Law Of Evidence
Evidence in the UAE is governed by the UAE Law of Evidence No. 10 of 1992.

The basic principle of this law is that the claimant must provide evidence to substantiate his claim and the evidence must be relevant to the action. The Judge may not deliver judgment based on his personal knowledge of the facts. The Judge must decide based on the facts/evidence filed and the provisions in the Laws. In the absence of any specific legal provisions, the judge will apply the Islamic Doctrine of Sharia or a judgment based on customs and usage, if Sharia is not applicable.

There are two categories of documents under the Law of Evidence. One is an official document, which is basically a document issued by a public authority according to the normal legal procedures, and which was issued within the employee’s authority and jurisdiction. The other category of evidence, is the normal evidence relating to documents used by the public provided that the documents have been signed or stamped by the relevant party.

Public documents are considered conclusive evidence against any third party if they are issued by a public authority employee within his authority and jurisdiction, and signed by him unless otherwise proven that such a document was forged according to the legal measures of proving forgery. A copy of an official document will have value provided it is identical to the original and the original is available. If the copy is challenged it must be examined with the original (Article 8 and 9 of the UAE Law of Evidence).

If the original of an official document is not filed, the copy will have the same value as the original in the following circumstances:

(a) From the general appearance of the document there is nothing to indicate that it is not identical to the original.

(b) It was copied from the original document, however, either party may request that this should be compared to the original from which it was copied.

(c) Copies of copies are not official documents and will only be regarded as persuasive but not as evidence. (Article 10 of the Law of Evidence).

A copy of an unofficial document is considered issued by the party to whom it refers unless that party denied signature or stamp or denied that it was issued by him.

Also, copies of general documents (other than official documents) will not be accepted as conclusive evidence against third parties as far as dates are concerned unless such a date is established by other evidence. Dates can be established in the following circumstances:

- If it is confirmed by an official record.
- If it has been noted by an official employee.
- From the date on which one of the parties has died and there is no challenge to his signature.
- From another incident which establishes that the document was issued prior to that date.
- If the content of that document was noted down in other documents which have a fixed valid date.

Documents issued abroad will be accepted in the UAE, if notarised and legalized up to the UAE Embassy and subsequently authenticated by the Ministry of Foreign Affairs.

Letters signed, but not notarised and legalized, will be considered general documents. Telexes also will be considered provided that the original telex is with the sender and signed by him. Normally telegrams are considered to be identical to the original unless otherwise proved. If the original of the telegram is not available, the telegram will only be used for persuasion but not as evidence (Article 14).

Merchant’s documents will only be considered as evidence against the merchant himself and not against a third party. However, such records will be evidence against another merchant if the document is correspondence between two or more merchants. For using merchant’s documentation the judge may order either party to swear the evidence as an additional document or to substantiate the merchant’s documentation.

The Court will consider any alteration, changes or modifications in the document to see whether the document is still valid for evidence based on these changes. The court may also call on the party who issued the document to question him regarding the changes or alterations made to the document.

Either party to an action may deny the signature or stamping of the document for an unofficial document and may also challenge the document on the basis that the signature is a forgery and it was not stamped by the party with regard to unofficial documentation. In such cases the courts may call on witnesses, question the parties or refer the matter to a laboratory to examine the signature or the stamp. The court may also request the party to sign samples for comparison.

In the event that the party to an official document or non-official document, challenges the document on the grounds that it is forged, evidence must be provided to establish that there is an element of forgery. The court may then question the party, call on witnesses or request further evidence. The court may also suspend the hearing and refer the matter to a criminal investigator to investigate the document and the forgery.

Usually the statement of witnesses in a civil matter (commercial) is not acceptable if the amount involved is for more than Dhs. 5000/-. Therefore any amounts for more than Dhs. 5000/- in a civil matter must be proven by documents and not witnesses. Further in civil matters it is not possible to call on witnesses to prove something contrary to what is actually proven in written documents. In criminal matters, cases can be proven in any manner including witnesses.

