Provisional attachment in UAE legislation
sometimes, commercial disputes arising from commercial transactions as a result of the accumulation of debts and inability of one or more parties to meet their obligations of payment or delivery. and in order to obtain his debt guarantees and to ensure that the debtor does not smuggle his money the creditor seeks to file a case called provisional attachment case by which the creditor obtains a court order to seize all debtor’s funds which are equivalent to the amount of the debt. the UAE`s law regulates the provisional attachment subject and showed situations under which the creditor may resort to the provisional attachment. therefore, article 111 of the Council of Ministers Decision No. 57 of 2018 concerning the regulations of the Federal Law No. 11 of 1992 on the Code of Civil Procedure: (Without prejudice to any provisions of any other law, the creditor may request from the court which examines the action or from the judge of summary matters, according to the circumstances, to impose provisional attachment on the real properties and the movables of his adversary in the following circumstances:
1) Each case in which he would be afraid to lose the security of his right, as the following cases:
- a) If the debtor is not a settled resident of the State;
- b) If the creditor was afraid that the debtor escapes, smuggles his money or hide it;
- c) If the securities of the debt were at risk of being lost.
To the lessor against the original lessee and the sub-lessee on the movables, fruits, and yields existing in the leased premises, as a guarantee for the lien to which he is entitled according to the law, by the virtue of this lien, the lessor has the right upon the storages which belong to the lessee and he has the priority over other tenant creditors.
If the creditor was bearer of an official document or ordinary debenture for an unconditionally payable debt, (as he has a payable cheque, Acknowledgment of Cash Receipt) or if he has an enforceable court order (Which does not become a final decision) provided that the debt included in such judgment is of a certain amount.
Any worker in case of failure to settle his dues determined under the law regulating the labor relations has the right to the attachment request upon company fund, as a security for payment of such due after being temporarily estimated by the competent administrative authority.
In all circumstances, the court may, before responding to the attachment request, require any information or affidavits or otherwise carry out a brief investigation or the necessary interrogation with the assistance of the competent administrative authorities, when it finds that necessary.
The owner of movable property and whoever has a real right related to it or a right to withhold same may request the imposition of provisional attachment on such property with the party holding it, by virtue of a memorandum containing sufficient details on the property to be subject to attachment.
should the debtor not have any writ of execution or should the value of his debt not be specified, the magistrate of summary justice may order the imposition of sequestration and temporarily estimate the garnishor’s debt based on a well-grounded petition submitted by the sequestration applicant. Before issuing the order, the judge may carry out a summary investigation should he deem that the documents supporting the application are insufficient.
In case of attachment of a real estate, a certified copy of the real estate’s title deed shall be submitted with the petition.
if the claim is filed earlier regarding the right before the court of competent jurisdiction, a petition may be submitted to the said court to issue the order of attachment.
the garnishee my appeal the attachment order before the judge of summary matters, both in relation to the attachment subject or dates, and the judge may decide to reject the appeal and consider the same as null and void or otherwise limit the attachment , if so is requested under the appeal, and in all cases the attachment shall elapse upon issue of a final decision rejecting the claim for confirmation of the right.
It must be stated that the provisional attachment is linked to the claim and that, therefore, if a final judgment is issued rejecting the claim of proof of right, the pretrial detention will be dropped.
If the Subjective case ( principal right) is filed earlier regarding the right before the court of competent jurisdiction, a petition may be submitted to said court to issue the order of attachment referred to be dismissed on an expedited basis and can be presented at any stage of the proceedings.
Therefore, it is clear that provisional attachment is a way to guarantee the creditor’s right and to ensure that the debtor does not smuggle money, and if it is found that the creditor has no entitlement in a lawsuit, the attachment shall be canceled and will be considered void and null.