Execution of a performance order lawsuit
Question: Four months ago, I filed a performance order against the holder of a cheque who had refused to give me my right. Unfortunately, I did not win the performance order lawsuit because, according to the court ruling, the cheque holder was not legally announced. My question is, am I legally entitled to file a new civil performance order and do I have to pay fresh fees or will the previous fees hold? Please advise.
Answer: You have the right to file another performance order after fulfilling all the procedures requested by law for issuing it. But you have to pay new fees since the previous fees had been forfeited. The procedures for issuing a performance order, when the conditions required by law are met, are procedures related to the form of litigation and not related to the subject matter of the claimed right or the conditions for its existence. If the court of first instance has ruled not to accept the case based on the creditor’s violation of the formal procedures imposed by the legislator for the requirement of his or her debt, then it will not have exhausted its jurisdiction in the consideration of the case’s subject matter.
According to Article 63/1 of the Regulation of Civil Procedures Law No 57 of 2018, the creditor must first instruct the debtor to pay within a period of at least five days and then obtain a payment order from the court in whose jurisdiction the debtor’s domicile is located. It is not permissible for the right contained in the assignment to pay an amount that is less than what is required in the petition for a payment order. The assignment to pay should be announced by any of the means of advertisement specified in the regulations.
The plea for the invalidity of the procedures for the creditor’s failure to observe the rules imposed by law for the requirement of his debt, is directed to the litigation procedures, their form and how to direct them. It is one of the formal defences and not a defence of non-acceptance. The defence of non-acceptance aims to challenge the lack of necessary conditions for hearing the case on the grounds of capacity, interest and the right to file the case, such as due to a previous conciliation or the expiry of the period specified in the law for its filing and other aspects that do not contravene the defence related to the form of the procedures.
Enforcing arbitrator’s order in a civil case
Question: A month ago, I received a judgement issued by an arbitrator in a civil case. When I went to the court to seek implementation of the judgement, they asked me to register a new case by paying the fees again. My question is: What is the legal provision regarding an arbitrator’s ruling? Is there a way to legally enable me to implement the arbitrator’s ruling without having to file a fresh lawsuit? Please advise.
Answer: The arbitral award has a binding force, but a decision confirming the award must be obtained from the court through filing a case and paying the fees. You can recover these fees from the counter party. There is no way to enforce the arbitration award without this procedure as per Article (52) of Federal Law No (6) Of 2018 on Arbitration, which says: ‘An arbitral award made in accordance with this law shall be binding on the parties, shall constitute res judicata, and shall be as enforceable as a judicial ruling, although, to be enforced, a decision confirming the award must be obtained from the Court.’
The law states the procedures that should be followed for the Enforcement of the Arbitration Award as per Article 55, which says: ‘1. A party looking to enforce an arbitral award shall submit a request for its confirmation and enforcement with the chief justice of the court, together with the following: (a) The original award or a certified copy thereof. (b) A copy of the Arbitration Agreement. (c) An Arabic translation of the arbitral award, attested by a competent authority, if the award is not issued in Arabic. (d) A copy of the minutes of deposit of the award in Court. 2. The chief justice of the court or whoever he delegates from among its judges shall order the arbitral award confirmed and enforced within 60 days of submission of the request for its confirmation and enforcement, unless it finds one or more of the grounds for setting aside the award under section 1 of Article 53 of this Law.’
On the other hand, you may file a Provisional Seizure case on the property and assets of the counter-party to preserve your right until the decision of the court to confirm the arbitration award is issued. Article 111 of Cabinet Decision No 57 Issued on 2018 gave this right to the creditor who holds an official document or an ordinary document for a debt payable and not subject to a condition or where he possesses a nonenforceable judgement, if the debt established therein is of a specified amount and states that without prejudice to the provisions of any other legislation, the creditor may request the court hearing the case or the magistrate of summary justice, as the case may be, to impose the provisional seizure on the property and the assets of his opponent in any of the following cases: 1- Each case wherein he fears from losing the guarantee of his right, in any of the following cases: A) If the debtor does not have a stable residence in the state. B) If the creditor fears on the basis of serious evidence that the debtor flees or smuggles or conceals his funds. C) If the debt securities are at risk of being lost. 3) If the creditor holds an official document or an ordinary document for a debt payable and not subject to a condition or where he or she possesses a nonenforceable judgement if the debt established therein is of a specified amount.’