Based on the above, it is evident that whether official or non-official documents, a document must be signed or stamped and copies of documents, whether official or non-official, are not recognized unless the original is available. The original will only be considered original if it is signed or stamped. A copy of a document is not recognized as evidence. Further in the case of non-official documents, if the original is not available a party to an action may challenge that document by denying the signature or the stamp. In such a case the court will have to examine the document to consider whether the signature or the stamp was issued from the party which the document claims to have been issued from.

As previously mentioned, there is nothing about electronic documents or electronic signatures in the UAE Law of Evidence as yet. In light of the above, the UAE federal and local governments have begun to act. In particular, as mentioned above a new law was recently issued in Dubai relevant to the use of computers in criminal procedures. Pursuant to this new law, Dubai Law No. 5 of 2001, documents with electronic signatures will be admissible as evidence in criminal investigations. The provisions of the law acknowledge signatures of individuals acquired through the use of computers and other means of information technology for purposes of proof in criminal cases.

In addition, most recently, , his Highness Sheikh Maktoum Bin Rashid Al Maktoum, Vice President and Prime Minister of the UAE and Ruler of Dubai, has issued a local law for the Emirate of Dubai, Law No. 2 of 2002 Concerning Electronic Transactions and Commerce which is meant to facilitate e-correspondence through reliable e-books; remove any barriers to e-commerce and other e-transactions; facilitate submitting e-documents to government departments and institutions; reduce the number of submissions of e-correspondence and amendments thereto; set uniform criteria for documentation and security of e-correspondence; boost the public’s confidence in security and validity of e-books and correspondence; and enhance development of e-commerce and other transactions, locally and internationally, through using e-signature.

It has also been reported that a draft of the ‘Cybercrime’ Law is currently being reviewed at the federal level on electronic signatures, along with direct reference to the Singapore Electronic Transactions Act. According to a Ministry of Justice and Islamic Affairs official, the law would contain two categories to deal with crimes committed on the Internet. One would be a set of laws on digital signatures and issues related to signing and forgery of electronic documents. The other set would address crimes such as hacking, stealing credit card numbers, invasion of privacy, copyright violations and online theft. The articles would be flexible to allow amendments to cover situations arising from newer developments in information technology. The official also said that establishing rules for evidence in cyber crime is one of the main difficulties in formulating cyber laws.

The requirements in the existing Law of Evidence, cited previously, will make it risky to transact, sell, buy, communicate, acknowledge payments or forward payments through electronic means. In such cases, documents will not be signed and an electronic signature is not recognized under the UAE Law of Evidence, as it does not bear the handwriting of the person concerned. Any document issued or transacted electronically may be considered as a copy or even draft and signed and therefore cannot be stamped as evidence as there is no original to compare it to. In the absence of any legislation regulating and giving value to such signatures and the documents that they are attached to, these will be considered unsigned and unstamped drafts. You will note from the paragraph relating to telegraphic documents that telegrams will be recognized if the original is signed. Thus, electronic documents will not be regarded as good evidence.

The problem lies in proving that transactions have occurred or in establishing evidence. In addition, problems arise in cases where a party denies the validity of documents. There is no legal uncertainty if both parties recognize the contract and admit the same. In other words, if both parties agree to the terms and conditions of a contract transacted electronically and recognize the same, the question of proof does not arise. The contract therefore will be a valid contract and both parties will have to adhere to the agreement they have made through electronic means since each has recognized this contract. In other words, if both parties accept the terms and conditions, whether verbally or electronically, there will be no legal issue. The problem occurs when one party defaults, or in the event of fraud, as then the question will arise and evidence of proof must be established. Therefore if there has been an agreement and both parties agreed to the terms and conditions – even if the trade was electronically conducted – then the question of proof will not arise.

