Court of Appeal.
A written power of attorney must be granted in favour of the attorney to enable him
to appear on behalf of a litigant in court proceedings. The power of attorney must
be notarised if executed locally. In the event that the power of attorney is to be
executed abroad, it must be notarised by a Notary Public, legalised by the Ministry
of Foreign Affairs in the country of execution and authenticated by the UAE
Embassy in that country. The power of attorney should then be authenticated by the
UAE Ministry of Foreign Affairs upon its arrival in the UAE.
Advocates who are licensed by the Ministry of Justice are normally licensed to
appear before all federal courts. However, an additional license is required from the
Dubai Government and the Ras Al Khaimah Government to appear before the
Dubai and Ras Al Khaimah courts respectively. Appearance by advocates before all
courts is restricted by law to nationals with a valid license. An exception is made to
some practicing Arab lawyers already licensed before the law restricting
appearance before the courts to nationals was passed.
What are the average advocacy charges in the UAE?
Advocacy fees are normally negotiated between clients and advocates on a case-by-
case basis. An arrangement whereby advocates have a retainership agreement with
some clients to act generally on their behalf is also quite common. There is no hard
and fast rule for charges and fees payable to advocates in the UAE.
Advocacy fees is normally charged as a lump sum (percentage of the claim in suit)
or on a time-spent basis computed on an hourly rate. Advocacy fees usually do not
include disbursements or court fees. Normally, half the advocacy fee in lump sum
matters is payable in advance and the balance being payable on judgment being
delivered by the Court of First Instance. In contentious matters where litigation is
involved advocacy fees are usually charged as a flat fee, normally calculated at 10%
of the claim.
Advocacy fees for litigation work are rarely charged on a time-spent basis. In the
UAE it is illegal to charge contingency fees on a no win/no pay basis.
Advocacy fees are not recoverable. Courts in the UAE normally order the judgment
debtor to pay a nominal sum towards the judgment holder’s advocacy fees.
Is it possible to amend the Statement of Claim while the case is pending before the court?
It is possible for the claimant to amend his Statement of Claim at any stage while
the case is being heard by the court at any time before judgment is delivered. It is
also possible to file further documents or make further submissions or comments
on the submissions made by the defendant at any stage in the proceedings.
Is it possible to withdraw an action after the case has been filed?
It is possible for the claimant to make an application to court to withdraw the action
and cancel the proceedings. Normally, the court will grant such a request. Court
fees, however, will not be refunded.
It is also possible for the claimant to apply to the court to suspend the hearing of
the case for up to six months. The court normally seeks no objection from the
defendant and unless there is a good reason for the defendant to object, the court
will normally grant such a request. However, if any of the parties fails to bring the
case to the hearing within eight days following the end of the allowed period, then
the case will be struck off the record. The striking off of a case from the record does
not mean, however, that the action has been dismissed.
Is it possible to obtain an adjournment of the case to produce a witness or submit further
documents?
Under the UAE Law of Civil Procedure, the claimant must submit documents in
support of the claim together with the Statement of Claim which must then be
served on the defendant. The defendant must then file his response together with
his supporting documents at least three days prior to the first hearing date of the
case. In practice, however, the defendant will normally file his response at the first
hearing of the case or request an extension of time in which to file his response. An adjournment is normally granted to the defendant to enable him to file his
response. When the response is filed, the claimant normally requests an
adjournment to enable him to comment on the defence and submit further
evidence. It is therefore likely that a case will be adjourned several times to enable
each party to comment and submit further evidence before the case is reserved for
judgment.
The judge is entitled to refuse an adjournment unless there is a justified reason.
Even when there is a justified reason, adjournments should be for no more than two
weeks. The judge is entitled to fine a claimant or defendant for failing to file
documents or make submissions on time.
Do courts have oral hearings or are all matters dealt with by written submissions?
Normally, all arguments and comments and documents submitted to the court are
made by written submission. However, on the request of either party, or if the court
considers it to be appropriate and in the interests of justice, witnesses may be called
or a hearing date scheduled for the court to hear an oral argument from a party
before the case is reserved for judgment. Hearing witnesses in civil cases is not a
normal procedure unless the case is referred to investigators or experts who can
then hear witnesses, if any.
Would it be possible to call a witness before the court in addition to the written
submissions made therein?
It is possible to request the court to call a witness and to advise the court of the
grounds and the reasons for which the witness needs to be called. The court, after
considering the matter, may grant the application, but at the same time will allow
the other party to object or to call on his own witnesses. Witnesses are questioned
by the applicant, cross-examined by the respondent and may also be questioned by
the court. All questioning, however, will be supervised by the court and no question
will be directed to a witness unless it has been approved by the judge.
Where the witnesses are non-Arabic speaking, the court will provide an interpreter
to carry out the interpretation at the court hearing.
Are court hearings recorded or are written records kept?
There is no recording of court hearings and most arguments at the hearing,
including the statements made by witnesses or the court expert, will be recorded in
writing by the court clerk and will then be signed by the court clerk and the judge.
Records of hearings and any other documents that are filed are available to the
claimant and the defendant only.
Would it be possible to call on an expert witness or to refer a matter to an expert?
The court may upon the request of either party or of its own motion refer a case
which has a technical element or which requires an expert opinion to a court
appointed expert for an opinion on the facts of the case and on the arguments raised
by the parties. The courts often refer cases involving banking, accounting
construction, maritime issues or insurance to experts particularly if the arguments
raised by the parties are of a technical nature.
The procedure for the selection of experts in the Federal Court is that when the
Court decides to appoint an expert, the Court approaches the Ministry of Justice to
name an expert from the list of experts available with the Ministry. If no specific
expert is available with expertise in a particular matter, an external expert or
academic will be appointed.
The procedure has somehow also changed in Dubai and experts on some financial,
auditing and commercial matters are now appointed from the auditors employed
by the Government of Dubai (internal auditors) based at the Ruler’s Court.
However, the previous list of experts may still be referred to, or an academic
appointed or an expert as agreed by the parties.
The court will also order one or both parties to pay the fees of the expert. The case
will then be adjourned until the expert files his report.
The court expert will normally meet with the parties, consider the documents and
any arguments raised by the parties and provide the court with a report with the
supporting documents and a record of any meetings held. Both parties to the action
will then be given the right to comment on the expert’s opinion before the case is
reserved for judgment. Occasionally, the court may refer the matter back to the
expert for clarification or for his comments on the submissions made by the parties
before reserving the case for judgment.
JUDGES AND JUDGMENTS
How many judges form the bench at the Court of First Instance?
For all cases where the value claimed is less than Dhs. 100,000/-, the bench will
consist of one judge. For cases where the value claimed exceeds Dhs. 100,000/- the
court will be formed of a bench of three judges. Judgment in such cases is given by
majority.
Is it possible to join one or more defendants after the case has been filed?
It is possible while a case is being heard by the Court of First Instance to make an
application to the court to join one or more defendants to the proceedings. Such an
application should be made to the court by a formal application setting out the
grounds for joining the new defendants and the names and addresses of the new
defendants. The court will then consider the matter and give a decision. If new
defendants are joined, they will be served with a copy of the application and
requested to attend the next hearing scheduled for the case.
