In a recent ruling (see Case Nos 78 and 96/2022, ruling of the Dubai Court of Cassation), the Dubai Court of Cassation has put an end to speculation about whether or not oath-taking is mandatory in arbitration conducted under the Law No. 6 of 2018, the UAE Federal Arbitration Law (FAL).
Before adoption of the FAL, which entered into force on 6 June 2018, witness evidence in UAE-seated arbitrations, whether fact or expert, had to be tendered under oath pursuant to article 211 of the UAE Arbitration Chapter. Article 211 contained an express oath-taking requirement, providing as follows: “the arbitrators must administer the oath to the witnesses and any person who gives false testimony before the arbitrators shall be treated as being guilty of the offence of perjury”. The express oath-taking requirement under article 211 was not carried over into the text of the FAL and was instead lost with the repeal of the UAE Arbitration Chapter, following adoption of the FAL. This gave rise to speculation that the UAE legislator had intentionally removed the oath-taking requirement from the new law in order to relieve witnesses of the obligation to tender fact and expert witness evidence under oath in UAE-seated arbitrations. That said, irrespective of the loss of express wording to that effect from the text of the FAL, some authoritative commentators continued to advocate the obligation to testify under oath in UAE arbitrations, mainly for the following two reasons:
- Pursuant to article 33(7) of the FAL, “unless otherwise agreed by the Parties, the witnesses, including experts, shall be heard in accordance with the laws in force in the State”. The “laws in force in the State” being the law of the UAE, the obligation to tender witness evidence under UAE law, so the argument goes, will ultimately require compliance with article 41(2) of the UAE Law of Evidence (albeit that this provision could be contracted out of, being subject to party autonomy (“unless otherwise agreed by the Parties”)). More specifically, article 41 requires witness evidence under UAE law to be tendered under oath. Article 43(1) imposes a penalty for a witness’ refusal to do so (“if the witness appears and refuses to take the oath […], he shall be condemned to the penalty prescribed in the penal law”). Article 41(2) provides an oath-taking formula to be administered by the competent court or tribunal (“the witness will take the following oath: ‘I swear by the Mighty God to say all the truth and nothing but the truth’. The oath will, upon his request, be according to his religious creed”).
- Given the consistent practice of mandatory oath-taking under the UAE Arbitration Chapter and the failure to take evidence on oath qualifying as a ground for annulment of a prospective award, the oath-taking may be considered as having been elevated to a status of procedural public policy under UAE law; hence the removal of the express language contained in article 211 from the FAL.
Importantly, judging by relevant case law precedent (see, for example, Case No 924/Judicial Year 3, ruling of the Federal Court of Cassation of 17 December 2009; and Case No 364/2019, ruling of the Dubai Court of Cassation of 19 May 2019), the legal effect of a failure to tender evidence on oath was limited to parts of the award that relied upon the unworn evidence, resulting in partial annulment of the award only.
The most recent Dubai Court of Cassation ruling in the case under review settles the question of whether the oath-taking requirement of old survives under the FAL in the affirmative. In this case, the Dubai courts were called upon to consider the enforcement of an award rendered under the 2007 DIAC Rules of Arbitration that relied upon unworn witness evidence. The Dubai Court of Cassation engaged in a systematic and diligent analysis of the current position on oath-taking under UAE law. Its reasoning was based on a combined reading of article 29(7) of the DIAC Rules, which states that the “the tribunal shall require the witness to swear an oath before the tribunal before giving evidence in accordance with any mandatory provisions of the applicable procedural law”, and articles 33(7) and 53(1)(g) of the FAL, which allow for the setting aside of an award on the basis of procedural irregularities that occurred in the arbitral procedure. The Court of Cassation stated that:
“The DIAC Rules necessitate that the witnesses shall give their oath before the arbitrator before giving their statements and it leaves the regulation of oath administration to […] the [UAE] evidence law which is considered to be the law which determines the proof of evidence and its provisions, including proving by the statement of the witnesses.”
