Applying Comparative Law Principles by The Supreme Court

17/07/2019 Justice, safety and the law | Counsel/ Wael Abosedera

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            Usually law scholars and those working in the legal field, study and overview comparative law relating to subjects of their interest or that which intervene in their field of work, in order to get the Knowledge and assimilate of different ideas and principles implemented in other countries and benefit from their experiences. Comparative law is an important and fundamental source of law, especially in Preparation of legal research and obtaining scientific degrees and teaching as well, even it has become an indispensable source in the process of legislation.


However, that matter is different in the exercise of judicial profession, since that the general rule is that the national laws prevail and courts  should only apply the provisions of national laws on any issues or cases before them, pursuant to the fundamental rule of "spatial application of law", but the UAE legislator has made an exception to this general rule which may not have an analogy in the legislations of all Arab countries, as article (75) of the Supreme Federal Court law No. 10 of 1973 allows the Supreme Court exclusively, to invoke and apply the principles of comparative law to the case before it. However, its implementation of this authority has two restrictions, first the absence of national legislation, whether federal or local that governs the issue before, and the second, that the principles of comparative law do not violate with the provisions of Islamic law (SHARIAH) or public order.

It can be said that the UAE legislator has done well to put this distinctive and unique article, it has been proved by overviewing the Supreme Court's applications  for this article, that it was truly helpful to the supreme court in completing the shortage and filling the vacancy in national legislation, and was very influential in dealing with many of the problems presented to it, even the UAE legislator himself has benefited from the Supreme Court's application of this article, as the Supreme Court's showed the legislative gaps that should be filled and where is the position of the legislative vacancy, which is what  prompted the legislator to intervene and introduce some articles in the national legislative structure to fill that void. Perhaps the most prominent of these interventions is issuing Article 84 ‘’ by the federal law No.10 / 2014, to set the date of appeal on administrative decisions within 60 days since publication or notification or the knowledge of it, in accordance with the well stablished principles of comparative administrative law, contrary to what had been applied for a long time of the applicability of prescription rules which is 15 years to challenge administrative decisions

 

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