Sunday, December 15, 2019
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DIFC raises the bar on commercial legal rights

Dubai: It is unlikely that a day will pass in anybody’s life these days without a few spam mails landing in the inbox. Most of these mails would naturally end up in the trash basket, although some over-excited recipients might act otherwise and land themselves in trouble, sometimes with financial loss or compromise of personal data.

But these nuisance mails do not take away the importance of emails for personal communication, business dealing or interaction with official bodies or government agencies. In terms of its legal status, email IDs are now being recognised as valid authentication of personal details.

The latest revision of rules applicable to Dubai International Financial Centre (DIFC) entities, which has just been published after a two-month review, stipulates that there is no need for a person to provide a physical address if an email ID is given. This upgrades the status of email identities to a new dimension, irrespective of how fancifully ‘cool’ these IDs may be.

This is obviously because emails can only be exchanged online and there is no privacy whatsoever in a wired world. All the so-called sophisticated safeguards, including encryption, are no match for the ingenuity of hackers, who have once again proved their point with the latest Heartbleed attacks.

DIFC is one of the first institutions in the region to adopt the latest international best practices with respect to electronic documents, including emails, word files or spreadsheets. This has been done in keeping with the latest International Bar Association rules.

There are more interesting and sensitive additions to the provisions of the revised DIFC rules. The new rules follow the practice as set out by the International Bar Association of empowering the parties to a dispute to ask for the reproduction of all documents, which include electronic documents, emails and other electronic communications, word processed documents and databases.

In addition to documents that are readily accessible from computer systems and other electronic devices and media, the definition of the documents is exhaustive so as to cover those stored on servers and back-up systems and electronic documents that have been ‘deleted’. It also extends to additional information stored and associated with electronic documents known as metadata.

The new rules allow the parties to a litigation to ask for a search of the other party’s computers and storage devices to retrieve the desired information. The party so requested for production of the document is obliged to explain the inability of retrieving such information both to the demanding party as well as the court.

Under the rules a person who is not a party to the case can also ask for production of the document in the interest of transparency and as per international best practices. There is, however, a provision for a person to apply to the court for permission to withhold a document on the grounds that the production of such document would be against public interest.

Another interesting provision relates to the use of alternative dispute resolution such as mediation, conciliation and other processes outside the court. The judge may even adjourn the case for a specified period of time to encourage and enable the parties to use alternative dispute resolution.

The new rules have also introduced important changes to the policy relating to pro bono litigants, which promises to deal with cases justly and ensure an equal footing for all parties. The introduction of the DIFC courts’ pro bono programme was meant to facilitate representation of individuals who are in need but cannot afford to retain lawyers.

With these changes, the DIFC authorities have sought to be at the forefront of commercial legal best practice by benchmarking it against leading jurisdictions.

— The writer is a journalist based in Dubai.