![handle is hein.journals/iulesch17 and id is 1 raw text is:
lyad Mohammadjadalhaq'
Tort Policy in a Plural Context: Pathways Towards
Objective Liability in UAE Tort Law
1 Abu Dhabi University, Abu Dhabi, UAE, E-mail: iyad.jadalhaq(Dadu.ac.ae. https://orcid.org/oooo-ooo2-6174-1895.
Abstract:
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 lia-
bility, 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 care-
ful 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 under-
stand 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 inves-
tigation 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.
Keywords: extraneous cause, fault, force majeure , Islamic jurisprudence, objective liability, risque-profit , strict
liability, subjective liability, UAE Civil Code, voluntary assumption of liability
DOI: 10.1515/ils-2019-0001
Received: January 29, 2019; Accepted: March 4, 2019
1 Introduction
This article takes one of two pathways into tort policy, that is, by arguing between particular alternatives, which
are available on the basis of regional and historical vicinity, as opposed to striving for a superior model
defined in abstract terms. Alternative configurations of the requirements for tort liability will therefore be ap-
proached, in this study, by weighing the options available in a mixed legal tradition, like that of the United
Arab Emirates (UAE), which combines roots in Islamic law with the influence of French civil law.1 This interac-
tion of French scholarly and jurisprudential doctrines with a body of provisions often drawn from Islamic law
defines available alternatives and viable arguments in terms that are unique - and which will be gauged with
respect to cases where it might be difficult to know just what precautions ought to have been taken, to prevent
a technically complex accident. In so doing, the article retrieves a manner of debating tort policy on the back of
specific options, available in a situated legal-historical tradition, whilst leaving in the background more abstract
modes of policy argument drawn from the law and economics tradition.2
Following this manner of argument, the study takes the following question as its point of departure: what
possible tunings of the requirements of tort liability might be available in UAE tort law, with respect to cases in
which one party (plaintiff) has suffered damage, given his/her vicinity to an activity (of which the defendant is
in charge) that is close enough to suggest a reasonable - albeit not always demonstrable - connection to his/her
damage? What sets of requirements should this plaintiff have to establish? And what defences ought to be
available to the defendant?
In order to enter this domain of questions, the article begins from the specific doctrine of extraneous cause
in UAE tort law. This is an exception that allows a defendant to go free from liability, upon demonstrating that
the plaintiff's injury cannot be imputed to him/her, but that it arose out of an extraneous cause (i.e. a causal
lyad Mohammad ]adalhaq is the corresponding author.
92019 Walter deGruyter GmbH, Berlin/Boston.
1
DE GRUYTER
Issues in Legal Scholarship. 2019; 20190001](ViewImageLocal?handle=hein.journals/iulesch17&div=1&collection=&method=preview&ext=.png&size=3)
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