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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
by Alain Farhad
I. INTRODUCTION
Navigating between the requirements of fairness and efficiency, arbitral tribunals fulfil their duties with the powers conferred upon them. These powers and duties can be defined explicitly in the arbitration agreement or implicitly through reference to arbitration rules. They are subject to the laws of the seat of the arbitration, which ensure that arbitral tribunals are endowed with certain powers yet circumscribed from exercising those powers beyond certain limits.
This chapter will explore, under the laws of the United Arab Emirates (UAE), the powers given to and duties imposed upon arbitral tribunals. These powers and duties are wholly dependent on the regime selected by the parties in their agreement to arbitrate. Indeed, multiple arbitration regimes and seats co-exist and compete in the UAE.
In the UAE onshore, the arbitration regime was until very recently based on 16 articles (Articles 203 to 218) of the Civil Procedure Code (CPC) (Federal Law Number 11 of 1992). This has now been replaced by the long awaited and much debated Federal Arbitration Law No. 6 of 2018 promulgated on 13 May 2018 (Federal Arbitration Law or new Law) and inspired by the UNCITRAL Model Law. While the Federal Arbitration Law is too recent for any meaningful judicial interpretation of its provisions, it is likely that at least some of the precedents of the UAE onshore relating to the now repealed CPC provisions will continue having some relevance. In relation to provisions of the Federal Arbitration Law, which have departed from and are inconsistent with the prior CPC provisions or existing judicial precedents, the Federal Arbitration Law obviously prevails and constitutes the new state of UAE positive law.
Co-existing with this onshore arbitration regime, the Dubai International Financial Centre (DIFC) and the Abu Dhabi Global Market (ADGM) have their own arbitration regimes, also based on the UNCITRAL Model Law: the DIFC Law No. 1 of 2008 (DIFC Arbitration Law) and the ADGM Arbitration Regulations 2015 (ADGM Regulations). Thus, arbitration in the UAE is remarkable, compared to most other jurisdictions in the world, because of this co-existence of multiple arbitration regimes, all broadly derived from the UNCITRAL Model Law, with similarities but also significant differences among them.
This chapter will thus address the powers and duties of arbitral tribunals under the arbitration laws of the DIFC, the ADGM, and in the UAE onshore at all major junctures of an arbitration.
II. THE TRIBUNAL’S POWERS AND DUTIES IN RELATION TO ITS COMPOSITION
Even though the arbitral tribunal lacks in enumerated powers to decide its own composition, once put in place, an appointment comes with certain duties that may give rise to liability for the members of the tribunal. Thus, under the applicable arbitration legal frameworks existing in the UAE, an arbitrator has the duty to maintain integrity as well as impartiality and independence from all parties throughout arbitration proceedings.1, 2, 3
Under the CPC, it was expressly stated that an arbitrator could also be held liable for compensation if he withdrew from the arbitral tribunal without good reason.4 That provision finds no equivalent in the Federal Arbitration Law, the DIFC Arbitration Law or the ADGM Regulations and can therefore fortunately be said to belong to the past, at least as far as the statutory frameworks are concerned. However, in a much reviled, yet to be used, relatively recent amendment to article 257 of the UAE Penal Code (Federal Law No. 3 of 1987), effective as of 29 October 2016, any person who issues a decision or gives an opinion (including an arbitrator or expert) and fails to “maintain the requirements of integrity and impartiality” subjects himself to temporary imprisonment and may be prohibited from taking further appointments.5 While there
* The views expressed herein are the author’s own and do not reflect the views of the firm. The author wishes to thank his associate Ketan Ganase for his work in preparing a draft of this chapter.
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is no doubt that arbitrators are required to maintain integrity, independence and impartiality, the creation of a specific criminal offense targeting arbitrators (and experts) unnecessarily exposes arbitrators sitting in the UAE to a risk (perceived or real) of abusive prosecution. As the UAE Penal Code applies all over the UAE, including in the DIFC or the ADGM, those offshore jurisdictions cannot in this regard be considered a safe haven for the conduct of arbitration.
An arbitral tribunal may have the power to decide challenges to arbitrators depending under which UAE law the arbitration falls. Under all three regimes, the parties have the primary right in deciding the procedure for challenging an arbitrator. However, the similarities end when such agreement is lacking. Under the ADGM Regulations, the arbitral institution administering the arbitration has the second right in deciding arbitrator challenges, followed by the ADGM Court.6 In contrast, the DIFC gives the non-challenged members of the arbitral tribunal the power to decide the challenge in the absence of party agreement, followed by the DIFC court.7 However, in a DIFC-seated institutional arbitration the institution’s rules would arguably also govern the matter as a reflection of the parties’ agreement on procedure under Article 26(1) of the DIFC Arbitration Law. Under Article 15(2) of the Federal Arbitration Law, that power is given to the “Concerned Body” that is an arbitration institution, in the case of an institutional arbitration or the competent onshore court in the case of an ad hoc arbitration.
The standards against which an arbitrator’s challenge must be assessed are also fairly harmonious under the three co-existing legislations in the UAE. The DIFC and the ADGM thus impose on an arbitrator the duty to act with independence or impartiality. As such, those duties, along with having the appropriate qualifications, are the only grounds upon which an arbitral tribunal may be subject to challenge.8, 9 The Federal Arbitration Law has adopted a nearly identical standard.10
Under the CPC, an arbitrator was said to be subject to the same obligations of independence and impartiality as a judge under UAE law.11 As such, a request for disqualification could only be made if the arbitrator was deemed unfit for passing judgment. Article 114 of the CPC defined broadly the grounds on which a judge could have been dismissed for being deemed unfit for passing judgment.12 Thus, for example, the Abu Dhabi Court of Cassation, interpreting the grounds for which a judge may be dismissed to determine the independence of an arbitrator set a high threshold for disqualification. The Court held that the fact that even though an arbitrator sitting on the tribunal had previously worked for or was associated with the law firm of the lawyer acting on behalf of the Petitioner, that did not constitute grounds for disqualification.13
Finally, under all discussed regimes, the arbitrator may only be disqualified for reasons occurring or appearing after his appointment.14, 15, 16
III. THE TRIBUNAL’S POWERS AND DUTIES IN RELATION TO THE PARTIES’ AGREEMENT TO ARBITRATE
The inceptive responsibility of arbitral tribunals in the UAE, and indeed throughout the world, is to determine whether the parties have agreed to subject their dispute to binding arbitration. That is both a power and a duty, which arbitral tribunals sitting in the UAE have and must exercise, with nuances depending on whether proceedings are conducted in the UAE onshore, in the ADGM or in the DIFC.
The first question tribunals are often faced with, usually thrust into contention by the respondent party, is whether the arbitral tribunal has jurisdiction to hear the dispute before them. To aptly answer that question, the tribunal must have the power to rule on its own jurisdiction, often referred to as compétence-compétence. Both the DIFC Arbitration Law17 and the ADGM Regulations18 specifically grant arbitral tribunals sitting under their auspices the ability to rule on their own jurisdiction. While the CPC did not expressly refer to it, Article 19 of the Federal Arbitration Law now provides an express statutory recognition onshore for this sacrosanct principle of international arbitration.
The DIFC Arbitration Law expounds on this power by affording the tribunal the ability, when its jurisdiction is into contention, to rule on a plea questioning the tribunal’s jurisdiction either as a threshold question, or in an award on the merits.19 If the tribunal makes a jurisdictional ruling as a preliminary determination, the parties are entitled to request within 30 days of that ruling that the DIFC Court of First Instance review this matter. It follows that the decision of the Court of First Instance is binding, and not subject to appeal.20
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In a similar manner, the ADGM gives arbitrators the option to rule on an objection that the tribunal lacks jurisdiction either as a preliminary determination or in an award on the merits.21 Again, like the DIFC, where a tribunal sitting in the ADGM makes a preliminary jurisdictional ruling, the ADGM Arbitration Regulations allow a party, upon notice to the other party, the ability to have the Court determine any question as to the substantive jurisdiction of the tribunal.22 However, unlike the DIFC, the ADGM court has the power not to consider a plea to have it review the tribunal’s decision in certain circumstances.23 An ADGM arbitral tribunal thus arguably has more latitude in deciding this jurisdictional threshold.
Onshore, litigants have traditionally questioned the enforceability of an adverse award on jurisdiction and the effect of a set aside application filed against it on the conduct of the proceedings. The Federal Arbitration Law has provided a much needed clarification in this regard. Thus, Article 19(2) provides that a party may seek to challenge a positive decision on jurisdiction (i.e., a decision asserting jurisdiction) before the onshore courts within 15 days of receiving such decision. The competent court will then have 30 days to decide on any such application and its decision would be final, and not subject to appeal. Furthermore, Article 19(2) makes clear that pending any such challenge, the tribunal may elect to proceed with the conduct of the arbitration. An attempt to challenge a decision on jurisdiction will therefore not automatically suspend the underlying arbitration and may not necessarily have the dilatory effect sometimes pursued by litigants.
