APPLICATION OF FOREIGN LAW BEFORE THE EMIRATI JUDGE COMMENTARY ON THE RULING OF THE DUBAI COURT OF CASSATION IN APPEAL NO. 501 OF 2021 PERSONAL STATUS ISSUED JAN. 12, 2022
DOI:
https://doi.org/10.35246/w6m2yf26Keywords:
private international law, conflict of laws, foreign law, attribution ruleAbstract
This research addresses the commentary on the appeal’s ruling of the Dubai Court of Cassation No. (501) Personal Status law of 2021 issued on 12 January, 2022, which is related to the application of foreign law before the Emirate judge. This ruling raised several legal principles and problems that require clarification and attention due to their importance. This is the first ruling on the application of the legislative amendment introduced by the UAE legislator to Article 1 (3) of the Personal Status Law No. (28) of 2005 by Federal Decree Law No. (29) of 2020. According to thereto, the application of foreign law before the Emirate judge is contingent on the adherence of one of the litigants by applying it in accordance with the attribution rule mentioned in Article 13 (1) of the amended Civil Transactions Act in 2020.
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Dubai Courts website: https://dc.gov.ae/SubscribedServices/Verdict.aspx?SessionDate=12-01-2022&CaseYear=2021&CaseSerialNumber=491&CaseSubtypeCode=451&DecisionNumber=4.
Al-MADHAHAN, Nayef Jalil, 2017,The Role of the Emirati Judge in Applying Foreign Law in Personal Status Matters “Legal and Judicial Study”, Journal of the College of Sharia and Law, Article (12), Volume (19), Issue (6), By Tafhouna Al-Ashraf - Dakahlia, Al-Azhar University, p.: 4214.
Appeal No. 280, Personal Status Department, Session date: 4/11/2020, and Appeal No. 470, Personal Status Department, Session date: 12/22/2021.
In its ruling under study, the Court of Cassation also raised the idea of public order in private international law as a tool to exclude the applicable foreign law, and it is noted that the court - in this ruling - did not come up with anything new regarding this issue, which was previously discussed in detail in Emirati jurisprudence in connection with its comment on other rulings of the same court. Therefore, we will not present this problem through this study.
The importance of this question appears especially when the litigants refuse to adhere to the attribution rule because they are not aware of it, they do not want to apply it, they neglect it, or for any other reason.
Appeal No. (184) of 2019 Judicial - Sharia - 11/7/1998, Technical Office 20, Part (2), Rule No. 147, p.: 833.
Appeal No. (49) and (50) of 2000, Personal Status Department, No. (11), Rule No. (146), p.: 936.
Appeal No. (52) of 2006 - Personal Status Department, on 10/3/2006.
Al-SABOUSI, Abdullah Saif Ali, 2020, the Problems of Defining the Law Applicable to Personal Status Disputes According to the Provisions of Conflict of Laws of the United Arab Emirates, Analytical jurisprudence study, Volume (11), Issue (19), Department of Research and Studies, Ministry of Justice, Emirates, p: 22.
Appeal No. (30), for Judicial Year 28, Civil and Commercial Judgments Department, on 4/30/2006.
Appeal No. (280), Personal Status Department, Session date: 4/11/2020; That is, this ruling came after the amendments to the Personal Status Law in 2020 entered into force, and it is surprising that it was not based on it!! Rather, I use Article 1 of the Personal Status Law before it was amended.
Al-Sabousi, Abdullah Saif Ali, The Problems of Defining the Law Applicable to Personal Status Disputes According to the Provisions of Conflict of Laws of the United Arab Emirates, p. 22.
See in this regard, ABDELRAHMAN, Jaber Jad, 1954-1955, Principles of Private International Law, a group of lectures delivered to fourth-year students in conflict of laws - conflict of authorities - conflict of jurisdiction, (Cairo: Al-Mutaba`ah Al-Alamiyah, p.: 402.
FAHMY, Muhammad Kamal, 1985, The Fundamentals of Private International Law, (Cairo: Dar Al-Nahda Al-Arabiya, (ed. 1st), p.: 438; SALAMA, Ahmad Abd al-Karim, The Knowledge of the Rule of Conflict, p. 919; Raniyar Qader Ahmed, 2021, Maintenance and the Law Applicable to it, Rabin University, Department of Law, College of Humanities, Rania, Kurdistan Region, Iraq, p. 494. Available at:
https://doi.org/10.26750/Vol(8).No(3), Paper 23.
It is based on a vertical sequence between those united by the unity of blood, that is to say, it is the link between the origins and the branches; OTHMAN, Nasser Othman Muhammad, 2009, Egyptian Private International Law, Book Two, International Jurisdiction - Conflict of Laws - International Effects of Judgments - Private International Arbitration, (Cairo: Dar Al-Nahda Al-Arabiya, (ed. 1st), p.: 157.
