With the spread of globalization, technical and technological evolution, changes in communication means and transportations, economic freedom and free trade around the world have reinforced the idea that businesses and commercial dealings need protection.
Hence, as there is an international cooperation among countries to follow an international criminal worldwide, there should be an international cooperation in civil and commercial matters as well. For instance, a creditor, who has obtained a foreign judgment to recover against a debtor in the UAE, shall be able to enforce that judgment in the UAE and vice versa.
This means that the civil protection provided to an individual or entity through the issuance of a foreign judgment shall not be limited or confined to the borders of that state, where the judgment was issued, especially now, when we live in a world in which persons and assets can easily move across borders. The recognition of foreign judgments makes it harder for losing defendants to avoid liability. The United Arab Emirates recognition of these judicial rulings is necessary; otherwise, they will be of no use to that individual or entity.
Enforcing a foreign judgment may conflict with the principle of state sovereignty. However, the fact that we live today in such a globalized world has reinforced the world to agree on the principle of reciprocity in that matter, which means that states will and would grant others recognition of judicial decisions only if, and to the extent that, their decisions would be recognized. In response to this growing importance, the number of bilateral and multilateral treaties have grown quickly.
Recognizing and enforcing foreign judgments in the UAE have several advantages. These include:-
it will preclude re-litigation;
save litigation costs;
achieve justice for an individual or entity at an international level;
prevent the defendant from transferring his/her assets/monies outside the territory where the judgment has been rendered
promote confidence in international commercial transactions; and
encourage foreign investment in the UAE and trade among nations worldwide.
In this two-part article, STA's litigation lawyers discuss the legal provisions within the legal framework of the UAE and the co-operation agreements that affect the enforcement of foreign judgments.
In the UAE, Foreign judgments are enforceable under Federal Law of Civil Procedure No. 11 of 1992 (Articles 235-238). Moreover, UAE has signed several multilateral and bilateral agreements with other countries. This aspect is in addition to the jurisprudence of the highest courts in the state (Federal Supreme Court and Court of Cassation in Dubai) for the interpretation and application of such legal Articles and Agreements. These principles are applied by the fact if there is a cooperation agreement in place with the country in question or not.
Accordingly, we will discuss the enforcement of foreign judgments in the UAE in line with the legal texts, International Agreements, and judicial decisions and rules. In the first part of our article, we will touch upon the legal provisions of the Federal Code of Civil Procedure No. 11 which govern the enforcement of foreign judgments. In the second part, we will be discussing multilateral and bilateral Agreements which the UAE has concluded with other states on judicial cooperation between the contracting states. Finally, we will examine the UAE Courts’ decisions and principles related to the enforcement of foreign judgments and will make a brief conclusion on our findings.
I. UAE legal provisions governing the enforcement of foreign judgments
Chapter IV of Part 1 of the 3rd book of Federal Code of Civil Procedure No. 11 (1992) provides for the execution of foreign judgments, orders, and documents as follows:
i. Judgments and orders issued in a foreign country may be ordered for execution and implementation within UAE under the same conditions provided for the execution of judgments and orders in the law of that foreign state. ii. Petition for execution of orders shall be filed in the Court of First Instance, where the execution for the jurisdiction is sought. Execution shall be ordered only if: a) the UAE courts have jurisdiction over the dispute and the rendering of the foreign court had such jurisdiction under its law and international laws.
b) the foreign judgment or order was rendered by a competent court in that state and by its law. c) the parties to the proceedings on which the foreign judgment was rendered were duly summoned and represented. d) the judgment or order have obtained an absolute degree by the law of the rendering court. e) the foreign judgment does not conflict or contradict with any judgment or an order previously rendered by a court in the UAE and does not violate any moral code or public order.
Article 236 Provisions of Article 235 shall apply to the arbitration decisions passed in a foreign state. International arbitration decisions must be on a matter which are decided by the arbitration tribunal according to the law of that state, and which must be enforceable in that state.
Article 237 i. Attested documents and conciliation reports authenticated by courts of foreign states shall be executed in the UAE under the same conditions provided for the execution of similar orders and reports passed in the UAE. ii. Execution of foreign orders as referred to above shall be requested through filing a petition with the judge for execution of the order. An execution order shall not be issued unless such an order, documents or reports once verified are by the laws of the country in which they were attested or authenticated and shall not violate moral codes or public order.
Article 238 Rules provided for in Articles 235, 236, 237 shall not prejudice the rules and regulations provided for in treaties and Agreements signed by the UAE with other countries. In the next article, we will discuss the various multilateral and bilateral agreements between UAE and various nations and how these treaties are implemented.
Although there are laws, judicial rules, multilateral and bilateral agreements (which will be discussed in the next issue) that are in place between the UAE and other countries, enforcing a foreign judgment in the UAE could prove to be problematic. There is less cooperation among nations in civil and commercial matters as opposed to criminal activities. As we have seen, there are many advantages in recognizing and enforcing foreign judgments in the UAE, which not only encourages an influx of foreign investment but also reinforces faith in litigation and thus respect to the principle of judicial supremacy. It is, therefore, advisable that the law in this regard requires an overhaul and it should be made simple to ensure the recognition and enforcement of foreign judgments.