The legislation which applies to arbitration depends on whether the arbitral process (i.e., the lex arbitri) is subject to the Federal Civil Law system of the United Arab Emirates (“UAE”), or by the laws of two distinct jurisdictions i.e., the Dubai International Financial Centre (“DIFC”) or the Abu Dhabi Global Market (“ADGM”), generally understood as “Common Law Jurisdictions”), both of which have their own arbitration laws/regulations:

UAE – Federal Jurisdiction

Federal Law No. 6 / 2018 on arbitration (the “UAE Arbitration Law”) replaced Articles 203 to 218 of the UAE Civil Code Federal Law No. 11/1992 (the “UAE CPC”). Articles 203 to 218 of the UAE CPC were those provisions which were relevant to arbitration.

The UAE Arbitration Law applies to all arbitral proceedings carried out in the UAE, unless the parties agree to apply a different arbitration law. However, should the parties agree to apply a different arbitration law, that arbitration law must comply with the requirements of public order and morality in the UAE.

UAE – Common Law Jurisdictions

Dubai

DIFC Law (No. 1 of 2008, as amended by DIFC Law No. 6 of 2013) (the “DIFC Arbitration Law”), governs arbitral disputes which are subject to the jurisdiction of the DIFC. The amendment clarified the DIFC Court’s authority to dismiss or stay an action brought before the court (which is also subject to an arbitration agreement) unless it finds ‘that the arbitration agreement is null and void, inoperative or incapable of being performed’’ even where the seat of the arbitration is one other than the DIFC and where no seat has been designated or determined.

 Abu Dhabi

The ADGM has established an arbitration hearing centre (the “ADGM Arbitration Centre”) on Al Maryah Island. The ADGM Arbitration Centre became fully operational on 17 October 2018 as a venue for arbitration.

The ADGM Arbitration Regulations 2015 (“ADGM Regulations”), based on the UNCITRAL Model Law will govern arbitrations where the:

• seat of the arbitration is the ADGM; or
• arbitration agreement applies the ADGM Regulations.

The Judicial Tribunal for the Dubai Courts and the DIFC Courts

Decree No. 19 of 2016 established the Judicial Tribunal for the Dubai Courts and the DIFC Courts (the “Judicial Tribunal”). The Judicial Tribunal was established to deal with issues including conflicts of jurisdiction between the DIFC and Dubai Courts.

A limited number of decisions have been issued by the Judicial Tribunal to date. These decisions generally indicate that for arbitration proceedings that are seated in mainland Dubai, the Dubai (Federal) Courts would have curial jurisdiction, whereas the curial jurisdiction of the DIFC Courts would be limited to those arbitration proceedings seated in the DIFC.

In April 2024, Decree No. 29 of 2024 established the new Judicial Authority for Resolving Jurisdictional Conflicts between the DIFC Courts and the Judicial Bodies in the Emirate of Dubai (the “New Judicial Authority”). The New Judicial Authority is now tasked with a mandate to focus only on being the final decision maker of conflicts of jurisdiction within Dubai. Its remit covers the Dubai Courts, the Rental Disputes Resolution Centre, the Judicial Committees formed by decree or a decision of the Ruler or the Chairman, and any other bodies considered to be judicial authorities.

Decisions by the New Judicial Authority will adopt the common-law style precedents system binding on all Judicial Bodies, which will include the DIFC Courts and Dubai Courts.

No decisions from the New Judicial Authority have been made.

Yes, the UAE acceded to the New York Convention on 21 Aug 2006 with no reservations.

The UAE has signed approximately 111 Bilateral Investment Treaties (38 of which are not currently in force, and 2 which have been terminated) most of which are subject to Investor-State Dispute Settlement (ISDS) arbitration.

UAE Arbitration Law has significant similarities to the UNCITRAL Model Law. However, with regard to issues of authority to enter an arbitration agreement, the position under the UAE Arbitration Law has not been clear and was subject to debate.

Recent decisions of the Dubai Court of Cassation have established that with respect to managers of a limited liability company, have the power to agree on arbitration agreement, unless there was a provision to the contrary under the company’s article for association. Therefore, for managers of limited liability companies to be restricted from having such power, an explicit limitation on their power must be set out under the articles of association.

The position is slightly different with respect to joint stock companies, where a restrictive approach has been adopted within the UAE Courts. In accordance with Articles 154 and 155 of the UAE Companies Law, the UAE Courts have established a restrictive approach providing that the authority to arbitrate on behalf of joint stock companies must be granted explicitly to the board of directors by a provision in the articles of association or a decision by the general assembly. However, as public joint stock companies are not commonly used in the UAE, it is unclear whether the UAE Courts will deviate from applying such restrictive approach.

Both the DIFC Arbitration Law and the ADGM Arbitration Regulations are largely based on the UNCITRAL Model Law with no significant differences.

Further to the introduction of the new UAE Arbitration Law in 2018, Dubai has recently reformed its arbitration landscape through enactment of Decree 34 of 2021 concerning the Dubai International Arbitration Centre (“DIAC”) on 14 September 2021 (the “Decree”).

The Decree abolished with immediate effect, the Dubai International Financial Centre (DIFC) Arbitration Institute (“DAI”) including its DIFC-LCIA (“DIFC-LCIA”) Arbitration Centre, and the Emirates Maritime Arbitration Centre (“EMAC”) and their arbitration rules. It further provided for the transfer of all rights and obligations in respect of those centres to the onshore Dubai International Arbitration Centre (DIAC).

Soon after the enactment of the Decree, DIAC implemented the new Arbitration Rules in March 2022 (the “2022 DIAC Rules”), which replaced the old rules issued in 2007. The DIAC Rules introduced key provisions similar to those under the LCIA and the International Chamber of Commerce Rules (“ICC Rules”) and replaced the Executive Committee with an Arbitration Court.

The major reforms recently introduced within the UAE, and particularly in Dubai, aim to create a single world class international arbitration centre similar to those in Paris, London, Singapore and Hong Kong. Furthermore, the introduction of the new DIAC Rules enables the DIAC to claim its position as one of the leading global centres for arbitration, both within the MENA region and internationally.

Further to the Decree, the LCIA Arbitration Centre in London has been assisting in the administration of DIFC-LCIA arbitrations which commenced prior to 20 September 2021, the date of the Decree, and will continue to do so until their conclusion.

As of 1 February 2024, the Abu Dhabi Commercial Conciliation and Arbitration Centre (“ADCCAC”) has been replaced by the Abu Dhabi International Arbitration Centre, known as ArbitrateAD. ArbitrateAD also has new rules issued which are broadly similar to the other key institutions such as DIAC, ICC and LCIA.

The main On-Shore arbitral institutions, in order of case volume, are the:

1. Dubai International Arbitration Centre (“DIAC”), which applies the DIAC Rules (2022) (the “DIAC Rules”); and
2. ArbitrateAD, which applies the ArbitrateAD Arbitration Rules 2024.

