I. Introduction
It’s extensively acknowledged that the popularity and enforcement of overseas judgments rely, at the start, on whether or not the overseas courtroom issuing the judgment was competent to listen to the dispute (see Béligh Elbalti, “The Jurisdiction of Overseas Courts and the Enforcement of Their Judgments in Tunisia: A Want for Reconsideration”, 8 Journal of Personal Worldwide Legislation 2 (2012) 199). That is also known as “oblique jurisdiction,” a time period typically attributed to the famend French scholar Bartin. (For extra on the life and work of this influential determine, see Samuel Fulli-Lemaire, “Bartin, Etienne”, in J. Basedow et al. (eds.), Encyclopedia of Personal Worldwide Legislation – Vol. I (2017) 151.)
Broadly talking, oblique jurisdiction refers back to the jurisdiction of the overseas courtroom within the context of recognizing and implementing overseas judgments. Concretely, the courtroom being requested to acknowledge and implement a overseas judgment evaluates whether or not the overseas courtroom had correct jurisdiction to listen to the dispute. The time period “oblique” distinguishes this idea from its authorized reverse: direct jurisdiction. Not like oblique jurisdiction, direct jurisdiction refers back to the authority (worldwide jurisdiction) of a home courtroom to listen to and adjudicate a dispute involving a overseas component (see Ralf Michaels, “Some Elementary Jurisdictional Conceptions as Utilized in Judgment Conventions,” in E. Gottschalk et al. (eds.), Battle of Legal guidelines in a Globalized World (2007) 35).
Whereas oblique jurisdiction is universally admitted in nationwide laws and worldwide conventions on the popularity and enforcement of overseas judgments, the usual primarily based on which this requirement is examined differ at finest working the gamut from a fairly free commonplace (often restricted solely to the examination of whether or not the dispute fall below the unique jurisdiction of the requested courtroom as legally decided in a limitative method), to a really restrictive one (excluding the oblique jurisdiction of the rendering courtroom each time the jurisdiction of the requested courtroom – often decided in a really broad method – is verified). The UAE historically belonged to this latter group (for a comparative overview in MENA Arab Jurisdictions, see Béligh Elbalti, “Perspective of Arab Nations,” in M. Weller et al. (eds.), The 2019 HCCH Judgments Conference – Cornerstones, Prospects, Outlook (2023) 187-188; Idem “The Recognition of Overseas Judgments as a Instrument of Financial Integration – Views from Center Japanese and Arab Gulf Nations, in P Sooksripaisarnkit and S R Garimella, China’s One Belt One Street Initiative and Personal Worldwide Legislation (2018) 226-229). Certainly, regardless of the authorized reform launched in 2018 (see infra), UAE courts have continued to stick to their stringent method to oblique jurisdiction. Nonetheless, because the case reported right here reveals this would possibly not be the case. The current Dubai Supreme Courtroom’s choice within the Attraction No. 339/2023 of 15 August 2024 confirms a latent development noticed within the UAE, notably in Dubai, thus introducing a big shift in the direction of the liberalization of the popularity and enforcement necessities. Though some questions stay as to the attain of this case and its penalties, it stays an important choice and due to this fact warrants consideration.
II. Information
The summaries of details in UAE courts’ selections are typically sparse in particulars. This one notably lacks the knowledge essential to completely perceive the case.
What could be inferred from the outline of details within the choice is that the dispute concerned two Polish events, an organization as a plaintiff (hereafter known as “X”) and a seemingly a pure individual as a defendant (hereafter known as “Y”) who has his “residence [iqamah]” in Dubai.
X was profitable within the motion it introduced towards Y in Poland and obtained a judgment ordering the latter to pay a sure sum of money. Later, X sought to implement the Polish judgment in Dubai.
X’s enforcement petition was first admitted by the Execution Courtroom of Dubai. On attraction, the Dubai Courtroom of Attraction overturned the enforcement order on the bottom that the worldwide jurisdiction over the dispute lied with Dubai courts since Y had his “residence” in Dubai. Dissatisfied, X filed an attraction earlier than the Dubai Supreme Courtroom.
Earlier than the Supreme Courtroom, X argued that Y’s residence within the UAE doesn’t forestall actions from being introduced towards him in his dwelling nation, the place the “occasion [waqi’a]” giving rise to the dispute occurred, notably since each events maintain the identical nationality. As well as, X claimed that it was not conscious that Y’s residence was within the UAE.
III. The Ruling
The Supreme Courtroom admitted the attraction and overturned the appealed choice with remand.
In its ruling, and after recalling the fundamental guidelines on statutory interpretation, the Supreme Courtroom held as follows:
“In keeping with Article 85 paragraph [……] of the Govt Regulation of the Civil Process Act (issued by Cupboard Determination No. 57/2018,[i] relevant to the case in query), [……], “enforcement shall not be ordered until the next is verified: “UAE courts should not have unique jurisdiction over the dispute [……], and that the overseas rendering courtroom had jurisdiction in response to its personal legal guidelines.”
