Introduction

The main work of a legal system is deciding matters of past fact. Evidence is the path that each litigant walks through to make the existence of a fact more or less probable. Evidence can take the form of testimony, documents, videos, or other tangible objects. The rules of evidence will framework the admissibility of adduced evidence in court or its inadmissibility. With the changes occurring to many legal systems, the modern rationale is changing parallelly the concept and structure of evidence law in several jurisdictions. We have examined recent changes in evidence law, specifically in the MENA region for example the Kingdom of Saudi Arabia and United Arab Emirates.

The Evidence Law is one of the laws most looked upon in any legal system as it encompasses a set of procedural rules that governs all civil, commercial and criminal disputes. In this article, we will tackle the UAE’s new Evidence Law No. 35 of 2022 (“New Law”) that will be effective on 2 January 2023 and which repeals the Federal Law Number (10) of 1992 (“Repealed Law”).

In essence, the New Law is a comprehensive law codifying the entire process and procedures in handling evidentiary issues related to commercial and civil matters. The New Law covers documentary evidences, digital or electronic evidences, admissions, oaths, witness testimonies, inspection and expert reports. While the New Law has maintained a few provisions available under the aforesaid Repealed Law; yet there are sweeping changes in the means and mechanisms to deal with evidence in light of continual development in the civil and commercial areas in the UAE.

General provisions

The taking of evidence in the UAE is inherently connected to Islamic Shariaa’ principles. The New Law and the Repealed Law set grounds of commonality for the procedures.  

First and foremost, the New Law is based on the premise that the plaintiff shall be obliged to prove his right and the defendant shall be entitled to deny the same thereby reiterating the universal principle enshrined in the theory of evidence that the burden of proof lies on the plaintiff.

As a general rule, the New Law establishes the principle that the proof of an obligation could take any form unless the parties to the dispute agreed on a specific form of evidence. The New Law further provides that in the event several evidences have been provided and contradictions were examined, the court shall have the discretion to admit and accept what it deems relevant with the circumstances of the case. In the same vein, the New Law allows the courts to reject the outcome of any evidentiary procedure provided it narrates reasons for dismissal in its ruling.

On another hand, borrowing the principle of party’s autonomy from the arbitration principles, the New Law obliges courts to accommodate any agreement between the parties in regard of evidentiary issues; provided the agreement is in writing, a provision which was hitherto not available in the courts’ procedural provisions repealed.

Further, the New Law sets the rules as well for the documentation of evidence and provides that the law clerk or official should attend all proceedings and record all evidence electronically or write it and sign it.

The New Law further provides that any procedure conducted concerning a party under oath, or any submission of witness statements shall be conducted before the court. However, in the event the relevant party submitting its witness or being under oath resides in a jurisdiction outside the UAE, and the court is unable to move to the place of residence, the witness statement or taking of evidence shall be conducted by delegating the competent court in the said jurisdiction in compliance with international judiciary treaties.

In the event, the relevant party submitting its witness statement or being under oath resides in the UAE however the dispute falls outside the scope of the court and failure to conduct the electronic taking of evidence procedure, the court shall delegate the competent court in his place of residence.

Admissions and examination of adversaries

The judiciary admission in the New Law incurred some changes in regard of its admissibility. It is admissible either directly before the court or the judge whatever the case may be, during the dispute and it is admitted in any digital/electronic form or in the traditional form. The New Law provides easier means of admissions whether they are conducted expressly or by impliedly, orally or in written form. The judicial admission should be conducted in accordance with the admissions’ provisions and the New Law does not consider it in any form as similarly treated as the witness statements.

Besides the court interrogating a party on its own or upon request by the other party, a party may object on question addressed to it; however, the objecting party will have to give reasons for its objection. The New Law requires that whoever is summoned by the court for questioning, to appear and answer the questions during the hearing scheduled or if failure to attend physically, he/she could attend through any of the digital means of communication admitted.

