I. INTRODUCTION

The process for recognition and enforcement under the UAE Federal Arbitration Law2 has been streamlined significantly when compared to the regime that applied under the former UAE Arbitration Chapter.3, 4 By way of reminder, the new Law repealed the arbitration-relevant provisions of the UAE Civil Procedures Code (CPC),5 i.e. Articles 203 through to 218,6 also known as the UAE Arbitration Chapter, including Articles 214 through to 216, which dealt with the enforcement and challenge of domestic awards under the old regime. That said, given some surviving similarities in the recognition and enforcement process, existing case law precedent that has resulted from the application of the UAE Arbitration Chapter in practice is likely to survive in relevant part and find application, mutatis mutandis, to the construction of the corresponding provisions of the UAE Federal Arbitration Law.

With this in mind, this chapter addresses the practice and procedure of the so-called “ratification” or “validation” process of domestic arbitration awards under the UAE Federal Arbitration Law within its unique historical setting, taking account of the extent to which it resembles and differs from the practice and procedure of recognition and enforcement of domestic awards under the former UAE Arbitration Chapter. This approach will assist the reader in understanding the continuity of existing case law precedent originating from the interpretation of the UAE Arbitration Chapter in relevant part. This chapter also deals with the limits placed on applications for setting aside arbitral awards in a defence to enforcement or for challenging domestic awards under the new Law.

This chapter further discusses in some detail the new regime for the enforcement of foreign awards introduced by Cabinet Decision No. 57 of 2018,7which entered into force on 16 February 2019. In doing so, this chapter also addresses the regime of enforcement of foreign awards that prevailed in the transition period from 16 June 2018, the date the new UAE Federal Arbitration Law entered into force, and 16 February 2019.

Without prejudice to the foregoing, whereas, generally speaking, the mainland UAE Courts are competent to hear actions for recognition and enforcement in their respective Emirate, there are a number of special tribunals created by Ruler’s Decree that are competent to hear applications for recognition and enforcement of awards that relate to their exclusive subject-matter jurisdiction. Not being the subject of the new Law, these, no doubt, will survive under the Federal Arbitration Law. With this in mind, it is worth noting that arbitration awards rendered in relation to a subject matter that is covered by Decree No. 57 of 2009,8 Decree No. 61 of 20099 and the Zabeel Decree10 are ratified and enforced by the competent special tribunal,11 provided the arbitration is seated in the UAE. There have been a number of successful enforcement actions before the Dubai World Special Tribunal12 and on one occasion, a matter has been expressly referred to the Zabeel Special Judicial Committee.13 Further, awards in rental matters are likely to be subject to ratification and enforcement before a specialist rental committee.14 For completeness, it should be noted that challenge proceedings in relation to arbitration awards involving a subject matter that is covered by Decree No. 57 of 2009 and Decree No. 61 of 2009 are equally conducted before the competent special tribunals.15 Similar considerations apply to the challenge of awards in rental matters before the rental committee.

For the avoidance of doubt, given the limited scope of the present publication and its chosen focus on the UAE Federal Arbitration Law, this chapter does not address the process for recognition and enforcement in the UAE-based free zones, i.e. the Dubai International Financial Centre (DIFC)16 and the Abu Dhabi Global Market (ADGM)17, 18 For the same reason, it also does [Page58:]

not deal with the related issue of conflicts of jurisdiction between the onshore UAE and the free zone courts for hearing actions for recognition and enforcement of domestic, non-free zone or foreign awards, in particular in circumstances where the free zone courts propose to exert their acquired jurisdiction as a conduit.19 Likewise, no mention will be made of the role of the Dubai-DIFC Joint Judicial Tribunal,20 which was established by the Ruler of Dubai to deal with conflicts of jurisdiction between the onshore Dubai and offshore DIFC courts in 2016.21

II. RECOGNITION AND ENFORCEMENT UNDER THE UAE FEDERAL ARBITRATION LAW

The recognition and enforcement of domestic and foreign awards onshore were for a long time governed by UAE Federal Law No. 11 of 1992 as amended,22 also known as the “UAE Civil Procedures Code” (or the “CPC”) and typically required the award debtor to be domiciled and the award debtor’s assets to be located in mainland UAE.23 This was the prevailing position until the recent adoption and entry into force of the UAE Federal Arbitration Law, which is based on the UNCITRAL Model Law.24 With effect from 16 June 2018, the new Law has applied to the recognition and enforcement of arbitral awards in the UAE.25 Importantly though, despite the wide wording of Article 59 of the new Law, pursuant to which the new Law applies retrospectively to all arbitrations commenced under the UAE Arbitration Chapter with immediate effect, the UAE Courts have most recently decided that actions for challenging domestic awards initiated under the UAE Arbitration Chapter continue to be heard under the old regime.26 Analogical considerations will likely apply to actions for recognition and enforcement initiated prior to entry into force of the new Law.

The new Law has brought about some important changes and has, in particular, streamlined the recognition and enforcement process to some extent.27 That said, at present, given the young history of the UAE Federal Arbitration Law, enforcement practice under the new Law has been limited.28 For the avoidance of doubt, existing case law precedent is likely to retain its relevance under the UAE Federal Arbitration Law given both the continuity of the UAE judiciary as well as the survival of the underlying concepts of recognition and enforcement under the new Law.

In the following, the procedure of recognition and enforcement in the terms contemplated under the UAE Federal Arbitration Law will be addressed in an attempt to provide some initial guidance by highlighting the extent to which it differs from the position under the UAE Arbitration Chapter.

II.1. Recognition and Enforcement of Domestic Awards

Pursuant to Article 54 of the UAE Federal Arbitration Law, awards rendered under the new Law produce a legally binding effect inter partes, i.e. as between the parties to the arbitration, and—in terms similar to those under the former UAE Arbitration Chapter—29 are decided matter, i.e. become res judicata upon issuance. Further, unlike the position under the former UAE Arbitration Chapter, Article 54 lends executory force to an arbitral award rendered under the Law, inviting its execution in the same way and manner as a local judgment issued by the UAE Courts. That said, awards remain subject to an express requirement for a local court decision confirming enforcement of the award. In other words, the execution of an award under the UAE Federal Arbitration Law still requires completion of a prior ratification or validation process, similar to the position prevailing under the former Article 214 CPC.30

A. ACTION FOR RECOGNITION AND ENFORCEMENT

Article 55 of the UAE Federal Arbitration Law codifies the ratification or validation process of awards and as such addresses the modalities of recognition and enforcement under the Law.31

Pursuant to Article 55(1) of the new Law, the award creditor files an application for recognition and enforcement before the chief justice, i.e. the president of the competent court of appeal.32 Identical to the position under the former UAE Arbitration Chapter,33 there is no time-limit for the commencement of the ratification process. Importantly, the application for recognition and enforcement is not considered by the full court, but only by the chief justice: This stands in marked contrast to the position under former Article 215 CPC, which required an application for recognition and enforcement to follow an ordinary court process, starting with the court of first instance, followed by appeals to the competent courts of appeal and cassation.34 The excision of the court of first instance and the full court from hearing an application for enforcement evidently results in some streamlining of the enforcement process.35 The wording of Article 55(1) further suggests that the application may be made ex parte, i.e. in the absence of the award debtor, no express mention being made of notification of the application to the latter. That said, for an award debtor to be able to avail itself of a defense to enforcement within the terms of [Page59:]

Article 53 of the new Law,36 it will have to be notified of a pending action for recognition and enforcement against it. Only then will it be able to plead the various grounds for challenge listed at Article 53 in defense to an action for enforcement.

The application for recognition and enforcement under Article 55(1) must be accompanied by the following documents, which essentially reflect the list of documents that already had to be submitted together with an application for ratification and enforcement under the UAE Arbitration Chapter (although under the UAE Arbitration Chapter, submission of all documents was required in their original):37

  • The original award or a certified copy thereof 38 This requirement accords with standard practice. For a certification to be recognised for present purposes it will have to be done by an officially registered UAE notary public. That said, the enforcement process under the former UAE Arbitration Chapter required the submission of an original copy of the arbitration award, a certified copy being insufficient. The existing requirement under Article 55(1)a. is hence more lenient and as such more arbitration-friendly and stays in line with the corresponding provisions of the UNCITRAL Model Law.39
  • a copy of the arbitration agreement40 Contrary to the laxer requirement under sub-paragraph (1)a., the wording of this sub-paragraph suggests that the arbitration agreement must be submitted in its original: a certified copy of the arbitration agreement will not suffice. This goes beyond standard requirements, such as those set out in the UNCITRAL Model Law,41 which requires submission of the arbitration agreement either in the original or in certified copy. Sub-paragraph (1)b. is therefore a strict requirement, which can only be explained against the background of the exceptional nature of arbitration as an alternative form of dispute resolution in digression from the fundamental right to resort to court under UAE law:42The arbitration agreement being the very source of the tribunal’s jurisdiction, sanctioned by the specifically authorised signatories or the original rights holders themselves having executed that agreement to confer the power of jurisdiction on the tribunal in preference to the inherent jurisdiction of the courts.43

In the alternative, it is arguable that the choice of wording by the UAE legislator, requiring the submission of a “copy” of the arbitration agreement as opposed to a “certified copy” or an “original” of the arbitration agreement, was intentional and is as such to be taken literally. This would suggest that a simple photocopy of the underlying arbitration agreement is sufficient to meet the filing requirements under sub-paragraph (1)b. and as such consciously loosens the stricter requirements that existed in the enforcement practice under the former UAE Arbitration Chapter. On this more liberal reading, the application for enforcement under the UAE Federal Arbitration Law would lose much of its formalism and go some way towards facilitating the enforcement of e.g. cost awards that result from a negative award on jurisdiction on the basis of e.g. a forged arbitration agreement (that might not be available to the award creditor neither in its original nor in certified copy).44

  • a certified Arabic translation of the arbitral award from an accredited body in case the award was not made in Arabic 45That translation must be certified and provided by an officially accredited translator. This is a standard requirement and existed in this form under the former UAE Arbitration Chapter.46For the avoidance of doubt, recognition and enforcement proceedings before the UAE Courts are conducted in Arabic, although most recent directions from the Abu Dhabi Courts require translation of all case documents into English in the event that the defendant is an expatriate who is unable to read Arabic.47
  • a copy of the application for enforcement to the Court 48 This is a new requirement that did not exist in express terms under the UAE Arbitration Chapter (although accords with former practice requirements), but—being a matter of formality—should not pose particular procedural difficulties.

Pursuant to Article 55(2) of the new Law, the chief justice of the competent court of appeal or a judge delegated by him must issue an order for recognition and enforcement within sixty days from the day of submission of the application for recognition and enforcement by the award creditor. The court of appeal is hence under an obligation to recognise and enforce the subject award within the sixty-day time-limit without an examination on the merits. This obligation is mandatory (“shall”) and subject only to a finding by the court that one of the grounds for challenge listed at Article 53(1) of the new Law applies. These grounds are further discussed at section III.2. below. The absence of an examination on the merits echoes the corresponding wording and practice under former Article 217(1) CPC, prohibiting a review on the merits of arbitral awards that are subject to the recognition and enforcement process.49 As such, this [Page60:]

Article confirms the res judicata effect of awards in the terms of Article 52 of the UAE Federal Arbitration Law. That said, by analogy to the position under the former UAE Arbitration Chapter,50 potential public policy violations are likely to invite a full substantive review of the subject award, even ex officio.

Further, Article 55(2) requires the competent judge to issue an order for recognition and enforcement “unless [he] finds one or more of the grounds for setting aside the award under section 1 of Article 53 of this Law”. This wording suggests that the court of appeal examines the application of the potential grounds for challenge under Article 53(1) ex officio, i.e. of its own motion, and that the application for recognition and enforcement proceeds ex parte, i.e. in the absence of the award debtor. That said, future practice before the courts will tell how the award debtor will be able to raise a defense to enforcement within the terms envisaged under Article 53 of the Law and/or file for a(n) (alternative) challenge of the court’s order for recognition and enforcement within the meaning of Article 57 of the new Law, which expressly provides for recourse against such an order.51

That said, the court’s examination of the application of potential grounds for challenge does not appear to extend to the grounds listed at Article 53(2) of the new Law. In a challenge under Article 54, these grounds are required to be raised ex officio by the competent court. It is not understood why these grounds are not of equal relevance to the recognition and enforcement context and not also referenced under Article 55(2) as grounds to be examined by the court hearing an application for recognition and enforcement under that Article. To the extent that Article 53 lists grounds to be examined in an award debtor’s defense to enforcement and the defense to enforcement survives under Article 55, those additional grounds would immediately qualify for examination under Article 55(2). Even without the express reference to Article 53(2), it is arguable that the public policy ground under Article 53(2)b. must be considered by the competent court ex officio under Article 55 in any event given that an order for recognition and enforcement that violates UAE public policy will not be enforceable. A similar fate would arguably be met by an order that were to seek the recognition and enforcement of an award that dealt with a dispute that is non-arbitrable within the meaning of Article 53(2)a. of the new Law. It is therefore submitted that both Articles 53(2)a. and b. should be taken into consideration by the competent court considering an application for enforcement under Article 55.

Quintessentially, apart from streamlining the enforcement process through its initiation before the competent court of appeal, Article 55 of the new Law appears to stay in line with the operation of former Article 215 CPC. Pursuant to Article 215 CPC, the court’s supervisory role was limited to ensuring that the arbitration procedure had been conducted in compliance with the fundamental procedural requirements of the UAE Arbitration Chapter (i.e. each party having been accorded a fair hearing in compliance with the adversarial principle) and that the subject award was fit for execution, i.e. that the award complies with all formal requirements,52 that it did not conflict with another award on the same subject matter between the same parties and that the award did not violate public policy.53 In doing so, the court only gave consideration to the text of the award.54The court did not probe into the application of the law or the assessment of evidence by the arbitrators.55

That said, in marked contrast to the position under the former UAE Arbitration Chapter,56 partial and interim awards are expressly enforceable under Article 39(2) of the UAE Federal Arbitration Law.57 It is also worth noting in this context that Article 21(4) of the new Law makes express provision for the enforcement of interim measures through the competent court of appeal within fifteen days from receipt of an application for enforcement.58

B. RECOURSE AGAINST AN ORDER FOR RECOGNITION AND ENFORCEMENT

Pursuant to Article 57 of the UAE Federal Arbitration Law, an order for enforcement or an order for setting aside issued by the chief justice of the competent court of appeal may be challenged before the full court of appeal. Such a challenge must be filed with the competent court of appeal within thirty days following the date of notification of the court’s order.