It is also possible for the defendant to file a counterclaim in the same action in the
same manner and following the same procedure as in a normal court action. The
main action and the counterclaim will be heard jointly, provided they relate to the
same subject matter and are between the same parties.
When will judgment be delivered?
After the parties have exchanged pleadings and submissions, the court will reserve
the case for judgment and a hearing date will be scheduled for the delivery of
judgment. At this stage, no further submissions are accepted. The court will not
hear either party further or allow either party to put forward any new applications
or to join in new defendants or to amend the statement of claim. However, on some
very limited occasions, the court may on the application of either party or of its own
motion, re-open the hearing of a case to clarify or to hear an argument on one of the
issues in the case.
Judgment is usually delivered unanimously, although judgment delivered by a
majority vote is valid. Judgment will be delivered in open court and the judgment
will contain a summary of the facts, arguments and the submissions made. The
judgment must contain reasons and be signed by the judges who delivered the
judgment. The full text of the judgment is not normally ready on the same day as
the judgment is delivered. The parties will usually receive a complete copy of the
judgment a few days after the date on which the judgment was delivered.
Who will bear the cost and expenses of the case after judgment is delivered?
The court will normally order either of the parties, or both on a pro-rata basis, to
bear the cost of the proceedings. The general rule is that the party who loses the case
bears the costs and the expenses. Expenses normally include the court fees, the
expert’s fees and a very nominal advocacy fee.
Is it possible to go back to the court to argue that there is an error in the judgment?
If the judgment contains a typographical error or an error in the calculation of the
amount judged, it is possible to go back to the same court and request the court to
amend the judgment. However, it is not possible to go back to the court to argue a
matter concerning the substance or merits of the case. Once judgment is delivered,
the court becomes functus officio.
If a typographical or an accounting error is amended, it must be marked on the
same judgment and signed by the judges who carried out the amendments.
The court may, on the application of either party, give an explanation of the
judgment if there is an ambiguity in the judgment.
How long does a case usually take before judgment is delivered?
The time it takes for a court to deliver judgment varies from case to case depending
on the nature and complexity of the matter. A case will be delayed if one of the
defendants is in a foreign jurisdiction or if the matter requires that an expert has to
be appointed.
In normal circumstances, and provided the case is fully contested, it will take six
months to a year for a case before the Court of First Instance to be reserved for
judgment. Given that most cases are subject to two appeals, it is likely that a case
will take up to two years before being finally adjudged.
Does a procedure for obtaining summary judgment exist in the UAE?
There is no procedure for obtaining summary judgment in the UAE. All cases filed
in the UAE courts must be dealt with under the same system and procedure.
However, the Law of Civil Procedure has introduced a new system for actions filed
for the recovery of debts substantiated by commercial instruments. This procedure
comes under the heading of ‘Orders for Payment’.
The “Orders for Payment” rules provide a system whereby a claimant may apply
to court for summary judgment against the drawer of a commercial instrument. The
procedure is as follows:
1. The claimant must serve notice on the debtor by registered mail demanding
payment within 5 days from the receipt of notice. The notice must also inform
the debtor that in the event that payment is not made, the claimant will apply
to the court for an Order for Payment.
2. Application should be made to the court by the claimant for an Order for
Payment. Evidence that the debtor had been served with the statutory notice
should be provided to the court together with the supporting documents.
3. The application must be made in two identical copies in a form similar to the
Statement of Claim as prescribed in the law.
4. The order, if granted, should be issued within three days from the date on
which the application was filed. The order will consist of a direction by the
court to the debtor to pay the amount due.
5. The judgment delivered by the court should then be served on the debtor at his
place of domicile as mentioned in the Statement of Claim. Service must be
affected within six months of the date of the order otherwise the order will be
rendered null and void.
6. The debtor in such a case has the right to object to the order within 15 days of
it being issued. The objection should be filed in accordance with the procedure
for the filing of an action with the court. The debtor is also entitled to appeal
against the order to the Court of Appeal within a period of 30 days. The time
for appeal will commence after the lapse of the period of the objection (i.e. 15
days).
7. If the judge considers that an application for an Order for Payment has not
been properly made, he will refrain from granting an order and refer the matter
to the court to schedule a hearing date for the case to be heard as a normal civil
action.
The main advantage of this procedure is that judgment will be delivered in favour
of the claimant within three days from the date on which the application is filed,
without having to serve a summons or otherwise notify the defendant. Notice need
only to be served after the judgment has been delivered. However, if the defendant
objects to the judgment, it is likely that the case will be run in the usual manner and
take some time before being determined by final judgment.
ATTACHMENT OF ASSETS
Is it possible to attach assets before judgment?
Obtaining a precautionary (provisional) attachment order before the filing of an
action has always been available in the UAE. Attachment applications can also be
made after an action has been filed to the same court which is hearing the main
action. An attachment order is normally given ex-parte following an application
made to the judge with the supporting documents.
How does one make an attachment application?
An attachment application is normally made to the court clerk who will assess and
collect the court fees. A case number will be allotted to the application and the
matter will be referred to a judge. The judge, after considering the application, will
normally order an attachment against the specified assets or even a vessel.
The Law of Civil Procedure does not require a bank guarantee or any other security
for an attachment order. It is, however, in the discretion of the judge to order the
applicant to file a bank guarantee or other security before issuing an attachment order. In an application to impound a passport or to prevent someone from leaving
the country, security in the form of a bank guarantee will be required in all cases.
The amount of the security required is assessed by the court and will differ from
case to case.
The decision to order an attachment is left entirely to the discretion of the Judge. As
such an attachment application should be carefully considered before filing same
with the Court so as to avoid losing court and advocacy fees because of an
unsuccessful application.
Is a bank guarantee or other security required for the attachment of vessels, aircraft or other assets?
An attachment order will normally be granted for the arrest of a vessel, the
grounding of an aircraft or restraint of any other assets without the need for a bank
guarantee, indemnity or other security. Even if the applicant is a foreign party, the
law does not require security for an attachment. However, the requirement to
furnish security is left to the discretion of the judge, the discretion being exercised
sparingly in very limited circumstances.
Are there any assets which are not subject to attachment?
According to the Law of Civil Procedure, the following assets may not be attached:
1. Public or private monies owed to the State or to the governments of any of the
emirates.
2. Realty in which the judgment debtor, and his legal dependents in case of his
death, reside.
3. The debtor’s necessary clothes and whatever he and his family need from
house, furniture, kitchen appliances, food and fuel for six months.
4. Land or agricultural equipment owned by the farmer or the hunter to that
extent he needs for making a living and supporting his dependents.
5. Grants or devised monies to be or their interest, temporary or life alimony or
pension, amounts adjudged by courts to be temporarily decided or judged as
alimony or to be disposed of to a certain purpose, and all this to the quarter
only in settlement of the decided alimony.
6. Grants or devised money under a pre-condition shall not be attached if the
attacher is a creditor to the granted or devisee whose debt arose before the
grant or the devise was made, except for the debt of a decided alimony and
within the limit of a quarter.
7. Books, equipment, tools and requisites needed by the debtor for practicing his
profession or craft unless the attachment was effected to collect the price or
maintenance cost thereof.
8. Movables considered as property by appropriation if attached in an
independent manner from the property allocated to its service unless the
attachment was effected to collect the price or maintenance costs thereof.
