Privilege, as understood in common law jurisdictions, is not a recognized legal principle, and the concept is framed principally in terms of confidentiality. 

It is important to first recognize that there is a distinction made between foreign lawyers and ‘advocates’ in the UAE. Only UAE nationals may appear in court and litigate, and are licensed as advocates. Foreign lawyers are licensed in the UAE as legal consultants or legal advisers.  Notwithstanding the foregoing, foreign lawyers are allowed to advise on UAE law, and are under the same legal and ethical duties relating to confidentiality as UAE advocates, as per Article 2C of Ministerial Decision 666 of 2015 (Code of Ethics) discussed below.

UAE Onshore: Federal Law 23 of 1991 (the Advocates Law) provides that an attorney is required to keep any communications made in furtherance of their professional representation of a client confidential (Article 42) unless such disclosure is required to prevent a crime. The Code of Ethics also codifies the legal obligation for attorneys in respect of maintaining confidentiality over all communications by a third party or client, where such information should be kept confidential. Disclosure by an attorney is only permissible under Article 3(c) of the Code of Ethics where written consent of the client or owner of the confidential information is given, court order, or in defense of accusations of professional negligence or malpractice arising out of the client relationship.

DIFC: The DIFC imposes an obligation of confidentiality rather than ACP. Under Part C-8(6) of the Code of Conduct of Legal Practitioners there is a duty imposed on attorneys, their partners and their employees to keep all information communicated by clients confidential unless authorized by the client, ordered by the DIFC Courts, or otherwise required by law. 

ADGM: As explained for the UAE Onshore, ACP in the ADGM is better characterized in terms of confidentiality. As per section 7(6) of the ADGM Courts Rules of Conduct 2016 attorneys are required to keep information communicated to them by their client confidential unless such disclosure is authorized by the client, or ordered by the ADGM Courts, or required by law. 

There is no difference in the ways in which confidentiality is applied in the criminal, civil, regulatory or investigatory context. All three of the legal structures allow for disclosure of confidential information if ordered by a court or otherwise by the law.

Ordinarily, where a corporation is a client, the members of the corporation with decision-making powers are considered to be representing the client or acting as agents of the corporation. The test as established in Upjohn v. United States (1981) has not been articulated in the UAE at this time. Practically speaking, when representing corporations, the client would be the person or agent authorized to sign the engagement letter and act on behalf of the company. 

It is widely accepted that a general manager on a company trade license would generally be viewed as having decision-making power on behalf of the company. Any authorizations or restrictions on legal representation may be made explicitly in the articles of association of a company. In particular, under Article 154 of Federal Law 2 of 2015 (the Commercial Companies Law) states that the ability of the board of directors to opt for arbitration must be included in the articles or association, or be within the objects of the company. Otherwise, a special resolution by the general assembly of the company is required to grant authorized persons the right to arbitrate.
 

Onshore: As stated above, the UAE does not recognize privilege as understood in the common law context. Moreover, in-house counsel are not considered legal advocates, and depending on the activities they advise on they may not qualify as legal consultants. However, the rules regarding confidentiality apply to all commercial entities and all employees. Article 905(5) of the Federal Law 5 of 1985 on Civil Transactions (the Civil Code) provides that employees are required to keep confidential the business or trade secrets of its employer. Additionally, Article 120 of the Federal Law 8 of 1980 concerning the Regulation of Labour Relations (Labor Law) provides that an employee (analogously in-house counsel) may be terminated for cause for any breach of this obligation.  

DIFC & ADGM:  there is no specific legislation that prescribes rules or obligations on in-house counsel with regards to privilege. It is likely that DIFC and ADGM Courts would apply English law when determining the extent to which the provisions on privilege extend to in-house counsel.
 

Onshore: In-house counsel are deemed to be employees of the entity that they are counsel for, and are therefore subject to the duty of keeping the secrets of their employers.  

The regulation of legal professionals falls under the purview of each of the individual Emirates to oversee. Some Emirates such as Dubai take a more active role than others and require all persons practicing the provision of legal services to register with the Dubai Legal Affairs Department (DLAD). Dubai Executive Council Decision 22 of 2011 on the Legal Profession and Legal Consultancy in the Emirate of Dubai includes legal counseling, contract drafting and other legal services in the Legal Services definition. While it does not specifically refer to in-house counsel, it follows that if in-house counsel are providing any of this advice they should be registered with the DLAD.  

UAE Onshore: the common interest doctrine is not recognized. 

DIFC & ADGM: Although there is no legislative provision made, both the DIFC and the ADGM would apply the English approach which allows for common interest privilege.

DIFC & ADGM: Both the DIFC and the ADGM would apply the English approach which allows for common interest privilege.

The English approach does not require common interest agreements in writing. It, therefore, follows that this approach would be adopted in the DIFC and ADGM as well. 

UAE Onshore: There are no rules or laws that prohibit, or specifically allow, litigation funding. 