As it is called “kinship of Al-Hawashi”, which is established between people who share a common origin without one of them being a branch of the other, such as kinship between brother and brother; and between a person and his maternal uncle; Al-Hawari, Ahmed Muhammad, 2016, Al-Wajeez in Conflict of Laws and Conflict of International Jurisdiction, University of Law, p.:266.
It is decided in the Dubai Court of Cassation, “The reasons for the judgment are considered to be tainted by corruption in the inference if they involve a defect affecting the soundness of deduction, and this is achieved if the court relied in its conviction on evidence that is not objectively valid to be convinced of, or on a lack of understanding of the factual elements.” Particularly, it has proven, or the occurrence of a contradiction between these elements...". See Appeal No. (96) of 2005, Personal Status Department, dated 6/26/2006.
Is it not surprising that the ruling under study refers - in its preamble - to all papers and documents related to the subject of the dispute in question, and neglects to indicate the place of conclusion of the marriage contract, despite its importance in knowing the law applicable to this dispute, and whether it is the same one that adheres to it or not?! Also, this statement is no less important than the statement of the court that ruled the annulment of the marriage contract arising from the case in question, which is the (Guilford County) court in England. Noting that the Court of Cassation, in a recent ruling issued in 2020 - that is to say, before the issuance of the suspended ruling - indicated the importance of indicating the place of conclusion of the marriage contract; where it ruled that “[i]t is established in the judgment of this court that the Trial Court must evaluate its judgment on elements derived from what has an established origin in the papers, and that its judgment includes what reassures the viewer that it has examined the evidence and documents presented in the case so that the judgment is based on what it is supported by reasons that are focused on the section of the dispute in the case and lead to the result on which its judiciary is built. If the ruling does not examine the evidence and the documents presented to it, which influenced the case and that the opponent adhered to its indications, or if the opponent does not respond to the essential defenses that he presented to it, with evidence that it encompasses the truth, the reality of the case and the evidence and documents presented in it, then its ruling is tainted by a violation of the established papers, shortcomings in causation, and a breach of the right of defense... If it is limited to mere brief reference to the documents submitted by the litigants to which they relied to prove the validity of their defense without being concerned with examining and scrutinizing these documents, the extent of confirming or denying what the litigants invoked regarding it and its impact on the court’s belief, then its ruling is tainted by deficiencies in reasoning.” Dubai Cassation, Appeal No. (280) of 2020, Personal Status Department, on 11/4/2020.
It reads as follow, “[i]n the cases stipulated in the two preceding articles, if one of the spouses was a national at the time of the marriage contract, the law of the UAE alone applies except for the eligibility condition for marriage.”
If scientific integrity requires that we acknowledge the fact that the previous position of the Court of First Instance at the time of filing the case (as the relevant legislative amendments had not yet been issued) and until the judgment was issued on 4/22/2021 (that is to say, shortly after the issuance of those amendments) has what justify it given that the case was filed before the relevant legislative amendments were issued, there is no excuse for the Courts of Appeal and Cassation for not redressing the mistake they made in the matter under discussion (forgetting to indicate the place of conclusion of the marriage contract through the facts of the case).
In the name of HAROUN, Muhammad Fathi, 2015, Proof of Foreign Law Before the National Court, Journal of Fiqh and Law, Publisher: Salah El-Din Dakkadak, Issue 31, p.: 84 et seq.
Appeal No. (470), Personal Status Department, on 12/22/2021.
It means attributing jurisdiction to Emirati law by name, in the sense of naming the "Emirati" national law as a law applicable in relations to a foreign element without relying on specific attribution controls, or by adopting attribution controls that increase the opportunity for applying the Emirati law before the Emirati judiciary in disputes with a foreign element the alien. See: Abdel Nasser Ziyad HAYAJNEH, Critical Readings on Conflict of Law Provisions in Qatari Civil Law, International Journal of Law, 2019, Qatar University Press, College of Law, Regular Issue (2), p.:166.
Decided because the applicable foreign law could not be established; This means a case in which the applicable law is not presented by the opponent who insists on applying it, noting that this case was decided by the jurisprudence of the Court of Cassation - in the ruling under study - and not by a legislative text. The reason for this is due to the difficulty of proving foreign law, and this is a traditional reason dating back to several decades ago, which was characterized by the rarity of cases involving a foreign element that was brought before the national judge. But today, as the means of information technology developed through the internet, which makes it easy to find the texts of any foreign law, and even translating it through these means, it has become easy to prove foreign law. See, Muhammad Walid Hashim Al-MASRY, The Extent to which the Compulsory View of the Rule of Attribution and Foreign Law before the National Judge Correlates towards a Unified Position for Arab Private International Law Legislation, Sharia and Law Journal, 2008, No. (35), United Arab Emirates University, p.: 253.
