Simplifying and contributing to the judicial nexus worldwide: In a globalised era, where business

operations transcend geographical boundaries, countries and governments enter into bilateral/multilateral

conventions or treaties to aid reciprocal recognition and enforcement of foreign judgments.

With people and assets easily operating across borders, there are a multitude of disputes

affecting corporates and PSUs that span multifarious jurisdictions. In this regard, another astounding

foresightedness championed with prodigious effort, has orchestrated the United

Arab Emirates as an integral part of the international comity.

The recognition and enforcement of foreign judgments has

garnered great practical significance across all legal frameworks over the

decades, and continues to evolve exponentially. For instance, in the 19th

century, there existed 39 treaties between German States, and fewer with

foreign countries. While the early treaties solely provided for a comprehensive

mutual recognition of any judgment, the modern ones began to require additional

elaborate conditions such as timely notice, jurisdiction, and compatibility of

public policy with the enforcing State.

It was in the 20th century that we started to see

attempts to move beyond bilateral agreements to multilateral conventions. The

Uniform Enforcement of Foreign Judgments Act, originally announced in 1948, and

later revised in 1964 applied only to sister states in the US and federal

judgments. However, both the 1962 and 2005 Recognition Acts provided that, once

a foreign country judgment was recognised, it was enforceable in the same

manner and to the same extent as a sister state judgment.

In the late 1900s, the Hague convention intended to

develop a standardised procedure by which countries involved in international

commerce, could resolve conflicts in a forum where foreign judgments be

recognised and enforced by courts. Subsequently in 2005, the Uniform

Foreign-Country Money Judgments Recognition Act facilitated the recognition of a foreign judgment in United States of America Courts to provide legal certainty that helped aid the recognition and enforcement of United States judgments abroad.

In a contemporary today, we are privy to countries being

liberal in recognising and enforcing foreign judgments; thereby providing a

legally robust, revolutionary and enterprising platform to accelerate

cross-border trade and transactions throughout the world.

RECOGNISING & ENFORCING A FOREIGN JUDGMENT

The United Arab Emirates (UAE) has a rich tapestry of

varied cultures and nationalities. And to ensure reciprocal recognition and

reinforcement of foreign judgment, spearheading the leadership’s progressive

vision, the UAE has signed several bilateral legal and judicial cooperation

treaties with countries like France, Afghanistan, Egypt, Jordan, Nigeria,

Morocco, India, Iran, Pakistan, and the United Kingdom, among others.

The UAE is also party to numerous multilateral

conventions on the recognition and enforcement of foreign judgments, which

include the Riyadh Convention on the Judicial Cooperation between the States of

the Arab League 1983 (entered into without reservations) and the Gulf

Cooperation Council (GCC) Convention for the Execution of Judgments,

Delegations and Judicial Notifications of 1996 (entered into without

reservations). The enforcement of judgments follow different processes under each convention:

Riyadh Convention: A formal request must be made to the

competent court by the contracting party. Enforcement process begins after the request has been approved.

GCC Convention: The procedure is governed by the law of the

state where the judgment is executed. Important documentation includes true

copy of the judgment, a certificate declaring the judgment to be final and

documents, which confirms that the defendant was properly notified in cases

where ex-parte judgment is given.

Paris Convention: No specific legal framework has been

recognised. The application for recognition and enforcement of the foreign

judgment shall be submitted before the competent court of first instance within the jurisdiction in which the party wants to enforce the judgment by following the usual procedure of bringing a claim under article 235(2) of the UAE Civil Procedures Code.

The application of the above treaties entered into by the

UAE extends to the Dubai International Financial Centre (DIFC) Courts under

Article 24(2) of the DIFC Court Law. The DIFC Courts themselves have entered

into several memoranda of guidance related to reciprocal enforcement

arrangements with several courts and authorities, such as the UAE Ministry of

Justice, the Ras Al Khaimah Courts, the Federal Court of Australia, the Supreme Court of Singapore, the Supreme Court of New South Wales and the Commercial Court of England and Wales.

Arabic is used as the official language in the Emirati

courts and any documentation submitted to the court must be translated and

certified by a legally-sworn translator licensed by the UAE Ministry of

Justice. However, proceedings in the DIFC and the recently established Abu

Dhabi Global Market (ADGM) are in English and in a historic move to ensure justice is accessible to all, Hindi has been included as the third official language by the ADGM.

