Istishkal Appeals

Istishkal is a mechanism that is used to enforce one’s rights to stop the enforcement of an award. This article provides an overview of how Istishkals work.

The Law

Article 363 of the Code of Civil and Commercial Procedures outlines two types of Istishkal:

1. Istishkal for urgent relief:
   The first type of Istishkal provides a party with urgent relief. This article gives a bailiff  the option to either suspend the execution of an award or continue with the execution of an award. If this type of Istishkal application is made, the parties must appear before the enforcement court. The notice period before which a party must appear at the hearing may be very short, in some cases the parties may be given only 1 hour to appear before a judge, and if the court is closed the parties may even appear before a judge at the judge’s home, if necessary.
2. Istishkal related to the ownership of property or a substantive dispute in the enforcement of an award:The second type of Istishkal application relates to the suspension of  the enforcement of an award after the award has been submitted to an execution court for enforcement. The enforcement judge decides on the Istishkal application in a hearing after notice is given to the parties. This second type of Istishkal application has been increasingly used to stall the enforcement of awards in Oman.

Procedures

Submission of an Istishkal application:

1. An Istishkal application is directly submitted to the enforcement judge or to the bailiff in the case of an urgent Istishkal application.
2. If the Istishkal is of the first type described above, the litigants are assigned to appear before the enforcement judge urgently, even within an hour and at the judge’s residence; the bailiff in this case cannot complete the enforcement procedures before the judge issues his judgment.
3. If the Istishkal is of the second type described above, the parties are notified of the Istishkal application and a judge holds a hearing to determine whether to grant the Istishkal.
4. In both cases, the enforcement judge shall issue a judgment on the Istishkal application. The enforcement judge may make the applicant pay a fine if his Istishkal application is not successful. In cases where a party files a vexation Istishkal application to stop the enforcement, the other party may claim compensation.
5. It takes approximately one month from the time of filing an Istishkal application to a court issuing a decision on an Istishkal application.
6. Filing an Istishkal application will stall the enforcement.

Appeal of Istishkal decision:

1. If the Istishkal is of the first type, the appeal shall be made to the Primary Court. The appeal panel at the primary court will consist of three judges.
2. If the Istishkal is of the second type, when the value of the dispute is between RO 1,000 and RO 3,000 the appeal shall be made to the Primary Court and heard by a bench of three judges. If the value of the dispute exceeds RO 3,000, the appeal shall determined by the Court of Appeal.
3. An appeal of an Istishkal decision shall be filed no more than 7 days from the date of the judgment.
4. If the judgment is issued by a Primary Court consisting of three judges, it may not be appealed before the Supreme Court, and if it is issued by the Court of Appeal, it may be appealed before the Supreme Court.
5. It takes approximately one month from the time of filing an appeal to a court issuing the Judgment.
6. Filing the appeal will stall the enforcement.

Legal Precedents before the Supreme Court

The Supreme Court has issued judicial precedents which establish the following in relation to Istishkals:

1. The purpose of Istishkal is a timely or precautionary measure that does not affect the disputed right, which may be presented by the enforcement parties or by third parties of interest.
2. The Supreme Court is not allowed to prejudice the right to settle Istishkal.
3. Istishkal judgments issued by the Courts of Appeal may be appealed at the  Supreme Court.

Read more about disputes in Oman and the enforcement of Omani court judgments:

Omani Arbitration Law: Time for a Change? (July 2018)

Enforcement of Omani Court Judgments and Arbitration Awards in Commercial Disputes: Process and Procedure (November 2015)