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in short
Happening: On September 13, 2022, the Ministry of Justice (“MoJ”) of the United Arab Emirates (“UAE”) wrote to the Dubai Courts, stating that the MoJ considered the UK High Court’s recent decision in Lenkor Energy Tradingto enforce a UAE judgment, as the reciprocity element under UAE law is met in assessing the enforcement of a UK court judgment in the UAE.
result: The letter from the Ministry of Justice is a positive development, indicating that the Ministry of Justice wants the Dubai Land Court to strengthen the enforcement of British court judgments. However, reciprocity is not the only factor that the Dubai Land Court must take into account when assessing the enforcement of foreign judgments in the UAE. Courts within the UAE must also consider whether the UAE courts have exclusive jurisdiction over the matter and whether the foreign judgment contradicts factors such as UAE law, public order or morals.
Looking to the future: There is no mutual enforcement treaty between the UK and the UAE (there is between France and the UAE). In the absence of a mutual enforcement treaty, the enforcement of UK court judgments in the UAE remains a matter of discretion under UAE domestic law. Therefore, parties seeking to enforce UK court judgments within the UAE should carefully review all elements of UAE law regarding the enforcement of foreign judgments – not just reciprocity.
context
On 13 September 2022, the Director of the Department of International Cooperation of the Ministry of Justice wrote to the Director General of the Courts of Dubai (“Letter from the Minister of Justice”) stating that the Ministry of Justice has considered the reciprocity requirement in Article 85(1) of the UAE Cabinet No. 57 of 2018 The resolution has now been satisfied and Dubai court judges are encouraged to find the same solution.
This positive signal from the UAE Ministry of Justice is the result of a recent ruling by the UK High Court In Lenkor Energy Trading DMCC v Mr Irfan Iqbal Puri [2021] EWCA Civilization 770. exist rencolUK Court of Appeal dismisses decision to enforce ‘Dubai’ [Court of Cassation] Judgment will violate [English] public policy. In this ruling, the UK High Court affirmed the enforcement of the Dubai judgment (on a bad cheque) on the grounds that it was “final and conclusive of a court of competent jurisdiction and did not contravene UK public policy.” “
In its letter to the Dubai Courts, the Ministry of Justice reasoned that because rencol In accordance with common law principles, binding on all UK courts, the Ministry of Justice hopes that the Dubai Land Court will take into account the principle of reciprocity when assessing the enforcement of UK court judgments under UAE law.
Where are we now?
There is no bilateral enforcement treaty between the UAE and the UK on mutual recognition and enforcement of court judgments. (However, there is such a treaty between the UAE and France: Treaty between the United Arab Emirates and the French Republic on Judicial Cooperation, Recognition and Enforcement of Judgments in Civil and Commercial Matters, 9 September 1991).
Between the United Kingdom and the UAE there is a treaty on mutual legal assistance in civil and commercial matters (Treaty between the United Kingdom of Great Britain and Northern Ireland and the United Arab Emirates on mutual legal assistance in civil and commercial matters, dated 7 December), 2006 (“UK-UAE Mutual Legal Assistance Treaty 2006”)). The 2006 UK-UAE Mutual Legal Assistance Treaty does not deal with the enforcement of judgments. It focuses solely on the service of judicial documents and the collection of evidence through a petition or power of attorney.
In addition, it specifically states that each country “should, as far as possible, grant mutual legal assistance to each other in civil and commercial matters” according to its domestic law. “(Look Art. Article 4.1 of the UK-UAE Judicial Aid Treaty 2006) (emphasis added). Therefore, judges in the UAE must consider every element of domestic law when considering the enforcement of foreign judgments, including UK court judgments. Such elements are found (among other things) in the provisions of Article 85 of Cabinet Resolution No. 57 of 2018 on the Regulations for the Implementation of Federal Law No. 11 (as amended) of 1992 on the Code of Civil Procedure. According to Article 85, judgments of foreign courts may be enforced in the UAE if all of the following conditions are met:
- “Judgments and orders made in foreign countries may be ordered to be enforced in that country under the same conditions as the laws of that country provide for the execution of judgments and orders made in that country. [Art. 85(1)] […]
- A national court does not have exclusive jurisdiction over a dispute in which a judgment or order is made, and the foreign court that issued the judgment or order has jurisdiction in accordance with the rules of international jurisdiction established by its law. [Art. 85(2)(a)]
- Judgments or orders are issued and duly approved by the court in accordance with the laws of the country in which they are issued. [Art. 85(2)(b)]
- Litigants in cases with foreign judgments are summoned and formally represented. [Art. 85(2)(c)]
- The judgment or order has the following effects justification According to the law of the court that issued it, provided that the judgment has been obtained justification or stipulated in the same judgment. [Art. 85(2)(d)]
- This judgment does not conflict with a judgment or order made by a state court, nor does it contain anything contrary to public order or morals. [Art. 85(2)(e)]. “
The elements of Article 85 are cumulative and in order for a foreign judgment to be enforced in the UAE, it must meet all of the above criteria. If no element is found, the foreign judgment will not be enforced. In addition to reciprocity, the aforementioned elements of exclusive jurisdiction and public policy often act as obstacles to the enforcement of foreign judgments in the UAE.
