Civil Law and UAE: Judicial Discretion in Civil Cases

1. Introduction

Judicial discretion means the authority of a judge to choose between legally permissible outcomes after considering the facts, evidence, applicable legislation, contractual terms and circumstances of the particular case.

In UAE civil law, judicial discretion does not mean that a judge may decide a case according to personal preference. It operates within the boundaries of legislation, evidence, procedural fairness, legal reasoning and the limits of the court's jurisdiction.

This distinction is particularly important under the UAE's new Federal Decree-Law No. 25 of 2025 on the Civil Transactions Law, effective from 1 June 2026. The UAE Government has expressly stated that the new law expands the scope of judicial reasoning, including allowing a judge, where no applicable legislative provision exists, to refer to principles of Islamic Sharia and select the solution that best achieves justice and public interest in the circumstances of the case. (UAE Legislation)

2. Meaning of Judicial Discretion

Judicial discretion can be understood as:

The legally controlled freedom of a court to evaluate facts, evidence, interpretation, causation, damages and remedies where the law leaves an area requiring judicial assessment.

For example, a statute may establish that compensation is available for damage but leave questions such as:

whether the claimant actually suffered damage;

whether the defendant caused it;

the extent of the loss;

whether future loss is sufficiently established;

whether an expert's calculation should be accepted.

Those questions can require judicial evaluation.

Therefore:

Law provides the framework → Evidence establishes facts → Judge evaluates → Judgment applies law to facts.

3. Judicial Discretion Is Not Judicial Freedom

This distinction is fundamental.

Judicial discretion means:

evaluating evidence;

interpreting ambiguous contractual provisions;

determining causation;

assessing damages;

deciding whether expert evidence is sufficient;

selecting an appropriate remedy where legislation permits alternatives;

applying general legal principles to particular facts.

Judicial discretion does NOT normally mean:

ignoring legislation;

creating a new legal rule contrary to statute;

deciding according to personal preference;

disregarding admissible evidence without reason;

refusing to address material arguments;

rewriting a contract;

acting outside jurisdiction.

Thus:

Discretion operates inside the law, not above the law.

4. Current UAE Legal Framework

A. Civil Transactions Law

The current general civil-law framework is Federal Decree-Law No. 25 of 2025, effective 1 June 2026.

The new legislation expressly recognizes a broader role for judicial reasoning where legislation does not provide an applicable rule. (UAE Legislation)

This is particularly significant because it means the modern UAE civil-law system combines:

Codification + judicial interpretation + controlled judicial reasoning.

B. Civil Procedure Code

Federal Decree-Law No. 42 of 2022 governs civil procedure.

The UAE judicial structure includes:

Court of First Instance;

Court of Appeal;

Court of Cassation/Federal Supreme Court, depending upon the judicial system involved.

The UAE Government explains that cassation primarily examines questions of law, including violation, erroneous application or interpretation of law. (UAE)

Therefore, the appellate structure itself places legal boundaries around judicial discretion.

C. Evidence Law

Federal Decree-Law No. 35 of 2022 on Evidence in Civil and Commercial Transactions gives courts important powers concerning evidence and expert evidence.

For example, the Evidence Law permits courts to appoint experts and allows the court to determine whether and how expert evidence should be used. (UAE Legislation)

This demonstrates an important aspect of discretion:

The expert assists the judge; the expert does not replace the judge.

5. Main Areas of Judicial Discretion in UAE Civil Cases

Judicial discretion commonly arises in:

contractual interpretation;

assessment of evidence;

expert reports;

determination of causation;

assessment of damages;

compensation for future loss;

evaluation of contractual breach;

good-faith analysis;

abuse of rights;

interpretation of incomplete contractual provisions;

procedural case management;

interim measures;

appointment and evaluation of experts;

legal characterization;

appropriate remedies.

6. Discretion in Contractual Interpretation

Contracts are one of the most important areas.

A judge may have to determine:

what the parties intended;

whether a clause is ambiguous;

whether provisions should be read together;

whether an obligation was actually undertaken;

whether a contractual condition occurred.

But judicial interpretation has limits.

A judge should interpret the contract rather than simply create a different bargain.

This is particularly important for:

construction contracts;

franchise agreements;

shareholder agreements;

JV agreements;

banking contracts;

insurance policies;

distribution agreements.