“This clearly signifies that the legislator didn’t permit enforcement orders to be granted [……] until UAE courts should not have unique jurisdiction over the dispute by which the overseas judgment to be declared enforceable was rendered. Due to this fact, in case of concurrent jurisdiction between UAE courts and the overseas rendering courtroom, and each courts are competent to listen to the dispute, this doesn’t, by itself, forestall the granting of the enforcement order. This marks a departure from the earlier method previous to the aforementioned Govt Regulation, the place, below the provisions of Article 235 of Federal Act on Civil Process No. 11/1992,[ii] it was ample to refuse the enforcement of a overseas judgment if the UAE courts have been discovered to have jurisdiction over the dispute—even when their jurisdiction was not unique. [This continued to be the case until] the legislator intervened to deal with the problem of the jurisdiction that’s unique to UAE courts [as the requested State] and concurrent jurisdiction that shared the overseas rendering courtroom whose judgment is sought to be enforced [in UAE]. [Indeed,] the abovementioned 2018 Govt Regulation resolved this concern by clarifying that what prevents from declaring a overseas judgment enforceable is [the fact that] UAE courts are conferred unique jurisdiction over the dispute by which the overseas judgment was rendered. This was reaffirmed in [……] in [the new] Article 222 of the Civil Process Legislation issued by Federal Decree-Legislation No. 42 of 2022,[iii] which maintained this requirement [without modification].
[…] the appealed choice departed from this level view, and overturned the order declaring the overseas judgment in query enforceable on the bottom that Y resides UAE, which grants jurisdiction to Dubai courts over the dispute […], although [this] foundation [of jurisdiction] referred to by the appealed choice [i.e. – the defendant’s residence in the UAE] doesn’t grant unique jurisdiction to UAE courts to the exclusion of the overseas rendering courtroom’s jurisdiction. Due to this fact, the ruling misapplied the legislation and must be overturned.” (underline added)
IV. Analyses
The conclusion of the Dubai Supreme Courtroom have to be accredited. The choice supplies certainly a welcomed, and a much-awaited clarification relating to what could be thought-about some of the controversial necessities within the UAE enforcement system. In a earlier put up, I discussed oblique jurisdiction as one of many frequent grounds primarily based on which UAE courts have usually refused to acknowledge an implement overseas judgments along with reciprocity and public coverage.[iv] It’s because, as defined elsewhere (Elbalti, op. cit), the UAE has in all probability some of the stringent commonplace to overview a overseas courtroom’s oblique jurisdiction.
1. Oblique jurisdiction – Normal of management
The usual for recognizing overseas judgments below UAE legislation entails three layers of management (former article 235 of the 1992 FACP). First, UAE courts should not have jurisdiction over the case by which the overseas judgment was issued(former article 235(2)(a) first half of the 1992 FACP). Second, the overseas courtroom will need to have exercised jurisdiction in accordance with its guidelines of worldwide jurisdiction (former article 235(2)(a) second half of the 1992 FACP). Third, the overseas courtroom’s jurisdiction should align with its home legislation, which incorporates each subject-matter and territorial jurisdiction, as interpreted by the courtroom (former Article 235(2)(b) of the 1992 FACP).
a) Conventional (stringent) place below the then relevant provisions
The interpretation and software of the primary rule have been notably problematic as UAE courts. The courts have, certainly, usually rejected overseas courts’ oblique jurisdiction when UAE jurisdiction could be justified below the expansive UAE guidelines of direct jurisdiction (former articles 20 to 23 of the 1992 FACP), even when the overseas courtroom is validly competent by its personal requirements (Dubai Supreme Courtroom, Attraction No. 114/1993 of 26 September 1993 [Hong Kong judgment in a contractual dispute – defendant’s domicile in Dubai]). Additional complicating the problem, UAE courts are likely to view their jurisdiction as obligatory and routinely nullify agreements that try and derogate from it (article 24 of the 1992 FACP, present article 23 of the 2022 FACP. See e.g., Federal Supreme Courtroom, Appeals No. 311 & 325/14 of 20 March 1994; Dubai Supreme Courtroom, Appeals No. 244 & 265/2010 of 9 November 2010; Abu Dhabi Supreme Courtroom, Attraction No. 733/2019 of 20 August 2019).