There exists, within the remaining Emirates, a number of other arbitration centres, for example in:

1. Ras Al Khaimah: The Ras Al Khaimah Centre of Reconciliation and Commercial Arbitration;
2. Ajman: The Ajam Centre for Commercial Conciliation and Arbitration; and
3. Sharjah: The Tahkeem Sharjah International Arbitration Centre.

UAE- Federal Jurisdiction

Whilst there is no specialist arbitration court as such, all UAE Federal Courts can and often do appoint arbitrators in ad hoc arbitral proceedings where the parties have either specified this in the arbitration agreement/clause or are unable to agree on the authority responsible for the appointment of the tribunal.

UAE – Common Law Jurisdiction

Further to the abolishment of the DIFC Arbitration Institute (DAI) by virtue of the Dubai Decree No. 34 of 2021 (the Decree), the DAI’s assets and operations were transferred to the DIAC.

Whilst there is no specialist arbitration court as such, the Decree has further established an Arbitration Court to carry out the functions of the Executive Committee (now replaced with the Arbitration Court) including review of awards, decide on issues of appointment of arbitrators, consider initial jurisdictional challenges and applications for joinders and consolidation.

However, as stated above, further to the Decree, the LCIA Arbitration Centre in London (“LCIA”) has been assisting in the administration of DIFC-LCIA arbitrations that were commenced prior to 20 September 2021, the date of the Decree, and will continue to do so until their conclusion.

Similarly to DIAC, there now exists a Court of Arbitration within ArbitrateAD which is an independent administrative body of the Centre. It supervises over arbitration and dispute resolution services including the appointment and replacement of arbitrators, resolution of challenges to arbitrators or Arbitration Agreements, the disposition of Requests for Joinder and Requests for Consolidation and the scrutiny of Awards.

Finally, both the DIFC Courts Rules (Part 43) and the ADGM Court Procedure Rule (Part 27) have broad jurisdiction to hear arbitration claim and decide on appointments of tribunals, validity of arbitration agreements and enforcement of awards.

The UAE Arbitration Law sets out the express requirements for a valid arbitration agreement.

Physical Person with Legal Capacity:

The parties entering into this agreement must be physical persons with the legal capacity to act (Article 4(1)).

The risk of a person, entering into an arbitration agreement, not being deemed to have the required authority to do so, remains very present, as does the consequent risk that arbitral award could be nullified.

The Matter in dispute must be Capable of ‘Conciliation’:

The matter to be arbitrated must be capable of ‘conciliation’ (Article 4(2)) and, therefore, cannot relate to matters of a criminal nature.

The Arbitration Agreement must be in Writing:

The requirement for an arbitration agreement to be in writing, is satisfied where the arbitration agreement is:

‘contained in a document signed by the Parties or mentioned in an exchange of letters or other means of written communication or made by an electronic communication…’ (Article 7(2)(a))

This requirement for a written agreement, is further satisfied where the arbitration agreement makes a clear reference to ‘a Model Contract, international agreement or any other document containing an arbitral clause’ which will form part of the contract (Article 7(2)(b)). The requirements for an arbitration agreement to be in writing, may further be satisfied by:

‘…an exchange of written statements between the Parties during the arbitration proceedings or upon acknowledgement before the Court, where one party requests that the dispute be referred for Arbitration and no objection is made by the other party in the course of his defence’. (Article 7(2)(d))

The above denotes an offer and unconditional acceptance of an arbitration agreement. This is, however, subject to the issuer of such pleadings having the authority to bind the represented party to arbitration, whether by an exchange of pleadings or otherwise.

UAE – Common Law Jurisdictions

The DIFC Arbitration Law (Article 12) and the ADGM Regulations (Regulation 14) broadly require the arbitration agreement to be in writing.

Article 6 of the UAE Arbitration Law confirms the UAE’s acceptance of the principle of severability, that arbitral agreements are distinct from the underlying contract.

An arbitration agreement is, therefore, unaffected by the ‘nullity, rescission or termination of the contract’ in which it resides, unless the capacity of the parties is affected.

The DIFC Arbitration Law (Article 23), ADGM Regulations (Regulation 15), and the DIAC Rules (Article 6) recognise the principle of separating the arbitration agreement/clause from the underlying contract.

No, primarily due to Article 53 2 a. and 2 b. of the UAE Arbitration Law that reflects the wording of Article V 2(a) and 2(b) of the 1958 New York Convention relating to arbitrability and public policy.

There is no express guidance under the UAE Arbitration Law or the DIFC Arbitration Law which addresses the issue of consolidating multi-contract arbitrations. However, further to the new DIAC Rules, new provisions have been introduced providing for the consolidation of two or more arbitrations into a single arbitration (Article 8). Consolidation and joinder of proceedings are new concepts introduced for the first time under the new DIAC Rules. These provisions (Articles 8 & 9 of the new DIAC Rules) are largely similar to the relevant articles under the ICC Rules.

The ArbitrateAD Rules introduces rules dealing with multiple parties to a dispute (Article 9), multi-contract arbitrations (Article 10), joinder of parties (Article 11) and consolidation of multiple arbitrations or claims into a single arbitration (Article 12). These concepts are similarly new concepts in the Abu Dhabi region as its predecessor did not contain such rules.

Furthermore, the ADGM Regulations (Regulation 38) provide for the consolidation of other arbitral proceedings or concurrent hearings.

Other than the possible exception of investment treaty arbitration and a party’s subsequent consent to be bound by the arbitration clause, there are no express provisions either in UAE Federal or UAE Common Law jurisdictions that allow for a non-signatory to be bound by an arbitration agreement.

However, Article 22 of the UAE Arbitration Law does envisage the possibility of intervention or joinder of third parties in arbitral proceedings if this authorised by the tribunal pursuant to either the request of a party or the joining party, provided that the latter is already a party to the arbitration agreement.

UAE– Federal Jurisdiction

Commercial disputes which relate to the registration of real estate, insurance policies, insolvency matters, commercial agencies, criminal matters and public policy are generally not arbitrable. The arbitrability of each dispute will, however, be considered on its own merits.

UAE – Common Law Jurisdictions

Although Article 41(2)(b)(i) and 44(1)(b)(vi) of the DIFC Arbitration Law and Article 58(2)(b)(i) of the ADGM Regulations provide for the possibility of a subject-matter not being capable of settlement by arbitration, there is no prescriptive list within either of these laws as to what matters may not be arbitrable.

There are no recent court decisions as it is generally rare for parties in the UAE to expressly opt for a specific arbitration law. The default position of the lex arbitri being the law of the seat of the arbitration is set out in article 2 of Federal Law No. 6/2018 for arbitration proceedings seated in onshore UAE and article 7.1 of the DIFC Arbitration Law No. 1 of 2008 (as amended) for DIFC seated arbitration proceedings as well as article 8 of the ADGM Regulations 2015 for those arbitration proceedings seated in the ADGM.

The applicable law is normally stated within the underlying contract.

