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Commercial Arbitration

Last verified on Tuesday 11th September 2018

United Arab Emirates

Thomas R Snider, John Gaffney and Dalal Al Houti

    Infrastructure

  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?
    1. The United Arab Emirates (UAE) acceded to the New York Convention in 2006, without making any declarations or reservations. The Dubai International Financial Centre (DIFC) and the Abu Dhabi Global Market (ADGM) are also bound by the New York Convention by virtue of the fact that they are part of the UAE.

      The DIFC is a financial free zone located in Dubai and established in 2004. The DIFC has its own civil, commercial and arbitration laws, and largely follows the English common law approach. It also has its own English-language common law courts. The DIFC has been designed to appeal to the international business community.  

      The ADGM is a financial free zone located in Abu Dhabi and established in 2013. Similar to the DIFC, it also has its own civil and commercial laws (including its own Arbitration Regulations). The ADGM also has its own English-language common law courts. However, unlike the DIFC, the ADGM directly applies English laws, and, as with the DIFC, has been designed to appeal to the international business community.

  2. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?
    1. The UAE, including the DIFC and ADGM, is a party to the following treaties on the recognition and enforcement of arbitral awards: the Convention on the Settlement of Investment Disputes between States and Nationals of Other States of 1965; the Riyadh Convention on Judicial Cooperation between States of the Arab League of 1983; and the GCC Convention for the Execution of Judgments, Delegations and Judicial Notifications of 1996.   

      The UAE has entered into bilateral treaties specifically dealing with mutual judicial cooperation (ie, the recognition and enforcement of court judgments and judicial orders, including orders to enforce arbitral awards) with Afghanistan (2009), Algeria (1984), Armenia (2003), Azerbaijan (2007), China (2004), Egypt (2000), France (1992), India (2000), Jordan (1999), Kuwait (2008), Morocco (2006), Pakistan (2005), Somalia (1982), Sudan (2005), Syria (2002), Tajikistan (2007), Tunisia (1975) and the United Kingdom (2007).   

      The UAE is also party to bilateral investment treaties (BITs) with a number of states, including Algeria (2002), Austria (2003), Azerbaijan (2007), Belarus (2001), Belgium–Luxembourg Economic Union (2007), China (1994), the Czech Republic (1995), Egypt (1999), Finland (1997), France (1995), Germany (1999), Greece (2016), India (2014), Italy (1997), Jordan (2010), Korea (2004), Lebanon (1999), Malaysia (1992), Montenegro (2013), Morocco (2002), Pakistan (1997), Poland (1994), Portugal (2012), Romania (1996), Russia (2013), Serbia (2014), Sweden (2000), Switzerland (1999), Syria (2001), Tunisia (1997), Turkey (2011), Turkmenistan (1999), Ukraine (2004), the United Kingdom (1993), Uzbekistan (2008) and Yemen (2001).

  3. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
    1. Arbitration in the UAE is governed by the Federal Arbitration Law No. 6 of 2018 (UAE Arbitration Law), which became effective on 16 June 2018. The UAE Arbitration Law largely adopts the UNCITRAL Model Law. It repeals articles 203-218 of the Civil Procedures Code, Federal Law No 11 of 1992 (CPC), which previously governed arbitration in the UAE.

      The UAE Arbitration Law does not apply to the DIFC or the ADGM, where each has its own arbitration laws.

      Arbitration in the DIFC is governed by the DIFC Law No.1 of 2008 (DIFC Arbitration Law). It is also largely based on the UNCITRAL Model Law.

      Arbitration in ADGM is governed by the Arbitration Regulations 2015 (ADGM Arbitration Regulations) that are also based on the UNCITRAL Model Law, but with a number of enhancements.

  4. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
    1. The UAE has a number of leading international arbitration bodies.

      The Dubai International Arbitration Centre (DIAC) is located in Dubai and is one of the leading arbitration centres in UAE. DIAC can act as an appointing authority in arbitration proceedings. The Abu Dhabi Commercial Conciliation and Arbitration Centre (ADCCAC), located in Abu Dhabi, is another popular institution. It remains unclear whether ADCCAC can act as an appointing authority, but there is nothing in the centre’s rules to prevent it from doing so. In addition, the Emirates Maritime Arbitration Centre (EMAC) was launched in 2016 and was created within Dubai Maritime City, the maritime precinct in the UAE. EMAC can act as an appointing authority in maritime arbitration proceedings. Furthermore, other Emirates (including Sharjah and Ras Al Khaimah) have introduced arbitration centres. The UAE also hosts the International Islamic Centre of Reconciliation and Arbitration. The centre was set up to hear cases governed by Sharia, the Islamic law. 

      Located in the DIFC, the DIFC-LCIA Arbitration Centre, originally established in 2008, is essentially a branch of the London Court of International Arbitration (LCIA). The DIFC-LCIA Arbitration Centre can act as an appointing authority in arbitration proceedings. In 2014, the DIFC enacted a law to create a Dispute Resolution Authority, comprising of the pre-existing DIFC courts and a new entity named the DIFC Arbitration Institute (among other divisions). It remains unclear whether the DIFC Arbitration Institute will administer arbitrations, but it seems likely that it will do so, along with other functions such as arranging education programmes on arbitration. 

      The ADGM established an arbitration centre that will facilitate the hearing of arbitrations and offer arbitration and mediation training. The International Court of Arbitration of the International Chamber of Commerce (ICC) has a Middle East and North Africa representative office in the ADGM (ICC MENA). The ICC MENA became fully operational in January 2018, and accepts the registration of arbitration cases under the ICC Rules.

  5. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?
    1. Yes, foreign institutions can and often do operate in the DIFC, the ADGM and onshore UAE (eg, the LCIA and ICC administer UAE-seated arbitrations).

  6. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?
    1. The UAE does not have a specialist arbitration court. However, the UAE Arbitration Law designates the UAE Court of Appeal (ie, the local or federal Court of Appeal, as the case may be) to deal with onshore UAE arbitration matters.

      The local UAE court judges are not very familiar with international arbitration. However, the Court of Cassation judges, the highest level of the onshore UAE courts, are more knowledgeable and supportive of international arbitration. Recent UAE Court of Cassation judgments demonstrate their support for, and understanding of, international arbitration, but errant judgments are still sometimes issued.

      The DIFC and the ADGM do not have a specialist arbitration court. Generally, the DIFC and the ADGM court judges are familiar with and supportive of the arbitration law and the practice of international arbitration. DIFC Court and ADGM Court judges also sit as international arbitrators (such as Chief Justice Michael Hwang SC of the DIFC courts).

