UNITED ARAB EMIRATES Law and Practice Contributed by: Stuart Paterson, Janine Mallis and Tania Forichon, Herbert Smith Freehills
Onshore – Civil The procedures available for preserving evidence are similar to those described in 1.7 Prevention of Defendants Dissipating or Secreting Assets . A party will not be permitted to conduct a physi - cal search of documents at the defendant’s resi - dence or place of business (pursuant to “search order” ). In arbitration, pursuant to Federal Law No 6 of 2018 (the “UAE Federal Arbitration Law” ), the UAE courts may enforce an order from an arbi - tral tribunal to preserve evidence that may be relevant and material to the resolution of the dis- pute. Under Article 21(2), the party requesting the order for this conservatory measure may be required by the arbitral tribunal to provide appro - priate security to cover the costs of the meas - ures, and, further, to bear the damages arising in connection with enforcement if it is decided that such party is not entitled to such measures. DIFC and ADGM As outlined in 2.1 Disclosure of Defendants’ Assets , the DIFC Rules and ADGM Rules pro - vide interim remedies that may be ordered by the DIFC and ADGM courts, respectively. Where it is feared that important evidence might be destroyed or suppressed, parties may seek – under Article 25.1(3)(a) of the DIFC Rules and Rule 71(1)(c)(i) of the ADGM Rules – the deten - tion, custody or preservation of relevant prop - erty. Rule 71(1)(c)(i) of the ADGM Rules goes one step further and also provides for an order per - mitting the inspection of the relevant property. To assist the party in possession of a preservation order, Article 25.1(4) of the DIFC Rules and Rule 71(1)(d) of the ADGM Rules allow a party in pos - session of that order to enter any land or building for the purposes of carrying it out. Under Rule
documents to be disclosed in limited circum - stances, as set out in the Evidence Law. DIFC and ADGM Article 25.1 of the Rules of the DIFC courts (the “DIFC Rules” ) and Rule 71 of the ADGM Court Procedure Rules 2016 (the “ADGM Rules” ) set out a number of interim remedies that the DIFC and ADGM courts can order. Under Article 25.1(6) of the DIFC Rules and Rule 71.1(f) of the ADGM Rules, a claimant can obtain a freezing order which either restrains a party from: • removing from the jurisdiction assets located there; or • dealing with any assets, whether or not located within the jurisdiction. Related to the ability of the claimant to obtain a freezing order, the courts, under Article 25.1(7) of the DIFC Rules and Rule 71.1(g) of the ADGM Rules, may direct a party to provide information about the location of relevant property or assets or to provide information about relevant property or assets which are or may be the subject of an application for a freezing order. 2.2 Preserving Evidence Onshore – Criminal The public prosecutor has broad powers when conducting a criminal investigation. These pow - ers include the ability to enter a place to deter - mine the status of the persons, places, and objects related to the crime, as well as to search the place and seize anything that may likely be used in the perpetration of the crime.
403 CHAMBERS.COM
Powered by FlippingBook