Where the parties have failed to agree, however, the following applies:

UAE- Federal Jurisdiction

Article 38 of the UAE Arbitration Law requires the Arbitral Tribunal to apply those ‘substantive rules of law, which it considers to have the closest connection with the substance of the dispute’.

The merits of the dispute shall be decided by the Arbitral Tribunal, taking into consideration the ‘terms of contract, which is the subject of the dispute and any relevant usages applicable to the transaction and between the Parties’.

The DIAC Rules (Article 30.1) provide for an Arbitral Tribunal to decide on the rule of law which the Arbitral Tribunal considers as most appropriate to be applied. Any designation of the law of a given state shall be construed (unless expressly stated otherwise) as the applicable law.

UAE – Common Law Jurisdictions

DIFC

The DIFC Arbitration Law (Article 35) provides that ‘Any designation of the law or legal system of a given State or jurisdiction shall be construed, unless otherwise expressed, as directly referring to the substantive law of that State or jurisdiction and not to its conflict of laws rules’.

In the absence of such designation, the Arbitral Tribunal shall apply the law as determined by the conflict of law rules which the Arbitral Tribunal considers applicable, ‘provided that the parties shall be free to agree in writing that the Arbitral Tribunal may apply the law or rules of law which it considers to be most appropriate in the facts and circumstances of the dispute’.

In all cases, the Arbitral Tribunal will apply the principles of equity and good conscience, only if the parties have authorised the Arbitral Tribunal to do so.

The Arbitral Tribunal will take into account the terms of the contract and the trade usages applicable.

ADGM

The ADGM Regulations (Regulation 49) have adopted a similar approach to that of the DIFC Arbitration Law. The ADGM Regulations provide that:

‘In the absence of any designation by the parties, the arbitral tribunal shall decide the dispute in accordance with the rules of law it considers appropriate’ (Regulation 49(2)).

The ADGM Regulations further confirm that ‘the arbitral tribunal shall take trade usages into account’ (Regulation 49(3)).

UAE- Federal Jurisdiction

Article 10 of the UAE Arbitration Law, prescribes that an appointed arbitrator must:

be ‘a physical person, and he may not be a minor, incapacitated, or deprived of his civil rights due to declaration of bankruptcy unless he is rehabilitated, or due to being sentenced for a felony or misdemeanour involving moral turpitude or dishonesty, even if he is rehabilitated’; and

‘not be a member of the Board of Trustees or the administrative branch of the competent Arbitration Institution administering the arbitration case…’.

The arbitrators appointed must also remain independent and impartial for the duration of the arbitral process.

UAE – Common Law Jurisdictions

Both under the DIFC Arbitration Law and the ADGM Regulations, there are provisions that allow for the challenge of arbitrators if justifiable doubts exist as to their impartiality or independence, or if they do not possess qualifications agreed to by the parties.

There are no default requirements other than those set out at Article 10 of the UAE Arbitration Law. The parties are further free to choose any additional criteria, above that set out in Article 10.

The DIFC Arbitration Law (Article 17(3)) and the ADGM Regulations (Article 19(3)) both provide for selection criteria where there is no agreement on the procedure for the appointment of arbitrators.

The DIAC Rules (Article 14.1) and ArbitrateAD Rules (Article 15.1) requires that arbitrators remain independent and impartial.

UAE- Federal Jurisdiction

Article 11(5) of the UAE Arbitration Law provides that the court may take the relevant actions for the ‘completion of the composition and appointment of the members of the Arbitral Tribunal’, upon request of a party.

Such actions may be taken where the authorised entity fails to appoint the Arbitral Tribunal, pursuant to the agreement of the parties or the terms of the UAE Arbitration Law.

Article 11(8) of the UAE Arbitration Law further provides for the Court, upon the request of the parties, the option to ask an arbitral institution to provide a list arbitral specialist for potential appointment.

UAE – Common Law Jurisdictions

DIFC:

A party may request the DIFC Court of First Instance to intervene where there has been a failure on behalf of the parties, the arbitrators or third parties (including the relevant arbitral institution) to validly constitute an Arbitral Tribunal (Article 17).

ADGM:

Should the parties fail to agree on the procedure for appointing an arbitrator or arbitrators, the ADGM Regulations (Regulation 19) provide the below.

A Sole Arbitrator

Where parties cannot agree on a sole arbitrator, within 30 days of one party requesting the other to do so, the arbitral institution administering the arbitration or the Court (where no arbitral institution has been appointed) shall, on the request of either party, appoint the arbitrator.

A Three-Member Arbitral Tribunal

Where an Arbitral Tribunal is to comprise of three members, each party shall appoint one arbitrator. These two appointed arbitrators shall subsequently appoint a third arbitrator as the ‘presiding arbitrator’.

The arbitral institution which administers the arbitration, or the Court (where no arbitral institution has been appointed) on request of either party shall appoint:

two arbitrators for a three-member Arbitral Tribunal where no arbitrators have been appointed within 30 days of receipt of a party’s request to the other party to do so; or

a ‘presiding arbitrator’ where the two party-appointed arbitrators cannot agree on a ‘presiding arbitrator’ within 30 days of their appointment.

Multiple Claimants and/or Respondents before a Three-Member Arbitral Tribunal

Where there are multiple claimants and/or multiple respondents, the parties shall jointly appoint a single arbitrator on behalf of the claimant and the respondent, in accordance with any procedures agreed upon by the parties.

Where no agreement has been reached between the parties, the Arbitral Tribunal shall appoint the three-member Arbitral Tribunal in accordance with the section entitled ‘A Three-Member Arbitral Tribunal’’ above.

In the absence of joint nomination procedure and where there is no agreement between the parties as to a method for the constitution of the Arbitral Tribunal, the arbitral institution administering the arbitration or the Court (where no arbitral institution administering the arbitration has been appointed) shall appoint the arbitrators and ‘presiding arbitrator’.

The decision of the arbitral institution or the Court is not subject to appeal.

The arbitral institution or the Court, when appointing the Arbitral Tribunal, shall:

have due regard to the qualifications of the arbitrators, on which the parties have agreed;

have due regard to such considerations which are likely to result in the appointment of an ‘independent and impartial ‘ arbitrator; and

take into account the ‘advisability of appointing an arbitrator of a nationality other than that of any party’.

UAE- Federal Jurisdiction

Article 15 of the UAE Arbitration Law and the DIAC Rules (Article 15) both provide for the challenging of an arbitrator’s appointment.

Article 14 of the UAE Arbitration Law provides that an arbitrator may be recused, ‘in circumstances which are likely to give rise to serious doubts regarding his impartibility or independence’.

Article 15 of the UAE Arbitration Law requires that a party intending to recuse an arbitrator must write to the Arbitral Tribunal within 15 days of becoming aware of:

the arbitrator’s appointment (Article 15(1)); or

the grounds for the recusing the arbitrator (Article 15(1)).

This written statement should set out the grounds for the arbitrator’s recusal.