    Agreement to arbitrate

  7. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
    1. Under the DIFC, ADGM, and the UAE regimes, arbitration agreements can cover future events. The UAE Arbitration Law, DIFC Arbitration Law and the ADGM Arbitration Regulations follow the UNCITRAL Model Law provision regarding the requirements for a binding arbitration agreement. It must be in a recorded form and can be included by reference.

      The UAE Arbitration Law also provides that a representative of a juridical person must have specific authority to enter into an arbitration agreement. In the case of a limited-liability company, the general manager is usually the authorised signatory. In the case of other corporate forms, a specific power of attorney or company authority may be required to confirm that the signatory is duly authorised. Under UAE law, a party must verify that the other party’s signatory has the necessary power to enter into an arbitration agreement. The UAE courts tend to be conservative; while arbitration agreements can be incorporated by reference, it is generally advisable that the arbitral clause is explicitly signed by the authorised parties.

  8. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?
    1. The UAE Arbitration law provides that matters for which conciliation is not possible are not arbitrable. The UAE federal laws clarify these matters to include matters related to public policy, criminal matters and family matters. Also, certain commercial agency and distributorship disputes (see, eg, articles 6-7 of the Federal Law No.18 of 1981, as amended also known as the UAE Commercial Agency Law) and all labour disputes (see, eg, Federal Law No.8 of 1980, also known as the UAE Labour Law) may not be resolved through arbitration.

      In recent years, the issue of arbitrability come to the forefront as a result of a Dubai Court of Cassation judgment. The Court of Cassation interpreted public policy widely to include all real estate disputes and disputes concerning the circulation of wealth. However, recent Dubai and Abu Dhabi court judgments have clarified that such disputes are indeed arbitrable, save for issues concerning registration of property ownership. 

      The DIFC and the ADGM are also bound by the federal laws of the UAE, save for civil and commercial matters. Therefore, similar to the restrictions in onshore UAE, an arbitration agreement may not be concluded for criminal matters, family matters and public policy matters. Moreover, disputes involving certain types of commercial agencies, distributorship and labour law may not be arbitrable as they fall under the exclusive jurisdiction of the UAE courts. However, the DIFC Arbitration Law permits arbitration in relation to consumer contracts and employment disputes, where the employer or consumer has provided consent after the dispute has arisen. Also, the DIFC Arbitration Law restricts the arbitrability of certain disputes where the legal relationship involves a party deemed to be economically weak. In addition, the ADGM Arbitration Regulations do not expressly state that certain disputes are non-arbitrable.

  9. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
    1. The UAE Arbitration Law permits joining a third party to arbitral proceedings, by the request of either party or the third party him or herself, provided that the third party is a party to the underlying arbitration agreement. (Previously, the CPC did not expressly permit third-party joinder in the arbitration.)

      The DIFC Arbitration Law does not expressly refer to third-party joinder. However, there is nothing in the DIFC Arbitration Law that prevents third party participation, provided that the parties and the third party agree to such participation. 

      The DIFC-LCIA Arbitration Centre’s Arbitration Rules 2016 (DIFC-LCIA Rules) permit third-party joinder, provided that the third party and one of the parties to the arbitration agreement consent to such joinder. It is expected that the third-party joinder would be upheld by the DIFC courts, since the parties consented to be bound by the DIFC-LCIA Rules. However, it has not been tested to date.  

      The ADGM Arbitration Regulations permits third-party joinder, provided that the third party has consented to the joinder in writing.

  10. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
    1. The ADGM Arbitration Regulations expressly permit the parties to agree (i) to consolidate arbitral proceedings, or (ii) that “concurrent hearings” (ie, hearings held at the same time) are to be held on such terms as they may agree. These consolidation orders will be made without prejudice to the date on which any claim or defence was raised for the purpose of applying any limitation periods or similar rule or provision of law. The arbitral tribunal has no power to order consolidation of proceedings or concurrent hearings, unless the parties agree to confer such power on the arbitral tribunal. 

      Neither the DIFC Arbitration Law nor the UAE Arbitration Law expressly address the consolidation of separate arbitration proceedings. In practice, however, in onshore UAE-seated arbitrations, it has been possible to consolidate separate arbitration proceedings into one arbitration, where the parties have various contracts, related to a similar commercial matter, with identical arbitration clauses (eg, where an investor has bought multiple units in the same real estate project under separate sale and purchase agreements). There is no reason why a tribunal in a DIFC-seated arbitration could not do the same. If, however, the parties to the various contracts are not identical or the contracts contain conflicting arbitration clauses, then it would not be possible to consolidate them in the absence of the consent of all the parties.

  11. 11.

    Groups of companies
    Is the "group of companies doctrine" recognised in your jurisdiction?

    1. The UAE law does not provide the ‘group of companies doctrine’. However, the UAE Federal Commercial Companies Law No. 2 of 2015 provides that a company has a corporate personality as of the date of registration stated in the commercial register at the competent authority. The UAE law provides the possibility of piercing the corporate veil in limited situations (ie, fraud). 

      The DIFC law applies the English common law principles of corporate personality. The DIFC law provides that companies (registered under DIFC Companies Law No. 2 of 2009) have a separate legal personality from that of their shareholders or members. The liabilities of a company, whether arising in contract, tort or otherwise, are the company’s liabilities and not the personal liabilities of any shareholder or member of the company. The piercing of the corporate veil is available in limited situations.

      The ADGM does not provide the group of companies doctrine. However, it is likely that the ADGM will be heavily influenced by the English approach to piercing the corporate veil (eg, where the existence of a separate corporate entity is merely a façade). However, this has not been tested yet.

  12. 12.Separability
    Are arbitration clauses considered separable from the main contract?
    1. Yes. Under the UAE, the DIFC, and the ADGM arbitral regimes, arbitration clauses are considered separate from the main contract and may survive termination or invalidation of the main contract.

  13. 13.Competence-competence
    Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?
    1. The principle of competence-competence is recognised in the UAE, the DIFC and the ADGM.

      The UAE Arbitration Law permits the arbitral tribunal to rule on its own jurisdiction, including objections in relation to the nullity, non-existence, or expiration of an arbitration agreement. The arbitral tribunal may rule on a plea either as a preliminary question or in a final award. A party may, in the event where the tribunal rules as a preliminary question that it has jurisdiction, request the competent Court of Appeal to review and make its own determination on the matter within 15 days of notification. The competent Court of Appeal is required to issue its decision within 30 days of the party’s request. The arbitral tribunal may, unless it decides otherwise, stay the arbitration proceedings pending the judicial decision on its jurisdiction. (Previously, the CPC adopted a similar approach. However, the CPC did not set a time limit for a party to request the UAE courts to rule on the arbitral tribunal’s jurisdiction.) 

