Enforcement of foreign judgments, orders& bills in accordance with the UAE`s legislation

The subject of Enforcement of foreign judgments, orders& bills is one of the most important legal issues that arise many questions and is regulated by many legal articles. We will discuss some special aspects of this subject. UAE`s legislator has set certain conditions that shall be met in order to make the judgment enforceable by the UAE`s courts. These judgments shall be issued on topics that do not interference within the UAE`s judicial competence. The judgment shall be delivered by the Court of competent jurisdiction, parties shall be properly represented and a judgment to be implemented is final and could not be appealed by any of the methods of appeal. Moreover, Judgment shall not conflict with public order and morality. The text Article 85 stipulated in the regulation No. 57 of 2018 issued on December 16^th, 2018, that was applied instead of the article No. 235 of the civil procedure law, was canceled by the virtue of the Federal law decree No. 10 of 2017 and replaced by article 85 from the regulation which stipulated the following:

• The execution of the decisions and orders delivered in a foreign country may be mandated in the state under the same conditions decided in the law of that country for executing the decisions and the orders delivered.
• The execution order shall be requested under a petition submitted by the interested person, including the information set forth in article 16 of these regulations, to the execution judge. The judge shall issue his decision with no more than three days as from the petition submission date, and his decision may be appealed in accordance with the rules and procedures established for an appeal of the court decision. It shall not be possible however to order execution before verifying the following:

1. That the state`s courts are not authorized exclusively to examine the litigation in which the decision or the order has been delivered and that the foreign courts which have delivered it are so authorized according to the international rules of the judicial jurisdiction decided in their law.
2. That the decision or the order has been delivered from an authorized court according to the law of the country where it has been issued.
3. That the litigants, in the claim in which the foreign decision has been delivered, have been summoned to attend and have been properly represented.
4. That the decision or the order has acquired the power of res judicata according to the law of the court which delivered the same.
5. That it does not conflict with a decision or an order delivered previously from a court in a state nor does it include what breaches the morals or the public order herein.

• Execution judge shall have the right to demand the necessary documentation supporting the petition before delivering his decision.

Referring to the text Article 85, regulation 57 of 2018  issued on December 16^th we find that the execution of the decisions and orders delivered in a foreign country may be mandated in the United Arab Emirates under the same conditions decided in the law of that country for executing the decisions and the orders delivered in the state, and the execution order shall be requested under a petition submitted by the interested person, including the information set forth in article 16 of these regulations, to the execution judge. The judge shall issue his decision with no more than three days as from the petition submission date and the judgment may be appealed in accordance with rules and procedures for appeal of the court decision. The order may not be executed unless verifying the following:

Firstly: the state`s courts are incompetent exclusively in disputes in which the decision or the order has been delivered and that the foreign courts which have delivered it are so authorized according to the international rules of the judicial jurisdiction decided in their law, therefore, if the foreign judgment is delivered was delivered against a UAE citizen or against  foreign citizen and they have  a residence in the UAE then the judgement does not enforce them in accordance with the Article 20 from the civil procedure law ( except for actions in rem concerning a real state overseas as the courts are competent to hear claims  filed against a citizen and the claims filed against an alien who has a domicile and residence at the state).

Moreover, the article 21 of the civil procedure UAE`s law stipulates that the UAE`s courts shall have jurisdiction to examine the actions against the foreigner who has no residence or domicile in the state in the following cases:

1) If he had an elected domicile.

2) If the action is related to real estates in the state, a citizen’s heritage, or an open estate therein.

3) If the action is concerned with an obligation concluded, executed, or its execution was conditioned in the state or related with a contract required to be authenticated therein or with an incident occurred therein or bankruptcy declared at one of its courts.

4) If the action has been prosecuted from a wife who has a residence in the state, against her husband who had a residence therein.