Should the arbitrator not recuse himself / herself or the other party ‘does not approve the recusal within 15 days from the date of notification’, the challenging party may file its application with the [arbitration authority or court] within 15 days of the expiry of the above 15 day period.

The [arbitration authority or court] shall subsequently make its decision as to whether to recuse the arbitrator within 10 days.

This provision may be particularly helpful in ad hoc arbitrations and could be viewed as even more detailed and thorough than the equivalent process set out in some arbitral rules of institutional arbitration proceedings.

Where the relevant grounds exist, this process can be used to remove both arbitrator and chairman alike from their position on the Arbitral Tribunal.

UAE – Common Law Jurisdictions

The appointment of an arbitrator can be challenged pursuant to DIFC Arbitration Law (Article 18) on the grounds he / she is not independent, impartial or does not possess the qualifications agreed upon by the parties.

ADGM

Challenging an Arbitrator where no Procedure was agreed by the Parties

Where the parties have not agreed on a procedure for challenging an arbitrator, the ADGM Regulations provide the below.

A party wanting to challenge an arbitrator must send a written statement to the Arbitral Tribunal setting out its reasons, within 30 days of becoming aware of:

‘the constitution of the arbitral tribunal’’ or;

the existence of grounds on which to challenge the arbitrator (Regulation 21(2)).

The grounds for challenging an arbitrator are as followings:

‘circumstances likely to give rise to justifiable doubts as to his [the arbitrator’s] impartiality or independence’; or

he/she does not possess the qualifications agreed upon by the parties (Regulation 20(2)).

The arbitration institution administering the arbitration or the Court (where there is no arbitral institution appointed) shall decide on the challenge to the arbitrator, unless the arbitrator withdraws, or the other party agrees to the challenge (Regulation 21(2)).

The arbitration shall, however, not be stayed pending the decision of the arbitral institution or the Court (Regulation 21(2)).

Failure or Impossibility to Act

‘If an arbitrator becomes as a matter of law or fact unable to perform his function or for other reasons fails to act without undue delay’, his mandate will be termination upon:

his ‘withdraw from his office’; or

the parties’ termination of that arbitrator (Regulation 22(1)).

Should the arbitrator not withdraw, or the parties cannot agree on his/her termination, or the ‘controversy remains concerning any of these grounds’, a party may request that the arbitral institution administering the arbitration or the Court (where no arbitral institution has been appointed) to terminate the mandate of the arbitrator.

This decision of the arbitral institution or the Court is not subject to appeal.

Article 257 of Federal Law No. 3 of 1987 (i.e. the UAE Penal Code) as initially amended in September 2016, used to provide for the potential imprisonment of experts and arbitrators in the event a breach of duty of fairness and impartiality. However, this provision has now been repealed with regard to its application to arbitrators, following extensive lobbying from the arbitration community. With regards to duty of disclosure, Article 10(4) of Law No. 6 of 2018 requires an arbitrator to disclose ‘…in writing, all circumstances that are likely to give rise to doubts as to his impartiality or independence’. This provision is reflected in Article 18(1) DIFC Law, Article 20(1) ADGM Regulations, Article 14.3 DIAC Rules, and Article 15.2 of the ArbitrateAD Rules.

UAE- Federal Jurisdiction

Article 41 of the UAE Arbitration Law provides that an arbitral award issued by an Arbitral Tribunal comprising more than one arbitrator, must be signed by the majority of the arbitrators.

Where the arbitrators do not sign the arbitral award, the reason for not doing so must be stated.

Where the arbitral award is not signed by the majority of the Arbitral Tribunal, the arbitral award shall be issued by the Chairman, unless otherwise agreed by the parties.

In such a scenario, the dissenting reasons shall be written or attached to the arbitral award.

The arbitral award shall contain the grounds for an arbitral award, unless the parties agree or the applicable law does not so require.

The DIAC Rules (Article 16) provide for the revocation of appointment of the absent arbitrator and appointment of a replacement thereof (Article 15).

Similar rules are catered for in the ArbitrateAD Rules at Articles 16 and 17.

The above procedures do not, however, cater for the risk that the arbitrator is not replaced and remaining arbitrators cannot reach a consensus on liability or quantum.

UAE – Common Law Jurisdictions

ADGM

The ADGM Regulations (Regulation 50) provides that where more than one arbitrator has been appointed, the decision of the majority shall be valid unless otherwise agreed by the parties.

Where there is no majority decision, the arbitral award shall be made by the ‘presiding arbitrator’, alone.

The ‘presiding arbitrator’ may further determine questions of procedures if duly authorized by all the members of the Arbitral Tribunal or the parties.

UAE- Federal Jurisdiction

Federal Law No. 31/2021 (essentially the new UAE Penal Law) repealed Federal Law No. 3/1987 and as such, the only crime concerning arbitrators is now the acceptance of bribes (Art. 275 and 280), and an English translation of Article  277 reads:

“Arbitrators are considered the same as a public official for the purposes of applying articles 275 and 280.”

DIAC

The DIAC Rules (Article 41) provide for immunity for any act or omission in connection with the arbitration, by an arbitrator. The terms of reference, should be produced, normally limit an Arbitral Tribunal’s liability to acts of bad faith.

ArbitrateAD

The ArbitrateAD Rules (Article 46) provides immunity for acts or inadvertences taken by an arbitrator during proceedings which were made in good faith.

UAE – Common Law Jurisdictions

DIFC

DIFC Arbitration Law (Article 22) provides that an arbitrator will only be liable for his / her acts or omissions where such have caused ‘damage by conscious and deliberate wrongdoing’.

The above does ‘not affect any liability incurred by an arbitrator by reason of his resigning’.

ADGM

The ADGM Regulations (Regulation 24) also provides that an arbitrator shall not be liable unless the ‘act or omission in connection with an arbitration’ is shown to have ‘caused damage by conscious and deliberate wrongdoing’.

UAE- Federal Jurisdiction

Article 19 of the UAE Arbitration Law provides for the principle of ‘Kompetenz-Kompetenz’ by providing that the Arbitral Tribunal may rule on any plea as to its jurisdiction.

The Arbitral Tribunal’s ruling may form part of the answer of a ‘preliminary question’ or as part of the final arbitral award.

Should the Arbitral Tribunal decide the issue of jurisdiction as a ‘preliminary question’, this decision may be appealed within 15 days of notice of that decision. The appropriate court will then issue its decision within 30 days. The decision of the court is not subject to appeal.

DIAC Rules (Article 6) also expressly confer power on an Arbitral Tribunal to rule on its own jurisdiction.

A similar provision is contained within Article 8 of the ArbitrateAD Rules.

UAE – Common Law Jurisdictions

The DIFC Arbitration Law

An Arbitral Tribunal may rule on its own jurisdiction (Article 23).

Should the Arbitral Tribunal rule in favour of its own jurisdiction as part of a preliminary question, this decision (‘subject to any process agreed between the parties’) can be appealed by any party to the DIFC Court of First Instance.

