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Choosing Your Own Court, Judge - Lawyers in Dubai

Published on : July 2015
Author(s):Abd El Ghany

For a variety of reasons, it is highly likely that most people’s instincts would incite them to answer “no”! However, if we peruse UAE legal texts we will find that actually, in most cases, the answer will be “yes”! 

lawyers in DubaiLitigation is one of the basic rights guaranteed by most world constitutions, as well as the Universal Declaration of Human Rights. In fact, a state of institutions and laws cannot be achieved unless it gives the right of litigation to all citizens and residents living upon its land. Laws merely organize how to litigate and outline the procedures which should be followed, and courts are formed and judges are appointed based on these laws.
 
When a person resorts to litigation, he or she submits a statement of claim that is reviewed by a judge or a bench of judges. To this extent, the litigant in question will usually have no input in choosing the judge or judges. However, in the event that a person desires to choose a certain court or judge to adjudicate his case for any reason, is he allowed to do so or not? 
 
Based on a study of the judicial system, it is clear that a person may choose his judge and/or the court in which his case gets heard. In some cases, if the law does not grant the right to choose any judge or tribunal, but the right to choose the same from a given list. An example of such would be a case in which multiple courts had jurisdiction over a certain dispute, and the claimant may, therefore, choose the court that it desires. The law also allows people to agree that a certain court shall have the jurisdiction to consider any disputes that may arise. However a case may be filed in the other (alternate) court rather than the one considering the case, and then be transferred. It is worth noting that there is a clear provision in place allowing for the nomination of an arbitrator in cases whereby arbitration is the agreed dispute resolution forum. Consideration should also be given to cases whereby a party finds out that the judge considering his case has made a fatal error or cheat in his work – here, he shall have the right of adversarial against the judge in question pursuant to the procedures set by law. This is eventually a choice of judge. 
 
Based on the foregoing, then, it appears that the following are all areas of consideration when answering the question posed by this article:
 
1. Agreement on the jurisdiction of a certain court
2. Choosing from among many specialized courts
3. Transfer among courts 
4. Choice of the arbitrator 
5. Disqualifying judges and arbitrators
 
1. Agreement on the jurisdiction of a certain court 
 
When agreeing to a contract, the parties to the same may nominate the jurisdiction for the governing of any dispute that may arise concerning the contract’s interpretation or execution. This agreement will confirm assent to the court competent for considering the dispute. For example, if both parties to a commercial contract are headquartered in Dubai and the contract is signed in Dubai, it is likely that the agreement will state that the Dubai Courts shall have the jurisdiction to settle any disputes. In this situation, there are no obvious problems. However, an agreement may also defer jurisdiction to a court other than the one holding clear geographical jurisdiction. For example, the parties may agree to submit to the jurisdiction of the courts where the claimant‘s headquarters is located. This is so as to ensure that the rules of local jurisdiction are set in favor of the opponents and have no relevance to the public system. Therefore, parties may agree on contradicting such rules. However, according to Dubai Court of Cassation, the jurisdiction in Dubai is a judicial entity that is independent of any federal judiciary, and that Dubai courts shall have jurisdiction over all disputes except for the disputes specified by the article (102) of the constitution. Such courts shall be limited to their competences without negative or positive contradiction, meaning that they shall not waive their competences and shall not take on competences of other national courts. Jurisdiction in this way is a public system and parties may not agree on contradicting it - but based on the foregoing this is not relevant to local jurisdictions that are considered between courts of the same judicial department. 
 
 It is important to note that no agreement between parties may breach procedural jurisdictional laws at state level. An example here would be the way in which parties to a leasehold contract cannot contractually vest the jurisdiction of any disputes in the courts when state law requires that all rental disputes must be referred to and considered by the rents committee or rental dispute resolution center. Likewise, parties may not agree on the jurisdiction of the plenary court (consisting of three judges) to consider a case within the jurisdiction of the partial court that is composed of a single judge, and may not agree that the Dubai Court shall have consideration of any dispute concerned by the Abu Dhabi Court.
 
2. Choosing from among many specialized courts 
 
Law may provide for the jurisdiction of several courts at the same time, thus meaning that a claimant may choose from amongst the same. For example, the Personal Status Law provides that jurisdiction in expenses claims matters is vested in the court of the Emirate in which the plaintiff or defendant is resident, whereas the Civil Procedure Law states that the competent court shall be the court in any Emirate where any of the defendants, if they are many, is resident. The fact that a party has to choose a court from amongst a selection has the effect that the party is, to some extent, going some way towards choosing the judge who will adjudicate in his lawsuit. However in, the case of multiple defendants, it is required that such diversity is real. A diversity is not real if the intention is simply to submit to the jurisdiction of the court before which the lawsuit is raised, whether or not its existence is known by the trial court with authority to collect and understand the reality of the case as it pleases, without forcing him to resort to a particular court.
 
