How does Litigation Differ in The Middle East and the Common Law Jurisdictions?
To practitioners in the West, the legal system of many Asian, or even European countries may seem opaque and inaccessible. When it comes to the Middle East, and GCC in particular, the misrepresentations of the media can reinforce this opacity to an extreme degree. However, there are many comparable elements in the legal systems in operation in the Gulf, to those of the Western world, and in particular, Common law jurisdictions. Many of the principles at play in the legal codes of most GCC states have similarities if not identical parallels in the statutes of common law countries, such as the United States or the United Kingdom.
This article, in particular, explores and explains those parallels and some key differences in the legal system which apply to the field of litigation.
For those who may have in interest in, or will be filing cases in the GCC region in the near future, the information below will be particularly useful. However, for those who have a passive interest, it may be more informative to skim through to sections of interest.
Stage 1: Filing your Claim
The first step, like in most other countries, is filing the claim with the court fee. The claim must include the name and address of the parties, and in countries such as the UAE, email addresses as well. After this, a summons is issued, and the court officer serves notice on the defendant. After one or two hearings, if notice has not been served successfully on the defendant (with his/her acknowledgement), notice may be served via means of publication.
Unlike in many jurisdictions in the United States for example, the plaintiff may also include a more detailed memorandum to the court, along with his/her initial complaint. In the United States, the plaintiff usually only provides a short written pleading when initiating the case.
In the UAE, by the first hearing (or second hearing if requested), the attorney representing each party must also present a legitimated (notarized, and attested by the department of state and embassy of the UAE, if from a foreign country) power of attorney to the court, executed by their client. This is usually not required in the US or other common law jurisdictions.
Stage 2: Pre-Trial and Discovery
In the United States, there can be a somewhat extensive “discovery process,” prior to trial. This is a period whereby the parties will make written requests to each other, via interrogatories or other kinds of legal document requests, for evidence and information. Depositions of the defendant or other witnesses related to the case may take place at this stage. The plaintiff (and defendant) may also make motions to compel the other party to provide certain kinds of evidence, and there are penalties for withholding such evidence.
The only comparable penalties in the UAE, or other GCC countries, exist for malicious prosecution and false accusations (which carry potential criminal consequences) in memoranda. In addition, in many cases tried in the US, only the legal claims raised in the pre-trial stage may be litigated at trial. Therefore, most of the claims which will be raised by the plaintiff are brought out at the pre-trial stage. In the GCC regions, it is considered more proper to raise all legal claims at the beginning of the trial process, i.e. in the first memorandum issued to the court and defendant. However, there is no formal restriction under the Civil Procedure Code. It should be noted that the judge is likely to frown upon and look unfavorably on claims raised in the later stages of the trial.
In the UAE, and most GCC countries, there is no particular discovery process. However, the defendant and plaintiff file memoranda, and the defendant is given two to four weeks to reply. Thereafter, the plaintiff and defendant debate and answer legal points via written memoranda. Once all allotted responses and claims have been filed before the court, the matter is reserved for judgment. A judge may then decide to appoint an expert to establish the more technical points in the case.
Stage 3: The Trial Phase
The judge’s role in the trial is Inquisitorial by nature in the UAE and most GCC countries. This means the judge takes a more active role in investigating and trying the case. No oral advocacy takes place in front of the judge in general, and hearings are made simply to make submissions before the court and judge. However, in practice, there is usually, in most cases, a court appointed expert. This expert holds hearings or “meetings” on matters of law and fact, which can be attended by both parties, their lawyers, and any designated representative of a party.
Trial practice in these proceedings is usually quite informal, and each party is asked to produce documents while being given a turn to argue their case. Parties can also bring various individuals or witnesses to the expert hearing. There is no formal procedure, such as via the rules of evidence, for making objections or striking certain presentations of the other party from the record, as is the case in common law jurisdictions such as the US. However, there is still a formal and particular demeanor to maintain during such proceedings. The ultimate outcome of these hearings is a formal report and opinion issued by the expert, which is then used by the judge to come to his/her final decision. Experts must also present and take down the minutes of their meetings with the parties and then present this to the court along with their findings.
If the “expert process” in the UAE or Middle East is to be compared to any kind of proceeding in Common Law jurisdictions, or the US, it can be likened to the appointment of some form of administrative judge to issue an interim opinion. As the final trier of fact and law is the judge himself, this report is ultimately quite persuasive when used by the trier of fact to come to a decision. Both parties can, however, object and argue against the written report in subsequent memoranda to the judge, prior to the judge’s final decision.
The expert can be seen, perhaps, as a jury of one. However, this jury of one has particularly specialist knowledge, such as knowledge of accounts, finance or other technical fields. In addition, the judge’s decision making authority in the trial can be compared to the common law judge’s power to set aside a verdict (Judgment Notwithstanding the Verdict), after a jury trial. The key difference is that the judge in the UAE and other GCC systems must come to their own conclusions with respect to the case. In addition, it is entirely up to the judge to appoint this jury of one. The judge can always decide to rely on his own experience, and issue the verdict based on written memoranda alone.
Evidence Rules
When it comes to evidence presented during the trial, experts can request one side to produce information, but they cannot compel or force any particular party to do so. Failing to provide the requested evidence will however impact the outcome of the expert hearing, and may take the effect of a “negative” inference made by the trier of fact against the assertions made by the party.
