On 13 September 2022, the International Co-operation Department of the Ministry of Justice of the United Arab Emirates (the “UAE Ministry of Justice”) issued a guidance letter to the Director General of the Dubai Courts (the “MOJ Guidance letter”). This MOJ Guidance letter requested that the principle of reciprocity of recognition and enforcement of court judgments between the Dubai Courts and English Courts be promoted in the Dubai Courts. This follows the English High Court case of Lenkor Energy Trading DMCC v Puri (2020) (the “Lenkor case”) in which the English High Court enforced a Dubai Court of Cassation judgment.
The History of enforcement of English Court Judgments in Dubai
The conditions to be satisfied for the enforcement of foreign judgments by the UAE courts are found in Article 85 of Cabinet Resolution No. 57 of 2018 concerning the Executive Regulation of the UAE Civil Procedures Law (Federal Law No.11 of 1992, as amended) (the “Executive Regulations”). Article 85 of the Executive Regulations states that the UAE courts will enforce foreign judgments and orders if certain conditions are met.
The relevant parts of Article 85 of the Executive Regulations state in translation as follows:
Judgments and orders issued in a foreign country may be enforced in the UAE under the same conditions prescribed in the Law of the foreign country for the enforcement of judgments and orders issued in the UAE.
The enforcement may be ordered only after the following is verified:
That the Courts of the UAE do not have exclusive jurisdiction over the dispute on which the judgment has been issued, and that the Foreign Courts have jurisdiction.
That the judgment or order has been issued by a Court in accordance with the Law of the issuing country.
That the Parties to the Lawsuit on which the foreign judgment is issued have been required to appear and are properly represented.
That the judgment has acquired the legal effect of res judicata according to the Law of the issuing Court, i.e. it has become final.
That the judgment neither conflicts with a judgment previously issued by a Court of the UAE nor involves anything that violates the public order or morality.
The Enforcement Judge shall have the authority to demand the documents that support the application before his decision is made.
Whilst there is no express reference to “reciprocity” in Article 85 of the Executive Regulations, historically the Dubai Courts have not generally been willing to enforce foreign judgments issued by the English Courts because it was not possible for a judgment creditor to prove that the English Courts would enforce judgments issued by the courts of the UAE (i.e., that there was reciprocal enforcement or reciprocity). Therefore, even if it was possible to prove that the conditions in Article 85 of the Executive Regulations were satisfied, there was still no guarantee that the Dubai Courts would enforce an English Court judgment and generally the Dubai Courts did not do so.
There is no treaty for the mutual recognition and enforcement of court judgments between the UAE and the United Kingdom. There is a Treaty between the two countries on Judicial Assistance in Civil and Commercial Matters dated 7 December 2006 (the “Judicial Assistance Treaty”). The Judicial Assistance Treaty deals with the reciprocated judicial assistance in respect of the service of judicial documents and the taking of evidence. It can be relied upon for example, to support applications for service in the UAE in “a special mode or manner” where the delays by serving through diplomatic channels need to be avoided. However, that Treaty does not include provisions relating to reciprocal enforcement.
The Dubai Courts’ requirement for reciprocity was well entrenched under the old provisions of the UAE Civil Procedures Law which were amended by the Executive Regulations in 2019.
The Ministry of Justice Guidance
The MOJ Guidance letter was issued following the English High Court’s decision in the Lenkor Case, in which the English High Court directly recognised and enforced a judgment of the Dubai Court of Cassation relating to a bounced cheque. The English Court of Appeal did not accept the arguments that the Dubai Court of Cassation judgment offended public policy and considered that the Dubai Court of Cassation judgment was final and conclusive.
The MOJ Guidance letter states in translation that the reciprocity principle “has been achieved through the English courts previously implementing a judgment delivered by Dubai Courts ...” in the Lenkor Case, and as a result the MOJ asked the Dubai Courts:
“in the event of applications for the implementation of judgments and orders delivered by English Courts that legal requirements are implemented in accordance with the laws in force in the two countries, in order to promote the principle of reciprocity and to ensure its continuity between the English courts and the State courts.”
The MOJ Guidance letter is addressed to the Director General of the Dubai Courts and not the courts of the other six Emirates, presumably since the Lenkor Case related to the enforcement of a Dubai Court of Cassation judgment. Therefore, it is at least arguable that the principle of reciprocity has not been established between the English Courts and the courts of the other UAE Emirates. Additionally, as the Lenkor case was a decision of the English Courts, the MOJ Guidance Letter does not make any reference to whether reciprocity has been established between the Dubai Courts and other courts within the United Kingdom, such as the Scottish Courts.
What has changed?
It is important to note that the MOJ Guidance letter does not change the conditions in Article 85 of the Executive Regulations and does not bind the Dubai Courts to enforce English Court judgments unless those conditions are satisfied. Specifically, the MOJ Guidance letter does not direct the Dubai Courts to automatically enforce English Court judgments and the Dubai Courts will still enforce English Court judgments in accordance with the procedure under the Executive Regulations.
Although the MOJ Guidance letter encourages the Dubai Courts to “promote the principle of reciprocity”, there will of course still be cases where the Dubai Courts can properly refuse to enforce English Court judgements where the conditions in Article 85 of the Executive Regulations are not verified. For example, the Dubai Courts may be unwilling to enforce English Court judgments which relate to the production of documents and evidence in certain circumstances or which relate to interim or injunctive relief, since the Dubai Courts generally do not issue those types of orders (albeit they may do in certain circumstances such as orders for the precautionary attachment of property and assets).
Further, the Dubai Courts may retain jurisdiction to hear certain disputes as a matter of UAE law, notwithstanding what might be agreed in the contract. Such disputes include those involving; the ownership of real estate in Dubai, commercial agencies contracts and arrangements, onshore employment contracts and certain other events and transactions which have taken place in the UAE.
The Dubai Courts will remain properly entitled under Article 85 of the Executive Regulations to refuse to enforce English Court judgments where, for example, it determines that the UAE has exclusive jurisdiction over the dispute on which the judgment or order has been issued.
The MOJ Guidance letter and the principle of reciprocity established in the Lenkor Case is a very positive development for the enforcement of English Court judgments in the Dubai Courts, and it should allow judgment creditors to prove reciprocity which was previously a barrier to enforcement. However, it does not change or relax the conditions in Article 85 of the Executive Regulations which remain in full force and effect and must be verified before the Dubai Courts will enforce an English Court judgment. Further, while it is now possible to establish that reciprocity exists between the English Courts and the Dubai Courts, the position as between the English Courts and the Courts of the other UAE emirates as well as the Dubai Courts and the Courts of other jurisdictions within the United Kingdom, remains unclear.