COVID-19: UAE moves towards remote justice
May 14, 2020
By Fadi Hassoun
Amidst the COVID-19 pandemic, courts, including arbitral tribunals, have been forced to quickly adapt to the current status quo governed by state measures imposing quarantines, sanitary cordons, and social distancing with the aim to stop, or at least mitigate, the effects of the pandemic.
It has become apparent that the default position amongst courts of most jurisdictions is to provide remote access to justice. The success of such remote access to justice will depend on the level of technological infrastructure and the flexibility of procedural rules vis-à-vis remote proceedings. A jurisdiction with a digitised system and supple procedural rules is likely to face less hurdles and impairments in conducting proceedings remotely.
It is safe to say that the UAE have exhibited a commendable approach in maintaining, to the extent possible, the continuity of access to justice and the operation of judicial bodies, despite the stay-home and social-distancing measures pronounced in response to the COVID-19 pandemic, be it on the level of the federal government or the emirates.
Several recent decisions were issued by relevant UAE judicial bodies to encourage and regulate the remote access to justice and the continuation of judicial services. In this context, the President of Abu Dhabi Judicial Department issued on 30 March 2020 the Administrative Decision No. 61 of 2020, which provides for specific procedures to ensure the continuation of judicial services during the COVID-19 pandemic and which predominantly include procedures for remote operations. Similarly, the President of Dubai Courts issued on 18 April 2020 the Decision No. 33 of 2020 relating to remote litigation procedures and courts’ services.
Whilst the recent decisions on remote justice are novel, it is worth noting that there has been a movement in the UAE to increase the use of technology in the judicial system, even before the COVID-19 pandemic.
To situate the recent decisions into perspective, the UAE has been introducing, on a federal level, laws and regulations pertaining to e-litigation in civil and criminal proceedings. E-litigation was introduced for the first time in the UAE by virtue of Federal Decree-Law No. 10 of 2017 amending the Federal Civil Procedures Law No. 11 of 1992, as well as the Federal Law No. 5 of 2017 which allowed for remote communication technology in criminal proceedings. Further regulations on e-litigation have followed, such as the Ministerial Decision No. 259 of 2019 and Ministerial Decision No. 260 of 2019 which regulate electronic procedures in criminal and civil procedures, respectively.
E-litigation has been gaining momentum in light of the recent measures taken to offset the effects of the COVID-19 pandemic on the conduct of judicial operations. This has been reflected in several dispute resolution forums across the UAE.
Update of Dubai and Abu Dhabi Dispute Resolution Forums
(i) Onshore Courts
Based on Decision No. 33 of 2020 issued by the President of Dubai Courts on 18 April 2020, all hearings are to be conducted electronically on the Microsoft Teams platform, and new cases will be filed electronically. Summary proceedings are being processed similarly: the competent judge renders the decision and uploads it electronically. Ongoing civil proceedings have been adjourned, unless the case is at the decision stage and/or is reserved for judgment, and hearings for new cases are not taking place. Regarding criminal proceedings, cases and appeals involving detainees and/or inmates will be conducted remotely, allowing defendants to participate in proceedings while in custody.
(ii) Offshore Courts
DIFC courts have been physically closed as of March 17th ,2020. Despite physical closure, DIFC courts are operating quite efficiently on a remote basis, given that an infrastructure was already in place prior to the pandemic. Around 90% of the hearings have been conducted via telephone or videoconference, while the remaining 10% have been postponed for technical impediments, such as the swearing of witnesses. The DIFC regulatory framework allows for hearings to be conducted by videoconferencing means. However, such measures are the exception, and the principle remains that the physical appearance of each party’s advocate is required. The DIFC infrastructure sets out a platform for queries regarding videoconferencing, urgent queries and applications, and extremely urgent queries or applications outside of standard office hours.
(iii) Arbitration Centres
Arbitration centres have also closed their doors physically and have set up remote working. The DIFC-LCIA allows for the filing of a Request for Mediation or Arbitration, as well as to making an application for the appointment of an emergency arbitrator or an expedited formation of an Arbitral Tribunal by contacting the centre in advance by e-mail or telephone. As to hearings, they may be held electronically if agreed as such by the Arbitral Tribunal and the parties, with documents and payment made online. DIAC Case Management is also working remotely and is only accepting submissions electronically. Hearings may be held electronically, if the Sole Arbitral or Tribunal decide as such.
Abu Dhabi Courts
(i) Onshore Courts
Pursuant to Administrative Decision no. 61 of 30 March 2020 issued by the President of Abu Dhabi Judicial Department on 30 March 2020, all hearings and procedures are to be carried out electronically, via the Abu Dhabi Courts electronic system in place. All civil cases have been suspended, except for labour cases. As to criminal proceedings, trials are being carried out through video conferencing.
(ii) Offshore Courts
ADGM also remains functional and supports its users through its eCourts Platform. It is worth noting that a pro bono legal assistance has also been introduced for individuals with limited financial capacities by volunteer lawyers from firms operating within ADGM.
(iii) Arbitration Centres
The AGDM Arbitration Centre has set out an electronic contact form and is also reachable by telephone in order to provide its services. As such, the centre is working remotely and staff are available to respond to all queries.
A Challenging Shift
In such testing times, access to justice remotely presents a valuable opportunity which would not have been possible without the existing technological and legal infrastructure in the UAE. Remote justice may be the best solution for the time being but could also remain as a viable option even after the COVID-19 pandemic is resolved.
Although active measures have been taken by the UAE to enable remote access to justice, it remains crucial to carefully monitor how the judiciary and legal practitioners are implementing such measures.
Treading cautiously in this novel territory is a must. Despite being a solution to maintaining access to justice, operating remotely comes with a number of limitations and challenges that need to be accounted for by the government, judiciary and legal practitioners, in order not to undermine the ultimate objective of delivering justice fairly.
Such challenges relate, for example, to the security of the technology used, limited access to technology, low or inexistent literacy as to the use of technology, restricted access to internet connection, non-compliance with the principles of open justice, etc.
It should be ensured, at all times, that the dynamics underlying the remote access to justice do not encroach on the fundamental principles of due process. This is much needed since the remote justice (e.g. remote hearings, remote interrogations) undeniably places additional, and in some instances, significant burdens on the parties, including the judiciary whose ability to conduct the proceedings with empathy, fairness and compassion could be compromised.
Challenges to be further monitored relate to how the measures enabling access to justice remotely will mesh with the existing UAE legal framework, such as laws regulating court procedures, electronic transactions, etc.
 DIFC Court Law, Article 51; Rules of DICF Court, Articles 23.82-23.84.
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