2022年12月16日

Everything you need to know about the new evidence law in the UAE

To keep pace with technological development in legislation, a new evidence law was issued annulling completely the old one, and according to Article 2 of Federal Decree Law No. 35 of 2022 in the United Arab Emirates.

Federal Law No. 10 of 1992 has been annulled, by issuing the Law of Evidence in Civil and Commercial Transactions, as well as any provision that contradicts or conflicts with the provisions of the attached law.

This Decree Law shall be published in the Official Gazette and shall come into force as of January 2, 2023.

One of the most important changes that have been included in the new amendments to the Evidence Law is to take electronic evidence into account, After the COVID-19 pandemic and the reliance on technology and electronic correspondence of all kinds for a period of nearly two years, the matter had to be legalized and technological progress taken into account, as we have known from the UAE government's striving to keep pace with everything new and facilitate and clarify procedures to achieve prompt justice.

Chapter one - general provisions

Article No. 2 of the old law has been replaced by Article No. 6 of the new law regarding the reasoning of judgments and decisions issued in the evidentiary procedures.

Articles 3 and 4 of the old law have been merged and replaced with Article 7, with some clauses regarding the new announcement being amended in the event that the procedure requires more than one hearing and in the case of the absent opponent to challenge the forgery or direct the decisive oath, and prove the procedures electronically or on paper, and the presence of a clerk who writes the minutes on paper or electronically and only signs it with the judge without the need for the judge to sign it with the clerk.

In addition, replace Article 5 of the old code with Article 8, which recognizes electronic proof as paper and in addition of Articles 2 to 4 regarding evidence, oaths, acknowledgments, conflicting evidence, and non-compliance with a certain form of proof in the absence of a written text or agreement.

Articles 9 to 13 regarding the acknowledgment of the mute and his equivalent, the authenticity of evidence taken electronically, the implementation of evidentiary procedures via remote means of communication, the authorization of the judicial prosecution in the event that interrogation or testimony is not possible, or if the witness is outside the country or outside the jurisdiction of the court, the adoption of evidentiary procedures that take place outside the country and its conditions, The one who failed to carry out the required proof procedure shall be fined at least 1000 dirhams and not more than 10,000 dirhams. This fine cannot be appealed in any way, and the court has the sole authority to dismiss the convict from the fine if it is convinced of his excuse.

Chapter two - evidence by confession and interrogation of litigants

Articles 51 and 52, are replaced with Article 14 regarding the definition of a declaration and when it is judicial or non-judicial.

Article 53 with Article 18, concern the irreversible argument of judicial acknowledgment.

Articles from 15 to 19 is regarding the conditions for the validity of the declaration, the eligibility of the declarant, the declaration of the guardian or guardian-like figure, the type of declaration, the fragmentation of the acknowledgment, and the cases of proving the non-judicial declaration.

Articles 54 and 56 are governed by Articles 20, 21, and 23 regarding the interrogation of litigants, the authority of the court in their requests and cases of their refusal to attend, the ability of the judicial prosecution to interrogate and interrogate the litigants to each other, with the addition of the opponent's right to object to questions addressed to him, and the judge has the right to reject questions not related to the case.

Replacing Article 55 with Article 22 regarding the interrogation of the incompetent and deficient opponent and the permissibility of interrogating his legal representative, as well as legal persons.

Chapter three - proof in writing

Articles 7 to 9 have been replaced with articles 24 to 26 regarding official documents and the conditions that must be met so that they are not considered customary, with the addition of the authenticity of everything mentioned in the official document on the concerned parties, the original and copies of the official documents, and the addition of the acknowledgment of the formality of the copy if taken from the original in accordance with the procedures, contrary to Article 9, which used to take it for domestication and not for authenticity.

Articles 10 and 11 with Articles 27 and 28 concerning the issuance of the customary document and its authenticity, the lack of the signatory's right to deny it or claim that he is not aware of what is in it, the customary document or the concerned signatory unless he denies its content, and whether it is possible to deny a customary document after discussing it with the judge

Article 13 with Article 52 is regarding the court's acceptance of documents issued outside the country and certified by the competent authorities, provided that they do not violate the international obligations in force therein.

