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Background on the United Arab Emirates (UAE) Legal System

 

 
The United Arab Emirates ("UAE") is a Federation established in 1971 in the area previously known as the Trucial Coast in the Arabian Gulf. Seven Emirates, namely:

Abu Dhabi, Dubai, Sharjah, Ras Al Khaimah, Umm Al Quwain, Ajman and Fujairah.

These formed the Federation. In establishing the UAE, the Rulers of the seven Emirates agreed a Provisional Constitution ("the Constitution"), which provided the legal framework for the Federation. The Constitution provided for the establishment of the Supreme Council of the Rulers of all the Emirates as the foremost authority in the Federation and a Council of Ministers as the Executive Branch of the Federation. Federal Ministries of Foreign Affairs, Defence, Justice, Public Health, Communications, Information, Interior, Finance and Industry, Economy and Commerce, Education, Public Works, Agriculture, Labour and Social Affairs and Planning were established. 

As a Muslim country, one of the fundamental principles enshrined in the Constitution provides that Islamic Law (Sharia) is the main source for legislation in the UAE. The Federal Government is entrusted with the task of promulgating legislation concerning and regulating the principal and central aspects of the Federation. These include foreign affairs, defence, security, the federal judicial system, federal finance and loans, postal and communication services, federal public works, civil aviation, education, public health, currency, electricity services, nationality and related matters, management of federal possessions, census and federal information. 

The Constitution further emphasises that Federal Laws are to be promulgated to regulate labour and social services, real estate and its expropriation in the public interest, agriculture and animal wealth, substantive civil and criminal legislation, company laws, laws of procedure, protection of intellectual property, aviation, delineation of waters and regulation of shipping on the high seas. Another constitutional principle adopted by the Federation in accordance with the provisions of the Constitution was that whilst jurisdiction for promulgating substantive legislation was confined to the Federal Government, the local governments of the seven Emirates were authorised to regulate local matters that were not confined to the Federal Government. 

Prior to the establishment of the UAE each of the seven Emirates regulated its own affairs by passing local laws and regulations, including legislation establishing and regulating a judicial system. For example the Emirate of Abu Dhabi promulgated a Law in 1968 establishing and regulating the Abu Dhabi Courts. It also promulgated the Law of Procedure at the Civil Courts No. (3) of 1970, and the Law of Procedure at the Criminal Courts of 1970. Dubai promulgated a Law establishing its Courts in 1970 and Fujairah followed suit in 1969. Ajman, Sharjah, Ras Al Khaimah and Umm Al Quwain established their Courts by Laws passed in 1971. Some of the local laws that were promulgated prior to the Federation still prevail today and will continue to be applicable unless and until they are repealed by Federal Legislation. 

One of the main features of the Federation is the establishment of a Federal judicial system. At the pinnacle of this system, the Constitution provided for the establishment of a Federal Supreme Court (colloquially referred to as the "Court of Cassation") as the highest judicial authority in the land and specified its functions and operations. Subsequently Federal Laws were promulgated detailing the functions and operations of the Federal Supreme Court. The constitution further provided for the establishment of lower Federal Courts. 

The Federal Supreme Court, which should be based in the Federal Capital of the UAE, is head quartered in the city of Abu Dhabi. Initially, there was some doubt as to the legal basis of establishing a Federal Court of Appeal. This was later clarified by a decision of the Federal Supreme Court interpreting the relevant provisions of the Constitution as allowing the establishment of such Courts of Appeal. Thus, the UAE Federal judicial system consists of three stages of litigation in both Civil and Criminal Courts, namely, Courts of First Instance, Courts of Appeal and the Federal Supreme Court. 

In accordance with the Constitution, each of the seven Emirates retained the right to choose either to participate in the Federal Legal System or to maintain its own legal system. Four Emirates, namely, Abu Dhabi, Sharjah, Ajman and Fujairah, opted to incorporate their judicial systems into the Federal system. The Emirate of Umm Al Quwain initially opted to retain its independent system but in 1991 opted to join the Federal judicial system. Dubai and Ras Al Khaimah maintain their own independent systems. These Emirates initially based their judicial systems on two stages of litigation. The Emirate of Dubai later established a Court of Cassation in addition to its Courts of First Instance and Appeal. Although Dubai still retains its judicial system it has decided that the Federal Civil Procedures Law No. (11) of 1992 shall be applied in its Civil Courts. 

