Definition
While the main principles of the legal system of the UAE are based on Shari’a law (‘Islamic Religious Law’), much of the law of the UAE is based loosely on the Egyptian Legal Code and derives from a combination of European (most notably French) and Islamic definitions of Civil Law.
In the UAE, dual courts (both Shari’a and Civil) each deal with distinct areas of law. In short, the Shari’a courts are typically restricted to social rules (such as family law), while the civil courts normally deal with commercial matters. In addition, within the UAE, a federal judicial structure exists, but some Emirates (such as Dubai and Ras al Khaimah) have different judicial systems of their own, running parallel to the federal system.
The highest legislative authority in the UAE is the Federal Supreme Council, which has ultimate responsibility for proposing, sanctioning and promulgating federal legislation in the UAE.
The principles of legal professional privilege and “without prejudice” communications do not apply per se in many civil law jurisdictions in the area and the parties have the right to use any document that could help their cause in civil litigation. This is a place in the UAE which, in relation to legal professional privilege, has no express provision whatsoever. Instead, under Islamic Religious Law, lawyer-client legal professional privilege is interpreted.
Indeed, in the UAE, lawyers are bound by confidentiality requirements that, in many ways, include principles similar to legal professional privilege.
Legal professional privilege scope
Without the customer’s consent, legal professional privilege prevents all correspondence between a professional legal advisor and their client from being revealed. The right is for the client’s and not the lawyer’s sole benefit. The aim of this legal principle is to preserve one’s access to the justice system by ensuring that individuals can report to their legal advisers all relevant information without worrying that this disclosure will have negative consequences or prejudice them in the future.
A lawyer ceases to be bound by the legal professional privilege standards if that documentation or knowledge can be demonstrated by the lawyer:
was in the public domain at the time of the lawyer’s disclosure;
- the public domain entered after the time it was revealed to the lawyer without the lawyer’s fault; or
- was free of any duty of trust in the hands of the lawyer at the time it was revealed to the lawyer, as demonstrated by contemporaneous documents.
Notwithstanding the lawyer-client privilege, to the degree that such disclosure is required by a valid order of a court or other governmental body having jurisdiction, a lawyer may disclose such documents/information, given that the lawyer provides the client with fair prior written notice of such disclosure and makes a reasonable effort to obtain a protective order preventing or restricting such disclosure
As part of the litigation process, there is no process of discovery and / or review of records in the UAE. Instead, each party will simply file the documents it wants to rely on, and a party (subject to a court order) is under no obligation to file a document that is adverse to its case.
There are no express rules of privilege in the UAE, as is the case with most civil law jurisdictions in the Middle East, and parties may, in principle, accept into evidence any document that may support their position. Instead, the principle of legal professional privilege in the UAE is restricted only to the professional relationship between a lawyer and his client, by the duty of the lawyer to keep all correspondence made for the purposes of litigation between a lawyer and his client confidential.
Indeed, without the client’s express permission under the Federal Law on the Regulation of the Legal Profession, lawyers must not reveal confidential information given to them by their client.
The same privilege rights do not tend to extend to in-house legal counsel representing the company’s officers, directors or staff, since they are not independent of the client. It could, however, be possible for a confidentiality arrangement to be placed in place to protect information or correspondence passing between in-house counsel and the employer.
No practical guidelines have been drawn up by the DIFC Courts in relation to the implementation of this regulation, nor have the courts been expressly asked to rule on the question of legal professional privilege within the DIFC. Although the principle of legal professional privilege can be assumed to be more generally applicable within the DIFC (mainly because of the common law basis of its jurisdiction), this cannot be relied on by the parties until clarification is provided by the DIFC Courts on the application of legal professional privilege within the DIFC.