Article 14 with Article 29 regarding correspondence signed or proven attributable to its sender unless proven otherwise, and the cancellation of what concerns telegrams and the existence of their original and copy.

In addition, in Articles 15 and 16, as well as in Articles 30 and 31, concerning traders' books, electronic books have been added and treated similarly to paper books, as has the treatment of books and special papers if they are registered electronically under the same conditions.

As the signatures and electronic documents were recognized and equated with paper in previous laws, Article 17 with Article 32 is regarding the creditor's marking of the debt bond in his line and without a signature, electronic bonds were equated with paper and the Article 17 bis were cancelled.

Replacing Articles 18 and 19 with Articles 33 and 34 regarding the obligation of the opponent to submit the documents under his hand in the dispute and adding the conditions on which the application is accepted and the opponent's refusal to submit a document and amending the order where he is given one time, and the court considers the copy submitted according to the original or allows the acceptance of the application and directing the oath in the event that the opponent denies the existence of the document.

Articles 20 and 21, with Articles 36 and 38 regarding the judge's acceptance of the intervention of a litigant to oblige him to submit the documents under his control or request them from a public authority, withdrawing a document that has already been submitted by the opponent, and the conditions for that, and adding Article 35 regarding the request for documents related to the dispute in commercial lawsuits and specifying conditions for that, And Article 37 regarding the evaluation of the validity of the documents or the material defects in them may result in dropping their authenticity.

Articles 23 to 25 and 39 to 41 concern the claim of forgery on official or customary documents, the conditions for proving and denying forgery, the denial of those who protested against it in the document or by his successor or deputy and setting a date for the litigants' attendance to present the documents in their hands, as well as the consequences of the opponent's failure to attend.

Articles from 26 to 29 and Articles from 42 to 45, with regard to the event that the litigants do not agree on the documents valid for comparison and the conditions for their acceptance, determining the fine in the event that the authenticity of the document is proven after denying it, so it has been increased so that it is not less than 3000 and not more than 10000, and the allegation of forgery during the course of the case and the court's request for comparison or hearing witnesses in accordance with the rules and procedures stipulated in the new law, And the delivery of the forgery claimant's alleged forgery and the situation in the event of non-delivery or delivery of his copy, the addition of Article 46 regarding the permissibility of waiving the alleged forgery of the document for his claim, the permissibility of terminating the defendant with forgery of the investigation procedures, and the conditions for that

Articles 30 to 34 with Articles 47 to 50 regarding the suspension of the validity of the document alleged to be forged by execution, the right of the court to rule on the dismissal of any document and its invalidity if the forgery is proven, the rejection of the claim of forgery of the document or the forfeiture of the right of the plaintiff to prove, a fine of not less than AED 3000 and not more than AED 10,000 and cases of failure to rule on the fine, And who is afraid to protest against him with a forged document.

Adding Article 51 regarding the substitution of the decisive oath or judicial acknowledgment in place of proof by writing, supported by another proof and a definition of the principle of proof by writing.

Chapter four - evidence by electronic evidence

A full section specialized in evidence by electronic evidence has been added from Article 53 to Article 64, which is concerned with and regulates the method of acknowledgment, types, authenticity, methods of proof, and denial of electronic evidence.

Chapter five - evidence by testimony

Regarding the testimony of witnesses, in accordance with Article 65 of the new Evidence Law, the testimony of witnesses is recognized as the original testimony, unless otherwise stipulated.

Replacing Article 35 with Article 66 regarding proof in writing for every act whose value exceeds 50,000 dirhams and adding a clause that the testimony of witnesses in proving the existence or expiry of evidence in writing is not accepted in every act exceeding 50,000 dirhams unless there is an agreement to the contrary.