9. Wages and salaries, except to the extent of half of the basic wage or salary may
be attached. Preference shall be given to alimony debts.
12 Litigation in the United Arab Emirates
How would the attachment order be enforced?
When an attachment is ordered (whether the attachment application was made
before the action or to the judge who is hearing the main action), the matter is
referred to the execution department of the court concerned. The execution
department will then open an execution department file and stamp the judgment
as good for execution. The court bailiff from the execution department of the court
then accompanies the applicant to enforce the attachment against the assets or
vessel provided they are located within the jurisdiction of the court in question.
However, if the assets or the vessel fall within another court’s jurisdiction, a letter
will be sent from the execution department to the court in whose jurisdiction the
assets or vessel are located, requesting that court to enforce the order on behalf of
the first court. The court bailiff at the second court will then enforce the order and
advise the first court of the outcome.
Will a report or inventory of the assets attached be prepared?
Normally, the court bailiff prepares a written report on the attachment noting down
the date of the attachment, details of the court order, and the parties present. The
bailiff will note the assets which have been attached and include a description of
each and every asset. The bailiff will then hand a copy of the order to the
representative of the judgment debtor or, where appropriate, the master of the
vessel.
Will the judgment debtor be notified of the court order for the attachment?
Normally, the judgment debtor will not be notified of a court order for an
attachment unless the attachment order was made during the hearing of the main
action at which he was present. The court considers that the enforcement of an
attachment against assets is enough to notify the judgment debtor of the fact that
an attachment order has been delivered, although the law actually requires the
court to notify the judgment debtor of the attachment order.
Would the court appoint a custodian to guard or safeguard the assets?
In normal circumstances, the court will appoint a representative of the judgment
debtor to safeguard and keep the attached assets. In such cases, the passport of the
custodian will be impounded by the court until further order. In the case of vessels,
the harbour master is directed not to release the vessel until further order is
delivered by the court. The assets will therefore remain in the safe custody of a
custodian until he retires or judgment is delivered. In the event that the custodian
wishes to retire, the court will appoint another custodian to take possession of the
assets.
How would the court attach assets if they were situated inside a warehouse or were not
within reach?
If the warehouse or the office is closed and it is not possible for the court bailiff to
enter into or upon the premises where the assets ordered to be attached are situated,
the court bailiff will inform the judge immediately. The judge will then give his
approval for the bailiff to break open the door and enter the premises. In such cases,
a new chain or lock will be put in place by the court bailiff. A notice will also be put
on the front of the door confirming that an attachment has been effected by order
of the court.
In the case of vessels or other assets located offshore, the court will attach the assets
following a recommendation by the court bailiff. The order will be delivered with
the assistance of the coastguard and the police, unless the assets are outside the
UAE territorial waters. In such an event it will not be possible to enforce the order
unless the vessel or the assets return to the UAE territorial waters.
Can the judgment debtor object to the attachment order?
A judgment debtor or any other aggrieved party is at liberty to object to an
attachment order delivered against him or his assets. Such an objection can be made
whether the order was delivered before or during the main action. Objections must
be made to the same judge or court which delivered the attachment order and must
set out the grounds of the objection and be supported by relevant documents. The
court will then schedule a hearing and call the parties to attend the hearing.
Application for an objection is normally made to the court clerk who will schedule
a hearing date after payment of the relevant court fee. The respondents to the
application will be summoned to attend the hearing to respond to the objection.
It is normal for the court to adjourn the case several times to enable both parties to
exchange pleadings and submissions before the case is reserved for judgment.
However, in general, objections against attachments are normally treated as urgent
and if they are adjourned, the adjournments are usually very short.
How long does it take for the court to determine an objection against attachment?
The court will normally regard an application for an attachment or an objection
against an attachment order as urgent. The court may, however, adjourn such cases
for a few days if necessary to give the respondent the opportunity to respond.
Under normal circumstances, one would expect the court to determine an objection
against attachment in a period of between two weeks to three months.
Will the attached property remain under court custody until the objection is decided?
If an objection is filed, the attachment proceedings will be suspended, but any
assets attached will remain under attachment until the objection is decided. In the
case of a vessel, the respondent may file a bank guarantee to secure the amount
claimed (unless the claim is for the ownership or the possession of the vessel) which
will enable the court to release the vessel. Furnishing a guarantee will not be
regarded as an admission of liability or prejudice the merits of the objection
application in any way.
While the court hears the objection, the assets will remain under attachment and
under the custody of the custodian appointed by the court. However, an order
delivered to lift the attachment will result in the attachment being lifted
immediately, although it may be subject to an appeal and the decision of the Court
of Appeal will be final.
Is there a time limit for filing an objection against an attachment order?
There is no time limit for filing an objection to an attachment order.
Is it possible to attach assets if the UAE courts have no jurisdiction to hear the main action?
It has been debated in the past whether the UAE courts have the power to grant an
attachment against assets located in the UAE if the UAE courts have no jurisdiction
to hear the main action. It has been confirmed by a UAE court that, according to
Article 22 of the Law of Civil Procedure, the UAE courts do have jurisdiction to
grant an order for attachment of assets or vessels located within the UAE
jurisdiction, even if UAE courts have no jurisdiction to hear the main action.
However, this is exercised very cautiously.
Will the UAE courts grant an attachment over assets located in the UAE as security for
satisfaction of foreign judgments?
It is not yet clear whether the UAE courts can grant an attachment order against
assets located in the UAE in order to secure amounts payable under judgments
passed in foreign proceedings. However, Articles 22 and 38 of the Law of Civil
Procedure and recent judgments delivered by the UAE courts indicate that it is
possible to grant an attachment against assets in the UAE, even if the UAE has no
jurisdiction in the main action. It has been argued that the UAE courts can grant an
attachment of assets which are located within the UAE jurisdiction as security
pending foreign proceedings. However, there has so far been no precedent to
confirm this view, and therefore it is unlikely to take it as such.
Does the claimant need to take any further action following the attachment order delivered
in his favour?
The claimant should within eight days of the date on which the attachment order
was delivered file civil proceedings requesting the court to uphold the attachment
order and award him damages. If the claimant fails to file his main action in time,
the attachment order will automatically lapse.
URGENT APPLICATIONS
Is there any other urgent application or a precautionary application available in law?
The law provides for an urgent court action where a party requests the court to give
judgment in an urgent matter which requires urgent proceedings. Such proceedings
are normally appropriate in cases where the claimant is requesting the court to
appoint a liquidator, a custodian or to give an order for insolvency. In such cases,
which are filed in the normal manner, a hearing will be scheduled within days. If
the court adjourns the case, the adjournment will be granted for a short period.
Judgments in urgent cases will normally be delivered in a speedy manner.
It is not permissible to request the court to deal with a normal action for the
recovery of debts as an urgent application.
APPEALS
Appeals against judgments delivered by the Court of First Instance in civil or
commercial actions, summary proceedings, precautionary attachment applications
or urgent applications may in normal circumstances be filed with the Court of
Appeal.
Which judgments are subject to appeal to the Court of Appeal?
Only final judgments can be appealed to the Court of Appeal. Interlocutory
judgments or judgments on procedure or the calling of witnesses cannot be the
subject of an appeal. However, judgments on urgent applications, precautionary
attachment orders, judgments delivered on objection applications and judgments
delivered on jurisdiction points may be the subject of appeal.
