International Arbitration Comparative Guide

1 Legal framework

1.1 What is the relevant legislation on arbitration in your jurisdiction? Are there any significant limitations on the scope of the statutory regime – for example, does it govern oral arbitration agreements?

Arbitration in the United Arab Emirates is governed by the UAE Federal Arbitration Law (6/2018). This is the United Arab Emirates' first standalone arbitration law and replaced various provisions of the Civil Procedure Law (11/1992). Pursuant to Article 2, the UAE Arbitration Law applies to the following arbitrations:

• those conducted in the United Arab Emirates, unless the parties have agreed that another law should govern the proceedings (provided that this would not offend public order or morality);
• any international commercial arbitration conducted abroad if the parties have chosen the UAE Arbitration Law to apply; and
• any arbitration arising from a dispute in respect of a legal relationship, whether contractual or not, governed by UAE law (save as excepted by special provision).

Article 3 of the UAE Arbitration Law also distinguishes between domestic and international arbitration.

Article 4(2) provides that arbitration is not permitted in matters that cannot be submitted to conciliation (see question 2.1).

Article 7(1) requires that an arbitration agreement be executed in writing, failing which it is null and void.

Cabinet Resolution 57/2018 provides that the Civil Procedure Law applies to the enforcement of foreign arbitration awards in the United Arab Emirates.

There are also two well-known offshore (free zone) jurisdictions, which are common law jurisdictions and have their own arbitration laws:

• the Dubai International Financial Centre (DIFC); and
• the Abu Dhabi Global Market (ADGM).

In the DIFC, arbitrations are governed by the 2008 DIFC Arbitration Law, as amended. In the ADGM, the proceedings are governed by the 2015 ADGM Arbitration Regulations.

Both have their own common law courts to assist in the process of arbitration, where necessary, and for enforcement. Both the DIFC and ADGM are covered by the New York Convention.

When drafting an arbitration agreement, entities can choose either the DIFC or ADGM as the seat of their arbitration. There is no limitation of the choice of either seat.

These laws each require that an arbitration agreement be in writing but have modern definitions of 'writing' which includes, among other things, exchanges of correspondence by electronic means.

1.2 Does this legislation differentiate between domestic arbitration and international arbitration? If so, how is each defined?

Yes. Article 3 of the UAE Arbitration Law provides that an arbitration is 'international' if:

• the parties have their places of business in two or more different states at the time the arbitration agreement is concluded;
• the subject matter in dispute is connected with more than one state; or
• the parties have agreed that the subject matter in dispute relates to more than one state.

1.3 Is the arbitration legislation in your jurisdiction based on the UNCITRAL Model Law on International Commercial Arbitration?

Yes, mostly. The UAE Arbitration Law is based on the United Nations Commission on International Trade Law (UNCITRAL) Model Law, although there are some notable distinctions. These include the following:

• Article 4 requires that a signatory to an arbitration agreement be authorised to act, failing which the agreement is null and void.
• Article 21 provides an additional ground where interim relief will be available compared to the Model Law.
• Article 22 provides for third-party joinder, whereas the Model Law does not include a similar provision.
• Article 27 sets the commencement date of the proceedings as the date following that on which the arbitral tribunal was constituted; whereas Article 21 of the Model Law states that this takes place upon receipt of the request for arbitration by the respondent.
• Article 28 provides that hearings and deliberations may by conducted via modern means of communication and technology; whereas the Model Law has no analogous provision.
• Article 54 sets a 30-day time limit for a party to apply to have an arbitral award set aside (from the date of notification); whereas the Model Law provides for a three-month deadline.

Unlike the Model Law, the UAE Arbitration Law does not provide for an automatic stay of enforcement proceedings in the event of an application to set aside the arbitral award.

There are two free trade zones with their own offshore common law jurisdiction: the DIFC and the ADGM. These offshore financial free zones both have their own statutes or regulations and court systems (the offshore courts).

In the DIFC, proceedings are governed by the 2008 DIFC Arbitration Law.

In the ADGM, proceedings are governed by the 2015 ADGM Arbitration Regulations.

The DIFC and ADGM regimes are largely based on the UNCITRAL Model Law.

