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Copyright © International Chamber of Commerce (ICC). All rights reserved.
( Source of the document: ICC Digital Library )
A. The Contracting State and the New York Convention
1. Name of Contracting State (also specify jurisdiction(s), if relevant)
United Arab Emirates ('UAE').
The UAE is a federation of seven emirates: Abu Dhabi, Dubai, Sharjah, Ajman, Ras Al Khaimah, Fujairah and Um al-Qaiwain. 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.
Dubai International Financial Centre (DIFC): Within the UAE there are separate free zones, one of which is the DIFC. The DIFC has its own independent legal system, based on the common law model, and an independent court, which is part of Dubai's judicial authority. The DIFC Court, which operates in English, applies DIFC law only. It may be presumed that the DIFC will recognize and enforce foreign arbitration awards and apply the provisions of the New York Convention, which is part of UAE law, as well as the DIFC Arbitration Law. The DIFC Court is extremely arbitration-friendly; some of its judges are arbitrators and, as English is its working language, there is no need to submit documents in Arabic. Once a foreign arbitration award is endorsed by the DIFC Court as good for enforcement, it is enforceable in the UAE both inside and outside the jurisdiction of the DIFC.
The answers below relate to the emirates comprising the federation of the UAE, not to the DIFC or any other free zone within the UAE.
2. Date of entry into force of the New York Convention
19 November 2006.
3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
(b) commercial relationships?
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. 235-238 of the Civil Procedure Law (Federal Law No. 11 of 1992) ('CPL'), the New York Convention is the primary instrument for the recognition and enforcement of foreign arbitration awards. There have been a number of judgments confirming this.
The CPL is currently being reviewed and a draft arbitration law has been issued, based on the UNCITRAL Model Law on International Commercial Arbitration. It was initially expected to be enacted in 2008; however, it is still under discussion.
C. Limitation periods (time limits)
(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?
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
Before foreign awards can be enforced in the UAE, they must be recognized by UAE courts. Once an award is recognized by the court of first instance, it can be enforced through the execution court.
Pursuant to Arts. 235(2) and 236 of the CPL, a petition for execution must be filed with the court of first instance. The same procedure must be followed for enforcement actions being pursued under the New York Convention.
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 will not give UAE courts jurisdiction to hear the matter or proceed with enforcement of the award. Jurisdiction can be established only 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, 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 are conducted through normal inter partes court proceedings. However, the recognition of awards is unlikely to be a requirement under the draft federal arbitration law, which provides that foreign awards can be executed without needing to be recognized.
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
The decision to grant or deny recognition and enforcement is subject to appeal. The court of appeal will consider an appeal on procedural issues only; an arbitral award cannot be appealed on the merits.
(b) How many levels of appeal or recourse are available against this decision?
Two. The decision may be appealed to a Court of Appeal and thereafter to the Court of Cassation.
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)?
The earliest stage for enforcement will be following the decision of the court of first instance, if that decision is not appealed within 30 days to the Court of Appeal. Court of Appeal rulings will be good for enforcement if the decision is not appealed within 60 days to the Court of Cassation.
E. Evidence required
(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.)?
The following evidence must be supplied when an application is made for enforcement of a foreign award: (i) the arbitration agreement showing the arbitration clause in which the parties have agreed to refer the matter to arbitration; (ii) a signed copy of the arbitral award; (iii) 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.
(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?
Originals of the documents referred to in Q.12(a) above must be filed.
(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.
(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?
(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 authorized 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
(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?
It is very rare for UAE courts to request security and it is unlikely that, even if the proceedings are stayed, there would be a request for security.
(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?
There is 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. It is usually advisable to enforce the final award together with any interim orders, rather than enforcing an interim or partial award alone.
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.)?
Enforcement of a foreign award through the courts will require the payment of normal court fees. The defendant may be ordered to pay the costs of a successfully contested application for recognition and enforcement.
Essam Al Tamimi