      Similarly, the DIFC Arbitration Law permits the arbitral tribunal to rule on its own jurisdiction, including any objections in relation to the existence or validity of the arbitration agreement. The arbitral tribunal may rule on a plea either as a preliminary question or in a final award. A party may, in the event where the tribunal rules as a preliminary question that it has jurisdiction, request the DIFC Court of First Instance to review and make its own determination on the matter within 30 days of notification. The parties cannot appeal the decision of the DIFC Court of First Instance. The arbitral tribunal may proceed with the arbitration proceedings and make an award while such a request is pending.

      The ADGM Arbitration Regulations provide that, unless otherwise agreed by the parties, the arbitral tribunal may rule on its own substantive jurisdiction, including any objections in relation to the validity of the arbitration agreement, the constitution of the arbitral tribunal and the matters submitted to arbitration in accordance with the arbitration agreement. The arbitral tribunal may rule on a plea either as a preliminary question or in a final award, subject to the parties’ agreement. A party may, in the event where the tribunal rules as a preliminary question that it has jurisdiction, request the ADGM Court of First Instance to review and make its own determination on the matter. However, the application (a) must be made with the written agreement of all parties, (b) must be made with the permission of the arbitral tribunal, (c) the court is satisfied that the (i) determination is likely to save costs, (ii) the application was made without delay, and (iii) there is a good reason why the ADGM Court of First Instance should decide on the matter. The arbitral tribunal may decide whether to stay the arbitration proceedings pending the result of the judicial review, unless the parties agree otherwise.

  14. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
    1. There are a number of issues to note when drafting an arbitration clause in the UAE, namely: 

      Seat of the arbitration

      The parties must expressly state the desired seat of arbitration in the arbitration clause. A party vaguely referring to the seat of arbitration may result in an ambiguous arbitration clause. 

      Where the parties choose the onshore UAE as their seat of arbitration, the parties must expressly state the particular Emirate in the arbitration clause (eg, Dubai, United Arab Emirates (excluding the DIFC) or Abu Dhabi, United Arab Emirates (excluding the ADGM)), in order to avoid any doubt as to which court will be the supervisory court.

      Similarly, where the parties choose the DIFC as their seat, the parties must expressly state that the seat or legal place is the Dubai International Financial Centre or DIFC in the arbitration clause. Similarly, where the parties choose the ADGM as their seat, the parties must expressly state that the seat or legal place is the Abu Dhabi Global Market or ADGM in the arbitration clause.

      Language of the arbitration

      The parties must expressly state the desired language of the arbitration in the arbitration clause, especially where the parties desire to use a language in the arbitration proceedings other than the given default language of the seat.

      In onshore UAE arbitration proceedings, the default language is Arabic. In the DIFC and the ADGM arbitration proceedings, the default language is English.

      Number of arbitrators

      The parties must expressly state their desired number of arbitrators in the arbitration clause (provided it is an odd number of arbitrators), where the parties do not wish to comply with the default number. 

      In onshore UAE and the DIFC arbitration proceedings, the default number of arbitrators is three. In the ADGM arbitration proceedings, the default number of arbitrators is one.

      Confidentiality

      The UAE Arbitration Law provides that the arbitration hearings and the arbitral awards are confidential. (Previously, the CPC did not provide for the confidentiality of arbitration proceedings).

      Similarly, the ADGM Arbitration Regulations provides that the arbitration hearings and the arbitral awards are confidential. Meanwhile, the DIFC Arbitration Law only provides the arbitration proceedings to be confidential.

      However, it is important to note that the UAE, ADGM and DIFC do not provide for the confidentiality of the pleadings, documents, evidence or submissions (and they are not confidential by default). Where the parties desire to impose additional confidentiality protocols in the arbitration proceedings, they must expressly state such confidentiality protocols in the arbitration clause.

      Costs of the arbitration

      The parties may expressly state who will bear the arbitration and legal costs in the arbitration clause.

      In the UAE, the DIFC and the ADGM, the arbitral tribunal are empowered to order either party to pay all or part of the arbitration expenses (which include fees and other expenses payable to the tribunal and the expenses incurred to appoint experts).

  15. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
    1. Institutional international arbitration is far more common than ad hoc international arbitration in the UAE. In general, ad hoc international arbitration proceedings occur in cases where the underlying arbitration agreement is defective or unclear as to the desired institution. When ad hoc arbitrations do occur, they will often use the UNCITRAL Rules. It is always recommended to use an institution in UAE-seated arbitrations so as to help ensure the establishment of an arbitral tribunal and the support for the process.

  16. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.
    1. The UAE Arbitration Law does not provide for multi-party disputes. Generally, the parties may resort to the arbitration institution (or the competent UAE Court of Appeal in the absence thereof) in order to determine any procedural issue.

      The DIFC Arbitration Law addresses the appointment of the arbitral tribunal in the case of multi-party disputes. The DIFC Court of First Instance may appoint the arbitral tribunal without regard to any party nomination, where the parties have failed to agree in writing that the parties represent two separate sides for the formation of the tribunal as claimant and respondent respectively (eg, multiple claimants will be treated as one claimant and likewise for multiple respondents). In this case, the arbitral agreement will be treated as a written agreement for the appointment of the tribunal by the DIFC Court of First Instance. The award will be enforceable under the New York Convention notwithstanding the fact that the parties had no involvement in the formation of the tribunal because of their failure to agree on the tribunal’s appointment. Parties should bear this in mind when drafting any multi-party arbitration clauses seated in the DIFC.

      The ADGM Arbitration Regulations also address the appointment of the tribunal in the case of multi-party disputes. Where the dispute is to be referred to three arbitrators, the multiple claimants, jointly, and the multiple respondents, jointly, will each appoint one arbitrator according to the appointment procedure agreed on by the parties. The two arbitrators appointed will appoint the third arbitrator, who will be the presiding arbitrator. The institution or, where there is no such institution, the competent court may assist if the parties fail to appoint the arbitrator, or if the two arbitrators fail to agree on the third arbitrator within 30 days.

    Commencing the arbitration

  17. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?
    1. The UAE Arbitration Law provides that the arbitral proceedings commence on the day following the date of the composition of the tribunal. (Previously, the CPC did not proscribe particular rules regarding the commencement of arbitral proceedings or time limits).

