As per article 319 of the UAE Civil Procedure Law (Federal Decree Law 42/2022), the execution judge may issue an order, at the request of the prevailing party, to imprison the debtor if he has abstained from enforcing any writ of execution (e.g.: judgment), unless he proves his insolvency. Hence, the law placed the burden of proving insolvency on the debtor.

However, on 24 October 2023, the Plenary Assembly of the Dubai Court of Cassation (DCC) (consisting of eight judges) issued a unanimous decision under DCC 4/2023, whereby the above principle was reversed. The said decision obliged the creditor to prove the debtors' solvency as a pre-condition to apply for a summons to arrest and imprison the debtor.

Nevertheless, the decision asserts that paragraph 2 of article 319 is still applicable and specifies conditions under which a plea of insolvency is not permissible if the debtor abstains from the payment in any of the following cases:

- If the debtor has smuggled or concealed his money with the intention of harming the creditor, and it has been impossible for the creditor because of this to execute against these properties.

- If the debt comprises one or more of the instalments due by the debtor, or the debtor was one of those who guaranteed the principal debtor for the payment before the court or the execution judge. However, an exception is made if the debtor has proved the occurrence of new facts that affected his solvency. These new facts should render him incapable of paying the instalments or the value of the guarantee or any part thereof, after imposing these instalments upon him or after giving him the guarantee.

In a nutshell, the DCC's ruling shifts the burden of proving intentional non-payment by the debtor onto the creditor, requiring the latter to demonstrate that the debtor possesses the means to settle the debts but is deliberately avoiding doing so.

This decision (i) ensures a more humane approach towards debtors, (ii) safeguards the interests of both creditor and debtor, (iii) reflects a more just and fair judicial process, (iv) encourages foreign investment in the UAE, like the decriminalization of bounces cheques in UAE which was moved from the Penal Code to the Commercial Transaction Law and considered the bounced cheque due to insufficient funds as an executive deed instead of being criminalized.