UNITED ARAB EMIRATES Law and Practice Contributed by: Stuart Paterson, Janine Mallis and Tania Forichon, Herbert Smith Freehills
courts (eg, the English Commercial Court). With - out a treaty/memoranda, the DIFC will enforce judgment according to its Rules – although the circumstances in which it will enforce a foreign judgment are not expressly stipulated. The DIFC courts will likely apply common law principles and, therefore, require the judgment to be final and conclusive and for there to be a reciprocity requirement between the foreign court and the DIFC court. ADGM The ADGM has also entered into memoranda of understanding (MoU) with the courts of for - eign jurisdictions (eg, the High Court of Hong Kong and the Federal Court of Australia). MoUs are not binding but show an intent between the courts to collaborate. Where there is no treaty/ memorandum, the ADGM Courts follow the civil law approach and require substantial reciprocity of recognition and enforcement for the foreign judgment to be recognised (see Article 171 of the ADGM Courts, Civil Evidence, Judgments, Enforcement and Judicial Appointment Regula - tions 2015). Only final and conclusive judgments will be registered and enforced. Judicial Assistance Bilateral treaties are in place in relation to judicial assistance between the UAE and other jurisdic - tions. For example, there is a treaty between the United Kingdom of Great Britain and Northern Ireland and the United Arab Emirates on Judi - cial Assistance in Civil and Commercial Mat - ters dated 7 December 2006 (the “Treaty” ). The Treaty focuses solely on the service of judicial documents and the taking of evidence by means of letters of request or commissions. Under the Treaty, the taking of evidence is deemed to cover the taking of statements and the produc - tion, identification or examination of documents, records or samples requested. This could be an
avenue available for parties in the UK to obtain evidence from witnesses or third parties based in the UAE and vice versa. Arbitral Awards While arbitration proceedings less commonly deal with fraud claims, a foreign arbitral award providing compensation to a fraud victim could be enforced relatively straightforwardly in the UAE. The UAE is a signatory to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention” ) without reservation, which means that, in theory, the UAE should enforce awards issued in coun - tries which are also signatories but also those issued in countries which are not. In practice, the onshore courts have shown themselves reluc - tant to do so. The UAE courts should only be able to refuse enforcement on limited grounds (eg, public policy) that do not violate the New York Convention. However, the onshore courts have generally maintained the position that the strict provisions regarding enforcement set out in the Civil Procedure Regulations still apply (eg, Carnival SG PTE Ltd v Elan Qatar WLL (Appeal No. 790/2022, Commercial Cassation)). There is also a domestic enforcement regime dealing with the enforcement of onshore awards in the DIFC/ADGM courts and vice versa. 6. Privileges 6.1 Invoking the Privilege Against Self- There is no concept of privilege against self- incrimination in criminal and civil matters. How - ever, there is a general right for the accused to remain silent when responding to allegations against them; as such, no inferences may be drawn if a defendant decides to remain silent. Incrimination Onshore UAE
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