      The DIFC Arbitration Law and ADGM Arbitration Regulations provide that the arbitral proceedings commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent.

      There are no limitation periods for commencing arbitration under the UAE, the DIFC and the ADGM laws.

    Choice of law

  18. 18.Choice of law
    How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
    1. The UAE Arbitration Law provides that the arbitral tribunal will apply the substantive law agreed on by the parties. Where the parties fail to agree on the substantive law, the arbitral tribunal has the authority to apply the substantive rules of the law it deems most connected to the subject matter of the dispute. The arbitral tribunal will, when determining the subject matter of the dispute, take into account the terms of the contract, the subject of the dispute and the nature of the dealings between the parties. (Previously, the CPC did not govern the determination of the substantive law in the absence of the parties’ agreement. However, in practice, the arbitral tribunal determined the substantive law using the conflict-of-laws rules they considered applicable.)

      The DIFC Arbitration Law provides that the arbitral tribunal will apply the substantive law agreed on by the parties. Where the parties fail to agree, the arbitral tribunal has the authority to apply the law by considering the conflict of laws rules which it determines as applicable.

      The ADGM Arbitration Regulations also provides that the arbitral tribunal will apply the substantive law agreed on by the parties. Where the parties fail to agree, the arbitral tribunal has the authority to decide the dispute in accordance with the rules of law it considers appropriate. The arbitral tribunal, when making its determination, will take trade usage into account.

    Appointing the tribunal

  19. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?
    1. The UAE Arbitration Law provides that an arbitrator should not be (i) a minor, (ii) legally incapacitated, or (iii) stripped of his or her civil rights by reason of bankruptcy or criminal conviction. The arbitrator must also be independent and impartial. In addition, the arbitrator cannot be a member of a board of trustees or administrative board of an institution administering arbitrations in the UAE. The UAE Arbitration Law also provides that no arbitrator will be excluded by reason of nationality or gender, unless otherwise agreed by the parties.

      The DIFC Arbitration Law and the ADGM Arbitration Regulations provide that the arbitrator should be independent and impartial. The DIFC Arbitration Law and the ADGM Arbitration Regulations also provide that no arbitrator will be excluded by reason of nationality, unless otherwise agreed by the parties.

      The DIFC Arbitration Law and the ADGM Arbitration Regulations do not provide further limitations in respect of a party’s choice of arbitrator. However, it is prudent to ensure that the arbitrator is not a minor, legally incapacitated, or stripped of his civil rights by reason of bankruptcy or criminal conviction, in order to avoid any enforcement issues at a later stage.  

  20. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
    1. The UAE Arbitration Law, the DIFC Arbitration Law and the ADGM Arbitration Regulations do not prohibit non-nationals from acting as arbitrators. Non-nationals can and regularly do act as arbitrators in arbitrations seated in the onshore and offshore UAE.

  21. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
    1. The UAE Arbitration Law provides that, in the case of institutional arbitration, a party may request the arbitration institution (or the competent Court of Appeal in the absence thereof or in the case of ad hoc arbitrations) to appoint an arbitrator, where either party fails to appoint an arbitrator within 15 days of receipt of the request to do so from the other party, or to appoint a presiding arbitrator where the two-appointed arbitrators fail to one within 15 days from their appointment.  

      Similarly, the ADGM Arbitration Law provides that a party may request the arbitration institution (or the ADGM Court of First Instance in the absence thereof or in the case of ad hoc arbitrations) to appoint an arbitrator, where either party fails to appoint an arbitrator within 30 days of receipt of the request to do so from the other party, or to appoint a presiding arbitrator where the two-appointed arbitrators fail to appoint one within 30 days from their appointment. In addition, in the case of multi-party disputes, the arbitration institution (or the ADGM Court of First Instance in the absence thereof or in the case of ad hoc arbitrations) may appoint the arbitral tribunal in the absence of a joint nomination and where all parties fail to agree on a method of the arbitrators’ appointment.

      The DIFC Arbitration Law provides parties with a similar judicial assistance. A party may request the DIFC Court of First Instance to appoint an arbitrator where either party fails to appoint an arbitrator within 30 days of receipt of a request to do so from the other party, or to appoint a presiding arbitrator where the two-appointed arbitrators fail to appoint one within 30 days from their appointment.   

       

  22. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
    1. The UAE Arbitration Law makes no provisions for the immunity of arbitrators. However, the UAE law provides that arbitrators are treated as judges and, as such, they are generally immune from suit unless they have acted criminally.

      The DIFC Arbitration Law provides that an arbitrator, employee or agent of an arbitrator, arbitral institution, officer of an arbitral institution or appointing authority will not be held liable to any person for any act or omission in connection with an arbitration, unless he or she or it is shown to have caused damage by conscious and deliberate wrongdoing. However, this does not affect the liability incurred by an arbitrator by reason of his resigning. Where an arbitrator resigns, the arbitrator may request the DIFC Court of First Instance to make an order relieving him of any liability incurred by reason of his or her resignation together with such order as the DIFC Court of First Instance thinks appropriate with respect to his or her entitlement (if any) to fees and expenses, unless otherwise agreed by the parties. The order of the DIFC Court of First Instance is not subject to an appeal.

      The ADGM Arbitration Regulations provides that an arbitrator, arbitral institution or appointing authority, or any employee, agent or officer of the foregoing will not be held liable to any person for any act or omission in connection with an arbitration, unless he/she/it is shown to have caused damage by conscious and deliberate wrongdoing.  

      The UAE expanded the potential criminal liability of arbitrators on 18 October 2016. Federal Law No. 7 of 2016 amended article 257 of the UAE Penal Code provides that an arbitrator may be punished with imprisonment for issuing a decision “in contravention of the requirements of the duty of neutrality and integrity”. While no doubt well-intentioned, this change has led some arbitrators to refuse to accept or continue with appointments, and others have insisted on hearings taking place outside of the UAE. This amendment to article 257 may have a chilling effect on arbitration in the UAE if it is not reversed. There is anecdotal evidence of arbitrators refusing to accept arbitral appointments in the UAE for as long as article 257 applies in its current form. The potential criminal liability extends to the DIFC and the ADGM, since they are also subject to the federal laws of the UAE.

  23. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?
    1. The UAE Arbitration Law, the DIFC Arbitration Law and the ADGM Arbitration Regulations all provide that the arbitral tribunal may withhold delivery of its final award if the costs of arbitration have not been fully settled. (Previously, the CPC was silent on this issue.) The precise practice and amounts involved will depend on the institutional rules and practice, where applicable, or the discretion of the tribunal itself in ad hoc cases.