3. Transfer among courts
 
If the legislator is bringing a series of associated cases, it may be the case that he is desirous of having such matters considered by a single judge or a single court in order to avoid conflict of judgments. The UAE law, therefore, provides for the referral of cases to the court before which the last conflict is raised. The referred court is committed to the consideration of the matters. The legislation also provides that in the event that a case is filed before a court other than that which has been specified in a lawful agreement between the parties, then the court may order transferring the case to the forum agreed upon. The referred court is, again, committed to its consideration, unless deemed incompetent to consider the matter locally or qualitatively. This additionally infers the possibility of choosing a judge, but with the qualification that the agreed tribunal must be competent to consider the case. It is also of relevance that matters may not be referred from the courts to arbitration as a result of the conflict, because the rule is that referral is only allowed between courts within the same judicial department. The best example is that referral from the Dubai courts to the federal courts is not permitted, as the judiciary in Dubai is a judicial entity independent from the federal judiciary. Such referral is limited to cases in which the court holds that it is not qualified due to the type of lawsuit or local jurisdiction.
 
4. Choice of arbitrator 
 
Arbitration is a good example of the selection of judge that separates the rivalry between parties to a dispute, especially as arbitration is regarded as the first form of the judiciary in many early communities. However, with the increase in the number of lawsuits filed worldwide and slow litigation procedures, the need for urgent arbitration arises. Arbitration allows a party not only to select their judge but also to elect the legal rules applied by the arbitrator in the specific case (within the limits this does not violate public order). 
The arbitration clause contained in the contractor in a subsequent agreement between the parties, which may include agreement on the number of arbitrators. This number may either be one, three or five, but the number must be odd otherwise the arbitration agreement is null and void. This is so that an individual arbitrator may be chosen by one party and approved by the other, or so that each party may choose one or two arbitrators, and then the arbitrators selected may appoint the remaining member of the panel. If no agreement is reached with regards to the choice of arbitrator, the choice shall be vested in an independent entity such as the arbitration center, a body such as the lawyers' bar, or even the courts.
 
5. Disqualifying judges and arbitrators
 
The law may provide for circumstances in which the litigant may choose a judge as explained above - however, these cases are not considered as the general rule. More often than not, a judge will be appointed by the courts and the parties to a case will have no input in the decision. Yet in such cases, it may be that a litigant considers a judge invalid to consider his claim either for personal or technical reasons. When this occurs, should the litigant stay silent, or does the law provide a way in which the parties may challenge the same in order to ensure satisfaction and total conviction in the justice of the resulting judgment?
 
 The cases in which the judge may be disqualified are outlined in the UAE Civil Procedure Law, and include (but are not limited) to feuds between the judge (and/or his wife and/or relatives) and the litigants, prior friendships (specified as “habitual dining” or having lived together) between the judge and any of the litigants, the judge’s receiving of a gift given by one of the litigants, the appointment of the judge as an arbitrator in a previous matter between the parties, and any other friendship/enmity between the judge and one of the litigants which may result in impartiality.
 
A judge will also be invalid to consider in the following cases:
 
-  If he is a spouse of one of the litigants;
-  If he or his wife has an existing dispute with a litigant or his wife;
-  If he is an agent for one of the litigants in his private works,  or a trustee or custodian, or a 
    presumptive heir of a litigant or the spouse of the guardian of a litigant or the custodian, 
    or is related by blood or affinity to the fourth degree with such guardian, or one of the 
    members of the board and a manager in the competent company where such a member or 
    the director has a personal interest in the case;
-   If he or his wife or one of his relatives or in-laws of descent or for those whom he is an agent, 
    trustee or guardian has an interest in the existing case;
-   If there is between him and one of the judges’ circuit a kinship or affinity to the fourth 
    degree, and in this case the latest judge is to step down;
-   If there is between him and the representative of the public prosecutor or defender of an 
    opponent a kinship by blood or affinity to the second degree;
-   If he had decreed or pleaded for a litigant in the case or wrote about it even before he joined 
    the judiciary, or had earlier considered as a judge or arbitrator or expert and had been a 
    witness in it; and/or
-   If he has previously filed a lawsuit against the respondent or submitted a report against him 
    to a competent authority. 
 
The law states that the work of the judge and his judgments are invalid where the judge meets one of the above criteria, even if it was made under the agreement of the litigants.
Finally, the judge may, even if valid for consideration of the case, let the President of the Court consider the approval of the decision of stepping down. For more - why not get in touch with one of the lawyers in Dubai at STA Law Firm? 
 
 
 
 

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