The Federal Arbitration Law, the DIFC Arbitration Law and the ADGM Regulations all impose on arbitral tribunals to exercise this power with caution. In particular, all impose on tribunals the obligation to verify certain formalities in the agreement to arbitrate such as the existence of a valid agreement in writing and that the subject matter of the dispute submitted to arbitration is arbitrable.
All three laws thus require the arbitration agreement to be in writing24, 25, 26 with the consequence for failure to record the agreement varying between laws. Where the CPC was explicit that the validity of an arbitration agreement depends on it being in writing,27 it did not extrapolate on the meaning of “in writing” as now does the Federal Arbitration Law28 as well as the DIFC29 and the ADGM.30
Thus, decisions issued by the Abu Dhabi Court of Cassation and Dubai Court of Cassation under the old CPC relating to the scope of CPC Article 203(2) required that the agreement to arbitrate must be explicit. Where there was merely a general reference in a subcontract agreement to the terms of a document containing an arbitration clause without specific reference to the arbitration clause, the courts had deemed that that was not a valid arbitration agreement.31
However, just as it is the case for the DIFC32 and the ADGM,33 an agreement could be incorporated by reference if clear and explicit, with specific mention of the arbitration clause contained in the referenced document.34 Nevertheless, this incorporation by reference was held to have significant limitations. Thus, the Courts have held that the mere reference in a contract to an arbitration clause in a separate document, without more, did not evidence a clear and unmistakable intent to incorporate the arbitration clause contained in the document, into the contract.35
The Federal Arbitration Law, which provides a detailed definition of a written arbitration agreement, should put much of these discussions to rest with respect to onshore arbitration. All three legislations governing proceedings seated in the UAE now provide a broad definition of a written arbitration agreement, which includes the exchange of electronic correspondence.
Particularly perilous in the UAE is the question of the capacity of signatories to arbitration agreements. While the DIFC Arbitration Law (as well as DIFC Court practice) and the ADGM Regulations are believed to recognise the concept of apparent authority in the conclusion of arbitration agreements, the UAE onshore courts applying the CPC have long required the parties to have the express authority to arbitrate,36 which is not just the authority to bind a party, but the capacity to authorise arbitration.37 Put more specifically, the capacity required is the capacity to dispose of rights, rather than simply the authority to act and execute contracts and agreements.38, 39 While there has been differences of view in this regard between the Abu Dhabi and Dubai courts and while the Dubai Court of Cassation’s approach appears to have started evolving, in 201540 and 2016,41 with the acceptance of a rebuttable presumption of apparent authority, regrettably, the Federal Arbitration Law has provided no assistance in clarifying the position onshore.
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IV. THE TRIBUNAL’S POWERS AND DUTIES IN RELATION TO THE CONDUCT OF THE PROCEEDINGS
IV.1. Choice of Law
In the absence of a choice by the parties, best practices globally traditionally recognise arbitral tribunals the power to determine the law applicable to the substance of their dispute.
The DIFC Arbitration Law and the ADGM Regulations both concur to give arbitral tribunals the power to determine the law they consider appropriate or applicable to a particular dispute in the absence of agreement.42, 43 Onshore however, the Federal Arbitration Law (or before it the CPC) is silent on an arbitral tribunal’s power to do so, merely providing that the parties are free choose the law which the arbitrators shall apply but without specifying what would happen where the parties are unable to make such choice. This omission would arguably be filled, in the case of institutional arbitration, by virtue of Article 23.1. of the Federal Arbitration Law through a reference to the applicable institutional rule giving arbitrators such power in the absence of party agreement.
In this regard, both the DIFC Arbitration Law44 and the ADGM Regulations45 provide that arbitral tribunals must also take trade usage into account when deciding the dispute. Onshore, while the parties are free to choose the applicable law, their choice is said to be subject to the public order or morality of the UAE. Vast concepts which, depending on the onshore courts’ interpretation in the future, may have the potential of interfering with the parties’ choice of law or the arbitrators’ ability to decide their dispute based on that choice.
IV.2. Choice of Procedure
The Federal Arbitration Law, as well as the DIFC Arbitration Law and the ADGM Regulations all concur in giving arbitral tribunals vast powers to control arbitral proceedings. Under all three currently applicable legislations in the UAE, these powers are to a large extent granted to arbitral tribunals only as a fallback in the absence of party agreement. That is because all three legislations expressly recognise the principle of party autonomy allowing parties to largely shape the proceedings to their needs and expectations.
Under the DIFC Arbitration Law, arbitral tribunals have the power to conduct the proceedings in such manner they consider appropriate subject only to the requirements set out in the DIFC Arbitration Law and those agreed upon by the parties.46 Under the ADGM Regulations, this power is even broader, allowing the tribunal, absent party agreement, the power to conduct the arbitration in such a manner as it considers appropriate, without any reference to the framework provided by the ADGM Regulations.47
The Federal Arbitration Law also gives the parties the prevailing power to determine their own rules of procedure, if they are able to agree, including by reference to the procedural rules of an arbitration institution.48 That is a significant improvement over the CPC which did not contain any explicit acknowledgement of institutional arbitration and did not appear to have been drafted with this in mind. In the absence of agreement between the parties, the Federal Arbitration Law provides arbitral tribunals with a vast latitude to apply the rules of procedure they consider appropriate subject to the provisions of the Federal Arbitration Law and the fundamental principles of litigation and international agreements applicable in the UAE. While the notion of “fundamental principles” is arguably sufficiently vague and broad to have the potential for creating limitations to arbitral tribunals’ powers in determining the rules of procedure, there is no indication that such was the legislator’s intention and no judicial interpretation exists at this juncture to this effect or any other.
As it pertains to the conduct of the proceedings, the starting point, in nearly identical terms in each of the legislations, is that arbitral tribunals are required, to treat the parties equally. Arbitral tribunals are also required to grant the parties a reasonable (in the ADGM49) or full (in the DIFC50 and onshore51) opportunity to present their respective cases.
Beyond this threshold requirement, tribunals under all three legislations are given vast powers and control over the proceedings. Tribunals sitting offshore thus have the power to meet at any place they deem appropriate at all phases of the proceedings.52, 53 That was not historically the position onshore but under the Federal Arbitration Law, arbitral tribunals sitting onshore may now, subject to the parties’ agreement to the contrary, hold hearings or meetings and any location of their choice, including remotely by electronic means of communication.54 Arbitrators based outside the UAE and with experience of the CPC will recall, probably without nostalgia,
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that they were previously led to travel to the UAE for almost any meetings or hearings, unless the parties had specifically agreed to give them the freedom to conduct telephonic or electronic meetings.
In the DIFC55 and in the ADMG,56 arbitral tribunals also have the power, in the absence of party agreement, to determine the language or languages to be used in the proceedings. The Federal Arbitration Law however provides that in the absence of agreement between the parties, proceedings shall be conducted in the Arabic language.57 This means that parties agreeing to arbitration provisions governed by the Federal Arbitration Law would be well advised to define a choice of language if they do not wish Arabic to automatically apply. However, in practice, the effect of Article 23(1) of the Federal Arbitration Law, enabling the Parties to agree rules of procedure by reference to the rules of arbitration institutions, is that in the context of institutional arbitration, the institutional rules governing the choice of language would apply even in the absence of a specific provision to this effect in the arbitration agreement.