However under the new Electronic Transactions and Commerce Law, Law No. 2 for 2002, the e-signature as provided for in the said law shall be regarded as adequate if the law requires a signature on a document. According to the new law, an electronic document or file shall be regarded as original if there is reliable technical evidence proving that it accurately reproduces the information originally created and it permits information to be presented on request. Under the said law an electronic document or signature may not be rejected just because it is electronic. Electronic information shall have legal validity and in judging this validity, certain requirements must be met such as:

• Reliability of keying in or creating, saving, presenting or sending processes.
• Reliability of the method in which information is secured.
• Reliability of the source of information.
• Checking the identity of the creator of the information.
• Any other relevant item.

It is presumed that a secured e-signature is reliable, and is that of the person involved and specifically approves the electronic document attached to it. It is further presumed that a secured electronic document has remained unchanged since its creation and is reliable. Even though it may involve one or more electronic communications, a contract may not be less valid or less legal.

For purposes of concluding contracts, partial or total acceptance may be made electronically. An arrangement may be made by electronic devices (two or more information systems) without personal intervention. Such agreement shall be valid according to the said law.

A number of countries including the USA, Germany and Malaysia have adopted laws to recognise electronic signatures. These laws could provide ideas for the UAE Legislator to consider with regard to digital signatures in commerce. In the USA, the Law known as the ‘Electronic Signatures in Global and National Commerce Act’, eliminates legal barriers to using electronic technology to form and sign contracts. Under the Law, no contract, signature or record can be denied legal effect solely because it is in electronic form. An “electronic signature” could mean a digital certificate or encrypted key that someone uses to authenticate themselves. Or it could be something as simple as agreeing with the other party in a contract that your name typed at the end of a document sent via e-mail messages is legally binding.

The UAE Commercial Transaction Law has also provided some articles about the documents which a merchant needs to keep to evidence his trading and his financial status. These are covered by Articles 26 to 38 of the UAE Commercial Transactions Law No. 18 of 1993. This only provides what the merchant needs to register in his books and all the assumptions made and referred to are of written documents rather than electronic. The law provides that all the books of a merchant should be free from any spacing, scribbling or erasing or any writing in the columns therein. The law provides that all pages must have serial numbers and be signed by the merchant and the Commercial Registrar. The law provides that the merchant must keep a true copy of all the correspondence in an organized manner with serial numbers. The law also provides that he must keep the documents for a minimum period of five years.

The only exception to the above is for organizations such as banks, companies and establishments named by special decree issued by the Ministry of Economy & Commerce that may keep technical information and correspondence which are not original documents, and such documents will have the same effect as the original. The rules and regulations for such documentation and the value of the evidence will specifically be provided for in the decree issued by the Ministry of Economy & Commerce.

Further, the UAE Commercial Law, in general, refers to documents, papers, commercial documents, issuance of receipts and comparison of the original documents against the copies, and makes no reference to any electronic information or documents. The law also covers commercial instruments, which are assumed to be in writing, duly signed and stamped.

Although electronic signatures are not yet legally recognized under the UAE Law of Evidence, the new local laws, Law No. 5 of 2001 and Law No. 2 of 2002 mentioned above have recognized electronic signatures and digital certificates and have outlined the criteria according to which an electronic signature or a digital certificate shall be considered valid. In addition, there have recently been initiatives in the country to remove security doubts from online transactions by making digital certificates commercially available in the UAE. Digital certificates facilitate secure transactions over the Internet allowing secure exchange of sensitive information online, which service providers claim will increase business in the UAE. Digital certificates encrypt the data that visitors exchange with a site to keep it confidential and free of tampering using Secure Socket Layer (SSL) technology. A subsidiary of Etisalat, the UAE government-owned Internet service provider, makes digital certificates commercially available to UAE nationals, UAE Internet users, UAE residents and their dependents for an annual fee of Dhs35 ( approximately US$9.50). Individuals and businesses in the UAE can now complete the necessary paperwork and be issued with a digital certificate, which they can use to transact online.

