UAE Laws and Islamic Finance

Laws of the UAE and Islamic Finance

Archive for May 26, 2010

Enforcement of Judgments and Arbitration Awards under the Riyadh Arab Agreement for Judicial Cooperation

Several Arab countries, following the Declaration of the First Arab Conference of Ministers of Justice held in Rabat in 1977, signed the Riyadh Arab Agreement on Judicial Cooperation, which was subsequently approved by the Council of Arab Ministers of Justice on April 6, 1983. It entered into force on October 30, 1985. The following governments are signatories to this agreement: Jordan, United Arab Emirates, Bahrain, Tunisia, Algeria, Djibouti, Saudi Arabia, Sudan, Syria, Somalia, Iraq, Oman, Palestine, Qatar, Kuwait, Lebanon, Libya, Morocco, Mauritania and Yemen.

PART V – RECOGNITION OF JUDGEMENTS PRONOUNCED IN CIVIL, COMMERCIAL, ADMINISTRATIVE AND PERSONAL STATUTE ACTIONS

Article 25: Power or res judicata

(a)  In the application of this Part, judgment means every decision – regardless of nomenclature – made in pursuance of judicial or jurisdictional procedures of the courts or any competent authority of any party.

(b)  Subject to the provisions of Article 30 of this Agreement, each contracting party shall recognize the judgments made by the courts of any other contracting party in civil cases including judgments related to civil rights made by penal courts and in commercial, administrative and personal statute judgments having the force of res adjudicata and shall implement them in its territory in accordance with the procedures stipulated in this Part, if the courts of the contracting party which made the said judgments are competent under the provisions of the rules of jurisdiction in force in the requested party, and if the legal system of the requested party does not retain for its courts or the courts of another party the exclusive competence to make such judgments.

(c)  The present Article shall not apply to:

•Judgments made against the government of the requested party or against any of its employees in respect of acts undertaken in the course of duty or exclusively on account thereof.

•Judgments the recognition or implementation of which would be inconsistent with international treaties and agreements applied by the requested party.

•Provisional and precautionary measures and judgments made in cases of bankruptcy, taxes and fees.

Article 26: Jurisdiction in disputes over the competence of the person requesting implementation of his personal status

The courts of the contracting party of which the person concerned is a national at the time of submitting the request are deemed competent in cases of legal capacity and personal status if the dispute concerns the capacity of such person or his personal status.

Article 27: Jurisdiction in cases of real estate

The courts of the contracting party in whose territory the property is situated shall have jurisdiction.

Article 28: Jurisdiction of the courts of the contracting party where the judgment is made

Except in the cases provided for in Articles 16 and 27 of this Agreement, the courts of the contracting party where the judgment was made shall be considered to have jurisdiction in the following cases:

(a)  If the domicile or place of residence of the defendant at the time of hearing (opening the case) was in the territory of the said contracting party.

(b)  If the defendant had at the time of hearing (opening the case) a place or branch of business or industry or any other such activity in the territory of the said contracting party, and the action instituted against him pertained to a dispute concerning the activities undertaken in such place or branch.

(c)  If the contractual obligation subject of the dispute has been executed, or be mandatory in the contracting party under an express or implied agreement between the plaintiff and the defendant.

(d)  In cases of non-contractual liability, if the act incurring such liability had occurred in the territory of the said contracting party.

(e)  If the defendant had expressly accepted to be subject to the jurisdiction of the courts of the said contracting party, be it through the designation of an elected domicile or through agreement of such jurisdiction, provided that the law of the said contracting party does not prohibit such agreement.

(f)   If the defendant made a defence in the substance of the case without raising a plea of non-jurisdiction of the court before which the dispute was brought.

(g)  If the matter pertained to incidental requests when such courts had been deemed competent to examine the initial request under the text of the present Agreement.

Article 29: Scope of jurisdiction of the courts of the contracting party requested to recognize or implement the judgment

The courts of the contracting party requested to recognize or implement a judgment, when considering the basis of the jurisdiction of the courts of the other contracting party, shall have regard to the facts included in the judgment, unless the judgment is made in absentia.

Article 30: Refusal to recognize judgments

Recognition of judgments shall be refused in the following cases:

(a)  If recognition would be in contradiction with the stipulations of the Islamic Shari’a, the provisions of the constitution, public order, or the rules of conduct of the requested party.

(b)  If the judgment was passed in absentia without notifying the convicted party of the proceedings in an appropriate fashion that would enable him to defend himself.