7. Discretion and Legal Characterization

A court may need to determine the legal nature of a transaction.

For example, an agreement described as a:

"consultancy agreement"

could contain elements of:

agency;

employment;

management;

service provision.

Similarly, an agreement called a:

"joint venture agreement"

may contain several distinct legal relationships.

The court's task is to determine the legal characterization from the substance of the relationship, not merely the title chosen by the parties.

8. Discretion in Evaluation of Evidence

A civil judge must evaluate the evidence presented by the parties.

Evidence may include:

contracts;

correspondence;

invoices;

bank records;

electronic records;

witness evidence;

expert reports;

photographs;

technical records;

digital communications.

The court has an important role in determining what evidence establishes the relevant facts.

This does not mean that the judge can disregard evidence arbitrarily.

The reasoning should demonstrate why the court accepted or rejected material evidence.

9. Discretion Concerning Expert Evidence

Expert evidence is especially important in UAE civil litigation.

Experts may be required in:

construction disputes;

accounting disputes;

banking claims;

engineering disputes;

valuation disputes;

insurance claims;

technical disputes;

medical/technical questions.

Under the current Evidence Law, the court may appoint experts and may determine how expert evidence should be considered. (UAE Legislation)

Dubai's expert-witness legislation similarly provides that the judicial authority may appoint experts for investigation, assessment, comparison of technical opinions, determination and specialized technical opinions. (Dubai Land Department)

10. The Judge Is Not Bound Automatically by the Expert

This is one of the clearest examples of judicial discretion.

The UAE Federal Supreme Court's Cassation Judgments Nos. 683 and 769 of 2021 concerned the treatment of an expert report.

The principle is that an expert assists the court, but the expert's opinion does not automatically bind the judge. The court can disagree with the expert where there is a legally sufficient basis. (Turtl)

Therefore:

Expert opinion ≠ judgment

The proper sequence is:

Technical issue → expert opinion → parties' objections → judicial evaluation → judgment

11. Case Law 1 — UAE Federal Supreme Court, Cassation Nos. 683 & 769 of 2021

Principle

The court is not mechanically bound by a court-appointed expert's conclusions.

Judicial discretion

The judge may:

accept the report;

reject it;

accept part of it;

require clarification;

order additional expertise where appropriate.

The current Evidence Law continues to provide the court with significant control over expert evidence. (Turtl)

Importance

This case demonstrates that:

Technical expertise informs judicial discretion but does not replace judicial decision-making.

Revision point

EXPERT → ASSISTANCE, NOT DECISION.

12. Case Law 2 — Dubai Court of Cassation No. 1202 of 2026

This recent 2026 Dubai Court of Cassation decision is particularly useful for understanding current judicial discretion.

The case concerned a compensation claim following a fire and the evidentiary requirements for proving the amount of loss. The court upheld the rejection of the compensation claim and addressed the trial court's discretion concerning expert evidence. (KH Legal)

Principle

There is not necessarily an automatic entitlement to obtain a supplementary expert report merely because a party disagrees with an existing evidentiary position.

Relevance

The court's discretion includes determining whether additional technical investigation is genuinely necessary.

Revision point

DISAGREEMENT WITH EXPERT EVIDENCE ≠ AUTOMATIC RIGHT TO NEW EXPERT EVIDENCE.

This is especially important in:

construction;

insurance;

fire-loss;

accounting;

valuation disputes.

13. Case Law 3 — UAE Federal Supreme Court, Cassation No. 880 of 2021

The Federal Supreme Court considered compensation for material damage and future damage, including loss of opportunity.

The decision recognized that compensation may extend to future damage and loss of opportunity where the legally required elements are established. (eLaws)

Judicial discretion

A court may need to assess:

whether damage actually exists;

whether it is sufficiently established;

whether it is causally connected;

whether future consequences are sufficiently certain;

the appropriate amount of compensation.

Importance

The case illustrates that damages assessment is not merely mathematical.

Revision point

DAMAGE → CAUSATION → PROOF → QUANTIFICATION → COMPENSATION.

14. Case Law 4 — Federal Supreme Court Civil Cassation No. 322/1999

This historical UAE authority is relevant to contractual interpretation.

Principle

The merits court has an important role in interpreting contractual provisions and determining the parties' contractual intention.