This action for a “grievance” is stand-alone and not ancillary to the recognition and enforcement process under Article 55 of the new Law. Even though the new Law does not make any express mention of the process to be followed by an award debtor for raising a defense to enforcement, such a process arguably persists under the new Law, in particular taking account of the wording of Article 53. Importantly, a defense to enforcement is open to an award debtor pending an [Page61:]

action for enforcement, i.e. before the chief justice of the court of appeal has issued the order contemplated under Article 55 of the new Law, whereas the challenge envisaged under Article 57 is filed against that order after its issuance by the chief justice of the court of appeal.

II.2. Recognition and Enforcement of Foreign Awards59

As stated at section I. above, the UAE Federal Arbitration Law repealed the arbitration-relevant provisions of the CPC, i.e. Articles 203 through to 218, also known as the UAE Arbitration Chapter, leaving intact, however, Article 236 CPC, which dealt with enforcement of foreign awards in the UAE. Before the adoption and entry into force of the new regime of enforcement for foreign awards introduced by Cabinet Decision 57 of 2018, this evidently prompted the question as to whether the regime of recognition and enforcement that applied under the UAE Arbitration Chapter survived and as such continued to apply to the recognition and enforcement of foreign awards under the UAE Federal Arbitration Law pending adoption of the new regime.60

It is telling that the UAE Federal Arbitration Law does not specifically address the recognition and enforcement of foreign awards. More specifically, as has been seen at section II.1 above, Article 55 of the new Law, which deals with recognition and enforcement, does not distinguish between the process for ratification and enforcement of domestic and foreign awards. Article 55 is also not expressly confined to the ratification and enforcement of domestic awards. In other words, there are no express limitations placed on the scope of application of Article 55 save for the limited application of the Law to the situations listed under Article 2 of the new Law: These, however, do not include a reference to the ratification and enforcement of foreign awards. 61

A. ENFORCEMENT UNDER ARTICLES 235 AND 236 CPC PENDING ADOPTION OF CABINET DECISION NO. 57 OF 2018

It is therefore arguable that during the transition period from entry into force of the UAE Federal Arbitration Law on 16 June 2018 to entry into force of the new enforcement regime for foreign awards by adoption of Cabinet Decision No. 57 of 2018 on 16 February 2019, the recognition and enforcement of foreign awards continued to be governed by Article 236 CPC, an article that, as indicated above, had technically not been repealed by the new Law.62According to Article 236 CPC,

[t]he provisions of the foregoing article [i.e. Article 235 CPC] shall apply to the awards of arbitrators made in a foreign country; the award of the arbitrators must have been made on an issue which is arbitrable under the law of the UAE, and capable of enforcement in the country in which it was issued.

Article 235 CPC, in turn, codified the principle of reciprocity and, read together with Article 236 CPC, conditioned the recognition and enforcement of foreign awards on the same recognition and enforcement requirements that applied to foreign judgments. Read in combination with Article 236 CPC, Article 235 CPC required:

  • Confirmation of the proper jurisdiction of the tribunal in the originating country.63
  • The arbitrability of the underlying dispute in the UAE.64
  • The proper summoning or representation of the parties in the foreign arbitral proceedings.65
  • The absence of any contradiction between the foreign award and an existing UAE judgment or of any violation of UAE public policy.66
  • The award having become res judicata67and enforceable at the place of issuance.68

The requirement of reciprocity meant that the conditions for enforcement of the subject award had to be identical with or less onerous than those prevailing before the UAE Courts.69 For this purpose, the UAE Courts treated the content of the foreign law of arbitration as a matter for fact witness evidence.70 In addition, the UAE Courts required evidence that the subject award was final and good for execution in the jurisdiction of origin. It is arguable that the requirement of reciprocity was only met on presentation of evidence that an arbitration award of UAE origin had previously been enforced in the originating jurisdiction.71 For the avoidance of doubt, enforcement of a foreign award under Articles 235 and 236 CPC followed the old procedural regime, requiring a full ordinary court process, commencing with the competent court of first instance in the Emirate where enforcement was sought, followed by an appeal and culminating in cassation.

In the light of the foregoing, the principle of reciprocity arguably continued to apply to the recognition and enforcement of foreign awards, subject to the UAE Courts’ obligation to comply with international enforcement instruments within the meaning of Article 238 CPC.72 That obligation extended to the New York Convention,73 which has applied to the recognition and [Page62:]

enforcement of foreign awards in the UAE since the UAE’s joining of the Convention in 2006.74 Importantly, given that the UAE did not enter into a reciprocity reservation under the Convention, the obligation to enforce in the terms of the New York Convention applies to Convention and non-Convention awards alike. In other words, UAE Courts are obliged to recognise and enforce any foreign award—irrespective of its country of origin, whether Convention or non-Convention—in accordance with the provisions of the New York Convention. The principle of reciprocity, which arguably survived in the terms of Article 235 CPC read together with Article 236 CPC, was therefore of little practical relevance to the recognition and enforcement of foreign awards in the UAE.

B. CABINET DECISION NO. 57 OF 2018

On 9 December 2018, the UAE Cabinet adopted Cabinet Decision No. 57 of 2018, which entered into force on 16 February 2019. Cabinet Decision No. 57 of 2018 repeals Articles 235 through to 238 CPC and introduces a new set of rules for the enforcement of foreign awards. Even though the wording of the new provisions closely resembles the provisions of the CPC, confirming the continued application of the principle of reciprocity and the continued prevalence of international enforcement instruments that bind the UAE (including the New York Convention),75 applications for enforcement of foreign awards will directly be heard by the Execution Judge, who will issue an order for enforcement within a maximum of three days.76 That order will be enforceable with immediate effect.77 In essence, therefore, the Cabinet Decision introduces a procedural regime for the expedited enforcement of foreign arbitral awards.

Articles 85 through to 88 of the Cabinet Decision read in relevant part as follows:

Article (85)

1. Judgments and orders issued in a foreign State may be ordered for enforcement in the State [i.e. the UAE] under the same conditions prescribed in the law of that foreign State for the enforcement of judgments and orders issued in the State.

2. The order for enforcement shall be applied for by a petition to be submitted by the party concerned […] to the Enforcement Judge, and the latter shall issue an order no later than three days of the submission date thereof. The order so issued may be appealed according to the rules and procedures prescribed for appealing the judgment. The enforcement may be ordered only after the following is verified:

a. That the Courts of the State [i.e. the UAE] do not have exclusive jurisdiction over the dispute on which the judgment or order has been issued, and that the foreign Courts that issued the same have jurisdiction according to the rules of international jurisdiction prescribed in its Law.

b. That the judgment or order has been issued by a Court in accordance with the law of the State in which the judgment or order has been issued and duly certified.

c. That the Parties to the Lawsuit on which the foreign judgment is issued had been required to appear and were properly represented.

d. That the judgment or order has acquired the legal effect of res judicata according to the law of the issuing Court provided that a certificate shall be furnished indicating that the judgment has acquired the legal effect of res judicata, or where the same is already stated in the judgment itself.

e. That the judgment neither conflicts with a judgment or an order previously issued by a Court of the State [i.e. the UAE] nor involves anything that violates the public order or morality.

3. The Enforcement Judge shall have the authority to demand documents that support the application before issuing a decision.

Article (86)

The provision of Article (85) hereof shall apply to arbitration awards issued in a foreign State. The arbitration award must have been issued on a matter for which arbitration is permissible in accordance with the law of the State and is enforceable in the State wherein it has been issued.

[…]

Article (88)

The rules set out in this Chapter [i.e. Chapter 4] shall not prejudice the provisions of treaties and agreements between the State and other States on the enforcement of foreign judgments, orders and instruments [including arbitral awards].”78

A literal reading of Articles 85 to 88 suggests that despite the continuity of the main grounds of examination under Article 85(2) (in addition to questions of arbitrability and the enforceability of [Page63:]

the award at its place of origin under Article 86) as a prelude to the enforcement of a subject foreign award, the enforcement process has been streamlined by placing it into the hands of the Execution Judge. Compared to the domestic enforcement process, which is initiated before a merits judge (i.e. the chief justice of the competent court of appeal), the enforcement process for foreign awards appears to be even more favourable than that for domestic awards introduced in the guise of Article 55 of the UAE Federal Arbitration Law. To lend further support to a streamlined enforcement process, the order for enforcement issued by the Execution Judge will have immediate effect. That said, an appeal against the order will lie—in the usual way—to the competent court of appeal and cassation.

For the avoidance of doubt, by virtue of Article 88, regional and international enforcement instruments, such as the GCC79 and the Riyadh Conventions,80 as well as the New York Convention,81 retain their full relevance in the enforcement of foreign awards in the UAE. By way of reminder, the use of the New York Convention probably outweighs the benefits of the GCC and Riyadh Conventions. In any event, following the adoption of Cabinet Decision No. 57 of 2018, applications for enforcement under any of these Conventions will have to be made to the competent Execution Judge.

C. ENFORCEMENT UNDER THE NEW YORK CONVENTION

Even before the entry into force of the new enforcement regime for foreign awards introduced by Cabinet Decision No. 57 of 2018, there was an argument for saying that Article 236 CPC stood repealed by virtue of Article 60 of the UAE Federal Arbitration Law,82 which extends to provisions of the CPC that prove incompatible with the provisions and arguably the spirit of the UAE Federal Arbitration Law. As a result, (i) the principle of reciprocity in the terms applied to the recognition and enforcement of foreign awards by analogy to that of foreign judgment under Articles 235 and 236 CPC and (ii) the full-blown court procedure (commencing with the competent court of first instance with a two-level appeal to the competent courts of appeal in a first and cassation in a second and final instance) were to be dis-applied for their incompatibility with the greater procedural efficiency introduced by the enforcement criteria under Article 55 and the streamlined court process, the application for recognition and enforcement being heard directly by the competent court of appeal before escalation to cassation (the court of first instance having been carved out of the procedure).83

Further, given the binding nature of the New York Convention in the terms outlined above, UAE Courts in their capacity as supervisory or enforcement courts will also be bound by Article III of the New York Convention, which requires Convention supervisory courts not to apply any more burdensome procedures to the recognition and enforcement of foreign awards than they do to domestic awards. In the terms of Article III:

Each Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles. There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards. (emphasis added)

Applied to the UAE’s obligations under the New York Convention more specifically, this meant that the UAE Courts had to recognise and enforce both foreign Convention and non-Convention awards in strict compliance with Article 55.84 This had the dual effect of (i) disposing of the reciprocity requirements in the enforcement of foreign awards and their replacement with the enforcement conditions set out at Article 55(1)a. through to d. and (ii) submitting the enforcement of foreign awards to the more streamlined procedure conducted before the competent court of appeal with the option of a single appeal to cassation. Doing otherwise would have imposed substantially more onerous conditions on the enforcement of foreign awards than were applied to the enforcement of domestic awards under current Article 55 of the UAE Federal Arbitration Law. This, in turn, would have risked a violation of Article III of the New York Convention and engage the UAE’s liability under public international law.

For the avoidance of doubt, following adoption and entry into force of the new enforcement regime for foreign awards under Cabinet Decision No. 57 of 2018, an application for enforcement of a foreign award to the competent Execution Judge, who in turn is under an obligation to render an enforcement order within three days from the date of application, will also apply to enforcement applications under the New York Convention. This is a fast-track procedure that is [Page64:]

arguably even more streamlined than the procedure for the enforcement of domestic awards under Article 55 of the UAE Federal Arbitration Law and will as such be unlikely to fall foul of Article III of the New York Convention.

It is important to note in this context that the New York Convention offers a simplified enforcement regime. According to Article IV(1) of the Convention, to obtain the enforcement of a foreign award in another Convention country, an award creditor is simply required to submit a duly authenticated original award or a duly certified copy thereof together with the original arbitration agreement and/or a duly certified copy thereof. Provided these conditions are met, the courts of any Convention country, including the UAE, must enforce the award without amendment/review as if it were a judgment of its own, subject to considerations of arbitrability and public policy.85 Importantly, since the UAE’s membership of the New York Convention in 2006, the UAE Courts have—bar one set-back,86 which is thought to have been politically motivated—87 developed a pro-enforcement line of case law,88 strictly in compliance with the terms of the Convention.89

With this in mind, the enforcement regime of foreign awards in the UAE pending adoption of Cabinet Decision No. 57 of 2018 was more likely than not that of the New York Convention—irrespective of the country of origin of the subject award—with the initial application to be filed before the competent court of appeal in accordance with the terms of Article 55 of the UAE Federal Arbitration Law and appeals only open to cassation.90 By contrast, following adoption and entry into force of Cabinet Decision No. 57 of 2018, enforcement applications for foreign awards go straight to the competent Execution Judge, who issues an immediately enforceable order for enforcement.

D. ENFORCEMENT UNDER OTHER BI- AND MULTI-LATERAL INSTRUMENTS

Without prejudice to the foregoing, by virtue of Article 238 CPC, which gave precedence to the application of international enforcement instruments over the enforcement regime under former Article 235 CPC, and the corresponding wording of Article 88 of Cabinet Decision No. 57 of 2018, the recognition and enforcement of foreign awards has been guided not only by the New York Convention, but also by bi-91 or other multi-lateral92 Conventions that bind the UAE.

Generally speaking, in accordance with those Conventions, despite their actual wording,93 an award will be enforced on the basis of reciprocity, i.e. provided that (i) the enforcement criteria of a UAE award in the country of origin mirror those applicable to the enforcement in the UAE of an award originating in that country and (ii) enforcement is not contrary to the principle of public policy as understood in the UAE.94, 95 In other words, in practice, the UAE Courts will only enforce foreign awards under those Conventions if the country of origin also enforces awards originating in the UAE. Examples of relevant enforcement precedents include actions for enforcement under the judicial co-operation agreement with France,96 Libya97 and Jordan.98 For the avoidance of doubt, non-ICSID awards also benefit from the enforcement regime under these various Conventions, including most importantly the New York Convention.99

III. CHALLENGES OF DOMESTIC AWARDS UNDER THE UAE FEDERAL ARBITRATION LAW

Challenges of domestic awards under the UAE Federal Arbitration Law are governed by Articles 53 and 54 of the new Law.