What is the Constitutional Structure of UAE legal system?
The United Arab Emirates was formed on 2nd December 1971 by the passing of the
Union Declaration by six states namely, Abu Dhabi, Dubai, Sharjah, Ajman,
Fujairah and Umm Al Quwain. Ras Al Khaimah joined the Federation in 1972. The
UAE is governed in accordance with the Constitution. The Provisional Constitution
was signed on the 18th of July 1971. The Provisional Constitution, with some minor
amendments was made final in terms of the Constitutional Amendment Law No. 1
of 1996.
The UAE Constitution permits each emirate to have its own legislative body and
judicial authority. Accordingly, there are federal courts and local courts in the UAE.
All emirates other than Dubai and Ras Al Khaimah have now brought their judicial
systems into the UAE Federal Judicial Authority. Dubai and Ras Al Khaimah have
retained their own judicial systems which are not part of the UAE Federal Judicial
Authority.
Local and federal courts apply UAE federal laws which are enacted by the UAE
Federal Legislative Authority as well as laws and regulations enacted by the rulers
of the individual emirates.
Although the legal procedures and the laws applicable to courts in the individual
emirates are all fairly similar, there are differences, particularly where a special law
has been enacted and applied in a particular emirate. In the event of a conflict
between the federal and local laws, the federal law will supercede the local law of
the emirate.
What type of judicial system has the UAE adopted?
The UAE is a civil law country and follows a civil law system, as such the primary
source of law is a statutory code. The UAE legal system has been influenced to a
large extent by the Egyptian legal system which has its source in French and Roman
law. The law in the UAE has also naturally been influenced by Islamic law codified
in the Shari’a and embodied in the UAE Civil and Commercial law.
Commercial transactions are governed by UAE Federal Commercial Transactions
Law (No. 18 of 1993). Civil transactions are governed by UAE Law of Civil
Transactions (No. 5 of 1985) as amended by Federal Law No. 1 of 1987. In the
absence of any specific provisions, the Islamic Shari’a will apply. For criminal
matters, the UAE courts apply UAE Federal Criminal Law (No. 3 of 1987), the
Traffic Act of 1967 and, in Abu Dhabi traffic cases, the Traffic Act of 1968.
In matters of procedure, the UAE courts follow the Federal Law of Civil Procedure
(No. 11 of 1992) and Federal Law of Criminal Procedure (No. 35 of 1992) in civil and
criminal proceedings respectively. These laws set out in detail the law and
procedure for conducting civil and criminal cases before the UAE courts, whether
local or federal.
Judges in the UAE federal and local courts apply the provisions of the specific laws,
established usage or custom as well as the Islamic Shari’a.
There is no system of case reporting in the UAE and as is usual in a civil law system,
a judge is under no obligation to take previous decisions of the court into
consideration in an action before him. Such decisions are, however, persuasive and
when repeated by the Supreme Court established principles are laid down which
serve as guidelines rather than a precedent.
TYPE OF COURTS
What types of courts are there in the UAE?
In general, in the United Arab Emirates, both federal and local courts are divided
into the civil courts, the criminal courts and the Shari’a courts. The civil courts hear
civil and commercial matters including private suits and company and insurance
matters.
The Shari’a courts are responsible for civil matters in the UAE for Muslims. Non-
Muslims will not appear before the Shari’a court in any matter. The Shari’a courts
hear mostly matters of family law relating to issues such as divorce, inheritance and
succession, alimony and custody of children. The Shari’a courts will apply the
codified provisions of the law and in the absence of any specific provision, the
Islamic Shari’a will be applied. There is no law as yet governing inheritance,
succession, divorce or custody of children in the UAE and so the Shari’a courts
therefore apply the Islamic Shari’a to such cases. Cases for non-Muslims will be
decided in the Courts based on civil and commercial law in general matters. The
law of the nationality of the husband will decide family matters.
Criminal matters are almost always heard by the criminal courts after referral by
the Police to the Prosecutor’s office for investigation and prosecution. Some crimes
such as assault and adultery may be transferred to the Shari’a courts in some
emirates. However, even where a case is transferred to the Shari’a court, the
provisions of the UAE Federal Criminal Code will be applied. As far as procedure
is concerned, the UAE Law of Criminal Procedure will always apply to a case,
whether it is heard by the criminal court or the Shari’a court.
JURISDICTION OF COURTS
When would a UAE Court have jurisdiction to hear a dispute?
Before filing a claim, a potential litigant should ensure that the UAE courts and the
courts of the emirate concerned have jurisdiction to hear the dispute according to
the provisions of the UAE Law of Civil Procedure. The claimant must determine
not only whether the UAE courts have jurisdiction, but also whether the courts of
the emirate in which the action is to be filed have jurisdiction to hear the dispute.
For the UAE courts to have jurisdiction to deal with a dispute, one of the following
conditions should be satisfied:
1. The defendant is domiciled in the UAE.
2. The case relates to assets located in the UAE or relates to an inheritance located
in the UAE.
3. The action relates to an obligation which was concluded, executed or which
was agreed to be executed in the UAE, or to a contract which was meant to be
authenticated in the UAE, or to an incident which took place in the UAE or to
an insolvency which has been declared in the UAE or by the UAE courts.
4. The action has been filed by the defendant’s wife, who is domiciled in the UAE,
against her husband provided he was domiciled in the UAE.
5. The case relates to alimony for either parent, wife, incapacitated person, a
minor or his relatives or a guardian/trustee of funds or persons provided the
alimony was demanded by the wife, minor or the incapacitated person who
maintains a domicile in the UAE.
6. The action relates to personal status and the claimant is a UAE national or an
expatriate who is domiciled in the UAE if the defendant does not have a
known address abroad or if the local law is applicable to the case.
7. One of the defendants is domiciled in the UAE.
If the defendant (or one of the defendants) is domiciled in the UAE, the following
factors will be considered when determining whether the courts of a particular
emirate would have jurisdiction:
1. The claim must be filed in the court where the defendant has a place of
domicile in the UAE. If the defendant has no place of domicile in the UAE, the
claim should be filed in the courts of the emirate in which the defendant is
resident or employed.
2. The claim may be filed with the court which has jurisdiction over the place in
which the damage has occurred in the cases for monetary or other damage
caused to a person or properties.
3. Commercial matters should be heard by the court having jurisdiction over the
place where the defendant has a place of domicile or the place in which the
agreement was concluded, executed in full or part or where the agreement was
meant to have been implemented.
4. In cases involving several defendants, the court having jurisdiction over the
place where any one of the defendants is domiciled shall be the appropriate
court in which to file the claim.
5. Actions for the repossession of real estate property or the sale of real estate
property must be filed with the court having jurisdiction over the place in
which the real estate property is situated. Claims for money relating to real
estate property must be filed with the court having jurisdiction over the place
in which the real estate property is located or where the defendant (or one of
the defendants) has a place of domicile.
6. In actions against companies, associations and other private entities,
jurisdiction will be accorded to the court having jurisdiction over the place in
which the head office is located. An action may, however, be filed with the
court having jurisdiction over the place in which a branch office is located,
provided the claim relates to that branch office.
7. Actions for the distribution of inheritance shall be filed with the court having
jurisdiction over the last place in which the deceased was domiciled.
