Judicial system in the United Arab Emirates

The legal system of the United Arab Emirates is based on the Constitution of the United Arab Emirates; this system is dual in nature as it has local and federal courts with a Supreme Court Based at Abu Dhabi.[1]

Unlike Britain[2] and other countries where previous court judgments are regularly used as legal precedents, the UAE does not depend that much on precedents, although sometimes the judgements of higher courts can be applied by lower courts in similar cases.

Where legislative provisions do not cover a specific issue, the court will make a decision in accordance with Sharia law. Islamic jurisprudence is widely used in the construction and interpretation of the UAE law.[3]

History

Prior to the Union in 1971, the Trucial States were known as a protectorate of the British Empire established through a number of treaties. During that period, most disputes were handled by the rulers of the emirates, heads of local tribes, and unofficial judges following customary law. The primary source of law was Islam along with the unwritten social conventions or "Urf". Sharia judges specialized in family disputes whereas customary law judges handled criminal assaults and personal disputes. In the inland Bedouin communities, disputes usually related to livestock and water resources. Disputes in coastal cities were normally about trade and commercial relations, particularly related to the pearl trade.

After the 1853 truce, disputes pertaining to pearl diving were handled directly by the British political resident in the Persian Gulf.[4]

UAE legal system in the constitution

The United Arab Emirates’ Constitution, which came into effect on 2 December 1971, dedicates all its fifth Section for the Union legal system. Article 94 of the Constitution stipulates that “justice is the basis of authority”.[5]

Sources of UAE laws

The United Arab Emirates is essentially a civil law jurisdiction that depends in the first place on Roman, French, Egyptian laws . However, the main source of the Emirati law is the Sharia law.[3] International law is another source of Emirati law, in compliance with the UAE obligations signed in international conventions.

Courts

The Supreme Court

Being the highest judicial instance in the UAE does not mean that it applies to the seven Emirates, Dubai and Ras Al Khayma have their own local judicial system. Article 96 of the UAE Constitution reads as follows “The Supreme Court of the Union shall consist of a President and a number of Judges, not exceeding five in all, who shall be appointed by decree, issued by the President of the Union after approval by the Supreme Council ”.

The constitution also divides courts in the country into two types, federal courts and local courts. The president and the members of the Supreme Court can by no means be removed from their offices, except in the following cases: Death, resignation, completion of term or secondment, retirement, permanent disability that prevent a judge from undertaking their duties, disciplinary discharge and finally “appointment to other offices, with their agreement”. Any court has it jurisdiction, the judgments of the Emirati Supreme Court cover matters like Miscellaneous disputes raising between the Member Emirates, law constitutionality, constitution interpretation, interrogation of senior officials of the Union like Ministers, crimes threatening affecting the interests of the Union. Article 101 of the Emirati Constitution stipulates that “The judgements of the Supreme Court of the Union shall be final and binding upon all.”

The first President of the Union Supreme Court of the United Arab Emirates is H.E Judge Dr. Abdul Wahab Abdul (incumbent).[6]

Federal Courts

As their names suggests, Federal Courts are competent to consider all cases arising within the UAE territory, like disputes, domiciliary, transactions, etc. "Furthermore, UAE courts have a kind of “emergency jurisdiction,” whereby a UAE court can determine preliminary applications for attachment of a defendant’s assets as well as urgent applications, even where the court would otherwise lack jurisdiction" . Cases are commenced in Federal Courts when the complaint is filed with the Reconciliation and Settlement Committee. “The relevant reconciliation committee will attempt reconciliation, and refer complaints to the court only after resolution efforts have failed.”[7]

Local Courts

Local courts (First Instance Court) in the UAE basically consider “cases, authentications and all urgent matters related to disputes among the people as well as the safeguard of their rights, security and safety. It also undertakes forcible judicial execution for execution deed stipulated by law, as well as executions by deputation or reference”.[8]

Sharia Courts

Sharia courts focus on civil disputes in which the parties are Muslims. They depend on the juristic provisions provided for in the Quran the Hadith to render decisions. “The Sharia court may, at the federal level only (which, as mentioned earlier, excludes Dubai and Ras Al Khaimah), also hear appeals of certain criminal cases including rape, robbery, driving under the influence of alcohol and related crimes, which were originally tried in lower criminal courts."[9]

Civil Courts

The jurisdiction of civil courts is generic as they can consider urgent cases and petitions of all types, including petitions of attachments, orders of payment and complaints. A civil Court also "deals with financial and corporeal rights and legal positions meant to protect by virtue of it, it does not includes commercial, realty, labor, personal status or endowment or inheritance cases".[10]

Common Law Courts

Dubai International Financial Center Courts (DIFC)

See also: DIFC Courts

The DIFC Courts are an independent English language common law judiciary, with jurisdiction governing civil and commercial disputes nationally, regionally and worldwide. The Courts began operations in 2006.