III.1. Challenging Domestic Awards

Article 54 of the UAE Federal Arbitration Law deals with the modalities and the consequences of an action for annulment or nullification in the terms envisaged under Article 53 of the new Law. Importantly, read within context and in particular taking account of the wording of Article 57 of the new Law,100 Article 54 is likely only to apply to situations where the award debtor has filed a stand-alone action for a challenge of the subject award and not where the application is made in defense to an action for enforcement by the award creditor (a situation dealt with by Article 57). That said, it is arguable that under the UAE Federal Arbitration Law, a defense to enforcement is intended to be brought as a stand-alone action. By comparison, under the old regime, grounds for a challenge tended to be pleaded by the award debtor in a so-called nullification defense within the meaning of Article 216 CPC101 in response to an application for ratification.102 This did not prevent an award debtor from making an application for nullification in a separate action before the competent local court.103That said, taking guidance from the practice and procedure [Page65:]

under the former UAE Arbitration Chapter, only an award debtor may likely apply for the nullification of an award, to the exclusion of an award creditor.104The burden of proof will lie with the party seeking nullification.105

Pursuant to Article 54(1) of the new Law, the ruling of the competent court of appeal106 in relation to the application for nullification is final and binding and can only be appealed to the court of cassation. The action for annulment is hence initiated before the competent court of appeal, and not—as used to be the case under the UAE Arbitration Chapter—before the competent court of first instance.107 As a result, there is, importantly, only one level of appeal, i.e. to cassation, where previously, under the UAE Arbitration Chapter, there were two, i.e. to the court of appeal in a first instance and to the court of cassation in a second and final instance. In addition, it is important to note that pursuant to Article 56 of the new Law, an action for a challenge does not stay enforcement, even though the competent court has discretion to order a stay upon request from a party that demonstrates good cause. The court will decide the request for a stay within fifteen days following a hearing and may order security to be provided by the applicant in the event that a stay is granted,109following which the court will have sixty days to decide the challenge.110 By contrast, under the old regime, even though upon being issued, an award acquired probative force within the meaning of Article 42 of the UAE Law of Evidence111 (even in the event of a challenge),112it was considered to become fully effective at law only once it had been ratified.113 Therefore, the enforcement of an award used to be suspended, pending completion of the ratification process.114

Article 54(2) of the new Law provides for a thirty-day time-limit within which an award debtor is required to initiate an application for annulment. The thirty-day time-limit starts running from the date of notification of the award to the award debtor. In the event that the award debtor fails to file for nullification in time, i.e. within the thirty-day time-limit, the award debtor must be understood to have waived the right to do so. Even though there is no express stipulation to this effect, Article 54(2) imposes a prohibition on the competent court of appeal to hear an action for annulment after expiry of the thirty-day time-limit (“shall not hear”), there can hence be little doubt that that time-limit is intended to be a mandatory and not a regulatory time-limit and will, as such, be strictly enforced by the courts.115

Article 54(3)of the new Law deals with the effect of annulment or nullification on the arbitral award.116 In essence, the subject award will be annulled or nullified in whole or in part depending on whether the annulment or nullification affects the whole or just part of the award. Those parts of the award that are capable of surviving on their own will not be affected by the annulment or nullification. In this sense, Article 54(3) codifies the partial annulment or nullification of arbitral awards under UAE law and preserves the status quo that existed under the former UAE Arbitration Chapter to similar effect.117

In addition, Article 54(3) clarifies that an interpretation of parts of an award that are annulled or nullified as a result of an action for annulment equally stands annulled or nullified. In practice, this means that an award on interpretation rendered under Article 49 of the UAE Federal Arbitration Law will be annulled or nullified in relevant part as a result of the annulment or nullification of the award subject of the interpretation provided and to the extent that the award on interpretation is affected by the annulment or nullification. This, in any event, is a consequence of the award on interpretation forming an integral part of the award subject to the interpretation in the terms stipulated under Article 49(3) of the new Law.

Article 54(4) of the new Law deals with the effect of annulment or nullification on the underlying arbitration agreement. Contrary to the position that prevailed under the UAE Arbitration Chapter,118 the nullification or annulment of the award will not affect the underlying arbitration agreement unless the ground for annulment is the absence, extinction, nullity or lack of enforceability of the arbitration agreement itself, in which case there cannot be any proper reference to arbitration in the first place.119The continued validity of the arbitration agreement despite annulment or nullification of the award is subject to the principle of party autonomy, i.e. contracting parties are free to agree to the extinction of the arbitration agreement in the event that the subject award is annulled or nullified. Absent an express agreement to that effect, Article 54(4) ensures that the parties’ original will to resort to arbitration is honoured beyond the annulment or nullification of an award.

Pursuant to Article 54(5) of the new Law, in terms similar to those that prevailed under the UAE Arbitration Chapter,120 contracting parties cannot waive the right to challenge an award.

Finally, Article 54(6) is a novel provision that did not exist in this form under the UAE Arbitration Chapter. It essentially allows a party to the arbitration to request the competent court of appeal [Page66:]

that hears an action for annulment to suspend the annulment proceedings for a maximum period of sixty days in order to allow the tribunal to make rectifications of form to the award that would otherwise serve as good grounds for nullification. In deference to the res judicata principle, those rectifications may only go to the form of the award and not to the merits. In accordance with Article 52 of the UAE Federal Arbitration Law, the merits evidently become res judicata upon issuance of the award. For the avoidance of doubt, this Article reminds of provisions routinely contained in leading sets of institutional arbitration rules that provide for the clerical rectification of awards after their issuance.121To some extent, this Article is also modelled on Article 34(4) of the UNCITRAL Model Law, which provides for remission to the tribunal of the award in order for it to eliminate grounds that would otherwise result in the setting aside of the award. Further, Article 54(6) of the new Law resembles the prevailing court practice under the former UAE Arbitration Chapter, under which the execution judge at the enforcing court was empowered to make clerical corrections to the award, including the correction of orthographical and/or numerical errors,122 as well as the operation of Article 214 CPC, which provided for the remittance, by the enforcing local court to the tribunal, of issues that a tribunal had failed to determine in its award or that required clarification in order to facilitate the enforcement of the award.123

One difficulty with this provision is that a tribunal would usually become functus officio upon issuance of the award.124 That said, there is no reason why a tribunal should not remain in office for a limited period of time following issuance of an award in order to ensure the correction of clerical errors, including those of a procedural nature, that would otherwise result in or at least lend grounds for the (partial) nullification of the award.

Within the context of UAE-seated arbitrations more specifically, Article 54(6) provides a measure of reassurance that clerical errors of a procedural nature committed by the tribunal, such as the formalistic requirements informing the issuance and execution of the award (including e.g. the signature requirement) can be addressed in time so as to avoid nullification of the award for pro forma and/or formalistic reasons.

III.2. Grounds for Challenge

Article 53 of the UAE Federal Arbitration Law sets out the potential grounds for challenge of the arbitral award. These reflect in relevant part the grounds that existed under the UAE Arbitration Chapter, including in particular Article 216 CPC and existing case law precedent that has resulted from a construction of that Article in judicial practice.

Importantly, following the example of the UAE Arbitration Chapter,125 all these grounds (except for the public policy exception)126 are procedural in nature, go either to the existence or form of the underlying arbitration agreement or the conduct of the arbitration process127 and do not require, nor allow the re-opening of the substance of the arbitrator’s decision-making and as such respect the general proposition that the merits of the arbitrator’s award are res judicata within the meaning of Article 52 of the UAE Federal Arbitration Law. This confirms the position that existed under Article 217(1) CPC, i.e. that arbitral awards cannot be reviewed on the merits.128 Relevant case law precedent129 arguably continues to apply. That said, most recent case law precedent under the new Law confirms that the grounds listed under Article 53 are exhaustive and to be interpreted narrowly.130

In the following, each ground will be taken in turn.

A. ABSENCE, INVALIDITY OR TERMINATION OF ARBITRATION AGREEMENT

Article 53(1)a. of the new Law allows the challenge of an award on the ground that there is no arbitration agreement131 or that the arbitration agreement is void, i.e. invalid, or has expired, echoing the wording of former Article 216(1)(a) CPC.132 The absence of an arbitration agreement obviously challenges the proper reference of a dispute to arbitration given that arbitration is based on the principle of contractual consent: A lack of consent is manifested by the absence of an agreement to arbitrate and deprives an arbitration of its proper contractual basis. The question as to whether an arbitration agreement is void or invalid or whether it has expired is determined by reference to the law that governs the arbitration agreement or the UAE Federal Arbitration Law in the event that the parties have failed to agree a governing law for the arbitration agreement.

The invalidity and voidness of an arbitration agreement constitute common grounds for nullification or setting aside and are as such uncontroversial; so is the expiry of an arbitration agreement. Typical circumstances that invalidate or render void the arbitration agreement include deficiencies in the execution of the arbitration agreement, such as a lack of a sufficient [Page67:]

power to sign in violation of Article 4(1) of the new Law.133 For the avoidance of doubt, recent case law precedent134 confirms that termination of a main contract does not invalidate the arbitration clause contained in it unless the nature of the invalidity is such that it extends to the agreement to arbitrate.

In this context, the courts have also more recently confirmed the validity of the arbitration defense under Art. 8(1) FAL.135

B. LACK OF OR INSUFFICIENT CAPACITY

Article 53(1)b. of the new Law allows the challenge of an award on the ground that at the time of entering into the underlying arbitration agreement, one of the contracting parties did not have capacity or was under some incapacity to do so by reference to the law governing the issue of capacity. Typical instances of the incapacity referred to here include deficiencies in a signatory’s power to sign and bind a party on behalf of which the signatory purports to sign the obligation to arbitrate, arbitration being an exceptional form of dispute resolution and requiring a special power to sign136 under UAE law. Such instances of incapacity essentially constitute a violation of Article 4(1) of the new Law and also provided good grounds for nullification of an award under former Article 216 CPC; existing case law precedent is likely to apply mutatis mutandis under Article 53(1)b. of the new Law.

By way of guidance, under the old regime, awards used to be set aside on the basis of the incapacity of a purportedly authorised signatory137 given that only an original rights holder or a specially authorised person may dispose of the right to arbitrate.138 Further, the UAE Courts confirmed that incapacity as a ground for nullification under Article 216 CPC may only be raised by a respondent party’s principal against its agent; a respondent may not rely upon the purported incapacity of a bona fide claimant to submit to arbitration as a defense to the arbitration process.139Acceptance of a power of attorney by the arbitrator without objection by a party during the arbitration proceedings was likely to constitute a waiver on the part of that party to raise the capacity issue at the enforcement stage.140 Representation of a party in an arbitration could not be ratified ex post facto (i.e. after closure of the arbitration proceedings and issuance of the award).141Legal representation in an arbitration usually required a special power of attorney.142 That said, representation by third parties, including non-lawyers without an official power of attorney, in a hearing may be considered authorised by implication.143 Managing directors of a limited liability company were presumed to have the power to bind to arbitration.144The manager of a private commercial business145 and a general manager of a public joint stock company146 were not.

Even though most recent UAE case law precedent under the UAE Arbitration Chapter suggested that apparent authority could operate as a good defence to a challenge of incapacity,147 this position does not appear to hold under Art. 4 of the new Law, which has been subjected to stricter interpretation by a recent Dubai Court of Cassation decision.148 The burden of proof to demonstrate that an arbitration agreement is not binding on the basis of apparent authority rests on the legal person on whose behalf a natural person apparently signed the agreement.149 For the avoidance of doubt, issues of incapacity did not qualify as a matter of public policy under the old regime,150 nor are they likely to do so under the new.

Failure to comply with the capacity requirement will render the underlying arbitration agreement invalid, as anticipated by Article 4(1) of the new Law, and as such also ground a challenge within the terms of preceding Article 53(1)a. In a sense, therefore, sub-paragraph (1)b.—rather than a stand-alone ground for nullification—can be read as subsumed under sub-paragraph (1)a. as a typical example of invalidity of the arbitration agreement that in turn gives rise to nullification or setting aside an award.

For the avoidance of doubt, Article 53(1)c. of the new Law151duplicates the ground listed and discussed at the preceding Article 53(1)b. in relevant part. Pending relevant case law precedent, it is unclear at the time of writing in what terms the grounds listed at Articles (1) b. and c. differ in a meaningful way (if at all). The ground listed under Article 53(1)c. will therefore not be discussed in further detail under a separate heading.

C. INSUFFICIENT OPPORTUNITY TO PRESENT A PARTY’S CASE, LACK OF PROPER NOTIFICATION AND VIOLATION OF DUE PROCESS

Article 53(1)d. of the new Law allows the challenge of an award on the ground that one of the parties to the arbitration has been prevented from presenting its case for reasons of procedural undue process.152 Examples of procedural undue process that would qualify under this ground

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are a failure to notify a party of the appointment of the arbitral tribunal or the pending arbitral proceedings: The former would e.g. occur where a request or a notice for arbitration is not properly served on a respondent party in an arbitration so that that party is not aware of the pending arbitral dispute against it; the latter may also occur where a respondent party is not properly kept informed of the procedural milestones of an unfolding arbitration process, being unaware of the dates on which it is required to make submissions or appear at a hearing before the tribunal.

The reference to a tribunal’s violation of “litigation principles”153 is a reference to the prevailing principles of due process in both court and arbitration proceedings and encapsulates the right to a fair hearing or the audi alteram partem rule, also referred to as the rights of defense. Compliance will usually require a tribunal to accord to each arbitrating party a sufficient opportunity to be heard. This reference echoes the wording of Article 26 of the new Law, which requires the tribunal to “treat” the arbitrating parties “with equality”.

Finally, Article 53(1)d. provides a residual reason for which a party may challenge an award on the ground that it did not have a sufficient opportunity to present its case, apart from a failure of proper notification or a failure to comply with the rights of defense, namely “for any other reason beyond [the affected party’s] control”. In other words, to the extent that the affected party was prevented from presenting its case for a reason attributable to an extraneous cause, that party will have good grounds for nullifying or setting aside the subject award.

