Section 1
Civil case
The bankruptcy case between a bakery and a bank
In this case, the claimant (owner of a bakery) instituted a civil action against a bank and others before a court in Abu Dhabi. The claimant sought a declaration of her bankruptcy. She also prayed the court to issue an attachment order in her favor against the property of the bakery. Her real intention was that upon the property being attached, it would be subjected to a count of inventory. This would mean that the property would be placed under administration. The property could also be sold, and the proceeds be distributed among the creditors, depending on their respective claims. Such a claim was based on the fact that the defendant had not paid the outstanding debts to the bakery which had exceeded the assets (Ballantyne, 2013).
In United Arab Emirates, bankruptcy cases are classified/considered as civil cases. This means that they involve two parties, without the state interfering. The Federal Penal Code, in Article 418 and Article 419, however, gives the criminal court jurisdiction over contributory/negligent bankruptcy matters. The law dictates that when a person has been declared bankrupt by the court, his/her property should be attached and auctioned. The proceeds from the auction should then be distributed to the aggrieved parties in order of urgency. In this case, therefore, the court was right to rule in favor of the claimant. Since the defendant was not in a position to repay the amount, his property would be attached.
Personally, I think this is the way that the courts should law. Enforcement of the law should be universal. The judgment, on the other hand, should be based on merit. After taking into consideration all factors, the correct position was to attach the property so that it could be auctioned.
Criminal case
Hollington v Hewthorn
Criminal cases involve crimes against the state. Such crimes may include theft and robbery with violence. In Hollington v Hewthorn, the issue to be determined by the court was as to whether evidence used in a criminal conviction can be used in subsequent civil proceedings I order to prove facts. In this case, the defendant had been accused of an offense which also qualified to be a crime. This meant that he could be liable for both criminal charges and a civil lawsuit. After being convicted of the criminal charges, the claimant sought to use the evidence produced to institute civil charges. The issue the court was to determine was whether this could be allowed (Tamimi, 2003).
Accordingly, the court gave an advisory opinion to the effect that this could not be possible. The court argued that facts in which a criminal conviction is founded cannot be used to prove civil liability. This ruling has been subjected to a lot of disagreement. The law is silent on this. There is no precedent to these situations, meaning the judges could create law by exercising their discretionary powers. Admissibility of evidence cases has always been controversial.
In my opinion, the judges got this wrong. Whereas allowing such evidence to be admissible would work against the defense case, the fact remains that the court to which the lawsuit is presented will be analyzing the relevant evidence. It would seem very unfair to the claimant because this will limit the admissible evidence that could sustain a conviction. Because of the need to offer a level-playing ground, the court should not have declined this approach.
Sharia Laws
The penal code of United Arab Emirates derives many elements from Islamic Sharia. Although UAE is predominantly Islamic, Sharia law is not the prominent law. It is only used in few circumstances, which may include payment of blood money. The trend in UAE is replacing he traditional sharia laws with jail terms. Individual emirates have also embraced this move by suspending the sharia laws.
The Marte Dalelv case
In this case, Marte Dalelv reported to the police that a man had raped her. However, few days after trial had commenced, she withdrew the allegations of rape. In doing so, she argued that the intercourse with the man was consensual and voluntary. Early on in court, she had argued that she had been raped. The man was jailed for a term of 13 months for having consensual sex while drunk. Dalelv appealed this conviction and was pardoned at a later date.
This case arose a lot of criticism. It was argued that the Dubai judicial system was not comprehensive in handling the matter. Essentially, Sharia laws would have imposed a stricter penalty. However, the failure by the trial court to consider sharia laws is a clear indication that such laws are being replaced.
Section 2
Employment contracts
In UAE, two types of contracts of employment are allowed: fixed term contracts/ limited employment and unlimited contracts. Fixed contracts provide the specific date in which one starts working and the completion dates. This means that the employee is told in advance when his/her contract will expire/run out. Unlimited contracts, on the other hand, do not give these specifications (Zaman, 2011). In the unlimited contracts, the employee is required to work for the employer from a defined date until the time when the employer or the employee decides to terminate the contract. The party terminating the contract, however, is required to communicate or give prior notice to ensure that the other party finds adequate and competent replacement.
Although these contracts may look similar at some point, they have several differences. A fixed contract, for instance, has the commencement date and completion dates expressly stated before the employment begins. The unlimited contract, on the other hand, has just the commencement date but no completion date.