The UAE Federal Law No. 11 of 1992 on the Code of Civil Procedure (as amended) (“UAE Civil Procedure Code”) provides the UAE land courts with broad and often exclusive powers to adjudicate matters involving the UAE. Pursuant to Articles 31 to 38 of the UAE Citizenship Law. Pro. Law (among other things) that courts within the UAE will have exclusive jurisdiction in matters relating to real estate located within the UAE (look, E.g, Emirati civilization. Pro. legal arts. 31 and art. 32), events in the United Arab Emirates (see, e.g., Emirati civilization. Pro. legal arts. 31(2)-(3), Art. 36, and art. 37), and proceedings involving transactions carried out (or allegedly carried out) in the UAE (see, e.g., Emirati civilization. Pro. legal arts. 31(3) and Art. 36).
In addition, unless the defendant agrees otherwise, the courts within the UAE shall have jurisdiction over the defendant’s domicile in the UAE (see, e.g., Emirati civilization. Pro. legal arts. 31 (5)). In addition, courts within the UAE will not enforce jurisdiction clauses that state that foreign courts can determine the subject matter of disputes related to commercial agents (see, e.g., Federal Law No. 18 (as amended) of 1981 on Commercial Agents, Art. 6), employment (see, e.g., Emirati civilization. Pro. legal arts. 32 and art. 36), and a few other things.
In addition to the judicial examples above, public policy is often used as a basis for refusing to enforce foreign judgments by courts within the UAE. This is particularly notable as the UAE has a statutory concept of public policy. Article 3 of the UAE Federal Law No. 5 of 1985 on the UAE Civil Transactions Law (as amended) states:
“Public order should be considered to include matters relating to personal identity such as marriage, inheritance and descent, as well as matters relating to the system of government, freedom of trade, circulation of wealth, rules of personal ownership, and other rules and foundations. established in such a way that the final provisions of the law conflict with the fundamental principles.”
Why do we care?
The Ministry of Justice letter, dated 13 September 2022, is an important signal from the UAE Ministry of Justice to Dubai land judges that the latter should view the enforcement of UK court judgments more positively. In particular, the Ministry of Justice expressed the hope that the Dubai Land Court will follow the principle of reciprocity demonstrated by the British courts and ensure the continuity of the enforcement of judgments in both countries. In the Ministry of Justice letter, Justice Al Balooshi said in Arabic: “It is therefore our sincere hope that, in the case of a request to enforce judgments and orders issued by the courts of the United Kingdom, there will be And initiates the principle of reciprocity and ensures its continuity between UK and state courts.
However, given that the UAE is a civil law jurisdiction and Land Court judges are not bound by precedents (or letters), Dubai Land Court judges reserve the discretion to assess every element required for the enforcement of UAE law, including reciprocity, Exclusivity in determining whether to enforce a foreign judgment, jurisdiction and public policy (among other things).
Three key takeaways
- Letter from the Ministry of Justice encourages judges onshore in Dubai to find that an enforcement element under UAE law – reciprocity – has now been met as a result of the binding decision rencol in UK courts.
- However, in the absence of a bilateral enforcement treaty between the UK and the UAE, the enforcement of UK judgments in the UAE is still subject to all elements of enforcement set out in Article 85 of Cabinet Resolution No. 57 of 2018. In addition to reciprocity, this includes exclusive jurisdiction and consistency with public policy (amongst others).
- Nonetheless, the letter from the Ministry of Justice is an important signal for the UAE Ministry of Justice to push for the enforcement of British court judgments in the UAE.
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