A. The Contracting State and the New York Convention

1. Name of Contracting State (also specify jurisdiction(s), if relevant)

United Arab Emirates (‘UAE’).

Explanatory note: The UAE is a federation of seven emirates: Abu Dhabi, Dubai, Sharjah, Ajman, Ras Al Khaimah, Fujairah and Umm al-Quwain. The UAE has federal law applicable to all seven emirates. Any international treaty to which the UAE is a signatory applies in all emirates upon ratification by a federal decree. Within the UAE there are separate free zones, of which the Dubai International Financial Centre (‘DIFC’) and the recently established Abu Dhabi Global Market (‘ADGM’).

1. The DIFC: The DIFC has its own independent legal system, based on the common law model, and a system of independent courts (the ‘DIFC Courts’), which are part of Dubai’s judicial authority. The DIFC Courts, which operate in English, apply DIFC law only. It may be presumed that the DIFC will recognise and enforce foreign arbitration awards and apply the provisions of the New York Convention, which is an integral part of UAE law, as well as the DIFC Arbitration Law. The DIFC Courts are very arbitration-friendly; some of its judges are arbitrators and English is its working language (there is no need to submit documents in Arabic). Once a foreign arbitration award is endorsed by the DIFC Courts for the purpose of enforcement, it is enforceable in the UAE both inside and outside the jurisdiction of the DIFC.

2. The ADGM: In 2013, the Abu Dhabi Government established the Abu Dhabi Global Market (‘ADGM’), an international financial free zone in UAE's capital city. ADGM has its own independent legal system based on the common law. English law is directly applicable in the ADGM, making the ADGM the first jurisdiction in the Middle East to apply directly English law. ADGM comprises of three authorities, which include the Registration Authority, the Financial Services Regulatory Authority (FSRA) and the Abu Dhabi Global Market Courts (‘ADGM Courts’). ADGM Courts commenced operations in May 2016. The ADGM Courts adjudicate civil and commercial disputes, and form part of both the ADGM and the Abu Dhabi judicial system. ADGM has issued ADGM Arbitration Regulations which govern arbitrations seated in ADGM, as well as the enforcement of domestic and foreign arbitral awards in the ADGM courts. An ADGM award is recognised as binding within the ADGM, and enforced within the ADGM, as if it were a judgment of the ADGM court. Once an ADGM or foreign arbitration award is recognised by the ADGM Court, it is enforceable in the UAE.

The answers below relate principally to the federation of the UAE (not to the DIFC, ADGM or any other free zone within the UAE).

2. Date of entry into force of the New York Convention

19 Nov. 2006

3. Has any reservation been made under Art. I(3) of the New York Convention regarding:

(a) reciprocity?

No.

(b) commercial relationships?

No.

4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?

No. All awards made in the UAE are considered to be domestic awards.

B. National sources of law

5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?

Although the recognition and enforcement of foreign arbitration awards is specifically provided for in Arts. 235 to 238 of the Civil Procedure Law (Federal Law No. 11 of 1992) (‘CPL’), the New York Convention has been traditionally the primary instrument for the recognition and enforcement of foreign arbitration awards.

There have been a number of judgments confirming this: A recent Dubai Court of Cassation decision by the Commercial Circuit, (Decision no. 693 of 2015) on the relationship between the CPL and the New York Convention provided positive signals as to the successful enforcement of a foreign arbitration award in the UAE through the application of the New York Convention.

The UAE recently issued a standalone new arbitration law (Federal Law No. 6 of 2018) (‘New Arbitration Law’), which came into effect on 15 June 2018, repealing the previous outdated and non-comprehensive chapter on Arbitration contained in Art. 203 to 218 of the CPL. The provisions of the New Arbitration Law have been largely inspired by the UNCITRAL Model Law on International Commercial Arbitration as adopted by the United Nations Commission on International Trade Law, of 1985 and amended in 2006 (‘UNCITRAL Model Law’). The Law provides for a more streamlined and expedited regime of enforcement of arbitral awards.

However, the new Arbitration Law lacks explicit provisions as to whether it shall apply to foreign arbitral awards, and specifically to their enforcement in the UAE. For an enforcement of foreign arbitral awards in the UAE sought on the basis of the New York Convention, it has been argued that the expedited enforcement provisions of the new Arbitration Law should apply, given that Art. III of the New York Convention provides that: ‘There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards’. Given the absence of any explicit provisions to the contrary within the new Arbitration Law, it is presumed that it should also apply to the enforcement of foreign arbitral awards under the New York Convention.

In practice, the UAE Courts have in some instances applied the new Arbitration Law’s expedited regime to the enforcement of foreign awards in the UAE. It remains to be tested whether this trend will be confirmed.

C. Limitation periods (time limits)

6.

(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?