Documentary/customary evidence

Signed letters shall have the value of customary documents as proof, unless the signor of the letter proved otherwise and stated that he/she did not send the said letter neither delegated someone to send it.

The New Law reiterates the same provisions for the documentary and customary evidence whilst adding some minor changes that adds references to electronic ledgers, electronic records, and specifically in article 32 of the New Law, it is provided that the execution of a debt by electronic means releases the debtor, which is a drastic change in the law as it renders electronic references more involved in judiciary taking of evidence and admissibility.

On another hand, article 41 of the New Law modifies Article 25 of the Repealed law, in the sense that the Court shall arrange a session to be attended by the adversaries in order to present any documents which they have for comparison, to agree upon which of them are valid for this purpose, and to make the person who disputes the validity of the document demonstrate his handwriting. If, without an acceptable justification, the adversary who disputes the validity of the document refuses to attend in person to demonstrate his handwriting, or attends and omitted to do any action, the new article provides that the court may rule that the document is valid.

The New Law adds a fourth acceptable comparison. Whereas, in the event the adversaries are not in agreement only the following shall be acceptable for comparison: (a) Handwriting, a signature, seal or fingerprint on an official document; (b) A part of the document to be verified, the validity of which the adversary admits; (c) A person’s handwriting, signature, seal or fingerprint which he makes before the court and (d) a person’s handwriting, signature, seal or fingerprint on customary documents proved related to the adversary.

The New Law did not leave the punitive fines as it is and increased it from 500 Dirhams to not less than 3,000 Dirhams in the event the whole of the document is ruled to be valid. Moreover, it shall not exceed 10,000 Dirhams.

As for the accusations of forgery of documents, the New Law dismisses the circumstance where the forged document is under the hands of the official or the clerk and only addresses circumstance where the forged document is under the hands of the adversary or the person advancing the accusation of forgery. In all circumstances, the person making accusation of forgery could possibly withdraw the accusation at any time before the finalization of the forgery investigation, however any allegation of forgery shall not be subsequently admitted after such withdrawal.

The New Law does not stand a chance without applying modifications to the punitive fines which increased as well in circumstances where false accusations of forgery have been made. The New Law establishes the fines to be not less than 500 Dirhams and do not exceed 10,000 Dirhams. There shall be no ruling against the party who made accusations of forgery if part of what he claims is proved or if he/she has withdrawn their accusations prior to the end of the investigation phase, unless the court examines that the accusing party has conducted such claim to delay the process or out of bad faith.

In addition, the New Law introduces the admission of customary or documentary evidence either written or electronic issued outside the United Arab Emirates. However, these evidentiary documents should be authenticated with the relevant competent authorities in the foreign jurisdiction where they were issued.

Electronic/ digital evidence

One of the most important sections in the New Law is related to treatment of “digital evidence” and considering it as documentary evidence. The New Law includes under digital evidence any classification, any data to be generated, issued, received, saved, or notified by an electronic instrument, which may be retrieved or obtained in an understandable manner, including the digital record, digital written instrument, digital signature, digital seal. digital messages and all digital or electronic communication including emails. They shall be treated as documentary evidences in the manner as provided by the New Law for such evidences.

The New Law recognizes the digital evidence and gives it the same power of evidence as the traditional written instrument (official and customary). The digital evidence shall have the same power as the official and customary evidence if:

1. It is issued in compliance with electronic business transactions’ system;
2. It is derived from a digital means or device agreed upon in the agreement, subject of the dispute;
3. It is derived from an authorized digital instrument or a common digital mean.

In the same vein, the New Law establishes that the party which contests the veracity of the digital document will carry the burden to prove their contention in the same manner as stipulated for other documentary evidence.

Witnesses

One of the key features of the New Law is increasing the limit for witness testimony to dispositions in the sum of 50,000 Dirhams instead of 5,000 Dirhams in the Repealed Law. The New Law further sets events where witness testimony is not allowed and added two events which are marriage and divorce to the list already present in the Repealed Law.

