A Legal Trap? – Conflict of Laws

I. Introduction (*)

(*) For the sake of simplicity, reference shall be made solely to Federal Decree-Legislation No. 41/2022 of two October 2022 on Civil Private Standing. The Emirate of Abu Dhabi has enacted a separate regulation that addresses comparable issues on the native stage. For a comparability of the varied relevant authorized frameworks in household regulation within the UAE, see Béligh Elbalti, “The Private Standing Regimes within the UAE — What’s New and What Are the Implications for Non-public Worldwide Legislation? A Temporary Vital Appraisal”.

There isn’t a doubt that the introduction of the Civil Private Standing Legislation (CPSL) within the United Arab Emirates marks a big turning level within the area’s authorized panorama, significantly in areas historically ruled by non secular norms. The CPSL refers back to the particular regulation adopted on the federal stage, which permits household regulation disputes involving non-Muslims (each foreigners and UAE residents) to be resolved below a authorized framework, that’s meant to be trendy, versatile, based mostly on “guidelines of justice and equity” and “the most effective worldwide practices from comparative authorized methods” (cf. article 19 of the Cupboard Decision In regards to the Govt Regulation of Federal Decree-Legislation on the Civil Private Standing). Nevertheless, the incorporation of the CPSL into the prevailing authorized frameworks within the UAE has raised a number of points. These embody, amongst others, the articulation of the CPSL with the opposite relevant authorized frameworks, and extra importantly, the extent to which events might decide out of this “trendy” regime in favor of making use of their very own nationwide legal guidelines (for a normal overview, see Elbalti, op. cit.).

The query has to this point remained the topic of authorized hypothesis, because the out there court docket selections haven’t immediately or explicitly addressed the difficulty (out there court docket selections have primarily been rendered by Abu Dhabi courts. Nevertheless, as talked about earlier, in Abu Dhabi, a distinct authorized framework applies). Optimistic views depend on the wording of the regulation, which – in idea – permit for the applying of international regulation when invoked by international non-Muslims (article 1 of the CPSL). Pessimistic views (together with my very own) are based mostly on the virtually constant judicial apply within the UAE concerning the applying of international regulation generally, and in private standing issues particularly. From this attitude, even when international regulation is invoked, its precise utility stays extraordinarily restricted because of structural and systemic obstacles that render the usage of international regulation practically inconceivable in apply (though, this doesn’t imply that international regulation isn’t utilized, however reasonably that its utility is especially tough).

The choice mentioned right here just isn’t publicly out there and is offered based mostly on non-public entry. Though it is extremely doubtless that the Dubai Supreme Court docket has issued quite a few rulings making use of the CPSL, such judgments (in contrast to these in civil and business issues) are typically not printed on the official web site managed by the Dubai Courts. For causes of privateness, the case reference and the nationality of the events won’t be disclosed.

II. Info

The case considerations divorce between a husband (X) and a spouse (Y), each of whom are non-Muslim foreigners and share the identical nationality. X and Y had been married greater than a decade in the past of their dwelling nation (State A, a European nation), the place in addition they had kids, earlier than relocating to Dubai, the place they ultimately settled. The events concluded a particular settlement concerning matrimonial property, through which they expressly agreed that the regulation of State A would apply.

Later, X initiated divorce proceedings earlier than the Dubai Court docket of First Occasion, in search of the dissolution of marriage in accordance with the CPSL. Y, nonetheless, contested the applying of the CPSL and argued that the regulation of State A ought to apply, requesting that X’s declare be dismissed on that foundation. In assist of her protection, Y submitted a licensed and authenticated translation of the relevant regulation of State A.

i) Earlier than the primary occasion court docket

The Court docket of First Occasion, nonetheless, rejected the applying of State A’s regulation on the grounds that the submitted translation was dated, poorly legible, and that no authentic copy of the regulation had been offered. In consequence, the court docket concluded that the circumstances for making use of international regulation weren’t met and proceeded to dissolve the wedding below the CPSL, on no-fault divorce grounds, as requested by X.

