Monday, August 17, 2015

The Changing Approach of the Omani Judiciary

It is common knowledge that the Omani civil system, much like the rest of the GCC member states, is heavily based on the Egyptian civil system.  This is evident when comparing the principles underpinning Omani law contracts and the Omani Civil Transactions Law with the Egyptian civil code.  Similarly, Omani jurisprudence has traditionally observed and followed the Egyptian system, notably by the outcome of Omani Supreme Court judgments.  Over the years, however, there has been a shift in Oman in the way judges conduct their respective hearings and the way in which cases are adjudicated.

Rationale behind the shift of the Omani Judiciary 

When comparing between traditional Supreme Court judgments and present-day Primary Court and Appeal court judgments, a noticeable difference can be seen as regards style and reasoning.  Recent judgments from the Primary Courts have seen a more fact- and statutory-driven analysis of legal issues.  A reason for the shift could be because of the lack of legal framework governing certain legal matters; Omani Courts in the past had to use its judicial prerogative and discretion to come up with mechanisms to solve legal issues.  This is clear in disputes pertaining to awards of contractual damages where Supreme Court principles were the sole guide on contract law and contractual damages.  However, after the issuance of the Omani Civil Code in 2013, courts have relied on the statutory instruments in adjudicating each case

Another reason for the shift is perhaps due to a rapid increase in the number of young Omani judges in the Primary Courts who have brought with them new ideas and judging processes while maintaining the underlying essence of Omani judicial culture.

What changes have occurred?

Court-appointed experts

In the past, Omani Courts would generally rely on experts only in complex commercial and civil cases.  Accordingly, it was rare for judges to seek the appointment of experts in labour cases, for example.  Judges today are willing to seek the assistance of relevant accountant experts (for instance, to verify quantum).

In a labour case handled by our firm in 2014, the Claimant was an employee who was claiming annual statutory- and performance-based increments from our client, a major company in the utilities industry.  The Primary Court consisting of a single Omani judge appointed an accounting expert to calculate the increments to which the Claimant was allegedly entitled.  In a similar labour case involving unfair dismissal, judges have allowed witnesses (both female and male) from the defendant company to testify in order to prove that dismissal was due to an Article 40(9) Omani Labour Law violation.  The Primary Court in the aforementioned scenarios applied the expert’s report and witness statements (both male and female) which the Primary Court considered as sufficient evidence on which to base its judgment.  Giving more strength to this position is the fact the Appeal Court upheld the Primary Court’s decision, validating the Primary Court’s use of such evidence, i.e., expert reports and witness testimony.

Use of witnesses

In addition, it was extremely rare in commercial and high-value civil cases for courts to allow for witness testimonies.  Today court panels are prepared to make preliminary orders requiring witness testimony from the parties and also rely on such testimonies in their reasoning.

Technology in court hearings

The courts are also starting to make use of technology in court hearings relying on Power Point presentations, video footage and photographic imagery, which until recently had not been the case.
The aforementioned shows that the Omani judicial system has evolved noticeably from the traditional forms of adjudicating.  Whilst judicial processes and procedures continue to develop, they maintain the regulatory requirements as set out in the Omani procedural laws.