It then made reference to the relevant articles of the UAE Law of Evidence, including in particular article 41(2) prescribing the oath formula (“I swear by Almighty God to tell the truth and nothing but the truth”), article 43, which imposes a penalty on a witness that refuses to testify under oath without a lawful excuse, and article 46, which requires a competent court to refer a witness providing false testimony for public prosecution (“if the court notices, during the examination of the case or when deciding the merits thereof, that the witness gave false testimony, it shall draw a report and send him to the public prosecution to take the criminal measures that are necessary”).
The Dubai Court of Cassation further reasoned as follows:
And that the meaning in articles number 41, 43 and 46 of the UAE Evidence Law […] stipulate that proving by the statement of witnesses necessitates the witness to give his oath under his religion and giving oath shall be before giving his statement and that the witness shall be punished if he refrained [from] giving oath or replying to the questions asked to him by the judge or if he was proved to be misleading the court, the meaning is that breaching the provision of arbitration due to the procedure of giving oath upon hearing their statements shall result into the nullification of the arbitration procedures which is a nullification that shall affect the arbitration award where it has been based on the statements of the witnesses who did not give their oaths before giving their statements.
But the minute of hearing the statements of the witnesses which has been prepared later did not indicate that the witnesses has given their oath before giving their statements and the grounds of the judgment did not include that the arbitrator has taken this procedure and did not take the oath of the witnesses before giving their statements and therefore the procedures of the arbitration shall be null and shall revoke the arbitration award which depended on the statements of the witnesses and the judgment indicated the importance of their statements and that their statements were important in determining the facts of the case which were the grounds of the judgment, and whereas the appealed judgment has ignored this consideration and ruled to refuse the case of the nullification of the arbitration award, therefore it breached the provisions of law which necessitates revoking it […].
In light of the foregoing, although the Dubai Court of Cassation did not expressly qualify the oath-taking requirement as a matter of public policy under UAE law, there can be no doubt that oath-taking remains mandatory within the meaning of article 33(7) of the FAL. In other words, the oath-taking requirement survives under the FAL in the same terms as it existed under article 211 of the former UAE Arbitration Chapter. Furthermore, the requirement cannot be contracted out of by the parties, or at least cannot be contacted out of merely by contracting into the DIAC Rules.
In our view, the wording of article 29(7) of the DIAC Rules, properly construed, conditions the requirement for oath-taking by reference to the applicable procedural law. Where UAE law is the applicable law, article 33(7) of the FAL appears to leave it open to the parties to to hear witness (both fact and expert) in a way different from what would otherwise be required under UAE law. The parties in the instant reference have not used express language to contract out of the provisions of the UAE Law of Evidence, hence relevant provisions of that law continue to apply in relevant part to the hearing of fact and expert witnesses. However, because the oath-taking requirement qualify as mandatory under the UAE Law of Evidence, parties cannot, even under the new regime, contract out of it. Regrettably, the instant ruling appears to leave this point unclear, since it does not use unambiguous language to this effect, no mention being made of the “mandatory” nature of the oath-taking requirement under the UAE Law of Evidence (despite the court’s affirmative descriptive language to the same effect), or the oath-taking requirement qualifying as a matter of procedural public policy under UAE law).
Out of an abundance of caution, parties and arbitrators should, therefore, beware to administer the oath to both fact and expert witnesses in UAE-seated arbitrations, irrespective of the applicable set of institutional rules. In addition, arbitrators are well-advised to record in the text of the award that the oath has been administered to all testifying witnesses, whether fact or expert, prior to their oral testimony (if any). It is to be hoped that a future ruling of the Dubai Court of Cassation will provide long-needed clarity on whether or not the oath-taking requirement qualifies as UAE procedural public policy, which on the basis of a combined reading of article 41 through to 43 of the UAE Law of Evidence and in particular the penalisation of a failure to take oath under article 43, it might well do!