There is no specific limitation period applicable to the commencement of legal proceedings relating to the recognition and enforcement of foreign awards in the UAE. Nor are there any limitation periods for the enforcement of civil or commercial judgments in the UAE.

(b) If yes, what is the applicable limitation period (time limit) and when does it start running?

N/A.

D. National courts and court proceedings

7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?

Traditionally, and before foreign awards can be enforced in the UAE, they must be recognised by UAE courts. Once an award has been recognised by the court of first instance, it can be enforced through the execution court.

Pursuant to Art. 55 of the new Arbitration Law, the fast track enforcement procedure starts directly before the UAE federal or local Court of Appeal, and not before the Court of First Instance as previously, through the filing of an ex parte motion with the Chief Justice of the Court of Appeal.

8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?

For a UAE court to assume jurisdiction over the enforcement of a foreign award, the court must first assume jurisdiction over the matter. According to the law, the mere fact that there are assets in the UAE may not suffice to grant UAE courts jurisdiction to hear the matter or proceed with enforcement of the award.

(Source: CCI and CFE v. Sudan Ministry of Irrigation, Dubai Court of Cassation, Civil Circuit, decision no. 156 of 2013, where the courts refused enforcement on the basis of an alleged lack of a nexus with the UAE.)

Jurisdiction can be established if (i) one of the parties to the proceedings is domiciled or has a place of business in the UAE, (ii) the transaction which is the subject matter of the award was initiated in, connected to, or concluded or intended to be concluded in the UAE.

The question of whether a truly foreign award, having no connection with the UAE other than the location of assets, can be enforced in the UAE has not yet been tested, as there have been only a small number of New York Convention cases and these have had a stronger jurisdictional link to the UAE, i.e. not just the location of assets. However, as a general rule, in accordance with Art. 238 of the CPL, the terms of a treaty will supersede local law, so if the New York Convention is invoked it is likely to provide the judicial authorities with grounds to enforce an award against assets in the UAE even if that is the only link to the UAE. The issue of jurisdiction may be raised by the parties themselves or by the court, as this is considered to be a matter of public policy under UAE law.

9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?

Applications for recognition of foreign awards used to be conducted through inter partes court proceedings. However, Art. 55 of the new Arbitration Law provides that enforcement proceedings are based on ex parte motion. It is yet to be tested whether the application of the new Arbitration Law’s provisions to the enforcement of foreign arbitral awards will be sustained (see Q.5 above.).

10.

(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?

Prior to the new Arbitration Law, an appeal against the first decision granting or denying recognition and enforcement was possible. The Court of Appeal would only consider an appeal on procedural issues, not on the merits. An arbitral award cannot be appealed on the merits.

The new Arbitration Law, which has been applied in some instances to the enforcement of foreign awards, provides that an order for the ratification and enforcement of an award is required to be made by the relevant authority within 60 days from the submission of the request unless the court finds grounds for annulment. Such decision to grant or deny ratification and enforcement is subject to appeal.

Pursuant to Art. 57 of the new Arbitration Law, it is possible to file grievance against (i) the order of the Court of Appeal ratifying an award and declaring it enforceable, or (ii) against an order denying enforcement of an arbitral award, before the competent Court of Appeal within 30 days of the Court of Appeal’s notification of the order. The Court of Appeal would only consider an appeal on procedural issues and not on the merits.

(b) How many levels of appeal or recourse are available against this decision?

Two, under the new Arbitration Law. The decision may be appealed to a Court of Appeal and thereafter to the Court of Cassation.

Subject to the application of the new Arbitration Law to the enforcement of foreign arbitral awards in the UAE, Art. 57 of said Law provides that a party may appeal a decision of the Chief Justice of the Court of Appeal on the ratification or enforcement of an arbitral award by filing a grievance before the competent Court of Appeal.

11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?

Under the CPL, the earliest stage for enforcement was following the decision of the Court of First Instance, if that decision was not appealed within 30 days to the Court of Appeal. Execution against assets can be obtained if the Court of Appeal declaring the award enforceable is not appealed within 60 days to the Court of Cassation.

Subject to the assumption that the fast track enforcement provisions introduced by the new Arbitration Law apply to the enforcement of foreign arbitral awards, the earliest stage for enforcement will be following the decision of the Chief Justice of the federal or local Court of Appeal to be issued within 60 days of the request for the ratification and enforcement of the award. If such decision is not appealed within 30 days from the date of notification before the competent Court of Appeal (pursuant to Art. 57 of the Law, see Q.10(a) above), then such decision is expected to be good for enforcement.

E. Evidence required

12.

(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?

Under the CPL, the following evidence must be supplied for an application for enforcement of a foreign award:

1. the arbitration agreement showing the arbitration clause in which the parties have agreed to refer the matter to arbitration;
2. a signed copy of the arbitral award;
3. a copy of the terms of reference (if any).

Although not a requirement, it is usually advisable also to file evidence of the notice of arbitration, especially if one of the parties was not represented in the proceedings.

