The President of the State, H.H. Sheikh Khalifa Bin Zayed, issued the Federal Law No. 30/2005 amending some provisions and articles of the Federal Law No. 11 of 1992 Regarding Civil Procedures. We deemed it was necessary and appropriate to address some amendments that were made on some of the articles of the said law, especially since the procedure laws such as the Civil Procedure Law are considered the most important laws that interest all the social segments, particularly lawyers. These procedure laws also constitute the chord of the legal work and jurisdiction for any society and by knowing them, the legal system adopted in the countries becomes more clear.
These laws usually draw the best and the most ideal path before litigants to file their actions regardless of the subject of the claim. The procedure laws mean and include all kinds of proceedings of different matters.
After this brief introduction, let us have a look at the most important amendments made on the Civil Procedures Law, as we shall either explain the amendments from our point of view since we are associated day to day with these procedures or we shall present some interpretations if we found the provision to be general and may have more than one meaning, especially since the amended law is new and lacks the jurisprudence that explains its provisions.
We find that the legislator in Article 5 of the Civil Procedures Law added two important paragraphs to the old article which was limited to the notification by the notification representative. But the amended Article added the permissibility to notify through a company, office or other means, that can be determined by the Cabinet through a special system that explains the conditions required for these companies and offices to carry on their activity.
This addition is a significant move in an important procedure that is connected with the proceedings' developments and speed up of the judicial proceedings.
While we fully support the legislator who seeks to develop our laws by adding the amendments that go along with the growth of the society, the keenness to implement these amendments in compliance with the principle of justice is required. Notification by action to private companies requires a high level of censorship that ensures the implementation of this important procedure which is considered the basis of each case. It is a very important formal procedure. Therefore, we do not object to the new amendment as much as we request censorship that insures a good course of justice through putting an effective mechanism for these companies' work to guarantee the implementation of this procedure.
In Article (30), which defines the jurisdiction of the summary and plenary circuits, we find that the amended article gave the summary circuits, that are formed of a single judge, the power to judge in the civil and commercial actions not exceeding AED one hundred thousand and the counterclaims regardless of their value. This is in addition to the actions to distribute the common property and those associated with claims for wages and salaries and fixing the same, as well as the personal status claims.
In all cases the judgment of the Summary Circuit will be conclusive if the case value does not exceed AED twenty thousand.
Here we find that the legislator was accurate in the jurisdiction of Summary Circuits and gave them powers that make their judgments conclusive if the value of the proceedings was less than AED 20,000. This extends the responsibility of these circuits towards issuing judgments that are in harmony and compliance with the legislator's goal. Moreover, some of the important proceedings that interest a large segment of the society, such as the labor claims, have become within the jurisdiction of these circuits regardless of the value of the claim. Therefore, carefulness and patience are required when judgments are issued in such proceedings.
But the Plenary Circuits that are formed of three judges started to have the jurisdiction to consider all the civil and commercial actions which do not fall under the jurisdiction of the Summary Circuits, as well as the original and ancillary real estate claims regardless of their value. This is in addition to their
jurisdiction to judge in the temporary or summary applications, all the contingent applications and the applications associated with the original application regardless of their value or type. Finally the legislator stipulated that the Plenary Circuits shall have jurisdiction over all matters related to declaration of bankruptcy and the preventive composition and otherwise of what is stated by the law.
In Chapter (3) of the Law which deals with the presence and absence of the adversaries and proxy in the litigation, we find that there is an essential amendment made on Article (53) of the law where a third paragraph was added with regard to notifying the legal personalities. The new paragraph 3 states the following: "3- Upon the implementation of the provisions of this Article, notifying the public or private legal personality in his premises or office is considered a personal notification for him"The said paragraph means the notification of companies who file a lawsuit and confirms that if this notification was made through the company's premises or office, it is considered a notification for the company personally. Therefore, this notification will be sufficient for the court who will decide in the case without the need to re-notify. But the question here is:will the intended notification occur as soon as any person in the company's premises receives it? Or should the Company's Manager or Board Chairman be personally notified in order for us to say that the notification was received by the company? Practical experience shows that one notification to the legal personalities (such as companies) for sufficient for the court only if the company's authorized manager receives and signs the notification. In other cases, the court used to re-notify before it decided in the case.