The New Law sets the conditions for the witnesses’ testimony and provides that a minor below the age of 15 years old shall be prohibited from testifying and his witness statement could be heard only for getting to know an alternative perception, nothing more. The New Law does not undermine the importance and the responsibility of each witness to submit and disclose any information that he/she has a connection with the parties to the dispute or interests with them. The New Law enshrines clarifications regarding the individuals able to be summoned to submit their statements and testimonies. The witness should not be related to the parties to the dispute, a spouse/husband could not be witnesses for one another even after their separation, the children cannot testify or act as witness for their parents, the guardian cannot testify as well.

On another hand, as it is validly present in all the substance of the New Law, the amount limits have increased as well for the fines ordered if a witness was validly charged to attend and fails to do so. The fine shall not be less than 1,000 Dirhams and shall not exceed 2,000 Dirhams. If he fails to appear after being charged, he shall be subject to a fine of not less than 2,000 Dirhams and not more than 10,000 dirhams.

The New Law sets the same principle as in the Repealed Law regarding the taking of witness statements. Whereas, each witness shall give his testimony alone, without the presence of other witnesses who have not yet been heard. Witnesses for disproof shall be heard at the same session as the witnesses for proof, unless circumstances prevent this. If the investigation is adjourned to another session, then the order for adjournment shall be equivalent to an instruction to the witnesses present to attend that session, unless the Court explicitly excuses them from attending.

However, it should be noted that the New Law specifies that the witness statements could be taken orally or in written form upon the court’s order. The witness shall swear an oath, saying ‘I swear by Almighty God that I shall tell the whole truth and nothing but the truth’. The oath shall be according to the particular custom of his own religion if he so requests. The court may immediately listen to the witnesses’ statement that the court deems and observes as required. The adversary who is not present at court does not prevent the taking of the witness’ statement and the adversary can subsequently examine the court’s records.

Green pleadings and digital inclusion

With the innovations taking place in the disputes practice and in litigation in many jurisdictions, the New Law of evidence sets an exemplary for digital inclusion. The New Law provides that witness statements could be conducted online or though means of digital communications. The remote pleadings and online court hearings, the court may order that the witness should be physically present at the relevant competent court which is defined and determined in the same court order.

Questions and hearsay

It is provided in the New Law that questions shall be directed to the witness either (i) by the Court, (ii) by the counsels for the adversaries or by the adversaries themselves. The witness shall reply first to the questions of the adversary who called for him to testify, and then to those of the other. It shall be permitted for the person who called him to testify to repeat his questions. If the adversary completes his questioning of the witness, then he may not begin his questions again except with the permission of the Court. The New Law allows for the adversary to direct questions to the witness to showcase the witness’s bias, connection to the party in the dispute, or to argue the witness’s credibility, transparency, interest in the outcome of the dispute or to prove the witness’s prior condemnation, accusation of any crime related to honour.

The Chairman or any member of the session, or the appointed judge, according to the circumstances, may put directly to the witness any questions which he/she deems will assist in determining the truth. The testimony shall be given verbally, and no reference to written notes shall be allowed except with the permission of the Court or the appointed judge and where the nature of the case allows this. If the witness omits something which should be mentioned, the Court of the appointed judge shall question him about this. The New Law allows for the court, chairman or the appointed judge to reject at their own discretion or upon request of one of the parties, any further questions directed to the witness, if found that these questions are irrelevant, directed to halter and delay the procedural process, violates public policy and the court shall prohibit directing to the witness any disrespectful or threatening sign or hint.

The New Law provides equally that the court shall order the exact costs for the witnesses’ testimony and that the court order decides on the costs at the end stage of the dispute and orders the losing party with the fees and costs.

Presumptions and res judicata

The New Law adds an important provision related to taking of evidence and the presumptions that could be established based on scientific means and instruments, which is drastically needed currently in the theory and practice of taking evidence. This started with the inclusion of DNA and is highly developing throughout many jurisdictions. Such presumptions would likely decrease the likelihood ratio of improbability or confusion and the degree of relevance would be much higher in courts with referral to scientific evidence.