Offshore, arbitral tribunals can decide the deadlines for submissions,58, 59 and can also decide to terminate60 or continue61 the proceedings in the event of failure by a party to adhere to the proffered timeline. Under the Federal Arbitration Law, arbitral tribunals obviously also retain control of the timing and sequence of the parties’ written submissions, including in relation to a party’s ability to amend its claim or defence in the context of ongoing arbitration proceedings.62
UAE law, in all its three variations, also details how arbitral tribunals can manage evidentiary issues in an arbitration and in doing so generally gives tribunals vast powers to admit and assess evidence. Thus, all three legislations sanctify in the broadest possible terms the arbitral tribunals’ power to determine the admissibility, relevance and weight of evidence.63, 64, 65
All three legislations likewise grant arbitral tribunals a number of powers in seeking the assistance of experts66, 67, 68 and from the competent courts in each jurisdiction with respect to questions of evidence. Thus, arbitral tribunals sitting in the DIFC may request from the DIFC Court assistance in taking evidence.69 The ADGM regulations rightly give arbitral tribunals the power to request not only from the ADGM Court, but from any competent court, assistance in taking evidence.70 The Federal Arbitration Law gives arbitral tribunals sitting onshore the same power, on their own motion or at the request of a party and specifies that onshore courts may order a witness to testify or adduce documents. Onshore courts may also order penal sanctions if a witness fails to appear without a lawful excuse.71
Onshore, the Federal Arbitration Law has introduced a very welcome development with respect to arbitral tribunals’ power to proceed with the conduct of arbitration proceedings notwithstanding the existence of parallel related criminal proceedings. Indeed, previously the now repealed Article 209(2) of the CPC provided that: “If, during the course of arbitration, a preliminary issue, which is outside the powers of the arbitrator, arises or if a challenge has been filed that a document has been counterfeited, or if criminal proceedings have been taken regarding such counterfeiting or for any other criminal act, the arbitrator shall suspend the proceedings until a final judgement on the same has been passed.” Some litigants thus sought to obtain a stay of arbitration proceedings, which they argued Article 209(2) of the CPC mandated, through the initiation of frivolous criminal proceedings, often claiming the forgery of a document, sometimes with little relevance or materiality, in the record of the arbitration. Article 43 of the Federal Arbitration Law now makes clear that “the Arbitral Tribunal may continue reviewing the merits of the dispute if it deems that the decision on this matter, on the forgery of a document, or on any other criminal act is not indispensable for issuing an award on the merits of the dispute.” The Federal Arbitration Law thus gives arbitral tribunals discretion to determine whether the instigation of criminal proceedings warrants a stay of the proceedings or whether it can be ignored.
Finally, all three legislations impose on the tribunal the obligation to terminate the arbitral proceedings under certain enumerated circumstances.72, 73, 74 An ADGM tribunal has the power to dismiss a claim, terminate proceedings, or continue the proceedings in the event of an inordinate or inexcusable delay in the proceedings,75 or if a party fails to attend or be represented at an oral hearing or submit written evidence or make written submissions without excuse.76 The Federal Arbitration Law offers arbitral tribunals a broadly worded power to terminate proceedings if they consider that for any reason proceedings have become “useless or impossible”.
IV.3. Choice of Seat
An arbitral tribunal subject to the ADGM Regulations has the ability to decide the seat of arbitration if it has not been agreed by the parties or determined by the arbitral institution.77 The Federal Arbitration Law confers arbitral tribunals onshore a similar power, in the absence of
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agreement between the parties. In making such determination, an onshore arbitral tribunal is simply required to give consideration to the circumstances of the case, including the convenience of the parties, thus enjoying wide discretion in this regard. The DIFC Arbitration Law on the other hand only calls for the DIFC as the seat of arbitration in the absence of party agreement.78
IV.4. Conduct of Hearings
Under the DIFC Arbitration Law and the ADGM Regulations, arbitral tribunals hold the power to decide whether to hold hearings for the presentation of evidence or for oral argument.79, 80
Likewise, under the Federal Arbitration Law, arbitral tribunals can decide, again subject to contrary agreement of the parties, whether a hearing for the presentation of submission or evidence is required or appropriate in the particular circumstances of each case. 81 If a hearing is held however, the Federal Arbitration Law, contrary to its offshore competitors, requires arbitral tribunals to record it in minutes to be communicated to the parties.82 This requirement is unhelpful in that it removes from arbitral tribunals the power to decide whether a record is necessary and if so in what form. It is also not clear whether this requirement applies to all hearings and meetings (including small procedural or preliminary meetings, which may not always necessitate a formal record beyond the tribunal’s notes and whose useful contents are in any event usually reflected in an ensuing procedural order) or whether its effect is limited to merits or evidentiary hearings.
The CPC also imposed on a tribunal the obligation to cause a witness to take oath when submitting oral testimony.83 The Federal Arbitration Law makes no express reference to such obligation but provides that unless the parties agree otherwise, the testimony of witnesses and experts will be conducted in accordance with the laws of the UAE. This in practice means that arbitral tribunals will continue to require witnesses and experts to swear an oath prior to giving evidence. Notwithstanding the controversy surrounding the annulment of an arbitral award in the infamous Bechtel case,84 this does not seem to be an insurmountable obstacle, but a practice consistent with the way witnesses give evidence in many other jurisdictions, whether before courts or arbitral tribunals. The DIFC Arbitration Law and the ADGM Regulations are silent on the formalities surrounding the examination of witnesses and thus leave it to the parties to agree or tribunals to decide.
IV.5. Power to Order Interim Relief
The power to grant interim relief, often seen in the UAE in the form of security for costs or orders to preserve evidence, are specifically enumerated powers given to DIFC and ADGM tribunals if requested by any party to an arbitration.85, 86 This includes the power of the arbitral tribunal to modify, suspend, or terminate an interim measure it has granted, which the tribunal can even do on its own initiative if due notice is given to the parties.87, 88 The tribunal also has the power to order any party claiming such interim relief to provide appropriate security in connection with such measures.89, 90 The language of the DIFC, unlike the ADGM, gives arbitral tribunals the further power to evaluate whether they consider the interim measures necessary in relation to the arbitration, as an extra measure of precaution.
The position was far less clear onshore under the old CPC, which did not specifically give tribunals any inherent power to grant interim measures. This resulted in much controversy with parties sometimes arguing that tribunals were deprived of such powers or opposing the enforceability of any awards ordering interim relief. Thus, for instance, the Abu Dhabi Court of Cassation, held that “in the absence of a specific agreement of the parties in the main contract or in a submission agreement, arbitrators do not have power to order interim, conservatory or summary relief, and the parties’ agreement to arbitrate any disputes concerning the interpretation or performance of the main contract would not give the arbitrators the authority or jurisdiction to order such measures or relief.”91
The position has now changed under the Federal Arbitration Law and that is a welcome development. Thus, Article 21 expressly grants arbitral tribunals the power to order interim or conservatory measures including:92
a. An order to preserve evidence that may be relevant and material to the resolution of the dispute;
b. An order taking necessary measures to preserve goods that constitutes part of the subject-matter of the dispute;
c. An order preserving assets and funds out of which a subsequent award may be satisfied;
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d. An order maintaining or restoring the status quo pending determination of the dispute;
e. An order to take action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral process itself.
Any party requesting measures to be enacted may need to provide appropriate security to cover the costs of such measures, possibly in the form of an undertaking in damages, to cover harm suffered in the event the measure was wrongfully granted.93
A party that has obtained an interim measure may request a competent court to enforce the order or award issued by the tribunal within 15 days of the receipt of the request. It remains to be seen how the UAE courts will deal with such applications to enforce interim measures made by tribunals and whether they will seek to scrutinize or second guess the decision-making of the tribunal in making such an order or re-hear the merits of the application afresh.94 If they were to seek to re-hear de novo the merits of any such applications, that would leave very little incentive for litigants to seek to rely on the provisions on Article 21. Instead, litigants would be likely to continue relying on courts to order such measures pursuant to Article 18(2) of the Federal Arbitration Law.
All three UAE laws enable the parties to opt out of the exercise of such powers by arbitral tribunals by expressly agreeing to exclude them. The default position however is therefore that arbitral tribunals have such powers in the absence of any agreement otherwise.
Unlike the Federal Arbitration Law, the DIFC95 and the ADGM96 however both define a number of requirements for the granting of any such interim measures. Arbitral tribunals are therefore required to seek satisfaction from the parties: that harm which is not adequately reparable by an award of damages is likely to occur if the interim measure is not ordered; that that harm substantially outweighs the harm that is likely to result from the interim measure; and that there is a reasonable possibility that the party requesting the interim measure will succeed on the merits of the claim.
IV.6. Decision-making Power on Questions of Procedure
Under all three legislations,97 the default position is that decisions, including those on questions of procedure, are to be made by at least a majority of the tribunal members. Nevertheless, questions of procedure may be decided by the presiding arbitrator alone if expressly authorised by the parties or all tribunal members. Therefore, tribunals wishing to enable the presiding arbitrator to give procedural directions on his own, which may sometimes be a requirement of efficiency, must seek the parties’ express authorisation or formally agree to this effect among tribunal members.
V. AWARD
All three legislations define a number of duties and powers for arbitral tribunals in relation to the issuance of awards.
All three legislations thus agree that an arbitral award shall be issued in writing and shall be based on reasoning, unless the parties agree to forego the need for reasons.98 While the ADGM Regulations do not contain any specific reference to the expected requirement of signature, both the DIFC Arbitration Law and the Federal Arbitration Law explicitly require that an award be signed.99
The three legislations have also adopted slightly different positions with respect to the question whether in a tribunal composed of more than one arbitrator, a majority or the presiding arbitrator alone can issue an award. Thus, under the DIFC Arbitration Law, Article 38(1) provides that the signatures of the majority of all members of the Arbitral Tribunal shall suffice.100 But Article 36 suggests that the parties may agree to depart from this rule, meaning that they may require unanimity.101It is however a matter of argument whether the parties may dispense with the need for majority (i.e. empower the presiding arbitrator to decide alone), given the wording of Article 38(1) providing that signature by a majority “shall suffice”.