This ground also existed in relevant case law precedent under the former Article 216.154That case law precedent is likely to survive. In addition, it has been found under the new Law that a tribunal may exclude witness testimony in circumstances where a party has failed to ensure timely service of such testimony without good cause.155

D. FAILURE TO APPLY THE GOVERNING LAW ON THE MERITS

Article 53(1)e. of the new Law allows the challenge of an award on the ground that the tribunal ignored or disregarded the parties’ choice of law. This is a typical instance of extra petita, whereby the tribunal failed to apply or applies a law other than the governing law of the merits agreed by the parties (either by reference to the governing law clause underlying the main contract or in reliance on a separate agreement on the choice of law concluded between the parties) and thus steps outside his or her mandate.

For the avoidance of doubt, the bona fide misapplication of the governing law by the tribunal does not qualify under this ground.156To the extent that the tribunal errs in the application of the law chosen by the parties to the facts of the case before it, the tribunal’s errors will be beyond rectification and in the interest of finality, the award will remain res judicata in relevant part in accordance with Article 52 of the new Law.

This ground also existed in relevant case law precedent under former Article 216 CPC.157That case law precedent is likely to survive.

E. DEFICIENCIES IN THE APPOINTMENT OR THE COMPOSITION OF THE TRIBUNAL

Article 53(1)f. of the new Law allows the challenge of an award on the ground of irregularities in the appointment and/or composition of (a member of) the tribunal. This will be the case where (i) an individual member of the tribunal does not meet the threshold requirements laid down for arbitrators in the Law in the terms set out under Article 10 of the new Law, or where an arbitrator does not meet the qualities and/or professional or other qualifications laid down in the arbitration agreement or where (ii) the tribunal has not been constituted in accordance with the provisions of the Law, i.e. Article 11 of the new Law, or those laid down in the arbitration agreement.

This ground also existed under the former Article 216(1)(b) CPC.158 Relevant case law precedent is likely to survive. By way of guidance, under the old regime, the UAE Courts would not entertain any challenge of an award on the ground that a tribunal member was not properly default-appointed where the default appointment took place in strict compliance with the terms of the underlying institutional rules.159 In institutional arbitration, where a party failed to submit before the appointing authority a challenge against the appointment of the arbitration panel, there could be no subsequent recourse to the UAE Courts.160 Equally, the UAE Courts would refuse to entertain grounds of challenge on the basis that an arbitrator was not properly default-appointed by reference to a particular set of institutional rules in an ad hoc arbitration or where the default-appointment was not subject to any institutional rules in the first place.161 [Page69:]

F. INVALIDITY OF THE ARBITRAL PROCEEDINGS OR AWARD RENDERED OUT OF TIME

Article 53(1)g. of the new Law allows the challenge of an award (i) on the ground of irregularities in the arbitration process that affect the validity of the award or (ii) on the ground that the award was rendered out of time. Both grounds existed under former Article 216(1)(c) CPC162There is no reason to believe that existing case law precedent under the former UAE Arbitration Chapter does not remain good case law precedent under the new Law.

(i) Procedural irregularity affecting the validity of the award

Pursuant to established case law precedent under the UAE Arbitration Chapter, the validity of the award is affected e.g. (i) if the number of arbitrators appointed in a particular reference is not uneven, the uneven number of arbitrators qualifying as a matter of public policy under UAE law;163 (ii) if an arbitrator is found to be partial, partiality qualifying as a matter of public policy;164 (iii) if the arbitration procedure has been conducted in disregard of the audi alteram partem rule;165 (iv) if the award relies on unsworn witness evidence;166or (v) if the award does not mention a date of issuance unless the competent supervisory court could discern the date of issuance from a review of the arbitration record.167

Further, (i) a failure of an award to set out a summary of the parties’ respective cases;168 (ii) a failure to consider one party’s case;169 (iii) a failure to refer to the arbitration agreement in the award or to refer to valid terms of reference have been held to be valid grounds for nullification;170(iv) a failure to set out the tribunal’s reasoning;171 (v) a failure to award Counsel fees (or party costs other than the tribunal’s fees and expenses and the administrative costs of the administering arbitration institution) without express authorisation in the underlying arbitration agreement or the terms of reference;172 and (vi) a failure to set out the tribunal members’ signatures173 may constitute a good ground for (partial) nullification.

By contrast, a failure to record a dissenting opinion174 or a failure to pronounce the award in the name of the Ruler175 is not fatal given that in issuing the award, the arbitrator is not bound by the rules applicable to the issuance of court judgments.176 The UAE Courts have also refused nullification of an award on the basis that relevant evidence was not presented to the tribunal in official Arabic translation where the arbitrator could understand the evidence and the opposing party did not object to its submission177 or where the opposing party could not substantiate why and in what measure the submission of foreign language documents prejudiced the outcome of the arbitration.178 Further, no nullification will likely lie against an award (i) that was not issued to the opposing party and the tribunal in the language of the arbitration (e.g. Arabic) or (ii) that considered documents that were only submitted to the tribunal to the exclusion of the opposing party, provided that the tribunal did not rely upon those documents in making the award.179

For the avoidance of doubt, unlike the position under the old regime, under which—in the event that an arbitrator was replaced over the course of the proceedings—the entire proceedings had to be re-opened before the new tribunal,180 under the new Law, the tribunal is empowered to continue the proceedings.181That said, full quorum of all arbitrators is required at all hearings before the tribunal in order to validate the arbitration procedure.182 An award for compound interest has previously been set aside,183 although this may no longer be good law, at least where the parties have expressly agreed to the award of compound interest. Simple interest to compensate a creditor for delay in payment by a debtor has been found to be compatible with the Islamic Shari’a and, as such, enforceable by the courts with effect from the date of filing the claim.184 More recent case law shows that both the Dubai and the Abu Dhabi courts have awarded simple interest,185 compound interest also being routinely available from the Dubai courts, the Abu Dhabi courts being more reluctant.186

That said, (i) insufficient reasoning;187 (ii) a tribunal’s purported failure to appoint an expert;188 (iii) objections in relation to the application of rules of proof, the evaluation of evidence (including question of admissibility and weighing of evidence); (iv) the arbitrator’s legal and evidentiary assessment;189 and (vi) ambiguities in the recitals and/or operative part of the award190 do not constitute valid grounds for nullification.191

Finally, a failure to provide a copy of the award to the parties within a maximum of five days from the date of the issuance of the award in accordance with Article 213(3) CPC did not constitute a valid ground for setting aside the award as late delivery does not affect the content proper of the award,192 the five-day time limit having been qualified as regulatory. Equally, for the same reason, an arbitrator’s complete failure to deliver copies of the award to the parties was found not to [Page70:]

invalidate the award.193 Similar considerations may ultimately apply to the tribunal’s obligation to notify an original or a copy of the award upon the parties within fifteen days from the date of issuance of the award under Article 44 of the new Law.

(ii) Award rendered out of time

For the avoidance of doubt, as stated previously, under former Article 216(1)(c) CPC, a challenge could succeed on the basis that the award was rendered out of time.194 The six-month time-limit for rendering an award under Article 210 CPC was subject to a periodic extension by the parties, the arbitrator or the curial court provided continuity between the expiry of the previous period and the extension;195 the parties’ agreement to an extension could, on occasion, be implied from party conduct.196

Similarly, under Article 42(1) of the new Law, a final award must be rendered within six months from the date of the first hearing with the parties, unless otherwise agreed by the parties. Under that Article, the tribunal may extend the time-limit of its own motion by an additional period of six months, unless the parties agree to a longer extension. Further extensions will then need to be secured from the curial courts either by tribunal or party application.197

That said, a failure to render a final award in time does not qualify as public policy within the meaning of UAE law: a supervisory UAE Court is therefore unlikely to raise such a failure ex officio,198 even under the new Law.

(iii) Premature references to arbitration

Article 53(1)g. of the new Law may also capture premature references to arbitration, in violation of prevailing conditions precedent.

Taking guidance from existing case law precedent on the point, it has been recognised by the UAE Courts that conditions precedent are binding on contracting parties before recourse to arbitration.199 For these purposes, the decision-making procedure involving the Engineer and the service of the various notices within the meaning of Clause 67 of the FIDIC Conditions of Contract constitute such a condition precedent, unless the parties expressly agree otherwise in variation to the original terms of contract.200 The burden of proving compliance with a condition precedent rests on the party advancing a claim in arbitration.201 Recourse to arbitration without a prior referral to the Engineer for a decision on a disputed matter renders arbitration under the FIDIC standard form conditions premature.202 Failure to comply with e.g. a contractual obligation to explore amicable settlement prior to referring to arbitration will be taken as a failure of the attempt to settle, bar the respondent’s express jurisdictional objections at the outset of the arbitration process; a respondent’s failure to object will be construed as a waiver, no objections being admissible at the ratification stage.203

Attempts at mediation or reconciliation are only compulsory prior to recourse to arbitration if expressly stipulated as a condition precedent in the underlying arbitration agreement204 and provided they are sufficiently precise to be performed.205 For the avoidance of doubt, absent any conditions precedent from the prevailing terms of an arbitration agreement, a party may initiate arbitration proceedings immediately upon occurrence of a dispute.206

In the alternative, there is an argument for saying that premature references to arbitration must be dealt with by reference to Art. 19 FAL as a matter of the tribunal’s kompetenz-kompetenz. In the event that the tribunal finds in favour of its own jurisdiction, the tribunal’s award affirming jurisdiction will be challengeable before the competent court of appeal within 15 days following notification of the award pursuant to Art. 19(2) FAL. The court of appeal, in turn, will look into the tribunal’s jurisdiction afresh within 30 days following the Art. 19(2) application.207 The court’s ruling will be final and binding.208 Failure to challenge an affirmative award on jurisdiction under Art. 19(2) FAL might amount to a waiver to object at a later stage (e.g. at the enforcement stage) within the meaning of Art. 25 FAL.

G. EXTRA PETITA

Article 53(1)h. of the new Law allows the challenge of an award on the ground that it deals with matters that are extra petita, i.e. that fall outside the proper scope of the arbitration agreement. This is a common ground for the nullification or setting aside of awards, an arbitrator being required to stay within the strict subject-matter limits of his or her mandate.

This ground existed in corresponding terms under relevant case law precedent on former Article 216(1)(a) CPC.209 Taking guidance from that case law precedent, which is likely to survive under [Page71:]

the Law, an award is unlikely to be found extra petita on the basis of expert arbitrators, such as engineers, availing themselves of their own specialist knowledge in the deliberation process without a prior submission of their own technical views to the parties for comment.210 An arbitrator’s performance infra petita of his or her mandate does not constitute a ground for annulment.211 That said, parties may generally be entitled to introduce new matters into an ongoing arbitration provided that those are sufficiently linked to matters already subject to determination by the tribunal.212 It is worth noting that under the new Law, where an arbitrator’s award is infra petita, the parties may, within 30 days of receipt of the award, request the arbitrator to make a decision on the outstanding issues, which in turn will form part of the final award.213This, again, is not materially different from the existing status quo under the former UAE Arbitration Chapter.214

Importantly, in terms similar to those under existing case law precedent under the former UAE Arbitration Chapter,215 only those parts of the award will be nullified or set aside that are affected by the irregularity and provided that those parts are separable from the remaining parts of the award, which in turn can continue to exist on their own. This confirms the principle of partial enforcement or partial nullification, both of which existed under relevant case law precedent under the UAE Arbitration Chapter.216 Taking guidance from practice under the former UAE Arbitration Chapter, the partial nullity of the award on grounds of extra petita is likely to extend to parts of the award that deal with related claims.217

H. EX OFFICIO GROUNDS

Article 53(2) of the new Law confers upon the UAE Courts in their capacity as curial courts a power to invalidate an award ex officio, i.e. of their own motion in terms similar to those prevailing under the UNCITRAL Model Law,218in the event of the following two sets of circumstances. The exercise of this power is mandatory (“shall”) in the event that one of the listed circumstances arises.

  • Non-arbitrability Article 53(2)a. of the new Law requires the tribunal to nullify or set aside the award in the event that the underlying subject-matter of the dispute in arbitration is not arbitrable and as such may not be settled by reference to arbitration. This ground is uncontroversial and confirms the prevailing position under the former UAE Arbitration Chapter;219 existing case law precedent220 is likely to continue to apply under the new Law.221
    For the avoidance of doubt, the question of arbitrability more specifically is dealt with by Article 4(2) of the new Law. Further guidance on the operation of that Article and on what subject-matters are arbitrable or not under the Law is provided at Chapter 2.
  • Violation of public policy Article 53(2)b. of the new Law requires the tribunal to nullify or set aside the award in the event that the award violates UAE public policy. This ground is uncontroversial and confirms the approach taking under the former UAE Arbitration Chapter.222
    Further guidance on the operation of that Article, on what constitutes public policy in the UAE and on the precise meaning of UAE “public order and morality” is provided at Chapter 4.

IV. CONCLUSION

Apart from some streamlining, the provisions of the new Law in relation to the issuing, enforcing and challenging of the award codify—in relevant part—the existing status quo under the UAE Arbitration Chapter.

Under the new Law, actions for recognition and enforcement as well as the nullification of an award will be heard by the court of appeal, subject to review by the court of cassation, hence streamlining the post-award process as outlined above. Even though arbitral awards rendered under the new Law will have the same executory force as judgments, their execution remains subject to a ratification process.223 Both a supervisory court ruling ratifying an award as well as a ruling setting aside an arbitral award may be challenged.224 Further, unless the parties agree otherwise, the underlying arbitration agreement remains valid and the parties will have to resolve their pending dispute in arbitration.225 The grounds for challenge of an arbitral award under the new Law are a combination of those under the former UAE Arbitration Chapter and the UNCITRAL Model Law226 and are overall arbitration-friendly. Article 54 of the new Law also provides for the award to be remitted to the arbitrator to avoid nullification in the terms presently prevailing under Article 214 CPC.227 That said, an action for nullification must be brought within 30 days from the date of service of the subject award upon the applicant.228

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Importantly, an application for annulment does not automatically suspend the execution of the award.229 Under the new Law, like the position under the former UAE Arbitration Chapter, both a decision by the UAE Court to execute an award and one to set aside can be appealed.230 That said, any appeal process is shortened by one stage, any application for enforcement or nullification being initiated before the competent court of appeal, subject to further appeal only to the competent court of cassation.231 Court rulings in relation to the enforcement and nullification of awards are public and as such do not benefit from the confidentiality privilege under Article 48 of the new Law. Further, under Article 41(6) of the new Law, awards are deemed rendered at the seat of the arbitration, hence dispensing with the controversy created by old case law precedent232 to the effect that awards are considered rendered where signed.233 On a final note, the recent adoption of Cabinet Decision No. 57 of 2018, which repeals Articles 235 through to 238 CPC, introduces a new set of rules for the enforcement of foreign awards. Even though the wording of the new provisions closely resembles the provisions of the CPC in relevant part, confirming the continued application of the principle of reciprocity and the continued prevalence of international enforcement instruments that bind the UAE (including evidently the New York Convention), applications for enforcement of foreign awards will directly be heard by the Execution Judge, who will issue an order for enforcement within a maximum of three days. That order will be enforceable with immediate effect, thus lending support to a further enhanced enforcement regime for foreign awards in the UAE. For the avoidance of doubt, foreign awards irrespective of their country of origin remain enforceable under the New York Convention.