8. Cases involving commercial insolvency shall be filed with the court having
jurisdiction over the place in which the commercial entity is located. If the
commercial entity has more than one place of business, the court having
jurisdiction over the place in which the head office is located shall have
jurisdiction.
11. Claims involving supplies, contracting, rents payable for housing, and
employee’s remuneration should be filed with the court having jurisdiction
over the place in which the defendant has a place of domicile or where the
agreement was concluded or executed.
10. Insurance policy claims should be filed with the court having jurisdiction over
the place in which the beneficiaries are domiciled or where the insured goods
are or were situated.
11. Where the defendant does not have a place of domicile in the UAE and it is not
possible to appoint a court of jurisdiction in accordance with the rules outlined
above, an action may be filed with the court having jurisdiction over the
claimant’s place of domicile. In the event that the claimant does not have a
place of domicile in the UAE, the action must be filed in the Federal Court in
Abu Dhabi.
Can a party agree to give jurisdiction to the UAE courts or any other court outside the UAE
jurisdiction?
It is possible for the parties to agree to confer jurisdiction on a particular court to
deal with disputes. In such a case, the jurisdiction will lie with the agreed court and
the court where the defendant has his place of domicile, address or residence,
unless the matter relates to immovable property, a dispute over an inheritance or a
counterclaim filed by one of the defendants in an action already being heard by one
of the UAE courts. However, if the UAE courts have jurisdiction to hear a case, as a
matter of public policy an agreement which purports to give sole jurisdiction to a
foreign court will not be upheld.
A UAE court will not voluntarily exclude its own jurisdiction in an action filed
before it, unless the matter relates to immovable property which is located in a
jurisdiction other than its own. It is up to the defendant to raise jurisdictional
arguments as a preliminary issue before arguing the merits of the case. In the
absence of arguments to the contrary, the courts will assume that the defendant has
submitted to its jurisdiction. However, wrong filing in the incorrect jurisdiction, if
challenged by opponents and accepted by the Court, may lead to a forfeiture of
court fees which are quite high, particularly in Dubai.
Will a UAE court have jurisdiction on a preliminary application or urgent application for an
attachment if it has no jurisdiction on the merits of the substantive claim?
UAE courts have jurisdiction to determine urgent preliminary applications for
attachment and urgent applications for precautionary matters even if the UAE
courts have no jurisdiction to hear the substantive claim. Judgments have
confirmed that pursuant to Articles 22 and 38 of the UAE Law of Civil Procedure,
UAE courts have jurisdiction to attach assets and hear precautionary matters within
the UAE jurisdiction even if the UAE courts have no jurisdiction to hear the merits
of the substantive claim.
Can parties agree to refer matters to arbitration?
It has been established by the UAE Law of Civil Procedure that the parties to an
agreement may agree to refer a dispute relating to that agreement to arbitration.
Such an agreement must be in writing and in a clear text in the agreement. In the
absence of any governing rules or procedure for the appointment of arbitrators or
the arbitration forum, the court will appoint the arbitrators.
PROCEDURE FOR FILING AN ACTION
How does one file an action before a UAE court?
An action or suit is filed by lodging a Statement of Claim with the court clerk of the
appropriate court, according to the jurisdiction provisions referred to above.
Reconciliation Committees at the Federal Courts
It is now compulsory for the parties to comply with Federal Law No.4 of 2001
before filing an action in a Federal Court. This is not applicable in Dubai or Ras Al
Khaimah.
This law was passed on the 3rd of January 2001 and provides for the appointment
of one or more reconciliation committees at the Federal Courts of First Instance by
the Minister of Justice. The committees consist of two members of the judicial
authority and are presided by a judge. The purpose of the reconciliation committees
is to encourage and facilitate the amicable settlement of commercial and civil
disputes of whatever value.
Any party is, however, entitled to apply for a letter of no-objection from the relevant
reconciliation committee should they not wish to resolve their dispute amicably.
The Court of First Instance may not hear a case unless the matter has been before
the relevant reconciliation committee or a letter of no-objection has been filed from
the relevant reconciliation committee.
In terms of Article 2 of Federal Law No.4 of 2001, reconciliation committees do not
have authority over the following:
1. Summary and provisional orders and claims, labour claims, state cases, rent
claims which are to be decided by rent mediation committees or any other
cases to be considered by any other reconciliation committee.
2. If a claimant has imposed an attachment on his opponents assets or taken any
summary measures.
3. Cases filed before the Federal Courts as from the date of validity of Federal
Law no 26 of 1999 until the date of enforcement of the Federal Law no 4 of 2001.
4. The Ministerial Decree provides that the reconciliation committee may not look
into any dispute in which the attendance of the public prosecutor is required.
5. It may not look into any dispute relating to family matters of any kind or
financial disputes that may arise from family issues.
A reconciliation committee may not look into any dispute unless the parties to it are
present and have signed an acceptance that the committee will look into their case,
a copy of this acceptance must be filed.
Initiating an Action
The Statement of Claim will normally contain a brief summary of the facts of the
case and end with a request to the judge to deliver a judgment against the
defendant for the amount claimed (or any other relief required) together with
interest and costs. The Statement of Claim must be drafted in Arabic and be
accompanied by supporting documents together with Arabic translations thereof if
the documents are in a language other than Arabic.
With the Statement of Claim and supporting documents, a power of attorney
drawn in favour of the attorney acting on behalf of the claimant must also be filed
with the court clerk. The court clerk then assesses the court fees and requests the
claimant’s attorney to pay the court fees. Upon payment of the court fees, the court
clerk opens a court file for the matter, allots a case number and schedules a hearing
date for hearing the case. The claimant or his attorney is immediately notified of
the date of the hearing. The court clerk then hands the matter over to the court
bailiff who is required to effect service of the summons on the defendants not later
than 10 days from the date the Statement of Claim was filed. Service of the
summons is affected by the court bailiff on the defendant at the address shown in
the Statement of Claim. If the defendant fails to attend before the court at the
scheduled hearing despite having been personally served, the case may be reserved
for delivering judgment ex parte. However, if the defendant was not personally
served (unless in summary matters), then the Court should adjourn the hearing for
a second notification.
If the defendant has not been properly served, the court will adjourn the case at the
first hearing to enable further attempts to be made to effect service on the defendant
in accordance with the legal procedures set out by the Law of Civil Procedure.
If the defendant’s place of domicile is outside UAE, service of the summons is
affected through diplomatic channels (Ministry of Justice and/ or Ministry of
Foreign Affairs). If the defendant has no place of domicile or known address in the
UAE, an application can be made to court for service of summons by publication in
local newspapers.
The defendant may appear personally or through his attorney (who must hold a
duly notarised power of attorney). Failure by the defendant or his attorney to
attend a hearing may result that the defendant be pronounced absent and
judgment being delivered against the defendant in abstentia.
Who can act and appear as an attorney?
Only advocates who hold a valid license from the Ministry of Justice can appear
before the UAE courts. However, the engagement of an advocate to act in court
proceedings is not required by law, except in proceedings before the Dubai Court of
Cassation and the Abu Dhabi Supreme Court as these courts are courts before
whom appeal can be brought only on points of law. Accordingly, a claimant or
defendant may represent himself personally in litigating a case before the Court of
First Instance and Court of Appeal.