There are also a few key differences with respect to the presentation of pre-trial submissions. For example, documents sent to the opposing parties during settlement negotiations CAN be used in trial, and are therefore usually marked “without prejudice” by the sending party. This is a key difference from evidentiary rules in many jurisdictions in the US for example. As a result, in the UAE and other GCC countries, it is more likely that settlement negotiations will be discussed without any documentation.
When it comes to witness testimony and cross examination, this is very rare during a trial, and if it does occur, it is conducted with the supervision of the judge, who controls testimonial process and can also question the witness. Most evidence by means of a witness is produced via affidavit, which can be notarized. The notary process, however, is not a simple authentication procedure as it is in the US. In many cases, a notary public can even possess a form of judicial power, as will be explained later.
Stage 4: Post Trial
After the judge issues a decision, the right to appeal exists in full before the court of appeals. The appeals court consists of a tribunal of judges, who hear the matter afresh. After the appeal period, and the various issues brought to the appeal court (again written submissions) are pleaded in full, the court will issue its judgment. After this, only appeals on matters of law can be made to the highest court in the land, being the Court of Cassation (or the Federal Supreme Court of the UAE). The Court of Cassation functions like the Supreme Court in the United States for example, issuing instructive verdicts on key areas of law. However, unlike the Federal Supreme Court in the US, it can hear issues on a number of legal areas, and need not have a constitutional bases alone for hearing matters brought before it. This is similar to the power granted to State Supreme Courts in the United States.
Who Can Appear and Represent Clients?
Individuals or corporations can self represent themselves before the courts, or can appoint an attorney to appear on their behalf. Under the black and white letter of the law, only barred and admitted “locals” (i.e. GCC nationals of the particular country) can file documents before the judge on behalf of others. However, in jurisdictions such as Dubai or even Bahrain and Oman, many of the contractual and civil disputes argued before the courts involve complicated aspects of international, foreign and commercial laws. As a result, there are a plethora of foreign practitioners and legal consultancies operating in the Middle East. Many of these practitioners are licensed in jurisdictions ranging from the United Kingdom, to India, or even Russia and Eastern Europe, as well as in other Arab countries such as Egypt or Syria.
Therefore, it is very common for most if not all of the memoranda argued before the court in certain cases, to be prepared by a foreign legal consultancy. As the language of the trial process is in Arabic, non-Arabic speaking consultancies will ultimately translate or rely on an Arabic speaker when making submissions.
When it comes to hearings before the experts, oftentimes, the foreign legal consultancy will attend such hearings without the aid of local counsel. These meetings may also be conducted in English and Arabic, allowing many English speaking lawyers to attend. Therefore, in many technical cases, local counsel act as simply the conduit for foreign legal consultancies, particularly on more technical issues (unless the local firm has the requisite international and/or business experience). However, in a number of countries, such as Bahrain, local advocates are pushing back on these practices, and are now trying to pressure the government to restrict the practice of international firms, while restricting all legal work to local advocates. Whether these efforts will be economically feasible remains to be seen.
As for the obligations of lawyers, both foreign and local practitioners are required to maintain the obligation of confidentiality with their clients, as per the The Federal Law on the Regulation of the Legal Profession. The rule of Attorney-Client privilege also applies in the courts, in jurisdictions such as the UAE and others, for example.
Final Note: The Distribution of Judicial Power
There are many measures taken in the Common Law Jurisdictions, such as the United States, to streamline the judicial process. This includes distributing judicial power to a number of individuals and entities to resolve legal matters. For example, many matters may be referred to mediation, alternative dispute resolution or arbitration. Some matters will be referred to an administrative judge, and in immigration matters for example, oftentimes an immigration officer will have decision making authorities in many applications. In countries such as Canada, administrative or immigration judges may not even be practicing lawyers. Perhaps the biggest distribution of judicial power in the Western Common Law setting is the appointment of a “jury” in the United States, to make decisive verdicts in many cases. The jury consists of a cross section of people from society, who are brought together to try the case and issue their judgment on the matter before the judge.
As described earlier, this is comparable to the appointment of an expert in the GCC countries, however, the jury in the United States does not usually possess any technical expertise. They can be informed by technical experts during the trial, however, these experts play the role of “witnesses” who issue their opinions to the court. As such, their opinions do not carry “decision making” power.
One other key distribution of judicial power in the GCC countries which is present, and quite distinct from most common law countries, is that of the notary public. In the Common Law jurisdictions, the main role of the notary public is to ensure the authenticity of legal and other kinds of documents. However, in the GCC and Middle East, the Notary plays a far more dynamic role. In addition to authenticating documents, the Notary provides legal approval to many documents, such as corporate documents, settlement agreements, divorce and personal status matters, commercial disputes and etc.
Therefore, the notary not only authenticates documents, but also provides his or her stamp of approval as to the legal validity of such documents. As a result, the notary will usually only authenticate documents if they are completely sure and convinced of its legal validity, as very often courts will rely on such documents. These documents can also take the form of witness testimony for example. Therefore, for more complex transactions, many clients often prefer to take the assistance of private notaries, who are also licensed attorneys.
Final Word
Litigation is never a simple process, and therefore the management of disputes may forever remain a highly sensitive matter. Knowing the ins and outs of dispute resolution across multiple jurisdictions is therefore a necessity for most international businesses and expats.
