Book an appointment with us, or search the directory to find the right lawyer for you directly through the app.Find out more
We are excited to share the latest edition of the Law Update, beautifully and appropriately titled “Sustainable Horizons: The Saudi Arabian Vision.” Giving special honor to the Kingdom’s 2030 vision, this update focuses on a collection of both informative and inspiring articles.
For those in construction, you can learn about how the tendering environment impacts risk-pricing for contractors, the updates on the legal framework of the construction industry and how contractors can protect themselves against financial difficulties.
There is good news too from the kingdom’s banking sector, from which the practice of “Open Banking” is being pushed for! But what is open banking? We’re answering that too.
Also . . . Are there any women trail blazers in Saudi Arabia you can name? We’ll help you with that. We cover how the Middle East has been making strides in empowering women in the entrepreneurial space,most notably in STEM fields.Read the full edition
Khaled Gamaleldeen - Senior Counsel - Litigation
Hussain Al Matrood
These treaties simplify the judicial process related to disputes persons and/or companies of Member States and the process of executing judgments obtained in a Member State.
One of the benefits of such treaties and the focus of this article is the ability in the UAE to execute a foreign judgment received in a Member State despite a UAE court having concurrent jurisdiction of the underlying matter.
Under the Civil Procedure Code (“the Code”) the UAE does not allow execution of judgments obtained from other countries if a UAE court also has jurisdiction over the matter regardless if the UAE court exercised that jurisdiction or not. (Civil Procedure Code, Art. 235 (2), Fed. Dec. 11 of 1992) It is important to note that, the Code also applies this restriction to Arbitration awards, however, this article will not deal with those due to the existence of different treaties for the execution of Arbitration awards.
The courts are stringent in its application, whereby jurisdiction clauses of contracts are often of no consequence where the UAE courts have found concurrent jurisdiction. By way of example, the Dubai Court of Cassation ruled that two parties to a contract remained subject to UAE jurisdiction despite having agreed to UK jurisdiction for any dispute arising under the relevant contract, citing the fact that the products, being the subject matter of the contract, were delivered in the UAE. (Dubai Court of Cassation, 10/1999) In fact, the Court has gone so far as to say that as a matter of public policy UAE courts must not waive their jurisdiction in instances in which it has concurrent with a foreign court. (Dubai Court of Cassation, 325/2004).
This protectionist policy is waived however with the applicability of international treaties. The Code also provides, in the same chapter: “The rules laid down in the foregoing articles shall be without prejudice to the provisions of conventions between the UAE and other countries in this regard.” (Civil Procedure Code, Art. 238, Fed. Dec. 11 of 1992). Thus, whenever there is an international treaty that the UAE is party to and the treaty details rules for the execution of judgments between the parties to the treaty, the rules of the treaty will supersede the relevant rules of the Code (mainly 235-237).
One of the cases from the Dubai Court of Cassation which illustrate the application of these rules concerns a divorce judgment (“Judgment”) that was granted in a Court in Beirut, Lebanon. The wife (“Petitioner”) petitioned the Court of First Instance in Dubai for execution of the Judgment which granted her custody of their infant child, who was at the time less than a year old. The husband (“Respondent”) responded by claiming that a UAE Court has jurisdiction over the underlying matter as he is a resident of Dubai and the Petitioner was residing with him in Dubai prior to the divorce.
The Court of First Instance rejected the execution of the Judgment reasoning that since the Courts of the UAE have jurisdiction over the underlying matter, a foreign judgment should not be executed. On appeal the Court of Appeals overturned the rejection and the Respondent appealed to the Court of Cassation.
Analysis of the Court of Cassation
Citing Article 238 of the Code, the Dubai Court of Cassation reasoned that because the UAE and Lebanon are both parties to The Riyadh Arab Convention on Judicial Cooperation Treaty (“the Riyadh Treaty”), the treaty’s provisions establishing rules for execution of judgments between contracting countries would be applicable.
The Riyadh Treaty provides that “recognition of the judgment shall be rejected” in a number of instances such as violation of Islamic Sharia Law, the constitution of the country, lack of service, and other restriction listed in Article 30 of the Riyadh Treaty. However, the two relevant of these restrictions, which the Court found to not have been violated by this judgment, are:
(Ex. If a final judgment was issued in Yemen and it is sought to be executed in UAE, it will only be executed if there is no final judgment related to the same matter in the UAE and the UAE did not previously execute a third country’s final judgment regarding the same matter.)
(Ex. If a final judgment was issued in Tunisia and it is sought to be executed in UAE, and a UAE court also has jurisdiction over the same underlying matter, the UAE court must execute the judgment unless a hearing in the UAE regarding the matter was initiated prior to the one in Tunisia.)
The Court reasoned that despite the Courts of UAE having concurrent jurisdiction over the matter, since the Judgment was issued prior to the dispute being raised in the UAE, and it did not violate any of the other provisions in Article 30 of the Riyadh Treaty, it should be executed. (Dubai Court of Cassation, 5/2004)
In light of the above, it is critical to review the relevant international treaties before initiating a legal action that is intended to be executed in the UAE. Failure to review these treaties could render a final judgment obtained useless, as it will not be executed in the UAE if a UAE court is found to have concurrent jurisdiction. The Riyadh Treaty, as explained above, provides instances where concurrent jurisdiction would be waived by a UAE court. The UAE has similar provisions in Judicial Cooperation treaties with France (Ch.5, Article 13 – Dec. 31 of 1992), India (Article XX – Dec. 33 of 2000), Pakistan (Article 16 – Dec. 12 of 2005), Afghanistan (Article 21 – Dec. 23 of 2009), Azerbaijan (Article 21 – Dec. 37 of 2007), Armenia (Article 16 of Part III – Dec. 26 of 2003) and Egypt (Article 31 – Dec. 83 of 2000)
To learn more about our services and get the latest legal insights from across the Middle East and North Africa region, click on the link below.