The continuous emergence of the Emirati legislator's intent to keep pace with all the changes and developments witnessed globally, particularly in the judicial domain, reflects the UAE's commitment to constantly improve the legislative framework governing judicial relations and existing disputes before the courts. This commitment ensures the protection of individuals' rights, the reduction of pending cases, and a prompt resolution for all involved.
One of the most important laws, consistently subject to updating and continuous development due to its significance, is the UAE Law of Evidence. This law stands as the primary tool provided by the state, which enables the inclusion of amendments and updates aimed at encompassing the proof and recovery of rights.
In this article, we shed light on all the substantive additions contained within the new UAE Law of Evidence, issued as Law No. 35 of 2022 and published in the Official Gazette of the UAE on October 10, 2022. These additions were not included in the previous Law of Evidence, Law No. 10 of 1992, as amended by Law No. 36 of 2006.
Evidence pursuant to electronic evidence
One of the notable aspects of the new UAE Evidence Law No. 35 of 2022 is the inclusion of electronic evidence as a distinct means of proof. This addition represents a significant development compared to the previous version of the law.
What does the new UAE Evidence Law define as electronic evidence and its significance in legal proceedings?
According to the provisions outlined in Article 53 of the recently enacted UAE Evidence Law, any evidence originating from data or information that is produced, stored, extracted, duplicated, transmitted, communicated, or received through information technology means, irrespective of the medium involved, and is capable of being retrieved and understood, shall be regarded as electronic evidence admissible for the purpose of establishing rights in a court of law.
Furthermore, in accordance with Article 54 of the same law, the scope of electronic evidence encompasses a comprehensive range of elements, including electronic records, electronic documents, electronic signatures, electronic seals, electronic correspondences (such as emails), contemporary communication methods, electronic media, and any other form of electronic evidence recognized by the law.
What does the new UAE Evidence Law stipulate regarding the authenticity of electronic evidence?
In accordance with the provisions set out in the new UAE Evidence Law, the authenticity of evidence in electronic form is governed by specific regulations. According to Article 55 of the law, electronic evidence is treated with the same weight as evidence in writing.
Additionally, as stated in Article 56, electronic evidence possesses the authenticity standards attributed to official documents. This applies when such evidence is recorded by a public official or an individual entrusted with a public service, or when it is received from authorized individuals within their authorized limits.
For electronic evidence that is automatically generated by electronic systems for public authorities or individuals entrusted with public services, the authenticity prescribed for official documents applies. However, for electronic evidence falling outside these categories, the authenticity requirements outlined for customary documents, as per Article 59, are applicable.
It is important to note that extracts derived from electronic evidence are considered authentic to the extent that they faithfully replicate the content of the original electronic record. This provision, as per Article 63 of the new Evidence Law, extends to extracts from electronic payment methods as well.
Does unofficial evidence possess authenticity or recognition within the legal framework?
As per Article 57 of the new UAE Evidence Law, unofficial evidence is deemed to possess authenticity when it pertains to the parties involved in a transaction, under the following circumstances:
1. If the evidence is issued in compliance with the relevant legislation governing its issuance.
2. If the evidence is derived from an electronic medium specified within the contract that is the subject of the dispute.
3. If the evidence is derived from a documented electronic medium or has been made accessible to the public.
What are the consequences when litigants fail to provide evidence substantiating the authenticity of electronic evidence, as per the UAE Evidence Law?
According to Article 60 of the new UAE Evidence Law, electronic evidence must be presented in its original form or through any other electronic means. The court has the authority to request the submission of the written content of the electronic evidence when its nature permits.
What is the impact of the litigants' refusal to provide evidence confirming the validity of electronic evidence?
If any of the litigants refuse, without a valid excuse, to provide the court with the requested evidence to verify the validity of the electronic evidence, according to Article 61 of the new UAE Evidence Law, they forfeit their right to rely on it or it may be considered against them as an argument.
Furthermore, it should be noted that if the inability to verify the authenticity of the electronic evidence is due to reasons beyond the control of the litigants, the court will evaluate its evidentiary value based on the circumstances of the case, in accordance with Article 62 of the new UAE Evidence Law.