Originally, the jurisdiction of the DIFC Courts was limited to the geographical area of the DIFC. On October 2011, the signing of Dubai Law No 16.[1] allowed the DIFC Courts to hear any local or international cases and to resolve commercial disputes with the consent of all parties.

Abu Dhabi Global Market Courts (ADGM)

Established in accordance with Abu Dhabi Law No (4) of 2013, ADGM Courts are broadly modelled on the English judicial system. The common law of England, including the principles and rules of Equity, apply and form part of the law of the Abu Dhabi Global Market.[11] The Regulations for ADGM Courts were also drawn from Scots and Australian Federal law and have been tailored specifically to meet the requirements of ADGM Courts. The direct application of English law makes ADGM the first jurisdiction in the Middle East to adopt a similar approach to that of Singapore and Hong Kong.[12]

Neither DIFC nor ADGM courts have jurisdiction in criminal matters.

Dubai Court System & Ras Al Khaimah Court System

Dubai and Ras Al Khaimah have two independent legal systems. For instance, Dubai’s court system three stages: The Court of First Instance, the Court of Appeal, and the Court of Cassation. Generally speaking, Dubai and Ras Al Khaimah courts consider local disputes concerning property and domestic disputes. However, it can also enforce foreign judgments, arbitration awards, and awards from other tribunals such as the dispute resolution bodies within the Free Zones & Special Economic Zones. The legal systems of the two emirates are different from one another at several levels, but there is at least one important similarity which that of being independent from the federal system, and from the authority of the federal Supreme Court

The Dubai Rental Disputes Center (RDC)

Established pursuant to Local Decree No.26 of 2013, the RDC has almost exclusive jurisdiction to settle disputes arising between landlords and tenants in Dubai, as per Dubai Law No.26 of 2007 Regulating Relationship between Landlords and Tenants in the Emirate of Dubai.

Alternative Dispute Resolution (ADR)

There are various Alternative Dispute Resolution (ADR) mechanisms available for individuals and business in the UAE.

Arbitration

Arbitration has long been recognized as a dispute resolution mechanism in the region, and one that has been quoted in Islamic religious texts.[13] There has been numerous initiatives in the UAE to build up a strong presence in international commercial arbitration, including the codification of modern arbitration rules in federal and other laws.

Dubai International Arbitration Centre (DIAC)

First created in 1994 as the "Centre for Commercial Conciliation and Arbitration", the current DIAC is non-profit institution located in the Dubai Chamber of Commerce & Industry (DCCI).

The DIFC/LCIA Arbitration Centre

A joint venture between the Dubai International Financial Centre (DIFC) and the London Court of International Arbitration (LCIA). The arbitration rules for the Center are closely modeled on the LCIA’s own rules with some modifications.

The International Islamic Centre for Reconciliation and Arbitration (IICRA)

IICRA is an international, independent, non-profit organization supporting the Islamic finance industry. The center settles all financial and commercial disputes that arise between financial or business institutions that choose to apply the provisions of Islamic law, Sharia principles, in resolving disputes that arise between these institutions and their clients or between them and third parties through reconciliation or arbitration.

