Areen Jayousi, partner
The last few months
have been an exceptionally remarkable time for disputes lawyers in Dubai. After
having received a number of frantic calls from colleagues and clients fearing
that the UAE Ministry of Justice has effectively rendered them all surplus to
requirements, I continue to reassure all that the confusion and uproar has mainly
been borne out of a highly restrictive interpretation of the Resolution, as
well as a misunderstanding of the framework of the legal system in the Emirate
My team and I are now
also increasingly witnessing challenges based on the Resolution to several
arbitral proceedings we are involved in.
In September of 2017,
the UAE Minister of Justice released Ministerial Resolution No. 972 of 2017 regarding
the Executive Regulations of the Federal Law No. 23 of 1991 on the Regulation
of the Legal Profession and its Amendments (the “Resolution”).
surrounding the Resolution is largely attributable to Article 2, which
“…arbitration tribunals and judicial and
administrative committees shall not accept a person to act as a lawyer
on behalf of another person unless his name is registered in the Roll of
Article 17 of the
Resolution further clarifies that a requirement for registration in the Roll of
Practicing Lawyers is that the lawyer be a UAE national.
Read in tandem, these
two articles of the Resolution would appear to prohibit arbitral tribunals specifically
seated onshore in Dubai from accepting legal representation by counsel that are
non UAE nationals. This widely publicised view in my opinion is erroneous and
restrictive in its interpretation of the Resolution.
will immediately view such a restriction as alien to the world of arbitration,
and a matter of grave concern. To practitioners of arbitration, the freedom to choose
the seat, governing law and rather importantly representation is seen as a
basic and fundamental tenet of the rules of arbitration.
With Dubai, quite
rightly, viewed as the regional hub of complex and highly technical disputes,
the freedom to choose ones counsel is a subject of utmost importance, and
practitioners with specialist expertise are undoubtedly highly sought after.
therefore would seem to be a sudden and contradictory departure from years of meticulous
and conscious development of arbitration in the UAE and especially in Dubai. I
conclude however that it is not.
I would argue, as many
now already have, that nothing has in fact changed despite the uproar, and as
always recourse to the original Arabic is vital in understanding the true
purpose of the Resolution.
between lawyers and legal consultants is the main issue here and will assist to
clarify the situation. It is widely understood to all those who practice law in
the UAE that there has also been a clear distinction between local lawyers
(those registered in the roll of practicing lawyers) and foreign lawyers who
are categorised, and act as legal consultants.
The difference is this
distinction has only historically been relevant when discussing representation
of parties before local Arabic speaking courts, and not before arbitral
tribunals. The Resolution on the face of it seemed to go beyond the restriction
of representation in local courts, and extended the restriction to include
representation by foreign lawyers before arbitral tribunals. The Distinction
between the Arabic word muhami (محام
lawyer, and mustashaar (مستشار) meaning legal consultant, being pivotal here in
understanding the difference.
The Resolution, in my
view, is to be construed to apply solely to lawyers, and not legal consultants.
As discussed, Article 2 cited above prohibits a person to ‘act as a lawyer’. In
the case of arbitration and the distinction in terms of the terminology
referred to above, the Resolution cannot be seen to prevent non UAE nationals
from representing clients before arbitral proceedings.
Helpfully, the Dubai Legal
Affairs Department (DLAD) has now issued an official letter in an
attempt to allay concerns and clarify its position. The letter, addressed to
the DIFC Arbitration Institute, confirms that legal consultants may continue to
represent clients before arbitration tribunals in Dubai, by virtue of Article 2
of Executive Council Resolution 22 of 2011, which provides that the Legal
Affairs Department is responsible for the regulation of the advocacy and legal
consultancy professions in Dubai.
For queries or
clarification regarding the Resolution or for assistance on arbitral matters
contact our arbitration team on 04 354 4444 or email@example.com.