Headnote

Arbitration – Dismissal of arbitrator

Summary of facts

On 29 June 2004, an arbitrator, the Petitioner, was appointed to resolve a dispute between two parties.

The Petitioner held three preliminary and procedural meetings with the parties to the arbitration. Following these meetings, the parties agreed to appoint a three-member arbitration tribunal to resolve the dispute, due to the importance of the dispute as well as its complex legal and technical aspects. They recorded this agreement in the minutes of the arbitration session on 18 February 2004, requesting the Petitioner to submit the matter to the competent court. The Petitioner, however, rejected this request and ordered the continuation of the arbitration proceedings.

The parties to the arbitration filed a claim against the Petitioner in the Dubai Court of First Instance. The relief sought was an order : (i) dismissing the Petitioner; (ii) appointing a three-member arbitration tribunal; and (iii) notifying the Petitioner that he was dismissed.

On 23 May 2004, the Court of First Instance dismissed the Petitioner, who subsequently appealed. The relief sought by the appeal was the reappointment of the Petitioner as sole arbitrator or, if the Court was minded to convene a three-member tribunal, the appointment of the Petitioner as one of the three tribunal members.

On 24 October 2004, the Court of Appeal confirmed the Court of First Instance’s judgment. The Petitioner challenged this judgment.

Held

The petition to cassation was dismissed.

In accordance with Article 207.3 of the Civil Procedure Code, it is admissible for the parties to dismiss an arbitrator by mutual agreement at any time after his appointment, whether his appointment was made by their agreement or by the court. In such circumstances, it is not required to prove that the arbitrator has deliberately failed to act in accordance with the arbitration agreement.

This situation does not change when either litigant institutes an action requesting to dismiss the arbitrator, as long as it is possible to prove the mutual agreement of the remaining litigants to do so.

Judgment

The Petitioner’s challenge was founded on a number of grounds:

  1. The parties’ request for the appointment of a three-member tribunal was misinterpreted as a request to dismiss the Petitioner.
  2. According to those minutes, the parties to the arbitration failed initially to agree on his dismissal or replacement, but all of them agreed to appoint a three-member tribunal to resolve the dispute.
  3. The Court, in responding to the request to dismiss him, failed to indicate the reason for doing so, although this request was allegedly pursuant to the will of one of the parties only and not in conformity with the wishes of all the parties to the arbitration.
  4. The Petitioner’s dismissal, which came about after the delivery of the award, would no longer be in the hands of the litigants, because under that judgment he had acquired the capacity and authority of the judge and acted in his place.

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Furthermore, the Petitioner alleged that the Court of First Instance had “mixed up” the requirements of Article 207.3 and Article 207.4 in declaring that he “should be dismissed without the need for the representation or litigation of the interveners in the action, before the Court of First Instance”.

Pursuant to Article 207.3 of the Civil Procedure Code, an arbitrator may not be dismissed unless all parties have consented. However, the court having original jurisdiction to try the dispute may, at the request of either litigant, dismiss the arbitrator and order the appointment of a substitute. This may occur in the same way he was appointed originally in the event that it is proved that the arbitrator deliberately failed to act in accordance with the arbitration agreement, and this failure has been brought to the arbitrator’s attention in writing. Accordingly, the arbitrator may be dismissed whenever all litigants agree to dismiss him after his appointment, whether his appointment was made by agreement between them or by the court.

This consideration does not change when either litigant institutes an action requesting the dismissal of the arbitrator, as long as it is possible to prove the mutual agreement of the remaining litigants to do so. However, if a party to the arbitration singlehandedly requests the dismissal of the arbitrator when there is no agreement between the litigants to dismiss the arbitrator, then the negligence of the arbitrator must be proved.

The Petitioner’s contention that the parties did not mutually agree to dismiss him is inconsistent with the established facts and should be rejected. Furthermore, the Petitioner’s submission that the parties ought to have proved his negligence has no basis in law because of the parties’ mutual agreement to dismiss him.

The Petitioner’s argument that the Court had “mixed” Article 207.3 and Article 207.4, which deal with dismissal and recusal respectively, was incorrect and irrelevant, because the facts demonstrated that the parties agreed to dismiss the arbitrator.

Even if an arbitrator is appointed pursuant to Article 204.2 of the Civil Procedure Code, this may not preclude the parties from mutually agreeing to dismiss the arbitrator, which is permitted by Article 207.3 of the Civil Procedure Code.

Accordingly, the present petition to cassation was dismissed.