DIFC: Litigation funding is permitted in the DIFC Courts. Practice Direction 2/2017 requires a party using third party funding in respect of litigation in the DIFC Courts to disclose the fact of the funding by giving notice to the other parties. Funded parties entering into a Litigation Funding Arrangement (LFA) in respect of DIFC Courts proceedings must provide, to every other party to the relevant dispute, notice of:

1. the identity of the funder (defined as a person or entity independent from the funded party and their legal representatives, including a parent entity, subsidiary entity or group of entities, that provides funding towards the proceedings); and 
2. the fact that an LFA has been entered into (although disclosure of a copy of, or any part of, the LFA is not required unless otherwise ordered by the DIFC Courts).

ADGM: Third-party funding in the ADGM Courts is permitted by Part 9 of the ADGM Courts, Civil Evidence, Judgments, Enforcement and Judicial Appointments Regulations 2015 (ADGM Courts Regulations), unless the matter relates to proceedings that cannot be the subject of an enforceable conditional fee agreement, or to any proceedings specifically prescribed by the Chief Justice. In April 2019, the ADGM issued rules on litigation funding which are the most comprehensive in the region. 
 

UAE Onshore: As discussed above, the UAE Courts do not recognize the common law principle of privilege. The legislation related to confidentiality above may apply to confidential communications between litigation funders but this has not been addressed by the courts in this jurisdiction. 

DIFC & ADGM: The DIFC and ADGM Courts recognize the concept that certain documents and correspondence will be privileged from disclosure.  

The ADGM Litigation Funding Rules provide that the LFA must require the funder to observe the confidentiality and/or privileged nature of all information and documentation relating to the proceedings to the extent required by law. The Rules further provide that the LFA must prohibit the funder seeking disclosure of information from the funded party's lawyer or law firm which is subject to either legal privilege or is confidential unless such information is sought with the funded party's written consent or disclosure is ordered by any courts or required by law. 

The DIFC Practice Direction 2 of 2017 on Third Party Funding do not discuss whether communications with litigation funders must be kept confidential or may be protected by ACP.
 

UAE Onshore: Article 42 of the Advocacy Law provides an exception to the requirement to keep the information confidential if the disclosure of such information is required to prevent the perpetration of a crime. Disclosure of confidential information may also be permitted/required if the attorney, attorney's partners or employees are accused of a crime or civil claim arising out of negligence or professional malpractice.

DIFC & ADGM: this exception is not discussed under the Court rules or professional rules for the DIFC/ADGM.

UAE Onshore: Article 42 of the Advocacy Law (Federal Law No. (23) of 1991 (as amended) states that an attorney is to keep confidential the communications made in furtherance of their professional representation of a client unless such disclosure is required to prevent the perpetration of a crime.

The duty of confidentiality extends to all “confidential communications” between the attorney and client, there is no distinction between different types of documents. 

There is no distinction made as to what may be included in the definition of confidential information. 

As per Article 3(c) of the Code of Conduct, the lawyer or legal consultant’s failure to preserve the confidentiality of any document could result in the imposition of a disciplinary penalty upon him by the competent authority. This would suggest any and all documents shared between the lawyer/legal consultant and the client would be confidential and should not be disclosed. This is the same across all three jurisdictions. No definition of what information may be classified as confidential is provided in the DIFC Practice Directions or ADGM Rules of Conduct. 
 

No

UAE Onshore: No.

DIFC: Practice Direction No. 6 of 2014 classifies mediation as being both “without prejudice” (under the law of England and Wales) and confidential. Consequently, discussions and/or any documents submitted during the process cannot be used against the party who made or produced them in subsequent proceedings. The terms of any settlement agreed in mediation are confidential. However, the parties are free to agree to an alternative arrangement.

ADGM: Section 13.48 of Practice Direction 13 regarding Mediation in the ADGM, mediation shall be conducted in confidence and all communications made in the mediation are made on a strictly ‘without prejudice’ basis and shall not be used in court proceedings. 
 

UAE Onshore: The concept of “without prejudice” communication is not recognized by the Onshore UAE Courts. Therefore, the ‘without prejudice’ rule does not apply to settlement negotiations onshore in the UAE.

DIFC: The DIFC Court Rules (RDC) also provide that Part 32 offers (that is, a formal offer to settle made in accordance with Rule 32.4 of the RDC) “will be treated as ‘without prejudice except as to costs’” and state the “fact that a Part 32 offer has been made must not be communicated to the trial Judge or to the Judge (if any) allocated in advance to conduct the trial until the case has been decided.” Privilege can be waived by consent.

ADGM: Similar rules to the DIFC settlement rules apply for the ADGM. Section 151 of the 2016 ADGM Court Procedure Rules states that a Part 18 offer (that is, a formal offer to settle made in accordance with Rule 154) will be treated as “without prejudice save as to costs”. Further Section 151 (2) states that “the fact that a Part 18 offer has been made and the terms of such offer must not be communicated to the trial Judge until the case has been decided.”