      The main arbitral institutions in the UAE and the DIFC (ie, DIAC, ADCCAC and the DIFC-LCIA, respectively) usually ensure that at least some (if not all) of the fees for the arbitration are paid in advance.

    Challenges to arbitrators

  24. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?
    1. The UAE Arbitration law, the DIFC Arbitration Law and the ADGM Arbitration Regulations all provide that a party may challenge the mandate of an arbitrator only if circumstances that give rise to justifiable doubts as to the arbitrator’s impartiality and independence exist, or if the arbitrator does not possess the qualifications agreed on by the parties.

      Under the UAE law, an arbitrator may also be removed if he or she becomes bankrupt or subject to a criminal conviction. (Previously, the CPC provided for the disqualification of arbitrators on the same grounds as judges, where a conflict of interests arising from an arbitrator’s relationship with a party (ie, marriage, family, guardianship, trustee or a business relationship) or counsel (ie, witnesses or experts in proceedings) existed.

    Interim relief

  25. 25.

    Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?

    1. The UAE Arbitration Law, the DIFC Arbitration Law and the ADGM Arbitration Regulations all provide that, unless the parties agree otherwise, the arbitral tribunal has the power to order interim measures that it considers necessary. Interim measures may include orders for security for costs, and orders to preserve goods or evidence.

      In the UAE and the DIFC, the laws provide that the party (in whose favour an interim measure has been granted) may request the UAE Court of Appeal or the DIFC Court of First Instance, respectively, to enforce the arbitral tribunal’s order, provided that the party obtained a written permission from the arbitral tribunal. In the ADGM, the regulations provide that the interim measure is recognised binding and, unless otherwise provided by the arbitral tribunal, enforced upon a party’s application to the ADGM Court of First Instance irrespective of the country in which it was issued, provided such application is made on notice to all parties to the proceedings. However, the ADGM Court of First Instance may refuse recognition or enforcement of the interim measure on the same grounds as an arbitral award.

      The DIFC courts and ADGM courts also have the power to issue interim relief to the same extent as they would for proceedings in the DIFC Courts and ADGM Courts, respectively. The DIFC courts may also issue an anti-suit injunction in favour of an arbitration clause, in order to prevent a party from pursuing a claim before a foreign court.

      In addition, the UAE Arbitration Law permits the Chief Justice of the UAE Court of Appeal, upon the request of a party or the arbitral tribunal, to order interim or conservatory measures as deemed necessary for both existing or future arbitral proceedings. (Previously, the CPC did not provide the arbitral tribunal any inherent powers to order interim relief. It was also unlikely that the local UAE court would enforce any order for interim relief made by an arbitral tribunal, since the UAE courts themselves rarely grant such relief.)

  26. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?
    1. The UAE Arbitration Law provides that the arbitral tribunal may order the party requesting an interim measure to provide appropriate security for costs. (Previously, the CPC did not proscribe provisions regarding security for costs.)

      The DIFC Arbitration Law provides that the arbitral tribunal may order the party requesting an interim measure to provide appropriate security for costs, including security for the legal or other costs of any other party by way of deposit or bank guarantee or in any other manner and upon such terms as the tribunal considers appropriate. The DIFC Arbitration Law also provides that the DIFC Court of First Instance may, upon an application for the recognition or enforcement of an award, order a party to provide appropriate security for costs.

      The ADGM Arbitration Regulations provide that, unless otherwise agreed by the parties, the arbitral tribunal is empowered to order the claimant to provide security for the costs of the arbitration, provided that the claimant is not a resident outside the ADGM, or corporation or an association incorporated, formed or managed and controlled outside the ADGM. In addition, the arbitral tribunal may order the party requesting an interim measure to provide appropriate security for costs. Also, the ADGM Arbitration Regulations provides that, upon an application of recognition and enforcement of the interim award, the ADGM Court of First Instance may, if it considers appropriate, order the requesting party to provide appropriate security if the tribunal has not already made a determination with respect to security for costs, or where such a decision is necessary to protect the rights of third parties. The ADGM Arbitration Law also provides that the ADGM Court of First Instance may, upon an application for the recognition or enforcement of an award, order a party to provide appropriate security for costs.

      In the enforcement stage, the local UAE courts are likely to enforce an order for security for costs made by an arbitral tribunal. There is nothing in the UAE law that prevents enforcement of such an order, since it is not deemed to be against public policy or Sharia law.

    Procedure

  27. 27.

    Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?

    1. The UAE Arbitration Law provides that the parties may agree on the procedures that the arbitral tribunal will adopt to proceed with the arbitration. However, in the absence of the parties’ agreement, the arbitral tribunal may adopt the procedures it deems appropriate, provided that it does not conflict with the fundamental principles of litigation and international agreements (to which the UAE is a party).

      In addition, the UAE Arbitration law does not expressly require witnesses and experts to testify under oath. However, it states that the arbitral tribunal must conduct the hearings of witnesses and experts “under the laws of the UAE”, unless the parties agree otherwise. The UAE Federal Law No. 10 of 1992 on the Issuance of the Evidence Act for Civil and Commercial Transactions provides that witnesses are required to testify under oath. Therefore, unless the parties expressly agree otherwise, it is prudent that the parties continue to comply with the requirement of witnesses and experts testifying under oath. It remains to be seen how the UAE courts will interpret and apply this provision. (Previously, the CPC provided that witnesses must give evidence under oath and parties must be given a full opportunity to present their case. It was also prudent for the parties to prepare and sign a terms of reference).

      The DIFC Arbitration Law and the ADGM Arbitration Regulations each provide that the arbitral tribunal enjoys procedural freedom, provided that the parties are treated with equality and are afforded a full opportunity to present their case.

  28. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
    1. The UAE, the DIFC, and the ADGM arbitral laws all provide that the failure of a respondent to participate does not inhibit the arbitral tribunal from proceeding with the arbitration and rendering an enforceable award.

  29. 29.

    Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Arbitration generally be taken into account?

    1. The IBA Rules on the Taking of Evidence are widely used and followed in onshore and offshore UAE arbitrations.

      In the UAE, the DIFC, and the ADGM arbitral regime, parties usually include the documentary evidence on which they wish to rely on in their written pleadings. The parties will later exchange witness statements and expert reports following the resolution of disclosure requests. The witnesses and experts may be required to attend to be cross-examined.

      In the UAE, there are two principles ways for parties to admit evidence. One way is for the submission of memorials, where the parties attach the expert reports, documentary evidence and all other supporting documents along with their pleadings. Alternatively, parties may use the English approach, where the exchange of documentary evidence comes at a later stage of the arbitration (ie, not attached to the party’s pleadings).