Customs and norms

Customs and norms between parties would constitute valid evidences under the New Law, provided that there is no different agreement between the parties or that the standing agreement is in violation or conflict with any public policy in the United Arab Emirates. The New Law stipulates that in case of conflict, the customs and practice established between the parties shall prevail over the general custom.

Oath

Oath is an established method of evidence in the Islamic jurisprudence and used in the UAE judiciary for settlement of cases. There are two types of oaths; the first being “Decisive Oath” and the second is the “supplementary oath”. The first is taken by a defendant to refute the claim of a plaintiff as enshrined in the New Law. The second is the oath to be taken by the plaintiff to complete his claim and the plaintiff has no right to request the defendant to take oath.

The New Law deals at length in prescribing rules for taking and administering oaths. While it stipulates that an oath by a defendant for negating a claim shall be treated as a conclusive oath which can be objected by the plaintiff, it stipulates that an oath by a plaintiff shall be considered supplementary to complement the evidence presented by the plaintiff and which can not be objected by the defendant.

The call for oath is considered multiple if the entitled for directing the call are several, unless they are considered as jointly rightful for a certain claim, the call shall be considered as one. The call for oath is considered multiple if there are multiple individuals asked and called to take oath. The court may consider it sufficient that one call for oath is conducted for correspondent consolidated requests.

Expertise

The New Law allows the court to rely upon another expert’s report in another case instead of appointing a new expert and the parties are allowed to discuss the findings of the expert and raise objections, which is a provision that were not available in the Repealed Law. The referral and appointment of foreign or local expert houses is allowed and permitted under the New Law.

The New Law prescribes in detail the responsibility and powers of the expert so appointed as well as the timelines, disqualification and the rights of the parties in seeking clarifications from the expert. It also prescribes fines on the party who wrongfully committed a delay that impacted the expert’s report. The fines increased as well under the New law and are not less than 3000 Dirhams and does not exceed 10,000 Dirhams.

The New Law provides new changes to the process of expertise and provides further details related to the timeline for the submission of expert’s reports. It is enshrined in the New Law that the expert shall submit its report to the court’s official or clerk. It is further provided that at any stage of the case, the court may order the expert to appear and attend to one of the hearing sessions to discuss his/her report and for the court to address some questions to the expert. The parties may also be allowed to discuss the report with the expert and the court may order the expert to complete what it seems to be lacking in the expert’s report or finally order the re-appointment of another expert to complete the mission or to revise the expert’s mission.

The expert shall be bound to submit all documents under his hands within 10 days from the date of completion of his mission; otherwise, the court may order a fine that does not exceed 10,000 Dirhams and the ruling shall be final and binding.

One important aspect that was lacking in the Repealed law is related to the timeline of submissions. The New Law provides for legal time limits that should be respected. The expert should submit copies to the parties of the dispute and notify them not anywhere less than three business days. The parties should submit their response to the expert’s report within five business days and thereafter submit the final report to the court. A copy of the final submitted report should be shared with the parties within 3 days from the date of depositing it with the court.

In case of agreement between the parties in selection of expert, the court will endorse it. Moreover, the expert is bound by a duty to disclose any information that may harm or affect the course of the hearings or his perception of the case which was a duty hitherto not available in the Repealed Law.

Conclusion

In short, the New Law makes application of procedures related to evidences clear and enables parties to determine the types of evidences presented before the court and allows for a set of evidence drastically needed nowadays which is electronic evidence. It also provides parties to agree on evidentiary procedures beforehand as well as it is respectful to the parties’ autonomy.  The New Law copes with the digitalization of the judicial systems taking place around different jurisdictions and sets the new horizons for the implementation of flexible measures related to expertise and taking of witness’ statements.

Authors: Yousef Al Amly, Partner and Rana Moustafa, Associate.

For further information, please contact: Alex Saleh at alex.saleh@glaco.com or Yousef Al Amly at y.alamly@glaco.com