The ADGM Regulations define the same default position: awards can be issued by a majority unless otherwise agreed but also specifically empower (and make it a duty for) the presiding arbitrator to issue the award on his own in the absence of a majority.102 Under the Federal Arbitration Law, the award is likewise to be issued by a majority of tribunal members and in the absence of a majority the presiding arbitrator is also required to issue the award but contrary to the ADGM parties can agree to derogate from this rule.103 The Federal Arbitration Law also
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requires that any dissenting opinions be recorded in writing and communicated with the award.104 The ADGM Regulations and the DIFC Arbitration Law contain no requirements of form with respect to any dissenting opinion, although, if an arbitrator’s signature is missing on the award, the DIFC Arbitration Law requires the award to include an explanation for the omission.
Both the DIFC Arbitration Law and the ADGM Regulations give the arbitral tribunal the power to record a settlement in the form of an arbitral award on agreed terms if the parties request this, and the tribunal does not object.105 The Federal Arbitration Law makes it a duty for arbitral tribunals to issue a consent award, if requested by the parties, without a right to object to such request.
Further, the ADGM Regulations grant the arbitral tribunal the power to make multiple awards at different times on different aspects of the dispute.106 Although formulated differently, the Federal Arbitration Law grants arbitral tribunals a similar power to issue interim or partial awards on parts of the claims before them.107While the DIFC Arbitration Law is silent on the power of tribunals to issue partial awards, its Article 24(1)(b) expressly grants them the power to issue interim measures including in the form of awards.
The question of the time limit within which an arbitrator is required to complete his or her mission and issue the final award is one which has traditionally triggered much controversy in the UAE. Indeed, the CPC obligated the arbitrator to issue the award within six months from the date of the first arbitration session, unless otherwise specified in the arbitration agreement or expressly or impliedly108 extended by the parties. Failing to do so afforded the parties entitlement to refer the dispute to the court, or if a suit had already been filed, to proceed with the same before the court.109 Litigants sometimes sought to annul unfavourable arbitral awards issued in the UAE on the ground that it had been issued beyond the six-month period envisaged in the CPC. Both the DIFC Arbitration Law and the ADGM Regulations, recognising that each arbitration case is different, rightly refrain from defining a statutory time limit for the issuance of arbitral awards. The Federal Arbitration Law, has regrettably perpetuated the CPC’s reference to a six-month time limit but has explicitly given the parties the power to agree a different time limit or no time limit. The Federal Arbitration Law has further given arbitrators the power to extend this limit on their own motion for up to six additional weeks, unless the parties agree to a longer extension.110
The parties may also agree on a method for the determination of the applicable time limit, for instance, by reference to the arbitration rules of an arbitration institution. By virtue of Article 23(1) of the Federal Arbitration Law, any applicable institutional rules regarding the time limit for the issuance of the award would apply in the case of an institutional arbitration. The aspiration to help expedite arbitration proceedings by defining a time limit may be a commendable statutory objective. A difficulty however arises to the extent that the existence of a statutory time limit may give grounds for abusive attempts to derail arbitration proceedings or annul a resulting award on technicalities.
All three legislations make clear that awards can be signed from anywhere, including from outside the UAE and electronically, the award being deemed to be made at the seat or legal place of the arbitration. This was not always the case onshore as the CPC famously required that awards issued in UAE-seated arbitration proceedings be signed within the UAE.111 This routinely forced arbitrators based outside the UAE to fly to the UAE for the limited purpose of signing the award in the UAE, thereby artificially increasing the costs of proceedings and delaying their conclusion. Article 41(6) of the Federal Arbitration Law provides that an award can now be signed electronically and therefore remotely without the need for the arbitrator’s physical presence in the UAE at the time of signing.
Another controversial question in UAE law and practice is the question whether arbitral tribunals have the power to decide and apportion the parties’ costs, including the costs of their legal representation. This became a famous issue when the Dubai Court of Cassation decided to annul an award rendered under the auspices of the Dubai International Arbitration Centre because it concluded that, absent specific agreement to the contrary by the parties, the rules of that arbitration institution did not grant arbitral tribunals the power to determine the parties’ legal costs. The award was thus annulled because the arbitrators had awarded the successful party its costs in the absence of a specific agreement by the parties that they held the power to do so.112 Indeed, the CPC—applied at the time this decision was rendered—merely stated that “[t]he arbitrators shall estimate their fees and arbitration expenses and may decide that such amount, in whole or in part, be borne by the party against whom the award was issued…”113
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The CPC thus dealt with the tribunal’s power to order arbitration costs but was silent on the other costs, which parties to arbitration proceedings often incur, including the cost of legal representation or assistance by technical experts. This has resulted in arbitrators often being led to consider themselves powerless with respect to the parties’ claims for legal costs, in the absence of specific agreement to the contrary in institutional rules, terms of reference or the arbitration agreement.
The Federal Arbitration Law has regrettably not addressed these concerns highlighted in the aforementioned Dubai Court of Cassation’s decision. Thus, Article 46(1) gives arbitral tribunals the power to determine the costs of the arbitration, which it defines as including the arbitrators’ fees and the fees of any tribunal appointed expert. The Federal Arbitration Law thus contains no mention of the arbitrators’ power to award the parties’ legal costs but leaves it open to the parties to agree to give them such power. In short, the position remains identical to what it was under the CPC: absent specific agreement to the contrary, whether directly in the arbitration agreement or by reference to institutional rules, arbitral tribunals sitting in the UAE onshore are not deemed to have the power to determine the parties’ claims for legal costs.
The position is diametrically opposed under the DIFC Arbitration Law and the ADGM Regulations, which very clearly allow arbitrators to award legal costs and provide a detailed definition of costs based on the UNCITRAL Model Law to include:
a. the fees of the arbitral tribunal to be stated separately as to each arbitrator;
b. the properly incurred travel and other expenses incurred by the arbitrators;
c. the costs of expert advice and of other assistance reasonably required by the arbitral tribunal;
d. the travel and other expenses of witnesses to the extent such expenses are approved by the arbitral tribunal;
e. such other costs as are necessary for the conduct of the arbitration, including those for meeting rooms, interpreters and transcription services;
f. the costs for legal representation and assistance of the successful party if such costs were claimed during the arbitration, and only to the extent that the arbitral tribunal determines that the amount of such costs, or a part of them, is reasonable; and
g. any fees and expenses of any arbitral institution or appointing authority.114
With those enumerated costs, the arbitral tribunals convened under the ADGM Regulations have the power to direct to whom, by whom, and in what manner, the whole or any part of the costs shall be paid.115 Interestingly, the DIFC law does not expand on a tribunal’s autonomy to allocate costs as it deems fit, so the loser pays rule becomes the default.
As a penultimate power, both under the Federal Arbitration Law, the DIFC Arbitration Law and the ADGM Regulations, tribunals have the power to refuse to deliver a final award or an order for termination of the arbitral proceedings until its fees and expenses are paid in full.116
Finally, within 30 days of the receipt of the award, the DIFC Arbitration Law, the ADGM Regulations and the Federal Arbitration Law allow for parties to request the correction of any clerical, typographical or computation errors in the award, and to interpret specific parts of the award.117Both the DIFC Arbitration Law and the ADGM Regulations empower the arbitral tribunal to grant such request if it considers it appropriate whereas, oddly, the language of the Federal Arbitration Law appears to make it a duty, making no reference to any consideration by the arbitral tribunal of the merits of any such request. All three legislations also empower arbitrators to make any such corrections on their own motion.
VI. CONCLUSION
Through its concerted and continuing efforts to propel itself as a global arbitration hub, whether through the creation and continuing development of Free-Trade Zones, through the development of its Federal Arbitration Law, or through the maturing of a harmonious arbitration practice in the courts, the laws of the UAE continue to develop towards a more arbitration-friendly regime. Notwithstanding the progress recently made onshore through the adoption of the Federal Arbitration Law, there remains a number of significant differences between the three arbitration regimes co-existing in the UAE. These differences impact the contours and scope of arbitral tribunals’ powers and duties. Parties should therefore be aware of them when selecting a legal seat in their arbitration agreements. Likewise, arbitrators should be aware of them when accepting to serve under one of the legislative frameworks applicable in the UAE.
