In the Civil & Commercial Procedures Law issued by Royal Decree 29/2002, creditors are granted a legal remedy known as “provisional attachment” which serves to protect the creditor’s rights against his debtor.
As per the prescribed methodology, a creditor may request the Primary Court to issue an order of provisional attachment over the properties of his debtor.
The Civil & Commercial Procedures Law has specified the cases in which a creditor may exercise such a right against his debtor. These cases are (a) if the creditor is a bearer of a bill of exchange or promissory note and the debtor is a merchant and the said instrument obligates him to adhere to it in accordance with the Commercial Law, and (b) in any case in which the creditor fears he may lose his rights, provided that the creditor must prove to the Primary Court that such fear is justified.
The Civil & Commercial Procedures Law specifies certain additional conditions which must be met before a provisional attachment order can be granted. First, the creditor’s right must be definite, meaning the debt upon which the creditor is relying on (x) is in existence and (y) is not based on a probability or subject to a condition. (However, the debt can be subject of a dispute.) Second, the creditor’s right must be matured, meaning that the debt is due and payable at the time of filing of the request for the provisional attachment.
In addition, if the creditor does not possess an “executive deed” (such as a final non-appealable Court judgment), or if the debt sum is not specific (meaning the specific numerical amount of the indebtedness sum is not known), then the Judge issuing the provisional attachment order should provide a temporary estimation of the debt.
Once the provisional attachment order has been signed by the Judge, the Court must notify the debtor within the following ten days; otherwise, the provisional attachment order shall be considered null and void.
Furthermore, the creditor is required, within the above ten days, to file a court case, requesting the “validation” of the provisional attachment order.
Friday, May 4, 2012
Preliminary Attachment
Thursday, December 15, 2011
Career Corner: How to Become an Omani Lawyer
With the Sultanate’s rapid economic development proceeding apace, Oman provides an abundance of opportunities for law firms and lawyers. Recognizing this trend, the Omani government has taken steps to increase the ability of young Omanis to participate in the legal field, by providing scholarships for the study of law domestically and abroad, and by tilting the legal system in ways to raise Omani participation in the legal field. For example, the Ministry of Justice took the decision in 2010 to reserve to Omanis the exclusive capacity to appear and present cases before the Primary Court.
However, in order to ensure that new Omani lawyers will have the requisite experience and expertise to carry out their duties, the Omani government has put in place certain restrictions on entry into the legal profession and qualification as an Omani lawyer. This article provides an overview of the process for becoming an Omani lawyer.
The registration process
The starting point for an Omani aspiring to become a lawyer is to obtain a university degree. Once they have their degree in hand, Omanis wishing to qualify as a lawyer in the Sultanate must go through several steps, the first of which is registration as a trainee with the Ministry of Justice. The applicant will need to present evidence that he or she meets the necessary criteria for registration, such as evidence of a University degree in law or a related discipline, as well as evidence of good conduct
from the Royal Omani Police.
Becoming a trainee
Once registered, the next step is to work in a local law firm as a trainee. A university graduate with an undergraduate degree is required to work a minimum of two years as a trainee, while those who hold a masters degree must work at least one year as a trainee. During this training period, the trainee may not open a law firm in his own name.
It is important to note that experience in an international law firm will not suffice to fulfill the Omani government’s training period requirement. As a practical matter, Omanis who work in international firms do essentially the same type of work, and often get exposed to a much broader range of experiences, than their counterparts at local firms. However, the current position of the Omani government is that only work performed at a local firm counts toward fulfilling the requisite two years of training to become an Omani-qualified lawyer.
Professional obligations and restrictions for qualified Omani lawyers
After completing the training period and qualifying as an Omani lawyer, every Omani lawyer must continue to heed the rules set out in the Advocates Law, promulgated by Royal Decree 108/96 (as amended). In particular, Article 6 of the Advocates Law requires that an Omani lawyer may not work as a minister or other government official, and may not start a business of his own or work for a company, bank or any other person or entity while working in the legal profession (subject to certain exceptions, for example that lawyers may serve in the Majlis al Shura or on the boards of directors of joint stock companies).
Thursday, April 21, 2011
Procedures of the Omani Courts
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People often ask me about the various stages of an Omani court case.
They usually begin with a statement of claim filed at the Primary Court.
The Claimant grants a power of attorney in favour of their lawyer so that the latter can file the case.
The power of attorney needs to be signed in front of a Ministry of Justice notary.
The Court staff usually want to see - on the statement of claim - the exact physical location details of the defendant's premises.
It therefore makes sense to always obtain the full physical location details of the parties with whom you contract, including your employees, right at the start of a relationship.
The court serves the statement of claim on the defendant and also sets a date for the first hearing.
It is quite common for the defendant's lawyer to attend the first hearing and request an adjournment. The Courts normally grant such an adjournment, especially if the defendant hasn't at that point provided a power of attorney to its lawyer.
When, later, the defendant's defence is filed, it is important that the document should include any procedural defences. For instance, the defendant may allege that the claim is time-barred or that the Courts lack jurisdiction owing to an arbitration clause in the contract. These procedural arguments must always be raised by the defendant in the first court submission lodged on its behalf (ie, in the Defence).
The Primary Court usually orders the Claimant to file a written reply in response to the defendant's Defence.
Soon after that, the Primary Court takes a view on whether or not to appoint an expert to assess the case.
The expert is normally working in the private sector and receives a mission letter from the court telling him the scope of work to be performed.