A written power of attorney must be granted in favour of the attorney to enable him
to appear on behalf of a litigant in court proceedings. The power of attorney must
be notarised if executed locally. In the event that the power of attorney is to be
executed abroad, it must be notarised by a Notary Public, legalised by the Ministry
of Foreign Affairs in the country of execution and authenticated by the UAE
Embassy in that country. The power of attorney should then be authenticated by the
UAE Ministry of Foreign Affairs upon its arrival in the UAE.
Advocates who are licensed by the Ministry of Justice are normally licensed to
appear before all federal courts. However, an additional license is required from the
Dubai Government and the Ras Al Khaimah Government to appear before the
Dubai and Ras Al Khaimah courts respectively. Appearance by advocates before all
courts is restricted by law to nationals with a valid license. An exception is made to
some practicing Arab lawyers already licensed before the law restricting
appearance before the courts to nationals was passed.
What are the average advocacy charges in the UAE?
Advocacy fees are normally negotiated between clients and advocates on a case-by-
case basis. An arrangement whereby advocates have a retainership agreement with
some clients to act generally on their behalf is also quite common. There is no hard
and fast rule for charges and fees payable to advocates in the UAE.
Advocacy fees is normally charged as a lump sum (percentage of the claim in suit)
or on a time-spent basis computed on an hourly rate. Advocacy fees usually do not
include disbursements or court fees. Normally, half the advocacy fee in lump sum
matters is payable in advance and the balance being payable on judgment being
delivered by the Court of First Instance. In contentious matters where litigation is
involved advocacy fees are usually charged as a flat fee, normally calculated at 10%
of the claim.
Advocacy fees for litigation work are rarely charged on a time-spent basis. In the
UAE it is illegal to charge contingency fees on a no win/no pay basis.
Advocacy fees are not recoverable. Courts in the UAE normally order the judgment
debtor to pay a nominal sum towards the judgment holder’s advocacy fees.
Is it possible to amend the Statement of Claim while the case is pending before the court?
It is possible for the claimant to amend his Statement of Claim at any stage while
the case is being heard by the court at any time before judgment is delivered. It is
also possible to file further documents or make further submissions or comments
on the submissions made by the defendant at any stage in the proceedings.
Is it possible to withdraw an action after the case has been filed?
It is possible for the claimant to make an application to court to withdraw the action
and cancel the proceedings. Normally, the court will grant such a request. Court
fees, however, will not be refunded.
It is also possible for the claimant to apply to the court to suspend the hearing of
the case for up to six months. The court normally seeks no objection from the
defendant and unless there is a good reason for the defendant to object, the court
will normally grant such a request. However, if any of the parties fails to bring the
case to the hearing within eight days following the end of the allowed period, then
the case will be struck off the record. The striking off of a case from the record does
not mean, however, that the action has been dismissed.
Is it possible to obtain an adjournment of the case to produce a witness or submit further
documents?
Under the UAE Law of Civil Procedure, the claimant must submit documents in
support of the claim together with the Statement of Claim which must then be
served on the defendant. The defendant must then file his response together with
his supporting documents at least three days prior to the first hearing date of the
case. In practice, however, the defendant will normally file his response at the first
hearing of the case or request an extension of time in which to file his response. An adjournment is normally granted to the defendant to enable him to file his
response. When the response is filed, the claimant normally requests an
adjournment to enable him to comment on the defence and submit further
evidence. It is therefore likely that a case will be adjourned several times to enable
each party to comment and submit further evidence before the case is reserved for
judgment.
The judge is entitled to refuse an adjournment unless there is a justified reason.
Even when there is a justified reason, adjournments should be for no more than two
weeks. The judge is entitled to fine a claimant or defendant for failing to file
documents or make submissions on time.
Do courts have oral hearings or are all matters dealt with by written submissions?
Normally, all arguments and comments and documents submitted to the court are
made by written submission. However, on the request of either party, or if the court
considers it to be appropriate and in the interests of justice, witnesses may be called
or a hearing date scheduled for the court to hear an oral argument from a party
before the case is reserved for judgment. Hearing witnesses in civil cases is not a
normal procedure unless the case is referred to investigators or experts who can
then hear witnesses, if any.
Would it be possible to call a witness before the court in addition to the written
submissions made therein?
It is possible to request the court to call a witness and to advise the court of the
grounds and the reasons for which the witness needs to be called. The court, after
considering the matter, may grant the application, but at the same time will allow
the other party to object or to call on his own witnesses. Witnesses are questioned
by the applicant, cross-examined by the respondent and may also be questioned by
the court. All questioning, however, will be supervised by the court and no question
will be directed to a witness unless it has been approved by the judge.
Where the witnesses are non-Arabic speaking, the court will provide an interpreter
to carry out the interpretation at the court hearing.
Are court hearings recorded or are written records kept?
There is no recording of court hearings and most arguments at the hearing,
including the statements made by witnesses or the court expert, will be recorded in
writing by the court clerk and will then be signed by the court clerk and the judge.
Records of hearings and any other documents that are filed are available to the
claimant and the defendant only.
Would it be possible to call on an expert witness or to refer a matter to an expert?
The court may upon the request of either party or of its own motion refer a case
which has a technical element or which requires an expert opinion to a court
appointed expert for an opinion on the facts of the case and on the arguments raised
by the parties. The courts often refer cases involving banking, accounting
construction, maritime issues or insurance to experts particularly if the arguments
raised by the parties are of a technical nature.
The procedure for the selection of experts in the Federal Court is that when the
Court decides to appoint an expert, the Court approaches the Ministry of Justice to
name an expert from the list of experts available with the Ministry. If no specific
expert is available with expertise in a particular matter, an external expert or
academic will be appointed.
The procedure has somehow also changed in Dubai and experts on some financial,
auditing and commercial matters are now appointed from the auditors employed
by the Government of Dubai (internal auditors) based at the Ruler’s Court.
However, the previous list of experts may still be referred to, or an academic
appointed or an expert as agreed by the parties.
The court will also order one or both parties to pay the fees of the expert. The case
will then be adjourned until the expert files his report.
The court expert will normally meet with the parties, consider the documents and
any arguments raised by the parties and provide the court with a report with the
supporting documents and a record of any meetings held. Both parties to the action
will then be given the right to comment on the expert’s opinion before the case is
reserved for judgment. Occasionally, the court may refer the matter back to the
expert for clarification or for his comments on the submissions made by the parties
before reserving the case for judgment.
JUDGES AND JUDGMENTS
How many judges form the bench at the Court of First Instance?
For all cases where the value claimed is less than Dhs. 100,000/-, the bench will
consist of one judge. For cases where the value claimed exceeds Dhs. 100,000/- the
court will be formed of a bench of three judges. Judgment in such cases is given by
majority.
Is it possible to join one or more defendants after the case has been filed?
It is possible while a case is being heard by the Court of First Instance to make an
application to the court to join one or more defendants to the proceedings. Such an
application should be made to the court by a formal application setting out the
grounds for joining the new defendants and the names and addresses of the new
defendants. The court will then consider the matter and give a decision. If new
defendants are joined, they will be served with a copy of the application and
requested to attend the next hearing scheduled for the case.
It is also possible for the defendant to file a counterclaim in the same action in the
same manner and following the same procedure as in a normal court action. The
main action and the counterclaim will be heard jointly, provided they relate to the
same subject matter and are between the same parties.
