The Legal System in the UAE - Coursework Example

The legal system in the UAE According to Price & Tamini (2005, p. vii), the United Arab Emirates is a Federation, formerly referred to as Trucial Coast in the Gulf, that consists of seven Emirates namely Abu Dhabi, Dubai, Ajman, Umm Al Quwain, Fujairah, Sharjah, Ras Al Khaima. To understand the legal system in the United Arab Emirates, this study seeks to discuss explicitly the legal history, the constitution, and the amended and federal laws. In addition, the legislation and government in UAE court system, law contract, and employment and agency laws. Legal system in UAE With increasingly turbulent globalized market environments, dynamic legal and regulatory frameworks that have advanced adequately to foster domestic and international business in UAE support the economic growth and cultural advancement in UAE. The aptness of the legal and regulatory system is critical in attracting and retaining existing and potential investors respectively, which illustrates the success UAE has accrued in relation to the legal systems is has developed and implemented. The UAE, a member of the Gulf Cooperation Council (GCC) and the League of Arab States, has the sources of its law from its constitution, the Islamic law and its legislation. Price & Tamini, (2005, p. viii) indicate that UAE legal system is heavily influenced by the Egyptian legal system which is founded on Roman and French laws. According to Noack (2007, p.17), the legal system in UAE entails three types of practiced law which include the Federal Law, Emirate Law and Sharia Law. Gorgenlander, (2011, p.54), highlights that under the constitution, each emirate has its individual legislative system and judicial authority and the autonomy to join the federal judicial system. Among the emirates, Dubai and Ras Al Khaimah are part of a federal judicial system with independent judicial systems with the Federal bodies having the capacity to issue laws concerning all the emirates (Gorgenlander, 2011, p.54). In regards to the legal system in UAE being founded on Islamic law, the Sharia law is applicable to specific matters such as family laws, divorce, religious disagreements and inheritance among Muslims in UAE. The Sharia law is structured on principles of the Quran, which is the Islamic holy book, Hadith, which consists of the sayings and conduct by Prophet Mohammad, Ijtima and Qiyyas as mentioned by Noack, (2007, p.17). Legal history in UAE According to Naim (2002, p. 142), the legal system in UAE has its origins on civil law principles and the Islamic Sharia Law, with the Sharia law being the main source of law. The federation of United Arab Emirates was instituted in 1971. In the 1800, the British signed treaties with local rulers of the Gulf with the intent to safeguard their commercial interests. In early 1971, the region attained its independence with Ras Al Khaymah joining the federation in 1972. Since the independence of the Emirates, varied federal codes and laws have been developed that deal with significant principles of law encompassing civil laws, civil procedures, company laws, commercial laws, immigration laws, maritime laws, intellectual laws, banking laws, industrial laws and employment laws (Naim, 2002, p. 142). As earlier mentioned, core principles of law in UAE are derived from Sharia, an Islamic concept and European (French) concept of civil law. The UAE legal systems although varied from those used in Western countries, are not only logical but also applicable. The legal systems in UAE have reformed and changed over time in a bid to accommodate the rising demands and changing legal needs of the UAE community and aligning the region within the new world order. The changing dynamics of the legal frameworks in the UAE has allowed liberation in UAE, which has developed favourable climate to conduct international business and encouraging investments in the region. The history of legal system is intertwined with the Islam religion although, the significance of Sharia in current federal laws in the region has been fading over time, with the Sharia law playing more significant role in social laws and less on commercial issues (Naim, 2002, p. 142). The constitution of UAE According to Abed & Hellyer (2001, p. 139), the constitution of UAE issues legal and political structure for the running of the UAE as a federation. The UAE constitution came to effect in 1971 and adopted permanently in 1996 (F.R.D. 2004, P. 108). It has ten parts with 151 Articles. The ten parts of the UAE constitution covers varied areas such as aims of the Union, core social and economic basis of the Union, freedom, rights and public duties, Union Authorities, Union Legislation and Decrees and the Authorities having jurisdiction therein, the Emirates, financial affairs of the Union, Armed Forces and Security Forces and final and