This appeal must be made within 30 days of receipt of the decision of the Arbitral Tribunal, and the arbitral process shall not be stayed pending the outcome of the appeal.

The decision of the DIFC Court of First Instance on the jurisdiction of the Arbitral Tribunal is not subject to appeal.

ADGM Regulations

Unless the parties have agreed otherwise, an Arbitral Tribunal may rule on its own ‘substantive jurisdiction’ pursuant to the ADGM Regulations (Regulation 25).

The Arbitral Tribunal’s determination may be challenged through the processes agreed by the parties or in accordance with the ADGM Regulations.

The Arbitral Tribunal’s response to a challenge may be answered as either a ‘preliminary question’ or as part of its award on the merits, unless the parties have agreed on how the Arbitral Tribunal should decide such a challenge.

The Court may determine the question of the ‘substantive jurisdiction’ of the Arbitral Tribunal, upon the application by a party to the arbitration, on notice to the other party.

A party may, however, ‘lose it right to object’ pursuant to Regulation 11.

The application to the Court to determine the question of the Arbitral Tribunal’s ‘substantive jurisdiction’ will not be considered unless:

‘(a) it is made with the agreement in writing of all the other parties to the proceedings’; or

‘(b) it is made with the permission of the Tribunal’’ (Regulation 27)

The Court must, however, be satisfied that:

its decision will save substantial costs;

there was no delay in making the application; and

there is good reason why the Court should decide this matter.

Should this application be made without the agreement of the parties, the grounds for the Court deciding the matter shall be contained within the application.

The decision of the Court shall not be subject to appeal, and unless agreed otherwise by the parties, proceedings shall not be stayed pending the Court’s decision.

Claimants may attempt to bypass a contractually required arbitration process and file their claim directly with the courts.

Before the UAE Arbitration Law, the applicable provision of the UAE Civil Procedure Law (Federal law no. 11 of 1992 for the Promulgation of the Law on Civil Procedure) dictated that a party was required to object at the first hearing to litigation proceedings filed by the other party, failing which it would be deemed to have waived its right to arbitrate.

However, this provision has now been repealed by the UAE Arbitration Law, although the practice of filing an objection at the very first hearing is likely to remain.

UAE – Common Law Jurisdictions

The DIFC Arbitration Law (Article 23) empowers an Arbitral Tribunal to rule on its own jurisdiction.

Under the UAE Arbitration Law a respondent cannot be compelled to participate in the arbitration process. Should a respondent choose not to participate in an arbitration, the respondent may attempt to nullify the final award. The respondent may base its claim for nullification within Article 53(d).

Article 53(d) provides for nullification on the grounds that the respondent was ‘unable to submit his statement of defence due to that he was not given a proper notice of….the arbitration proceedings’

A claimant may easily prove its compliance with the requirement to properly notify the respondent if the arbitration was administered by the courts or an arbitral institution.

In an ad hoc arbitration, where notifications may not be as authoritative as they would be in an institutional arbitration, a party may utilise the services of a UAE Federal Court bailiff to deliver a legal notice (or any other formal notice) informing the other party of the commencement of arbitral proceedings or of any other procedural part that is of critical importance to communicate.

Article 22 of the UAE Arbitration Law envisages the possibility of intervention or joinder of third parties in arbitral proceedings if this authorised by the tribunal pursuant to either the request of a party or the joining party, provided that the latter is already a party to the arbitration agreement. Therefore, in the absence of an agreement that binds all concerned parties a tribunal cannot impose the joining of a third party.

UAE- Federal Jurisdiction

Prior to the introduction of the UAE Arbitration Law, a party would apply to the UAE Courts for a precautionary attachment of movable property, pursuant to Article 252 of the UAE CPC, to secure its debt.

Article 21 of the UAE Arbitration Law permits the Arbitral Tribunal, subject to meeting certain pre-conditions, to order a wide range of interim and precautionary measures.

The Arbitral Tribunal may order such measures, upon the request of the parties, or upon the Arbitral Tribunal’s own initiative.

These measures can include orders to preserve evidence, assets or property, maintain/restore ‘the status quo pending determination of the dispute’, or to prevent actions which would likely harm or prejudice the arbitration process.

Article 21(4) of the UAE Arbitration Law also provides for a party in favour of which an order has been granted by the Arbitral Tribunal, to enforce that order through the Courts. The party’s ability to do so, is subject to the approval of the Arbitral Tribunal.

The Arbitral Tribunal may suspend proceedings (Article 43), where a matter is raised which:

falls beyond the Arbitral Tribunal’s scope or involves the submission of forged documents to the Arbitral Tribunal; and

‘criminal measures have been pursued for this or any other claim’,

An Arbitral Tribunal will, however, only suspend proceedings where it considers that such issues would affect the outcome of the arbitration.

In such a case, the arbitral proceedings will be stayed until a final decision is issued in this regard.

The DIAC Rules (Article 34) also provide for an Arbitral Tribunal to issue provisional orders or other interim/conservatory measures, including injunctions, at the request of a party.

Interim measures may, however, be at all times subject to the requesting party providing appropriate security (DIAC Rules, Appendix II, Article 1).

The ArbitrateAD Rules (Article 34) similarly provides that an Arbitral Tribunal may issue “Preliminary Measures” at a party’s request. As with the DIAC Rules, Article 34.3 of the ArbitrateAD Rules requires the requesting party to provide appropriate security.

UAE – Common Law Jurisdictions

DIFC Arbitration Law

Unless agreed otherwise, an Arbitral Tribunal has the power to order interim measures at the request of a party pursuant to Article 24 of the DIFC Arbitration Law.

With the written permission of the Arbitral Tribunal, the party in whose favour the order was granted may apply to the DIFC Court of First Instance for the enforcement of the order.

The party requesting interim measures may however be liable to ‘any costs or damages caused by the measure to any other party if the Arbitral Tribunal later determines that…the measure should not have been granted’’.

Article 15 also provides that ‘it is not incompatible with an Arbitration Agreement for a party to request, before or during arbitral proceedings, from a court an interim measure of protection…’. This provision however, does not outline circumstances in which this course of action would be applicable.

ADGM

Unless otherwise agreed by the parties, the Arbitral Tribunal may grant interim measures at the request of a party to the arbitration, pursuant to the ADGM Regulations (Regulation 28).

This request is made on notice to the other party and the Arbitral Tribunal may grant interim measures to:

‘maintain or restore the status quo pending determination of the dispute’;

‘take action’ to prevent or not take such action that ‘is likely to cause, current or imminent harm or prejudice to any party or to the arbitral process itself’;

preserve ‘assets out of which a subsequent award may be satisfied’; or 

preserve evidence that may be relevant and material to the resolution of the dispute’. (Regulations 27(2)((a)-(d)).

