The Arabian Gulf – the new frontier for English common law?

Tue, 23 Jun 2015













The English legal system is one of the oldest in the world. It forms the basis of law for many countries, including the US, Australia, New Zealand and many other Commonwealth countries. But it is also being put to use to resolve disputes in less likely areas – such as in the United Arab Emirates.

“My Lords, I appear on behalf of the Claimant in this matter…’ These are not the words one would expect to hear inside a Dubai courtroom.

Yet they have become commonplace at the Dubai International Financial Centre Courts (DIFC), which seek to administer a unique English-language common law system – offering swift, independent justice to settle local, regional and international commercial or civil disputes.

Under the auspices of English speaking judges, mostly from the Commonwealth, a system based on the English common law reigns supreme. But with a local twist.

Every judgment handed down has on it engraved, ‘In the name of Sheikh Muhammad Bin Rashid Al-Maktoum…’  In case you need reminding that this is still the jurisdiction of the United Arab Emirates.

The courts seek to provide certainty through transparent, enforceable judgments from internationally recognised judges. They are independent from, but complementary to, the UAE’s Arabic-language civil law system – offering a choice that aims to strengthen both legal processes. English jurisprudence is considered persuasive though not binding and crucially, the courts do not have a mandate to preside over disputes related to family and criminal law. These are adjudicated by the local UAE courts.

The United Arab Emirates and Qatar are but two examples where a different style of dispute resolution is being taken seriously.

All proceedings are conducted in English, with former British and Commonwealth judges sitting alongside their Emirati counterparts. English speaking lawyers are able to apply in order to represent clients, and once approved, can appear on an array of disputes.

The first two chief justices, Sir Anthony Evans and Sir John Chadwick, were former Lord Justices of England and Wales, and the current Chief Justice, Michael Hwang, is a member of a set of chambers based in London.















When the British left the Arabian Gulf in 1971, no-one could have foreseen the resurgence of British-style justice. This relatively new frontier for the English common law is in many ways universal; unlike the civil code systems, it evolves through case laws to stay more up to date with the wider world. This makes it more attractive to international business because the local courts offer a very different system to the one familiar to multinational corporations.

In Dubai’s boom years, before the 2008 economic crash, few people had any interest in dispute resolution or courts of this type. However, with the slowdown came a need to resolve disputes expeditiously and with a greater amount of transparency. 
















 

The Ruler of Dubai, Sheikh Mohammed, had the foresight to realise that if Dubai’s progress was to continue, there was a need for options when it came to dispute resolution: aside from the local courts, often perceived as arcane, slow and opaque, arbitration has often dominated as a method of resolving commercial cases.

But the DIFC Courts have sought to plug this perceived gap, by integrating the system into the larger regulatory framework alongside the financial regulator, the Dubai Financial Services Authority. This strategic direction is clearly aimed at competing with the likes of London and Singapore, with a view to establishing Dubai as the global dispute resolution hub – and one inspired by the revered English common law system.

An Emirate model to emulate?

Qatar has taken similar steps, having established its own financial centre with a civil and commercial court. It also has its own laws underpinning the financial centre’s regulatory tribunal. Its chairman is another distinguished English jurist, Sir David Keene. He is also in good company. The first President of the Court in Qatar was the former English Lord Chief Justice, Lord Woolf, and he has now been succeeded by Lord Phillips, another former English LCJ and indeed a former President of the UK Supreme Court.

Since January 2015, Abu Dhabi, the capital and other Emirate of the UAE, has sought to establish a similar central financial free zone, also underpinned by English common law. This strategic direction for Abu Dhabi is also aimed at diversifying its dependence on oil and gas. 
















 

A bright future?

All this is of course not meant to detract from the considerable challenges the Gulf region faces, the rights of migrant workers and the advancement of human rights, to name but a couple.

But this is a clear step towards modernisation aimed at elevating the rule of law to a status it deserves, commensurate to the high towers we have become accustomed associating with Dubai and the region.

What is undoubtedly clear, though, is that this very young country has turned to the UK’s revered legal system, and has as a result bolstered its prominence in the most unlikely of places. Perhaps one day in the not so distant future, as wealth and commerce gravitate towards new, far flung centres – away from the traditional Western institutions – the UK and other common law jurisdictions may have to turn their gaze to places like Dubai for inspiration.

Article written By No5 Barrister, Hashi Mohamed.

Click here to view Hashi Mohamed's International Arbitration and Trade profile.

Related articles

In her article published today in the New Law Journal, “Duty of care: Inadequate safety nets?"...

Date: Fri, 19 Jul 2019
Top barristers and eminent speakers in the field of immigration are due to address legal experts in Birmingham and London...

Date: Wed, 12 Jun 2019
Visitors to an award-winning Birmingham museum can discover more about the attraction’s artefacts...

Date: Tue, 30 Apr 2019