      During onshore UAE arbitral proceedings, it is prudent that the parties continue to comply with the requirement of witnesses and experts to testify under oath, unless the parties very clearly agree to dispense with this requirement. (Previously, the CPC provided that it was mandatory for witnesses to give evidence under oath and hence if it was prudent to hold a hearing for the witness to take an oath even where the parties did not contest the evidence.)

  30. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?
    1. The DIFC Arbitration Law and the ADGM Arbitration Regulations provide that a party or the arbitral tribunal can request assistance from the competent court (ie, DIFC Court of First Instance or ADGM Court of First Instance, respectively) in taking evidence.

      The UAE Arbitration Law provides that only the arbitral tribunal, either on its own motion or upon a party’s request, can request assistance from the competent Court of Appeal. The scope of such judicial assistance remains to be unclear, but it is possible that the court could order a witness to participate or a third party to disclose information.

  31. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
    1. Under the DIFC, ADGM, and UAE arbitral regimes, the arbitral tribunal is not barred from ordering parties to disclose documents. Tribunals tend to refer to the IBA Rules on the Taking of Evidence for guidance on document production issues. 

      The UAE Arbitration Law provides that the Chief Justice of the competent Court of Appeal may order a third party to produce a document in its possession that may be essential for determining the dispute.

  32. 32.Hearings
    Is it mandatory to have a final hearing on the merits?
    1. The UAE Arbitration Law, the DIFC Arbitration Law and the ADGM Arbitration Regulations do not make it mandatory to have a final hearing on the merits. 

      However, in onshore UAE arbitral proceedings, it is prudent that the parties and the arbitral tribunal hold a hearing in order to comply with the requirement of witnesses and experts testifying under oath, unless the parties agreed to dispense with this requirement. (Previously, the CPC required that witnesses testify under oath. It was prudent that the parties and the arbitral tribunal conducted a hearing even if it was for the sole purpose of having the witness swear an oath as to the truth of a statement previously tendered.)

  33. 33.

    Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?

    1. The UAE Arbitration Law, the DIFC Arbitration Law and the ADGM Arbitration Regulations all provide that the parties can conduct hearings and procedural meetings in any location they see fit. However, this is unusual and most hearings take place at the seat of arbitration.

      (Previously, in relation to onshore UAE arbitrations, the CPC required that the arbitral tribunal sign the award in the UAE, in order for it to be considered a domestic award. Where the arbitral tribunal did not comply with this requirement, the award was deemed to be a foreign award. It was also seen as a procedural irregularity sufficient for the UAE local courts to refuse recognition and enforcement of the award. The UAE Arbitration Law no longer provides this requirement. However, it remains to be best practice for the arbitral tribunal to sign the award in the UAE, even where that increases the costs or is otherwise inconvenient). 

    Award

  34. 34.Majority decisions
    Can the tribunal decide by majority?
    1. The UAE Arbitration Law provides that, unless otherwise agreed by the parties, an arbitral tribunal can decide on the award by majority. The president of the arbitral tribunal may issue an award where there is no majority, unless otherwise agreed by the parties. However, the arbitrators must include their dissenting opinions with the award and they will be deemed as an integral part of the award.

      The DIFC Arbitration Law provides that, unless otherwise agreed by the parties, an arbitral tribunal can decide a case by majority. However, the president of the arbitral tribunal may solely decide on questions of procedure, if so authorised by the parties or all members of the tribunal.  

      The ADGM Arbitration Regulations provides that, unless otherwise agreed by the parties, an arbitral tribunal can decide a case by majority. However, the president of the arbitral tribunal may solely decide on questions of procedure, if so authorised by the parties or all members of the tribunal. The president of the arbitral tribunal may also issue the award where there is no majority.

  35. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
    1. The UAE Arbitration Law, the DIFC Arbitration Law and the ADGM Arbitration Regulations do not have any express limitations on the types of remedies or relief that an arbitral tribunal may grant. However, in the UAE, any orders concerning the registration of property or other rights in a public register would be considered against public policy and unenforceable.  

  36. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
    1. The UAE Arbitration Law permits dissenting opinions provided that the arbitral tribunal include the dissenting opinion in the award. Dissenting opinions thus are considered to be an integral part of the award.

      Similarly, the DIFC Arbitration Law permits dissenting opinions provided that the arbitral tribunal encloses the dissenting opinion in the award. Where an arbitrator refuses to sign the award, the reasons should be stated within the award. 

      The ADGM Arbitration Regulations neither refer to nor preclude dissenting opinions.

      Dissenting opinions are rare, but do occur in the UAE.  

  37. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?
    1. The UAE Arbitration Law provides that an award must be in writing and signed by the arbitral tribunal. Any dissenting opinion(s) must be included within the award and it/they is/are deemed an integral part of it. Where an arbitrator refuses to sign the award, the arbitral tribunal must include the reasons for his/her refusal in the award and the majority must then sign the award. The arbitral tribunal must also include the reasons on which the award was based, unless otherwise agreed by the parties. The arbitral tribunal must include the parties’ information (ie, names and addresses, the information of the arbitrators (ie, names, nationalities and addresses), a copy of the arbitration agreement, a summary of the reliefs sought by the parties, a summary of the submissions and documents, the dispositive part of the award, and the date and place the award was issued. While the UAE Arbitration Law does not require this, it is best practice for the arbitral tribunal to attach the terms of reference to the award.

      (Previously, the CPC required, amongst other things, the arbitral tribunal to sign the award in the seat of arbitration. The CPC also required that the arbitral tribunal draft the terms of reference and attach it to the award.)

      The DIFC Arbitration Law provides that the award must be in writing and signed by the arbitral tribunal. Where an arbitrator refuses to sign the award, the arbitral tribunal must include the reasons for his/her refusal in the award and the majority must then sign the award. The arbitral tribunal must state the date of the award and the seat of the arbitration. The arbitral tribunal must also include the costs of the arbitration in the award.

      The ADGM Arbitration Regulations provides that the award must be in writing and signed by the arbitrators. The arbitral tribunal must also include the reasons on which the award was based, unless otherwise agreed by the parties. The arbitral tribunal must also include the date of the award and the seat of the arbitration. The arbitral tribunal must also include the costs of the arbitration in the award.

  38. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?
    1. The DIFC Arbitration Law and the ADGM Arbitration Regulations do not proscribe any time limits for an arbitral tribunal to issue its award. They provide that the parties can request the arbitral tribunal, within 30 days of the receipt of the award, to interpret the award or issue an additional award.