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1 Law No. 1 of 2008, Article 18(2): “An arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his impartiality or independence, or if he does not possess qualifications agreed to by the parties…”
2 ADGM Arbitration Regulations, Article 19(2): “An arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his impartiality or independence, or if he does not possess qualifications agreed to by the parties.”
3 Federal Arbitration Law, Article 14(1): “An Arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his impartiality or independence, or if he does not possess the qualifications agreed to by the Parties or stipulated by this Law.”
4 The UAE Civil Procedure Code, Federal Law No. (11) of 1992, Chapter Three, Arbitration, Article 207(2): “If an arbitrator, after having accepted his appointment, withdraws without good reason, he may be held liable for compensation.”
5 The UAE Penal Code, Federal Law No. 3 of 1987, Article 257: Any person who, while acting in the capacity of an arbitrator, expert, translator or investigator, appointed by an administrative or judicial authority or elected by the parties, issues a decision, gives an opinion, presents a report or a case or establishes a fact in favour or against a person, contrary to the duty of objectivity and integrity, shall be punished by temporary imprisonment. The above individuals shall be prohibited from undertaking the assignments commissioned to them again and the provisions of Article 255 of this Law shall apply to them.
6 ADGM Arbitration Regulations, Article 20(2): “Unless the challenged arbitrator withdraws from his office or the other party agrees to the challenge, the arbitral institution administering the arbitration, or, where there is no such institution, the Court shall decide on the challenge.”
7 DIFC Law No. 1 of 2008, Article 19(2): “Unless the challenged arbitrator withdraws from his office or the other party agrees to the challenge, the Arbitral Tribunal shall decide on the challenge.”
8 DIFC Law No. 1 of 2008, Article 18(2): “An arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his impartiality or independence, or if he does not possess qualifications agreed to by the parties.”
9 ADGM Arbitration Regulations, Article 19(2): “An arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his impartiality or independence, or if he does not possess qualifications agreed to by the parties.”
10 ADGM Arbitration Regulations, Article 19(2): “An arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his impartiality or independence, or if he does not possess qualifications agreed to by the parties.”
11 The UAE Civil Procedure Code, Article 114:1. The judge shall be incompetent to examine the action, and prohibited from hearing it, even if no one of the litigants has refused him, in the following circumstances:a) If he were a husband of one of the litigant parties or were a relative or son-of-law of him till the fourth degree.b) If he or his wife had an existent litigation with one of the litigant parties or with his wife.c) If he were an attorney of one of the litigant parties in his private business, or were his testamentary guardian, his custodian, or thought to be his heir, or a husband of one of the litigant parties’ guardian, or of his custodian, or he had a relationship or alliance till the fourth degree with that guardian, or custodian, or with one of the board members of the litigant’s company or with one of its managers and that member or manager had a personal interest in the action.d) If he, his wife, one of his relatives or his sons-in-law on the genealogy, or those to whom he was attorney, testamentary guardian, or custodian, had an interest in the existent action.e) If there were between him and one of the circuit judges a relationship or a relation by marriage till the fourth degree, and in such case the younger judge shall be retreated.f) If he had between him and the public prosecution’s representative or the defender of one of the litigants a relationship or a relation by marriage till the second degree.g) If he had given a legal opinion, pleaded for one of the litigants in the action or had written therein, even if that were before his engagement in the judiciary, or if he had examined the action as a judge, expert or arbitrator or had born a witness therein.h) If he had prosecuted an action for indemnity against the recusal requester or submitted an edict against him to the area of jurisdiction.2. It shall be considered null the judge’s work or his judgment in the preceding cases, even if it has been accomplished with the agreement of the litigant parties.3. If such nullity has taken place in a decision issued in an appeal through cassation it shall be possible to the litigant to ask the court for the cancellation of such decision and for rehearing the appeal before a circuit at which the judge, for whom the nullity reason has taken place, doesn’t work.
12 The UAE Civil Procedure Code, Federal Law No. (11) of 1992, Chapter Three, Arbitration, Article 207(4): “...and the refusal shall be requested for the same reasons for which the judge is refused or because of which he shall not be com petent to arbitrate.”
13 Abu Dhabi Court of Cassation, Petition No. 1174 of 2011 dated 20 June 2012.
14 Federal Arbitration Law, Article 14(2): “A party may challenge an Arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made.”
15 DIFC Law No. 1 of 2008, Article 18(2): “A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made.”
16 ADGM Arbitration Regulations, Article 19(2): “A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made.”
17 DIFC Law No. 1 of 2008, Article 23(1): The Arbitral Tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the Arbitration Agreement. For that purpose, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the Arbitral Tribunal that the contract is null and void shall not by itself determine the invalidity of the arbitration clause.
18 ADGM Arbitration Regulations, Article 24(1): Unless otherwise agreed by the parties, the arbitral tribunal may rule on its own substantive jurisdiction, that is, as to a) whether there is a valid arbitration agreement, b) whether the tribunal is properly constituted, and c) what matters have been submitted to arbitration in accordance with the arbitration agreement.
19 DIFC Law No. 1 of 2008, Article 23 (3): “The Arbitral Tribunal may rule on a plea … either as a preliminary question or in an award on the merits.”
20 DIFC Law No. 1 of 2008, Article 23 (3): If the Arbitral Tribunal rules as a preliminary question that it has jurisdiction, any party may request, subject to any process agreed between the parties, within thirty days after having received notice of that ruling, the DIFC Court of First Instance to decide the matter, which decision shall not be subject to appeal; while such a request is pending, the Arbitral Tribunal may continue the arbitral proceedings and make an award.” See e.g. DIFC Case No. CFI 004/2012 where DIFC court held that Claimant and first Respondent had a valid arbitration agreement for arbitration in Onshore Dubai under Dubai law and therefore allowed to stay proceedings between Claimant and second Respondent who was not party to arbitration agreement. The Court allowed the stay based on judicial economy and because “there is minimal risk of the harms occurring which the claimant envisages (duplication of proceedings, double recovery, and inconsistent findings).
21 ADGM Arbitration Regulations, Article 25(3): “The arbitral tribunal may rule on an objection referred to in subsections (1) or (2) either as a preliminary question or in an award on the merits. If the parties agree which of these courses the tribunal should take, the tribunal shall proceed accordingly.”
22 ADGM Arbitration Regulations, Article 26(1): If the arbitral tribunal rules on an objection referred to in subsection 25(1) or 25(2) as a preliminary question, the Court may, on the application of a party to the arbitral proceedings (upon notice to the other parties), determine any question as to the substantive jurisdiction of the tribunal. A party may lose the right to object pursuant to section 10.
23 ADGM Arbitration Regulations, Article 26(2): An application under this section shall not be considered unless (a) it is made with the agreement in writing of all the other parties to the proceedings, or (b) it is made with the permission of the tribunal and the court is satisfied (i) that the determination of the question is likely to produce substantial savings in costs, (ii) that the application was made without delay, and (iii) that there is good reason why the matter should be decided by the Court.
24 The UAE Civil Procedure Code, Federal Law No. (11) of 1992, Chapter Three, Arbitration, Article 203(2): “No agreement for arbitration shall be valid unless evidenced in writing.”
25 DIFC Law No. 1 of 2008, Article 12 (3): “An Arbitration Agreement shall be in writing, in accordance with the provisions of this Article 12.”
26 ADGM Arbitration Regulations, Article 13(2): “An arbitration agreement shall be in writing. It can result from an exchange of written communications or be contained in a document to which reference is made in the main agreement.”
27 The UAE Civil Procedure Code, Federal Law No. (11) of 1992, Chapter Three, Arbitration, Article 203(2): “No agreement for arbitration shall be valid unless evidenced in writing.”
28 Federal Arbitration Law, Article 7: An arbitration agreement shall be deemed to be in writing if: a) it is contained in a document signed by the Parties or in an exchange of correspondence or other written means of communication or in the form of an electronic message in accordance with the applicable rules of the State concerning electronic transactions; b) there is reference in a written contract to any model contract, international agreement, or any other document containing an arbitration clause and the reference is such as to make that clause part of the contract; c) it was made during the hearing of the dispute by the court competent to entertain it, in which case the court shall issue a decision confirming the arbitration agreement, (…); d) it is included in written statements exchanged between the Parties during the arbitration proceedings (…).
29 DIFC Law No. 1 of 2008, Article 12 (5): The requirement that an Arbitration Agreement be in writing is met by an electronic communication if the information contained therein is accessible so as to be useable for subsequent reference; “electronic communication” means any communication that the parties make by means of data messages; “data message” means information generated, sent, received or stored by electronic, magnetic, optical or similar means, including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy.