Judicial discretion

The court can consider:

wording;

context;

surrounding contractual provisions;

parties' obligations;

circumstances relevant to interpretation.

Limitation

Interpretation should not become judicial rewriting of the parties' agreement.

Revision point

INTERPRETATION = DISCOVER LEGAL MEANING, NOT CREATE A NEW CONTRACT.

This is a pre-2026 authority and should therefore be treated as historical jurisprudential guidance rather than as an interpretation of the new 2025 Civil Transactions Law.

15. Case Law 5 — Dubai Court of Cassation No. 18/2000

Principle

Where contractual wording is sufficiently clear, the court should generally respect the contractual text rather than substitute a different bargain.

Relevance to discretion

This demonstrates an important limitation:

Judicial discretion is narrower when the contractual language is clear.

Example

If a contract clearly states:

"Payment is due within 30 days of invoice."

A judge ordinarily cannot simply rewrite this into:

"Payment is due whenever commercially convenient."

Revision point

CLEAR TEXT → JUDICIAL RESTRAINT.

16. Case Law 6 — Dubai Court of Cassation No. 137/2004

Principle

Judicial interpretation should not effectively rewrite the agreement.

Relevance

This is particularly important in disputes involving:

termination;

liquidated damages;

options;

guarantees;

arbitration clauses;

shareholder rights;

franchise agreements.

Judicial-discretion lesson

A judge has discretion to interpret ambiguous contractual language, but not unlimited discretion to substitute a different commercial bargain.

Revision point

INTERPRETATION ≠ CONTRACT REWRITING.

17. Case Law 7 — Dubai Court of Cassation No. 56/2004

Principle

The court is responsible for determining the proper legal characterization of the relationship or transaction.

Relevance

This is an important form of judicial discretion because the legal consequences may depend on characterization.

For example:

Contract title → factual substance → legal characterization → applicable law → legal consequence

Revision point

CHARACTERIZATION IS A JUDICIAL FUNCTION.

18. Case Law 8 — Dubai Court of Cassation Civil Appeal No. 117/2008

This authority is relevant to contractual interpretation and performance.

Principle

The court examines the contractual relationship and obligations in determining the parties' rights and responsibilities.

Relevance

The judge may need to decide:

what obligation was undertaken;

whether it was performed;

whether performance was defective;

whether breach caused loss;

what remedy follows.

Revision point

CONTRACT → PERFORMANCE → BREACH → CAUSATION → REMEDY.

19. Case Law 9 — Dubai Court of Cassation Civil Appeal No. 233/2009

This authority is relevant to contractual obligations and performance.

Judicial-discretion relevance

The court may have to evaluate the circumstances surrounding performance and determine whether the defendant actually breached the contractual obligation.

This is particularly relevant to:

supply agreements;

commercial contracts;

construction;

services;

banking;

JV arrangements.

Revision point

THE JUDGE APPLIES CONTRACTUAL OBLIGATIONS TO PROVEN FACTS.

20. Case Law Summary

Important: The older authorities above predate the new Civil Transactions Law effective 1 June 2026. They are best treated as historical jurisprudential guidance on judicial methodology, while the current statutory text controls present cases.

21. Judicial Discretion in Determining Damages

Damages are one of the most important areas.

A court may have to determine:

actual loss;

lost profits;

future loss;

loss of opportunity;

causation;

mitigation;

extent of recoverability;

appropriate compensation.

The judge should distinguish:

Proven damage

Clearly established by evidence.

Speculative damage

Based primarily on possibility rather than sufficiently established evidence.

The court may use expert evidence to calculate quantum, but the legal question of whether a particular loss is compensable remains a judicial question.

22. Judicial Discretion and Causation

A claimant may prove:

Wrongdoing + Damage

but still have difficulty proving:

Wrongdoing → Causation → Damage

The court may therefore need to determine:

Was this loss actually caused by the defendant?

For example:

A contractor delays construction.

The claimant subsequently loses expected profits.

The court must determine whether:

the delay caused the loss;

another market event caused it;

the claimant contributed to the loss;

the loss was foreseeable or legally recoverable;

the quantum is proven.

This is judicial evaluation rather than automatic mathematical calculation.

23. Judicial Discretion and Good Faith

Good faith is an important civil-law principle.

