UNITED ARAB EMIRATES Law and Practice Contributed by: Stuart Paterson, Janine Mallis and Tania Forichon, Herbert Smith Freehills
property’s value at the time the crime was committed. If the assets recovered in connection with the crime are returned to the court, they are then managed by the public prosecutor at their dis - cretion, so there is no certainty that confisca - tion will benefit the victim. In such a scenario, recourse through a civil claim may be envisaged instead. Onshore UAE – Civil A proprietary remedy (or proprietary claim) attaches to a specific property (or its proceeds). The civil courts in onshore UAE will not gener - ally recognise proprietary claims brought by vic - tims in connection with property obtained due to fraud and interim (temporary) remedies such as search orders and freezing orders (as known, for example, to the English courts) are not available. An attachment order can be obtained over assets in the civil courts, to prevent dealing with specified assets to ensure they are available for judgment, although this is an interim remedy and does not provide a proprietary interest in the specified assets. DIFC and ADGM The DIFC and ADGM courts are likely to rec - ognise the common law principles of knowing receipt and dishonest assistance. Mechanisms often seen in common law jurisdictions, such as injunctions, freezing orders, and property pres - ervation orders, can also be obtained, as dis - cussed further in 1.7 Prevention of Defendants Dissipating or Secreting Assets . 1.6 Rules of Pre-Action Conduct There are no pre-action conduct rules specifi - cally applicable to fraud claims. Pre-action let - ters are not generally a legal requirement in the
UAE before commencing proceedings, although relevant (statutory) notice provisions will need to be complied with. The legal concept of “without prejudice” is not recognised under onshore UAE law (although a recent Court of Cassation deci - sion recognised the concept of “without preju- dice” negotiations), which means that pre-action correspondence relating to settlement could not be put before the court. However, certain disputes are subject to mandatory mediation centres or committees (eg, employment law dis - putes), although this typically does not include fraud cases. 1.7 Prevention of Defendants Dissipating or Secreting Assets Onshore UAE As discussed in 1.5 Proprietary Claims Against Property , while there is no concept of an “injunc- tion” in the onshore UAE, Article 111 of Cabinet Decision No 57 of 2018 (issuing the implement - ing regulations of UAE Civil Procedure Law No 11 of 1992) provides that a claimant may apply to the court for a precautionary attachment order, the effect of which is to seize or attach the defendant’s property that is specified in the application, in order to preserve it pending trial. The defendant can still deal with unspecified assets. Attachment orders may also be made over assets that are in the possession of third parties (eg, bank accounts). For an order to be made, it must be apparent from the documents submitted to the judge that there is a serious question to be tried. Article 111 provides that a person can apply for such an order in any circumstance in which it is feared that an asset may be lost and a claim may go unsatisfied as a result, such as in the follow - ing circumstances:
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