We highlight a number of significant changes that are either entirely new or have the potential to dramatically enhance the quality of proceedings in UAE.
Mohamed Al MarzouqiDeputy Managing Partner,Litigation
Seif ElfarTrainee Solicitor,Dispute Resolution
Effective from 2 January 2023, Federal Law No. 11 of 1992 regarding Civil Procedures (the “CPL”) has been repealed and replaced by Federal Decree Law No. 42 of 2022 (the “New CPL”). The New CPL represents an evolution of judicial sentiment and a welcomed development in the context of a more flexible legal and judicial ecosystem. This article highlights a number of significant changes that are either entirely new or have the potential to dramatically enhance the quality and efficiency of litigation proceedings in the UAE.
Leading up and prior to the referral of a dispute to the competent court for a judgement to be issued, the Case Management Office (“CMO”) is the responsible body tasked with overseeing the proceedings and submissions of the parties to a litigation dispute. The operations of the CMO are supervised by a “supervising judge”. Article 45(4) of the New CPL expands on the current authorities of the supervising judge and now allows for the dismissal of a case due to procedural failures resulting in a delay in the litigation proceedings, specifically the failure by a party to pay the requisite court fees within theprescribed timeframe. This expansion of authority is likely to streamline the caseload before the competent courts, whereby courts will likely no longer need to adjudicate on cases that feature a procedural shortcoming – such as the failure to pay court fees.
Moreover, Article 30(1) of the New CPL now permits one or more local or international experts to assist the supervising judge to review or prepare expert reports submitted by litigants. The same article goes on to clarify that the competent court may discuss with the experts the report which they have prepared or reviewed, and the court may order the experts to rectify any deficiencies in their scope of work – be it in relation to the review or the preparation of the report. This expansion and clarification of authority will enable courts to scrutinize experts’ fulfilment of their mandates and is likely to prevent any overreliance on expert reports in the context of the issuance of judgements. Expert reports are now in a position to be more tailored to the specific facts of the case at hand, provided that judges do in fact exercise their authority to scrutinize experts.
Traditionally, since the establishment of the judiciary in the UAE, the Arabic language has been the language of the courts. This inevitably meant that all memoranda and exhibits had to be submitted in Arabic, or in the original foreign language alongside an official Arabic translation prepared by a sworn legal translator. In practice, this translated to greater pressure on litigants to meet submission deadlines between court hearings, increased translation costs and a potential for inaccuracy as both the court and court-appointed experts ultimately rely on the translation, and not the original document.
In light of the New CPL, in the instances prescribed for in article 5, the English language shall govern the adjudication of a litigation dispute, the procedures governing the proceedings and the judgement issued in cases being heard before certain judicial circuits, serving as an exemption from the general rule. The decision to set the English language as the language of certain circuits within the remits of specific cases will rest with the discretion of the President of the Federal Judicial Council or the President of the Local Judiciary. The criteria to be relied on when exercising their said discretion is yet to be made clear and will likely be clarified in practice once resolutions are issued to supplement the New CPL, in accordance with article 4 of the preamble in the New CPL. In practice, this amendment would allow the parties to a case, their lawyers and witnesses to communicate in English throughout the trial before certain circuits. This is a positive development that demonstrates the legislator’s awareness of the need to evolve the judicial ecosystem to accommodate for the increase in foreign direct investment in the UAE.
The mandate of enforcing judgements in the UAE has predominantly been consolidated with the Enforcement Court in the respective Emirate where the judgement is being enforced. There are certain dimensions that have recently become outsourced, such as the service of defendants with the writ of enforcement and the sale of property through public auction, both of which are carried out by private third parties. However, for the most part, officers of the respective Enforcement Court, under the supervision of the Enforcement Judge, have typically been the party responsible for enforcing the judgement. This has traditionally placed considerable pressure on the Enforcement Court and is a key contributor to the delay in the enforcement of judgements. Article 206 of the New CPL stipulates that the Minister of Justice or the President of the Local Judiciary shall issue a list of private companies that shall facilitate the mandate of the Enforcement Court, along with the specific fees payable to these companies for the enforcement services. This is a constructive development that will see the Enforcement Court outsourcing several dimensions of its multi-dimensional mandate, leading to more dynamic enforcement measures and a quicker enforcement timeline.
Officers of the respective Enforcement Court, under the supervision of the Enforcement Judge, have typically been the party responsible for enforcing the judgement.
This is not a new development, strictly speaking, as certain dimensions of the enforcement of judgements have been outsourced, as mentioned above. However, Article 206 will now enable the outsourcing of other, more structural elements of the enforcement of judgements, potential examples include asset tracing as well as the coordination between the UAE Central Bank and local banks with respect to the attachment of the judgement debtor’s bank accounts. In Bahrain, for example, Resolution No. 4 of 2022 issued by the Ministry of Justice, Islamic Affairs and Waqf concerning the Regulation of the Activity of Private Enforcement regulates the outsourcing of enforcement mandates to private third parties, including the selection criteria of these private parties, their inclusion in the “register of licensees authorized to carry out enforcement procedures” and the specific enforcement mandates that can be licensed or outsourced.
The provisions of the CPL governing the instances when a travel ban imposed on a judgement debtor can be lifted featured a gap that was difficult to address in practice. It is not uncommon for judgement debtors that are the subject of travel bans to also be the subject of deportation orders from competent authorities, whether such orders are issued by UAE authorities or international authorities overseas. The travel bans represented an obstacle that prevented such deportation orders from materializing. Paragraph 7 of Article 325 of the New CPL has now filled this gap. A travel ban may now be lifted if a competent body submits a request to the execution court evidencing that the individual residing in the UAE who is the subject of the travel ban (1) is residing in the UAE illegally and (2) there are no funds belonging to the individual in the UAE that can be enforced against. The burden of proof is on the applicant competent authority to satisfy this two-stage requirement.
The New CPL represents the most recent initiative on a federal level that will enable the UAE to edge closer to a more flexible and agile judiciary that is highly ranked on an international scale. The UAE courts are renowned for their efficiency in concluding disputes and issuing judgements within short timeframes, ultimately giving comfort and confidence to litigants knowing that their dispute will be adjudicated in months, as opposed to years. There is no doubt that modernizing and evolving the UAE judiciary is a top priority for legislators in the UAE.
For further information,please contact Mohamed Al Marzouqi.
Published in January 2023