The amended provision constitutes a risk especially since the notification will be in effect as soon as any person, regardless of his capacity, receives the notification on behalf of the legal person.
In Chapter (5) of the Law Regarding the Hearing Procedures and Regulations, we find that amendments were made on some of the Articles mentioned in this chapter. Article (70) remained as it was in terms of content, but the fine imposed on the documents' applicant, who does not comply with the stipulated term in Article (45), has changed to a minimum of AED one thousand and a maximum of AED five thousand after its minimum was AED two hundred and its maximum AED five hundred. Adopting this procedure has become compulsory after it was permissible in the previous Law.
If the legislator aims by this Article to reduce the practices which intend to prolong the conflict and therefore speed up in the litigation procedures through the limitation he determined for each of the parties to submit his evidence and proofs in the case, the practical reality witnessed a freeze of this Article over the past era.
With the amendment made now with regard to increasing the fine as mentioned above, I find it difficult to practically apply this Article. Despite the discretional authority since the judge has to know whether the plaintiff or defendant can submit their documents prior to the first hearing, putting this authority in action is very difficult especially if the cases considered before courts include different parties. We find, for instance, due to the nature of the commercial transactions comprising the companies and institutions working in the country, that the transactions are mostly in a foreign language. Therefore, documents are issued in a foreign language and they require time to be translated and officially attested with the courts. Furthermore, some of the cases have a foreign party residing out of the country. So, complying with the term stated in the said Article will be very difficult due to the remote distances and the attestations required on the documents coming from outside before they are translated into the accredited language before courts.
Generally, these are some of the remarks regarding Article (70). Although we fully understand and are fully aware of the legislator's goal and intention in emphasizing this Article, we think that putting this Article into practice may be difficult due to the nature and circumstances of the cases that are considered before our courts in terms of their parties on one hand and the nature of commercial transactions on the other.
In Chapter (8) regarding the judges' lack of power, their rejection and dismissal, we find that Article (117) has changed in terms of the fees of the rejection request.
The fee was increased to AED five thousand after it had been AED one thousand. The amended Article also added a new paragraph that was not stated in the previous law. The court, who considers the case, decided to impose on the party requesting the rejection of the judge, whose application is dismissed, a fine not less than AED five thousand and not more than AED ten thousand, as well as the confiscation of the deposit.
The amended Article stipulates the following:"1- If the judge gives cause for rejection and does not stand down, a litigant may reject him. Such rejection takes the form of a request submitted to the presiding judge of the court to which the judge concerned is attached, signed by the applicant in person or by his authorized representative, the power of attorney being attached. The request for rejection must state the reasons and must be accompanied by any supporting documentation.
2- Anyone requesting rejection of a judge must submit a deposit of AED Five Thousand. A similar deposit must be made for every judge if more than one rejection is requested. The presiding judge will not accept a request without evidence that the deposit had been made. A single deposit may be made for each request for rejection if there is more than one applicant, provided that the applications are submitted as a single request, even if the reasons given are different. The court shall impose a fine not less than AED Five Thousand and nor more than AED Ten Thousand and thedeposit will be confiscated if the rejection is refused."In Chapter (11) regarding the warrant for payment, a slight amendment was made on Article (143) which explains the conditions of implementing the warrant for payment as an exception of the general rules to file the claim while the previous Article limited the implementation of this procedure on the one whose debt was specified in writing in terms of the amount which is due and payable. The amended Article added any movable property specified in terms of its type and amount, where the plaintiff (creditor) can resort to the means of issuing a warrant for payment by the judge of the court in whose circuit lies the debtor's domicile after warning the latter to pay within a period of at least five days. If this period elapses, the creditor may resort either to this means or to file his claim in the normal way despite the availability of the conditions to issue a warrant for payment.