Article 36 of Article 67 regarding the inadmissibility of evidence by testimony; if the value of the disposal does not exceed AED 50,000 and the conditions for the inadmissibility of the testimony of witnesses, if the value of the disposal exceeds that amount with an increase in the condition of what is contrary to or exceeds what is included in electronic or paper written evidence

Article 37 with Article 68 regarding the permissibility of proving by testimony what should have been proved in writing and determining its condition in detail.

Combining Article 38 with Article 96 regarding witnessing, inspecting, and accepting to hear in known cases, as well as adding marriage, divorce, and wills.

In Article 70, the age of testimony was set at 15 years, with the testimony of those under the age permitted, with the exception of those who were not of sound mind.

Articles 39 and 40 with Articles 72 and 70 regarding the request of the opponent to prove the testimony of witnesses and the conditions for that, and cases of inadmissibility of testimony, with the addition of the need to disclose any relationship with the parties

Article 41 with Article 76 regarding the performance of testimony and taking the oath and its form, with the addition of the permissibility of giving testimony in writing with the permission of the court and the permissibility of the court to request to hear the testimony of any of the people with specific conditions, and what may happen in the event of the opponent's failure to testify with his right to see the record of hearing witnesses.

Article 42, in conjunction with Articles 73 and 74, regarding the forfeiture of the opponent's right to cite the witness if he does not attend or is assigned to attend, and increasing the fine imposed on the witness for refusing to attend from 1000 to 2000; if he insists on not attending after being fined a second time, a fine of not less than 2000 and not more than 10000; if he insists on not attending, he may be seized and brought.

Article 43 to Article 75 regarding the witness’s refusal to take the oath without a legal justification, which imposes the penalty stipulated in the Penal Code, and the testimony may be heard via remote means of communication, and the judicial prosecution is authorized to hear the testimony.

Articles 43 with 75, which impose the Penal Code penalty for the witness's refusal to take the oath without a legal reason, and the testimony may be heard via remote means of communication, and the judicial prosecution is authorized to hear the testimony.

Article 44 with Article 78 regarding the questioning of witnesses and the permissibility of the court to ask questions to the witness, the right of the witness to refrain from answering, the permissibility of the opponent questioning the witness, and the conditions for that

Adding Article 79 to give the court the right to take the extent that it is convinced of its validity in the event of witness disagreement.

Article 45 with Article 80 in terms of recording the certificate in the minutes.

Adding Article 81 regarding the right of the court to assess the fairness of the witness in terms of his conduct and actions, and the right of the testifying opponent to indicate what violates the testimony of the witness who challenged it.

Article 46 with Article 82 regarding perjury.

Furthermore, Article 47 with Article 83 in terms of the admissibility of hearing testimony prior to the conclusion of the lawsuit and the briefing of submitting an urgent lawsuit request.

Adding Articles 84 and 85 regarding the inadmissibility of harming the witness and preventing everything that may affect him in giving his testimony, the court's assessment of the expenses of the transfer and the witness, and charging them to the litigant who loses the case.

Chapter six - proof of evidence and res judicata

Replacing Article 48 with Article 86 regarding evidence stipulated by law with the possibility of decreasing its implications, and the right of the court to deduce other evidence in cases where it is permissible to prove by testimony, with the addition of the court's right to use scientific means to deduce evidence (and in my opinion, with the development of technology and the wide use of data science and analysis and the web scrapping techniques, it will revolutionize the derivation of facts that were difficult and even impossible to deduce before, and this will help the esteemed court in ruling with justice and applying the law)

Article 49 with Article 87, regarding the authority of res judicata and the inadmissibility of any evidence to contradict it, taking into account the provisions of the Code of Civil Procedure.

Article 50 with Article 88, regarding the court's failure to comply with the penal judgment related to the case presented, except in the facts.

Chapter seven - evidence by custom

Adding a full section on proof by custom, the most notable of which is the authorization of proof by custom in what is not contained in the text or agreement between the parties, and the right of the litigants to challenge the proof by custom and provide the special custom between the litigants to the public. When necessary, the court requests the assignment of an expert to verify the proof of custom (which is a pioneering step from the start).

