Tort Policy in a Plural Context: Pathways Towards Objective Liability in UAE Tort Law

This article approaches tort policy contextually, as an argument around actually available alternatives within a historically-specific legal tradition, like that of the United Arab Emirates (UAE), which combines French civil law influence with roots in Islamic law. The article examines alternative tunings of the requirements of tort liability, in view of cases where a technically sophisticated investigation is required to ascertain what precautions the tortfeasor might have taken to prevent injury. For this purpose, it takes as its point of departure a careful assessment of the availability of the “extraneous cause” exception in UAE law, which allows defendants to avoid liability by demonstrating the occurrence of a causal factor outside their sphere of control. To understand when this exception ought to be available, the paper engages in critical dialogue with French doctrines on tort liability, distinguishing a fault-based “subjective approach” from an “objective approach” (strict liability). These doctrines also speak to Arab jurisdictions that have adopted a civil code (like the UAE), modelled after the French one. The article therefore proceeds to situate the tort regime in the UAE Civil Code with respect to those French doctrines. With respect to these, the UAE Civil Code takes an intermediate position drawn from Islamic law. However, additional provisions, e.g. on liability for nuclear installations or for machinery of which a person is in charge, demonstrate a timid reception of the objective approach. The article proposes a reform of UAE tort liability on the basis of the objective approach, which is robust even in complex cases, where an investigation around causation would risk being inconclusive. Finally, the paper considers the additional possibility of arguing for a voluntary assumption of liability on the part of the tortfeasor, as yet another way of orienting tort liability in the UAE towards an objective approach.