Over the past ten to fifteen years, the UAE has moved to the forefront of arbitration in the MENA, having built a modern state-of-the-art arbitration infrastructure. To consolidate its position as a leading arbitration hub, the UAE has seen the adoption of the Federal Arbitration Law, which entered into effect on 16 June 2018.
This publication aims to shed light on how the new law operates through the lens of five chapters which - in addition to a thematic overview - guide the reader through a set of core arbitration principles that lie at the heart of the new Law: from the arbitration agreement and legal capacity, to the powers and duties of the arbitrator, to public policy, and finally the recognition and enforcement of both domestic and foreign arbitral awards.
The contributions by leading arbitrators will help give all arbitration practitioners - from in-house counsels, lawyers and arbitrators - valuable insights into how to conduct their arbitral proceedings in a manner that preserves their integrity in line with the applicable laws and the regulations at the seat.
| Code ISBN : | 978-92-842-0521-9 |
| Number of pages : | 92 |
| Publishing date : | 2020 |
| Language : | English |
Foreword by Alexis Mourre.... 7
Introduction by Ali Al Aidarous.... 9
Chapter 1
The UAE Arbitration Law by Philip Punwar.... 11
I. Scope.... 11
II. Positive Steps.... 11
III. Other Noteworthy Provisions.... 14
IV. Conclusion.... 15
Chapter 2
Arbitration Agreement and Legal Capacity by Hassan Arab.... 16
I. Introduction.... 16
II. Arbitration Agreements under UAE Law.... 17
II.1. Requirements for Arbitration Agreements.... 17
II.2. Types of Arbitration Agreements.... 18
A. Separate arbitration agreement or reference to an arbitration clause in the main contract.... 18
B. Submission agreements.... 18
C. Arbitration clause incorporated by reference.... 18
II.3. Multi-tier Arbitration Clauses.... 19
II.4. The Doctrine of Separability.... 19
A. The Doctrine of Separability under UAE Law.... 20
II.5. Arbitrability under UAE Law.... 20
II.6. Compétence-Compétence.... 21
II.7. UAE Courts’ Approach towards Arbitration Agreements.... 21
II.8. Appointment of Arbitrators by UAE Courts.... 22
II.9. Presumption of Authority to Arbitrate.... 22
II.10. Arbitration Agreements in Government Contracts.... 23
A. Dubai Law No. 6 of 1997.... 23
B. The Cabinet Resolution No. 406/2 of 2003.... 23
III. Legal Capacity to Enter into Arbitration Agreements.... 23
III.1. Provisions under UAE Law.... 23
III.2. Legal Capacity—Sole Establishment, Limited Liability Company and Joint Stock Company.... 24
A. Sole Establishment.... 24
B. Limited Liability Company.... 25
C. Joint Stock Company.... 25
IV. Conclusion.... 25
Chapter 3
Powers and Duties of Arbitral Tribunals in the UAE by Alain Farhad.... 30
I. Introduction.... 30
II. The Tribunal’s Powers and Duties in relation to its Composition.... 30
III. The Tribunal’s Powers and Duties in relation to the Parties’ Agreement to Arbitrate.... 31
IV. The Tribunal’s Powers and Duties in relation to the Conduct of the Proceedings.... 33
IV.1. Choice of Law.... 33
IV.2. Choice of Procedure.... 33
IV.3. Choice of Seat.... 34
IV.4. Conduct of Hearings.... 35
IV.5. Power to Order Interim Relief.... 35
IV.6. Decision-making Power on Questions of Procedure 36
V. Award.... 36
VI. Conclusion.... 38
Chapter 4
The Historical Genesis of the Doctrine of Public Policy and its Influence on UAE’s International Commercial Arbitration by Mahmood Hussain.... 47
I. International Commercial Arbitration.... 47
I.1. History of Arbitration.... 47
I.2. Conflict of Laws.... 48
II. The Doctrine of Public Policy.... 48
II.1. Application of Public Policy Doctrine under Different Legal Systems.... 48
A. Civil Law System.... 48
B. Common Law System.... 48
II.2. Principles by Jurists on the Concept of Public Policy.... 49
III. International Commercial Arbitration in the UAE.... 50
III.1. New Federal Law No.6.... 50
III.2. The Concept of Public Policy in UAE.... 51
IV. Sharia Law.... 51
IV.1. Sharia as Substantive Public Policy.... 51
IV.2. Sharia as Procedural Public Policy.... 52
V. Application of Public Policy Exception in the UAE courts.... 53
V.1. Influence of the Doctrine of Public Policy in the Enforcement of Domestic Awards in the UAE.... 53
V.2. Influence of the Doctrine of Public Policy in the Enforcement of Foreign Awards in the UAE.... 53
VI. Conclusion.... 53
Chapter 5
Recognition and Enforcement of Domestic and Foreign Awards under the UAE Federal Arbitration Law by Gordon Blanke.... 57
I. Introduction.... 57
