On November 17, an article was published in the Global Arbitration Review (GAR) entitled “Has Dubai shot itself in foot again with ‘locals only’ law?”. On October 13, the Financial Times quoted a foreign practitioner working in the UAE saying “Legal wrangles dent Dubai’s image as region’s financial centre”.
I would suggest that such headlines are often misleading and, in some cases, simply wrong.
For example, the GAR article, which seems to have been removed after I tweeted that it was utterly wrong, was referring to the recent Ministerial Decision No. 972 of 2017 (the Decision), issuing the by-laws of the country’s Federal Legal Profession Law (LPL). The article claimed that the Decision prohibits anyone who is not on the roll of practicing lawyers to represent a party before an arbitral tribunal in the UAE.
To be on the roll of practicing lawyers, a person must be an Emirati national. The GAR article went on to say that delegates at the fourth Annual GAR Live Dubai expressed dismay at another setback for the UAE as an arbitral hub. Quoting the GAR article; “A new law [was enacted] which permits only Emirati lawyers to act in cases seated in the country”.
This statement shows clear a misinterpretation of the Decision, and a misunderstanding of the UAE legal system. I explain why below.
First of all, there was no “new” law enacted. The LPL was enacted in 1991, so it is rather overstating the fact to describe this law as “new”! Second, there was no “law” enacted restricting the appearance of persons before arbitration tribunals. The Decision was merely a by-law of the LPL.
There is nothing new to the Decision since the LPL has always restricted the role of advocates to UAE nationals. This is the same in all Arab countries, which only allow their own nationals to appear before their courts. Non-nationals can appear before courts only with special permission. Similar permissions are also available in the UAE.
So what is the issue then? The confusion stems from Article 2 of the Decision which reads: “No person can practice advocacy in the country unless his name is registered in the roll of practicing advocates. Courts, arbitral tribunals, judicial and administrative committees may not accept a power of attorney of a person unless his name was registered in the roll of practicing advocates.”
Although this article may seem on its face to indicate that non-registered advocates cannot appear before arbitral tribunals in Dubai, it is not as straightforward as it may first appear. To start with, the LPL is a federal law while Dubai’s judiciary is a local one, since Dubai has not joined the federal judicial structure.
The same applies to Abu Dhabi and Ras Al Khaimah. Any lawyer practicing in the UAE should know this. Hence, the said article does not apply automatically to arbitrations seated in Dubai, Abu Dhabi or Ras Al Khaimah.
Arbitration
Second, in June 2011, Dubai’s Executive Council issued Resolution No 22/2011 (the Resolution). Article 3 or the Resolution provides that no person is permitted to render legal services to third parties unless he is registered with, or licensed by, the Legal Affairs Department of the Government of Dubai (DLAD).
“Legal Services” has been defined in the Resolution to include representing third parties before arbitration tribunals and arbitration centres. Article 3 of the Resolution has not been an obstacle for foreign lawyers to appear on behalf of their clients in arbitrations seated in Dubai.
Although no steps have been taken so far to implement this Article, the DLAD has clarified that what will be required to appear as an advocate in an arbitration is a very soft form of registration through a confirmation that the said lawyer is registered with a local bar in any country. This confirmation can be done through the arbitration body that is administering the arbitration such as the Dubai International Arbitration Centre.
The DLAD has confirmed that in Dubai, the Resolution shall be applicable and not the Ministerial Decision.
More importantly, an analysis of Article 2 of the Decision could suggest that only UAE advocates, and not foreign lawyers, appearing before an arbitration tribunal should prove that they are registered on the roll of practicing advocates. This is because the Decision and the LPL only apply to UAE advocates.
It has never been suggested that that LPL is applicable to foreign lawyers practicing law in the UAE. Again, lawyers practicing in the UAE know, or should have known, this.
Accordingly, I find it very difficult to understand how lawyers who present themselves as experts on UAE law, and accept to appear in seminars and conferences speaking on issues of UAE law, could reach such erroneous conclusions. Why would they write articles in international journals before understanding the basics of the UAE legal system and, thereby, misleading the reader!
One can only hope that this would be a mere oversight.
Dr Habib Al Mulla is Executive Chairman of Baker & McKenzie Habib Al Mulla.