Chapter eight - evidence by oath

Article 93 contains a clear definition of the decisive oath and the complementary oath.

Article 57 with Article 94 regarding the right of each of the litigants to direct the decisive oath in any case on which the lawsuit was based and the conditions for that

Article 58 with Article 95 in terms of the conditions for the juror's conduct in what he swears and the conditions for the prosecution not to accept the oath.

Article 59 with Article 97 regarding the inadmissibility of directing the oath in violation of public order, with the addition of the court's right to prevent directing the oath by determining the conditions for that.

Article 60 with Article 98 regarding the case of the plaintiff's failure to provide evidence and request the oath of his opponent and the cases and conditions thereof (reply, denial, and request for oath)

Article 91 with Article 99, the litigant may not lie the oath after the opponent has taken it, and there is a penalty if the oath is proven to be false by a penal judgment.

Article 66 with Article 96 regarding the form of the oath and the conditions for its performance, where it is permissible to swear according to the conditions of each religion or belief at the request of the juror (which is a good step from the esteemed legislator as the UAE is ethnically and religiously diverse, and this is a good step to pursue the right and apply justice),

Adding Article 100 regarding the authorization to direct the oath, renounce it, or return it to the guardian, trustee, endowment administrator, or the like, Article 102 regarding the performance of the oath in the face of the applicant, and Article 104 regarding the multiplicity of oaths and its conditions

Article 62 with Article 105, the judge has the authority to direct the complementary oath on his own initiative, and the litigant is not permitted to return it to the opposing party.

Article 106, concerning who has the right to take the supplementary oath

Chapter nine - inspection

By replacing Article 67 with Article 107 regarding the right of the court to decide the inspection of the disputed and the mechanism of application thereof, and Article 68 with Article 108 regarding the authorization of the inspection request and proving the case in fact, it is feared that its features will be lost before it becomes disputed, and that the applicant will submit a request for an urgent lawsuit, taking into account the inspection and proving the case mentioned in Article 107 of this law. In urgent cases, the court has the authority to appoint an expert to examine and hear witnesses.

Chapter ten - experts

The new Evidence Law included a radical change regarding the assignment and mechanism of work of expertise, which was very detailed and precise.

Beginning with the right of the court to delegate experts on its own initiative or at the request of one of the litigants with a detail of the conditions for that, passing through the mechanism of assigning an expert who is not restricted to the court's schedule with the inclusion of the conditions and mechanism for that, how to write the operative part of the expert's assignment, the determination of the amounts determined for the expertise and the assignment of the litigants to pay, and what may happen in the event of non-payment, the requirement that the expert acknowledge any relationship that may bind him to the parties to the case, Following the principles of transparency and fairness, the penalty for what is not disclosed, the mechanism for the expert's response, what the expert must do in order to carry out his task, the penalty for what may hinder the task of the expert, the mechanism for preparing the expert's report and the timetable, the due procedures if the expert does not carry out his mission without excuse, and the mechanism for filing his report with the Case Management Office, And give the litigants a copy of the initial report and the estimated time limit for submitting their objections, obliging the expert to return all the papers or documents received or otherwise within 10 days from the date of completion of the task, with a fine of 10,000 dirhams in the event of failure to do so, which is a final judgment that is not subject to objection, the right of the court at any stage of the case to summon the expert and ask him whatever questions it wants, And allow the litigants to question him, and order the expert to complete the deficiencies, or assign another expert to complete them, the opponent's right, even if he accepts the filing of the lawsuit, to agree to accept the result of the expert's report unless it violates public order, and to acknowledge that the expert's opinion does not restrict the court and obligate the court to provide reasons for not acknowledging it, the opponent who lost the claim shall bear the costs, The court has the right, as an exception to the procedures regulating expertise, to delegate an expert to express his opinion orally on an easy technical issue, and the court may also rely on the report of an expert previously submitted in another lawsuit instead of using an expert in the case, without prejudice to the right of the litigants to discuss what was stated in the report.