Proof through witness testimony
The new amendments introduced in the new UAE Evidence Law have brought significant changes to witness testimony, including the following:
1. Witness testimony is no longer admissible to prove the existence or expiration of transactions valued at over 50,000 AED, unless there is an agreement or provision stating otherwise. This is in accordance with Article 66 of the new UAE Evidence Law.
2. Witness testimony is not sufficient to prove a transaction that does not exceed fifty thousand dirhams or its equivalent if there is contradicting written electronic or paper evidence.
3. Witness testimony is permissible to prove matters that require written evidence when there is a physical or moral impediment preventing the acquisition of written electronic or paper evidence. Material impediments include the absence of a third party who was not a party to the contract, while moral impediments include marital ties, kinship, and affinity up to the fourth degree
4. Witness testimony is accepted for matters witnessed, observed, or heard. However, testimony based solely on hearsay is not admissible, except in cases where it is difficult to ascertain the information by any other means. This includes matters such as marriage, divorce, and wills, in addition to cases covered by the old evidence law, such as death, lineage, and endowments.
5. Article 70 of the new law requires witnesses to be at least fifteen years old and of sound mind. The court may hear statements from individuals under fifteen years old for the purpose of obtaining information.
6. The penalty for failing to appear as a witness, despite being properly summoned, has been increased. The fine now ranges from 500 AED to a minimum of 1000 AED and a maximum of 2000 AED. In case of repeated non-appearance, the witness may be fined a sum not less than 2000 AED and not exceeding 10,000 AED. In cases of refusal to appear, the witness may be apprehended and brought to court, all in accordance with Article 74 of the new UAE Evidence Law.
7. The new Evidence Law, through Article 77, allows for the testimony of witnesses to be heard through remote communication methods. Each witness's testimony is heard individually, except when it is impracticable.
Proof by custom in the new UAE Evidence Law
Another significant provision included in the new UAE Evidence Law is the acceptance of proof by custom. The new law allows for proof by custom or usage between the litigants, as stated in Article 86, unless there is a specific provision or agreement between the parties or it contradicts public policy.
It is the responsibility of the party invoking the custom or usage to prove its existence at the time of the incident. Likewise, the opposing party has the right to challenge the proof of the custom or usage and can present counter-evidence stronger than the invoked custom or usage. This is in accordance with Article 90 of the new law.
It is worth noting that specific custom or private usage prevails over general custom when there is a conflict, as per Article 91 of the new law. In case of dispute, the court may appoint an expert, according to Article 92, to verify the existence of the custom or usage between the litigants based on the provisions of the established expertise.
Proof by expertise in the new UAE Evidence Law
Regarding the means of proof by expertise, it is one of the important amendments included in the new UAE Evidence Law. The following points highlight the provisions related to this method:
1. Increase in the fine for delays resulting from an error by one of the litigants to an amount not less than AED 3,000 and not exceeding AED 10,000, replacing the previous amount of AED 1,000 in the old evidence law. Additionally, the right of the litigant to hold onto the decision to appoint an expert is forfeited.
2. The new law allows for the agreement between the litigants, even before filing the lawsuit, according to Article 122, to accept the result of the expert's report. The court enforces their agreement unless the report includes something that contradicts public policy.
3. The new Evidence Law grants the court, in Article 125, the authority to rely on alternative means instead of appointing an expert in the lawsuit. This can be done without interfering with the expert's report submitted in another lawsuit against the litigants, in order to discuss the content of that report.
Proof by admission and interrogation of litigants
In terms of the notable amendments included in the new UAE Evidence Law regarding the means of proof by admission and the interrogation of litigants, the following points are worth mentioning:
1. The new law allows for the admissibility of a special empowered minor's admission in matters of sale and purchase, to the extent of the authorization granted to them. Similarly, the admission of a guardian, custodian, or those in a similar position is valid within the limits of their authority. This is in accordance with Article 14 of the law.
2. An admission cannot be divided unless it pertains to multiple facts and the existence of one fact does not necessarily imply the existence of other facts. This is stated in Article 17 of the law.
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