Mediation

Employment disputes

Under the UAE Federal Labor Law, all unresolved employment disputes must be lodged first at the Ministry of Labour office where a settlement is negotiated between employers and workers.[14] If the negotiations fail, either party may take up the matter at court. Since there are no trade unions in the UAE, collective disputes are handled by a special committee composed of the Minister of Labour, a Supreme Court Judge, and one expert. In Dubai, individuals can also refer to a similar service provided by the General Directorate of Residency and Foreigners Affairs as a first step before going to court. In 2015, a new department dedicated to resolving disputes between domestic helpers and sponsors has opened at the General Directorate of Residency and Foreigners Affairs (GDRFA) branch in Al Aweer. The department, a sub-branch of the Follow up on Illegals and Foreigners Sector, handles complaints from domestic helpers in Dubai.[15]

In Dubai, the General Department of Human Rights at Dubai Police receives individual and collective complaints filed by workers against their employers. Complaints would be related to living conditions, wages, and security and safety of labour accommodations and this service is accessible online.[16]

As to civil servants in Dubai, employment complaints can be filed at the office of the Ruler of Dubai, which will attempt to find an agreement between the two parties. If it fails, it will issue the employee a letter addressed to the Dubai courts regarding the complaint.[17] In 2015, the Crown Prince of Dubai has approved the establishment of the Dubai government staff central grievances committee. Members of the committee include a representative from the General Secretariat of the Executive Council of the Emirate of Dubai, the higher legislation committee and the department of human resources.[18]

The Dubai Courts Centre for Amicable Dispute Resolution

Disputes that fall under the jurisdiction of the Centre are not registered at the courts unless they are submitted first and a referral is issued. Claims are handled by experienced mediators under the supervision of a judge.[19] Once a settlement is reached, the legally enforceable agreement will be signed by the parties and attested by a judge.

The Family Guidance Department

The Family Guidance Department forms an essential part of the family court. All divorce applications are handled first through the department where experienced mediators work to resolve the issues between couples and family members.

The Commercial Compliance and Consumer Protection (CCCP)

CCCP is part of Dubai's Department of Economic Development. Consumers can approach CCCP by phone, email or fax to lodge their complaints (and soon through dedicated counters at all retail outlets[20]). Upon receiving a complaint, CCCP will contact each person involved to try and find a satisfactory resolution. The aim is to resolve most complaints within 30 days.[21]

Dubai Chamber of Commerce

Mediation is one of the legal services provided by the Chamber. The value of mediation cases which were settled by the chamber during 2015 reached Dh18.3 million ($4.9 millions). The first mediation smart app in the Middle East was announced in 2015.[22]

Mediation at DIFC Courts

The Small Claims Tribunal (SCT) of the DIFC Courts, features a formal session of mediation as part of its procedure. Approximately 90% of applications before the SCT settle at the “consultation” phase which is a mandatory court–guided mediation session. Only if the parties are unable to reach a settlement will a judge of the DIFC Courts go on to hold a hearing and deliver a Court judgment. SCT proceedings are confidential and parties are not normally legally represented.[23]

Judicial Studies and legal profession

Since early years following its independence, the UAE has tried to build its judicial framework. To achieve this goal, the UAE has worked on several levels. Training people who would be judges, lawyers, clerks and others was one very important level.

The Institute of Training and Judicial Studies (ITJS)

The Institute of Training and Judicial Studies (ITJS) based in Abu Dhabi was established in December 14, 1992. The Cabinet issued Resolution N 14 of 1992 that officially establishes this institute. In 2004, a federal law confirmed the federal status of the institute.

Institute of Training and Judicial Studies (ITJS) undertakes several missions:

Dubai Judicial Institute

Dubai Judicial Institute is a public institute established in 1996 by virtue of law No 1 of 1996, amended by law No 27 of 2009. This institute undertakes it’s the missions under the supervision the Cabinet of HH the Ruler of Dubai.[25]

Abu Dhabi Judicial Academy

Abu Dhabi Judicial Academy was established under Decision No (16) of 2007 issued by His Highness Sheikh Mansour Bin Zayed Al Nahyan, the Chairman of the Judicial Department, the Academy is an institution of higher education and specialized training that trains the Judicial Authority members on all branches of law and judicial majors.[26]

The Academy of Law (DIFC)

The DIFC Dispute Resolution Authority Academy (Academy of Law) was established in 2015 as an independent entity to provide quality services to the UAE legal community.[27] Its core functions include training and regulating lawyers, publishing, hosting events for the legal community, and providing free legal advice for people in need. The academy offers comprehensive training to UAE legal professionals from all backgrounds and levels, from experienced English language Common Law practitioners through to newly qualified lawyers and those currently operating in the Arabic speaking civil system. The training faculty includes senior practicing barristers from Dubai and London with extensive experience of training advocates in England and other jurisdictions.