A party requesting such relief must, however, satisfy the Court that:

“harm”, which cannot be rectified by damages, will be inflicted upon the requesting party, should the interim measure not be ordered;

“harm” to the requesting party, by not granting the interim measure, is greater than that “harm” caused to the party against which the interim measure is to be ordered; and

‘there is a reasonable possibility that the requesting party will succeed on the merits of the claim’.

These interim measures may be modified, suspended or terminated, at the request of a party, or in ‘exceptional circumstances and upon prior notice to the parties, on the arbitral tribunal’s own initiative’.

The Court may further require:

security in connection with the interim measure ordered; and/or

immediate notification should the grounds on which an order was requested or granted change.

The requesting party will further be liable for costs and damages should the Arbitral Tribunal later determine that the interim measure should not have been granted.

These costs and damages may be awarded against the requesting party at any point in the arbitral proceedings.

UAE – Federal Jurisdiction

Anti-suit and/or anti-arbitration injunctions are not recognised by the UAE Federal judicial system and as such are not issued.

UAE – Common Law Jurisdictions

The DIFC Courts can issue such injunction although so far this has primarily occurred in instances of competing jurisdictions between the DIFC and non DIFC / mainland Dubai.

With the introduction of the Joint Judicial Committee, which was established to deal with, amongst other issues, jurisdictional conflicts between the DIFC Courts and Dubai Courts, with regard to, for example, which court has jurisdiction to enforce a given award, the instances of applications for anti-suit (and even less so anti arbitration) injunctions have been substantially reduced.

This trend is highly likely to continue with the New Judicial Authority which may issue binding decisions on the non-DIFC Courts and the DIFC Courts.

A similar approach will likely be taken by the ADGM Courts given its direct incorporation of English Law.

UAE- Federal Jurisdiction

Article 36 of the UAE Arbitration Law provides for an Arbitral Tribunal, upon its own initiative or pursuant to a party’s request, to seek the court’s assistance in taking evidence.

A witness may, therefore, be required to appear before the Arbitral Tribunal, to:

‘submit oral testimony’; and/or

‘present documents or any evidence thereof’.

The request submitted to the president of the Court, may decide on the following:

‘a-Sentencing the witnesses who fail to appear or abstain from answering without legal justification with the penalties prescribed in the applicable laws in the State.

b-Rendering a decision requiring a third party to produce a document in his possession which is significant to resolve the dispute.

c-Issuing a letter rogatory’.

Whilst rarely exercised, these powers allow, in theory, an Arbitral Tribunal to access the local courts and require the production of evidence.

UAE – Common Law Jurisdictions

Article 34 of the DIFC Arbitration Law and Regulation 48 of the ADGM Regulations provide that the Arbitral Tribunal or a party (with approval of the Arbitral Tribunal) the right to request ‘assistance in taking evidence’.

The rules of arbitral institutions such as the DIAC Rules (Article 25.2) and the ArbitrateAD Rules (Article 31.2) provide the Arbitral Tribunal with the discretion to adopt its preferred rules on evidence.

Whilst not drafted specifically with arbitration in mind, the Dubai Legal Affairs Department has published the ‘Charter for the Conduct of Advocates and Legal Consultants in the Emirate of Dubai’ (the “Charter”). The Charter applies to legal services including arbitration. This Charter, however, remains in draft form and therefore may be subject to amendment.

The DIFC Court’s Code of Best Legal Professional Practice (“DIFC COP”), applies to both practitioners who undertake contentious work in the DIFC Courts and those who undertake non-contentious work but are licenced to conduct business in the DIFC ‘(and who are registered with and authorised by DFSA (Dubai Financial Services Authority) as Ancillary Service Providers)’. The DIFC COP does not, however, have any regulatory status.

The ADGM Courts’ Rules of Conduct 2016 (“ADGM ROC”) applies to lawyers who authorised to practice law in any jurisdiction and who exercise a right of audience before the ADGM Courts or have conduct of litigation in respect of proceedings before the ADGM Courts. Failure to abide by the ADGM ROC may give rise to sanctions imposed by the ADGM Courts.

UAE- Federal

Article 48 of the UAE Arbitration Law only refers to the confidentiality of the arbitral award as opposed to the arbitral proceedings. However, it can safely be deduced that if the arbitral award is considered confidential, such confidentiality would also extend to the proceedings leading up to the award.

UAE-Common Law

Article 14 of the DIFC Law and Article 45 of the ADGM Regulations both expressly provide for the confidential nature of arbitration proceedings.

N/A

In general, interest is awarded in most UAE-based arbitration proceedings, commonly as post-award, unless specific contractual provisions allow for pre-award interest.

Pre-award interest may be claimed pursuant to Article 88 of the UAE CPC which provides for a commercial obligation (essentially, the monetary debt) being a sum of money which was known at the time that the obligation arose.

The above provision stipulates that in such an instance, if the debtor delayed its payment, it shall be bound to pay to the creditor as compensation for delay, interest up to 12% per annum, unless the parties have agreed otherwise.

The creditor does not have to prove actual loss incurred in order for it to claim interest and this is stipulated in Article 89 of the aforementioned law.

The legal requirements for the recognition of an arbitral award, differ between those applied to foreign and domestic arbitral awards.

Foreign Arbitral Awards

The enforcement of foreign arbitral awards by the UAE Federal Courts or the DIFC Courts is generally straightforward and in general compliance with the New York Convention.

The location of the assets, against which the arbitral award is to be enforced, will ultimately determine the court in which the enforcement proceedings are brought.

Domestic Arbitral Awards

It was commonplace for arbitral awards, prior to the introduction of the UAE Arbitration Law, to be nullified for very idiosyncratic reasons native to the UAE.

The recent introduction of the UAE Arbitration Law has overcome some but not all of the possible reasons for award nullification that existed under the previous legislation.

Article 4 of the UAE Arbitration Law may continue to expose arbitral awards to the risk of nullification.

The grounds for such nullification could be that a natural person (or a representative thereof) who was not legally competent to enter into an agreement to arbitrate, did so.

An agreement to arbitrate entered into by such individuals (or a representative thereof), would be rendered void.

The UAE Arbitration Law also retains certain procedural requirements which may affect the arbitral process.

Article 61 of the UAE CPC, for example, requires that ‘The attorney may not:… go to arbitration; … abandon litigation …or undertake any other action for which the law requires special authorisation’.

The requirement for specific powers of attorney for those, other than the “General Manager” named in the company’s trade licence, appears to have survived the introduction of the UAE Arbitration Law.

Article 41 of the UAE Arbitration Law prescribes the criteria for an arbitral award, which includes the requirement that the nationalities of the arbitrators are stated in the final award.

A very positive provision of this article confirms that an arbitral award will be deemed to have been signed at the seat of the arbitration, regardless of where it was actually signed.

With regard to reasons of an award, Article 41 (4) of the UAE Arbitration Law, Article 38(2) of the DIFC Arbitration Law, Article 55(2) of the ADGM Regulations, Article 34.4(g) of the DIAC Rules, Article 41.3 of the ArbitrateAD Rules all provide that the award shall be reasoned unless the parties agree otherwise.