It can influence:

contractual performance;

exercise of contractual rights;

interpretation;

termination;

cooperation;

prevention of harm.

But judicial discretion based on good faith should not become an unrestricted power to rewrite contractual arrangements.

The judge must connect the conclusion to:

applicable legislation;

contractual obligations;

established facts;

evidence.

24. Judicial Discretion and Abuse of Rights

Another area requiring judicial evaluation is abuse of rights.

A formally existing legal right may be exercised improperly in circumstances recognized by law.

The court may examine:

purpose of exercising the right;

resulting harm;

proportionality;

legitimate interest;

circumstances of the exercise.

Again:

Discretion identifies whether the statutory conditions are satisfied; it does not create unlimited judicial power.

25. Judicial Discretion and Procedural Decisions

Courts also exercise discretion in procedural matters.

Examples include:

appointment of experts;

additional expertise;

case management;

adjournments where legally permitted;

evidentiary measures;

interim protection;

procedural directions.

The Civil Procedure Code gives judicial authorities and judicial leadership bodies powers concerning the organization and assignment of judicial work and specialized experts. (LittDB)

26. Judicial Discretion and Expert Reports

The modern UAE evidence framework makes the relationship particularly clear.

The court may:

appoint an expert;

define the expert's assignment;

consider the parties' objections;

request clarification;

obtain further expertise where appropriate;

accept the report;

reject it;

rely on part of it.

The expert's technical conclusion is therefore evidence, not an independent judgment.

27. Judicial Discretion and AI

This principle becomes increasingly important as UAE courts adopt digital and AI tools.

AI may help with:

document classification;

chronology;

evidence organization;

legal research;

translation;

contract comparison;

calculation.

But AI should not be confused with judicial discretion.

The proper model is:

AI assistance → human verification → judicial evaluation → reasoned judgment

The recent UAE-region authorities concerning AI-generated legal material reinforce the importance of human verification. In ArabyAds Holding Limited v Gulrez Alam Marghoob Alam [2025] ADGMCFI 0032, the ADGM Court dealt with inaccurate/fictitious authorities associated with AI-assisted legal research and imposed significant costs consequences. In VTB Bank PJSC v Kuanyshev & Others [2025] DIFC CFI 121, the DIFC Court similarly addressed AI-generated material and the obligation to verify legal authorities.

These are ADGM/DIFC authorities, not mainland UAE precedents, but they are useful analogies for the principle that automated output does not replace human legal responsibility.

28. Judicial Discretion and the New 2025 Civil Transactions Law

The new law is particularly significant because the UAE Government has expressly described it as expanding the scope of judicial reasoning where legislation does not provide an applicable rule. In such circumstances, the judge may refer to principles of Islamic Sharia and select the solution that best achieves justice and public interest in the circumstances, without being tied to one particular school of jurisprudence. (UAE Legislation)

This represents an important development in the relationship between:

Codified law → judicial reasoning → supplementary principles → case-specific justice

However, this should not be misunderstood as granting judges unrestricted legislative power.

The hierarchy remains broadly:

Applicable legislation → interpretation → applicable legal principles → judicial reasoning within legal limits.

29. Judicial Discretion Versus Judicial Activism

These concepts should not be confused.

Judicial discretion

Application of legally permitted judgment to the facts.

Judicial activism

A more controversial concept suggesting that judges may significantly expand or develop legal rules beyond conventional interpretation.

For UAE civil-law analysis, it is safer to focus on statutory judicial discretion and judicial interpretation rather than importing assumptions from common-law jurisdictions.

30. Limits on Judicial Discretion

Judicial discretion is controlled by several safeguards.

1. Legislation

A judge cannot simply disregard mandatory statutory provisions.

2. Jurisdiction

A court must act within its legal jurisdiction.

3. Evidence

Findings should be based upon legally relevant evidence.

4. Right of defence

Parties must receive appropriate opportunity to present their case.

5. Reasoned judgment

The judgment should explain the basis for the decision.

6. Appellate review

The Court of Appeal and, where available, Court of Cassation provide mechanisms for reviewing legal errors. The UAE Government describes cassation as primarily concerned with legal issues such as violation, erroneous application or interpretation of law. (UAE)

31. Discretion of Trial Court Versus Cassation Court

This distinction is essential.