Based on the amendment to Article 121, each Emirate

government is permitted to create its independent free zones. To encourage

trade and economic activities, a company established in any of the free zone is

permissible to have hundred per cent foreign ownership (among many other

benefits), in contrast to a requirement of an Emirati or local sponsor for a

company established outside any of the free zone. Since the DIFC was

established as a Financial Free Zone in the emirate of Dubai, the Dubai Law No

9/2004 recognizes the administrative and financial independence of DIFC. And therefore, DIFC Courts have their own civil and commercial laws strictly

structured on the principles of common law and international standards, where the legal independence is derived from Dubai and the federal laws; this makes DIFC a dominant free zone in the UAE, a favourable choice for foreign

investors.

RECOGNITION OF FOREIGN JUDGMENTS IN THE UAE

The UAE’s decision to enter into these treaties and

memoranda leads us to the fact that the enforcement of foreign judgments in the

UAE is based on the provisions of the treaty that apply. When the UAE is party

to a treaty, whether bilateral or multilateral, the recognition and enforcement

of foreign judgments in the UAE will be followed as per the provisions of such

a treaty. However, in the absence of such a treaty, relevant provisions from

the UAE Civil Procedures Code take effect; specifically Articles 235 to 238 of

Federal Law No. 11 of 1992. UAE Courts recognise all judgments that correspond

to these treaties and prefer to emphasise requirements within treaties for

enforcing judgments rather than using civil procedure laws.

Article 235 of the UAE Civil Procedures Code provides all

the requirements for the recognition of foreign judgments, especially as

relevant to the Emirati UAE Courts, and it lays down the following conditions:

Article 235(1): the judgment creditor must prove that the

foreign state issuing the judgment for which enforcement is sought would also

agree to enforce a UAE court order/judgment.

Article 235(2)(a): the UAE Court will not enforce a

foreign judgment if it deems that it had original jurisdiction to hear the

dispute. The UAE Civil Procedures Code specifies instances in which the UAE

Courts are likely to claim original jurisdiction over a dispute (Articles 20,

21 and 33). The UAE has also provided a broad interpretation of the concept of

“original jurisdiction” for this purpose. For instance, the UAE Courts will

most likely claim jurisdiction in the event that a defendant has a place of

residence or domicile in the UAE. The same applies if the assets that

constitute the subject matter of the dispute are located in the UAE.

Article 235(2)(b): the UAE Courts will determine whether

the foreign judgment or order was issued by a court with jurisdiction in per

the law of its home jurisdiction.

Article 235(2)(c): the UAE Courts must examine the

service of process to ensure that it has been carried out in the correct

manner. Aspects such as the verification of the parties, whether they were duly

summoned to attend and had legal representation at the proceedings, are

especially emphasised. To satisfy this requirement, the judgment creditor must

submit an Arabic translation before the UAE courts.

Article 235(2)(d): the foreign judgment or order should

be a final non-appealable order or judgment.

Article 235(2)(e): there should be no conflicting

judgments and no violation of public policy and morals.

CONNECTION TO THE JURISDICTION

The UAE Courts establish whether the assets in dispute or

the contract that was performed are located within its jurisdiction. According

to the provisions of Article 235, the UAE courts in order to enforce the foreign

judgment, take into consideration the principle of reciprocity.

As per Article 235(2)(c) of the UAE Civil Procedures Code

requires for a proper service of proceeding: the UAE courts will look into the

service of process, specifically regarding the verification of the parties that

if they were properly summoned to attend and had legal representation at the

proceedings. To satisfy this requirement, the judgment creditor needs to submit

before the UAE courts an Arabic translation. As the UAE courts have a strict

interpretation of the requirements which are laid down in Article 235 of the

UAE Civil Procedures Code, it is implausible that the UAE courts may grant

enforcement of ex-parte foreign judgments or foreign default judgments.

judgment or order should be a final non appealable order or judgment.

235(2)(e).

as per stated under Article 235(2)(e)

Though no different procedures for the enforcement of a

foreign judgment exist between the UAE courts and DIFC Courts, ultimately, the

courts issue a domestic judgment for this purpose. DIFC courts, however,

require the judgment to be final and for it to be for a pre-determined amount,

and that the foreign court, which delivered the judgment had jurisdiction to

hear the dispute.

UNIFORMITY IN THE LAW ON ENFORCEMENT OF

FOREIGN JUDGMENT AMONG DIFFERENT JURISDICTIONS, WITHIN THE UAE

The UAE, a global business hub, is a federation of seven

Emirates and consists of civil law jurisdictions. Apart from DIFC, UAE has a

single substantive law and has various courts for the different emirates.