UAE- Federal Jurisdiction

The UAE Arbitration Law introduces a fast-track approach to the recognition and enforcement of arbitral awards (Article 55).

A request, on an ex parte basis, may be submitted to the president of the Court, for ‘the recognition of the arbitral award and the issue of an enforcement order’.

The president of the relevant court or delegated judge must, within 60 days of the date of filing of this request, order the recognition and enforcement of the arbitral award, unless a reason to nullify the award set out in Article 53 is furnished.

Should an action to nullify the arbitral award be filed with the Court, the enforcement of the award is not automatically stayed (Article 56).

A party may, however, request that the enforcement of the arbitral award is stayed. A stay will only be granted by the Court if the request is based on ‘serious grounds’ (Article 56).

The Court must decide on the request to stay the enforcement of an arbitral award within 15 days of the first hearing to examine this request.

If a stay is granted by the Court:

1. it may request a ‘final guarantee or security’ from the party which requested the stay; and
2. it is required to decide on the ‘action in nullity’ within 60 days from the date of its decision to stay proceedings.

UAE – Common Law Jurisdictions

DIFC

The Rules of the Dubai International Financial Centre Courts 2014 (the “RDC”) set out the process applicable to arbitration claims (Part 43 of RDC).

An arbitration claim, including an application to either recognise or enforce an arbitral award (Part 43.2(3)(xii) of the RDC), must be commenced through the issue of the arbitration claim form in accordance with Part 8 of RDC (Part 43.3 of the RDC).

An application to either recognise an arbitral award (Article 43 of DIFC Arbitration Law) or enforce an arbitral award (Article 42(1) of the DIFC Arbitration Law) ‘may be made without notice’ (Part 43.62 of the RDC).

The Court does, however, retain the authority to specify which parties to the arbitration must be served with an arbitration claim form (Part 43.63 of the RDC).

The Order enforcing or recognising the arbitral award must be served on the party against which recourse is sought (Part 43.68 of the RDC).

The recipient has 14 days after the service of an Order, made without notice, to apply to set aside the Order (Part 43.70 of the RDC).

Where an Order is served outside of Dubai, the Court will determine the period of time during which the recipient can apply to set aside the Order (Part 43.70 of RDC).

ADGM

The ADGM Court Procedure Rules 2016 (the “ADGM CPR”) set out the rules in relation to Arbitrations (Part 27 of the ADGM CPR) and arbitral awards.

An arbitration claim, including a claim for the enforcement of an arbitral award, must be made through the issue of an arbitration claim form pursuant to Rule 30 of ADGM CPR (Rule 231(2) of the ADGM CPR).

The ADGM CPR, however, provides that an application made pursuant to section 56 of the ADGM Regulations [recognition and enforcement of awards] for the enforcement of an award may be made without notice.

However, the Court may ‘specify those parties to the arbitration, on whom the claim form must be served’ (Rules 232(2) of the ADGM CPR).

Following service of an Order to enforce an arbitral award, the recipient has 14 days, from the date of service, to apply for the setting aside of the Order (Rule 234(3) of the ADGM CPR).

Where the recipient of the Order is outside of the jurisdiction, the Court may decide upon the time period, within which the recipient may apply to set aside the Order (Rule 234(3) of the ADGM CPR).

Domestic Awards

The different standards of review are set out in the response to Question 33 above.

Foreign Awards

Foreign Awards are subject to the provisions of the New York Convention.

UAE – Federal

There are no specific limits on the remedies that an Arbitral Tribunal in an On-Shore arbitration may award.

UAE – Common Law Jurisdictions

Neither the DIFC Court nor the ADGM Court impose any specific limit, nor expressly classify any remedies as unenforceable.

However, an award may not be enforced upon public property owned by an Emirate or government body as set out in Article 242 of the UAE CPC

UAE- Federal Jurisdiction

Should a party wish to nullify an arbitral award, it may only do so by ‘lodging an action of nullity with the Court’ (Article 53) or by objecting during the process for recognising an arbitral award.

The Process for Challenging

Pursuant to Article 54 of the UAE Arbitration Law, a party has 30 days, from the date of notification of the arbitral award to apply to nullify the arbitral award.

The Court may, at the request of a party, stay enforcement proceedings for a period of up to 60 days in order to provide the Arbitral Tribunal with the opportunity to address any possible grounds  for award nullification.

The Grounds for Challenging

The party which intends the arbitral award to be nullified, pursuant to Article 53 of the UAE Arbitration Law, can do so on the following grounds:

1. there was no arbitration agreement, or such agreement was null and void or forfeited pursuant the law applied by the parties or the UAE Arbitration Law, where no law was chosen;
2. a party to the arbitration agreement was incapacitated or lacked capacity, at the time of its conclusion;
3. a party had no legal capacity to be part of the arbitration;
4. a party was unable to submit his statement of defence due to having been given improper notice of the appointment of an arbitrator or arbitral proceedings, or by reason of a failure on behalf of the Tribunal, or for any reasons outside the control the party;
5. the arbitral award did not apply the law agreed by the parties, to the subject of the dispute;
6. the appointment and/or composition of the Arbitral Tribunal was contrary to the UAE Arbitration Law or the agreement of the parties;
7. the arbitral process is void in such a way that it influenced the arbitral award, or the arbitral award was issued after the deadline for issuing the arbitral award; and
8. the arbitral award addressed matters not covered by the arbitration agreement, or beyond the scope of the arbitration, unless such matters can be separated from the arbitral award.

Should a dissatisfied party wish to appeal Court’ decision on nullification of an arbitral award, it may do so through the Court of Cassation.

UAE – Common Law Jurisdictions

The DIFC Arbitration Law (Article 41) and the ADGM Regulations (Regulation 58) set out the grounds on which an application for setting aside award may be made.

DIFC

An arbitral award may be set aside under the DIFC Arbitration Law where the Court finds that:

‘the subject-matter of the dispute is not capable of settlement by arbitration under DIFC Law;

the dispute is expressly referred to a different body or tribunal for resolution under this Law or any mandatory provision of DIFC Law; or

the award is in conflict with the public policy of the UAE.

The first and last requirement listed above are essentially the same as in Article V of the New York Convention.

ADGM

An arbitral award may be set aside under the ADGM Regulations only where the Court of First Instance finds that:

‘the subject-matter of the dispute is not capable of settlement by arbitration under the Laws of the ADGM’; or

the recognition or enforcement of the award would be contrary to the public policy of the UAE’.

The above grounds are essentially the same as those on which a foreign arbitral award may be refused recognition and enforcement under Article V of the New York Convention.

UAE- Federal Jurisdiction

Article 54(5) of the UAE Arbitration Law provides that the right to challenge an arbitral award cannot be waived prior to the issue of the award.

The grounds on which the arbitral award can be nullified are set out in Article 54 of the UAE Arbitration Law.

The nullification of an arbitral award is only subject to appeal before the Court of Cassation.