Installing a digital certificate on a server automatically communicates a site’s authenticity to a visitor’s web browser, confirming that the visitor is actually communicating with the business, and not with a fraudulent site stealing credit card numbers or personal information. A user certificate is like a digital identity card or passport, providing the ability to prove one’s identity over the Internet. In addition to vouching for the identity, the digital certificate will enable the encryption and digital signing of information thus ensuring the confidentiality and integrity of transactions.

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Validity Of Contracts
The UAE Civil Code provides that a contract is formed upon the acceptance of an offer by the offeree. It further provides that certain kinds of contracts must be in writing in order to be valid. So the question arises, are agreements entered into via the Internet considered valid under UAE Civil Code?

For the sale or purchase of a ship, the law specifically provides that the contract has to be in writing. It is similar in the case of the sale of land or even marriage. Accordingly, the question of having written and signed documents in such cases will not only be required as proof, but also for the validity of the contracts themselves.

A practical solution to the problem is for the UAE Judiciary to allow the validity of very clear and conclusive terms and conditions, which parties may include in their contracts in order to set out the means by which they agree to contract. These terms may include disclaimers which provide for choice of governing law, choice of jurisdiction should a dispute arise or quite simply that the parties agree to contract and carry out correspondence electronically. At present it is difficult to say whether clauses such as these would be valid in a UAE court. Article 19(1) of the UAE Civil Code allows contracting parties to agree to a choice of law, except if they are both resident in the UAE, in which case UAE Law will apply. In practice, the Courts may uphold Choice of Law provisions, even when agreed between the two UAE companies, but there are exceptions to this. However, the UAE and especially the Emirate of Dubai, is moving very quickly in step with modern developments in e-commerce, and may allow such contract terms in the near future.

However, as mentioned above, under the new local law No. 2 for 2002, a contract may be concluded electronically. The provisions of the said law provides for the conditions that should be met in order to consider an electronic message used in concluding the contract in question as being valid. The said law provides for the circumstances whereby an electronic message shall be regarded as being issued by the originator and further deals with situations where the originator requests the addressee, or agree with him, to acknowledge an e-message, as a pre-condition for being bound by its contents. In the event that all the conditions provided for in the said law are satisfied, then an electronic contract shall be considered valid, even though it may involve one or more electronic communications.

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Title to Sue
In e-commerce it may be difficult to prove documents or provide signatures or stamps. But there may also be difficulty in proving who has actually sent those documents and who has received them. In view of the fact that much documentation and a flow of documents and evidence are transmitted by e-mails, and e-mail numbers, which may not indicate the name, address or the title of the receiver - there may be a difficulty in identifying the person involved in the transaction, or in some cases, the person who has committed the fraud. Also, in most cases little information is provided about the persons who communicate through an electronic medium and the information is sometimes inaccurate or incomplete. There may be a difficulty in identifying the buyer/seller or the person who has committed the fraud. At the time of dispute, either a person will deny that he is a party, or the claimant must have proof to identify the persons who he has transacted with or communicated with. Therefore, guidelines and evidence has been established and incorporated into the new Law No.2 of 2002 to clarify this area of complexity and it is yet to be seen how such guidelines shall be implemented in practice.

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Jurisdiction
For the UAE Courts to have jurisdiction in a dispute in a civil action, either the defendant has to be domiciled in the UAE or the transaction has to be executed, completed or intended to be executed in the UAE. If this is fulfilled, then the UAE Courts will have jurisdiction. In other words if the contract is signed in Dubai or intended to be signed in Dubai or part of the contract was executed in Dubai or in the case that the defendant is domiciled in Dubai, the Dubai courts will have jurisdiction on the matter. Otherwise Dubai courts will not have jurisdiction in the subject matter proceedings.

In the case of a criminal action, the crime must be committed in the UAE or the crime must be completed in the UAE. It should be noted that a crime shall be deemed committed in the UAE if one of the acts constituting it has been committed thereon or if it’s results have been or were intended to be produced thereon. In such a case the UAE Prosecutor’s Office and the court will have jurisdiction over the crime, which will be considered as having been committed in the UAE.