b) Case legislation software
Whereas there are uncommon circumstances the place UAE courts have accepted the oblique jurisdiction of a overseas courtroom, both primarily based on the legislation of the rendering state (see e.g., Abu Dhabi Supreme Courtroom, Attraction No. 1366/2009 of 13 January 2010) or by figuring out that their very own jurisdiction doesn’t exclude overseas jurisdiction until the dispute falls below their unique authority (see e.g., Abu Dhabi Supreme Courtroom, Attraction No. 36/2007 of 28 November 2007), nearly all of circumstances have adhered to the normal restrictive view (see e.g., Federal Supreme Courtroom, Attraction No. 60/25 of 11 December 2004; Dubai Supreme Courtroom, Attraction No. 240/2017 of 27 July 2017 ; Abu Dhabi Supreme Courtroom, Attraction No. 106/2016 of 11 Might 2016). This holds true even when the overseas courtroom’s jurisdiction relies on a alternative of courtroom settlement (see e.g., Dubai Supreme Courtroom, Attraction No. 52/2019 of 18 April 2019). Notably, UAE courts have typically favored native interpretations over worldwide conventions governing oblique jurisdiction, even when such conventions have been relevant (see e.g., Dubai Supreme Courtroom, Attraction No. 468/2017 of 14 December 2017; Abu Dhabi Supreme Courtroom, Attraction No. 238/2017 of 11 October 2017. However contra, see e.g., Dubai Supreme Courtroom, Attraction No. 87/2009 of twenty-two December 2009; Federal Supreme Courtroom, Attraction 5/2004 of 26 June 2006).
2. The 2018 Reform and its affirmation in 2022
The 2018 reform of the FACP launched vital modifications to the enforcement of overseas judgments, now outlined within the 2018 Govt Regulation (articles 85–88) and later confirmed within the new 2022 FACP (articles 222~225). One of many key modifications was the clarification that UAE courts’ unique jurisdiction ought to solely be an element when the dispute falls below their unique authority (Artwork. 85(2)(a) of the 2018 Govt Regulation; article 222(2)(a) of the brand new 2022 FACP). Whereas courts initially continued adhering to older interpretations, a shift towards the brand new rule emerged, as evidenced by a case involving the enforcement of a Singaporean judgment (which I beforehand reported right here within the feedback). On this case, Dubai courts upheld the overseas judgment, acknowledging that their jurisdiction, although relevant, was not unique (Dubai Courtroom of First Occasion, Case No. 968/2020 of seven April 2021). The Dubai Supreme Courtroom additional confirmed this method by dismissing an attraction that sought to problem the judgment’s enforcement (Attraction No. 415/2021 of 30 December 2021). This case is among the many first to replicate a brand new, extra expansive interpretation of UAE courts’ recognition of overseas judgments, aligning with the intent behind the 2018 reform.
3. Authorized implications of the brand new choice and the best way ahead
The Dubai Supreme Courtroom’s choice within the case reported right here signifies a transparent shift within the UAE’s coverage towards recognizing and implementing overseas judgments. This ruling addresses a vital concern inside the UAE’s enforcement regime and aligns with broader tendencies in world authorized techniques (see Béligh Elbalti, “Spontaneous Harmonization and the Liberalization of the Recognition and Enforcement of Overseas Judgments” 16 Japanese Yearbook of Personal Worldwide Legislation (2014) 273). As such, the importance of this improvement can’t be underestimated.
Nonetheless, there’s a notable caveat: whereas the ruling establishes that enforcement can be granted if UAE courts should not have unique jurisdiction, the query stays as to which circumstances fall below the UAE courts’ unique jurisdiction. The 2022 FACP doesn’t present readability on this matter. One doable exception could be inferred from the 2022 FACP’s regulation of direct jurisdiction which confers broad jurisdiction to UAE courts, “aside from actions regarding immovable positioned overseas” (article 19 of the 2022 FACP). One other exception is supplied for in Article 5(2) of the Federal Act on Business Companies,[v] which topics all disputes relating to industrial companies in UAE to the jurisdiction of the UAE courts (see e.g., Federal Supreme Attraction No. 318/18 of 12 November 1996).
Lastly, one can query the relevance of the three-layer management of the oblique jurisdiction of overseas courts, notably relating to the evaluation of whether or not the overseas courtroom had jurisdiction primarily based by itself guidelines of each home and worldwide jurisdiction. It appears relatively peculiar {that a} UAE decide can be thought-about extra educated or higher geared up to find out that these guidelines have been misapplied by a overseas decide, who’s presumably well-versed within the authorized framework of their very own jurisdiction. This raises issues in regards to the effectivity and equity of such a management mechanism, because it may result in inconsistent or overly stringent requirements in evaluating overseas judgments. These necessities are thus referred to as to be abolished.
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[i] The 2018 Govt Regulation Implementing the 1992 Federal Act on Civil Process (Cupboard choice No. 57/2018 of 9 December 2018, as subsequently amended notably by the Cupboard Determination No.75/2021 of 30 August 2021; hereafter known as “2018 Govt Regulation”.)
[ii] The 1992 Federal Act on Civil Process (Federal Legislation No. 11/1992 of 24 February 1992, hereafter “1992 FACP”).
[iii] The 2022 Federal Act on Civil Process (Federal Legislative Decree No. 42/2022 of 30 October 2022). The Act abolished and changed the 2018 Govt Regulation and the 1992 FACP (hereafter “2022 FACP”).
[iv] Nonetheless, since then, there have been subsequent developments relating to reciprocity that warrant consideration as reported right here.
[v] Federal Legislation No. 3/2022 of 13 December 2022 regulating Business Companies, which repealed and changed the previous Federal Legislation No. 18/1982 of 11 August 1981.
