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Conditions for recognition and enforcement

Enforceable judgments

Which types of judgment (eg, monetary judgments, mandatory or prohibitory orders) are enforceable in your jurisdiction and which (if any) are explicitly excluded from recognition and enforcement (eg, default judgments, judgments granting punitive damages)?

Pursuant to Article 7(4) of the Judicial Authority Law (Dubai International Finance Centre (DIFC) Law 12 of 2004), the DIFC Court of First Instance has jurisdiction to ratify any judgment, order or award of any recognised:

  • foreign court;
  • courts of Dubai or the United Arab Emirates;
  • arbitral award;
  • foreign arbitral award; or
  • orders for the purposes of any subsequent application for enforcement in the courts of Dubai.

In the absence of a treaty for the enforcement of judgments, in order to be enforced in the DIFC courts, the foreign judgment must satisfy a number of conditions established under common law:

  • the foreign judgment must be final and conclusive – it may be final and conclusive even though it is subject to an appeal;
  • the DIFC courts will not enforce certain types of foreign judgment (eg, judgments ordering the payment of taxes, fines or penalties); and
  • the foreign court must have had jurisdiction, according to the DIFC Rules on the Conflict of Laws, to determine the dispute – the DIFC courts will generally consider the foreign court to have had the required jurisdiction only where the person against whom the judgment was given:
    • was present in the jurisdiction at the time that the proceedings were commenced;
    • was the claimant or counter-claimant in the proceedings;
    • submitted to the jurisdiction of the foreign court; or
    • agreed, before commencement, in respect of the subject matter of the proceedings, to submit to the jurisdiction of the foreign court.

Where the above requirements are established to the satisfaction of the DIFC courts, a foreign judgment may be challenged in the DIFC courts only on limited grounds. The grounds include (but are not limited to):

  • where the judgment was obtained by fraud;
  • where the judgment is contrary to public policy; and
  • where the proceedings were conducted in a manner which the DIFC courts regard as contrary to the principles of natural justice.

The foreign judgment may not ordinarily be challenged on the merits or substantive grounds or on the basis that it contains an error of fact or law.

How are foreign judgments subject to appeal treated?

In DIFC courts it may be possible to enforce a judgment that is subject to appeal provided that it is considered final and conclusive, which is not the case in the United Arab Emirates (outside of the DIFC).

Formal requirements

What are the formal and documentary requirements for recognition and enforcement of foreign judgments?

Part 36 of the Rules of the DIFC sets out the standard requirements for a DIFC judgment or order. The requirements provide that every judgment or order must state the name and judicial title of the person who made it (save for default judgments) and each must bear the time of day on which it is made and be sealed by the court.

Substantive requirements

What substantive requirements (if any) apply to the recognition and enforcement of foreign judgments? Are enforcing courts in your jurisdiction permitted to review the foreign judgment on the merits?

The original court must have had jurisdiction to hear the original dispute. The DIFC courts will not examine the merits of a foreign judgment but will look at whether:

  • the judgment was obtained by fraud;
  • the judgment is contrary to public policy; and
  • the proceedings were conducted in a manner which the DIFC courts read as contrary to natural justice.

It is not possible to challenge a foreign judgment on the basis that it contains an error of fact or law.

Limitation period

What is the limitation period for enforcement of a foreign judgment?

There is no specific DIFC law in relation to this area and therefore, pursuant to Article 8 of the DIFC Law No 3 of 2004, the DIFC courts will apply the laws of England and Wales.

Section 24(1) of the Limitation Act 1980 provides that an action will not be brought on any judgment after the expiration of six years from the date on which the judgment became enforceable. Proceedings to execute a judgment debt (eg, charging orders or connected insolvency proceedings) do not fall within the definition of ‘action’ within the meaning of Section 24(1). However, a claim for enforcement is likely to constitute an action and therefore the limitation period of six years would apply. 

Grounds for refusal

On what grounds can recognition and enforcement be refused?

Recognition and enforcement can only be refused if the DIFC courts believe that:

  • the judgment has been obtained by fraud; 
  • the judgment is contrary to UAE public policy; or
  • the proceedings were conducted in a manner that the Commercial Court regards as contrary to the principles of natural justice.

Service of process

To what extent does the enforcing court review the service of process in the original foreign proceedings?

The DIFC courts will review the service of process to ensure compliance with Part 9 of the DIFC Court Rules.In proceedings brought before the DIFC court to which the DIFC Centre or any of the DIFC Centre’s bodies or the government is a party, service must be effected in accordance with Part 41 of the DIFC Court Rules.

Public policy

What public policy issues are considered in the court’s decision to grant recognition and enforcement? Is there any notable case law in this regard?

The DIFC courts will not enforce a judgment which is contrary to UAE public policy or the principles of natural justice. Public policy will be given a narrow meaning in the DIFC and will be applied only in the most obvious and clear circumstances.

Jurisdiction

What is the extent of the enforcing court’s power to review the personal and subject-matter jurisdiction of the foreign court that issued the judgment?

Before granting an order to enforce a foreign judgment, the DIFC courts must be satisfied that the foreign court had jurisdiction to determine the dispute, whether territorial or consensual. In general, the DIFC courts will consider the foreign court to have had the required jurisdiction only where the person against whom the judgment was given:

  • was present in the jurisdiction at the time;
  • was the claimant or counter-claimant in the proceedings;
  • submitted to the jurisdiction of the foreign court; or
  • agreed, before commencement, in respect of the subject matter of the proceedings, to submit to the jurisdiction of the foreign court.

Concurrent proceedings and conflicting judgments

How do the courts in your jurisdiction address applications for recognition and enforcement where there are concurrent proceedings (foreign or domestic) or conflicting judgments involving the same parties/dispute?

As with any claim, a defendant may dispute the jurisdiction of the DIFC courts or argue that the courts should not exercise their jurisdiction by making an application in accordance with Part 13 of the Rules of the DIFC Court. The courts have a range of powers on receipt of such an application, including an inherent jurisdiction to stay proceedings (International Electromechanical Services Co LLC v Al Fattan Engineering LLC and International Electromechanical Services Co LLC v Al Fattan Properties LLC ([2012] DIFC CFI 004); see also Rule 12.7 and Article 13 of DIFC Law No 10/2004).

Where it is argued that there are conflicting domestic or foreign judgments, the DIFC courts will follow English guidance and consider the principle of res judicata. A court is likely to give precedence to a prior decision which has previously resolved the issues between the parties.

In the case of concurrent proceedings, English law recognises that pursuing litigation in multiple jurisdictions can amount to conduct which is vexatious, oppressive and an abuse of process (Australian Commercial Research and Development Ltd v ANZ McCaughan Merchant Bank Ltd ([1989] 3 All ER 65)). However, when deciding whether to exercise their jurisdiction, the courts will always carefully consider the facts of the case and consider the course of action that is least likely to cause injustice.

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