When will judgment be delivered?
After the parties have exchanged pleadings and submissions, the court will reserve
the case for judgment and a hearing date will be scheduled for the delivery of
judgment. At this stage, no further submissions are accepted. The court will not
hear either party further or allow either party to put forward any new applications
or to join in new defendants or to amend the statement of claim. However, on some
very limited occasions, the court may on the application of either party or of its own
motion, re-open the hearing of a case to clarify or to hear an argument on one of the
issues in the case.
Judgment is usually delivered unanimously, although judgment delivered by a
majority vote is valid. Judgment will be delivered in open court and the judgment
will contain a summary of the facts, arguments and the submissions made. The
judgment must contain reasons and be signed by the judges who delivered the
judgment. The full text of the judgment is not normally ready on the same day as
the judgment is delivered. The parties will usually receive a complete copy of the
judgment a few days after the date on which the judgment was delivered.
Who will bear the cost and expenses of the case after judgment is delivered?
The court will normally order either of the parties, or both on a pro-rata basis, to
bear the cost of the proceedings. The general rule is that the party who loses the case
bears the costs and the expenses. Expenses normally include the court fees, the
expert’s fees and a very nominal advocacy fee.
Is it possible to go back to the court to argue that there is an error in the judgment?
If the judgment contains a typographical error or an error in the calculation of the
amount judged, it is possible to go back to the same court and request the court to
amend the judgment. However, it is not possible to go back to the court to argue a
matter concerning the substance or merits of the case. Once judgment is delivered,
the court becomes functus officio.
If a typographical or an accounting error is amended, it must be marked on the
same judgment and signed by the judges who carried out the amendments.
The court may, on the application of either party, give an explanation of the
judgment if there is an ambiguity in the judgment.
How long does a case usually take before judgment is delivered?
The time it takes for a court to deliver judgment varies from case to case depending
on the nature and complexity of the matter. A case will be delayed if one of the
defendants is in a foreign jurisdiction or if the matter requires that an expert has to
be appointed.
In normal circumstances, and provided the case is fully contested, it will take six
months to a year for a case before the Court of First Instance to be reserved for
judgment. Given that most cases are subject to two appeals, it is likely that a case
will take up to two years before being finally adjudged.
Does a procedure for obtaining summary judgment exist in the UAE?
There is no procedure for obtaining summary judgment in the UAE. All cases filed
in the UAE courts must be dealt with under the same system and procedure.
However, the Law of Civil Procedure has introduced a new system for actions filed
for the recovery of debts substantiated by commercial instruments. This procedure
comes under the heading of ‘Orders for Payment’.
The “Orders for Payment” rules provide a system whereby a claimant may apply
to court for summary judgment against the drawer of a commercial instrument. The
procedure is as follows:
1. The claimant must serve notice on the debtor by registered mail demanding
payment within 5 days from the receipt of notice. The notice must also inform
the debtor that in the event that payment is not made, the claimant will apply
to the court for an Order for Payment.
2. Application should be made to the court by the claimant for an Order for
Payment. Evidence that the debtor had been served with the statutory notice
should be provided to the court together with the supporting documents.
3. The application must be made in two identical copies in a form similar to the
Statement of Claim as prescribed in the law.
4. The order, if granted, should be issued within three days from the date on
which the application was filed. The order will consist of a direction by the
court to the debtor to pay the amount due.
5. The judgment delivered by the court should then be served on the debtor at his
place of domicile as mentioned in the Statement of Claim. Service must be
affected within six months of the date of the order otherwise the order will be
rendered null and void.
6. The debtor in such a case has the right to object to the order within 15 days of
it being issued. The objection should be filed in accordance with the procedure
for the filing of an action with the court. The debtor is also entitled to appeal
against the order to the Court of Appeal within a period of 30 days. The time
for appeal will commence after the lapse of the period of the objection (i.e. 15
days).
7. If the judge considers that an application for an Order for Payment has not
been properly made, he will refrain from granting an order and refer the matter
to the court to schedule a hearing date for the case to be heard as a normal civil
action.
The main advantage of this procedure is that judgment will be delivered in favour
of the claimant within three days from the date on which the application is filed,
without having to serve a summons or otherwise notify the defendant. Notice need
only to be served after the judgment has been delivered. However, if the defendant
objects to the judgment, it is likely that the case will be run in the usual manner and
take some time before being determined by final judgment.
ATTACHMENT OF ASSETS
Is it possible to attach assets before judgment?
Obtaining a precautionary (provisional) attachment order before the filing of an
action has always been available in the UAE. Attachment applications can also be
made after an action has been filed to the same court which is hearing the main
action. An attachment order is normally given ex-parte following an application
made to the judge with the supporting documents.
How does one make an attachment application?
An attachment application is normally made to the court clerk who will assess and
collect the court fees. A case number will be allotted to the application and the
matter will be referred to a judge. The judge, after considering the application, will
normally order an attachment against the specified assets or even a vessel.
The Law of Civil Procedure does not require a bank guarantee or any other security
for an attachment order. It is, however, in the discretion of the judge to order the
applicant to file a bank guarantee or other security before issuing an attachment order. In an application to impound a passport or to prevent someone from leaving
the country, security in the form of a bank guarantee will be required in all cases.
The amount of the security required is assessed by the court and will differ from
case to case.
The decision to order an attachment is left entirely to the discretion of the Judge. As
such an attachment application should be carefully considered before filing same
with the Court so as to avoid losing court and advocacy fees because of an
unsuccessful application.
Is a bank guarantee or other security required for the attachment of vessels, aircraft or other assets?
An attachment order will normally be granted for the arrest of a vessel, the
grounding of an aircraft or restraint of any other assets without the need for a bank
guarantee, indemnity or other security. Even if the applicant is a foreign party, the
law does not require security for an attachment. However, the requirement to
furnish security is left to the discretion of the judge, the discretion being exercised
sparingly in very limited circumstances.
Are there any assets which are not subject to attachment?
According to the Law of Civil Procedure, the following assets may not be attached:
1. Public or private monies owed to the State or to the governments of any of the
emirates.
2. Realty in which the judgment debtor, and his legal dependents in case of his
death, reside.
3. The debtor’s necessary clothes and whatever he and his family need from
house, furniture, kitchen appliances, food and fuel for six months.
4. Land or agricultural equipment owned by the farmer or the hunter to that
extent he needs for making a living and supporting his dependents.
5. Grants or devised monies to be or their interest, temporary or life alimony or
pension, amounts adjudged by courts to be temporarily decided or judged as
alimony or to be disposed of to a certain purpose, and all this to the quarter
only in settlement of the decided alimony.
6. Grants or devised money under a pre-condition shall not be attached if the
attacher is a creditor to the granted or devisee whose debt arose before the
grant or the devise was made, except for the debt of a decided alimony and
within the limit of a quarter.
7. Books, equipment, tools and requisites needed by the debtor for practicing his
profession or craft unless the attachment was effected to collect the price or
maintenance cost thereof.
8. Movables considered as property by appropriation if attached in an
independent manner from the property allocated to its service unless the
attachment was effected to collect the price or maintenance costs thereof.
9. Wages and salaries, except to the extent of half of the basic wage or salary may
be attached. Preference shall be given to alimony debts.
