Headnote

Arbitration – Language of the award – Party autonomy

Summary of facts

The Petitioner initiated an action before the Court of First Instance for the ratification of an arbitration award issued under the rules of the Abu Dhabi Commercial Conciliation and Arbitration Centre. The Respondent initiated a counter claim requesting the annulment of the arbitration award based on the merits of the case and on an alleged misapplication of the law. The Court of First Instance annulled the award stating that it was drafted in English and that an Arabic draft was not provided. The Petitioner appealed to the Court of Appeal, which upheld the judgment of the Court of First Instance. The Petitioner filed two petitions for cassation (Nos. 83 and 91 of 2011) alleging misapplication of the law by the lower courts, while the Respondent filed Petition No. 96 of 2011 requesting the Court to order the Petitioner to pay the arbitration fees and to dismiss the Petition’s challenge before the Court of Cassation.

The three challenges were submitted before the Court of Cassation through one of its chambers, which examined all three of them in one session.

Held

The present petition was dismissed.

The Court of Cassation accepted Petitions Nos. 83 and 91 of 2011 but dismissed Petition No. 96 of 2011.

An arbitration held outside the court does not follow the same procedural rules as those to be followed in an arbitration held through the court. The arbitrator in an arbitration outside the court is not obliged to deposit the award with the clerk’s office. However, he or she is obliged to deliver a copy of the award to each party

Judgment

Petitions Nos. 83 and 91 of 2011

The Petitioner challenged the lower courts’ decisions, which annulled the award for the reason that it was not translated into Arabic, on the grounds that this was not a requirement under the arbitration rules to which the parties had agreed, namely the arbitration rules of the Abu Dhabi Commercial Conciliation and Arbitration Centre, which therefore applied alongside the relevant provisions of the UAE Civil Procedure Code and with all amendments or additions that might be agreed by the parties later on. Also, the parties agreed before the arbitration tribunal during a hearing on 14 September 2009 that the arbitration procedures and arbitration award had to employ the English language.

The Petitioner argued that the law has made it permissible for the parties to submit the documents and the award relating to the dispute between them to the courts in the language in which they were issued, as long as they are attached to a legalized translation into Arabic. The challenging party has submitted both the arbitration agreement and the arbitration award, translated into Arabic. Furthermore the challenged ruling annulled the arbitration award on the basis that it violated the arbitration clause that is contained in Article 21 of the contract, although that article provides that the arbitration would be conducted in English. The Petitioner also argues that the law did not stipulate that the award should include a draft, and an original copy as stated by the challenged ruling. This ruling shall therefore be revoked.

Article 213 of the Civil Procedure Code provides that arbitration can take place through a judicial body or through ad hoc or institutional arbitration. Arbitration through the court takes place on the basis of a judicial decision based on the parties’ agreement. In such cases, the procedures that have to be followed are laid down in paragraphs 1 and 2 of Article 213. In the case of arbitration conducted outside the [Page115:] court, the procedures laid down in paragraph 3 of Article 213 apply. In such cases, the arbitrator is not required to deposit the award with the office of the court clerk of the court. However, the arbitrator is required to deliver a copy of the award to each party. Thereafter, each party may take measures in order to ratify or annul the award in accordance with ordinary procedures. The procedural rules of arbitration are based on one source of authority, namely the will of the litigant parties.

In the agreement concluded between them, the parties agreed to refer any dispute that may arise between them to arbitration, provided that the applicable law would be the law of Abu Dhabi and the law of the UAE and that the conciliation and arbitration procedures of the Chamber of Commerce and Industry of Abu Dhabi would also apply. Furthermore, the parties’ agreement provides that all procedures and all documents exchanged or submitted have to be drafted in English.

Accordingly, the court held that the Petitioner’s argument is sound, and the judgment of the Court of Appeal was overturned.

Petition No. 96 of 2011

In Petition No. 96 of 2011, the Petitioner challenged the Court of Appeal’s judgment on the ground that it refused to order the Respondent to pay the arbitration costs on the ground that this constituted a new request.

Article 165.3 of the Civil Procedure Code provides that new requests are inadmissible before appeal. From the perspective of this article, new requests are requests that exceed or differ from the ones that were submitted to the Court of First Instance regarding the same subject and/or parties.

Accordingly, the present petition was dismissed.