Transitional Provisions. The acceptance of the federal constitution is celebrated annually as a National day in UAE. Abed & Hellyer (2001, p. 140) highlights that the UAE constitution confers federal authorities with all the functions of a unitary state with the Federal Government having exclusive legislative and executive jurisdiction in foreign affairs and full monopoly over the finalization of treaties and establishment of international accords. Primarily, the Federal Supreme Court is the supreme constitutional authority, legislative and executive body in UAE, which is charged with implementing general policies and sanctioning federal legislation. The UAE constitution forms the basis of the UAE legal system (Gorgenlander, 2011, p.54). Important to mention is that each of the seven emirates preserve control over all issues that are not specifically mentioned in the constitution to be under the Federal authorities. Legislation and government in UAE court system According to Augsburg et al. (2009, p. 9), the UAE legal system has two court system namely the Sharia court to oversee criminal law and secular court to conduct civil cases. More often than not, non-Muslims are tried in Sharia courts for criminal offences and often, discharged on civil penalties for convicted offenders. In regards to women, the legal system considers a woman a full person when they attain the age of eighteen. Although local authorities can give regulations to their respective emirates, Federal laws are supreme over individual emirates laws as directed by Article 151 of the constitution. Islamic jurisprudence is the major source of legislation in UAE, which means that all individual Emirate and Federal laws should comply with Sharia (Gorgenlander, 2011, p.54). Since Sharia law is a fundamental principle in UAE legal system, each of the emirates have systems of locally organized and supervised Sharia Courts in addition to established civil courts (F.R.D. 2004, P. 110). The emirates of Dubai and Ras Al Khaimah are the only two that have not yet joined the Federal Judicial authority, preferring to have their individual court systems not answerable to the Federal Supreme Court. In regards to court structure in litigation in the other five emirates excluding Dubai and Ras Al Khaimah are courts of First Instance, Appeal and the Federal Supreme Court while the other two are structured into courts of First Instance, courts of Appeal and the Court of Cassation (Gorgenlander, 2011, p.54). The major branches of the court system in UAE are Sharia, criminal and civil. Law of contract In the UAE, it is a rule of the thumb for judicial courts not to meddle in contractual agreements made by parties, which makes enforcing commercial agreed terms and conditions effective and favourable in UAE. Paldi (2010, p.1) indicates that the contract law of UAE is integrated in the UAE constitution in Article 127 -275 of the Civil Transactions Law, Federal Law No. 5 of 1985. Article 127 of the Civil Transactions Law is very categorical that a contract shall not be concluded for commitment of illicit actions. Article 129 to Article 148 of the Civil Transactions Law cover varied aspects of a contract namely the elements, validity, enforcement of contracts and options and conclusions of a contract. Article 129 indicates three mandatory elements in conclusion of a contract which are; both parties to the contract must have a common concurrence to the basic elements, the subject of the contract shall be easy to establish and acceptable to handle while obligations generated by the contract must be justifiable legally. Article 149-156 of the Civil Transactions Law practiced in UAE highlights fundamental issues in representation in conclusion of contracts with Article 149 stating that a contract must be concluded by the principal and may be concluded by an agent unless the law directs otherwise. Article 157- 175 of the Civil Transactions Law establishes the capacity to enter into a contract with Article 157 directing that every individual has the ability to enter into a contract save for those legally ineligible and incapacitated by law. Article 176-184 highlights coercion as a vice of consent, Article 185- 192 and Article 193- 198 highlights enticement, unfairness, and error as vices of consent respectively. Article 199- 208 of the Civil Transactions Law covers the object and cause of a contract while Article 209-212 establishes when contracts are valid, void and bad. Article 213-218 establishes suspended and non-binding contracts with Article 219- 242 highlighting options that may render a contract Non Binding which includes the Proviso option, Viewing option, option of Specify and Direct option. The employment and agency law in UAE According to O.B.G. (2008, p.89), labour issues in UAE within the private sector is overseen by Federal Law No. 8 of 1980 controlling labour