- Legal Articles
- Ask Elhais
July 21, 2019|
UAE legislative framework empowers courts to enforce judgments issued by foreign courts under specific conditions. This is in accordance with Article 21 of the Federal Law Number 11 of 1992 concerning the issuance of Civil Procedures Law (the Civil Procedures Law) which states that:
"The courts shall have jurisdiction to examine the actions against the foreigner who has no residence or domicile in the state in the following cases:
1). If he had an elected domicile.
2). If the action is related to real estates in the state, a citizen's heritage, or an open estate therein.
3). If the action is concerned with an obligation concluded, executed, or its execution was conditioned in the state or related with a contract required to be authenticated therein or with an incident occurred therein or bankruptcy declared at one of its courts.
4). If the action has been prosecuted from a wife, who has a residence in the state, against her husband who had a residence therein.
5). If the action is concerned with an alimony of one of the parents or the wife or with a sequestered or with a minor, or with his relationship or with a custody on fund or on person, in case that the claimer of the alimony, the wife, the minor or the sequestered has a residence in the state.
6). If the action is concerned with the civil status and the plaintiff is a citizen or a foreigner who has a residence in the state, provided that the defendant had not a determined residence abroad or the national law is imperatively applicable on the action.
7). If one of the defendants has a residence or domicile in the state."
The courts can hear claims against the parties based in other jurisdictions if the conditions above are met. Although Dubai courts fall outside the purview of the UAE Federal Court system, the approach towards enforcement of the judgment and other procedures with regards to civil proceedings are in accordance with the Civil Procedures Law. Parties to the contract often refer to the courts or independent authorities who will have jurisdiction in the case of dispute. However, the Law of UAE supersedes the agreement between the parties, if the courts of UAE inherits the authority on the said matter under the Civil Procedures Law. It has been held by Dubai Court of Cassation that jurisdiction clauses are void if the subject matter opposes the public policy of the country, accordingly, Dubai court will have exclusive jurisdiction.
Be Careful before finalising Commercial Contracts!
Whether the judgments issued by foreign courts will hold a practical stance in Dubai courts is still a moot discussion. Thus, parties must carefully opt for competent jurisdiction bearing in mind the enforcement procedure. The probability of any difficulty during execution would reduce to nil if the civil proceedings were initiated before the right court. Parties must, therefore, appoint Corporate Lawyers of UAE to draft and finalise the contracts. Further, parties having claims against entities registered in Dubai might feel forced to initiate proceedings in a foreign jurisdiction due to the agreement in their contract, even though Dubai Courts will be apt for trying such matters. They may also seek redress from the courts in their home country, considering the language barrier in UAE.
In the event, the claimant for any reason obtain a foreign court's judgment against an entity registered in Dubai, they still hold an option to enforce the foreign judgment in Dubai Courts. Article 235 of the Civil Procedures Law envisage such enforcement in a way the original court has passed it. As understood from Article 21, Dubai courts have jurisdiction in claims where parties reside in Dubai or if assets are in Dubai. It is further noted from Article 235 that the foreign court judgments shall be final and enforceable. Otherwise, Dubai Courts will not be able to enforce such judgments against parties residing in Dubai.
Furthermore, the conditions for enforcement set out in Article 235 will apply to decisions of an Arbitration Centre registered in the foreign country, subjected that the decision should be on the matter possible to arbitrate. This is in accordance with Article 236 of the Civil Procedures Law which is highlighted as below:
"The terms of the enforcing foreign judgment shall be applied on the arbitrators' decisions delivered in a foreign country and the arbitrators' decision should be delivered in a matter in which it shall be possible to arbitrate according to the law of the state and should be liable to the execution in the country which has delivered it."
