When considering the resolution of a dispute through arbitration
or litigation, one of the most fundamental issues to consider is
the ultimate enforceability of any judgment or arbitral award that
may be obtained.
Foreign companies sometimes shy from the prospect of litigating in
the local courts. Factors such as the conduct of proceedings in
Arabic, the necessary translation and notarization of
documentation, and the absence of binding precedent are
understandably daunting hurdles. Because of such factors parties
often express a desire to litigate in foreign courts with which
they are familiar, or alternatively, to arbitrate any disputes
which arise.
Enforcing a Foreign Judgment in Dubai
In the event that the contract does not contain an arbitration
clause, parties can face a difficult decision about which
jurisdiction to commence proceedings in. Some contracts purport to
limit the claimant's options by containing an exclusive
jurisdiction clause. However, it is important to be aware that UAE
courts will not pay heed to such clauses, as they are deemed by the
courts to be contrary to public policy.
For the reasons outlined above, even in the absence of an exclusive
jurisdiction clause, some clients seek advice in relation to filing
proceedings in a foreign court, and the resulting need to attempt
enforcement through the local courts. Which jurisdiction is most
appropriate to file an action will naturally depend upon the
particular facts of the case; however, there are some general
considerations which are relevant in all cases.
The enforcement of foreign judgments in the UAE is regulated by
Articles 235 and 236 of the UAE Civil Procedure Code, Federal Law
No. 11 of 1992 ("the Civil Procedure Code"). These
articles provide for the enforcement of foreign judgments in
principle, however, in practice, foreign court judgments are
difficult to enforce in the UAE, especially in the absence of a
treaty between the foreign country and the UAE which allows for
reciprocity. A treaty of reciprocity exists between the GCC
countries (UAE, Kuwait, Bahrain, Saudi Arabia, Oman and Qatar), and
with a number of other Arab nations. However, such treaties are
virtually non-existent outside Arab league countries. A treaty of
judicial co-operation exists with the United Kingdom; however, this
treaty does not expressly extend to the reciprocal enforcement of
judgments. In fact, the only country in Europe which currently has
a treaty of reciprocity with the UAE is France.
In order for a foreign judgment to be enforced in the UAE the
conditions listed in Article 235 of the Civil Procedure Code must
be satisfied. The biggest hurdle is usually the fact that the local
courts will not recognise a foreign judgment in circumstances where
it would have had jurisdiction over the matter (Article 235(2)(a)
of the Civil Procedure Code). The jurisdiction of the UAE courts is
governed by Article 20 of the Civil Procedure Code, pursuant to
which the courts of the UAE have jurisdiction to hear all actions
brought against individuals or companies having an address or place
of residence in the UAE.
However, the UAE courts also have the power to hear an action
against a foreign company with no address or place of residence in
the country in certain circumstances. Article 21 of the Civil
Procedure Code provides that the court will have jurisdiction over
a foreigner that has no address or place of residence in the
country if inter alia, the foreigner has "an elected address
in the country" or the action relates to assets in the
UAE.
An application for the ratification and enforcement of a foreign
judgment in the UAE must be accompanied by evidence including proof
that the judgment is final and not subject to any appeal (usually
in the form of expert evidence from a practitioner in the foreign
country), proof that the defendant was duly summoned and
represented during the hearing, and evidence that the country where
the judgment originated has a reciprocal arrangement with the
UAE.
The Enforcement of Foreign Arbitral
Awards
On the other hand, a foreign arbitral award has the advantage of
being enforceable in the UAE through the United National Convention
on the Recognition and Enforcement of Foreign Arbitral Awards 1958
("the New York Convention"). The nationality of the award
will be determined by the "seat" or "place" of
arbitration. Provided that the seat of arbitration was in one of
the 144 signatory states, and provided that the relevant conditions
are met, then the award should be enforced by the local
courts.
The relevant conditions for enforcement are set out in Article
IV(1) of the New York Convention. The party applying for
enforcement must provide: (a) the duly authenticated original award
or a duly certified copy thereof; (b) the original agreement
referred to in Article II or a duly certified copy thereof. The
award and the agreement must also be made in the language of the
country in which the award is relied on, or a certified translation
must be supplied (Article IV(2)). If these conditions are met, the
courts of any other member state must enforce the award without
amendment, as if it was a judgment of its own.
If the award is rendered in a non-signatory state 1 , or
in a state which does not have specific treaty agreements with the
UAE, then it is likely that the provisions of Article 236 of the
Civil Procedure Code will not apply (it should be noted that as the
UAE did not make any reservations when signing the New York
Convention, it is thus arguable that its provisions apply, even in
respect of awards rendered in a non-signatory state). In the
unlikely event that Article 236 is applied, in order to enforce a
foreign arbitration award, an application must be brought before
the UAE courts requesting that the award be ratified and enforced.
The court will only ratify the judgment after ascertaining that the
following conditions, contained in Article 235 of the Civil
Procedure Code have been satisfied 2 :
- That the State Courts do not have jurisdiction in the dispute in which the judgment has been given or the order made, and that the foreign Courts which issued it have jurisdiction therein under the international rules for legal jurisdiction prescribed in their laws.
- That the judgment or order has been issued by a Court having jurisdiction under the law of the country in which issued.
- That the opposing parties in the case in which the foreign judgment has been given have been summoned to appear, and have duly appeared.
- That the judgment or order has acquired the force of a fait accompli under the law of the Court which issued it.
- That it does not conflict with a judgment or order previously issued by a Court in the State and contains nothing in breach of public morals or order in the state.
Enforcement of foreign judgments and arbitral awards in
the DIFC
A foreign judgment, order or award is enforceable within the DIFC
pursuant to Article 24(1) of the DIFC Court Law, Law No. 10 of 2004
which provides that the DIFC Court of First Instance has
jurisdiction to ratify any judgment, order or award of any
recognized foreign court (Article 24(1)(a)) or any foreign arbitral
award (Article 24(1)(c)).
Enforcement procedures between the Dubai Courts and the DIFC Courts
were clarified in June 2009, when a Protocol of Enforcement was
issued governing the enforcement of a judgment, order or award of
the DIFC Courts (including arbitral awards ratified by the DIFC
Courts) outside the jurisdiction of the DIFC Court, and the
enforcement of a judgment, order or award of the Dubai Courts
(including arbitral awards ratified by the Dubai Courts) within the
DIFC Courts' jurisdiction. Importantly, in considering an
application for enforcement the DIFC Court Execution Judge will
apply the provisions of the Rules of the DIFC Court and has no
authority to review the merits of the judgment, award or order of
the Dubai Court. Conversely, when considering an application for
enforcement outside the DIFC, the Dubai Court will apply the
relevant provisions of the Civil Procedure Code, and likewise does
not have jurisdiction to review the merits of a judgment, award or
order of the DIFC Court.
Summary
In summary, when considering the enforcement of judgments, orders
and awards it is worthy to note:
- Exclusive jurisdiction clauses are not adhered to by the local courts;
- Treaties of reciprocity are limited outside the Arab region;
- Local courts will not recognize a foreign judgment in circumstances where it would have had jurisdiction over the matter;
- Foreign arbitral awards issued in signatory states are enforceable pursuant to the New York Convention;
- The procedures for enforcing judgments, order and awards (including arbitral awards) between the DIFC Court and the Dubai court were clarified pursuant to the terms of the June 2009 Protocol of Enforcement.
Footnotes
1 A full list of states that are signatory to the New York
Convention states is available at
please click
2 Dubai Court of Cassation Judgment 17/2001 dated 10 March
2001.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.