      The UAE Arbitration Law provides that an arbitral tribunal must issue its final award within the time limit agreed upon by the parties. Where parties fail to agree on a time limit, the arbitral tribunal must issue the award within six months from the date of the first hearing of the arbitration. The arbitral tribunal may extend this time limit by an additional six months, unless the parties agree to a longer period.

      The UAE Arbitration Law provides that, within 30 days of the receipt of the award, the parties can request the arbitral tribunal to interpret the award, correct material errors in the award, or issue an additional award.

    Costs and interest

  39. 39.

    Costs
    Are parties able to recover fees paid and costs incurred? Does the "loser pays" rule generally apply in your jurisdiction?

    1. The UAE Arbitration Law provides that an arbitral tribunal can assess the costs of the arbitration, unless the parties agree otherwise. The arbitral tribunal may issue cost orders against one party (eg,, the expenses incurred by arbitrators or the costs for tribunal-appointed experts). (Previously, the CPC did not empower the tribunal to award legal costs. However, the tribunal was empowered to award tribunal and institutional costs. This meant that, in the absence of the parties’ agreement, the parties may not have been able to recover legal costs.)

      The DIFC Arbitration Law and the ADGM Arbitration Regulations provide that the arbitral tribunal may fix the costs of the arbitration in the award (including legal costs). The ‘loser pays’ rule is common in DIFC arbitrations.

  40. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?
    1. U

      The UAE Arbitration Law does not provide for interest on the award.

       

      The DIFC Arbitration Law does not provide restrictions on claiming interest, or any other mandatory or customary rates.

      The ADGM Arbitration Regulations provides that an arbitral tribunal may award simple or compound interest for any period up to the date of the award, or up to the date of payment and/or from the date of the award until payment.

      Under the laws of the UAE, parties may claim interest on the award. The UAE Federal Commercial Transactions Law No. 18 of 1993 provides that the interest is calculated on the basis of the agreed rate until full settlement, where the contract stipulates the rate of interest and the debtor delays payment. The interest must be paid at the end of the year (if the debt is for one year or more) or on the maturity date of the debt (if the debt period is less than one year), unless otherwise required by the commercial or banking practice.

      Generally, arbitral tribunals will award between 9 and 12 per cent per annum calculated on simple interest. In relation to compound interest, the arbitral tribunal is not prohibited from awarding such interest to the parties. However, the UAE Courts may, in some cases, refuse the enforcement of such an award of compound interest at the enforcement stage. In the past, there have been contradicting judgments between the UAE Federal Courts and the Dubai courts in regard to compound interest. On the one hand, the UAE Federal Supreme Court held that compound interest is not acceptable and regards such an interest structure as null and void (Federal Supreme Court case 130/19). On the other hand, the Dubai Court of Cassation allowed compound interest as long as it is calculated at the agreed rates or prevailing market rate. The Dubai Court of Cassation stated that interest is calculated as compound interest in respect of the period prior to closing a current account and as simple interest thereafter (Dubai Court of Cassation judgment 46/1992).

    Challenging awards

  41. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
    1. The UAE Arbitration Law, the DIFC Arbitration Law, and the ADGM Arbitration Law provide that awards are final and binding. Thus, parties cannot appeal arbitral awards in the UAE.

  42. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?
    1. The UAE Arbitration Law, the DIFC Arbitration Law, and the ADGM Arbitration Law provide that a party may only set aside an award on the grounds set out in the UNCITRAL Model Law.

      (Previously, the CPC provided that awards would be challenged on a wider number of grounds: 

      • the award was rendered without an arbitration deed or was based on an invalid document;
      • the arbitrator was improperly appointed;
      • the award was issued by one arbitrator in the absence of other members of the tribunal without permission;
      • the award was issued out of time;
      • an invalidity occurred in the ruling or in the procedures, which influenced the ruling;
      • the subject matter of the award was not capable of being arbitrated; or
      • the award was contrary to the public policy of the UAE.)
  43. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
    1. The UAE Arbitration Law provides that the parties cannot waive the right to invoke the nullity of an award.

      The DIFC Arbitration Law does not proscribe restrictions on the parties agreeing to exclude any right of appeal or recourse to the courts. However, such clauses have not been tested.

      The ADGM Arbitration Regulations provide that the parties may expressly waive fully the right to bring an action for setting aside or may limit their right to one or more recourse grounds.

    Enforcement in your jurisdiction

  44. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
    1. This has not been tested in the DIFC, ADGM, or UAE. As a New York Convention jurisdiction, it is possible that a foreign award would be refused enforcement if it has been set aside by the courts of the seat. The UAE courts tend to be conservative, so a common view is that they would be disinclined to enforce an award which has been set aside at the seat.

  45. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
    1. As regards the DIFC, the DIFC courts are supportive of international arbitration and will enforce foreign arbitral awards. Recent judgments have indicated that the DIFC courts are willing to allow parties to use the DIFC as a conduit jurisdiction (ie, an award creditor can have the award recognised in the DIFC (even though the debtor has no assets there) in order for the creditor to enforce the award more easily as a court judgment in other parts of the UAE or the Middle East). This can also be the case where the award is a domestic award seated in other parts of the UAE. However, although the DIFC courts see no issue with this, it appears that the Dubai local courts find it problematic, at least in certain cases. A Judicial Tribunal has been recently set up, under Decree 19 of 2016, to deal with issues of jurisdiction between the DIFC and Dubai courts. The Judicial Tribunal has issued a number of decisions, which suggest that the DIFC courts may not entertain applications for the enforcement of UAE-seated awards. According to the Judicial Tribunal, this is something that only the competent UAE court can do. In another decision, the Judicial Tribunal blocked the DIFC courts from recognising and enforcing a London-based arbitration decision where the debtor had previously initiated an action with a dispute-resolution centre of the Dubai local courts.  

      As regards the UAE, although the UAE signed the New York Convention in 2006, it is only in recent years that foreign awards have been presented to the courts for enforcement. The courts have been enforcing foreign awards consistent with the New York Convention, but errant judgments (particularly first-instance decisions) do occur sometimes.

      As regards to ADGM, it is too early to comment.

  46. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
    1. Under UAE law, UAE state parties are not immune from suit, but they are immune from execution. UAE law prohibits seizing public or private properties owned by the UAE or one of the Emirates for the purpose of enforcement. Debt due from the governments in the UAE, their emanations, or corporations cannot be recovered by a legal process as they are immune from seizure pursuant to article 247 of the CPC. It will thus be difficult to enforce an award against sovereign assets in the UAE as the UAE courts will not enforce it on public policy grounds. 