The expert will normally then hold separate meetings with the claimant and defendant, who can also bring their lawyers to such meetings.
Some experts ask many questions and others prefer to hear a verbal explanation of the litigant party's position.
My view is that lawyers should always be involved in helping their clients prepare for meetings with experts. I also firmly believe that the lawyers should be present at all times when discussions are being held by the expert with each litigant party. This strategy best protects the client and also ensures that they have meaningful back-up when the expert talks about any legal issues.
Also, the lawyer should be working hard on the client's behalf and should help in collating all necessary documents so that the entire scenario is explained in full and accurately to the expert.
The lawyer should also be ensuring that the client will be able to answer any and all questions which the expert may pose.
The lawyer's role, in part, is therefore to help the client explain their position eloquently to the expert, with proper documentary evidence which leaves the expert feeling that all his concerns and questions have been answered.
It is all too easy for an expert to reject an argument if the required paperwork is not provided.
Ultimately, the expert files his report at court, with the claimant and defendant receiving copies.
The Primary Court normally affords each litigant party the right to file a submission, commenting on the expert's report.
The Primary Court, having seen those submissions, may order the expert to provide an additional report, which should address all the concerns about the first report which have been raised.
Sometimes, the Primary Court agrees to appoint another expert if one party is unhappy with the first expert.
But usually the Primary Court reaches its own judgment decision after one expert has filed two reports.
It is not a fait accompli that the Court will agree with the expert whom they have appointed.
It is the lawyer's job to continue to file robust, convincing and persuasive submissions even if the expert's findings are in favour of the other party. This is especially true as the Court may agree that the expert is wrong.
Once a Primary Court judgment is pronounced orally at a hearing, each party has 30 days in which to file an appeal.
During those 30 days, the lawyer can first peruse the court file to see the draft Primary Court judgment and, after that, the written Primary Court judgment will become available.
Any appeal filed with the Appeal Court should document any and all alleged defects in the Primary Court's analysis and the expert's reasoning.
The Appeal Court has the right to appoint one or more additional experts to investigate the issues in dispute.
Once the Appeal Court orally pronounces its judgment at a hearing, each party has 40 days to file an appeal to Oman's third and final tier of justice, the Supreme Court.
It is very rare to have any hearings in the Supreme Court. This is partly because the Supreme Court looks at matters of law only, and is not designed to look at evidential issues.
The Supreme Court, once it has its judgment ready, normally calls both parties to court to hear their judgment. A Supreme Court judgment cannot be appealed.
Sometimes the Supreme Court refers the case back to a different panel of the Appeal Court. In such scenarios, the Supreme Court instructs the Appeal Court to look at the matter again in the context of the Supreme Court's instructions.
So, it is possible for a case to be the subject of two Supreme Court judgments - but the Supreme Court will only once refer the case backwards to the Appeal Court.
This article has hopefully given you a brief but helpful "helicopter view" of the Omani court system.
At times, litigation can be frenetic and it is always best to obtain legal advice long before a dispute arises. In this way, many court cases could be avoided.
Tuesday, March 15, 2011
Focus on Litigation: The Enforceability of Omani Court Judgments
The enforceability of Omani court judgments is an issue which can cause concerns.
A Primary Court judgment is not enforceable, provided an appeal is filed with the Appeal Court no more than 30 days after the oral pronouncement by the Primary Court of its judgment.
However, an Appeal Court judgment is, prima facie, enforceable – even though an Appeal Court judgment can be appealed to Oman’s third and final tier of justice, the Supreme Court. As a result, the loser of an Appeal Court case is best advised to file an appeal to the Supreme Court, and also file an application with the Supreme Court, requesting the suspension of any enforcement of the Appeal Court judgment.
These scenarios are intricate and somewhat complex, so we recommend that detailed legal advice is sought as early as possible in order that rights are best protected.
Tuesday, July 20, 2010
Fast-Tracking of Omani Court Proceedings
In a country as well managed as Oman, it should come as no surprise to see court cases resolved quickly. But even we have been surprised at how swiftly some Omani court proceedings are being resolved these days as a result of strengthened efforts by the court system to fast-track proceedings. For example, in a recent Primary Court labour case, the Judge allowed two submissions only: a statement of claim by the Claimant, which was filed at the first hearing; and our written response on behalf of the Defendant employer, filed at the second hearing, which took place just 14 days after the first hearing. The Court then pronounced its judgment at the third hearing, which took place 20 days after the second hearing. From start to finish, the entire Primary Court proceeding took only 34 days. Traditionally, labour cases may have taken up to 12 months in the Primary Court before receiving a judgment. Happily, our client won and the Claimant's case was rejected. Our recent experience indicates that this case was not an exception, but rather part of a growing trend of Omani courts taking a fast-track approach to many proceedings. This trend has important implications: lawyers must be increasingly swift and responsive in their handling of disputes, and their business clients must also be prepared to take part in a fast-moving process. Legal strategies will need to become more forward-thinking and preemptive. For example, as many readers know, all exhibits to an Omani court filing must be presented to the Omani Court in Arabic (and must also bear the stamp of a certified translator). In defending the case cited above, one key to our success was having translated many key emails into Arabic before the proceedings began – so that they were immediately available when we needed them for exhibits. It will be interesting to monitor the fast-tracking in the Omani court system as this trend continues. Of particular note will be the extent to which this expedited approach extends upward through the ranks of the court system. While fast-tracking is clearly on the rise in the Primary Courts, we shall have to watch closely to see whether the same will occur in the Appeals Court, and finally in the Supreme Court.
