UAE Legislators on 9 December 2018 issued a Decision of Council of Ministers Number 57 of 2018 (the Decision) regarding the recent amendments in Federal Law Number 11 of 1992 concerning the UAE Civil Procedure Code (the Civil Law).
The decision issued by the Cabinet is major regarding the advertising and notification procedures. The present article by Legal Consultants of Dubai shed lights on the notification procedures in Execution cases. Following are the notable amendments made under the Decision regarding execution orders:
- Without prejudice to the generality of the rules mentioned in this law, the law of this provision will be applicable if the creditor's right is proved or confirmed through a written proof electronically or through a hard copy and all that has been claimed was a fixed amount of money or a movable asset of any kind. The conduct of the performance order shall not prevent the application of interest or take any precautionary measures.
- The provisions of the foregoing paragraph shall be followed if the claim is based on an enforceable contract, agreement or a commercial paper.
The new law authorizes courts to accept electronic evidence, and their consideration is based on the performance. It further states that within those conditions if the demand was based on a transferrable delivery for instance goods, car, documents or any other type of movable.
In case of an agreement between the parties, the contract included payment on delivery and not on the account. Accordingly, the performance behaviour should be justified.
- The creditor must first instruct the debtor to fulfil his debt within 5 days at least and then he can issue an execution order from a civil judge within the jurisdiction of the debtor's place of living and the right or the claim shall not be less than execution order. The notification of the execution order shall be through various means of advertisement specified in this regulation.
- The execution order shall be issued on the basis of a petition, electronic or paper, as the case may be, provided by the creditor, accompanied by a deed or a bond or whatever proofs he can submit in the execution order, and the case management officer shall hold execution application until the time limit for appeal is completed.
- The petition for execution shall include all the facts or statements of the case as provided under Article 16 of the Federal Law Number 11 of 1992.
- The order shall be issued within 3 days at most from the submission of the petition, indicating the amount to be paid or the movable asset which needs to be provided as the case may be.
- The concerned petition in this article shall have the same effects as that of a filling a case from date of filing the suit even if the court is not competent.
The means of notification stipulated in this regulation in Article 6 includes the procedure for notification as below:
- The debtor can be contacted by the following means:
- Audio, video or text messages on a mobile phone, e-mail, fax or whatever electronic means of modern technology which shall be determined by the decision of the Minister of Council or by any other method agreed between the parties;
- Where he or she resides or have a place of residence, and if he refuses to receive the advertisement, it would be considered as he has received it or if the person notifying could not locate the person, he must deliver it to the tenants or his relatives.
- Deliver it to the employees or service personnel, and if any of the above persons refused to receive the notification, or could not find the debtor, the notification shall be stuck on the outside door of his residence.
- Give this to chosen home;
- In his place of work, and if the person does not find the required declaration, he must deliver it to the boss at work or any manager.
- Through companies or private offices;
- The person giving notification shall verify the age of the person to whom the notification is delivered as he/she should be above 18 years of the age, and does not represent any conflict of interest. and in the case of advertising by means of communication with modern technologies mentioned in paragraph (a) of item (1) of this Article, the addressee shall, in addition to the above, ensure that such means regardless of whether the subscriber is an advertiser, and also in the case of advertisement of voice or video calls recorded by a valid report the contents of the call, the time, the date and the person of the recipient, and the holder shall have the right to prove, and shall be accompanied by the file of the suit.
- If the declaration required under Article (1) of this Article may not be made public, the order shall be submitted to the Office of the Department, the competent judge or the President, the Department, as the case may be, to investigate at least one of the relevant authorities and then announce it in a local daily newspaper in Arabic and a foreign language.
The judge has the discretion to accept or reject the application completely or in part and if he makes his decision to refuse the decision shall be justified.
The new law states that the refusal or denial can be because there is no obligation to fulfil or there is no debt deed. A clear statement of the performance of an obligation or a guarantee to deliver property and not movable asset and request should contain compensation amount.
The previous cases can be controlled at the beginning of the registration, which requires the issuance of an arrest order from the council of judges of the execution division in follow up with case management and there should be a contradiction between two authorities, and it will be in accordance with execution order.
The debtor shall be notified about the order issued against him in accordance with the provisions and methods set forth in these regulations;
The order for performance of an obligation for the debtor shall be considered null and void if he has not been notified within 3 months from the date of issuing the order.
There shall be dedicated authority for ensuring the performance of the notification along with a secretary and must carry out the procedure to follow up the notification process with the creditor from the date of issuance of an order as stipulated in Article 6of the new regulation.
If the notification process is not executed within 3 months, the case file shall be presented before the judge who can request the legal authority according to this Article and charge all expenses from the creditor.
- The debtor may appeal the execution order within 15 days in accordance with the procedure prescribed for appeal;
- The court shall decide on the appeal within 1 week from the date of appeal and may decide a hearing if it considers necessary.
The judgment passed by the court of appeal post the request raised by the debtor shall be binding and final.
The rules for immediate execution shall apply to the execution order in accordance with the provisions of the law or these regulations.
If the creditor in the provision of Article (63) of this Regulation wishes to sign a reservation for the debtor with third parties, it shall follow the normal procedures in the contract to be signed.
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.