II. Recognition and Enforcement under the UAE Federal Arbitration Law.... 58
II.1. Recognition and Enforcement of Domestic Awards.... 58
A. Action for recognition and enforcement.... 58
B. Recourse against an order for recognition and enforcement.... 60
II.2. Recognition and Enforcement of Foreign Awards.... 61
A. Enforcement under Articles 235 and 236 CPC pending adoption of Cabinet Decision No. 57 of 2018.... 61
B. Cabinet Decision No. 57 of 2018.... 62
C. Enforcement under the New York Convention.... 63
D. Enforcement under other bi- and multi-lateral instruments.... 64
III. Challenges of Domestic Awards under the UAE Federal Arbitration Law.... 64
III.1. Challenging Domestic Awards.... 64
III.2. Grounds for Challenge.... 66
A. Absence, invalidity or termination of arbitration agreement.... 66
B. Lack of or insufficient capacity.... 67
C. Insufficient opportunity to present a party’s case, lack of proper notification and violation of due process.... 67
D. Failure to apply the governing law on the merits.... 68
E. Deficiencies in the appointment or the composition of the tribunal.... 68
F. Invalidity of the arbitral proceedings or award rendered out of time.... 69
G. Extra petita.... 70
H. Ex officio grounds.... 71
IV. Conclusion..... 71
About the Authors.... 81
Table of Cases.... 83
Index.... 90
ICC Dispute Resolution Publications.... 92
About the Authors
Hassan Arab is a Partner and Head of Litigation at Al Tamimi & Company. He is a leading dispute resolution expert in the UAE and the wider Middle East with full rights of audience before all courts in the UAE. Mr. Arab regularly sits as an arbitrator and arbitrated several claims under leading international arbitration institutions.
Mr. Arab has extensive experience in providing expert opinions on the UAE laws before arbitration tribunals and foreign courts. His practice area includes all forms of civil and commercial litigation, arbitration, ADR, recognition and enforcement of foreign judgments and arbitral awards. Mr Arab has spent his career building one of the strongest litigation teams in the Middle East which Legal 500 has recognised as “having a great reputation for local court work with a number of really good practitioners”. Chambers Global has recognised him as an Eminent Practitioner for Dispute Resolution in the UAE.
Mr. Arab obtained his PhD in Law from the University of Essex in UK and his doctoral thesis is titled Critical Study of the Concept of International Arbitration in the UAE: Identifying Problems Affecting the Recognition and Enforcement of Foreign and International Arbitral Awards. He has a Master’s Degree in International Business from the University of Wollongong and Practice Diplomas in International Arbitration Law and International Commercial Law from the College of Law, UK.
Mr. Arab is the Chair the International Chamber of Commerce (ICC) - UAE Commission on Arbitration & ADR and a Member of the DIAC Board of Trustees. He is also a Member of the DIFC Court User’s Committee, Member of the future Arbitration Court of the Casablanca International Mediation & Arbitration Centre (CIMAC), Law Advisory Board Member for the University of Dubai College and Board Advisor of Delos Dispute Resolution.
He has authored several publications on arbitration and dispute resolution, including a book on the Civil Procedures Law in the UAE and the Summaries of UAE Courts’ Decisions on Arbitration. Mr Arab is a regular presenter at conferences and seminars speaking on the many aspects of litigation, arbitration and dispute resolution in the Middle East.
Gordon Blanke LL.M, PhD, MCIArb is Founding Partner of Blanke Arbitration LLC, Dubai/ London/Paris. He has wide-ranging experience in all types of international commercial and investment arbitration in both the common and civil law legal systems, having acted as advising counsel and arbitrator under most leading institutional arbitration rules (ICC, LCIA, DIFC-LCIA, DIAC, ADCCAC, GCC, JAMS, SCC, etc.) and ad hoc (GAFTA, LMAA, UNCITRAL)
in arbitrations seated in the US, Europe and the Middle East in relation to a variety of industry sectors, including construction/real estate, corporate, oil & gas, IT, telecoms, banking & finance, maritime etc.
Mr. Blanke speaks regularly on international arbitration and has published over 200 books and articles on international arbitration, including Comparison of Gulf International Arbitration Rules (2010), Comparison of MENA International Arbitration Rules (2011) and Arbitration in the MENA (2016), all three published by Juris, and most recently Commentary on the UAE Arbitration Chapter, Sweet & Maxwell (2017).
