Headnote

Arbitration – Attendance of arbitrators at hearings – Deliberation of arbitrators

Summary of facts

A three-member arbitral tribunal was established to determine a dispute between the parties. The Respondent’s nominated arbitrator failed to attend a hearing held during the course of the arbitration proceedings as he was outside the UAE. The hearing was consequently convened and held in front of the two remaining arbitral tribunal members. The final award was issued on 17 June 2000. By that time, the Respondent’s nominated arbitrator had still not returned to the UAE. However, he had managed to sign a portion of the final award, not every page, with his signature being evidenced by a notary public in San Francisco, California. He had not signed the pages with the reasoning and ultimate relief ordered, but the other two arbitral tribunal members had affixed their signatures to those pages.

The Court was required to determine whether the failure of one of the arbitrators to sign every page of the award formed a ground for invalidating the final award.

Held

The Court of Appeal’s decision was overturned.

The Court may not review the merits of the arbitral award. However, the Court may review the validity of the procedure.

The deliberation of a panel of arbitrators shall only be valid if made in confidence and in the presence of all arbitrators.

Only arbitrators who have heard the pleading may participate in the deliberation; otherwise the award shall be null and void.

Judgment

It is established that the Court, while considering the ratification of an award, may neither discuss the subject matter of the award nor examine its compliance with the law.

Articles 212 and 216 of the Civil Procedure Code imply that, although arbitration is conducted at the will of the litigants, as confirmed by the lawmaker, and designed to avoid lengthy litigation procedures before courts, the arbitrator shall abide by the basic litigation procedures prescribed in the arbitration chapter of the Civil Procedure Code. This includes procedures relating to summons of litigants, hearing their respective defences and allowing them to present documents, unless the litigants have agreed on certain rules by which the arbitration process is to be governed. The award given by the arbitrator shall be in accordance with the applicable legal rules. If such rules are related to conciliation, the arbitrator shall abide only by the rules relating to public order. For instance, the deliberation shall only be valid if made in confidence and in the presence of all arbitrators in accordance with Article 128.1 of the Code, because the award is attributed to the entire arbitration panel, whether it is given unanimously or by majority. Only arbitrators who have heard the pleading may participate in the deliberation; otherwise the award shall be null and void.

The award shall be deemed to have been issued on the date on which it was signed by the arbitrators. Consequently, if any of the arbitrators who have heard the pleading change for any reason, such as transfer, death and so forth, the pleading shall be held again and all procedures shall be repeated before the new panel. The Court of Appeal therefore misapplied the law.

Accordingly, the Court of Appeal’s judgment is overturned.