ii) Earlier than the Court docket of Attraction

Dissatisfied with the judgment, Y filed an enchantment earlier than the Dubai Court docket of Attraction, arguing that the regulation of State A ought to have been utilized as a substitute of the CPSL, provided that each events shared the identical nationality and had expressly agreed to the applying of that regulation of their matrimonial property association. She additional contended, amongst different issues, that translating the complete regulation would have been prohibitively costly, and that she had not been given a possibility to submit an authentic copy of the regulation. The Court docket of Attraction, nonetheless, was unpersuaded by these arguments. It reaffirmed the precept that when a international regulation is relevant, the burden lies on the occasion invoking its utility to submit an authenticated copy of the regulation. Furthermore, if the unique textual content just isn’t in Arabic, the regulation have to be translated by a translation workplace licensed by the Ministry of Justice. It’s because, in line with the Court docket of Attraction, international regulation is handled as a query of truth, and its content material have to be duly established by the occasion counting on it.

Sad with the result, Y appealed to the Supreme Court docket, reiterating the identical arguments raised earlier than the Court docket of Attraction.

III. The Ruling

Unsurprisingly, the Dubai Supreme Court docket rejected the enchantment, holding as follows:

In accordance with the established case regulation of this Court docket and pursuant to Article 1(1) of the CPSL, ‘the provisions of this Decree-Legislation shall apply to non-Muslim residents of the United Arab Emirates and to international non-Muslim residents within the UAE, until one in all them invokes the applying of his personal regulation […]’

It’s subsequently properly established that the burden of proving and submitting the international regulation lies with the occasion in search of its utility. That occasion should submit an entire and unabridged copy of the international regulation, together with all amendments, duly authenticated and formally licensed. If the international regulation just isn’t in Arabic, it have to be translated by an formally licensed translator. It’s because international regulation is taken into account a matter of truth, and it lies with the occasion counting on it to show its content material and that it stays in drive in its nation of origin.

If not one of the events invokes or submits the international regulation, or if the regulation is invoked however not correctly submitted, or is incomplete, irrelevant to the dispute, or lacks the relevant provisions, then home regulation have to be utilized. This stays the case even when the international regulation is submitted for the primary time on enchantment, as introducing it at that stage would undermine the precept of double-degree jurisdiction and deprive the opposing occasion of 1 stage of litigation, which is a basic rule of judicial group and a part of public order.

Additionally it is properly established that the evaluation of whether or not the provisions of the international regulation submitted are sufficiently related and full for resolving the dispute is a authorized subject topic to the Supreme Court docket’s management.

Given the above, and for the reason that judgment of the court docket of first occasion, as upheld by the judgment below enchantment, complied with the above authorized rules and dominated in accordance with the provisions of UAE [civil] private standing regulation, rejecting the applying of [the law of State A] ……, based mostly on sound and well-supported reasoning ….. the bottom of enchantment is subsequently with out benefit.

IV. Feedback

1. International Legislation within the UAE

As famous by UAE legal professionals themselves (albeit within the context of worldwide transactions), “it’s virtually inconceivable to use international regulation” within the UAE, and “[i]n most circumstances, the courts within the UAE will apply native regulation and may have little or no regard for the international regulation within the absence of proof [of its] provisions” (Essam Al Tamimi, Sensible Information to Litigation and Arbitration within the United Arab Emirates (Kluwer Legislation Worldwide, 2003) 167).

Previous to 2005, UAE courts had been inconsistent of their method to household regulation disputes: whereas the Dubai Court docket of Cassation admitted the applying of international regulation ex officio, the Federal Supreme Court docket handled international regulation as a matter of truth, even in household regulation circumstances. Nevertheless, following the enactment of the Federal Private Standing Legislation in 2005, the Dubai Court docket of Cassation aligned its place with that of the Federal Supreme Court docket, treating international regulation as truth whose utility depends upon the occasion invoking it and proving its content material. This shift displays the final legislative intent, as expressed within the Explanatory Memorandum to Federal Legislation No. 28 of 2005 on Private Standing.