30 ADGM Arbitration Regulations, Article 13(3): For the purposes of subsection (2), the requirement that an arbitration agreement be in writing is met by an electronic communication if the information contained therein is accessible so as to be useable for subsequent reference; an electronic communication is any communication that the parties make by means of data messages; a data message is information generated, sent, received or stored by electronic, magnetic, optical or similar means, including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy. [Page41:]
31 Abu Dhabi Court of Cassation, Petition No. 718/2012 dated 8 April 2013.
32 DIFC Law No. 1 of 2008, Article 12 (7): “The reference in a contract to any document containing an arbitration clause constitutes an Arbitration Agreement in writing, provided that the reference is such as to make that clause part of the contract.”
33 ADGM Arbitration Regulations, Article 13(5): “The reference in a contract to any document containing an arbitration clause constitutes an arbitration agreement in writing, provided that the reference is such as to make that clause part of the contract.”
34 Abu Dhabi Court of Cassation, Petition No. 718/2012 dated 8 April 2013; Dubai Court of Cassation, Commercial Petition No. 38 of 2016 dated 29 May 2016.
35 Abu Dhabi Court of Cassation, Petition No. 227 of 2013 dated 13 June 2013; Abu Dhabi Court of Cassation, Petition No. 214/2014 dated 8 May 2014.
36 Dubai Court of Cassation, Petition No. 164/2008, Judgment of 10 October 2008.
37 Dubai Court of Cassation Case No. 547/2014, 21 October 2015.
38 Abu Dhabi Court of Cassation, Petition No. 465/2012 dated 21 February 2013. (Power of attorney given by the owner of the business to its manager was limited to managing the business and did not extend to other acts such as agreeing to arbitration).
39 Abu Dhabi Court of Cassation, Petition No. 351/2014 dated 26 June 2014. (General Manager of a public joint stock company does not have the capacity to execute a contract containing an arbitration agreement or to enter into an arbitration agreement unless he/she submits evidence that he/she is authorized to do so).
40 Dubai Court of Cassation Case No. 547/ 2014, 21 October 2015. [Page42:]
41 Dubai Court of Cassation Case No. 293/2015, 27 January 2016.
24 DIFC Law No. 1 of 2008, Article 35(2): In the absence of any designation by the parties, the Arbitral Tribunal shall apply the law determined by the conflict of laws rules which it considers applicable, provided that the parties shall be free to agree in writing that the Arbitral Tribunal may apply the law or rules of law which it considers to be most appropriate in the facts and circumstances of the dispute.
43 DGM Arbitration Regulations, Article 44(2): “In the absence of any designation by the parties, the arbitral tribunal shall decide the dispute in accordance with the rules of law it considers appropriate.”
44 DIFC Law No. 1 of 2008, Article 35(4): “In all cases, the Arbitral Tribunal shall make determinations in accordance with the terms of the contract and applicable law, and shall take into account the usages of the trade applicable to the transaction.”
45 ADGM Arbitration Regulations, Article 44(3): “In either case, the arbitral tribunal shall take trade usages into account.”
46 DIFC Law No. 1 of 2008, Article 26(2): “In the absence of such agreement, the Arbitral Tribunal may, subject to the provisions of this Law, conduct the Arbitration in such manner as it considers appropriate.”
47 ADGM Arbitration Regulations, Article 32(2): “In the absence of such agreement, the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate.”
48 Federal Arbitration Law, Article 23(1): “Subject to Article 10(2) of this law, the Parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings, including their
49 ADGM Arbitration Regulations, Article 31: “The parties shall be treated with equality and each party shall be given a reasonable opportunity to present its case.”
50 DIFC Law No. 1 of 2008, Article 25: “The parties shall be treated with equality and each party shall be given a full opportunity of presenting his case.”
51 Federal Arbitration Law, Article 26: “The parties shall be treated with equality and each party shall be given a full opportunity to present its case.”
52 DIFC Law No. 1 of 2008, Article 27(2): “Notwithstanding the provisions of paragraph (1) of this Article, the Arbitral Tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of goods, other property or documents.”
53 ADGM Arbitration Regulations, Article 33(2): “…the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of goods, other property or documents.”
54 Federal Arbitration Law, Article 28(2): The Arbitral Tribunal may, unless otherwise agreed by the Parties:a) hold arbitration hearings at any place it considers appropriate to conduct any of the arbitral proceedings, while providing the Parties sufficient advance notice of the hearing, b) hold arbitration hearings with the parties and deliberate by modern means of communication and electronic technology. The Arbitral Tribunal shall deliver or communicate the minutes of hearing to the parties.
55 DIFC Law No. 1 of 2008, Article 29(1): The parties are free to agree on the language or languages to be used in the arbitral proceedings. In the absence of such agreement, the Arbitral Tribunal shall determine the language or languages to be used in the proceedings. This agreement or determination, unless otherwise specified therein, shall thereafter apply to any written statement by a party, any hearing and any award, decision or other communication by the Arbitral Tribunal. .[Page44:]
56 ADGM Arbitration Regulations, Article 37(1): “The parties are free to agree on the language or languages to be used in the arbitral proceedings. In the absence of such agreement, the arbitral tribunal shall determine the language or languages to be used in the proceedings.”
57 Federal Arbitration Law, Article 29(1): “Unless otherwise agreed by the parties, arbitral proceedings shall be conducted in Arabic.”
58 DIFC Law No. 1 of 2008, Article 30(1): “Within the period of time agreed by the parties or determined by the Arbitral Tribunal, the claimant shall state the facts supporting his claim, the points at issue and the relief or remedy sought…”.
59 ADGM Arbitration Regulations, Article 38: “The parties are free to agree whether any and if so what form of written statements of claim and defence are to be used, when these should be supplied and the extent to which such statements can be later amended. In the absence of such agreement, this shall be determined by the arbitral tribunal.”
60 DIFC Law No. 1 of 2008, Article 32: “Unless otherwise agreed by the parties, if, without showing sufficient cause, (a) the claimant fails to communicate his statement of claim in accordance with Article 30(1), the Arbitral Tribunal shall terminate the proceedings.”
61 DIFC Law No. 1 of 2008, Article 32: b) the respondent fails to communicate his statement of defence in accordance with Article 30(1), the Arbitral Tribunal shall continue the proceedings without treating such failure in itself as an admission of the claimant’s allegations; or c) any party fails to appear at a hearing or to produce documentary evidence, the Arbitral Tribunal may continue the proceedings and make the award on the evidence before it.
62 Federal Arbitration Law, Article 30(3): “Unless otherwise agreed by the parties, a party may, during the course of the arbitral proceedings, amend or supplement its claim or defence or file a counterclaim, unless the Arbitral Tribunal considers it inappropriate to allow such amendment (…).”
63 DIFC Law No. 1 of 2008, Article 26(2): “…The power conferred upon the tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence.”
64 ADGM Arbitration Regulations, Article 32(2): “…The power conferred upon the arbitral tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence.”
65 Federal Arbitration Law, Article 33(8); The Arbitral Tribunal is afforded discretion to determine the rules of evidence to be followed and the admissibility, relevance or weight of evidence adduced by any of the parties in relation to the facts or expert opinion. The Arbitral Tribunal may also specify a time limit, method, and form for the exchange of such evidence between the parties and a method for its submission to the Arbitral Tribunal.
66 DIFC Law No. 1 of 2008, Article 33(1): “...the Arbitral Tribunal (a) may appoint one or more experts to report to it on specific issues to be determined by the Arbitral Tribunal; and (b) may require a party to give the expert(s) any relevant information or to produce, or to provide access to, any relevant documents, goods or other property for his inspection.”
67 ADGM Arbitration Regulations, Article 42(1)(a-b): 1. Unless otherwise agreed by the parties, the arbitral tribunal after consultation with the parties: a) may appoint one or more experts to report to it on specific issues to be determined by the arbitral tribunal; and b) may require a party to give the expert(s) any relevant information or to produce, or to provide access to, any relevant documents, goods or other property for his inspection.
68 Federal Arbitration Law, Article 34(1): “Unless otherwise agreed by the parties, the Arbitral tribunal may decide to appoint one or more experts, (…).”
69 DIFC Law No. 1 of 2008, Article 34: “The Arbitral Tribunal or a party with the approval of the Arbitral Tribunal may request from the DIFC Court assistance in taking evidence.”
70 ADGM Arbitration Regulations, Article 43: “The arbitral tribunal or a party with the approval of the arbitral tribunal may request from the Court, or any competent court, assistance in taking evidence. The Court, or any competent court, may execute the request within its competence and according to its rules on taking evidence.”
