United Arab Emirates: UAE: Litigation

Last Updated: 19 July 2018
Article by Abdullah Ishnaneh

This country-specific Q&A provides an overview of Litigation in UAE.

It will cover methods of resolving disputes, details of the process and the proceedings, the court and their jurisdiction, costs and appeals and opinions on future developments.

1. What are the main methods of resolving commercial disputes?

The main method of resolving commercial disputes is litigation before the local courts. However, there are other means of dispute resolution such as arbitration and the Dubai International Financial Court which is a free zone court.

2. What are the main procedural rules governing commercial litigation?

Federal Law number 11 of 1992 known as the Civil Procedures Law is the main law governing all civil and commercial litigation procedures. The law tackles all procedures of trials from filing claims, notifying parties, experts and their appointments and tasks, appeals, order in hearings, procedures, special and urgent applications, discontinuance, cessation and lapse of time and all other procedures.

3. What is the structure and organisation of local courts dealing with commercial claims? What is the final court of appeal?

The UAE consists of 7 emirates with each emirate having its own local courts. The courts are structured into 3 levels, the Court of First Instance, the Court of Appeal and the Court of Cassation.

All appeals with the Court of Cassation are filed in the capital emirate of Abu Dhabi except for Dubai and Ras Al Khaimah which have their own Courts of Cassation.

The official language for all courts is Arabic and the courts obtain statements of parties that do not speak Arabic through interpreters on oath.

4. How long does it typically take from commencing proceedings to get to trial?

The procedures which precede going to trial are not extensive and consist of mainly filing the claim and notifying the opponent/s of the claim.

Pursuant to Article 42 of the Civil Procedures Law, the claim is filed at the request of the plaintiff after the submission of the statement of claim with the Court Registrar or electronically.

There are certain requirements which should be met when filing a claim such as the contents of the statement of claim, and once these requirements are met the court then notifies the defendant\s of the claim and the date of the first hearing which is usually within 10 days from the date of notification.

In conclusion, the time frame from filing a claim until the first hearing is not lengthy unless there are certain complications the most common of which is not being able to locate and notify a party.

5. Are hearings held in public and are documents filed at court available to the public? Are there any exceptions?

Pursuant to Article 76 of the Civil Procedures Law hearings shall be public.

However, there are exceptions if the Court, of its own discretion or at the request of any party, decides to hold a closed/private hearing as to maintain public order, or to observe morals or family privacy.

Documents and memos filed in court are not public and are only available to the parties and their legal representatives.

6. What, if any, are the relevant limitation periods?

There are many limitation periods which are relevant to statutes of limitation by the type of dispute and these are mainly listed on Federal Law number 5 of 1985 known as the Civil Transactions Law.

For example, the general rule is that the statute of limitation is 15 years. However, there are many specific statutes of limitations which are specific. For example, in employment matters the statute of limitation is 1 year and 3 years from discovery of the defect or the collapse in Muqawala contracts.

7. What, if any, are the pre-action conduct requirements in your jurisdiction and what, if any, are the consequences of noncompliance?

Generally, there are no pre-action requirements. However, in specific cases the law requires that a party sends a legal notice to its counterparty before initiating any legal proceedings, such as when a landlord wishes to evict a tenant, or when a party wants to terminate a contract.

8. How are commercial proceedings commenced? Is service necessary and, if so, is this done by the court (or its agent) or by the parties?

Pursuant to Article 42 of the Civil Procedures Law, a claim is brought to the court at the request of the plaintiff by submitting his statement of claim with what is known as the Case Management Office or by the electronic registration thereof.

The statement of claim must contain certain data including:

  1. The plaintiff's name, title, identity card number, if any, profession, domicile, workplace and his representative's name, title, identity card number, if any, profession, domicile, workplace and postal address, fax number or email. If the plaintiff has no domicile in the state, he shall designate an address for service or notification.
  2. The name of the defendant, his title, identity card number, if any, profession, domicile or address of service, workplace and telephone number and his representative's name, title, profession, domicile, workplace if he works for others. In case that the defendant or his representative have no known domicile or workplace, the last domicile, residence, workplace, postal address, fax number or email shall be mentioned.
  3. Subject of the case, requests and supporting documents.
  4. Date of submitting the statement of claim to the Case Management Office.
  5. The court to which the case has been brought.
  6. The signature of the plaintiff or his representative.