NOTES

1
This chapter is based on the author’s present revision of his seminal work on the UAE Arbitration Chapter: G. Blanke, Commentary on the UAE Arbitration Chapter, Sweet & Maxwell/Thomson Reuters, 2017. The law is stated as at 24 April 2020 unless indicated otherwise.

2
UAE Federal Law No. 6 of 2018 Concerning Arbitration, referred to in shorthand hereinafter as the “UAE Federal Arbitration Law” or simply the “new Law” or “FAL”. For an initial assessment, see G. Blanke, “The UAE Federal Arbitration Law: In With the New, Out With the Old”, 3 ICC Dispute Resolution Bulletin (2018), 25-28.

3
For an article-by-article commentary on the UAE Arbitration Chapter, see G. Blanke, Commentary on the UAE Arbitration Chapter, Sweet & Maxwell/Thomson Reuters, 2017.

4
For an account of the ratification and enforcement process under the UAE Arbitration Chapter, see in particular G. Blanke, Recognition and Enforcement of Domestic and International Awards in the UAE: Practice and Procedure in C. Klausegger et al. (eds), Austrian International Arbitration Yearbook 2015, Manz, 2015, 395-436; G. Blanke, United Arab Emirates in G. Blanke (ed.), Arbitration in the MENA, Juris, 2016 (release 1-2017, 2018); and G. Blanke, “Recognition and Enforcement of Domestic and Foreign Awards” in G. Al Hajeri and Z. Penot (eds), The UAE Arbitration Yearbook 2018, LexisNexis, 2019, 96-131.

5
UAE Federal Law No. (11) of 1992 on Civil Procedures.

6
According to Art. 60(1) FAL.

7
In relation to the Executive Regulation of the UAE Civil Procedures Law, 9 December 2018.

8
Decree No. 57 of 2009 Establishing a tribunal to decide the Disputes in relation to Settling the Financial Position of Dubai World and its subsidiaries (the “Dubai World Special Tribunal”), dated 14 December 2009.

9
Decree No. 61 of 2009 Setting up a Special Judicial Committee on the disputes related to Amlak Finance PJSC and Tamweel P.J.S.C., dated 27 December 2009.

10
Dubai Government Decree establishing a special judicial committee to settle disputes related to Zabeel Investments LLC (“Zabeel Special Judicial Committee”), dated 9 February 2011.

11
Practice Direction of Decree No. 61 of 2009, at 7. In relation to arbitration awards related to Decree No. 57 of 2009, see to similar effect C.C. Shepherd, “Dubai World—Special Tribunal clarifies approach to arbitration agreements (30 March 2010)”, A Contribution by the ITA Board of Reporters, Kluwer Law International.

12
DWT/0003/2010 and DWT/0010/2010—Vinod Dang v Jumeirah Islands LLC, 28 September 2010; DWT/0022/2010—P&T Architects and Engineers Ltd v Nakheel PJSC, 8 May 2011; DWT/0016/2011—Simon James Arrol v Jumeirah Heights LLC; and DWT/0004/2014—Reeyaz Moosa & another v Jumeirah Golf Estates LLC.

13
Case No. CFI 016/2013, DIFC Court of First Instance, reported in H. Arab, L. Hammoud and G. Lovett (eds), Summaries of UAE Courts’ Decisions on Arbitration, Second Edition, ICC Publishing, 2017, at 72.

14
Case No. 193/2002, Dubai Court of Cassation, 23 June 2002, reported in H. Arab, L. Hammoud and G. Lovett (eds), Summaries of UAE Courts’ Decisions on Arbitration, ICC Publishing, 2013, at 36; Case No. 47/2007, Dubai Court of Cassation, 29 April 2007; Case No. 133/2007, Dubai Court of Cassation, 23 September 2007; Case No. 136/JY 3, Abu Dhabi Court of Cassation, 31 March 2009; and Case No. 873/JY 3, Federal Court of Cassation, 22 October 2009. For further detail, see G. Blanke, Commentary on the UAE Arbitration Chapter, Sweet & Maxwell/Thomson Reuters, 2017, at I-065 and II-035.

15
For confirmation in relation to Practice Direction No. 61 of 2009 Concerning Formation of Special Judicial Committee to decide in the Disputes Relating to Amlak Finance PJSC and Tamweel PJSC issued by the Dubai Government, dated 27 January 2010, 7.

16
For further guidance, see G. Blanke, “Free Zone Arbitration in the United Arab Emirates: DIFC v. ADGM (Part I)”, 35(5) J. of Int. Arb. (2018), 541-573.

17
For further guidance, see G. Blanke, “Free Zone Arbitration in the United Arab Emirates: DIFC v ADGM (Part II)”, 35(6) J. of Int. Arb. (2018), 1-19.

18
G. Blanke, “Free Zone Arbitration: The Mechanics”, 6(2) Indian Journal of Arbitration Law (2018).

19
For further discussion of the role of the DIFC and ADGM courts as a conduit jurisdiction, see G. Blanke, “Free Zone Arbitration in the DIFC and the ADGM”, 35(1) Arbitration International (2019), 95-116.

20
Commonly referred to in shorthand as the “JT”.

21
Decree No. (19) of 2016 forming the Judicial Committee of the Dubai Court and the DIFC Courts, dated 9 June 2016.

22
Promulgating the law of civil procedures as amended by Law No. 30 of 2005.

23
See in particular the question of the proper competence of the enforcing court: A. Ghonim, “Where should you go to enforce Arbitration Awards issued in UAE?”, Al Tamimi Law Update, December 2017-January 2018.

24
On International Commercial Arbitration, as amended in 2006.

25
For the avoidance of doubt, the UAE Federal Arbitration Law repeals the UAE Arbitration Chapter, i.e. the arbitration-relevant provisions of the CPC (Arts 203-218 CPC) - see Art. 60.1 FAL, which contains express wording to that effect. Pending adoption of Cabinet Decision No. 57 of 2018, the new Law most probably also repealed Art. 236, which dealt with the enforcement of foreign arbitral awards and which lost its meaning with the entry into force of the new Law - see Art. 60.2, which extends the legal effect of the new Law to any provisions of the old Law that are inconsistent with the new Law (albeit not expressly listed under Art. 60.1). See the further considerations at section II.2. below.

26
Case No. 1289/2018, Dubai Court of First Instance, 19 September 2018, reported in J. Gaffney and M. Nasreddine, “X v. Y, Court of First Instance, 1289 of 2018, 19 September 2018”, A Contribution by the ITA Board of Reporters, Kluwer Law International. In this case, the challenge was filed on 13 June 2018, i.e. only two days before entry into force of the new Law. See also Case No. 992/2018, Dubai Court of Cassation, 23 June 2019, which appears to rely upon the provisions of the CPC despite dealing with an application having been initiated after entry into force of the FAL.

27
G. Blanke, “The UAE Federal Arbitration Law: In With the New, Out With the Old”, 3 ICC Dispute Resolution Bulletin (2018), 25-28.

28
For instructive case law precedent, see the reference to latest case law developments throughout this chapter. Also see G. Blanke, “Arbitration in the UAE: 2019 in Review” in G. Al Hajeri and Z. Penot (eds), The UAE Arbitration Yearbook 2019, LexisNexis, 2020, 54-85; and G. Blanke, “Arbitration in the UAE: 2018 in Review” in G. Al Hajeri and Z. Penot (eds), The UAE Arbitration Yearbook 2018, LexisNexis, 2019, 31-61.

29
Case No. 236/JY 27, Federal Supreme Court, 13 December 2005; Case No. 225/2005, Dubai Court of Cassation, 12 December 2005, reported in H. Arab et al. (2013), op. cit., at 69; Case No. 325/2005, Dubai Court of Cassation, 10 December 2005; Case No. 65/2012, Abu Dhabi Court of Cassation, 15 April 2012, reported in Arab et al. (2017), op. cit., at 46; and Case No. 199/2014, Dubai Court of Cassation, 21 August 2016 (res judicata effect ceased upon nullification of the subject award).

30
For comparison, see G. Blanke, Commentary on the UAE Arbitration Chapter, Sweet & Maxwell/Thomson Reuters, 2017, at II-122 et seq.

31
For some initial case law precedent that has been reported to have followed the simplified enforcement procedure in relation to the enforcement of domestic awards under the new Law, see Case No. 6/2018, Chief Justice, Dubai Courts, 31 October 2018 (unpublished); and Case No. 9/2018, Chief Justice, Dubai Courts, 17 September 2018 (unpublished).

32
For guidance, see, e.g. Case No. 516/2019, Dubai Court of Cassation, 8 August 2019

33
G. Blanke, Commentary on the UAE Arbitration Chapter, Sweet & Maxwell/Thomson Reuters, 2017, at II-113.

34
Case No. 873/JY 3, Federal Court of Cassation, 22 October 2009; and Case No. 33/2009, Dubai Court of Cassation, 22 March 2009.

35
It is also worth noting in this context that in October 2018 the Dubai Courts introduced an electronic filing channel (“Order on petition, arbitration”), which is dedicated to the enforcement of awards under Art. 55 FAL.

36
For further detail on the operation of Art. 53 FAL, see section III.2. below.

37
G. Blanke, Commentary on the UAE Arbitration Chapter, Sweet & Maxwell/Thomson Reuters, 2017.

38
Art. 55(1)a. FAL.

39
Art. 35(2), UNCITRAL Model Law, even though under the Model Law, the original copy of the award must be “authenticated”.

40
Art. 55(1)b. FAL.

41
Art. 35(2), UNCITRAL Model Law, which—in alternative to an original—requires submission of a certified copy only.

42
Case No. 22/JY 22, Abu Dhabi Court of Cassation, 3 March 2002; and Case No. 51/1992, Dubai Court of Cassation.

43
For further background, see also Chapter 2.

44
A certified copy, which can evidently only be produced on the basis of an existing original.

45
Art. 55(1)c. FAL.

46
G. Blanke, Commentary on the UAE Arbitration Chapter, Sweet & Maxwell/Thomson Reuters, 2017.

47
Following a new policy introduced by the Abu Dhabi Legal Department in 2018: See Administrative Circular No. 30 of 2018, issued by the ADLD on 11 November 2018.

48
Art. 55(1)d. FAL

49
See the case law precedent listed at fn. 123 and fn. 124.

50
Case No. 449/JY 21, Federal Supreme Court, 11 April 2001; Case No. 371/JY 18, Federal Supreme Court, 30 June 1998; Case No. 225/2005, Dubai Court of Cassation, 12 December 2005; Case No. 72/2007, Dubai Court of Cassation, 10 June 2007, reported in H. Arab et al. (2013), op. cit., at 80; and Case No. 146/2008, Dubai Court of Cassation, 9 November 2008, reported in H. Arab et al. (2013), op. cit., at 94.

51
In the terms further discussed at section II.1.b. below.

52
Case No. 371/JY 18, Federal Supreme Court, 30 June 1998; Case No. 157/JY 19, Federal Supreme Court, 25 April 1999; and Case No. 125/1995, Dubai Court of Cassation.[Page74:]

53
Case No. 2016/2011, Abu Dhabi Court of First Instance, 13 March 2012; Case No. 965/2010, Dubai Court of Cassation, 26 June 2011; Case No. 892/2011, Dubai Court of First Instance, 25 March 2013; Case No. 27/2012, Dubai Court of First Instance, 24 April 2013; Case No. 173/2013, Dubai Court of First Instance, 24 April 2013; Case No. 672/2014, Dubai Court of First Instance, 18 June 2014; Case No. 674/2014, Dubai Court of First Instance, 24 November 2014 (also making reference to mandatory compliance with the “fundamental principles of litigation procedures”, i.e. the parties’ obligation to prove their case, notification of a date to hear the parties’ evidence and equal treatment of the parties); Case No. 1224/2014, Dubai Court of First Instance, 29 October 2014; Case No. 1645/2014, Dubai Court of First Instance, 14 January 2015; and Case No. 286/2015, Dubai Court of First Instance, 22 April 2015.

54
Case No. 965/2010, Dubai Court of Cassation, 26 June 2011; and Case No. 286/2015, Dubai Court of First Instance, 22 April 2015.

55
Case No. 965/2010, Dubai Court of Cassation, 26 June 2011.

56
R. Karrar-Lewsley, “Dubai Court of Appeal Judgment on the scope of public policy in real estate arbitrations”, Al Tamimi Law Update (November 2013), reporting on a Dubai Court of First Instance case that refused enforcement of an interim award on jurisdiction. Also Case No. 227/2013, Abu Dhabi Court of Cassation, 13 June 2013, reported in Arab et al. (2017), op. cit., at 101.

57
Although Art. 39(2) FAL omits the reference to “partial” awards made in Art. 39(1) FAL, which confers a power on the tribunal to issue both interim and partial awards. Arguably, this was unintended by the UAE legislator, partial and interim awards being treated in a similar (and largely identical) manner under UAE law.

58
Subject, however, to the tribunal’s permission to apply: See Art. 21(4) FAL.

59
This section is based on G. Blanke, “The Recognition and Enforcement of Foreign Awards under the UAE Federal Arbitration Law: Some Explanatory Guidance”, MENA Legal Outlook, Thomson Reuters, January 2019. For helpful guidance, see also M. T. Aly and Z. Anani, “Enforcement of Foreign Arbitral Awards in the UAE: Paving the way for a New Enforcement Regime”, Al Tamimi Law Update, December 2018—January 2019.