(c)  If the law of the requested party applicable to legal representation of ineligible persons or persons of diminished eligibility were not taken into consideration.

(d)  If the dispute has given rise to another final judgment in the requested state, or in a third state and if the requested party has already recognized such a final judgment.

(e)  If the dispute is also the subject of a case being heard by the courts of the requested party and the action has been brought before the courts of the requested party on a date preceding the presentation of the dispute to the court of the requesting party.

The judicial body examining the request for recognition in accordance with the text of this Article may observe the rule of law in its own country.

Article 31: Execution of the judgment

(a)  Judgments made by the courts of any contracting party and duly recognized by the other contracting parties in accordance with the provisions of this Agreement shall be executed in the territory of that contracting party so long as they are so in the territory of the contracting party whose courts had made the said judgments.

(b)  Procedures pertaining to the recognition of a judgment or the execution thereof shall be subject to the laws of the requested party if not otherwise governed by the provisions of this Agreement.

Article 32: Duties of the competent judicial body of the contracting party requested to recognize or execute the judgment

The duties of the competent judicial body of the contracting party requested to recognize or to execute the judgment concerned shall be confined to establishing that the judgment complies with the provisions of this Agreement without examining the subject matter thereof; the said body shall do this automatically and confirm the outcome in its relevant decision.

The competent judicial body of the contracting party requested to recognize the judgment shall order – as soon as it deems necessary – that appropriate measures be taken to give the judgment the same enforceable status as it would have had if it had been made by the requested party.

The request for the order to enforce may concentrate on the operative text of the judgment or parts thereof if it is divisible.

Article 33: Consequences of the execution order

The execution order shall be binding on all parties to an action who domiciled in the territory of the contracting party where the judgment was made.

Article 34: Documents pertaining to the request to recognize or execute a judgment

Any authority recognizing a judgment by any other contracting party must submit the following:

(a)  A full and official copy of the judgment the signatures on which must be authenticated by the competent authority.

(b)  A certificate attesting that the judgment is final and has the power of res judicata, unless this be specified in the text of the judgment itself.

(c)  A copy of the document whereby notice of the judgment was served attested to as a true copy or any other document demonstrating that the defendant had been duly and expressly notified of the action on which the judgment was pronounced when this was pronounced in absentia.

In the case of a request that the judgment be executed, a certified copy of the order to enforce such judgment must accompany the aforementioned documents. The documents enumerated in this Article shall carry the necessary official signatures and the seal of the competent court without any further attestation by any other authority, except for the document mentioned in provision (a) of this Article.

Article 35: Conciliation before competent authorities

Conciliation proved before the competent judicial authorities in accordance with the provisions of this Agreement in the territory of any of the contracting parties shall be recognized and effective in the territories of all other contracting parties after ascertaining that it has the force of an executive document with the contracting party in whose territory it was concluded, and that it does not contain any texts in contradiction of the provisions of Islamic Shari’a or the constitution or public order or rules of conduct of the contracting party required to recognize such conciliation or put it into force.

The party requesting recognition of such conciliation or the execution thereof shall provide a certified copy of it and an official certificate attesting that it has the force of an executive document issued by the judicial authority before which it had been so proved.

In this case the third paragraph of Article 34 of this Agreement shall apply.

Article 36: Writs of execution

Writs of execution of a contracting party in whose territory they were issued shall be put into force by the other contracting parties in accordance with the procedures followed in the case of judicial judgments if such writs be subject to the said procedures, provided that the application thereof does not conflict with the provisions of Islamic Shari’a, or the constitution, public order or the rules of conduct of the contracting party required to give effect to such writs. The authority requesting recognition and execution of a documented writ by the other contracting party shall submit an official copy thereof carrying the seal of the authenticating officer or office duly certified, or a certificate issued by the latter stating that the writ has the force of an executive document. In this case, the third paragraph of Article 34 of this Agreement shall apply.

Article 37: Adjudications or arbitrators

Without prejudice to the provisions of Articles 28 and 30 of this Agreement adjudications of arbitrators shall be recognized and executed by any contracting party in the manner stipulated in this Part subject to the legal norms of the requested party, and the competent judicial authority of the requested party may not discuss the subject of such arbitration nor refuse to execute the judgment except in the following cases:

(a)  If the law of the requested party does not permit the settlement of the subject of the dispute by arbitration.

