UNITED ARAB EMRITES Law and Practice Contributed by: Ali Dakhlallah, Karen Seif, Matthew Page and William Prasifka, Habib Al Mulla & Partners
8.3 Confidentiality The UAE recognises the right to withhold evidence on grounds of confidentiality, but the scope and strength of that right differ between onshore courts, arbitration and the DIFC/ADGM. In onshore UAE, confidentiality is recognised primarily through the UAE Evidence Law (Federal Decree-Law No 35 of 2022) and professional secrecy obligations. Parties may resist the disclosure of documents con- taining confidential or sensitive information, particu- larly where disclosure would breach advocate-client confidentiality, commercial secrecy or statutory con- fidentiality obligations. However, there is no absolute right to withhold documents, and courts retain dis- cretion to order production where the document is necessary for determining the dispute. Recognised exceptions include: • where disclosure is required by law or court order; • where the information is necessary to establish or defend a legal right; and • where the party has waived confidentiality by rely- ing on the document. In contrast, the DIFC and the ADGM apply common law principles, where confidentiality alone does not justify withholding documents. A party must rely on recognised privilege; otherwise, relevant documents must be disclosed. Courts may protect confidentiality through redactions, confidentiality rings or restricted use orders rather than denying disclosure altogether. Arbitrations in the UAE recognise confidentiality and privilege-related arguments in relation to document disclosure, similarly to the offshore courts. 8.4 Witness Evidence The treatment of witness evidence in the UAE dif- fers significantly between onshore courts on the one hand, and arbitration and the common law jurisdic- tions (DIFC and ADGM) on the other hand. In onshore UAE courts (including Dubai courts), pro- ceedings are primarily document-driven. Witness evidence is permitted but not central to the process. Witnesses may be heard if the court considers it nec-
of the DIFC courts (RDC) in the DIFC – parties are subject to a continuing duty to disclose documents that are relevant to the issues in dispute, including those adverse to their case. Disclosure is guided by relevance, proportionality and reasonableness, and may include standard or specific disclosure orders. Document production and discovery is a recognised procedural tool in arbitrations, including those seated in mainland UAE. 8.2 Privilege The recognition of privilege in the UAE differs between onshore courts on the one hand, and arbitration and the common law jurisdictions (DIFC and ADGM) on the other hand. In onshore UAE, there is no comprehensive doctrine of legal privilege equivalent to common law systems. However, certain protections exist under the UAE Evi- dence Law (Federal Decree-Law No 35 of 2022) and professional secrecy rules. Advocate-client confiden- tiality is recognised, and lawyers are prohibited from disclosing information obtained in the course of their mandate. Parties may resist the production of docu- ments containing confidential communications, par- ticularly where disclosure would breach professional secrecy. However, there is no broad concept of liti- gation privilege, and courts retain discretion to order production. Waiver is not formally codified but may occur where a party voluntarily relies on or discloses the content of privileged material. Privilege is generally recognised in UAE arbitrations, including in UAE-seated arbitrations. The DIFC and the ADGM apply common law principles of privilege. These include legal advice privilege, litigation privilege and without prejudice privilege. Parties may withhold documents on these grounds, subject to relevance and proper assertion. Privilege may be waived where there is express disclosure, reliance on the document or conduct inconsistent with maintaining confidential- ity. Overall, privilege is limited and confidentiality-based onshore, but well-developed and enforceable in the DIFC and ADGM.
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