5) If the action is concerned with an alimony of one of the parents or the wife or with a sequestered or with a minor, or with his relationship or with a custody on fund or on person, in case that the claimer of the alimony, the wife, the minor or the sequestered has a residence in the state.

6) If the action is concerned with the civil status and the plaintiff is a citizen or a foreigner who has a residence in the state, provided that the defendant had not a determined residence abroad or the national law is imperatively applicable on the action.

7) If one of the defendants has a residence or domicile in the state.

Therefore, foreign judgments delivered against a foreign citizen who has no residence in the state and qualifies for the abovementioned conditions stated in the article 21 of the UAE`s civil procedure law are not implemented on him that because the UAE`s courts have the competence and the jurisdiction of disposition in these cases. The Emirati courts shall have the competence to hear preliminary and application related petitions for the main case under its jurisdiction, and shall have the jurisdiction to hear every request related to this case, and the request shall be heard with a proper administration of justice. And shall have the competence to order urgent and custodial measures enforceable in the state, even if they do not have jurisdiction for the main case.

Secondly: That the decision or the order has been delivered from an authorized court according to the law of the country where it has been issued.

A decision shall have been rendered by a court of a foreign country and the same shall be ratified by the competent authorities of its country.

Thirdly: That the litigants, in the claim in which the foreign decision has been delivered, have been summoned to attend and have been properly represented.

Litigants shall have been properly summoned and shall attend in person or by a legal attorney.

Fourthly:  That the decision or the order has acquired the power of res judicata according to the law of the court which delivered the same.

The article 49 of the Federal Law No. (10) of 1992 On Evidence stipulates the following:

• Res judicata judgments are absolute proof as to the matters finally decided of the litigation, and no proof is admitted against the legal presumption resulting therefrom, provided that such judgments refer to rights between the parties themselves acting in the same capacities and having the same object and the same cause.
• The court, by its own initiative, shall decide the incontestable character of this proof.

Res judicata is which prevents bringing disputes of the matter between litigants when this judgment is proved and final in a main issue explicitly or implicitly in both operative part of the judgement or  reasons related to the operative part of the judgement, after parties have been discussed it and its truth settled between them this settlement shall prevent the same litigants and a court to revert to a discussion of the same matter in which it was adjudicated even by legal or factual evidence that had not been or was raised or examined by the judgment.

Fifthly: The judgement shall not conflict with a decision or an order delivered previously from a court in a state nor does it include what breaches the morals or the public order herein.

The rendered foreign judgment shall not be conflicted with a judgment or order rendered by a state`s court, and shall not conflict with the public order and morality for example: a judgment of conviction against a person to pay an amount of money concerning gamble, shall not be applied at the state for contravening the public order and the public morality.

The UAE`s Judiciary shall commit to execute the awards granted by other countries provided that it met the requirements of the article 86 of the Regulation No. 57 of 2018 issued on December 16^th, 2018 which corresponds to the article No 236 of the civil procedure law  and which was canceled by a decree of the Federal law No. 10 of 2017 and have been replaced by the text article No 86 from this regulation whereby stated: (  the provisions of article 85 shall apply to arbitral award delivered in a foreign country and the award must be delivered in a matter in which it shall be possible to arbitrate according to the law of the state and must be enforceable in the country where it was delivered).

Accordingly, the implementation of the arbitral awards issued by foreign countries shall be applied provided that firstly: the arbitral award shall be issued in an issue that might be arbitrable. Secondly: the arbitral award shall be executable in the state in which it has delivered.

The UAE`s judiciary is working on the implementation of international conventions ratified by the United Arab Emirates Since these ratified conventions become legislation in force in the state and are treated as applicable internal law and the judiciary is also obliged to enforce its rulings on disputes submitted to it.