Generally, resorting to the means of issuing a warrant for payment has advantages that we cannot find if we resort to the normal way of filing a claim.
These advantages are represented in speeding up the procedures which help to obtain a prompt decision to prove the right. Whoever wants more information on this subject, should refer to Articles 143- 149 of the Civil Procedures Law No. 11/1992.
In Chapter (12) regarding the way to appeal judgments, many amendments were made on some of the Articles of the Law including: The amended Article (152) which stated that the term of appeal starts from the day following the issuance of the judgment.
but if the convicted person does not appear at any of the case hearings, the term shall start from the date he was notified with the judgment. But Article (173) has set a new quorum for the judgments that can be appealed by way of cassation whether the value of the claim exceeds AED two tundred thousand or its value was not estimated after the previous Article set the quorum to exceed AED ten thousand. The significant change in the quorum, though it saves a great deal of time for judges of the Courts of Cassation in dedicating a double effort to important cases, it is a different situation with regard to Courts of Appeal who have to wait and study carefully the judgments issued by them in claims with quorum of less than AED two hundred thousand, as their judgment will become conclusive. In other words, the Court of Appeal will play the role of both the Court of Substance and Court of Law at the same time.
Therefore, it is expected that these cases will have more emphasis and attention before judgments are issued in them.
A new paragraph was also added to Article (173) stipulating that:"2- The adversaries may object before the Court of Cassation in any final judgment regardless of the court who issued it that decided in a dispute in contradiction of another judgment previously issued between the same adversaries and held to be legally valid."However, Article (176) stipulated extending the term of appeal to sixty days from the date of issuing the judgment if it was in the presence of the parties and from the date of notifying the convicted person who never appeared in the trial hearings, instead of thirty days from the day following the pronouncement of the judgment or after it was informed as per the previous law. What the legislator did was good to reduce the postponements practised as per the previous provision.
Article (179) explained the fees and expenses of the appeal, as the appeal fee has gone up from AED five hundred to AED two thousand. The deposit also has gone up from AED one thousand to AED three thousand. The deposit will be paid back to the applicant if his appeal is accepted.
There is a new fee of AED one thousand, not stated in the old Article, to be paid if the Appellant files an application to suspend the appealed judgment.
Finally, an important amendment was made on Article (329) in Chapter (5) with regard to arresting the debtor and imposing a travel ban on him Second Book (Implementation). The amended Article became as follows:"The creditor, even prior to the substantive action if the debt amount was not less than AED Ten Thousand, may apply to the judge concerned or the head of division as the case may be for an order to be issued to prevent the debtor from traveling unless it was a specific amount, if there are significant reasons to believe that the debtor may flee in the following two cases:
First: If the debt amount is known and unconditionally due and payable.
Second: If the debt amount was not specified, the judge temporarily estimates it provided that:
1- The claim to the debt must rely on a written evidence.
2- The creditor must provide an undertaking acceptable to the court to the effect that he guarantees any loss or damage attaching to the debtor through him being banned from traveling, if it becomes evident that the creditor is not right in his claim. Before issuing the order, the judge may make a brief investigation if he is not satisfied with the supporting documentation to the application.
If he issues a travel ban order, the judge may order that the debtor's passport be deposited with the court cashier and that the ban order be circulated to all points of exit from the State. The person against whom the order is made may complain against the order through the procedures laid down for complaints against orders on petitions.
The issued order of travel ban shall not preclude the enforcement of final decisions of deportation. If a deportation order was issued, the order of travel ban will be presented to a judicial committee presided by a judge who issues a decision from the cabinet to form the Committee in order to consider the execution of either order."Finally, we hope that we succeeded in giving a general overview on the most important amendments made on the Civil Procedures Law. These amendments will be further clarified through judicial jurisprudences which will be issued in the future. If we see that these amendments are generally clear, the jurisprudences make them more clear and they interpret some provisions which may imply more than one interpretation according to facts and circumstances of each case.
By Hassan Muhammad Ara
© Al Tamimi & Company 2006
