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Overview of the Laws in Territorial Jurisdiction

Published on : April 2018
Author(s):Several

 

THE REACH OF TERRITORIAL JURISDICTION

PART I

Criminal Lawyers in DubaiIntroduction

The UAE follows Civil Law in their legal system and the primary laws governing the jurisdiction of courts is regulated by Federal Law Number 11 of 1992 the Civil Procedural Law (the Civil Procedures Law) and Federal Law Number 35 of 1992 regarding the Criminal Procedural Law (the Criminal Procedure Law).

The court's jurisdiction means that the courts' competency to consider any dispute may be submitted to it. Thus, the court that has no jurisdiction will not be competent to decide on a specific dispute.  The jurisdiction of a court is divided into four (4) major parts as follows:

The First Part

The international jurisdiction of the courts, for which the law shows when the courts shall have jurisdiction to consider the lawsuits filed against the foreigner that has not any known domicile. Also, these courts shall have jurisdiction to consider that don’t fall within their jurisdiction, but they are required as per the proper administration of justice. Also, these courts shall have jurisdiction to consider the summary and provisional actions that are connected with an execution inside the territories of the state even if these courts have no jurisdiction to consider the original lawsuit.

The Second Part

The qualitative jurisdiction in which the law shows distribution of jurisdiction among the partial departments and the plenary departments according to the type of the case submitted to the court, the distribution of the jurisdiction between the ordinary courts and summary courts, as well as the distribution of the jurisdiction on the different stages of litigation (Court of First Instance, Court of Appeal, and Court of Cassation)

The Third Part

The value jurisdiction in which the law determines the jurisdiction among the partial deportments and plenary departments according to the value of the case.

The Fourth Part

The local or territorial jurisdiction of the courts which is the subject matter of this article means the distribution of the jurisdiction on the state courts from the same type and degree within the limits of its jurisdiction area. And the territorial jurisdiction of the courts shall be determined according to the domicile of the defendant or the place of the disputed property or the choice of the plaintiff in some personal status cases.

The Territorial Jurisdiction

The general rule put by the federal law in connection with the territorial jurisdiction of the state courts, that the jurisdiction shall be for the court whose jurisdiction area includes the domicile of the defendant. The law also affirms the same as under Article 31 (1) of the Civil Procedure Law it is mentioned that “the jurisdiction shall be for the court whose jurisdiction area includes the domicile of the defendant unless the law decided otherwise. And if the defendant has no domicile inside the country, the jurisdiction shall be for the court whose jurisdiction includes his residence address or work address.”

Ergo, the territorial jurisdiction, according to the aforesaid Article, shall be granted to the courts whose jurisdiction area includes the domicile of the defendant, namely the permanent and continued residence of the defendant. And the word "domicile" means the home i.e. the notification shall be forwarded to the place in which he lives.

In cases where the defendant does not have a domicile, the jurisdiction shall be granted to the court whose jurisdiction area includes his residence address contrary to the domicile. As the man may live in a palace for a limited period then he left it to be without a domicile. Also, it is allowed to file the lawsuit before the court whose jurisdiction area includes the work address of the defendant. And the plaintiff shall have the right to file the lawsuit to the court whose jurisdiction area includes the residence address or the work address of the defendant, as both of them shall be valid in case there was not any determined and known domicile of the defendant. 

Exceptions to the General Rule

The rule mentioned above includes several exceptions, and these exceptions shall be stemmed either from the conditions of the plaintiff or the type and subject matter of this case.

Therefore the exceptions with regards to the conditions of the plaintiff are as follows:

  1. The court which within its jurisdiction area the damage has occurred shall have territorial jurisdiction to consider the lawsuits relating to compensation either this damage occurred to the properties or the persons. Thus, the plaintiff in the lawsuits relating to compensation may file its lawsuit either before the court whose jurisdiction area includes the domicile of the defendant or the court which within its jurisdiction area the damage has occurred.
  2. The law has permitted in the commercial disputes that the court which the parties have agreed on its jurisdiction area, shall have the territorial jurisdiction to consider these disputes or the court which this agreement was executed either in whole or in part within its jurisdiction area or the court which the agreement should be executed within its jurisdiction area. Thus, the plaintiff shall have the right to file its lawsuit either before the court whose jurisdiction area includes the domicile of the defendant or the court at which the agreement (subject of lawsuit) was concluded or it was executed in whole or in part or the court in which the agreement should be executed in the commercial disputes.
  3. In case there was more than one defendant, the jurisdiction shall be for the court whose jurisdiction area includes the domicile of one of them, thus the plaintiff may choose the court whose jurisdiction area includes the domicile of one of the defendants to file its lawsuit before it.