60
See, however, Case No. 25/2018, Chief Justice, Dubai Courts, September 2018 (unpublished), which reportedly followed the simplified enforcement regime under the UAE Federal Arbitration Law: S. Tannous et al., “The New Federal Arbitration Law: Was It Worth the Wait?”, 36(4) ASA Bulletin (2018), 866-894, at 887. Note that this case is reported elsewhere as having been issued on 3 October 2018, presently pending appeal.

61
Art. 2 FAL delimits the scope of application of the Law by reference to the location where an arbitration is conducted, i.e. whether inside or outside the UAE, provided the underlying relationship from which the dispute arises is a legal one, whether contractual or non-contractual.

62
Being carved out of the wording of Art. 60(1) FAL.

63
Art. 235(2) a) and b) CPC, including that the UAE Courts would not have been the proper forum for trial and the proper seizure of the tribunal in the originating country.

64
Art. 236 CPC.

65
Art. 235(2) c) CPC.

66
Art. 235(2) e) CPC.

67
Art. 235(2) d) CPC.

68
Art. 236 CPC.

69
See Case No. 17/2001, Dubai Court of Cassation, 10 March 2001:
[Art. 235(1) CPC] confirms that the necessity of reciprocity between the Emirates and the foreign country where the arbitration award is passed, i.e. that the conditions for enforcement of such awards in that country are the same as the conditions in the Emirates or less onerous, in addition to ascertaining compliance with the conditions laid down in detail in the second paragraph of Article 235. This requires that the foreign law in the country where the arbitration award is passed should be placed before the trial court for the purpose of ascertaining the similarity between the rules pertaining to enforcement of foreign judgments in the arbitration country and the rules applicable to the Emirates, even if the other conditions stated in the second paragraph of the said Article are satisfied.

70
ibid.: [. . .] the party insisting on enforcement of a foreign law should submit evidence proving the text of the said law accompanied by an Arabic translation, as, in the prevailing circumstances, the [foreign] law is regarded as a fact that requires substantiation.

71
ibid.

72
Which provided that the rules laid down in Arts 235 and 236 CPC were without prejudice to the application of conventions concluded between the UAE and third countries.

73
On the recognition and enforcement of foreign arbitral awards, done at New York, 10 June 1958. See, e.g., Case No. 631/2018, Dubai Court of Cassation, 28 October 2018 (enforcement of a CIETAC award under the New York Convention); and Case No. 1079/2018, Dubai Court of Cassation (enforcement of a NAI award under the New York Convention).

74
Decree No. 43 of 2006.

75
Arts 85-88, Cabinet Decision No. 57 of 2018.

76
Art. 85(2), Cabinet Decision No. 57 of 2018. See Case No. 3/2020, Dubai Court of Cassation, 16 February 2020 (declining jurisdiction of the President of the Dubai Court of Appeal to recognise and enforce a foreign award issued under the Rules of the London Refined Sugar Association in favour of the competent Execution Judge pursuant to Art. 85, Cabinet Decision No. 57 of 2018). Also see Case No. 64/2020, Dubai Court of Cassation, 11 March 2020 (enforcement of a GCC Commercial Arbitration Centre award).

77
Art. 78, Cabinet Decision No. 57 of 2018, which provides that “[i]mmediate enforcement shall be mandatory by operation of the law in any of the following cases: […] D. Orders delivered on petitions. […]”. For the avoidance of doubt, the application for enforcement of a foreign arbitral awards takes the form of a petition; see Art. 85(2), Cabinet Decision No. 57 of 2018.

78
Translation provided by Thomson Reuters (with minor amendments).

79
GCC Convention for the Execution of Judgments, Delegations and Judicial Notifications (1987).[Page75:]

80
Riyadh Convention on Judicial Cooperation between States of the Arab League (1983).

81
See, e.g. Case No. 763/2019, Dubai Court of Cassation, 26 January 2020.

82
Art. 60(2) FAL.

83
Although there is room for arguing that under Art. 57 FAL, whereas the application for enforcement is heard by the Chief Justice orthe President of the competent court of appeal, a defense to enforcement can only be brought as a stand-alone action, to be heard by the full court of appeal (with an option to appeal to cassation) under Art. 53 FAL.

84
No doubt, the application of the processes under the UAE Arbitration Chapter, stretching from the court of first instance with entitlements to appeal to the courts of appeal and cassation, are by definition more burdensome than the streamlined process of Art. 55 FAL in the terms outlined below.

85
Art. V(2) a) and b), New York Convention.

86
Case No. 156/2013—Canal de Jonglei, Dubai Court of Cassation, 18 August 2013, reported in Arab et al. (2017), op. cit., at 114, which affirmed by Case No. 489/2012, Dubai Court of First Instance, 18 December 2012; and Case No. 40/2013, Dubai Court of Appeal, 31 March 2013, in the same reference. For further reporting, see G. Blanke, “Ruling of Dubai Court of First Instance Calls into Question UAE Courts’ Recent Acquis on International Enforcement of Foreign Arbitral Awards”, 29 Arab Law Quarterly (2015), 56-75.

87
The debtor party being the Government of Sudan. Essentially, the decision of the Court of Cassation restricts the scope of application of the New York Convention to situations in which the UAE Courts have subject matter or personal jurisdiction in any event. It is arguable that the Court’s ruling is compatible with Art. III of the New York Convention in that the test of jurisdiction would also have applied within the context of domestic enforcement. To say the least, some comfort can be drawn from the Court’s abstention from basing its decision on the public policy exception within the meaning of Art. V.2.(b) instead.

88
See, however, Case No. 52/2016, Dubai Court of Appeal, 30 March 2016 (refusal to enforce an ICC award rendered in London on the mistaken basis that the UK was not a member country of the New York Convention). But now reversed on appeal, see Case No. 384/2016, Dubai Court of Cassation, 19 June 2016, reported in Arab et al. (2017), op. cit., at 159. See also the successful enforcement under the New York Convention of an award rendered in London, England, before the Dubai Court of Cassation in Case No. 693/2015, reported in H. Arab and D. Al Houti, “Enforcement of Foreign Awards in the UAE: Back on Track?”, Kluwer Arbitration Blog, 17 June 2016,http://kluwerarbitrationblog.com/2016/06/17/enforcement-of-foreign-awards-in-the-uae-back-on-track/.

89
See (i) Case No. 35/2010, Fujairah Court of First Instance, 27 April 2010 (enforcement in absentia of LMAA award rendered in London, no appeal), reported in H. Arab et al. (2013), op. cit., at 109; (ii) the Maxtel line of cases (enforcement of DIFC-LCIA award rendered in London): Case No. 268/2010, Dubai Court of First Instance, 12 January 2011; Case No. 126/2011, Dubai Court of Appeal, 22 February 2012, and Case No. 132/2012—Airmech Dubai LLC v Maxtel International LLC, Dubai Court of Cassation, 18 September 2012, Case No. 924/2009, Abu Dhabi Court of Cassation, 17 December 2009, reported in H. Arab et al. (2013), op. cit., at 123; (iii) Case No. 679/2010—Explosivos Alaveses v United Management Chile Limited, Abu Dhabi Court of Cassation, 16 June 2011(enforcement of ICC award rendered in Paris), reported in H. Arab et al. (2013), op. cit., at 110; (iv) Case No. 531/2011, Dubai Court of Appeal, 6 October 2011 (enforcement of SIAC award rendered outside the UAE), reported in H. Arab et al. (2013), op. cit., at 118; and (v) Case No. 1/2013, Dubai Court of Appeal, 9 July 2013 (enforcement of ICC award rendered in Stuttgart); recently affirmed by Case No. 434/2013—Al Reyami Group LLC v BTI Befestigungstechnik GmbH & Co KG, Dubai Court of Cassation, 23 November 2014, reported in Arab et al. (2017), op. cit., at 130; (vi) Case No. 400/2014, Dubai Court of Cassation, 18 January 2015 (LMAA Award rendered in London), reported in Arab et al. (2017), op. cit., at 136; (vii) Case No. 693/2015, Dubai Court of Cassation, reported in H. Arab and D. Al Houti, op. cit. (2016); (viii) Case No. 1327/2017, Dubai Court of Cassation (enforcement of LCIA award rendered in London); and (ix) Case No. 384/2016—Fluor Transworld Services v Petrixo Oil & Gas, Dubai Court of Cassation, 19 September 2016. For further discussion, see in particular G. Blanke, “The Role of the New York Convention in the Enforcement of Foreign Awards in the UAE: Expectations and Challenges or the Tale of the Ugly Duckling”, 2 Transnational Dispute Management (2015); G. Blanke, “Recognition and Enforcement of Domestic and Foreign Arbitral Awards in the UAE: Practice and Procedure”, in C. Klausegger et al (eds), Austrian Yearbook of International Arbitration 2015 (Manz/Stämpfli/Beck 2015) 395–436; G. Blanke, “United Arab Emirates”, in G. Blanke (ed), Arbitration in the MENA (Juris 2016: Release 1-2017 (2018)) UAE-119 et seq.; G. Blanke, “Enforcement of New York Convention Awards in the UAE: The Story Re-told”, 5(3) International Journal of Arab Arbitration (2013), 19–36; and G. Blanke and S. Corm-Bakhos, “Recognition and Enforcement of Foreign Arbitral Awards in the UAE: Practice and Procedure”, 1(1) BCDR International Arbitration Review (2014), 3-28. Most recently: Cases Nos 620 and 654/2018, Federal Supreme Court, 15 January 2019 (no double exequatur where enforcement of LCIA Award under the terms of the New York Convention in the UAE).

90
Subject to the remaining uncertainties outlined at fn. 81 above. That said, see Case No. 1/2019, Chief Justice, Dubai Courts, 22 January 2019 (unpublished), which is reported to have followed the simplified enforcement regime under the new Law in relation to the enforcement of a foreign LCIA award.

91
(2000), Jordan (1999), Libya (1999), Morocco (2006), Somalia (1982), Sudan (2005), Syria (2002), and Tunisia (1975).92. Riyadh Convention on Judicial Cooperation between

92
Riyadh Convention on Judicial Cooperation between States of the Arab League (1983); the GCC Convention for the Execution of Judgments, Delegations and Judicial Notifications (1987); the Unified Agreement for the Investment of Arab Capital in the Arab States (1980); the Washington Convention on the Settlement of the Investment Disputes between States and Nationals of Other States (1965); and the Agreement on Promotion, Protection and Guarantee of Investments among Member States of the Organization of Islamic Cooperation (1986).

93
Which implies a regime of mutual recognition.

94
Case No. 258/1999, Dubai Court of Cassation, 2 October 1999 (refusal to enforce an award rendered in India for lack of reciprocity).

95
relation to the New York Convention, see Case No. 87/2009, Dubai Court of Cassation, 22 December 2009, (it is not clear from this award whether the Dubai Court of Cassation enforced the award by simple reference to the New York Convention or whether it did rely on the provisions of the CPC in relation to the enforcement of foreign judgments). On the relevant case law before adoption of the New York Convention, see Case No. 258/1999, Dubai Court of Cassation, 2 October 1999; Case No. 267/1999, Dubai Court of Cassation, 27 November 1999; Case No. 17/2001, Dubai Court of Cassation, 10 March 2001 (applying Arts 235 and 236 CPC); and Case No. 218/2004, Dubai Court of Cassation, 15 May [Page76:]

96
In relation to the New York Convention, see Case No. 87/2009, Dubai Court of Cassation, 22 December 2009, (it is not clear from this award whether the Dubai Court of Cassation enforced the award by simple reference to the New York Convention or whether it did rely on the provisions of the CPC in relation to the enforcement of foreign judgments). On the relevant case law before adoption of the New York Convention, see Case No. 258/1999, Dubai Court of Cassation, 2 October 1999; Case No. 267/1999, Dubai Court of Cassation, 27 November 1999; Case No. 17/2001, Dubai Court of Cassation, 10 March 2001 (applying Arts 235 and 236 CPC); and Case No. 218/2004, Dubai Court of Cassation, 15 May

97
e.g. Case No. 320/2005, Dubai Court of Cassation, 12 December 2005, in which the court refused enforcement of an award issued in Libya on the basis that there was no evidence that the award had been ratified before the Libyan courts and hence become final.

98
e.g. Case No. 320/2005, Dubai Court of Cassation, 12 December 2005, in which the court refused enforcement of an award issued in Libya on the basis that there was no evidence that the award had been ratified before the Libyan courts and hence become final.

99
To this effect, see G. Blanke, “Recourse Against Non-ICSID Investment Arbitration Awards in the MENA Region”, 3(2) BCDR International Arbitration Review (2016), 361-369.

100
On which see section II.1.b. above.

101
For detailed commentary on the application of Art. 216 CPC, see G. Blanke, Commentary on the UAE Arbitration Chapter, Sweet & Maxwell/Thomson Reuters, 2017, 160-170.

102
Case No. 263/JY 18, Federal Supreme Court, 8 December 1996; and Case No. 11/JY 23, Federal Court of Cassation, 19 May 2002.

103
Case No. 575/JY 25, Federal Supreme Court, 5 October 2004, reported in H. Arab et al. (2013), op. cit., at 62; Case No. 233/2007, Dubai Court of Cassation, 13 January 2008, reported in H. Arab et al. (2013), op. cit., at 86; Case No. 121/2008, Dubai Court of Cassation, 10 June 2008; and Case No. 292/2012, Dubai Court of Cassation, 3 April 2013, reported in Arab et al. (2017), op. cit., at 88.

104
Case No. 92/JY 25, Federal Supreme Court, 8 June 2003; and Case No. 233/2007, Dubai Court of Cassation, 13 January 2008, reported in H. Arab et al. (2013), op. cit., at 86.

105
Case No. 268/2007, Dubai Court of Cassation, 19 February 2008, reported in H. Arab et al. (2013), op. cit., at 89.

106
Following the definition of “Court” in the terms of Art. 1 FAL: “The federal or local court of appeals agreed upon by the parties or in whose jurisdiction the arbitration is conducted.”

