Increased recognition of case law and new courts: more changes in the United Arab Emirates Civil Procedure Code

The UAE Code of Civil Procedure was enacted in 1992 as Federal Law No. 11, and the first amendments to the Code were made more than a decade later, in 2005. Since 2014, almost every consecutive year , amendments were made, the most important of which were the regulations enacted under the Code of Civil Procedure (the Regulations) which entered into force on February 16, 2019. The Regulation itself was amended in 2020 by Cabinet Decision No. 33/2020.

Federal Decree No. 15 of 2020 (the Decree) and Cabinet Resolution No. 75 of 2021 (the Resolution) include the latest set of amendments to the Code of Civil Procedure and the Rules, and cover a range of issues from service on defendants to the conduct of proceedings and the enforcement of judgments. This article examines some of the more notable changes introduced by the decree and resolution.

The creation of Single Level Courts

The decree provides that the Minister of Justice of the United Arab Emirates or the head of the judicial authority of an emirate establishes a single-level court, composed of three judges, each from the court of first instance of the emirate, the Emirate Court of Appeal, and the Emirate Court of Cassation or Federal Supreme Court (to take into account that with the exception of the Emirates of Abu Dhabi, Dubai and Ras al Khaimah, the last level of appeal for the other Emirates is the Federal Supreme Court). The single-level tribunal was first proposed several years ago and, when established, will have jurisdiction when the parties have agreed to submit to the jurisdiction of that tribunal, or when the subject matter falling under the jurisdiction of that tribunal. its jurisdiction is identified by regulations made under the Civil Code Code of Procedure (which has not yet happened). The court will only have jurisdiction over disputes that have a “defined value” (ie which would exclude claims for unassessed damages) that is greater than AED 500,000. The judgments of the level court will not be subject to appeal, except in the case where the judgment is the subject of an appeal under the provisions of Article 169 of the Code of Civil Procedure, an invalidation in application of article 187 bis (discussed below) or when the judgment is defective because the parties have not been duly summoned.

Revision of Court of Cassation rulings – a step towards greater recognition of case law The United Arab Emirates, being a civil law court, does not have a binding judicial precedent system as understood in the systems common law. That said, although a single judgment from the courts of the United Arab Emirates is not binding, a line of authority established by the superior courts is influential, for example the principle that arbitration is an exceptional form of dispute resolution. . Federal Law No.10 of 2019 created a judicial tribunal composed of judges from the Federal Supreme Court and the Courts of Cassation in order to unify federal and local judicial principles and precedents issued by these courts and to eliminate potential conflicts. . The role of judicial principles under UAE law is further recognized by the decree, which identifies conflict with judicial principles as one of the grounds for appealing against a judgment of the Court of Cassation. Before the decree, article 187 of the Code of Civil Procedure provided that a judgment of a Court of Cassation was not subject to appeal, but was subject to review in certain limited circumstances set out in paragraphs 1, 2 and 3 of article 169. of the Code of Civil Procedure (respectively fraud, false or false testimony and suppression of conclusive evidence). The decree adds article 187 bis which provides that the Court of Cassation may, of its own motion or at the request of the party against whom the judgment is rendered, annul a decision, among others, in the following cases:

  • in the event of a procedural error (either directly from the court or from one of its departments) affecting the conclusion of the decision / judgment;
  • when the decision / judgment is based on a repealed law, and a different result would result if the current law were applied; and
  • the decision / judgment violates the judicial principles established by the panel, or other entire judicial circuits, or if it violates the principles established by the court, or the principles established by the judicial tribunal established by Federal Law 10 of 2019 .

When a party wishes to exercise this remedy, a request for annulment must be filed with the President of the Federal Supreme Court / Court of Cassation, with a deposit of AED 20,000. Claims can only be filed within one year of the initial judgment. If the request for annulment is accepted, the case will be returned to the court which issued the reconsideration decision. The amendments leave some questions open. There is no clear indication of what constitutes a judicial principle. The decree is also silent on judgments of any jurisdiction other than the Federal Supreme Court and the Courts of Cassation which may have become final, for example because they have not been the subject of an appeal, although the wording suggests that this mechanism is limited to judgments of the Federal Supreme Court. and Cour de cassation.

Modifications concerning Payment Order requests

One of the main changes introduced by the regulation was the extension of the summary procedure known as payment orders, previously limited to disputes involving commercial instruments, to disputes involving written confirmation of debt. The Cabinet resolution makes further changes to the law governing this procedure, including the following:

  • Amend article 64 of the Rules to require the judge to provide a justification for the court’s decision when granting or rejecting a request for a payment order in connection with the performance of a commercial contract. Previously, justification was only required when the judge rejected a request.
  • An appeal against a payment order (appeals are available when the value of the claim is over AED50,000) can now be filed within 30 days of the decision. Previously, it was 15 days. The amendment also requires that a detailed appeal brief be filed when the appeal is filed. Previously, a simple notice of appeal was sufficient. When the value of the claim is less than AED50,000, a dispute must be made by way of an objection (or a ‘grievance’ as it is commonly known) within 15 days – the law relating to such disputes. did not change.
  • The Cabinet resolution provides that in the event of an appeal arising from a case which has been filed as ordinary proceedings but the supervisory judge has instead issued a payment order, and the court of appeal considers that the conditions for issuing a payment order have not been met, the court of appeal may refer the case back to the court of first instance for it to be heard as an ordinary request. Before the amendment, if the Court of Appeal considered that the conditions for issuing a payment order were not met, the request would be rejected.

Convening of the parties

A constant theme in the changes made to the Code of Civil Procedure since 2017 is the attempt to streamline the process of serving legal proceedings on defendants. The Cabinet resolution takes further steps in this direction by providing that:

  • summons may be served by recorded audio or video calls, short message services, smart applications, e-mail, fax or any other means agreed between the parties using the method of service recognized in the Settlement;
  • the summons may be served at the domicile or residence of the defendant, or on his mandataries, spouses, parents or servants and this refusal to accept the summons will be deemed to entail personal service; and
  • a summons may be served at a workplace on the defendant, his supervisor or the management of the workplace.

If the service cannot be affected as above, the summons must be served inter alia by publication on the court’s website or in newspapers, including a foreign language newspaper when the party requested to be summoned is not not a national of the United Arab Emirates. In practice, serving a subpoena can still be a tedious exercise in UAE courts (less in Dubai courts), and it is hoped that the changes brought about by the Cabinet resolution will make this process smoother. effective.

Addition of scope for ad hoc tribunals

Article 30 (bis) of the Code of Civil Procedure provides that the Minister of Justice or the head of the judicial authority of an emirate may create an ad hoc tribunal chaired by a judge and assisted by two local or international experts to hear and determine certain questions which would otherwise fall within the competence of the great circuit of the courts. The Cabinet resolution specifies that the ad hoc courts will be competent to hear civil, real estate, commercial and inheritance matters, and that disputes agreed to by the parties will be subject to the jurisdiction of the ad hoc courts. Where such an agreement exists, other courts should decline jurisdiction, provided that the defendant in the case asserts a jurisdictional exception before going to court on the merits of the dispute (i.e. – say in the same way as when raising a jurisdictional objection based on the existence of an arbitration agreement). Each ad hoc tribunal will have a “preparatory judge” who will exercise the powers of guardianship judge and case manager. The “readiness judge” is required to encourage dispute resolution, and if a settlement is reached, the settlement report acquires the status of an enforceable title. If settlement is not possible, the “preparation judge” must, within 30 days, prepare an opinion paper taking into account the positions of the parties and the applicable law, and the case will be remitted to the Court. competent court for decision in the ordinary way.

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