Interesting Article: Lawyers have to bridge the gap in a split legal system

Lawyers have to bridge the gap in a split legal system

Diana Hamade

Jul 24, 2011 

The legal system in the UAE involves one of the most mixed jurisdictions in the world. The dual legal system of civil and Sharia law has been extended even farther to include common law. The question is whether these unique legal systems will all survive, given the divisions between them.

So the challenge for lawyers practising here is to work within - and ensure the continuity of - these mixed jurisdictions.

The terms "mixed legal systems" and "mixed jurisdictions" cover countries in which two or more legal systems apply concurrently or interactively. These legal systems include civil, common, customary and Sharia law. The UAE belongs to the tiny minority of countries that rely on a mixed system of civil and Sharia law - as well as common law as practised in the Dubai International Financial Centre (DIFC) courts.

The introduction of common law into the legal system has moved the UAE to a more exclusive subcategory of legal systems known as the "Third Legal Family", which covers mixed systems of common law and civil law.

The core principles of law in the UAE are drawn from Sharia, while most of the legislation is a mix of Islamic and European concepts of civil law, which have a common root in the Egyptian legal code established in the late 19th century. The structure of the legal system is complex with Sharia and civil courts operating in parallel, but covering different areas of the law.

To adapt to the needs of economic growth and other developments, the UAE amended its constitution to allow the establishment of the DIFC in September 2004 as a gateway for global capital and investment. DIFC operates under a unique legal and regulatory framework that permits its own civil and commercial laws modelled on principles of common law.

A critical aspect of the DIFC courts is that they operate under an independent judiciary with jurisdiction over civil and commercial disputes relating to the DIFC. The courts' official language is English.

The common law applied in the DIFC comes from the legal tradition that evolved in England starting in the 11th century. Its principles derive for the most part from judgments, usually by the higher courts, in relation to precedents from similar disputes.

The separate jurisdiction of DIFC courts from local UAE courts helps to protect them from being melded together. The preservation of different languages, cultures and institutions within a mixed legal system can help to ensure its evolution.

Equally important to the survival and development of a mixed legal system, however, is the awareness of judges, lawyers, legislators and academics of the distinct legal traditions of each system. Practitioners must be committed to defend, and indeed celebrate, the integrity of each of those traditions.

A problem in the UAE's mixed legal systems is that expatriate lawyers who are qualified in Europe, the US or elsewhere are challenged by working in a legal system based on Sharia with the official language of Arabic; equally, UAE-licensed lawyers who practise in the local courts view common-law practitioners as interlopers. For those lawyers, the civil law, like the Arabic language, must be protected from the intrusions of the common law.

Lawyers from the two systems rarely meet unless a contentious case is referred by an international law firm to a UAE lawyer for the local courts. Also, UAE-licensed lawyers can now plead cases in DIFC courts if they have a good command of English.

As a UAE-licensed lawyer and a registered practitioner in the DIFC, I have been dealing with mixed jurisdictions since my first internship with an international law firm in Dubai 15 years ago. In our day-to-day work, we practise civil law, Sharia law and common law in DIFC courts.

So why the distance between UAE-licensed lawyers and qualified expatriate lawyers? The very nature of the mixed system calls for cooperation.

In my opinion the separate licensing procedures and regulations are the main reason. The UAE Federal Law on Legal Profession No 23 of 1991 regulates the practise of lawyers before local courts; the Code of Professional Conduct for Legal Practitioners, which entered into force in November 2009, regulates lawyers in DIFC courts. But expatriate lawyers who work as legal consultants - the majority of the legal practitioners in the UAE - are not regulated by any law.

Legal education is another reason for the chasm between practitioners in the two systems. Students should be taught a mix of courses that give them knowledge of civil, Sharia and common law. But most schools focus exclusively on the distinction between civil and common law. Legal education continues to be the most challenging task in the UAE in the absence of a higher-education policy to harmonise the existing systems.

Last and not least is the role of legal associations as a venue to debate important issues of their respective practices. Lawyers should be discussing among themselves legal proposals to develop the mixed legal system and ensure its longevity.

We need to work towards legal harmonisation, rather than unification, to preserve our distinctive system rather than enact new laws or transplant new rules. Practitioners in civil, Sharia and common law should all engage in the evolution of our legal system.

Diana Hamade is an Emirati lawyer and legal consultant. She is the founder of International Advocate Legal Services in Dubai