107
See G. Blanke, Commentary on the UAE Arbitration Chapter, Sweet & Maxwell/Thomson Reuters, 2017.

108
Art. 56(3) FAL.

109
bid.

110
bid.

111
UAE Federal Law No. 10 of 1992 on Evidence in Civil and Commercial transactions.

112
Case No. 317/JY 19, Abu Dhabi Court of Cassation, 29 November 1998; Case No. 111/1998, Dubai Court of Cassation, 7 June 1998; and Case No. 286/2015, Dubai Court of First Instance, 22 April 2015.

113
Case No. 477/2011, Dubai Court of First Instance, 26 April 2012; Case No. 27/2012, Dubai Court of First Instance, 24 April 2013; Case No. 928/2012, Dubai Court of First Instance, 21 February 2013; Case No. 674/2014, Dubai Court of First Instance, 24 November 2014; Case No. 1645/2014, Dubai Court of First Instance, 14 January 2015; and Case No. 2911/2014, Abu Dhabi Court of First Instance, 29 April 2015. Or, pursuant to earlier case law, upon issuance: Case No. 225/2005, Dubai Court of Cassation, 12 December 2005.

114
Case No. 265/2007, Dubai Court of Cassation, 3 February 2008.

115
For guidance, see Case No. 1201/2018, Dubai Court of Cassation, 26 May 2019; Case No. 242/2019, Dubai Court of Cassation, 26 May 2019; and Case No. 544/2019, Dubai Court of Cassation, 9 October 2019.

116
For guidance, see Case No. 153/2019, Dubai Court of Cassation, 28 April 2019.

117
Case No. 9/JY 20, Federal Court of Cassation, 13 February 2000; Case No. 57/JY 25, Federal Supreme Court, 21 March 2006 (the compound interest element of the final award set aside only); and Appeal No. 282/2012, Real Estate Cassation, Dubai Court of Cassation, 3 February 2013, reported in Arab et al. (2017), op. cit., at 76. Except in the event of a violation of public policy: See Case No. 320/2013, Dubai Court of Cassation, 22 June 2014.

118
Case No. 502/2002, Dubai Court of Cassation, 2 March 2003 (the arbitration agreement being considered exhausted (or void) to the extent that a dispute has been heard and disposed of under it by a tribunal).

119
For guidance, see Case No. 215/2019, Dubai Court of Cassation, 7 July 2019.

120
See Art. 216(2) CPC: Case No. 640/JY 22, Federal Supreme Court, 19 November 2002; and Case No. 121/2008, Dubai Court of Cassation, 10 June 2008.

121
e.g. Art. 38, DIAC Rules of Arbitration

122
Case No. 193/JY 19, Federal Supreme Court, 25 April 1999; Case No. 515/JY 19, Federal Supreme Court, 27 June 1999; Case No. 9/JY 20, Federal Court of Cassation, 13 February 2000; Case No. 273/2006, Dubai Court of Cassation, 4 February 2007, reported in H. Arab et al. (2013), op. cit., at 77; and Case No. 674/2014, Dubai Court of First Instance, 24 November 2014.

123
Case No. 32/ JY 23, Federal Supreme Court, 8 June 2003; Case No. 192/2007, Dubai Court of Cassation, 27 November 2007; and Case No. 173/2013, Dubai Court of Cassation, 24 April 2013.

124
Case No. 193/JY 19, Federal Supreme Court, 25 April 1999; Case No. 192/2007, Dubai Court of Cassation, 27 November 2007; and Case No. 263/2007, Dubai Court of Cassation, 3 February 2008.

125
Case No. 108/JY 3, Federal Court of Cassation, 12 March 2009.

126
Cf. Case No. 56/JY 27, Federal Supreme Court, 12 May 2006; and Case No. 1138/2011, Abu Dhabi Court of Cassation, 14 August 2012.

127
See Case No. 144/2020, Dubai Court of Cassation, 18 March 2020. Cf. the similarly divided grounds for nullification under former Art. 216 CPC: See Case No. 56/ JY 27, Federal Supreme Court, 12 May 2006; Case No. 270/2008, Dubai Court of Cassation, 24 March 2009; Case No. 32/2009, Dubai Court of Cassation, 29 March 2009, reported in H. Arab et al. (2013), op. cit., at 99; and Case No. 216/2012, Dubai Court of Cassation, 10 February 2013, reported in Arab et al. (2017), op. cit., at 80.[Page77:]

128
Case No. 176/JY 17, Federal Supreme Court, 21 November 1995; and Case No. 873/2009, Abu Dhabi Court of Cassation, 22 October 2009, reported in H. Arab et al. (2013), op. cit., at 105. cf. Case No. 186/1996, Dubai Court of Cassation, 5 January 1997 (confirming the ability to appeal ratification court rulings), reported in H. Arab et al. (2013), op. cit., at 25.

129
Case No. 165/JY 18, Federal Supreme Court, 30 November 1996; Case No. 263/JY 18, Federal Supreme Court, 8 December 1996; Case No. 371/JY 18, Federal Supreme Court, 30 June 1998; Case No. 449/JY 21, Federal Supreme Court, 11 April 2001; Case No. 32/JY 23, Federal Supreme Court, 8 June 2003, reported in H. Arab et al. (2013), op. cit., at 49; Case No. 118/JY 23, Federal Supreme Court, 21 January 2004, reported in H. Arab et al. (2013), op. cit., at 55; Case No. 1024/2012, Federal Supreme Court, 29 February 2012; Case No. 1222/2010, Abu Dhabi Court of Cassation, 28 April 2014; Case No. 403/2003, Dubai Court of Cassation, 13 March 2004, reported in H. Arab et al. (2013), op. cit., at 37; Case No. 56/JY 27, Federal Supreme Court, 21 May 2006; Case No. 273/2006, Dubai Court of Cassation, 4 February 2007, reported in H. Arab et al. (2013), op. cit., at 77; and Case No. 72/2007, Dubai Court of Cassation, 10 June 2007, reported in H. Arab et al. (2013), op. cit., at 80.

130
Case No. 372/2019, Dubai Court of Cassation, 7 July 2019; Case No. 1003/2019, Dubai Court of Cassation, 19 January 2020; Case No. 1013/2019, Dubai Court of Cassation, 19 January 2020; Case No. 1078/2019, Dubai Court of Cassation, 22 January 2020; and Case No. 1118/2019, Dubai Court of Cassation, 19 February 2020.

131
Note that taking guidance from practice under the UAE Arbitration Chapter, in the presence of an arbitration agreement, there is no requirement for additional terms of reference: Case 467/2013, Abu Dhabi Court of Cassation, 10 March 2014, reported in Arab et al. (2017), op. cit., at 119.

132
For full commentary on the operation of Art. 216(1)(a) CPC, see G. Blanke, Commentary on the UAE Arbitration Chapter, Sweet & Maxwell/Thomson Reuters, 2017, at II-137 et seq.

133
For further guidance, see Chapter 2.

134
See Case No. 156/2020, Dubai Court of Cassation, 11 March 2020.

135
See, e.g. Case No. 1159/2018, Dubai Court of Cassation, 21 July 2019; Case No. 215/2019, Dubai Court of Cassation, 7 July 2019; Case No. 319/2019, Dubai Court of Cassation, 8 December 2019; Case No. 399/2019, Dubai Court of Cassation, 23 February 2020; Case No. 604/2019, Dubai Court of Cassation, 24 November 2019; and Case No. 853/2019, Dubai Court of Cassation, 2 February 2020.

136
Within the meaning of Art. 58(2) CPC: G. Blanke, Commentary on the UAE Arbitration Chapter, Sweet & Maxwell/Thomson Reuters, 2017, at II-037. In application to the FAL, see also Case No. 153/2020, Dubai Court of Cassation, 8 March 2020.

137
Case No. 1/2012, Abu Dhabi Court of Cassation, 9 October 2012, reported in Arab et al. (2017), op. cit., at 57; Case No. 577/2003, Dubai Court of Cassation, 12 June 2004; Case No. 51/2005, Dubai Court of Cassation, 28 May 2005, reported in H. Arab et al. (2013), op. cit., at 68; Case No. 191/2009, Dubai Court of Cassation, 13 September 2009; and Case No. 593/2009, Dubai Court of Appeal, 25 November 2009.

138
Case No. 873/2009, Abu Dhabi Court of Cassation, 22 October 2009, reported in H. Arab et al. (2013), op. cit., at 105.

139
Case No. 924/2009, Abu Dhabi Court of Cassation, 17 December 2009, reported in H. Arab et al. (2013), op. cit., at 107; Case No. 873/JY 3, Federal Court of Cassation, 22 October 2009; and Case No. 715/2013, Dubai Court of First Instance, 14 May 2013.

140
Case No. 222/2005, Dubai Court of Cassation, 22 January 2006; and Case No. 293/2015—Middle East for Development LLC v Safir Real Estate Investments LLC, Dubai Court of Cassation, 27 January 2016.

141
Case No. 191/2009, Dubai Court of Cassation, 13 September 2009.

142
Pursuant to Art. 58(2) CPC: See Case No. 1/2012, Abu Dhabi Court of Cassation, 9 October 2012, reported in Arab et al. (2017), op. cit., at 57.

143
Case No. 305/2007, Dubai Court of Cassation, 25 February 2008, reported in H. Arab et al. (2013), op. cit., at 91.

144
position also holds under the FAL: See Case No. 153/2020, Dubai Court of Cassation, 8 March 2020 (one director of a two-member board of directors with powers to conduct all company affairs considered authorised to bind the company to arbitration).

145
Case No. 465/2012, Abu Dhabi Court of Cassation, 21 February 2013, reported in Arab et al. (2017), op. cit., at 82.

146
Case No. 351/2014, Abu Dhabi Court of Cassation, 26 June 2014, reported in Arab et al. (2017), op. cit., at 128.

147
Case No. 547/2014—Palm Jebel Ali LLC v Alan Stenet, Dubai Court of Cassation, 21 October 2015, reported in Arab et al. (2017), op. cit., at 144; Case No. 293/2015—Middle East for Development LLC v Safar Real Estate Investments LLC, Dubai Court of Cassation, 27 January 2016; Case 386/2015, Dubai Court of Cassation; Case No. 411/2015, Dubai Court of Cassation, 22 February 2016; Case No. 310/2015—Al-Firjan LLC v JNR Development Limited, Dubai Court of Cassation, 27 April 2016, reported in Arab et al. (2017), op. cit., at 155; Case No. 340/2015, Dubai Court of Cassation; and Case No. 442/2015, Dubai Court of Cassation, 24 February 2016, reported in Arab et al. (2017), op. cit., at 153.

148
Reported in M. Sadique, “Capacity to arbitrate in the UAE”, The Oath, Issue 79 (November 2018) 16-18. That said, more recent case law precedent now appears to continue the trend initiated under the former UAE Arbitration Chapter in favour of apparent authority: See e.g. Case Nos 107/2019 and 293/2019, Dubai Court of Cassation; and Case No. 581/2019, Dubai Court of Cassation, 15 September 2019. For other cases in favour of apparent authority following entry into force of the new Law, see Case No. 409/2018, Dubai Court of Cassation, 19 December 2018; Case No. 1225/2018, Dubai Court of Cassation, 17 March 2019; and Case No. 89/2019, Dubai Court of Cassation, 15 May 2019.

149
Case No. 293/2015—Middle East for Development LLC v Safir Real Estate Investments LLC, Dubai Court of Cassation, 27 January 2016.

150
Case No. 251/2012, Dubai Court of First Instance, 27 June 2012; and Case No. 715/2013, Dubai Court of First Instance, 14 May 2013.

151
Which provides as a ground for challenge that “the person lacked the legal capacity to take any action regarding the right, the subject matter of dispute, in accordance with the law governing his or her capacity, which is stipulated in Article (4) of this Law”.

152
Cf. also in this context the tribunal’s obligation under Art. 26 FAL to afford a party “a full opportunity to present its case”.

153
For the related concept of “fundamental principles of litigation procedures” and its interpretation in context, see fn. 53.

154
G. Blanke, Commentary on the UAE Arbitration Chapter, Sweet & Maxwell/Thomson Reuters, 2017.

155
Case No. 446/2019, Dubai Court of Cassation, 21 July 2019.

156
See Case No. 114/2020, Dubai Court of Cassation, 18 March 2020 (no disregard of Qatari law as the governing law on the merits).

157
G. Blanke, Commentary on the UAE Arbitration Chapter, Sweet & Maxwell/Thomson Reuters, 2017.

158
For full commentary on the operation of Art. 216(1)(b) CPC, see G. Blanke, Commentary on the UAE Arbitration Chapter, Sweet & Maxwell/Thomson Reuters, 2017, at II-138 et seq.

159
Case No. 335/2013, Federal Supreme Court, 28 January 2014.

160
Case No. 297/ JY 4, Abu Dhabi Court of Cassation, 10 June 2010.

161
Case No. 70/2012, Abu Dhabi Court of Cassation, 12 December 2012.

162
For full commentary on the operation of Art. 216(1)(c) CPC, see G. Blanke, Commentary on the UAE Arbitration Chapter, Sweet & Maxwell/Thomson Reuters, 2017, at II-141 et seq.

163
Art. 206(2) CPC; and Case No. 186/JY 2, Abu Dhabi Court of Cassation, 8 June 2008. See also Art. 9(2) FAL, which expressly stipulates that “[t]he number of arbitrators, if more than one, shall be uneven, otherwise the Arbitration is void”.

164
Case No. 980/2010, Abu Dhabi Court of Cassation, 23 February 2011, reported in H. Arab et al. (2013), op. cit., at 111. See also the strict disclosure obligations imposed on arbitrators under Art. 10(4) FAL.

165
Art. 212(1) CPC; and Case No. 173/1996, Dubai Court of Cassation, 16 March 1997; Case No. 21/2003, Dubai Court of Cassation, 13 April 2003; Case No. 268/2007, Dubai Court of Cassation, 19 February 2008, reported in H. Arab et al. (2013), op. cit., at 89; Case No. 156/2009, Dubai Court of Cassation, 27 October 2009; and Case No. 79/2011, Federal Supreme Court, 21 February 2012. See also the obligation imposed on the tribunal under Art. 26 FAL to afford each party a “full opportunity” to be heard.