Historically the legal systems of the Middle Eastern Islamic Arab countries were based on Islamic Law (Sharia). Sharia (religious) Courts formed the judicial cornerstone of these countries. The modernisation of the majority of the legal systems in these countries at the beginning of the twentieth century, led to the establishment of Civil Courts which were generally granted the competence to review civil transactions as well as commercial and other types of disputes. Separate Criminal Courts were also established. Matters of personal status such as marriage, divorce, custody and inheritance remained with the Sharia Courts whose judges were trained in Islamic Law and Jurisprudence. Some Islamic Arab countries such as the Kingdom of Saudi Arabia maintained their legal systems which were, and still are, based on Islamic Law. Their judiciary is organised on the basis of the Sharia Courts. 

In the UAE the establishment of the Civil and Criminal Courts resulted in diminishing the role of the Sharia Courts. Nevertheless, the competence of the Sharia Courts in some Emirates, particularly Abu Dhabi, was substantially expanded later on to include, in addition to matters of personal status, all types of civil and commercial disputes as well as serious criminal offences. Therefore, in addition to the Civil Courts, each of the seven Emirates maintains a parallel system of Sharia Courts which are organised and supervised locally. 

In the comparatively short period since its establishment, the UAE has made important strides in regulating some of the vital legal aspects of its rapidly expanding economy. The Labour Law No. (8) of 1980, the Agency Law No. (18) of 1981, the Maritime Law No. (26) of 1981, Commercial Companies Law No. (8) of 1984 ("the Company Law") which will be discussed in this book, Insurance Law No. (9) of 1984, Civil Transactions Law No. (5) of 1985 ("the Civil Code") and the Penal Code Law No. (3) of 1987 were promulgated. 

In the past few years several other very important laws were also promulgated such as the Penal Code Law No. (3) of 1987, the Law of Criminal Procedure Law No. (35) of 1992, Law of Evidence (Proof) in Civil and Commercial Transactions No. (10) of 1992, the Civil Procedure at the Federal Courts Law No. (11) of 1992, the Trade Marks Law No. (37) of 1992, the Law for the Protection of Intellectual Property and Author's Rights No. (40) of 1992, the Regulation and Protection of Industrial Property of Patents, Drawings and Industrial Designs Law No. (44) of 1992 and the Commercial Transactions Law No. (18) of 1993. 

In countries that had opted for the adoption of codified civil laws rather than a legal system similar to the Common Law system which is generally based on judicial precedents, legislation plays an extremely important role. In a jurisdiction, such as the UAE, which constitutionally adopted Islamic Law (Sharia) as its main source of legislation and whose legal system is generally based thereon, the significance of the aforementioned progress in legislation is further emphasised. This is mainly due to two interrelated well established principles of Islamic law, namely: 

Discretionary interpretation is not allowed in matters covered by specific legislation. 
In the absence of a specific law, courts applying Islamic Law are obliged to adopt the general principles of Islamic jurisprudence and justice. In applying these general principles, a judge is not bound by the decisions rendered by other judges, nor is he bound by his own previous decisions. Precedents in Islamic Law are not considered binding and do not form part of the legislative process. 

These legal principles were confirmed in Majalat Al-Ahkam Al-Adlia ("Al Majala"), the Civil Code of the Ottoman State which was based on Islamic Law. Al Majala was derived mainly from the Hanfi Sect, compiled by jurists and promulgated in Istanbul in 1286 H (i.e. 1836 ). It was applied in most Arab countries that were under the Ottoman rule until the First World War. After their independence these countries continued to apply Al Majala, until they promulgated their own civil codes. Al Majala is still considered an extremely important reference in Islamic Law. The principle of precedents was dealt with in Al Majala where it was provided that 'an opinion cannot be refuted by another' which is explained therein to mean that each case should be judged on its own merits. 

Although, as indicated earlier, the Constitution stipulated that Islamic Law (Sharia) is a main source of legislation in the UAE, it nevertheless provided that decisions of the Federal Supreme Court are binding on all concerned. Consequently, although the decisions of the Federal Supreme Court are not considered to form a part of the legislative process they are extremely important, and definitely serve as an indicator to the Law and its interpretations in this jurisdiction. A practical difficulty though can arise in ascertaining the decisions of the Federal Supreme Court and other Appeal Courts: although the Federal Ministry of Justice publishes a quarterly periodical which includes legal articles as well as the important recent decisions of the courts, classified law reporting is not available to facilitate the task of a judge, lawyer or researcher as to what the interpretation of a specific rule of law might be. 

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For further information on UAE Company Law and Practice, it is recommended that the full text be referred to. Click on the link to obtain a copy. For specific legal advise, please contact Sabah M A mahmoud or other reputable Law Firm.

 

 

 
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