The Doctrine of Res Judicata under UAE Law
Res judicata is a fundamental concept of law that serves to prevent duplicity of proceedings on a subject-matter, by precluding re-litigation of facts that have been conclusively determined by a judicial body in a prior proceeding.
From a natural justice perspective, such doctrine aims to thwart any litigants who have already been granted appropriate remedies from causing vexation twice to parties who have already been subjected to sanctions for such cause. whereas from a public policy perspective, res judicata allows for the desirable social end of providing a definitive end to litigation and accordingly, acceptance of the determinations in a judicial decision as the truth. The doctrine pervades both Common Law and Civil Law, albeit with varying scopes of interpretation and application across jurisdictions.
The doctrine of res judicata is recognized under Article 92 of the UAE Civil Procedures Law (Federal Law No.11 of 1992 as amended), quoted below:
A defence that the action should not be entertained because it has already been tried is permitted to be made at any stage in the action. The court shall adjudicate on it upon its own motion.
The said doctrine is also recognised under Article 49 of the UAE Evidence Law (Federal Law No.10 of 1992), in relation to rights between the parties themselves acting in the same capacities and having the same object and the same cause. Accordingly, res judicata judgments are considered absolute proof as to the matters finally decided of the litigation, and no proof is admitted against the legal presumption resulting therefrom.
Res judicata may therefore be relied upon as a defence where a cause of action and fact in issue has already been tried and adjudicated in a previous proceeding and such previous judgment has attained finality. However, the scope of res judicata in the UAE is narrow and ordinarily aimed at ensuring the finality of a judgment. The Abu Dhabi Court of Cassation has previously held that a res judicata defence is admissible where the litigants, the subject matter and the cause of action in subsequent proceedings are identical and a final judgment on the matter has been issued.
In this context, it may also be noted that, given that UAE is a Civil Law jurisdiction, a system of binding judicial precedent does not exist as in various Common Law jurisdictions. However, lower courts in the UAE have in many instances, applied decisions of the higher appeal courts while adjudicating similar issues.
Effect of Criminal Judgment on Civil Proceedings and a Civil Judgment on Criminal Proceedings
In this context, it may also be noted that Article 269 of the UAE Criminal Procedures Law (Federal Law No. 35 of 1992 as amended) and Article 50 of the UAE Evidence Law provides that where an issue/fact is the subject of a criminal judgment, such issue/fact shall be considered as res judicata before a civil court deciding upon any related issues/facts or civil rights as to the offence/wrong-doing by an accused that are common to both the criminal and civil proceedings. Accordingly, the civil court may not reconsider those issues or render a decision in contradiction to such criminal judgment.
On the other hand, Article 270 of the UAE Criminal Procedures Law states that judgments rendered in civil matters shall not have the effect of res judicata before the criminal courts as concerns the perpetration of the crime and its imputation to the perpetrator. In this context however, the effect of Article 297 of the UAE Civil Transactions Law (Federal Law No. 5 of 1985) which provides that “civil liability shall be without prejudice to criminal liability provided that the elements of criminal liability are present, and no criminal penalty shall limit the scope of the civil liability or the assessment of the compensation”, may also be noted.
Arbitral Awards in UAE & Res Judicata
As per Article 52 of the UAE Arbitration Law (Federal Law No. 06 of 2018), quoted below, an arbitral award shall ordinarily operate as res judicata between the parties thereto:
Arbitral Awards rendered in accordance with the provisions of the present Law shall be binding to all the parties and shall have the authority of the res judicata. Further, it shall have the same self-executing force as if it were a judgment. However, to enforce such awards, a decision to confirm it shall be obtained from the court.
As can be seen from the above provision, enforcement of an arbitral award shall, however, be subject to ratification by a competent court. It is also possible that a party may challenge the validity of an arbitral award on the limited grounds as set out in the UAE Arbitration Law (which are not detailed herein, being beyond the scope of the present Article). In this context, in the judgment of the Court of First Instance – Dubai in Lawsuit No. 652/2012 & Counter-Claim No. 584/2012, which has relevance, it was clarified that the legislators’ intent in providing for such ratification procedures within the UAE Arbitration Law, is only to ensure the legality/legitimacy of the arbitration proceedings and is not designed to touch upon the discussion regarding the dispute or the validity of what was decided by the arbitral award or the adjudication of any other requests other than ratification, given that an arbitral award, after fulfilling the requisite conditions, is tantamount to a ruling with force. The said judgment was upheld by the Court of Appeal and subsequently, the Court of Cassation.
Therefore, it is clear that parties may not approach the Courts for any proceedings that may be viewed as re-litigation of the facts determined by the arbitral award and that, res judicata shall apply once the arbitral award is issued and not only pursuant to ratification by the Courts.
Further, as a matter of course, all facts determined in a conclusive / final judgment issued by a court of law in the UAE shall operate as res judicata between the parties thereto, an arbitration tribunal shall also be bound by such determination / findings of fact.
Would a judgment issued by a Court of Law in UAE in respect of certain facts in issue be treated as res judicata in proceedings before a Court of Law in another jurisdiction?
Ordinarily, the question of whether a judgment pertaining to the facts in issue in a litigation may be considered res judicata would need to be construed in accordance with the law applied by the court before which a matter is agitated.
Accordingly, whether or not any facts conclusively determined in a judgment issued by a court of Law in the UAE that has attained finality in the UAE as between the parties thereto would be considered as res judicata in any legal proceedings in any jurisdiction outside of the UAE wherein the said parties have been impleaded, would depend on the factors that would have to be satisfied vis-à-vis a defence of res judicata as per the applicable law in such jurisdiction with respect to the proceedings there.
In light of all of the above, it is clear that a party who is subject to a final judgment by a court of law or an arbitral tribunal with competent jurisdiction in the UAE as to any litigated/decided facts and circumstances shall be bound by such decision.
A litigant is therefore, encouraged to bring all claims arising from a particular transaction in a single proceeding, given that once a judgment / arbitral award has attained finality, such litigant will be subsequently prevented from raising any further contentions or seeking additional remedies in relation to the same transaction.