The Situation: On September 13, 2022, the United Arab Emirates ("UAE") Ministry of Justice ("MoJ") sent a letter to the Dubai courts stating that the MoJ considers the recent UK High Court decision in Lenkor Energy Trading, enforcing a UAE judgment, as having satisfied the element of reciprocity under UAE law when evaluating enforcement of English court judgments in the UAE.
The Result: The MoJ letter is a positive development signaling the MoJ's desire for increased enforcement of English court judgments by the Dubai onshore courts. However, reciprocity is not the only element that must be considered by Dubai onshore courts when evaluating enforcement of foreign judgments in the UAE. The UAE onshore courts must still also consider whether the UAE courts have exclusive jurisdiction over the matter, whether the foreign judgment contradicts UAE laws, public order, or morals, as well as other factors.
Looking Ahead: There is no mutual enforcement treaty in place between the United Kingdom and the UAE (as there exists between France and the UAE). Without a mutual enforcement treaty, enforcement of English court judgments in the UAE remains a discretionary matter of UAE domestic law. As a result, parties seeking to enforce English court judgments onshore in the UAE should carefully review all elements of UAE law regarding enforcement of foreign judgments—not only reciprocity.
On September 13, 2022, the Director of International Cooperation at the MoJ sent a letter to the Director General of the Dubai Courts (the "MoJ Letter") stating that the MoJ considers the requirement of reciprocity found in Article 85(1) of UAE Cabinet Resolution No. 57 of 2018 to have now been met, and encouraging Dubai court judges to find the same.
This positive signal by the UAE MoJ is the result of the recent decision by the UK High Court in Lenkor Energy Trading DMCC v Mr Irfan Iqbal Puri  EWCA Civ 770. In Lenkor, the English Court of Appeal rejected an argument that execution of a "Dubai [Court of Cassation] judgment would be contrary to [English] public policy." In so finding, the UK High Court confirmed the enforcement of the Dubai judgment (regarding a bounced check) on the grounds that it was "a final and conclusive judgment of a court of competent jurisdiction and did not offend English public policy."
In its letter to the Dubai courts, the MoJ reasoned that because Lenkor is binding on all English courts under common law principles, the MoJ hopes the Dubai onshore courts will consider reciprocity satisfied when evaluating enforcement of English court judgments under UAE law.
Where Are We Now?
No bilateral enforcement treaty exists between the UAE and the United Kingdom regarding mutual recognition and enforcement of court judgments. (There is, however, such a treaty between the UAE and France: the Treaty between the United Arab Emirates and the French Republic on the Judicial Cooperation and Recognition and Enforcement of Judgments in Civil and Commercial Matters, dated September 9, 1991).
Between the United Kingdom and the UAE, there exists a treaty regarding judicial assistance for civil and commercial matters (the Treaty between the United Kingdom of Great Britain and Northern Ireland and the United Arab Emirates on Judicial Assistance in Civil and Commercial Matters, dated December 7, 2006 (the "2006 UK-UAE Judicial Assistance Treaty")). The 2006 UK-UAE Judicial Assistance Treaty does not address enforcement of judgments. It focuses solely on the service of judicial documents and the taking of evidence by means of letters of request or commissions.
Furthermore, it specifically states that each country "shall grant each other mutual judicial assistance in civil and commercial matters to the highest degree possible in accordance with their domestic law." (see Art. 4.1 of the 2006 UK-UAE Judicial Assistance Treaty) (emphasis added). As such, UAE onshore judges must consider each element of domestic law when considering enforcement of foreign judgments (including English court judgments). Such elements are found (among elsewhere) in the provisions of Article 85 of Cabinet Resolution No. 57 of 2018 on the Implementing Regulation of Federal Law No. 11 of 1992 on the Code of Civil Procedure (as amended). Under Article 85, a foreign court judgment may be enforced in the UAE if all of the following criteria are met:
- "Judgments and orders delivered by a foreign country may be ordered to be executed in the State under the same conditions as prescribed in the law of that country for the execution of judgments and orders issued in the State. [Art. 85(1)] […]
- The Courts of the State are not exclusively competent in the dispute in which the judgment or order was rendered and the foreign Courts that issued it are competent in accordance with the rules of international jurisdiction established by their law. [Art. 85(2)(a)]
- The judgment or order is issued by a Court in accordance with the law of the country in which it was issued and duly ratified. [Art. 85(2)(b)]
- The litigants in the case in which the foreign judgment was delivered were summoned and were duly represented. [Art. 85(2)(c)]
- The judgment or order has the force of res judicata in accordance with the law of the Court issuing it, provided that the judgment has acquired the force of res judicata or provided for in the same judgment. [Art. 85(2)(d)]
- The judgment does not conflict with a judgment or order rendered by a Court of the State and does not contain anything contrary to public order or morals. [Art. 85(2)(e)]."