12 Litigation in the United Arab Emirates
How would the attachment order be enforced?
When an attachment is ordered (whether the attachment application was made
before the action or to the judge who is hearing the main action), the matter is
referred to the execution department of the court concerned. The execution
department will then open an execution department file and stamp the judgment
as good for execution. The court bailiff from the execution department of the court
then accompanies the applicant to enforce the attachment against the assets or
vessel provided they are located within the jurisdiction of the court in question.
However, if the assets or the vessel fall within another court’s jurisdiction, a letter
will be sent from the execution department to the court in whose jurisdiction the
assets or vessel are located, requesting that court to enforce the order on behalf of
the first court. The court bailiff at the second court will then enforce the order and
advise the first court of the outcome.
Will a report or inventory of the assets attached be prepared?
Normally, the court bailiff prepares a written report on the attachment noting down
the date of the attachment, details of the court order, and the parties present. The
bailiff will note the assets which have been attached and include a description of
each and every asset. The bailiff will then hand a copy of the order to the
representative of the judgment debtor or, where appropriate, the master of the
vessel.
Will the judgment debtor be notified of the court order for the attachment?
Normally, the judgment debtor will not be notified of a court order for an
attachment unless the attachment order was made during the hearing of the main
action at which he was present. The court considers that the enforcement of an
attachment against assets is enough to notify the judgment debtor of the fact that
an attachment order has been delivered, although the law actually requires the
court to notify the judgment debtor of the attachment order.
Would the court appoint a custodian to guard or safeguard the assets?
In normal circumstances, the court will appoint a representative of the judgment
debtor to safeguard and keep the attached assets. In such cases, the passport of the
custodian will be impounded by the court until further order. In the case of vessels,
the harbour master is directed not to release the vessel until further order is
delivered by the court. The assets will therefore remain in the safe custody of a
custodian until he retires or judgment is delivered. In the event that the custodian
wishes to retire, the court will appoint another custodian to take possession of the
assets.
How would the court attach assets if they were situated inside a warehouse or were not
within reach?
If the warehouse or the office is closed and it is not possible for the court bailiff to
enter into or upon the premises where the assets ordered to be attached are situated,
the court bailiff will inform the judge immediately. The judge will then give his
approval for the bailiff to break open the door and enter the premises. In such cases,
a new chain or lock will be put in place by the court bailiff. A notice will also be put
on the front of the door confirming that an attachment has been effected by order
of the court.
In the case of vessels or other assets located offshore, the court will attach the assets
following a recommendation by the court bailiff. The order will be delivered with
the assistance of the coastguard and the police, unless the assets are outside the
UAE territorial waters. In such an event it will not be possible to enforce the order
unless the vessel or the assets return to the UAE territorial waters.
Can the judgment debtor object to the attachment order?
A judgment debtor or any other aggrieved party is at liberty to object to an
attachment order delivered against him or his assets. Such an objection can be made
whether the order was delivered before or during the main action. Objections must
be made to the same judge or court which delivered the attachment order and must
set out the grounds of the objection and be supported by relevant documents. The
court will then schedule a hearing and call the parties to attend the hearing.
Application for an objection is normally made to the court clerk who will schedule
a hearing date after payment of the relevant court fee. The respondents to the
application will be summoned to attend the hearing to respond to the objection.
It is normal for the court to adjourn the case several times to enable both parties to
exchange pleadings and submissions before the case is reserved for judgment.
However, in general, objections against attachments are normally treated as urgent
and if they are adjourned, the adjournments are usually very short.
How long does it take for the court to determine an objection against attachment?
The court will normally regard an application for an attachment or an objection
against an attachment order as urgent. The court may, however, adjourn such cases
for a few days if necessary to give the respondent the opportunity to respond.
Under normal circumstances, one would expect the court to determine an objection
against attachment in a period of between two weeks to three months.
Will the attached property remain under court custody until the objection is decided?
If an objection is filed, the attachment proceedings will be suspended, but any
assets attached will remain under attachment until the objection is decided. In the
case of a vessel, the respondent may file a bank guarantee to secure the amount
claimed (unless the claim is for the ownership or the possession of the vessel) which
will enable the court to release the vessel. Furnishing a guarantee will not be
regarded as an admission of liability or prejudice the merits of the objection
application in any way.
While the court hears the objection, the assets will remain under attachment and
under the custody of the custodian appointed by the court. However, an order
delivered to lift the attachment will result in the attachment being lifted
immediately, although it may be subject to an appeal and the decision of the Court
of Appeal will be final.
Is there a time limit for filing an objection against an attachment order?
There is no time limit for filing an objection to an attachment order.
Is it possible to attach assets if the UAE courts have no jurisdiction to hear the main action?
It has been debated in the past whether the UAE courts have the power to grant an
attachment against assets located in the UAE if the UAE courts have no jurisdiction
to hear the main action. It has been confirmed by a UAE court that, according to
Article 22 of the Law of Civil Procedure, the UAE courts do have jurisdiction to
grant an order for attachment of assets or vessels located within the UAE
jurisdiction, even if UAE courts have no jurisdiction to hear the main action.
However, this is exercised very cautiously.
Will the UAE courts grant an attachment over assets located in the UAE as security for
satisfaction of foreign judgments?
It is not yet clear whether the UAE courts can grant an attachment order against
assets located in the UAE in order to secure amounts payable under judgments
passed in foreign proceedings. However, Articles 22 and 38 of the Law of Civil
Procedure and recent judgments delivered by the UAE courts indicate that it is
possible to grant an attachment against assets in the UAE, even if the UAE has no
jurisdiction in the main action. It has been argued that the UAE courts can grant an
attachment of assets which are located within the UAE jurisdiction as security
pending foreign proceedings. However, there has so far been no precedent to
confirm this view, and therefore it is unlikely to take it as such.
Does the claimant need to take any further action following the attachment order delivered
in his favour?
The claimant should within eight days of the date on which the attachment order
was delivered file civil proceedings requesting the court to uphold the attachment
order and award him damages. If the claimant fails to file his main action in time,
the attachment order will automatically lapse.
URGENT APPLICATIONS
Is there any other urgent application or a precautionary application available in law?
The law provides for an urgent court action where a party requests the court to give
judgment in an urgent matter which requires urgent proceedings. Such proceedings
are normally appropriate in cases where the claimant is requesting the court to
appoint a liquidator, a custodian or to give an order for insolvency. In such cases,
which are filed in the normal manner, a hearing will be scheduled within days. If
the court adjourns the case, the adjournment will be granted for a short period.
Judgments in urgent cases will normally be delivered in a speedy manner.
It is not permissible to request the court to deal with a normal action for the
recovery of debts as an urgent application.
APPEALS
Appeals against judgments delivered by the Court of First Instance in civil or
commercial actions, summary proceedings, precautionary attachment applications
or urgent applications may in normal circumstances be filed with the Court of
Appeal.
Which judgments are subject to appeal to the Court of Appeal?
Only final judgments can be appealed to the Court of Appeal. Interlocutory
judgments or judgments on procedure or the calling of witnesses cannot be the
subject of an appeal. However, judgments on urgent applications, precautionary
attachment orders, judgments delivered on objection applications and judgments
delivered on jurisdiction points may be the subject of appeal.