Subject to the assumption that the new Arbitration Law is applicable to a party seeking recognition of a foreign arbitral award on the basis of the New York Convention, a party is required to submit the evidence set forth in Art. 55(1) of the Law for an application for enforcement of a foreign award:

1. the original award or a certified copy thereof;
2. the original arbitration agreement or a certified copy thereof;
3. an Arabic translation of the arbitral award, attested by a competent authority (if the award is not issued in Arabic); and
4. a copy of the minutes of deposit of the award in Court.

(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?

The entire document must be filed; it will not be sufficient to file only certain pages of the agreement or the award. It is advisable to file the entire documentation referred to in Q.12(a) above.

(c) Are originals or duly certified copies required?

See Q.12(a) above.

(d) How many originals or duly certified copies are required?

One original set must be filed with the court. Photocopies will be sufficient to serve on the other party. These must be given to the court for service on the other party with a notice inviting that party to attend a hearing scheduled for a particular day and time. Extra copies may need to be filed for each defendant in the proceedings, if the award was made against more than one party.

(e) Does the authority or court keep the originals that are filed?

Usually the court keeps the originals for the duration of the proceedings, until a final judgment has been delivered. After the final judgment, the party that filed the documentation may file a request with the court to retrieve the original documents.

13.

(a) Is it necessary to provide a translation of the documents supplied?

Yes, unless the original document is in Arabic.

(b) If yes, into what language?

Arabic.

(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?

All translations filed in court must be translated into Arabic by a certified translator licensed by the Ministry of Justice and practising in the UAE. Therefore, even if the translation into Arabic was carried out in another jurisdiction, the translation must be checked, certified and stamped by an authorised legal translator in the UAE before it can be submitted to the court.

(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?

If the documents are lengthy, it is customary to file a translation of the relevant pages or clauses only; however, the court may order the translation of the complete document into Arabic.

F. Stay of enforcement

14.

(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?

Yes, the court may do this upon the application of either party.

(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?

None, unless there are criminal proceedings under investigation directly connected with the award or the application to enforce the award.

(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?

The UAE courts very rarely order security. Even if the proceedings are stayed, an order for security is unlikely.

Pursuant to Art. 56(3) of the new Arbitration Law, if enforcement of the award is stayed, the Court may require the party seeking the stay to provide security or a monetary guarantee.

G. Confidentiality

15.

(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?

No. The documentation filed in court in any proceedings, including enforcement of foreign awards, is not part of the public record. Such records are only available to the parties to the action and not to any third party, media or otherwise.

(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?

The hearings are generally not confidential and are usually held in open court. However, either party may apply to the judge for the hearings to be held in private.

(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?

Judgments in the UAE are not published officially, although they may be obtained privately through one of the parties. The court will generally refuse to release the judgment to any third party.

H. Other issues

16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?

Under the CPL, there was no specific statutory provision relating to a party’s right to obtain recognition and enforcement of an interim or partial foreign award. Whilst possible in principle, the process tends to be lengthy and problematic and it was advised to enforce the final award together with any interim orders, rather than enforcing an interim or partial award alone.

Pursuant to Art. 21 of the new Arbitration Law, and unless otherwise agreed by the parties, the Law explicitly recognises the arbitral tribunal’s power to award interim or conservatory measures, upon a party’s request or of the tribunal’s own motion.

Accordingly, Art. 21(4) provides that the party in favour of which the interim measure was ordered can, upon written permission from the Arbitral Tribunal, request the competent court to enforce such order or any part thereof within 15 days of receipt of the request. However, these new provisions are yet to be tested in practice with regard to the enforcement of interim or partial foreign awards.

17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?

As a general rule, it is possible to obtain recognition and enforcement of non-monetary relief, provided such relief is able to be delivered and there exists a means of enforcing the relief in the UAE.

18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?

If the award grants a number of separate reliefs, it is possible for the parties to seek enforcement of part or only some of them.

Where part of the relief ordered is contrary to UAE public policy, that part would be suspended at the recognition stage and the remainder would be enforced through the execution court.

19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?

It is likely to be extremely difficult to have a foreign award that has been set aside by a competent foreign authority enforced by UAE courts, although this has not yet been tested in the UAE.

20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?

Under the CPL enforcement regime, a payment of the standard (and substantial) non-refundable court fees was required for enforcement proceedings, i.e. AED 40,000 (approx. USD 10,900 for the Court of First Instance.)

Pursuant to the new Arbitration Law, and subject to its application to foreign arbitral awards, the applicable fees to ratify an arbitral award has been substantially reduced, i.e. AED 320 (approx. USD 80) for the registration of an ex parte motion with the Chief Justice of the Court of Appeal.

It is also to be noted that the defendant may be ordered to pay the costs of a successfully contested application for recognition and enforcement.

Country Rapporteur: Essam Al Tamimi

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