UNITED ARAB EMIRATES Law and Practice Contributed by: Stuart Paterson, Janine Mallis and Tania Forichon, Herbert Smith Freehills
DIFC and ADGM The DIFC and ADGM courts have the power to grant interim orders prior to the commencement of proceedings and without notice to the defend - ant. In these courts, a victim of fraud may be able to apply for injunctions, property preserva - tion orders, and freezing orders. It is necessary to prove the following elements before a freezing injunction can be granted: • the existence of assets in the jurisdiction and the real risk of the dissipation of assets; • a good arguable case; • whether there is a serious question to be tried; • whether damages would be an adequate remedy; and • the balance of convenience between the par - ties. A claimant must generally provide a cross- undertaking in damages when applying for freez - ing orders in the DIFC. The claimant generally pays court fees, which vary depending on the nature and type of case. 2. Procedures and Trials 2.1 Disclosure of Defendants’ Assets UAE Onshore No regime in the UAE courts requires a defend - ant to disclose its assets or any other docu - ments pre-judgment. In onshore UAE courts, the onus of proof rests on the plaintiff, and there is no requirement to disclose adverse documents. There is no compulsory document production process akin to the standard “disclosure” pro - cedure in common law jurisdictions, although a party can make specific disclosure requests for
• where the obligor has no permanent resi - dence in the state; • where the obligee fears that the obligor may abscond, remove or conceal their property; or • where the assets or securities for the debt are at risk of dissipation. Such an attachment order must be accom - panied by a signed undertaking to indemnify the defendant in the event that the order was obtained on fraudulent grounds. An application for a precautionary attach - ment order may be made without notice to the defendant, but it must be followed by a sub- stantive claim filed at court within eight days from the date the order is made. The substan - tive claim will address the validity of the precau - tionary attachment and allow the defendant to raise objections. Failure to comply with the court order may lead to fines. Article 188 provides that, under certain condi - tions, a travel ban may be requested against the defendant. However, the court must be satisfied with the following conditions before imposing a travel ban: • there must be serious reasons to believe that the defendant will flee the country; • the debt must not be less than AED1,000 where a substantive case has been filed, or AED10,000 where a substantive case has not yet been filed; and • the debt must be known, due for payment and unconditional, or if an unspecified amount, the claim must be based on written evidence and accompanied by a guarantee for any damages caused by the travel ban if not rightfully imposed.
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