Written by Dr. Hassan Elhais General Overview
Broadly, evidence means any information which is presented by either party in a legal proceeding to provide support in a case. The objective is to enable the courts to resolve or decide the matter conclusively.
In the UAE, evidence in civil and commercial matters is governed and regulated by the Federal Law No. 10 of 1992 On Evidence in Civil and Commercial Transactions (Evidence Law).
The UAE Evidence Law sets out the procedure and guidelines for presenting written evidence, the use of oral witnesses, expert evidence and other related matters.
Background to the UAE Legal System
The UAE is made up of 7 emirates - Abu Dhabi, Dubai, Sharjah, Ajman, Umm Al-Quwain and Fujairah. The UAE follows a civil legal system in which the judgments from the courts act as guidelines for future cases which need not be mandatorily followed.
That said, the Dubai International Financial Centre (DIFC), a free zone established within UAE, has its own legal and regulatory framework for civil and commercial matters which is based on common law principles. The DIFC courts enforce common law principles for resolving civil and commercial law matters.
However, the DIFC continues to be subject to UAE criminal laws. What are the general rules of evidence?
According to Article 1 of the Evidence Law, the plaintiff has to prove his right and the defendant has to disprove it. The facts which have to be proved must be related to the case, productive and acceptable. If there is no guidance on a matter of evidence, the rules of Islamic Shari’a would be followed, in accordance with Article 6 of the Evidence Law.
Expert Evidence – Meaning and Scope
If there are matters which require the opinion of an expert, the courts may seek the opinion of the relevant expert for adjudicating a case under Article 69.
The Federal Law No 7 of 2012 on the Regulation of Expertise before the Judicial Authorities (Expertise Law) states the criteria for registering as an expert with the Ministry of Justice. According to Article 3, an expert must be of good conduct and behavior, not have been convicted of a felony or misdemeanor involving breach of honour or trust, have a university degree with accreditation in his field of specialization, and have experience of 7 years after graduation in his area of expertise in case of a citizen and 15 years in case of non-citizens, amongst others. The expert must pass the procedures and tests prescribed by the Ministry.
The expert will prepare a report on the matter, indicating his opinion and the basis of his opinion under Article 84 of the Expertise Law. Parties are given a short period to submit their comments and give responses to the initial report, after which the final report is submitted to the judge. It should be noted that the expert’s opinion is not binding on the court and where a decision is issued by the court which is contrary to the expert’s opinion, the reasons to disregard the expert opinion will have to be stated under Article 90 of the Evidence Law.
Non-experts will not be permitted to practice the profession of expertise in the legal proceedings, except where the parties to litigation have agreed to choose experts. In this case, the court will approve their agreement under Article 70 of the Evidence Law and Article 2 of the Expertise Law.
Kinds of Evidence
The Evidence Law recognizes both written evidence and oral evidences. Written evidence could be in the form of official statements, customary statements, etc., while oral evidences include testimony of witnesses.
Documents can be entered either in physical form or electronically. According to Article 17 (bis) of the Evidence Law, electronic signature, writings, correspondence, registers, and documents have the same binding force as physical signatures, writings, correspondence, registers and official and customary documents, if it fulfils the conditions and provisions of the physical documents under the Evidence Law.
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