Once the case has been reviewed and the court fees paid, the court allocates a case number and schedules a date for the first hearing which is usually after 10-14 days, and then notifies the defendant/s.

This means that service or notification is necessary.

Notification is made pursuant to a party's request or the court's order through a Court Bailiff. However, the court may also authorize the plaintiff or his representative to notify, and notification may also be made by third party. Such as a courier company.

If the Court Bailiff or the party carrying out the notification fails to notify, he shall convey this to the Case Management Office or a competent judge as to order the appropriate notification method.

Notification of a party is very important and if not carried out properly and a judgment is issued in absentia, this could mean the invalidity of the judgment.

Having said that, notifying a party is not always a simple exercise and may significantly delay procedures.

If the address of the defendant as submitted by the plaintiff at the time of filing the statement of claim is not accurate, the court will order investigating the address from the relevant authorities such as the immigration, the telecommunication companies, the water and electricity authority, the Road and Transportation authority, the Economic Department and the free zones in case of a company.

If after carrying out all means of investigating a party's address the same was not located, the court will order notification by publication in the newspapers.

9. How does the court determine whether it has jurisdiction over a claim?

Jurisdiction is not an easy issue to be covered in a few paragraphs. The general rule is that jurisdiction is for the court in which the defendant is located. However, there are many other rules and exceptions when it comes to jurisdiction.

Articles 20 to 24 of the Civil Procedures Law cover the issue of international jurisdiction.

Article 20 stipulates that, except for real estate matters, the UAE Courts have jurisdiction to hear actions brought against UAE citizens and against expatriates having an address or place of residence in the country.

Article 21 states that the UAE Courts have jurisdiction to hear an action against a foreigner with no address or place of residence in the country if he has a chosen address in the country, or if the action relates to assets or estate located in the UAE, if the action relates to an obligation executed or to be executed in the UAE, or to a death which occurred in the UAE, or to a bankruptcy declared in a UAE court.

The UAE Courts will also have jurisdiction over an action brought by a wife with an address in the country against a husband who previously had an address in the country, and over an action relating to support in respect of a parent, wife, minor, child in guardianship, affiliated child or personal or financial guardianship, if the party requesting the support has an address in the UAE.

If one of the defendants has an address or a place of residence in UAE then the UAE Courts will have jurisdiction to hear the action.

Articles 25 to 41 of the Civil Procedures Law tackle the issues of jurisdiction of the UAE Courts according to the subject matter, value and the domestic jurisdiction of the courts.

10. How does the court determine what law will apply to the claims?

The Court determines the applicable law based on the subject matter of the dispute. For example, in employment matters the UAE Labour Law will be applied. However, in some cases more than one law may be applicable to one dispute, or if specific law does not cover a certain aspect of the dispute, the Court may then revert to the Civil Transactions Law which is the most general law that tackles most if not all principles of law.

11. In what circumstances, if any, can claims be disposed of without a full trial?

There are several instances in which a claim can be closed without a full trial. If the parties reach a settlement, then the claim will be closed. Having said that, settlements can be recorded in the official minutes of hearing in which case the settlement can have the weight of an executive deed. This means that if one of the parties breaches the settlement, the other party may proceed directly to execution.

There are other instances in which the court may close a case without a full trial such as the failure of both parties to attend a court hearing, or the failure of the plaintiff to attend and the defendant requests the court to strike out the case.

If the action remains struck out for 60 days and neither party seeks continuation, it will be deemed a nullity but all rights will be preserved.

12. What, if any, are the main types of interim remedies available?

The main interim remedy in the UAE is precautionary attachment. Such a remedy is available to preserve a party's right if there was a genuine concern that the right is at risk such as the debtor fleeing the country or concealing his assets.