The UAE courts and prosecutors will not have jurisdiction if either of the conditions for civil or criminal proceedings, are not satisfied. It will be considered either a transaction, which was transacted outside the UAE, or a crime that was committed outside the UAE and therefore the UAE courts will have no jurisdiction.

If the parties agree in a civil matter over jurisdiction or arbitration, the UAE law specifically provides that an agreement or arbitration clause, or a foreign jurisdiction clause, must be in writing and signed by both parties acknowledging such an agreement. Not only do the contracts need to be signed, but also evidence provided that the party has seen and recognized the jurisdiction clause and has acknowledged it in the contract.

However, general terms and conditions which refer to foreign jurisdiction or foreign arbitration are usually not enforceable in the UAE.

Other problems in this jurisdiction issue arise in e-commerce or electronic transactions as to whether a transaction is considered to have been executed in the UAE, or partly executed in the UAE. If the server or the communication lines are outside the UAE, is the transaction considered to be in the UAE? The answer to this is complex and not covered in the UAE law at present, and it is difficult to predict how the courts will look at this issue until a case comes to court. Further the party must consider whether connecting to an Internet or web site or a server outside the UAE is considered to be an international telephone call or a local call and whether the connection took place locally or internationally. The answer to this question will determine whether the transaction is established in the UAE or partly executed in the UAE. It is also an answer to whether the crime was actually committed in the UAE or resulted in the UAE. In the absence of any law or indication it is difficult to predict how the courts will look at this to determine their jurisdiction over a crime committed over the Internet or transactions which were completed through the Internet.

While someone may think that the UAE may take quite a wide attitude towards crimes to try and prosecute all crimes committed through the Internet and that affect the UAE, or that are intended to affect UAE consumers, this is rather difficult as the UAE resources may not be sufficient to prosecute all persons who may be connected or using the Internet. Even if the UAE prosecutor decides to prosecute someone for using the Internet or connecting to it locally, or those who are domiciled in the UAE, he will have difficulty prosecuting or chasing those who are operating servers or who provide services outside the UAE, which, according to the UAE law, may be criminal or fraudulent.

The UAE police force has been making great efforts to increase their awareness of information technology crimes, and especially how to trace and collect forensic evidence on such crimes. In Dubai, General Sheikh Mohammed bin Rashid Al Maktoum, Dubai Crown Prince and the UAE Defense Minister had ordered the establishment of three to five institutes for the training of Dubai Police personnel within the next five years. Both the Dubai and the Abu Dhabi Police Departments have prepared the first group of police officers specialized in combating Information Technology and Internet-related crimes in the face of the rapid technological developments worldwide.

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Agency Law
The UAE Commercial Agency Law provides that any import of goods into the UAE cannot take place without the consent of the agent. Therefore, the import of any goods into the UAE cannot be done without the consent of the registered commercial agent. If the commercial agent objects, he can either stop the goods at the customs or seek an order for the person who has imported the goods to re-export them. He can also claim damages from the person who has imported the goods. Even the Principal, who is engaged in an registered commercial agency, can not import or bypass the registered agent.

Based on the above it is still true that a party cannot buy goods over the Internet in the UAE, and import the goods to the UAE which are the subject of a registered commercial agency. Otherwise such imports will be considered a violation of the UAE Commercial Agency Law. The same applies in the event that such imports have been imported for personal use, as opposed to commercial use.

Hence, an amendment to the UAE Agency Law is a must. Unless an arrangement is made to amend the law, or some arrangement made between the principals and the agents to allow transactions to be executed over the Internet and to be imported to the UAE without objection by the registered commercial agents, the Commercial Agency Law will continue to cause problems for e-commerce in the UAE. In this context and others, the Customs Laws also come into play and must be looked at and amended where necessary.

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