    Further considerations

  47. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?
    1. The UAE Arbitration Law provides that arbitration hearings and arbitral awards are confidential, unless otherwise expressly agreed on by the parties. However, the Arbitration Law permits the publication of judicial orders that include the arbitration award. (Previously, the CPC did not provide provisions for the confidentiality of the arbitration proceedings.)

      The DIFC Arbitration Law provides that, unless otherwise agreed by the parties, arbitration proceedings are confidential, “except where disclosure is required by an order of the DIFC Court [of First Instance]”.

      The ADGM Arbitration Law provides that arbitration proceedings and awards are confidential, unless otherwise agreed by the parties. However, it provides that disclosure is permitted in certain circumstances: if the disclosure was:

      • made in legal proceedings before a court (ie, enforce or challenge the award, or protect the legal right of a party),
      • under an order by law,
      • required for a party to comply with financial reporting obligations of the rules of an authority,
      • made to an adviser of a party,
      • made to potential lenders or investors, and
      • made if the tribunal determines that it is in the interest of justice.

       

  48. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
    1. The UAE Arbitration Law provides that an arbitral tribunal may, unless otherwise agreed by the parties, decide whether to conduct oral hearings in order to present evidence and oral arguments. An arbitral tribunal will hear witness and expert testimony in accordance with the laws of the UAE, unless otherwise agreed by the parties. The arbitral tribunal is empowered to determine the rules of evidence that will govern the admissibility, relevance or weight of the evidence submitted. The arbitral tribunal may also determine the time, manner and form in which the parties will exchange evidence. The arbitral tribunal may order the translation of the evidence. The arbitral proceedings will remain confidential, unless otherwise agreed by the parties. 

      The DIFC Arbitration Law provides that the arbitral tribunal may, unless otherwise agreed by the parties, decide whether to conduct oral hearings in order to present evidence and oral arguments. The arbitral tribunal is empowered to determine the admissibility, relevance or weight of the evidence submitted. The arbitral tribunal may order the translation of the evidence. The arbitral tribunal or a party may, with the approval of the arbitral tribunal, request the assistance of the DIFC Court of First Instance in taking evidence. Unless otherwise agreed by the parties, all information relating to the arbitral proceedings will remain confidential except where disclosure is required by an order of the DIFC Court of First Instance.

      The ADGM Arbitration Regulations provide that the arbitral tribunal may, unless otherwise agreed by the parties, decide whether to conduct oral hearings in order to present evidence and oral arguments. The arbitral tribunal is empowered to determine the admissibility, relevance or weight of the evidence submitted. The arbitral tribunal may order the translation of the evidence. The arbitral tribunal or a party, with the approval of the arbitral tribunal, may request the assistance of the ADGM Court of First Instance in taking evidence. Unless otherwise agreed by the parties, all information relating to the arbitral proceedings will remain confidential, and this arguably extends to evidence produced during the process.

  49. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
    1. In onshore UAE, the UAE Arbitration Law provides that the Minister of Economy will issue a code of professional conduct for arbitrators that will be discussed with arbitration institutions in the UAE.

      In the DIFC, lawyers who appear before the courts are subject to the DIFC Code of Best Legal Professional Practice. While it is not applicable to lawyers appearing in arbitration proceedings, there is nothing that precludes it from being adopted by the parties and the arbitral tribunal. 

      In the ADGM, there are no applicable ethical or professional standards.

      Lawyers in the UAE (including DIFC and ADGM) must comply with the 2015 Charter for the Conduct of Advocates and Legal Consultants.

  50. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?
    1. As regards onshore UAE, there are some local rules that might seem unfamiliar to international arbitration practitioners. For example, the legal representatives appearing in the arbitration must usually submit a valid power of attorney. Also, it is prudent for the arbitral tribunal and parties to ensure that the witnesses and experts testify under oath (or expressly agree otherwise). Furthermore, in Dubai, foreign counsel and foreign arbitrators should notify their details to the Dubai Legal Affairs Department.

      As regards to DIFC, international arbitration practitioners find it to be a familiar and supportive seat. As regards to ADGM, it is too early to comment.

  51. 51.

    Third-party funding
    Is third-party funding permitted in your jurisdiction?

    1. The UAE Arbitration Law, the DIFC Arbitration Law and the ADGM Arbitration Regulations do not provide for third-party funding in arbitral proceedings. 

      The UAE permits subrogation of claims by insurers (Article 1030 of the UAE Civil Transaction Code). However, the laws of the UAE prohibit law firms providing funding by way of a contingency fee agreement.

Interested in contributing to this Know-how?

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GAR know-how provides reliable cross-jurisdictional insight to help cement the building blocks of international practice. In this section, select experienced practitioners answer commonly asked questions for key jurisdictions so allowing readers to be better-placed to solve the challenges of their working days.

Questions

    Infrastructure

  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?
  2. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?
  3. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
  4. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
  5. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?
  6. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?
  7. Agreement to arbitrate

  8. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
  9. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?
  10. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
  11. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
  12. 11.

    Groups of companies
    Is the "group of companies doctrine" recognised in your jurisdiction?


  13. 12.Separability
    Are arbitration clauses considered separable from the main contract?
  14. 13.Competence-competence
    Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?
  15. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
  16. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
  17. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.
  18. Commencing the arbitration

  19. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?
  20. Choice of law

  21. 18.Choice of law
    How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
  22. Appointing the tribunal

  23. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?
  24. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
  25. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
  26. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
  27. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?
  28. Challenges to arbitrators

  29. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?
  30. Interim relief

  31. 25.

    Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?


  32. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?
  33. Procedure

  34. 27.

    Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?


  35. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
  36. 29.

    Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Arbitration generally be taken into account?


  37. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?
  38. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
  39. 32.Hearings
    Is it mandatory to have a final hearing on the merits?
  40. 33.

    Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?


  41. Award

  42. 34.Majority decisions
    Can the tribunal decide by majority?
  43. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
  44. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
  45. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?
  46. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?
  47. Costs and interest

  48. 39.

    Costs
    Are parties able to recover fees paid and costs incurred? Does the "loser pays" rule generally apply in your jurisdiction?


  49. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?
  50. Challenging awards

  51. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
  52. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?
  53. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
  54. Enforcement in your jurisdiction

  55. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
  56. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
  57. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
  58. Further considerations

  59. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?
  60. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
  61. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
  62. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?
  63. 51.

    Third-party funding
    Is third-party funding permitted in your jurisdiction?