Trial court

Generally evaluates:

evidence;

facts;

witnesses;

expert reports;

circumstances;

damages.

Court of Appeal

Can reconsider matters within the scope permitted by appellate procedure.

Court of Cassation

Primarily supervises the correct application and interpretation of law, rather than functioning as another unrestricted trial court. (UAE)

Therefore:

Factual discretion is generally stronger at the merits level; legal review is stronger at cassation.

32. Practical Example

Suppose a construction company causes a six-month delay.

The claimant requests AED 10 million.

Step 1 — Breach

Did the contractor actually breach the contract?

Step 2 — Causation

Did the contractor's breach cause the delay?

Step 3 — Damage

Did the claimant suffer compensable damage?

Step 4 — Expert evidence

What does the construction/financial expert calculate?

Step 5 — Judicial assessment

Does the evidence establish the claimed loss?

Step 6 — Legal remedy

What compensation is legally recoverable?

Thus:

FACTS → EVIDENCE → EXPERT → CAUSATION → LEGAL CHARACTERIZATION → DAMAGES → JUDGMENT

The expert may calculate the loss, but the judge determines its legal recoverability.

33. Judicial Discretion and Proportionality

Where legislation gives the court room to select an appropriate remedy, proportionality can become important.

For example:

extent of breach;

seriousness of damage;

contractual purpose;

conduct of parties;

actual loss;

consequences of the remedy.

However, proportionality cannot be used to disregard an applicable mandatory statutory rule.

34. Common Mistakes

Mistake 1: Assuming discretion means unlimited power

It does not.

Mistake 2: Treating an expert's report as the judgment

The judge remains responsible for the legal decision.

Mistake 3: Confusing interpretation with rewriting

A court interprets the agreement but should not simply substitute its own commercial bargain.

Mistake 4: Assuming every factual disagreement is a cassation issue

Cassation is principally concerned with legal questions.

Mistake 5: Ignoring evidence

Discretion must operate on the evidentiary record.

Mistake 6: Treating older cases as interpretations of the 2026 Civil Transactions Law

Pre-1 June 2026 decisions must be used carefully because the governing statutory framework has changed.

35. Key Principles in One Table

36. Overall Legal Test

When analyzing judicial discretion in a UAE civil case, use:

L-E-E-C-R

L — Law
What statutory rule applies?

E — Evidence
What facts have actually been established?

E — Evaluation
What matters require judicial assessment?

C — Constraints
What limits apply to the discretion?

R — Reasoning
Has the court explained the conclusion?

This is an effective examination framework.

37. Conclusion

Judicial discretion is an essential component of UAE civil adjudication because legislation cannot mechanically determine every factual and remedial question arising in complex disputes.

The judge may exercise discretion in:

interpreting contracts;

characterizing legal relationships;

evaluating evidence;

assessing expert reports;

determining causation;

quantifying damages;

assessing future loss;

managing procedural issues;

applying general civil-law principles.

But the discretion remains controlled by law, evidence, jurisdiction, procedural fairness, reasoned decision-making and appellate supervision.

The new Federal Decree-Law No. 25 of 2025, effective from 1 June 2026, is particularly important because it expressly strengthens the role of judicial reasoning where no applicable legislative provision exists. (UAE Legislation)

The central principle is:

UAE judicial discretion is controlled legal judgment—not unrestricted personal choice.

Short Exam Answer

Judicial discretion in UAE civil cases means the legally controlled authority of a judge to evaluate facts, evidence, contractual meaning, causation, damages, expert evidence and appropriate remedies where legislation requires judicial assessment. It is limited by statutory provisions, jurisdiction, evidence, the right of defence and the requirement for reasoned decisions. UAE jurisprudence confirms that expert reports assist but do not bind the court, while contractual interpretation must respect clear contractual language and cannot ordinarily rewrite the parties' agreement. Important authorities include Federal Supreme Court Cassation Nos. 683 & 769/2021 and 880/2021, Dubai Cassation No. 1202/2026, Dubai Cassation Nos. 18/2000, 137/2004 and 56/2004, and Dubai Cassation Civil Appeals Nos. 117/2008 and 233/2009.

Revision Formula

LAW → FACTS → EVIDENCE → INTERPRETATION → CAUSATION → DISCRETION → REASONING → APPEAL/CASSATION