In Dubai Court of Cassation judgment Number 269 of 2006, the plaintiff obtained a civil judgment from UK courts to be enforced against the defendant who was residing in Dubai. The request for enforcement was rejected by both the Court of First Instance and the Appeal Court of Dubai. The matter was thereafter, presented before the highest court of Dubai, Court of Cassation. Unfortunately, the case was again rejected, and the court opined that since the plaintiff has failed to submit a substantial proof evidencing a collaboration between UAE and UK regarding enforcement of the foreign judgment, the case shall be rejected. On a similar note in Dubai Court of Cassation, case number 517 (civil) 28 August 2016, a judgment issued by the Californian court was presented before Court of First Instance in Dubai against a party residing in Dubai. The petition was rejected by the Court of First Instance on the basis that there was no treaty in this regards between the United States and UAE. However, the Appeal Court reversed the decision passed by the lower court on the grounds that the conditions outlined in Article 235 of the Civil Procedure Code were met. The defendant filed an appeal before the Court of Cassation, wherein the judgment was again reversed on the same note as that of the Court of First Instance.
The judgments of Dubai courts affirm that, while it might be conceivable to enforce the foreign judgment by virtue of mutual collaboration or treaty, the absence of such a treaty will create a hindrance towards its implementation. It is indeed true that sometimes even the presence of a treaty will not guarantee the enforcement of a foreign judgment and UAE courts are renowned for declining such enforcement in such cases. Parties must bear in mind the difficulty of enforcing such judgment against a party residing in Dubai, where the court has rejected to entertain the case due to lack of mutual arrangements between the countries.
As a general practice, the courts in Dubai will have jurisdiction over the matter if either party is residing in Dubai, irrespective of terms of the commercial contract, subject to the clause that the countries have mutual collaboration or agreement in that regards. Claimants must carefully consider prior to bringing any claims against Dubai-based party. In addition, obtaining a judgment from the foreign court will somehow not suffice the requirement. Thus, seeking advice from Commercial Lawyers of Dubai is utmost.
Copyright © of this article is retained by the author and/or other copyright owners. We explicitly grant you permission to download a copy, without any alteration, of this article for personal non-commercial research or study, without prior permission or any charge. This article can be utilized on your website or for marketing, however, we grant you permission to host this article on your website and no other rights. This content should not be altered in any way or sold commercially in any format without prior permission of the copyright holder. During reference of this article, full biographic details entailing the name of the author, his designation, the institute and the publishing date of the article shall be provided.
Your email address will not be published. Required fields are marked *
I owe the success of my case to Dr. Hassan's diligent approach. He remained focused, put me at ease and always went the extra mile. Dr. Hassan tirelessly put my case in the best possible light and I cannot thank him enough. I would highly recommend Dr. Hassan - I am grateful to him from the bottom of my heart.
Dr. Hassan Elhais is among the best legal consultants I have ever worked with. He has an amazing ability to reduce complex issues into a simple concept that non-legal people can understand. He consistently develops innovative litigation strategies that help us to achieve our ultimate legal goals.
...the extraordinary effort that has been exerted by the staff, and we specially thank Dr. Hassan Mohsen Alhais. Wishing your continues success & excellence...
I believe everyone should recognize what a difference Dr. Hassan Elhais work has made to people's lives; and especially to our family's life, because we will remain forever grateful to each and every one of his team.
Dr. Hassan Elhais never fears cases that involve exposure and he always gives me his honest assessment of our chances of success, which is invaluable to me.
He aided us not only in providing legal advice but also in all legal issues that required a long term strategic approach to achieve most favorable and optimum outcomes he provided us with high level of professional service.
Dr. Hassan Elhais is a responsible, reputable counsel who operates to high levels of service.
Dr Hassan Elhais is responsive, thorough and creative with his advice, and is a valued advisor and legal consultant.
Regardless of the complexity of the matter I know Dr. Hassan Elhais will consider not only legal strategy but also business practicalities in providing advice and litigation options.
I recommend Dr. Hassan Elhais to anyone who says 'I'm in legal trouble'. I was extremely satisfied with the high standard of his work. He has always been there when I have needed him and I refer all my clients, family and friends to him/his firm.
Dr. Hassan Elhais was very professional and he listened to my needs. He was very prompt, efficient and always kept me informed. Dr. Hassan Elhais's service was excellent and I would definitely recommend him to friends and colleagues.