The Chartered Institute of Arbitrators (CIArb)

Established in 2005, the UAE Branch of CIArb is part of the network of CIArb branches across the world. It offers arbitration related training, education (both in Arabic and English), as well as networking events for legal professionals and arbitrators.[28]

Maktoum Bin Mohammed Initiatives for Legal Excellence

The Initiatives aim at enhancing the capacities of individuals engaged in the judicial field, and motivating pioneering in legal work.[29] The project consists of a number of programs including the moot court competition, legal scientific research competition, legal scholarships program, program for legal and judicial conferences, and the Dubai International Financial Centre (DIFC) Courts Academy.

References

  1. ↑ http://globalarbitrationreview.com/know-how/topics/73/jurisdictions/33/united-arab-emirates/
  2. ↑ https://www.innertemple.org.uk/downloads/education/lectures/lecture_james_lee.pdf
  3. 1 2 "Sharia as a source of UAE law". www.hadefpartners.com. Retrieved 2016-11-01.
  4. ↑ Al Falahi, Noora (2014). Judicial System in The Trucial Coast. Hamdan Bin Mohammed Heritage Centre. p. 27.
  5. ↑ https://www.constituteproject.org/constitution/United_Arab_Emirates_2004.pdf
  6. ↑ Union Supreme Court http://ejustice.gov.ae/portal/page/portal/eJustice%20MOJ%20Portal/SupremeCourt/Home. Retrieved 13 May 2016. Missing or empty |title= (help)
  7. ↑ "How the Federal and local court systems fit together, UAE Courts". UAE Attorneys. Retrieved 2016-11-01.
  8. ↑ "First Instance Court". www.dubaicourts.gov.ae. Retrieved 2016-11-01.
  9. ↑ "The UAE Court System". Dubai, UAE - Consulate General of the United States. Retrieved 2016-11-01.
  10. ↑ "Civil Court". www.dubaicourts.gov.ae. Retrieved 2016-11-01.
  11. ↑ "Application of English Law Regulations 2015" (PDF). ADGM. Retrieved 14 May 2016.
  12. ↑ "ADGM | ADGM Courts Legal Framework". www.adgm.com. Retrieved 2016-05-13.
  13. ↑ Company, Al Tamimi &. "Finding your path: Arbitration, Sharia, and the Modern Middle East - Al Tamimi & Company". www.tamimi.com. Retrieved 2016-06-20.
  14. ↑ "Ministry of Labour". www.mol.gov.ae. Retrieved 2016-06-20.
  15. ↑ Bedirian, Razmig (2015-06-22). "New department to resolve domestic helpers' disputes". GulfNews. Retrieved 2016-11-01.
  16. ↑ https://www.dubaipolice.gov.ae/dp/jsps/content/flat_content.do?contentCode=105947
  17. ↑ "Navigating labour disputes in the UAE | The National". www.thenational.ae. Retrieved 2016-06-20.
  18. ↑ "Dubai government grievances committee established | The National". www.thenational.ae. Retrieved 2016-06-20.
  19. ↑ "Dubai Courts Centre for Amicable Dispute Resolution" (PDF).
  20. ↑ Satff. "All Dubai retail outlets to have consumer protection counters". Emirates 24|7. Retrieved 2016-06-20.
  21. ↑ "Areas where CCCP can help you". www.consumerrights.ae. Retrieved 2016-06-20.
  22. ↑ "تطبيق الوساطة الذكية الأول من نوعه في العالم". البيان (in Arabic). 2015-11-04. Retrieved 2016-06-20.
  23. ↑ "The Role of Mediation in the DIFC Courts | Global Law Summit". globallawsummit.com. Retrieved 2016-06-20.
  24. ↑ "Welcome to the Institute of Training and Judicial Studies". www.itjs.gov.ae. Retrieved 2016-11-01.
  25. ↑ http://www.dji.gov.ae/en/pages/default.aspx
  26. ↑ "Abu Dhabi Judicial Department > Abu Dhabi Judicial Academy". www.adjd.gov.ae. Retrieved 2016-11-01.
  27. ↑ "Academy of Law". www.draacademy.ae. Retrieved 2016-11-01.
  28. ↑ "About the Branch". www.ciarb.org. Retrieved 2016-06-20.
  29. ↑ "About". www.maktouminitiative.ae. Retrieved 2016-11-01.
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