UAE – Common Law Jurisdictions

The DIFC Arbitration Law does not expressly either allow nor restrict the parties to the arbitration from agreeing to exclude rights of appeal or recourse to the Courts.

This right may, however, be waived by the parties or the grounds on which such an application may be permitted can be limited by agreement under the ADGM Regulations (Regulation 54).

UAE- Federal Jurisdiction

There are no statutory provisions whereby a third party/non-signatory may be bound by or challenge the recognition of an arbitral award pursuant to UAE Arbitration Law.

UAE – Common Law Jurisdictions

The DIFC Arbitration Law (Articles 42, 43 and 44) and the ADGM Regulations (Regulation 61 and 62) do not provide for an arbitral award to be binding upon or challenged by a third party/non-signatory.

The local arbitration market has not been significantly impacted by Third-Party Funding although the option has been promoted within the region to interested stakeholders. Both DIAC Article 22 and ADGM Article 37 expressly provide for the accommodation of Third-Party Funding in proceedings.

UAE- Federal Jurisdiction

The concept of emergency arbitrator relief has not been envisaged within the UAE Arbitration Law until recently by virtue of the amendment of the DIAC Rules, which now provides for the provision of appointment of an emergency arbitrator under Article 2 of Appendix II.

The ArbitrateAD Rules contains Article 35 which provides rules for the application for Emergency Arbitrator.

UAE – Common Law Jurisdictions

The International Chambers of Commerce announced in 2017 that it would open a representative office in Abu Dhabi located in the ADGM. The ICC Arbitration Rules (2012) and the ICC Arbitration Rules (2017) both provide the services of an emergency arbitrator. This office became operational in 2018.

There are no provisions within the UAE Arbitration Law, the DIFC Arbitration Law or the ADGM Regulations which relate to expedited procedures for claims below a certain value.

However, following the recent amendments, the DIAC Rules now provide for expedited arbitral proceedings (Article 32).

The ArbitrateAD Rules (Article 36) and the ICC Rules (Articles 30 and Appendix VI) also contain rules on expedited arbitral proceedings.

ICC?

The population of the UAE is a confluence of cultures, with professionals stemming from a range of jurisdictions, ethnicities and differing legal traditions, working in a single market. The arbitration community reflects this diversity both as counsel and arbitrators.

The UAE further recognises the benefits of developing the new generation of young arbitrators when it previously launched “DIAC 40”. An initiative to support the development of younger arbitrators in the MENA area.

Foreign arbitral awards which seek enforcement in the UAE, are subject to the requirements of Article V of the New York Convention. However, recent cases have emerged whereby foreign arbitration awards have been denied recognition and enforcement in the UAE due to a conflict with Article 20, of the UAE CPC, which limits the courts’ jurisdiction to cases concerning award debtors who are citizens, or foreigners with residence or domicile in the UAE.

As previously indicated, the Joint Judicial Committee, and the New Judicial Authority, was and has been established to deal with amongst other issues, jurisdictional conflicts between the DIFC Courts and Dubai Courts with regard to which court has jurisdiction to enforce a given award, based on a number of criteria.

Corruption in arbitration is not frequently alleged and even less frequently proven in the UAE.

In the limited number of instances where a party has sought to challenge the impartiality and independence of an arbitrator, the burden of proving such lack of impartility or independence rested with the challneging party and the relevant decision was taken by the suprevising arbitral body.

Throughout the COVID-19 pandemic, arbitration institutions within the UAE remained fully operational and equipped to remotely carry out their services.

As with other jurisdictions, proceedings have been largely digitised with numerous service providers ensuring the efficient conduct of virtual hearings.

Currently, as the COVID-19 pandemic has settled down and work has been resumed through their physical offices, arbitration instutions within the UAE remain flexible and fully equipped to conduct virtual remote hearings, as the case may require.

The UAE’s reforms of its arbitration landscape in recent years – before the COVID-19 pandemic – have significantly put the UAE at an advantage in adapting to the radical changes necessitated by the COVID-19 pandemic in 2020. In general, the arbitration laws within the UAE provide a distinction between the legal seat of arbitration and the physical versus virtual conduct of arbitration hearings or meetings. This enabled tribunals and parties following the COVID-19 pandemic to conduct hearings/meetings in any place (physical or virtual) without undermining the legal seat of the arbitration.

Furthermore, Article 28(2) of the UAE Arbitration Law (enacted prior to the COVID-19 pandemic) provides that hearings and deliberations of the tribunal can be made by ‘modern means of communication and electronic technology’. Article 33(3) does not require the physical presence of the parties at any hearing. Article 41(6) of the UAE Arbitration Law also allowed the arbitral awards to be signed by electronic means.

Therefore, the UAE was able to quickly adapt to virtual hearings, electronic filings and remote communications in the conduct and administration of arbitral proceedings.

As for the rules of arbitration institutions within the UAE, except for the ICC Rules, none had explicitly provided for electronic procedures covering electronic filings and virtual hearings prior to the COVID-19 pandemic.

However, soon after the pandemic started, DIAC, the late Abu Dhabi Commercial Conciliation and Arbitration Centre and ADGM institutions have all issued guidelines and protocols to ensure the continuity of efficient administration of arbitral proceedings through electronic means. Furthermore, the new DIAC Rules recently issued in March 2022 now provide, unlike the old rules, for the tribunal to decide to conduct hearings or preliminary meetings at any place, in person, by telephone, or through any other means of virtual communication including video conferencing (Articles 20.2, 23.2 and 26.1). The same provision applies with respect to the tribunal’s authority to accept oaths and conduct examination of witnesses through virtual means (Article 27.6). The ArbitrateAD Rules contain similar provisions in Article 30.  This brings the DIAC and ArbitrateAD in line with the rules of other international arbitration institutions such as the LCIA and ICC.

Whilst the UAE has taken steps towards addressing climate change (such as ratifying the Kyoto Protocol to the UN Convention on Climate Change in 2005, being the country host of the International Renewable Energy Agency, acceding to the Vienna Convention for the Protection of the Ozone Layer and the Montreal Protocol on Substances that Deplete the Ozone Layer in 1989 and establishing the Masdar initiative on renewable energy) no disputes arising from any violations have been reported so far.

No.

Whilst there are no UAE rules or regulations related to the use of artificial intelligence related to international arbitration as of writing, the UAE has committed to a ‘National Strategy for AI’ to become a global leader in AI technology by 2031. The initial steps of this project are evident in the recent update to the Data Protection Act (Federal Decree-Law No. 45/2021), and the proposed changes to the DIFC Law No. 5/2020 “Data Protection Law”. Further evidence of the UAE embracing such technology in arbitration specifically has been seen through the ADGM releasing a program called ‘Mediation in the Metaverse’ which will facilitate online access to mediation without the necessity for parties to be in the arbitration centre itself, thereby reducing response times whilst preserving confidentiality. Thus, these developments indicate that the Artificial Intelligence space in UAE arbitration is+ dynamic, and subject to change.