relations as reformed by Federal Laws No.24 of 1981, No.15 of 1985 and No. of 1986 that applies to all the labour force within UAE regardless of their nationality. Be it as it may, O.B.G indicates that there are persons exempted from the law who include labour force recruited by federal government, government departments of any of the seven emirates, the municipalities, public agencies, federal and local government institutions and those employed in federal and local public projects (O.B.G., 2008, p.89). In addition, members of the police, Armed Forces and security units, domestic workers and agricultural workers and people involved in grazing. The agency law in UAE prohibits recruiters in UAE from collecting fees from potential migrant workers. O.B.G. (2008, p.89) indicates that for expatriates to be employed, an application must be made to the ministry and approval granted before the prospective employee is permitted into UAE while new enterprises are mandated to register into the Ministry prior to recruiting workers and acquiring approvals for expatriates. In some instances, employers are directed to pay bank guarantees as collateral for end of service benefits and repatriation costs for their employees, which occur often in UAE free zones (O.B.G., 2008, p.89). In regards to UAE nationals, they can enter into employment contracts anytime, which do not have to be in writing, and terms of the employment contract can be proved by means of proof legally permissible. Work permits for expatriates are given after labour contracts are filed with the Ministry. According to O.B.G. (2008, p.89), there are two forms of employment contracts in UAE namely fixed-term employment contracts and unlimited contracts with the former being for a specified time period and the latter, workers work for employers continuously until either of the party terminates it respectively. In Article 37 of the employment law, an employee is eligible to a maximum six months probation period (O.B.G., 2008, p.89). Federal labours law As indicated by O.B.G. (2008, p.89), the UAE labour law No.8 of 1980 is a federal labour law that controls labour relations and related issues in all of UAE. Federal labour laws are meant to ensure fairness, safety, security and fair wages for workers and occupational health for the labour force in work environments. Thus, the laws act as guidelines to employers when handling and relating with employees. All business in UAE free trade zones are mandated to observe enforced federal labour laws (Ghaemi & H.R.W, 2006, p.42). Federal labour laws are enforceable in any of the emirates. The federal labour laws set out terms of employment of employees in UAE which range from working hours, annual leaves, overtime, remunerations, child labour, young workers, industrial safety, health for workers, compensations, penalties for violation, repatriation of employees, payment of gratuity, termination of contract and resolution of disputes among others (Ghaemi & H.R.W, 2006, p.43). Amended laws in UAE Occasionally, amending laws and legislations are a critical and necessarily process in any democratic and advancing economy. As per Article 144 of the UAE constitution, amendments of the constitution are drafted by the Federal Supreme Council and should be approved by a two-thirds majority of the Federal National Council. The amendments are later on signed by the President into law. Amendments to varied federal laws such as federal labour laws have been necessarily in order to meet the pace of growth and development in UAE since existing laws has been enforced for a long time. Works Cited Abed, Ibrahim and Hellyer Peter. United Arab Emirates: a new perspective. Melbourne: Trident Press Ltd, 2001. Augburg Kristin, Claus Isabell, & Randeree, Kasim. Leadership and the Emirati woman: breaking the glass ceiling in the Arabian Gulf, Volume 1. Abu Dhabi: LIT Verlag Münster, 2009. F.R.D. 2004. United Arab Emirates: A Country Study. Montana: Kessinger Publishing. Ghaemi, Hadi, and H.R.W. Building towers, cheating workers: exploitation of migrant construction workers in the United Arab Emirates, Volume 18. New York: Human Rights Watch, 2006. Gorgenlander, Viktor. A Strategic Analysis of the Construction Industry in the United Arab Emirates: Opportunities and Threats in the Construction Business. Dubai: Diplomica Verlag, 2011. Naim, Allah. Islamic family law in a changing world: a global resource book. Sidney: Zed Books, 2002. Noack, Sascha. Doing Business in Dubai and the United Arab Emirates. Berlin: GRIN Verlag, 2007. O.B.G. The Report: Ajman 2008. Oxford: Oxford Business Group. Paldi, Camille. UAE Contract Law. 2010, Retrieved from http://ilovetheuae.com/2010/04/04/uae-contract-law-2/. Accessed on 19th July 2011. Price, Richard, and Tamini, Essam. United Arab Emirates Court of Cassation judgments, 1998-2003. Singapore: BRILL, 2005. Read More