Secondly, he limited contract cannot have a term of more than four years. The maximum period a contract can be is four years. However, the parties to the contract can renew it upon expiry through mutual consent (which can be either implied or express. This does not apply with the unlimited employment. Unlimited contracts can be oral, not for a specified term. These types of contracts do not give either party a guarantee that the employer/employee will be available for the foreseeable future.
Because they serve the purpose of guiding the two parties in the contract, employment contracts should contain enough information. First, the UAE law dictates that these contracts should have the remuneration payable/wages expressly stated (Hall,, 1984). Effectively, they should also indicate the date at which the employment commenced. This is essential for recording purposes and determining when one started his employment. Other components should include the location (physical) of the employment, the duration through which the contract will run, the type of work the employee should perform and the nature of the contract (whether limited or unlimited.
In UAE, the Labor Office oversees all issues arising from employment and contracts. It maintains the employment contracts (standards) in English and Arabic. This means that the employer and employee only need to fill the blanks. However, at their discretion, they can lodge or draft their own contracts. When this is the case, such parties must ensure that the contracts drafted do not have provisions that are contrary to the law. They also need to ensure that the contracts are drafted in Arabic language.
Wages in UAE
The United Arab Emirates law defines wages as ‘All payments made to the worker on a yearly, monthly, weekly, daily, piece work, or production, or commission basis, in return for the work he performs under the contract of employment, whether such payments are made in cash or in kind’ (Pineda, 2010). Remuneration includes the allowance of the cost of living. It also includes grants given to workers in form of a reward for their efficiency and honesty whenever the contract provides for such amounts in the employment contract.
Wages in UAE can further be classified under basic wages and total wages. Basic wage refers to the wage of the employee which excludes all allowances of any nature. Basic wages are always specified in any contract. On the other hand, total wage refers t the wage of the employee which includes the allowances that are provided for (such as travel allowances and accommodation allowances). The definition of the basic wage at the beginning of a contract is important as it is used when calculating gratuity at the end of service. Gratuity is always determined depending on the last basic wage that the employee received. The total wage received by the employee does not count when calculating this (Mahmoud, 1990).
Wages in UAE are paid on a daily, weekly or monthly basis. The parties to the contract have choice to have a mutual agreement on the way the wages will be remitted or paid. There is no specification of where such wages should be paid, meaning they can be paid within or outside the country.
The UAE law is silent on the currency in which wages should be paid. This also gives the parties involved the liberty to have a mutual agreement as to the currency that they should be paid. The law only stipulates that the national currency should be used when paying wages. Transfer or repatriation of money is not restricted by the law.
Whenever a dispute arises between the employer and the employee, the law requires the employer to provide written evidence that he has received his application allowances and wages. If the employee cannot produce this evidence, he may decide to use the UAE Federal Laws. Because of this, employers would be in a better position if they maintain payment records. If they fail to produce this, the court may presume that the employee was not paid their wages.
References
Ballantyne, W. (2013). Essays and Addresses on Arab Laws. Hoboken: Taylor and Francis.
Barr, A. (2008). Foreign investment: Laws and policies regulating foreign investment in 10 countries : Report to the Honorable Richard Shelby, Ranking Member, Committee on Banking, Housing, and Urban Affairs, U.S. Senate. Washington, D.C.: United States Government Accountability Office.
Hall, M. (1984). Business laws of the United Arab Emirates. London: Graham & Trotman.
Mahmoud, S. (1990). UAE company law and practice. London, UK: Graham ?
Pineda, V. (2010). The capability model of disability: Assessing the success of UAE Federal Law No. 29 of 2006 in the Emirate of Dubai.
Pineda, V. (2010). The capability model of disability: Assessing the success of UAE Federal Law No. 29 of 2006 in the Emirate of Dubai.
Publications, I. (2013). Uae stock market business laws and regulations handbook. S.l.: Intl Business Pubns Usa.
Tamimi, E. (2003). Practical guide to litigation and arbitration in the United Arab Emirates: A detailed guide to litigation and arbitration in the United Arab Emirates based on federal laws, laws specific to the individual Emirates, judgments delivered by the Court of Cass. The Hague: Kluwer Law International ;.
The Laws of Saudi Arabia, the UAE, Egypt and Jordan: A legal and investment guide for American business. (1984). Washington, D.C. (1730 M St., N.W., Suite 411, 20036): American-Arab Affairs Council.
Zaman, N. (2011). Social security in UAE: The labor law. Norderstedt, Germany: Grin Verlag.