In the 2014 and 2015 editions of The Legal 500, Mr. Blanke has been recommended for international arbitration in the UAE and is praised as “very professional” in The Legal 500 2016. He is also recommended, including for construction arbitration, in The Legal 500 EMEA 2019. Mr. Blanke is listed as a leading arbitration specialist in Who’s Who Legal 2016 and Who’s Who Arbitration—Future Leaders 2017, 2018, 2019 and 2020.
Mr. Blanke is a former member and Vice Chair of the Steering Committee of the UAE-ICC Commission on Arbitration & ADR and on the editorial board of a number of leading arbitration journals, including in particular Arbitration, the journal of the Chartered Institute of Arbitrators.
Alain Farhad is a partner in Mayer Brown’s Litigation & Dispute Resolution practice and head of the dispute resolution practice in the United Arab Emirates.
He acts as legal counsel or as an arbitrator in international arbitration proceedings arising out of commercial contracts, construction projects or investment protection treaties.
He has experience in resolving disputes relating to many different business sectors, with a focus on the oil and gas, infrastructure, trading and real estate industries. He has also represented a number of governments, as well as state-owned entities in commercial or investment treaty disputes. Alain has been based in Dubai since January 2011. Prior to relocating to the Middle East, he practised international arbitration in Paris. He is a French qualified Avocat à la Cour and a member of the New York Bar. He holds law degrees from Paris Sorbonne University and Cornell Law School.
Alain has been appointed to serve as a member of the ICC Commission on Arbitration and ADR. He is also a member of the Steering Committee of the ICC UAE Arbitration Commission. He is regularly invited to speak at a variety of international arbitration conferences globally.
He is fluent in English, French and Farsi.
Mahmood Hussain is the Founding Partner at Mahmood Hussain Advocates & Legal Consultancy and has over 15 years of experience in the public and private sectors. In his role as the litigator at Dubai Courts, Mahmood has achieved many favorable judgments in several high-profile cases. Mahmood through his niche practice of being an arguing Counsel before the Honorable Judges at Dubai Courts, has set up a benchmark for effective representation involving complex legal issues.
He has further been accredited as International Arbitrator at DIAC (Dubai International Arbitration Centre) and Abu Dhabi Commercial Conciliation and Arbitration Center. He has been appointed as a Board Member and Vice-Chairman of ICC-UAE Commission on Arbitration and ADR and has recently joined the Saudi Center for Commercial Arbitration (SCCA) Roster as an Arbitrator.
Mahmood has participated in the development of various DIFC legislations including the DIFC Company Law, DIFC Employment Law and the development of the company registrar function and is a Part II registered practitioner at the DIFC Courts and has the rights of audience before the DIFC courts.
He has frequently provided expert legal opinion on a UAE Laws on matters before High Courts of Justice, UK Queens Bench Division, DIFC, Paris Courts of Appeal, Hamm Court of Appeal and other International Courts and Arbitral Tribunals. He has also provided opinion on the UAE legislation with respect to the constitutionality of the DIFC Laws and is a frequent writer in various local newspapers and is invited to speak nationally and internationally on Corporate Governance, Arbitration and Litigation topics.
Philip Punwar is an international arbitration and dispute resolution partner at Baker Botts LLP. He has been resident in Dubai since November 2005.
Philip was called to the Bar of England & Wales by the Honourable Society of the Inner Temple in November 1989 and elected a Master of the Bench of the Inner Temple in October 2013. He has been acting as counsel in arbitrations since 1997 and has been accepting appointments as an arbitrator since 2007.
Philip was born and brought up in the English County of Kent. He holds an undergraduate degree in Philosophy from the University of Birmingham, a post-graduate degree in Law from the City University (London) and a post-graduate degree in International Studies and Diplomacy from SOAS (the School of Oriental and African Studies, London University). He is an Alumnus of the Hague Academy of International Law.
In addition to his being a Registered Legal Consultant in Dubai and an Advocate of the DIFC Courts, Philip is a practising Barrister (England & Wales), a Chartered Arbitrator (CIArb) and a CEDR Accredited Mediator.
Philip is a former Vice Chairman of the UAE Branch of the Chartered Institute of Arbitrators, a former Vice-President of the Arbitration Steering Committee of the ICC UAE and a past member of the ICC Commission on Arbitration and ADR. He is a member of the Society of Construction Arbitrators and of the DIFC Courts Rules Committee.