166
Case No. 503/2003—Bechtel, Dubai Court of Cassation, Dubai Court of Cassation, 15 May 2004, reported in H. Arab et al. (2013), op. cit., at 41. cf. Case No. 924/2009, Abu Dhabi Court of Cassation, 17 December 2009 (no nullification where tribunal did not rely on unsworn fact witness evidence), reported in H. Arab et al. (2013), op. cit., at 107. Interestingly, unlike former Art. 211 CPC, the new Law does not expressly require the submission of witness evidence under oath. That said, the mandatory nature of this requirement may require the continuation of the oath-taking requirement even under the new Law. For full commentary on Art. 211 CPC, see G. Blanke, Commentary on the UAE Arbitration Chapter, Sweet & Maxwell/Thomson Reuters, 2017, at II-097 et seq. For guidance under the new Law, see Case No. 205/2019, Dubai Court of Cassation, 23 June 2019.

167
Case No. 400/2001, Dubai Court of Cassation, 16 February 2002. See also Art. 41(5) FAL, which contains a requirement to the same effect.

168
Case No. 64/JY 20, Federal Supreme Court, 24 January 1999. See also Art. 41(5) FAL, which contains a requirement to the same effect.

169
Case No. 165/JY 18, Federal Supreme Court, 30 November 1996.

170
Case No. 173/1996, Dubai Court of Cassation, 16 March 1997; and Case No. 40/2004, Dubai Court of Cassation, 26 September 2004. See also the requirement under Art. 41(5) FAL pursuant to which the award must set out the “text of the Arbitration Agreement”. An accurate summary of the underlying arbitration agreement has been found to be sufficient: See Case No. 933/2018, Dubai Court of Cassation, 10 February 2019; and Case No. 1059/2018, Dubai Court of Cassation, 17 March 2019.

171
Case No. 269/1995, Dubai Court of Cassation; and Case No. 225/2005, Dubai Court of Cassation, 12 December 2005. For the avoidance of doubt, the reasoning of the award need not comply with the standards of reasoning prevailing in application to UAE court rulings (Case No. 88/2004, Dubai Court of Cassation, 27 November 2004).

172
Appeal No. 282/2012, Real Estate Cassation, Dubai Court of Cassation, 3 February 2013, reported in Arab et al. (2017), op. cit., at 76. Note also in this context the tribunal’s limited powers to award party costs under Art. 46 FAL, read in combination with Art. 33(5) FAL. For guidance, see Case No. 1029/2018, Dubai Court of Cassation, 28 April 2019. In addition, see Case No. 2/2019, Dubai Court of Appeal, 20 February 2019, which confirmed the conferral of powers upon a tribunal to award legal fees by virtue of Art. 28.4 of the DIFC-LCIA Rules.

173
Case No. 449/JY 21, Federal Supreme Court, 11 April 2001; Case No. 32/JY 23, Federal Supreme Court, 8 June 2003, reported in H. Arab et al. (2013), op. cit., at 49; Case No. 118/JY 23, Federal Supreme Court, 21 January 2004, reported in H. Arab et al. (2013), op. cit., at 55; and Cases Nos 831/JY 25 and 67/JY 26, Federal Supreme Court, 23 May 2004, reported in H. Arab et al. (2013), op. cit., at 57. Note, however, that under Art. 41(5) FAL electronic signatures are arguably admissible.

174
Case No. 13/1991, Dubai Court of Cassation. It should be noted, however, that Art. 41(2) FAL contains an express requirement to record an arbitrator’s dissenting opinion.

175
Case No. 260/1994, Dubai Court of Cassation, 16 October 1994; and Case No. 518/2010, Federal Supreme Court, 12 January 2011.

176
Case No. 515/JY 19, Abu Dhabi Court of Cassation, 27 June 1999.

177
Case No. 924/2009, Abu Dhabi Court of Cassation, 17 December 2009, reported in H. Arab et al. (2013), op. cit., at 107.

178
Case No. 518/2010, Federal Supreme Court, 12 January 2011.

179
Case No. 142/JY 17, Federal Supreme Court, 28 November 1995.

180
Case No. 556/JY 24, Federal Supreme Court, 19 April 2005, reported in H. Arab et al. (2013), op. cit., at 73.

181
Art. 17(2) FAL.

182
bid

183
Case No. 11/JY 23, Federal Court of Cassation, 19 May 2002; Cases Nos 831/JY 25 and 67/JY 26, Federal Supreme Court, 23 May 2004, reported in H. Arab et al. (2013), op. cit., at 57; distinguish: Case No. 96/2012, Abu Dhabi Court of Cassation, 12 December 2012.

184
Cases Nos 831/JY 25 and 67/JY 26, Federal Supreme Court, 23 May 2004, reported in H. Arab et al. (2013), op. cit., at 57.

185
Case No. 371/JY 18, Federal Supreme Court, 30 June 1998; and Arts. 76–78 and 88, UAE Commercial Transactions Code.

186
Case No. 371/JY 18, Federal Supreme Court, 30 June 1998; Case No. 11/JY 23, Federal Supreme Court, 19 May 2002; Case No. 1376/2009, Abu Dhabi Court of Cassation, 25 February 2010; and Case No. 494/2013, Abu Dhabi Court of Cassation, 13 March 2013.

187
Case No. 438/JY 23, Federal Supreme Court, 12 July 2004, reported in H. Arab et al. (2013), op. cit., at 59; Case No. 403/2003, Dubai Court of Cassation, 13 March 2004, reported in H. Arab et al. (2013), op. cit., at 37; Case No. 270/2008, Dubai Court of Cassation, 24 March 2009; Case No. 297/JY 4, Abu Dhabi Court of Cassation, 10 June 2010; Case No. 447/JY 4, Abu Dhabi Court of Cassation, 30 September 2010; Case No. 834/JY 4, Abu Dhabi Court of Cassation, 30 December 2010.

188
Case No. 834/JY 4, Abu Dhabi Court of Cassation, 30 December 2010.

189
Case No. 403/2003, Dubai Court of Cassation, 13 March 2004, reported in H. Arab et al. (2013), op. cit., at 37; Case No. 98/2008, Dubai Court of Cassation, 25 May 2008; Case No. 674/2014, Dubai Court of First Instance, 24 November 2014; Case No. 1645/2014, Dubai Court of First Instance, 14 January 2015; and Case No. 2911/2014, ruling of the Abu Dhabi Court of First Instance, 29 April 2015.

190
Cases Nos 293 and 313/2013, Abu Dhabi Court of Cassation, 24 July 2013, reported in Arab et al. (2017), op. cit., at 108.

191
Case No. 438/JY 23, Federal Supreme Court, 12 July 2004, reported in H. Arab et al. (2013), op. cit., at 59; Case No. 178/1996, DubaiCourt of Cassation, 25 January 1997; Case No. 270/2008, Dubai Court of Cassation, 24 March 2009; Case No. 297/JY 4, Abu Dhabi Court of Cassation, 10 June 2010; and Case No. 447/JY 4, Abu Dhabi Court of Cassation, 30 September 2010.

192
Case No. 279/JY 279, Federal Supreme Court, 14 December 1997; and Case No. 40/2004, Dubai Court of Cassation, 26 September 2004.

193
Case No. 111/1998, Dubai Court of Cassation, 7 June 1998.

194
Case No. 71/JY 20, Federal Supreme Court, 12 December 1999; Case No. 640/JY 22, Federal Supreme Court, 19 November 2002; Case No. 573/2003, Dubai Court of Cassation, 5 June 2004, reported in H. Arab et al. (2013), op. cit., at 45; Case No. 317/2009, Dubai Court of Cassation, 14 February 2010; and Case No. 157/2009, Dubai Court of Cassation, 27 September 2009.

195
Case No. 9/1996, Dubai Court of Cassation, 13 July 1996, reported in H. Arab et al. (2013), op. cit., at 23.

196
Case No. 178/1996, Dubai Court of Cassation, 25 January 1997 (continuous participation of party counsel in the arbitration beyond the expiry of the original six-month time-limit), reported in H. Arab et al. (2013), op. cit., at 24; Case No. 43/JY 23, Federal Supreme Court of Cassation, 13 April 2003 (party agreement—whether express or implied—being necessary), reported in H. Arab et al. (2013), op. cit., at 47; Case No. 141/2006, Dubai Court of Cassation, 10 October 2006 (no valid extension where parties failed to agree), reported in H. Arab et al. (2013), op. cit., at 75; and Case No. 873/2009, Abu Dhabi Court of Cassation, 22 October 2009, reported in H. Arab et al. (2013), op. cit., at 105.

197
Art. 42(2) FAL. For guidance, see Case No. 1029/2018, Dubai Court of Cassation, 28 April 2019.

198
Case No. 178/1996, Dubai Court of Cassation, 25 January 1997.

199
Case No. 140/2007, Dubai Court of Cassation, 7 October 2007; Case No. 124/2008, Dubai Court of Cassation, 16 September 2008; Case No. 204/2008, Dubai Court of Cassation, 12 October 2008; Case No. 498/2010, Dubai Court of Appeal, 20 March 2012; Case No. 53/2011, Dubai Court of Cassation, 7 December 2011; and Case No. 188/2012, Dubai Court of Cassation, 9 October 2012.

200
Case No. 167/1998, Dubai Court of Cassation, 6 June 1998.

201
Case No. 498/2010, Dubai Court of Appeal, 20 March 2012; Case No. 188/2012, Dubai Court of Cassation, 9 October 2012; and Case No. 1645/2014, Dubai Court of First Instance, 14 January 2015.

202
Case No. 140/2007, Dubai Court of Cassation, 7 October 2007; and Case No. 53/2011, Dubai Court of Cassation, 7 December 2011. Arguably subject to the existence of a dispute: Case No. 295/1993, Dubai Court of Cassation, 30 January 1994.

203
Case No. 75/2015, Dubai Court of Cassation, 12 August 2015, reported in Arab et al. (2017), op. cit., at 140.

204
Case No. 325/2005, Dubai Court of Cassation, 10 December 2005.

205
Case 75/2015, Dubai Court of Cassation, 12 August 2015, reported in Arab et al. (2017), op. cit., at 140.

206
No. 204/2008, Dubai Court of Cassation, 12 October 2008.

207
See, e.g. Case No. 32/2019, Dubai Court of Appeal, 5 February 2020 (DIAC award on jurisdiction annulled for failure to comply with FIDIC conditions precedent).

208
See, e.g. Case No. 225/2019, Dubai Court of Cassation, 19 May 2019.

209
Case No. 178/1996, Dubai Court of Cassation, 25 January 1997; and Case No. 537/1999, Dubai Court of Cassation, 23 April 2000, reported in H. Arab et al. (2013), op. cit., at 27.

210
Case No. 178/1996, Dubai Court of Cassation, 25 January 1997; and Case No. 537/1999, Dubai Court of Cassation, 23 April 2000, reported in H. Arab et al. (2013), op. cit., at 27.

211
Case No. 537/1999, Dubai Court of Cassation, 23 April 2000, reported in H. Arab et al. (2013), op. cit., at 27.

212
Case No. 268/2007, Dubai Court of Cassation, 19 February 2008, reported in H. Arab et al. (2013), op. cit., at 89.

213
Art. 51 FAL.

214
G. Blanke, Commentary on the UAE Arbitration Chapter, Sweet & Maxwell/Thomson Reuters, 2017, at I-142.

215
Case No. 307/2002, Dubai Court of Cassation, 30 November 2002; and Case No. 950/2009, Dubai Court of Appeal, 6 April 2010. Partial nullification will not operate where an award is found in violation of public policy (Case No. 320/2013, Dubai Court of Cassation, 22 June 2014).

216
See section III.1. above.

217
Case No. 10/1995, Dubai Court of Cassation, 8 October 1995, reported in H. Arab et al. (2013), op. cit., at 20; and Case No. 950/2009, Dubai Court of Appeal, 6 April 2010.

218
Art. 34(2)(b), UNCITRAL Model Law.[Page80:]

219
G. Blanke, Commentary on the UAE Arbitration Chapter, Sweet & Maxwell/Thomson Reuters, 2017.

220
Art. 203(4) CPC; and G. Blanke, Commentary on the UAE Arbitration Chapter, Sweet & Maxwell/Thomson Reuters, 2017, at II-032 et seq.

221
In relation to the non-arbitrability of labour disputes, see Case No. 285/2019, Dubai Court of Cassation. An incident or allegation of forgery within the meaning of Art. 43 FAL has been confirmed not to affect the arbitrator’s decision-making powers, nor a resultant award to the extent that the arbitrator does not rely upon the forgery to resolve the underlying dispute: See Case No. 1029/2018, Dubai Court of Cassation, 28 April 2019.

222
Case No. 449/JY 21, Federal Supreme Court, 11 April 2001; Case No. 56/JY 27, Federal Supreme Court, 12 May 2006; Case No. 537/1999, Dubai Court of Cassation, 23 April 2000, reported in H. Arab et al. (2013), op. cit., at 27; and Case No. 146/2008, Dubai Court of Cassation, 9 November 2008, reported in H. Arab et al. (2013), op. cit., at 94.

223
Art. 52 FAL.

224
Art. 54 FAL.

225
Art. 54(4) FAL.

226
Art. 53 FAL.

227
Case No. 32/JY 23, Federal Supreme Court, 8 June 2003; Case No. 17/2001, Dubai Court of Cassation, 10 March 2001; Case No. 192/2007, Dubai Court of Cassation, 27 November 2007; and Case No. 173/2013, Dubai Court of Cassation, 24 April 2013; and G. Blanke, Commentary on the UAE Arbitration Chapter, Sweet & Maxwell/Thomson Reuters, 2017, at II-123.

228
Art. 54(2) FAL.

229
Art. 56 FAL.

230
Art. 57 FAL. A previous draft only allowed an appeal of a court decision refusing execution, thus streamlining the execution process.

231
Although an initial appeal may lie from the chief justice of the competent court of appeal to the full court of appeal to start (which then creates a further level of appeal at the court of appeal level).

232
See in particular the limits placed on domestic enforcement under Art. 212(4) CPC: G. Blanke, Commentary on the UAE Arbitration Chapter, Sweet & Maxwell/Thomson Reuters, 2017, at II-107.

233
Thus giving rise to a challenge in circumstances where domestic awards signed abroad would require enforcement as a foreign award (the arbitrators having ultimately acted extra petita).