United Arab Emirates (UAE)

Richard Price *

1 SOURCES OF LAW, JUDICIAL AND LEGAL SYSTEM

The UAE is a federation of seven Emirates (Abu Dhabi, Dubai, Sharjah, Ajman, Umm A] Quwain, Fujairah and Ras A] Khaimah). The Provisional Constitution is the founding constitutional document of the UAE, having been signed by six of the Emirates on 2 December 1971, with Ras Al Khaimah joining shortly afterwards in February 1972; it has been renewed every five years since 1971, most recently in 1991. It establishes the UAE as an indepen- dent, sovereign, federal state and expressly declares the Islamic Shari `a as the principal source of UAE law. Sbari"a law comprises a comprehensive body of legal doctrine distilled by Islamic scholars through the centuries from the Qur'an and the statements and example of the Prophet Mohammed. There are several schools of Sunni Islamic jurisprudence; in the UAE the courts general look first to the Maliki and Hanbali schools for guidance, and only then to the Shafi'i and Hanafi schools. Since 1971 the Federal legislature and the individual Emirates have enacted a considerable body of legislation. With the recent enactment of the Civil and Commercial Codes, it is reasonable to describe the UAE's legislative coverage as fairly comprehensive in most basic areas of law. In practice, when legislation exists, the role of the Shari `a is a secondary one, providing a source of guid- ance for the courts to interpret legislation and to reach judgment. As such, laws, decrees and regulations effectively form the primary source of UAE law outside of relatively discreet areas, such as family law relating to UAE nation- als, where the Shari(a reigns supreme. One legacy of Britain's former presence in this region has been the continu- ing influence of English Common Law on UAE legislation. However, the extent of this influence should not be exaggerated and, to a large degree, UAE legislation has sought its primary inspiration from the various laws and codes operating in other Arabic jurisdictions, most notably Egypt. While these codes themselves owe a considerable debt to European legal codes (especially that of

* Gulf resident partner, Clifford Chance, Dubai, UAE. France), the UAE's extensive "borrowing" from the legal codes of other Arab states is considered more a sign of commitment to pan-Arabism than of intel- lectual or jurisprudential weakness. Although there is no formal system of judicial precedent in the UAE, a third and sometimes rather nebulous source of law consists of the region's customs and traditions. The place of "specific" and "local" commercial practice as well as "general" commercial practice is clearly provided for in the Commercial Code in respect of ommercial activities. The courts may on occasion also look to broader principles of natural justice, either as the court itself perceives them, or as they have been interpreted in other (usually Arab) jurisdictions. A Federal judicial structure has been established to deal with civil matters within the UAE. Two Emirates, Dubai and Ras AI Khaimah, remain outside of this structure and have retained their own judicial system. The Federal system comprises a Court of First Instance in each Emirate and a two-tier appeal system. The first appeal is to the Federal Appeal Court in the Emirate in ques- tion, and a further appeal on matters of law can then made to the Court of Cassation in Abu Dhabi. Procedure before these courts is set out in the Federal Penal Code (Federal Law No. 3 of 1987), the Law of Evidence in Civil and Commercial Matters (Federal Law No. 10 of 1992) and the Code of Civil Procedure (Federal Law No. 11 of 1992). The language of the courts is Arabic and all documentation submitted to the courts must be duly translated. Criminal matters are dealt with by separate criminal courts which have their own appeal structure. Criminal procedure is governed by the Code of Criminal Procedure (Federal Law No. 35 of 1992). Shari'a courts co-exist with the civil and criminal courts at first instance, but are integrated into the Federal system insofar as Shari'a judgments can be appealed to the Court of Appeal and ultimately the Court of Cassation. The Court of Cassation in Abu Dhabi hears any dispute between the indi- vidual Emirates, as well as disputes between the Emirates and the Federal Government. It is also ultimately responsible for the interpretation of the Constitution and of the constitutionality of all legislation issued at either Federal or Emirate level. Finally, it has responsibility for the investigation of Ministers and offences against the Federation. The legal profession is regulated by Federal Law No. 23 of 1991. Article 6 of this Law states that only UAE citizens with appropriate qualifications are entitled to practise as lawyers within the UAE. In practice, foreign law firms are able to operate as legal consultants, but only local lawyers are able to appear before the courts. The Provisional Constitution reserves to the individual Emirates sovereignty over their own territories and territorial waters in all matters which are not within the jurisdiction of the Federation, as assigned in the Provisional Constitution. It states that the Federation shall form a single economic and customs entity with free movement of all capital and goods between the Emirates. Article 4 of the Provisional Constitution establishes the governing institu- tions of the Federation. The highest of these is the Supreme Council, consist- ing of the rulers of each of the Emirates, which is responsible for formation of