(b)  If the adjudication of the arbitrators is made in execution of a condition or arbitration contract that is void or has not become final.

(c)  If the arbitrators are non-competent under the contract or condition of arbitration or under the law on the basis of which the adjudication was made.

(d)  If the litigants have not been served subpoenas in the proper manner.

(e)  If any part of the adjudication be in contradiction with the provisions of Islamic Shari’a, the public order or the rules of conduct of the requested party.

The authority requesting recognition of the adjudication of arbitrators and the execution thereof shall submit a certified copy of the adjudication accompanied by a certificate issued by the said authority stating that the adjudication has executive force.

If there be a proper, written agreement under which the parties had consented to submit to the competence of the arbitrators in settling a certain dispute or whatever other disputes arising between the two parties in respect of a certain legal relationship, a certified copy of such agreement must be submitted.

http://www.unhcr.org/refworld/type,MULTILATERALTREATY,ARAB,,3ae6b38d8,0.html

Concerns and Recommendations:

What about the awards of all the arbitration centers of the contracting parties such as the Dubai International Financial Center/London Court for International Arbitration  DIFC/LCIA Arbitration Center, the Dubai International Arbitration Center (DIAC),  the Takheem Sharjah International Arbitration Center, the GCC Arbitration Center, and the new Bahrain arbitration center, the Bahrain Chamber for Dispute Resolution (BCDR)? Are the arbitration awards of these centres enforceable in the member states of the Riyadh Convention? Shouldn’t we amend the Riyhadh Convention in writing to include the  reciprocal enforceability of all awards of all arbitration centers located within all of the territories of the member states of the Riyadh Convention?

Does the UAE need a Technology and Construction Court Similar to the UK and a Unified Construction Law?

 

It would be quite useful for the UAE to develop a separate construction court staffed with construction specialist judges to settle disputes involving construction contracts in the UAE, especially as most of the FIDIC 1999 Red Book does not comply with the UAE law. Such a construction court would expedite the dispute resolution process within a construction process which is cluttered and constrained with deadlines, critical paths, handover dates, etc. In addition, a Federal Unified Construction Code would present to the construction industry a clear and explicit explanation of the laws which they must abide by and to which their contracts must comply. As it stands now, the provisions of UAE construction law are scattered between various laws such as the Civil Procedure Code, the Civil Transactions Law, the Commercial Transactions Law, and the Laws Regarding Procurement with each Emirate and it can be quite difficult to extract and comprehend the law which applies to the construction tender, project, and dispute process.

Please see the below link for the UK model:

http://www.hmcourts-service.gov.uk/infoabout/tcc/index.htm

The Technology and Construction Court The Technology and Construction Court (“TCC”) is a specialist court, which deals principally with technology and construction disputes. The full range of work undertaken by the TCC is set out in CPR Part 60 and the accompanying practice direction.

London The TCC at St Dunstan’s House, 133-137 Fetter Lane, London EC4A 1HD deals with all High Court TCC claims which are brought in London.

Three High Court judges and three senior circuit judges sit regularly at St Dunstan’s House.

Mr. Justice Ramsey is the judge in charge of the TCC and sits in London. He and the other London TCC judges are available to manage and try TCC cases either in London or at any of the regional court centres mentioned below.

The Central London Civil Justice Centre at 13-14 Park Crescent, London W1N 4HT deals with all county court TCC cases in London.

Regional Centres

The court centres outside London at which the TCC principally operates are:

• Birmingham

• Bristol

 • Cardiff

• Chester

• Exeter/Plymouth

• Leeds

• Liverpool

• Newcastle

• Nottingham

• Manchester

At each of these court centres both High Court and county court TCC cases may be issued and tried.

There are full time TCC judges at Birmingham, Manchester and Liverpool.

At the other court centres TCC judges are available but they devote a substantial amount of their judicial time to non-TCC work.

Judges authorised to deal with TCC business are also available at Leicester, Sheffield and Southampton.

However, county court claims cannot be issued at those court centres.

For further information on matters relating to the TCC, please contact the TCC Case Administration Unit 020 7947 7156 or tcc@hmcourts-service.gsi.gov.uk TCC judgments which may be of interest to practitioners are accessible on the Bailii website at http://www.bailii.org/ew/cases/EWHC/TCC/ CPR.

Part 60

http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part60.htm

http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part60.htm#id4542059

Practice Direction

http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part60.htm

UAE Laws and Islamic Finance

Laws of the UAE and Islamic Finance