The United Arab Emirates signed New York agreement of 1958 that was approved by the Federal Decree No. 43 of 2006, published in the Official Gazette of 28-6-2006, in which the United Arab Emirates agreed to accede to the 1958 New York convention concerning the recognition and Enforcement of Foreign arbitral awards, then, its provisions shall be applicable on the facts of the disputes which have been adjudicated by arbitration judgements issued by the signatory States of this Convention. The first three articles of this convention obliged each contracting state to recognize the res judicata of the foreign arbitral and to commit with its recognition and to implement the same in accordance with the established procedural rules in arbitration in which it invokes the judgment. And to obtain the above-mentioned recognition and implementation as long as there was an agreement to arbitrate whether in a contract or agreement or letters or telegrams, article 5 of the same Convention stipulates that:

1. Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement are sought, proof that:

(a) The parties to the agreement referred to in article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or

(b) The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or

(c) The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced; or

(d) The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or

(e) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.

2. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement are sought finds that:

(a) The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or

(b) The recognition or enforcement of the award would be contrary to the public policy of that country.

That means that a party whom is against him rendered the arbitral award may not insist to refuse the recognition of the same except for the five cases described in that article, including the two cases contained in sections ” a, b”, in the event that an application of arbitration recognition is presented before the court hearing which proves that he was in a state of incapacity in accordance with the country where the award was made, or the party was not given a proper notice of an appointment of an arbitrator or the arbitral proceeding and he could  not present his defense……

In regard to the implementation of documents and conciliation reports issued by a foreign country in the UAE the Emirati legislator has addressed the matter in the article 87 on the regulation No. 57 of 2018 issued on December 16^th, 2018 that was applied instead of the article 237 of the civil procedure law , was cancelled  by the virtue of the Federal law decree No.10 of 2017 and was replaced by the article text No. 87 from the regulation stipulates the following:

• Authenticated documents and conciliation reports which the courts authenticate in the foreign country may have the order to be executed in the state under the same conditions decided in the law of that country, in order to execute the similar documents and report issued in the state.
• The execution order referred to in clause (1) of this article shall be requested with a petition submitted to the execution judge through the same procedures and conditions set forth in clause (2) article 85, and it shall not be possible to order the execution except after verifying the fulfilment of the conditions required for enforcement of the document or the report according to the law of the country where its documentation or authentication has been accomplished, and verifying that it is free from any matters against the public order and morality in the state.

Finally, the UAE`s legislator concluded chapter four concerning the enforcement of foreign judgments, orders& bills with the text article No. 88 of Regulation No. 57 of 2018 issued on December 16^th, 2018, which was applied instead of the text article No. 238 and which was replaced by the article 88 from this regulation of the civil procedures act , where it stated that: ( the rules stipulated in this section still shall be without prejudice to the provisions of the agreements and conventions between the state and the other countries in relation to the execution of the foreign judgments, orders, and bills).

Treaty provisions between UAE and foreign countries or the ratified international conventions concerning the implementation of the foreign courts ruling shall be applicable. Since the international conventions which are ratified by the state shall be considered as enforce legislation in the state, and shall be considered as an internal law which shall be applied in the state, national judge shall commit to its conventions on disputes submitted to him even if the litigants have not provided a copy of these conventions, as the judge is responsible for implementing the provisions of the laws in force in the state. There are several agreements concerning the implementation of the provisions signed by the United Arab Emirates and we review one of these agreements, the Riyadh Arab Agreement for Judicial cooperation and ratified by the United Arab Emirates by Federal Decree No. 53 of 1999. Accordingly, these conventions oblige the States parties and signatories to implement the provisions of the other signatory States and each Convention shall include special conditions to be observed in the application of that Convention. For example, the article 30 of Riyadh Arab Agreement stipulates the identification of cases in which recognition of foreign judgments is denied, and one of these cases is: If the judgment was passed in absentia without notifying the convicted party of the proceedings in an appropriate fashion that would enable him to defend himself. This implies that the court that hears the case of the foreign judgment must verify that the convicted person in absentia has properly notified of the case and its delivered judgment since the validity of the notification is the substantive requirement to accept the case.