If a party files a precautionary attachment against his debtor's assets and his request was granted by the court, he must file a claim within 8 days of the attachment taking place. This is to ensure that the action does not harm the debtor if the creditor's claim was unlawful.

There are other interim remedies such as the request for a travel ban to ensure that a debtor does not flee the country to avoid settling his debts.

13. After a claim has been commenced, what written documents must (or can) the parties submit and what is the usual timetable?

The parties can submit any written document to support their arguments and there is no strict timetable.

The documents usually submitted are the agreements between the parties, correspondence, independent expert reports, invoices, statements of accounts, notices and other types of documents.

Usually the parties submit all documents in originals as if the photocopy of a document was contested by the opponent, the court cannot base its judgment on the said contested photocopy.

Documents submitted in a foreign language must be translated into Arabic by a duly qualified and registered translator.

14. What, if any, are the rules for disclosure of documents? Are there any exceptions (e.g. on grounds of privilege, confidentiality or public interest)?

In brief, the parties may submit to the court any documents to support their claims, and the court may also oblige a party to submit a document even if privileged.

15. How is witness evidence dealt with in commercial litigation (and, in particular, do witnesses give oral and/or written evidence and what, if any, are the rules on cross-examination)? Are depositions permitted?

Federal Law number 10 of 1992 on Evidence in Civil and Commercial Transaction (hereinafter referred to as the "Evidence Law") covers the issue of witness evidence. Witnesses give their statements orally in court.

Witness evidence and witness statements are not permissible where the value involved exceeds AED 5,000 unless there was an agreement or a law provision to the contrary.

However, witness evidence is not admitted even if the value does not exceed AED 5,000 if it is required to refute the contents of a written document, or if the claim consists of the balance or part of a right which may only be established in writing.

There are exceptions to when witness evidence is accepted in matters that must be established in writing. For example, when written evidence cannot be obtained as a result of a material or moral bar, or when written evidence is lost due to a reason beyond a party's control.

The party requesting the court to allow witness testimony must specify the facts he wants to establish in writing or verbally in a court hearing.

If the Court allows one of the parties to prove a fact by testimony of witnesses, the other party may disprove this fact in the same manner.

In addition, the Court may, ipso jure, decide on obtaining witness statements in the cases where the law admits the submission of proof in such a manner and if it deems it to the interest of reaching the truth.

Witnesses give testimonies separately without the presence of the other witnesses. Usually, witnesses for both parties are heard in the same hearing, and witness statements are obtained after the witness takes the legal oath.

16. Is expert evidence permitted and how is it dealt with? Is the expert appointed by the court or the parties and what duties do they owe?

Expert evidence is permitted and it is even very common for a court to refer the matter to an expert to examine and submit his findings on.

Experts can be appointed by the court pursuant to a preliminary judgment where the court refers the matter to an expert from the list of its registered expert. The court highlights the tasks/mission of the expert, his fees and the party bearing the same in the preliminary judgment. The parties can also agree on a certain expert to be appointed.

When the court decides to refer a matter to an expert and he is duly appointed, he then schedules the first meeting with the parties for them to submit their documents and memos. The expert can schedule several meetings with the parties and may request to visit their offices and examine their records. Each meeting is recorded and the parties sign the minutes of the meeting.

Once the expert concludes his mission, he submits his report with his final findings to the court along with all documents and minutes of meetings. Thereafter, the parties comment on the report.

The court may then call in the expert for clarifying certain matters, or order the expert to further examine the parties' comments and submit a final report. The court may also refer the matter to a different expert/s.

The Court is not bound by the expert's opinion, and if it issues a judgment contrary to the expert's opinion, it shall state the reasons for doing so in the judgment.

The parties may also submit independent expert reports as evidence to support their claims.

17. Can final and interim decisions be appealed? If so, to which court(s) and within what timescale?

Final and interim decisions can, in most cases, be appealed to the same court or to the Court of Appeal or Cassation depending on the decision.

For example, the judgment issued by the Court of First Instance is appealed before the Court of Appeal within 30 days, and the judgment issued by the Court of Appeal is appealed before the Court of Cassation within 60 days.

