Dubai Court of Cassation (General Assembly), Resolution No. 9 of 2024, 15 May 2024
Under Article 319 of the Civil Procedure Code (outside the public-funds recovery regime), an execution judge may order the detention of a debtor able to pay who refuses to satisfy an executory instrument. Detention is not allowed unless the creditor proves the debtor's solvency, the smuggling or concealment of assets, or ownership of attachable assets sufficient for the debt. No such proof is needed where the debtor stopped paying instalments set by the execution judge, is a guarantor of payment, the instrument is an agreement, settlement record, notarised acknowledgment or reverse execution, income or solvency is established, or the debtor refuses to produce documents requested by the judge. Otherwise, no arrest order may issue without first ascertaining solvency, by summary inquiry or other means.
At the request of the President of the Court of Cassation, and in connection with its Resolution No. 4 of 2023, the General Assembly set controls for orders to arrest and detain debtors under Article 319 of the Civil Procedure Code (Federal Decree-Law No. 42 of 2022).
The Assembly noted that, outside the cases governed by Dubai Law No. 37 of 2009 on procedures for recovering public funds and funds obtained unlawfully, Article 319 allows the execution judge, on the creditor's application and subject to the limits in Article 321, to order the detention of a debtor who is able to pay and refuses to comply with an executory instrument. The debtor's ability to pay must therefore be established. Except in the two situations in Article 319(2), where a plea of inability is not accepted, a debtor who claims he cannot pay must produce documents showing it. If the judge finds them insufficient to decide whether the debtor is solvent, he must, before ordering detention, hold a summary inquiry in which the debtor proves his documents or the creditor proves that the debtor is not insolvent. Where the debtor is a private legal person, detention is ordered against its legal representative or another person if the refusal is personally attributable to them (Article 322). These controls must be observed before an order is made to arrest and bring the debtor.
The Assembly resolved that a debtor may not be detained unless the creditor proves his solvency, his smuggling or concealment of assets, or his ownership of attachable assets sufficient for the debt. Detention is possible without such proof where the debtor stopped paying instalments set by the execution judge, is a payment guarantor, the executory instrument stems from an agreement, settlement record, notarised acknowledgment or reverse execution, or his income or solvency is established; or where he refuses to produce documents the judge requests. In other cases no arrest order may be made until the debtor's solvency has been examined by summary inquiry or other means chosen by the judge.
Detention is one of the strongest coercive tools in Dubai enforcement. The resolution makes clear that creditors generally need evidence of the debtor's means, while debts based on settlements, notarised acknowledgments, court instalments or guarantees allow detention without that proof. Managers of debtor companies can be detained where the refusal to pay is attributable to them personally.
| Articles 319, 321 and 322 of Federal Decree-Law No. 42 of 2022 (Civil Procedure Code) — text of articles 319, 321, 322 |
| Dubai Law No. 37 of 2009 on procedures for recovering public funds and funds obtained unlawfully |
“لا يجوز حبس المدين ما لم يثبت الدائن يساره أو تحقق قيامه بتهريب أمواله أو إخفائها”Short quotation from the judgment as published by the court. The full judgment is on the court’s official service.
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