The Civil or Criminal Procedures Law has also clarified the territorial jurisdiction of the courts according to the subject matter of the lawsuit, as it has made exceptions in the cases mentioned hereunder from the above-mentioned general rule as follows: 

  1. In the in-kind real estate lawsuits and the possessory lawsuits, the territorial jurisdiction shall be for the courts whose jurisdiction area includes the property or any part thereof. It is meant by the in-kind real estate lawsuits, any lawsuit in which the dispute is raised over one of the in-kind real estate rights such as the right of ownership as in the lawsuits relating to confirmation of ownership or the request for expropriation or recovering possession of the property. The reason, in this case, is the proper administration of justice. As it's better than the court considering this dispute to be near the property (the subject of dispute or lawsuit).
  2. In case of the personal real estate lawsuit, the plaintiff may file its lawsuit either before the court whose jurisdiction area includes the domicile of the defendant or the court whose jurisdiction area includes the disputed property. It is meant by the personal real estate lawsuit, any lawsuit in which the dispute is raised over personal rights related to the property like the lawsuits relating to terminating the sale contract of the property.
  3. In the lawsuits relating to moral rights (in case of companies and establishments), as the territorial jurisdiction shall be granted to the court whose jurisdiction area includes the head office of the company, except for the lawsuit relating to one of the branches of this company, as the jurisdiction shall be granted to the court whose jurisdiction area includes this branch.

The Bankruptcy Cases

Lawyers in Abu DhabiIn the lawsuits relating to bankruptcy, the jurisdiction shall be granted to the court whose jurisdiction area includes the shop (company or private establishment) of the bankrupt. In case the bankrupt owns several shops, the jurisdiction shall be granted to the court whose jurisdiction area includes the head office of the works of the bankrupt. The same shall be applied to the lawsuits relating to bankruptcy, as the jurisdiction shall be granted to the same court i.e. the court issued the judgment to declare the bankruptcy. But if the trader left trading, we shall return to the general rule relating to the territorial jurisdiction, as the court that will have the territorial jurisdiction is the court whose jurisdiction includes the domicile of the defendant.

  1. In the lawsuit relating to legacies, the jurisdiction shall be granted to the court whose jurisdiction area includes the last domicile of the deceased, the same shall be applied in case of lawsuits relating to custodianship and determining heirs.
  2. In the lawsuit relating to supply contracts or contracting agreements or wages of workers, craftsmen and employees, in this case, the plaintiff may file its lawsuit either before the court whose jurisdiction area includes the domicile of the defendant or the court which the agreement was made or executed within its jurisdiction area.
  3. In the lawsuit relating to claim for the insurance amount, the plaintiff may file its lawsuit either before the court whose jurisdiction area includes the domicile of the beneficiary or the court whose jurisdiction area includes the insured property.\
  4. In the summary lawsuits and temporary requests, the jurisdiction shall be granted to the court whose jurisdiction area includes the domicile of the defendant or the court which the action has been requested to be executed with its jurisdiction area. But if the matter is related to taking a summary action in connection with an execution of a foreign judgment, the jurisdiction shall be granted to the court which this judgment shall be executed within its jurisdiction area.\
  5. Concerning the contracts and obligations which it has been agreed to be executed within a specific domicile, the court that has territorial jurisdiction to consider these lawsuits and obligations is the court whose jurisdiction area includes that domicile.

Exceptions to the Law

The law has also made two more exceptions in the general rule which are not mentioned in the aforesaid circumstances, and these are as follows:

First case:

If the defendant has no domicile or residence address in the country or we were unable to determine the competent court according to the aforesaid cases, the jurisdiction shall be granted to the court whose jurisdiction area includes the domicile of the defendant or his residence address. And if the defendant has no domicile or residence address, the territorial jurisdiction in the lawsuit shall be granted to Abu Dhabi Court.

Second case:

In personal status cases (alimony, guardianship, seeing, dowry, trousseau, gifts, divorce, abdicative divorce, clearance, separation between spouses of any kinds), in this case the plaintiff may file its lawsuit either before the court whose jurisdiction area includes the domicile of the defendant of the defendant or the court includes his domicile.

What if?

A question is raised from the situations mentioned above is that whether the contracting parties entered into a contract or any transaction, agree to contradict with the rules of the territorial jurisdiction of the court according to the aforesaid regulation? The answer seems to be affirmative as the law has permitted the contracting parties netted into any contract to agree on the rules of the territorial jurisdiction of the state courts in special cases.

As under Article 31 (5) of the law of Civil ProceduresLaw, “it is stated that except the cases set forth in articles 32 and from 34 to 39, it is allowed to agree on the jurisdiction of a specific court to consider the dispute. In this case, the jurisdiction shall be granted to this court or to the court whose jurisdiction area includes the domicile or the residence address or the work address of the defendant.

According to the aforesaid provision, any contracting parties under any relation, over which a dispute could be raised, shall have the right to agree to determine the court that shall have the jurisdiction to consider the dispute that may be raised over this relation. For example, two parties may be entered into a sale contract in Dubai, as the execution and handover shall be done in Dubai, then the two parties shall agree that Abu Dhabi Courts of Fujairah Courts shall have the right to consider this dispute.

Whereas the law has not excluded from that only some cases stated by it exclusively, which are the in-kind real estate lawsuits, the lawsuits relating to legacies, the lawsuits relating to bankruptcy, the lawsuits relating to claim for the insurance  amount, the summary lawsuits and taking summary actions, the lawsuits relating to supplies, contracting, houses rents, wages of workers, craftsmen and employees, interlocutory requests connected with the lawsuits considered before the court actually. Any party in these relations or those lawsuits shall have the right to not abide by the above-mentioned rules of the territorial jurisdiction of the courts. In the next article, we will discuss the practical aspect of the territorial jurisdiction of local courts and how the court has interpreted the laws in different cases.