Global Compliance

DIFC Civil Cases – Disclosing of Documents

Overview

The Dubai International Financial Center is a Financial Free Zone that is regulated by Independent Legal and Regulatory Framework in order to grow and develop the economy of UAE.

The Dubai International Financial Centre was established by several of Federal and Dubai Laws, such as the amendment of UAE Constitution, Federal Law Number 8 of 2004, Federal decree Number 35 of 2004, Dubai Law Number 9 of 2004 and its Amendment Number 7 of 2014, Dubai Law Number 12 of 2004.

The Dubai International Financial Centre Courts were established bylaw Number 16 of 2011 that amended certain provisions of Law Number 12 of 2004, and pursuant to the previous mentioned law DIFC courts is structured of Court of First Instance, and Court of Appeal.

The Dubai International Financial Centre laws and regulations are developed by The Dubai International Financial Centre Authority that is responsible for non-financial activities in DIFC for instance Employment Law, Companies Law and Commercial Law, and Real Estate Law, and The Dubai Financial Services Authority which is responsible for laws and regulations that are related to financial services in DIFC.

DIFC Courts procedures are regulated by Federal and Local laws such as Federal Law No. 10 of 1992 concerning evidence In Civil and commercial Transactions, Federal Law No. (11) of 1992 Concerning Issuance of The Civil Procedures Code. DIFC laws and regulations are applied to DIFC Courts unless parties explicitly agree to apply another law to their disputes. DIFC Courts are regulated by Court Rules.

Documentation Requirements

Documents

DIFC Court Rules (RDC) 28.1 has defined the meaning of "document" as "anything in which information of any description is recorded", and defined "copy" as anything onto which information recorded in the document has been copied directly or indirectly. Therefore it was mentioned in 28 that documents can be electronic documents such as emails, electronic documents, word pressed documents and database etc.

A party does not need to provide Court with more than one copy of a document as mentioned in 28.3 in RDC, and it must be original, besides that document will be considered as other document if any modification or amendment occurs to it in accordance to 28.4 in RDC.

Documents Application

There is two types of disclosing documents first is Standard Production of Documents and the other is Request to Produce. As mentioned in Part 28.15 parties should submit documents that they rely on to Court from each party within the time ordered by the Court such as:

a. Public documents except documents that were already submitted by other parties.

b. Documents that are required by any Law, Rule, Practice directions.

Disclosing Documents

In provision to 28.17 a party may submit a request (Production of Documents request) to the other party, to let him disclose a document, and this request shall contain the following:

a. Sufficient description of the document that is requested.

b. Detailed description of category and subject of the requested document.

c. Explanation how is the requested document is relevant to the case.

d. Statement of the reason why the requesting party believes that the document is in the possession ,custody, or control of the other party such as:

Statement why the document is not in the possession, custody, or control of the requesting party.

Statement of the reason why the requested document is unreasonably burdensome for the requesting party to obtain such document.

In case the Requested party did not object the disclosure of documents Request

Based on 28.20 in case the party requested disclosure of documents and the requested party did of object the requested, he shall do the following:

• Search for the document reasonably
• Provide all requested documents
• Inform the other parties with details of the document retention policy and the searches he undertook.
• State that he provided all the requested documents in his possession, custody and control, and this statement should be statement of truth. In provision of 28.21, the Court decide the search was reasonable pertaining electronic documents considering the following factors:
• Number of Requested Documents.
• The nature and complexity of proceedings
• The expenses of retrieval of the Documents, such as the accessibility of electronic documents and data, location of electronic documents, locating relevant data, cost of recovering the electronic documents, cost of providing them. The value of documents

Moreover, the Court takes into consideration that the requested party should determine initially the parameters of any search of electronic documents such as electronic database, and any search will be used, also he should refer to any parameters disputes he faces especially when the document is very large or searching for it is time consuming.

In case the Requested Party Objected Disclosure of Documents Request Based on 28.26 and 28.27 if a party rejects to provide all or some of the requested documents he shall state a written objection and the reason of it within time ordered by the Court, besides the previous mentioned conditions the objection must be in a particular form required by the Court.

Excluding Documents from disclosure/ Exceptions of Disclosure of Documents

Excluding Documents from disclosure by Court

In provisions of 28.28, in some cases the court exclude requested documents from providing for the following reasons:

• Lack of sufficient relevance or materiality
• Legal impediment or privilege under the legal or ethical rules under the Court
• Unreasonable Burden to provide the requested document
• Loss of the requested document
• Confidentiality of the requested document
• Political or institutional sensitivity of the document
• Taking into consideration the economy and equality of the parties

A Party Has the right to withhold documents

In case a party wishes to claim that he has the right to withhold of providing a document, or a part of it, must submit a written

statement to the Court why he has such right. As mentioned in 28.29 and 28.30

Objection of documents disclosure for public interest purposes

In provision of previous mentioned Law there are case that a person or a part cannot disclose a document for public interest:

1. If Laws and regulations stated to withhold showing such document as mention in 28.35

2. According to 28.31, 28.32, and 28.34 a person may submit a statement supported by evidence within the time ordered by the Court

for, for an order permitting him to withhold production of a document on the ground that production would damage the public interest. As a result if the Court may order which should not be served on any other person and should not be opened by any person. Document Production Order

As mentioned in 28.39 when the Court orders a party to disclose a document, then a party must do one or more of the following things:

1. Produce documents or classes of documents specified in the order;

2. Carry out a search to the extent stated in the order;

3. Produce any documents located as a result of that search;

4. Identify documents or classes of documents which were, but are no longer, in the party’s possession, custody and control and explain, to the best of the party’s knowledge and belief, what has happened to them.

A party must submit a Document Production Statement in provision of 28.43 that must be:

Production of Documents before Proceedings start

According to 28.47 and 28.48 an application for production of documents before proceedings have started in order to dispose fairly of the anticipated proceeding, assist the dispute to be resolved without proceedings and save costs. Disclosure of Documents Orders against a Person

In Provision to 28.52 the Court may order a third party (normal person not a party in the law suit), if the documents are likely to support the case of the applicant, affect the case, to dispose claim fairly or to save costs.. Court Request to Disclose Documents

We previously mentioned the cases how a party can request other parties or persons to disclose documents. Moreover, the Court may at any time request a party to produce to the Court and to the other parties any documents that it considers to be relevant and material to the outcome of the case. A party may object to such a request based on the rules we previously mentioned According to 28.55, 28.56 and 28.57.

The parties may provide the other parties in additional documents which they believe have become relevant to the case.28.59

Consequences of Failure of Producing Documents

• Setting out the extent of the search that has been made to locate documents which he is required to produce;
• Certifying that he understands the duty to search for and produce documents ; and Certifying that to the best of his knowledge he has carried out that duty.
• If a party failed to provide a requested document that he did not object to show to the Court, the Court will consider that document would be adverse to his interest. As mentioned in 28.60.

  Restriction in Use of Privileged Documents

  Parties cannot use disclosed documents unless they get a Court permission to do so, as mentioned in 28.67.

  Glossary

  • The amendment of UAE Constitution, Federal Law Number 8 of 2004.
  • Federal Decree Number 35 of 2004.
  • Dubai Law Number 9 of 2004 and Amendment Number 7 of 2014.
  • Dubai Law Number 12 of 2004.
  • DIFC: Dubai International Financial Centre.
  • RDC: Rules of DIFC Courts.
  • Document: anything in which information of any description is recorded, Including electronic documents such as email and other electronic communications.