71 Federal Arbitration Law, Article 36(1): “The arbitral tribunal may on its own motion or if a party so requests, request from the Court assistance in taking evidence. (…)”
72 DIFC Law No. 1 of 2008, Article 39(2): The Arbitral Tribunal shall issue an order for the termination of the arbitral proceedings when: a) the claimant withdraws his claim, unless the respondent objects thereto and the Arbitral Tribunal recognises a legitimate interest on his part in obtaining a final settlement of the dispute; b) the parties agree on the termination of the proceedings; or c) the Arbitral Tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible.
73 ADGM Arbitration Regulations, Article 48(1): “If, during arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall terminate the proceedings and, if requested by the parties and agreed to by the arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms.”
74 Federal Arbitration Law, Article 45(2): a) If the parties agree on the termination of the arbitration in accordance with this law; b) If the claimant withdraws its claim, unless the Arbitral Tribunal decides, on the application of the respondent, that the latter has a genuine interest in continuing the proceedings until the dispute is settled; or c) If the arbitral tribunal finds that the continuation of the proceedings has for any reason become useless or impossible.[Page43:]
75 ADGM Arbitration Regulations, Article 41(a): “…the arbitral tribunal may dismiss the claim. The arbitral tribunal may also terminate the proceedings, unless the arbitral tribunal considers it appropriate to continue the proceedings in order to determine any counterclaim raised by the respondent.”
76 id.
77 ADGM Arbitration Regulations, Article 33(1): The parties are free to agree on the seat of arbitration. Failing such agreement, the seat of arbitration shall be determined by (a) any arbitral or other institution or person vested by the parties with powers in that regard, 13 or (b) the arbitral tribunal, having regard to the circumstances of the case, including the convenience of the parties.
78 DIFC Law No. 1 of 2008, Article 27(1): “The parties are free to agree on the Seat of the Arbitration. In the absence of such agreement, where any dispute is governed by DIFC law, the Seat of the Arbitration shall be the DIFC.”
79 DIFC Law No. 1 of 2008, Article 31(1): “Subject to any contrary agreement by the parties, the Arbitral Tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument…”
80 Arbitration Regulations, Article 39(1): “…the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials…”
81 Federal Arbitration Law, Article 33(2): “Subject to any contrary agreement by the parties, the Arbitral Tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument. (...)”
82 Federal Arbitration Law, Article 33(6): “A summary of the proceedings of each hearing conducted by the arbitral tribunal shall be recorded in minutes and a copy thereof shall be delivered to each of the parties.”
83 The UAE Civil Procedure Code, Federal Law No. (11) of 1992, Chapter Three, Arbitration, Article 211: “The arbitrators shall cause the witnesses to take oath. Whoever makes a false statement before the arbitrators shall be deemed to have committed the crime of perjury.”
84 International Bechtel v Department of Civil Aviation of the Government of Dubai, Dubai Court of Cassation, petition No. 503/2003, judgment dated 15 May 2005), in which a Dubai award was set aside by the Dubai Court of Cassation for failure by the arbitrators to properly follow the oath-taking procedure.
85 DIFC Law No. 1 of 2008, Article 24(1)(a): The Arbitral Tribunal may, at the request of a party, order any party to take such interim measures of protection as the Arbitral Tribunal may consider necessary in relation to an arbitration. The Arbitral Tribunal may order any claiming or counterclaiming party to provide appropriate security in connection with such measure, 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 Arbitral Tribunal considers appropriate. Any request made to the Arbitral Tribunal shall be simultaneously copied to all other parties to the Arbitration.
86 ADGM Arbitration Regulations, Article 27(1): “Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, grant interim measures provided that any such request by a party is made upon notice to the other parties in the proceedings.”
87 DIFC Law No. 1 of 2008, Article 24(1)(f): “The Arbitral Tribunal may modify, suspend or terminate an interim measure it has granted, upon application of any party or, in exceptional circumstances and upon prior notice to the parties, on the Arbitral Tribunal’s own initiative.”
88 ADGM Arbitration Regulations, Article 27(5): “The arbitral tribunal may modify, suspend or terminate an interim measure it has granted, upon application of any party or, in exceptional circumstances and upon prior notice to the parties, on the arbitral tribunal’s own initiative.”
89 DIFC Law No. 1 of 2008, Article 24 (1)(a): …The Arbitral Tribunal may order any claiming or counterclaiming party to provide appropriate security in connection with such measure, 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 Arbitral Tribunal considers appropriate. Any request made to the Arbitral Tribunal shall be simultaneously copied to all other parties to the Arbitration.
90 ADGM Arbitration Regulations, Article 27 (6): “The arbitral tribunal may require the party requesting an interim measure to provide appropriate security in connection with the measure.”
91 Abu Dhabi Court of Cassation, Petition No. 118/2014 dated 26 March 2014.
92 See Article 21(1) of the Federal Arbitration Law: Subject to the provisions of Article 18 of this Law, and unless otherwise agreed by the Parties, the Arbitral Tribunal may, at the request of a party or on its own motion, order any party to take such interim or conservatory measure as the Arbitral Tribunal may consider necessary given the nature of the dispute, including, in particular:a) An order to preserve evidence that may be relevant and material to the resolution of the dispute;b) Taking necessary measures to preserve goods which constitute part of the subject-matter of the dispute such as an order to deposit goods with a third party or to sell goods which are susceptible to damage;c) Preserving assets and funds out of which a subsequent award may be satisfied; d) Maintaining or restoring the status quo pending determination of the dispute;e) An order to take action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitration process itself.
93 See Article 21(2) of the Federal Arbitration Law: The Arbitral Tribunal may require the party requesting the order for interim or conservatory measures to provide appropriate security to cover the costs of such measures and may further require that party to bear all damages arising in connection with the enforcement of such measures should the Arbitral Tribunal thereafter decide that the party is not entitled to secure them.
94 See Article 21(4) of the Federal Arbitration Law: A party for whom an interim measure has been ordered may, after obtaining written permission from the Arbitral Tribunal, request the competent court to order the enforcement of the order of the Arbitral Tribunal or any part thereof within fifteen days of receipt of the request. Copies of any request for permission or enforcement hereunder shall be sent simultaneously to all the other Parties.
95 DIFC Law No. 1 of 2008, Article 24 (1)(c): The following provisions shall apply unless the parties have expressly agreed in writing that the Arbitral Tribunal shall not have power to order interim measures: (c) The party requesting an interim measure under any of paragraphs (b)(i), (ii) and (iii) of this Article shall satisfy the Arbitral Tribunal that: (i) harm which will not be adequately reparable by an award of damages is likely to result if the interim measure is not ordered and that harm will substantially outweigh the harm, if any, that is likely to result to the party opposing the interim measure if the measure is ordered; and (ii) there is a reasonable possibility that the requesting party will succeed on the merits of the claim. The determination on this possibility shall not affect the discretion of the Arbitral Tribunal in making any subsequent determination.
96 ADGM Arbitration Regulations, Article 27(3): The party requesting an interim measure under subsection (1) shall satisfy the arbitral tribunal that: a) harm not adequately reparable by an award of damages is likely to result if the measure is not ordered, and such harm outweighs the harm, if any, that is likely to result to the party against whom the measure is directed if the measure is ordered; and b) there is a reasonable possibility that the requesting party will succeed on the merits of the claim. The determination on this possibility shall not affect the discretion of the arbitral tribunal in making any subsequent determination.
97 Federal Arbitration Law, Article 12: In arbitral proceedings with more than one Arbitrator, any decision of the Arbitral Tribunal shall be made, unless otherwise agreed by the Parties, by a majority of all its members. However, questions of procedure may be decided by a presiding Arbitrator, if so authorized by the Parties or the other members of the Arbitral Tribunal.DIFC Law No. 1 of 2008, Article 36: In arbitral proceedings with more than one arbitrator, any decision of the Arbitral Tribunal shall be made, unless otherwise agreed by the parties, by a majority of all its members. However, questions of procedure may be decided by a presiding arbitrator, if so authorised by the parties or all members of the Arbitral Tribunal.ADGM Arbitration Regulations, Article 45: In arbitral proceedings with more than one arbitrator, any decision of the arbitral tribunal shall be made, unless otherwise agreed by the parties, by a majority of all its members. If there is no majority, the award shall be made by the president of the arbitral tribunal alone. However, questions of procedure may be decided by a presiding arbitrator, if so authorised by the parties or all members of the arbitral tribunal.