The elements of Article 85 are cumulative, and for a foreign judgment to be enforced in the UAE, it must meet all of the above criteria. If any element is not found, the foreign judgment will not be enforced. Aside from reciprocity, the exclusive jurisdiction and public policy elements cited above frequently serve as hurdles to enforcement of foreign judgments in the UAE.
UAE Federal Law No. 11 of 1992 on the Law of Civil Procedures Law (as amended) (the "UAE Civ. Pro. Law") provides the UAE onshore courts with extensive and often exclusive powers to determine matters involving the UAE. As per Articles 31 to 38 of the UAE Civ. Pro. Law (among other provisions), the onshore UAE courts will have exclusive jurisdiction over matters relating to real estate located within the UAE (see, e.g., UAE Civ. Pro. Law Art. 31 and Art. 32), an event that occurs in the UAE (see, e.g., UAE Civ. Pro. Law Art. 31(2)-(3), Art. 36, and Art. 37), and proceedings that involve a transaction that was made (or allegedly made) in the UAE (see, e.g., UAE Civ. Pro. Law Art. 31(3) and Art. 36).
In addition, the UAE onshore courts have jurisdiction where the defendant is domiciled in the UAE unless the defendant agrees otherwise (see, e.g., UAE Civ. Pro. Law Art. 31 (5)). Moreover, the UAE onshore courts will not give effect to jurisdiction clauses providing for a foreign court to determine a dispute where the subject matter relates to commercial agency (see, e.g., Federal Law 18 of 1981 on Commercial Agency (as amended), Art. 6), employment (see, e.g., UAE Civ. Pro. Law Art. 32 and Art. 36), and certain other matters.
In addition to the jurisdictional examples above, public policy also often serves as a basis for the onshore UAE courts to refuse enforcement of foreign judgments. This is particularly important to note as the UAE has a statutorily enshrined concept of public policy. Article 3 of the UAE Federal Law No. 5 of 1985 on the Civil Transactions Law of the UAE (as amended) sets out:
"Public order shall be deemed to include matters relating to personal status such as marriage, inheritance, and lineage and matters relating to systems of government, freedom of trade, the circulation of wealth, rules of individual ownership and the other rules and foundations upon which society is based, in such a manner as not to conflict with the definitive provisions and fundamental principles of the Islamic Shari'a."
Why Do We Care?
The September 13, 2022, MoJ Letter is an important signal by the UAE Ministry of Justice to Dubai onshore judges that the latter should view enforcement of English court judgments more favorably. The MoJ specifically stated its hope that the Dubai onshore courts will follow the principle of reciprocity exhibited by the English courts to ensure the continuity of enforcement of judgments between the two countries. In the MoJ Letter, Judge Al Balooshi says in Arabic: "وعليه نأمل التكرم أنه في حال ورود طلبات لتنفيذ أحكام وأوامر صادرة عن المحاكم الإنجليزية بأن يتم إجراء المقتضى القانوني بشأنها وفقاً للقوانين المعمول بها في الدولتين، وذلك ترسيخاً لمبدأ المعاملة بالمثل الذي بادرت بإنفاذه المحاكم الإنجليزية، وضمان استمراريته بين المحاكم الانجليزية ومحاكم الدولة."
However, given that the UAE is a civil law jurisdiction where onshore court judges are not bound by case precedent (or letter), the Dubai onshore court judges retain discretion to assess each and every element required for enforcement under UAE law, including reciprocity, exclusive jurisdiction, and public policy (among others) when deciding whether or not to enforce a foreign judgment.
Three Key Takeaways
- The MoJ Letter encourages Dubai onshore judges to find that one element of enforcement under UAE law—reciprocity—has now been met, given the binding decision of Lenkor in the UK courts.
- However, in the absence of a bilateral enforcement treaty between the United Kingdom and the UAE, enforcement of English judgments in the UAE remains subject to all required elements for enforcement under Article 85 of Cabinet Resolution No. 57 of 2018. In addition to reciprocity, this includes exclusive jurisdiction and consistency with public policy (among others).
- Nevertheless, the MoJ Letter is an important signal by the UAE Ministry of Justice toward promoting enforcement of English court judgments in the UAE.
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