Article 104 of the UAE Constitution (post amendment) states that, each Emirate

shall have its own independent judicial system except on matters assigned to

the Union. All Emirates, except Emirates of Dubai, Ras Al Khaimah and Abu

Dhabi, have agreed to incorporate their judicial system with the Union’s and

submit their exclusive right to an independent judicial system to the union.

Dubai, Ras Al Khaimah and UAE’s capital, Abu Dhabi each have their own court,

whereas, the other emirates have a unified federal court structure, where the

court of final appeal is the Federal Supreme Court.

The DIFC and the ADGM constitute common law legal

enclaves within the civil law system of the UAE. Judgments by the DIFC Courts

are binding irrespective of where the parties are from. According to Article

24(1)(a) of DIFC and Article 7(6) of the Judicial Authority Law, DIFC Courts

also have the authority to ratify foreign judgments of a foreign court.

In a seldom occurrence of a disagreement between the DIFC

and the onshore Dubai courts, a joint judicial committee known as the “Judicial

Tribunal” or the “Joint Judicial Committee” is created, which comprises of

seven members: three judges from the Dubai courts, three from the DIFC courts,

presided over by the Chief Justice of the Dubai Court of Cassation as the

Chairman. To recapitulate, the first ruling handed down by the Judicial

Tribunal was in the case of a dispute concerning a real estate enterprise

versus an established building contractor, putting an end to a much stretched

standing litigation. The real estate company won a favourable judgment, which

was related to an asset located in the Business District of Dubai.

Typically, an application for recognition and enforcement

of a foreign judgment needs to be submitted before the competent Court Of First

Instance within the jurisdiction in which the party wants to enforce the

judgment. This is to be done by following the usual procedure of bringing a

claim under Article 235(2) of the UAE Civil Procedures Code.

ENFORCEMENT OF FOREIGN JUDGMENT

The legislative framework in the UAE facilitates the

process of securing enforcement of foreign judgments through two separate

institutions: the UAE Federal System and the DIFC Courts. DIFC Courts are

legally obligated with the terms of the treaties for mutual enforcement of the

judgment; it presumes a foreign judgment to be conclusive and does not look

into the merits of the case. On the other hand, it is possible for UAE Courts

to re-examine a case’s merits.

Once the foreign judgment is recognised, the first step

the UAE Courts shall take in the process of enforcing it in the jurisdiction is

the issue of domestic judgment for the purpose of enforcement and after the

foreign judgment has been recognised, an enforcement file will be opened for

the enforcement proceedings.

Now under DIFC Courts, when a foreign judgment has been

recognised and enforced a separate enforcement application is required to be

made to the DIFC Courts’ Enforcement Division. The procedure for enforcement

depends upon whether enforcement is sought against assets within the DIFC or

against assets onshore in the wider UAE. If the enforcement is to be sought

against assets within the DIFC, then the enforcement methods are same as those

available under the rules of the DIFC courts, and the said rules in DIFC court

are similar to those of English rules.

If enforcement is to be sought against assets onshore in

the wider UAE, an execution letter will be issued by the DIFC courts to the

Chief Justice of the Court of First Instance of the Dubai Courts. The Dubai

courts will then enforce against assets within Dubai or deputise the courts of

an alternative Emirate to enforce the judgment against assets within that

Emirate.

Both, the domestic UAE courts and the DIFC courts, have

to carefully examine that the foreign judgments comply with UAE public policy

before approving to its enforcement. With respect to procedural and substantive

matters, given that there is no statutory definition of public policy under UAE

laws, Emirati courts usually derive the interpretation of public policy in the

context of Sharia rules and principles, which are elaborately developed and

favourably comply across a comprehensive ideological spectrum.

The same applies to DIFC Courts, which will take into

consideration UAE public policy while enforcing a foreign judgment. Typically,

an application to recognise and enforce a foreign judgment that is more than 15

years old is not entertained.

To conclude, having a treaty increases incentives to

cooperate and enforce foreign judgments for a stable multinational community.

With a combination of multilateral and bilateral treaties, memoranda of

guidance for reciprocal enforcement arrangements with several international

courts and provisions in UAE Federal Law, the UAE Courts and the DIFC Courts

have created an efficacious structure to recognise and enforce foreign

judgments with minimal complications for the affected party. Under remarkable

sovereign governance, the embodiment of this system has led to a highly

conducive environment for businesses to invest in the country. In conjunction

to witnessing stupendous growth, they have the assurance that, should the

situation arise, judgments passed by competent courts situated outside the UAE

on parties or assets located within it, can be executed with the force of law.

Written by: Kushagra Arora

Partner