98 Federal Arbitration Law, Articles 41(1): “The arbitral award shall be made in writing”, and 41(4): “The award shall state the reasons upon which it is based, unless the Parties have agreed otherwise, or the law applicable to the arbitral proceedings does not require reasons to be given.” DIFC Law No. 1 of 2008, Articles 38(1): The award shall be made in writing and shall be signed by the arbitrator or arbitrators. In arbitral proceedings with more than one arbitrator, the signatures of the majority of all members of the Arbitral Tribunal shall suffice, provided that the reason for any omitted signature is stated” and 38(2): “The award shall state the reasons upon which it is based, unless the parties have agreed that no reasons are to be given or the award is an award on agreed terms under Article 37.ADGM Arbitration Regulations, Articles 50(1): “The award shall be made in writing” and 50(2): “The award shall state the reasons upon which it is based, unless the parties have agreed that no reasons are to be given or the award is an award on agreed terms under section 48.”
99 Federal Arbitration Law, Article 41(3): “The award shall be signed by the arbitrators and the signatures of the majority of the arbitrators shall suffice, provided that the reason for any omitted signature is stated”;DIFC Law No. 1 of 2008, Article 38(1): “The award shall be made in writing and shall be signed by the arbitrator or arbitrators. In arbitral proceedings with more than one arbitrator, the signatures of the majority of all members of the Arbitral Tribunal shall suffice, provided that the reason for any omitted signature is stated.”
100 DIFC Law No. 1 of 2008, Article 38(1): “The award shall be made in writing and shall be signed by the arbitrator or arbitrators. In arbitral proceedings with more than one arbitrator, the signatures of the majority of all members of the Arbitral Tribunal shall suffice, provided that the reason for any omitted signature is stated.”
101 DIFC Law No. 1 of 2008, Article 36: “In arbitral proceedings with more than one arbitrator, any decision of the Arbitral Tribunal shall be made, unless otherwise agreed by the parties, by a majority of all its members…”
102 ADGM Arbitration Regulations, Article 45: “In arbitral proceedings with more than one arbitrator, any decision of the arbitral tribunal shall be made, unless otherwise agreed by the parties, by a majority of all its members. If there is no majority, the award shall be made by the president of the arbitral tribunal alone.”
103 Federal Arbitration Law, Article 41(2): “In arbitral proceedings with more than one arbitrator, the award shall be issued by majority opinion. If different opinions of the arbitrators would rule out a majority, the presiding arbitrator shall issue the award unless otherwise agreed by the parties.”
104 Federal Arbitration Law, Article 41(2): “In arbitral proceedings with more than one arbitrator, the award shall be issued by majority opinion. If different opinions of the arbitrators would rule out a majority, the presiding arbitrator shall issue the award unless otherwise agreed by the parties.” .[Page45:]ADGM Arbitration Regulations, Article 48(1): “If, during arbitral proceedings, the parties settle the dispute, the Arbitral Tribunal shall terminate the proceedings and, if requested by the parties and not objected to by the Arbitral Tribunal, record the settlement in the form of an arbitral award on agreed terms.”
105 ADGM Arbitration Regulations, Article 49: “The arbitral tribunal may make more than one award at different times on different aspects of the matters to be determined.”
106 ADGM Arbitration Regulations, Article 49: “The arbitral tribunal may make more than one award at different times on different aspects of the matters to be determined.”
107 Federal Arbitration Law, Article 39.1: “The Arbitral Tribunal may issue interim awards or awards on part of claims before rendering the award ending the entire dispute.”
108 The UAE Civil Procedure Code, Federal Law No. (11) of 1992, Chapter Three, Arbitration, Article 210 (2): “The parties to the dispute may, expressly or impliedly, agree to extend the date fixed by agreement or under the law and may authorize the arbitrator to extend the same for a specified period.”
109 The UAE Civil Procedure Code, Federal Law No. (11) of 1992, Chapter Three, Arbitration, Article 210 (1): If the parties to the dispute did not specify in the arbitration agreement a date for the issue of the award, the arbitrator shall pass his award within six months from the date of the first arbitration session; otherwise any of the parties shall be entitled to refer the dispute to the court or, if a suit has already been filed, to proceed with the same before the court.
110 Federal Arbitration Law, Article 42.1: The Arbitral Tribunal shall issue a final award within the timeframe agreed by the parties. Failing agreement on a specific time limit or method of its determination, the award shall be issued within six months from the date of the first hearing of the arbitration. The arbitral tribunal may extend the time for up six additional months, unless the parties agree to a longer extension.
111 The UAE Civil Procedure Code, Federal Law No. (11) of 1992, Chapter Three, Arbitration, Article 212(4)” ‘The arbitrators’ award shall be issued within the United Arab Emirates; otherwise, the rules applicable to arbitration awards passed in foreign countries shall apply thereto.”
112 Dubai Court of Cassation, Case No. 282/2012, Real Estate Cassation, 3 February 2013.
113 The UAE Civil Procedure Code, Federal Law No. (11) of 1992, Chapter Three, Arbitration, Article 218: The assessment of their fees and the costs of the arbitration shall be left to the arbitrators and they may make an award in respect of the whole or part thereof against the losing party. The court may, upon the application of one of the parties, vary such assessment to make it appropriate to the effort expended and the nature of the dispute.
114 DIFC Law No. 1 of 2008, Article 38 (5)(a-g): The Arbitral Tribunal shall fix the costs of the Arbitration in its award. The term “costs” includes only: a) The fees of the Arbitral Tribunal to be stated separately as to each arbitrator; b) The properly incurred travel and other expenses incurred by the arbitrators; c) The costs of expert advice and of other assistance required by the Arbitral Tribunal; d) The travel and other expenses of witnesses to the extent such expenses are approved by the Arbitral Tribunal; e) Such other costs as are necessary for the conduct of the Arbitration, including those for meeting rooms, interpreters and transcription services; f) The costs for legal representation and assistance of the successful party if such costs were claimed during the Arbitration, and only to the extent that the Arbitral Tribunal determines that the amount of such costs is reasonable; g) Any fees and expenses of any arbitral institution or appointing authorityADGM Arbitration Regulations, Article 50(5)(a-g): The arbitral tribunal shall fix the costs of the arbitration in its award or as provided for in subsection (7) below. The term “costs” includes only: a) the fees of the arbitral tribunal to be stated separately as to each arbitrator; b) the properly incurred travel and other expenses incurred by the arbitrators; c) the costs of expert advice and of other assistance reasonably required by the arbitral tribunal; d) the travel and other expenses of witnesses to the extent such expenses are approved by the arbitral tribunal; e) such other costs as are necessary for the conduct of the arbitration, including those for meeting rooms, interpreters and transcription services; f) the costs for legal representation and assistance of the successful party if such costs were claimed during the arbitration, and only to the extent that the arbitral tribunal determines that the amount of such costs, or a part of them, is reasonable; and g) any fees and expenses of any arbitral institution or appointing authority
115 ADGM Arbitration Regulations, Article 50(6): “In fixing the costs of the arbitration, the arbitral tribunal may direct to whom, by whom, and in what manner, the whole or any part of the costs shall be paid.”
116 DIFC Law No. 1 of 2008, Article 39(4): “The Arbitral Tribunal may refuse to deliver a final award or an order for termination of the arbitral proceedings in accordance with paragraph (2) of this Article to the parties until its fees and expenses are paid in full.” ADGM Arbitration Regulations, Article 51(4): “The arbitral tribunal may refuse to deliver a final award or an order for termination of the arbitral proceedings in accordance with subsection (2) until its fees and expenses are paid in full.” Federal Arbitration Law, Article 47: 1. Subject to the arbitrators’ right of recourse against the Parties for their fees and expenses, the Arbitral Tribunal may withhold delivery of its final award to the Parties if the costs of arbitration have not been fully paid up; and.[Page46:]2. Where the Arbitral Tribunal has refused to deliver its award in accordance with section 1 of this article, a Party may make an application to the Court, after giving notice to the other Parties and the Arbitral Tribunal, to compel the Arbitral Tribunal to release its award to the Parties, upon proof of full payment of the fees and expenses requested by the Arbitral Tribunal or those specified by the Court in accordance with Article 46 of this Law.
117 DIFC Law No. 1 of 2008, Article 40; ADGM Arbitration Regulations, Article 52: (1) Within thirty days of receipt of the award, unless another period of time has been agreed upon by the parties: (a) a party, with notice to the other party, may request the Arbitral Tribunal to correct in the award any errors in computation, any clerical or typographical errors or any errors of a similar nature; (b) if so agreed by the parties, a party, with notice to the other party, may request the Arbitral Tribunal to give an interpretation of a specific point or part of the award.Compare with Federal Arbitration Law, Article 50(1): The arbitral tribunal shall decide, on its own initiative or upon request of a party, with notice to the other party, to correct any material errors in its award, whether clerical or in computation. The request shall be made with within 30 days of receipt of the award unless other procedures or periods of time have been agreed by the parties. The arbitral tribunal shall make the correction within 30 days after it issues the award or receives the request for correction as the case may be. (…)