This may differ from case to case depending on the value of the claim and other factors.

18. What are the rules governing enforcement of foreign judgments?

Pursuant to the Civil Procedures Law, judgments and orders issued in a foreign country may be enforced in the UAE on the same conditions as prescribed in the laws of that country for the enforcement of similar judgments and orders issued in the UAE.

Enforcement procedures are similar to normal litigation procedures where the application is filed with the Court of First Instance which has jurisdiction over the said enforcement.

Before enforcement of a foreign judgment is ordered, there are a few matters which have to be verified including the fact that the UAE Courts do not have jurisdiction over the dispute in which the foreign judgment has been issued, and that the foreign courts which issued it have jurisdiction therein under the international rules of or legal jurisdiction prescribed in its laws.

Further, it must be verified that the opposing parties in the case in which the foreign judgment has been issued have been duly summoned to appear, and have been duly represented.

In addition, the foreign judgment must have acquired the force of a fait accompli under the law of the court which issued it, and must not conflict with a judgment or order previously issued by a court in the UAE and contains nothing in breach of public morals or order in the UAE.

The above also applies to arbitration awards issued in a foreign country.

Finally, the above applies to the extent where it does not affect or contradict the terms of treaties executed between the UAE and other countries.

19. Can the costs of litigation (e.g. court costs, as well as the parties' costs of instructing lawyers, experts and other professionals) be recovered from the other side?

Court and expert costs can be recovered from the other party.

However, lawyer fees cannot be recovered, and at the end of each stage of litigation the court awards an amount as legal fees which is minimal in comparison to actual legal fees borne by a party.

20. What, if any, are the collective redress (e.g. class action) mechanisms?

There are no class actions in the UAE.

21. What, if any, are the mechanisms for joining third parties to ongoing proceedings and/or consolidating two sets of proceedings?

Pursuant to the provisions of the Civil Procedures Law, a plaintiff may request to join to the case a third party which could have been included in the claim at the time of filing it.

A defendant may also request the court to join another party, if he claims that the said joined party has an obligation with regards to the claim.

In addition, any party with an interest may intervene in the action, joining one of the adversaries or seeking judgement for himself with a request linked with the action. However, no intervention is admissible after the court closes or ceases hearing arguments (when the case is adjourned for judgment).

The court may also at its own discretion order to join a third party to a claim for the interests of justice or to reveal the truth.

22. Are third parties allowed to fund litigation? If so, are there any restrictions on this and can third party funders be made liable for the costs incurred by the other side?

There are no rules which govern third party funding, and the law does not address this issue.

23. What, in your opinion, is the main advantage and the main disadvantage of litigating international commercial disputes?

The main disadvantage in my opinion is that litigation can be quite lengthy. There are no strict time tables and there are many delay tactics which parties can adopt to prolong the life span of a dispute.

Cost can be also viewed as a disadvantage especially if compared to neighbouring countries. However, it could be deemed as an advantage if compared to other methods of dispute resolution such as arbitration.

As for the advantages, there are many. The main advantages in my opinion is that there is always a strive to develop the judicial system.

In addition, the judicial system is quite independent and there is no political or governmental interference which would influence the courts findings.

24. What, in your opinion, is the most likely growth area for disputes for the next five years?

Real estate in this jurisdiction has been the largest sector for litigation in the past ten years, and it will be the main growth area for disputes for the coming 5 years in my opinion.

25. What, in your opinion, will be the impact of technology on commercial litigation in the next five years?

Technology has already been adopted by the judicial system where we now have online filing of claims, applications and requests. Parties can follow up on the progress of their claim online, and can obtain memorandums, documents, judgments from the online archive.

The UAE is adopting what is known as the smart government where almost everything can be done electronically. Therefore, technology will have a huge impact on litigation which in my opinion will, once it has matured, reduce the time and effort of the parties and the courts and will make litigation simpler and more time and cost effective. Having said that, these things do not happen over night and will always have room for improvement.

Originally published by The Legal 500 & The In-House Lawyer Comparative Legal Guide UAE: Litigation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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