It’s subsequently not shocking to learn that “[t]raditionally, the UAE courts have a popularity of making use of international regulation solely reluctantly.” This reluctance stems from the final precept that “[f]oreign regulation is handled as a matter of truth, and a provision of international regulation have to be confirmed within the proceedings by the occasion that intends to depend on it.” Consequently, “[w]right here the events don’t present enough proof, the Emirati court docket would apply Emirati regulation” (Kilian Bälz, “United Arab Emirates,” in D. Girsberger et al. (eds), Alternative of Legislation in Worldwide Business Contracts (OUP, 2021) 691). For that reason, invoking international regulation has confirmed largely unsuccessful, as UAE courts impose very strict necessities for its acceptance. These hurdles grow to be much more vital when the international regulation just isn’t in Arabic. In such circumstances, the occasion counting on the international regulation should submit a licensed translation of the complete related authorized instrument (e.g., the Swiss Civil Code in its entirety), authenticated by the official authorities of the state of origin. Courts have routinely refused to use international regulation when solely chosen provisions are submitted or when the unique textual content (in its international language) just isn’t offered. Any failure to fulfill these stringent necessities sometimes ends in the exclusion of the international regulation and the applying of the lex fori as a substitute.

It’s in opposition to this background that the adoption of the CPSL must be understood. In an try to handle the challenges related to the applying of international regulation—and reasonably than facilitating its utility—UAE native authorities opted for a radical different. Below the guise of modernity, progress, and alignment with essentially the most superior worldwide practices in household regulation, they launched a particular authorized framework: the CPSL. Certainly, though the CPSL formally leaves room for the applying of international regulation (article 1 of the CPSL), it’s really designed to use on to all disputes falling inside its scope, even in circumstances the place international regulation would in any other case apply below the UAE’s choice-of-law guidelines, as set out within the Federal Legislation on Civil Transactions of 1985 (FLCT), arts. 10-28. (On the totally different method below the Abu Dhabi Civil Marriage Legislation, and the difficulty of articulation between the choice-of-law guidelines offered within the 1985 FACT and article 1 of the CPSL, see Elbalti, op. cit.). As an illustration, a Filipino couple who received married within the Philippines and resides within the UAE could possibly be granted a divorce based mostly solely on the unilateral will of 1 partner, though divorce just isn’t permitted below Philippine regulation, usually relevant right here. Equally, in nations equivalent to Lebanon, the place {couples} married below non secular regulation can’t dissolve their marriage besides by means of non secular procedures, one partner should still receive a divorce within the UAE. That is extra so understanding that jurisdictional guidelines within the UAE allow UAE courts to say jurisdiction even in circumstances with minimal connection to the discussion board. (For an outline, see Béligh Elbalti, “The Abu Dhabi Civil Household Court docket on the Legislation on Civil Marriage Applicability to International Muslim and the Advanced Problem of Worldwide Jurisdiction”).

2. Heads You Lose, Tails You Nonetheless Lose: The Litigant’s Dilemma

Confronted with a household regulation dispute within the UAE, litigants (significantly defendants) might discover themselves in an inextricable state of affairs. Whereas, in idea, international regulation could also be utilized if invoked by one of many events, in apply that is hardly ever the case. In accordance with testimonies shared on varied social media platforms, in addition to accounts personally gathered by the writer, native legal professionals usually advise their purchasers to not interact in a authorized battle whose consequence seems predetermined.

Nevertheless, when such recommendation is adopted, courts sometimes state: “Since neither occasion holds the nationality of the UAE, and neither of them invoked the applying of any international regulation, the relevant regulation shall be the legal guidelines of the UAE.” (see e.g. Dubai Court docket of First Occasion, Case No. 542 of 14 February 2024 [divorce and custody case], Dubai Court docket of Attraction, Attraction No14 April 2025 [custody case]). But, even when a celebration does invoke the applying of international regulation – as within the case mentioned right here – the result’s usually the identical: the international regulation is excluded, and UAE regulation is utilized regardless, even when the occasion has made each effort to adjust to procedural necessities.