In terms of the progress made in the means of communication between judges from different countries of the world, which also facilitated the growth of audio-visual communication via the internet, which makes it easier for the Emirati judge to cooperate officially with foreign judicial authorities in the country whose law is applied. In addition to the movement of convergence between the legislation of countries in the field of private international law, which makes it easier for the Emirati judge to deal with some laws of countries with a legal background close to the UAE; such as the Arab countries and countries belonging to the Latin legal system in general. Hussam Osama SHAABAN, Treatment of Foreign Law before the Bahraini Judiciary, a Comparative Study in Light of Contemporary Jurisprudential and Judicial Directions in Private International Law, Journal of Sharia and Law, 2017, Issue (19), Al-Azhar University, Cairo, p.:36.
The preponderant jurisprudence confirmed that searching for the content of foreign law is an obligation on the judge and the litigants assist him in it; Fouad Abdel Moneim RIYAD and Samia RASHED, Mediator in Private International Law, Conflict of Laws, Dar Al-Nahda Al-Arabiya, Cairo, 1971, p.: 106. Okasha Mohamed Abdel-Al, Conflict of Laws, A Comparative Study, Alexandria: New Publications House, 2002, p.:363. Ahmed Abd al-Karim Salama, The Knowledge of the Rule of Conflict and Choice among Canons, New Galaa Bookshop, Mansoura, 1996, p.: 517
The Egyptian Court of Cassation opined that “[r]elying on foreign law is nothing more than a mere material fact that the litigants must establish evidence of.” Appeal No. (804), Judicial Year 44, (Civil), dated 4/7/1981, Technical Office 32, Part (1), Rule No. (201), p.: 1078; But this court soon softened its stance, where it explained “[i]t is decided - in the Court of Cassation’s judgment - that adhering to foreign law is nothing more than a mere material fact that must be evidenced in response to practical considerations with which it is not possible for the judge to be familiar with the provisions of that law, because the basis for applying this rule is that the foreign law is foreign.” On the authority of the judge, it is difficult for him to stand on his rulings and access his sources, but if the judge knows its content or his knowledge of it is assumed, then there is no point in adhering to the application of that rule. Appeal No. (9139) of 84 Judicial Court - Civil and Commercial Judgments Department - on 6/22/2015, Technical Office 66, Rule No. (141), p.: 941; This principle was approved by the Court for the first time on 6/2/1984, then it was repeated in the rulings of the Court of Cassation with the same meaning.
For example, Tunisia explicitly stipulates cooperation between the judge and the litigants, according to the Journal of Private International Law of 1998; whereas, Chapter (32) stipulates that “[t]he judge can automatically establish evidence of the content of a specified foreign law on the basis of attribution within the limits of his knowledge, and within a reasonable period of time with the assistance of the parties when necessary…”.
In accordance with the rules stipulated in Article 13 of Federal Law (10) of 1992 regarding the issuance of the Law of Evidence in Civil and Commercial Transactions, which reads as follow “[d]ocuments issued outside the state and certified by its representatives and official authorities are accepted as proof in the country in which it was issued.
“From an office licensed by the Ministry of Justice in accordance with the provisions of Article 7 of Federal Law No. 6 of 2012 regarding the organization of the translation profession”. See, Appeal No. (470), Personal Status Department, Session date: 12/22/2021.
See, SOURANI, Amal, 2013, the Application of Foreign Law before the National Judiciary, Master Thesis, University of Aleppo, Faculty of Law, p.:33.
Appeal No. (470), Personal Status Department, Session date: 12/22/2021.
OXEL, Soumya, The Application of Foreign Law in Light of National Attribution Rules, 2016, Master Thesis, Larbi Ben M’hidi University - Umm El-Bouaghi - Faculty of Law and Political Science, p. 25.
SALAMA, Ahmad Abd al-Karim, Knowledge of the Rule of Conflict and Choice between among Canons, p.: 521; Rather, His Excellency decides - before - that "experience is the preferred, if not the only, means for revealing the content of foreign law"; P: 520.
Appeal No. (449) of 2018 Judicial Court - Civil and Commercial Department, dated 10/11/1998, Technical Office 20, Part (2), Rule No. (162), p.: 930.
Resolution No. (71), dated 6/7/1963, Judicial Bulletin 1964, p. 24; Referred to by: Okasha Muhammad Abdel-Al, Conflict of Laws, p. 367.
For more details, see MANSOUR, Sami Badie, 1994, Mediator in Private International Law, (Beirut: Dar Al-Uloom Al-Arabiya, vol. (1), p.: 678 et seq.
Sadek, Hisham, Abdel-Aal, Okasha, and Al-HADDAD, Hafiza Al-Sayed, 2006, Private International Law: Conflict of Laws - International Jurisdiction - Nationality (Alexandria: New Publications House, p. 171.
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