Positive new legal development – The UAE enacts a new federal law on the regulation of the experts profession before judicial authorities (the New Law).
The New Law ensures that experts are now held more accountable, provides clarity on the role and qualification of the expert and imposes fines and imprisonment for violations.
Currently, the appointment of experts is dealt with under UAE Federal Law No. 8 of 1974 (the Old Law) and the Law on Evidence (Federal Law No. 10 of 1992). The court can appoint an expert at any stage to investigate matters with which the court considers it requires assistance. In practice, in the majority of civil cases (whether technical in nature or not) the court will appoint an expert to opine on the issues in dispute.
Ordinarily, litigants rarely attempt to jointly agree (or are unable to within the specified time limit) the nomination of an expert, in which case an expert will automatically be selected from a list of experts maintained by the court and Ministry of Justice. In such cases, the parties will not have any influence over who is appointed.
Once appointed from the court's list, the expert must comply with certain procedures; these include holding meetings with the parties and/or their legal representatives and maintaining clear minutes of the meetings, prior to preparing a report.
Whilst the expert's report is not final and binding, in most cases the court will adopt the expert's findings. In certain circumstances, if the court considers that the matter requires further investigation as a result of any arguments or objections raised by a litigant, it can refer the matter back to the same expert or decide that another expert should be appointed to prepare a different report. This process adds further time and costs to a case and can be frustrating for any party (usually the claimant) who is eager to have a final enforceable judgment as quickly as possible.
How the Old Law worked in practice
Historically, there has been concern by litigants over the appointment, performance and regulation of court appointed experts. There are a number of reasons for this, but in our experience, the main issues litigants face are:
- Court appointed experts not having the requisite experience to consider technical issues properly in a case. For example, we have seen instances where an accounting expert has been appointed in a maritime dispute, and vice versa.
- Court appointed experts delegating part of/or their entire task to a person working within their office and the court expert merely putting their name to the final report.
- The fees paid to court experts for undertaking their work are usually relatively low and disproportionate to the amount of time and consideration required for experts to perform their duties.
- Inadequate recourse is available to litigants who have cause to complain about an expert.
Thankfully, these issues (and others) are set to be addressed by Federal Law No. 7 of 2012 on the regulation of the experts profession before judicial authorities (the New Law) scheduled to come into force on 23 January 2013.
The New Law has resolved previous ambiguity or silence in respect of most of the issues raised above. It is neatly separated into 6 distinct areas:
- Qualification to become an expert: Under the Old Law, there was no specific reference to the level at which an expert should be qualified. The Old Law merely stated that experts "must be specialised persons of experienced works". Under the New Law an expert's postgraduate experience must exceed 7 years for nationals and 15 years for foreigners and the degree must be from a "recognised" university.
- Registration and appointment: Experts must now be entered into a special register held at the Ministry of Justice, or face a fine. The New Law details the procedure to apply for registration. Entry on the register must be renewed every 3 years. The new registration requirements are far more stringent than under the Old Law and we expect the process of qualifying as an expert to be closely scrutinised.
- Performance of duties as an expert: This section of the law deals with issues commonly faced by litigants relating to experts who delegate part/all of their authority to other people working in their office or where experts take on an appointment where they have no requisite expertise or experience. It includes personally undertaking the assigned task; not disclosing information; not having direct or indirect interests in the disputes and updating their skills in their field of expertise. The Old Law was not explicit in respect of each of these requirements.
- Penalties: The New Law sets out a number of sanctions in the form of fines and/or imprisonment for any violations of the New Law. The penalties include imprisonment and/or fines of up to AED 100,000.
- Fees: These are still set by the court as in the Old Law, but the amounts are likely to be reassessed in order to deal with the issue of underpayment under the old experts' appointment procedure. Given the higher degree of qualification, accountability and penalties provided in the New Law, we expect experts to lobby for higher fees for their work.
- Committee: The New Law provides for the constitution of the Committee of Experts Affairs. The committee is empowered to receive and investigate complaints made against any expert and to take the appropriate disciplinary action. The committee's powers include requesting that a member of the public prosecutor's office interrogate an expert in the course of investigations instigated pursuant to a complaint. Possible sanctions include cancelling the expert's registration on the court's register of experts.
The New Law is a positive development for litigators and parties with experts appointed in their cases either before the UAE courts and/or arbitral tribunals administered by the UAE courts.
The New Law brings about a series of key improvements, including: the requirement that experts personally undertake their tasks; and imposing a minimal degree of independence and impartiality on the expert.
It remains to be seen how smoothly the transition from the Old Law to New Law will be, but one area which may be cause for concern is the likely reduction in the number of experts available for (or willing to take on) appointments. Given the higher qualification requirement, the restriction on delegating and the serious ramifications and criminal sanctions for breaching the New Law, we may find that reports (and therefore proceedings) will take longer to prepare and conclude and the time period for appointing an expert may be significantly extended.
Another grey area resides in the fact that whilst the New Law repeals and replaces the Old Law, it does not expressly repeal provisions of the Law on Evidence which deal with the expert stage of proceedings. The New Law provides only that any provisions contradicting the New Law shall be cancelled. There is therefore potential for debate as to which provisions of the Law on Evidence are cancelled by the New Law (if any) and to which extent provisions of the Law on Evidence (and potentially other laws) dealing with the expert stage of proceedings contradict the New Law in a manner which causes those provision to be cancelled.
Time will tell how these potential issues will unfold but the efforts reflected in the New Law to tighten regulation of the expert assessment stage of court proceedings and to improve the process are a welcome step towards further raising the quality of the state's judicial process.
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.