The duty to submit the complete textual content of international regulation (a whole civil code!), translated into Arabic by a sworn translator and authorized by the state of origin’s authorities, renders the duty practically inconceivable (particularly when the competent authorities within the State of origine usually content material themselves to refer the events to out there on-line databases and unofficial translations). This cumbersome course of renders the try to use international regulation a Sisyphean effort, in the end offering the court docket a handy justification to revert to the lex fori—when, in line with the UAE’s personal guidelines of alternative of regulation, international regulation ought to have been utilized.

3. A Potential Recognition Drawback Overseas?

What occurs when divorces such because the one within the current case are submitted for recognition overseas?

There may be, to make certain, no easy reply, as this could depend upon the authorized system involved. Nevertheless, exactly for such fundamental causes, the UAE ought to train warning in its method to household regulation disputes involving international events. To return to the examples talked about above: a divorce involving a Filipino couple or a Christian Lebanese couple is extremely unlikely to be acknowledged within the Philippines or Lebanon. Within the Philippines, international divorces between Filipino nationals will not be acknowledged as legitimate (see Elizabeth H. Aguiling-Pangalangan, “Philippines,” in A. Reyes et al. (eds.), Alternative of Legislation and Recognition in Asian Household Legislation (Hart, 2023), pp. 273–274). Equally, in Lebanon, civil divorce judgments rendered overseas have usually been refused recognition on public coverage grounds, significantly when the wedding was celebrated below non secular regulation involving a minimum of one Lebanese nationwide (see Marie-Claude Najm Kobeh, “Lebanon,” in J. Basedow et al. (eds.), Encyclopedia of Non-public Worldwide Legislation, Vol. III (Edward Elgar, 2017), p. 2275).

Furthermore, sure worldwide treaties concluded by the UAE explicitly require a management of the regulation utilized by the rendering court docket. Notably, the 1991 Franco-Emirati Bilateral Conference on Judicial Help and the Recognition and Enforcement of International Judgments offers in Article 13(1)(b) {that a} international judgment shall be acknowledged and enforced provided that “the regulation utilized to the dispute is the one designated by the conflict-of-law guidelines accepted within the territory of the requested State.” It’s price noting that the French Cour de cassation relied particularly on this provision in its refusal to implement a divorce judgment rendered in Abu Dhabi (Ruling No. 15-14.908 of twenty-two June 2016; see feedback by Christelle Chalas, Revue critique, 2017(1), p. 82).

Final however not least, in circumstances just like the one mentioned right here, the place a celebration counting on international regulation seems to be successfully prevented from making her case as a result of excessively stringent evidentiary necessities imposed by UAE courts, such proceedings could also be discovered incompatible with procedural public coverage. That is significantly true the place the shedding occasion was not afforded a good alternative to current her arguments, elevating critical considerations concerning due course of and entry to justice.

4. Epilogue

For the reason that emergence of personal worldwide regulation as a authorized self-discipline, debates over the justification for making use of international regulation have occupied students. Whatever the theoretical foundations superior, it’s now broadly accepted that, the applying of international regulation constitutes “a requirement of justice” (O. Kahn-Freund, “Basic Issues of Non-public Worldwide Legislation,” 143 Collected Programs (1974), p. 469).

Due to this fact, whereas the said goal of the CPSL is to supply expatriates with a contemporary and versatile household regulation based mostly on rules which might be in step with the most effective worldwide practices could also be comprehensible and even commendable, UAE authorities shouldn’t lose sight of the truth that the applying of international regulation is “an object directed by concerns of justice, comfort, [and] the need of worldwide intercourse between people” (Worldwide Court docket of Justice, Judgment of 28 November 1958, ICJ Stories 1958, p. 94).