1.4 Are all provisions of the legislation in your jurisdiction mandatory?

As with many modern arbitration laws, the UAE Arbitration Law has many sections where parties can waive or amend their provisions. One simply has to look for provisions that contain the term "unless otherwise agreed by the parties". Non-exhaustive examples include:

• Article 2(1), under which the parties can exclude the UAE Arbitration Law from applying to an arbitration conducted in the United Arab Emirates;
• Article 10(3), under which the parties can agree that an arbitrator be of a specific gender or nationality;
• Article 21(1), under which the parties may limit arbitrators from ordering interim or conservatory measures;
• Article 24(1) on notification provisions;
• Article 27(1) on the commencement of arbitral proceedings;
• Article 28(2) on venue and hearings/deliberations by modern means of communication;
• Article 29(1), under which the parties may agree that the arbitral proceedings be conducted in a language other than Arabic;
• Article 32 on default proceedings;
• Article 34, which allows tribunal-appointed experts, unless excluded by the parties' agreement;
• Article 41(2), under which the parties can remove the power of the presiding arbitrator to issue an award where the different opinions of the arbitrators would rule out a majority;
• Article 41(4), under which the parties can exclude reasons from the award; and
• Article 42, which provides that the final award must be issued within six months, which the tribunal may extend by a further six months – the parties can agree to extend this period or agree to any particular date for the final award.

Both the DIFC and ADGM regimes give many options to the parties to agree together to modify the laws to suit their needs, in keeping with the principle of party autonomy.

1.5 Are there any current plans to amend the arbitration legislation in your jurisdiction?

Articles 10, 23, 28, and 33 of the UAE Arbitration Law were amended in 2023. As a result, it is not anticipated that further amendments will be forthcoming within the next year.

1.6 Is your jurisdiction a signatory to the New York Convention? If so, have any reservations been made?

The United Arab Emirates ratified the New York Convention in 2006 without reservation. It applies to enforcement proceedings in the United Arab Emirates, including:

• before the DIFC courts (Article 42 of the DIFC Arbitration Law); and
• before the ADGM courts (Article 60 of the ADGM Arbitration Regulations).

1.7 Is your jurisdiction a signatory to any other treaties relevant to arbitration?

The United Arab Emirates is a party to the Washington Convention. It has also signed several bilateral investment treaties and is a member of various multilateral agreements involving arbitration, such as:

• the Investment Protection Agreement of the Organisation of Islamic Cooperation (1981);
• the Riyadh Convention on Judicial Cooperation between States of the Arab League (1983); and
• the Gulf Cooperation Council Convention for the Execution of Judgments, Delegations and Judicial Notifications (1996).

2 Arbitrability and restrictions on arbitration

2.1 How is it determined whether a dispute is arbitrable in your jurisdiction?

Under Article 4 of the UAE Arbitration Law, arbitration is not allowed for matters which cannot be submitted to conciliation. Matters which cannot be arbitrated include:

• criminal matters;
• bankruptcy disputes;
• labour disputes; and
• matters relating to public policy.

Article 3 of the Civil Code (Law 5/1985) provides that public policy includes "matters relating to personal status such as marriage, inheritance, lineage, matters relating to systems of government, freedom of trade, circulation of wealth, rules of individual ownership and other rules and foundations upon which society is based".

The laws of the two offshore jurisdictions – the Dubai International Financial Centre (DIFC) and the Abu Dhabi Global Market (ADGM) – do not list non-arbitrable matters, but reference can be made to common law principles as to what is arbitrable and what is not.

The DIFC imposes restrictions on arbitrating certain employment and certain consumer contracts.

2.2 Are there any restrictions on the choice of seat of arbitration for certain disputes?

No. Article 28 of the UAE Arbitration Law provides that the parties are free to agree on the place of the arbitration. If the parties have not agreed on the place of the arbitration, it shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties.

In respect of the two offshore jurisdictions, there are no restrictions. Entities may choose the DIFC or the ADGM as the seat for the resolution of disputes in any commercial matter.

3 Arbitration agreement

3.1 What are the validity requirements for an arbitration agreement in your jurisdiction?

The form and requirement of an arbitration agreement are set out in Chapter II of the UAE Arbitration Law.

Article 4(1) provides that an arbitration agreement will be null and void unless executed by:

• a physical person who has the legal capacity to act; or
• a representative of the legal entity who is authorised to execute such agreement.

Article 7(1) clarifies that an arbitration agreement will be considered null and void unless it is executed in writing. Article 7(2) further provides that this requirement will be satisfied in the following cases:

• The agreement is contained in a document signed by the parties or mentioned in an exchange of written or electronic communication;
• Reference is made in a written contract to the terms of a model contract, international agreement or any other document containing an arbitration clause, provided that such reference is sufficiently clear as to make that clause part of the contract;
• An arbitration agreement is executed while the dispute is pending before the competent court, in which case the court will issue a decision confirming the agreement and the arbitration will commence; or
• An arbitration agreement is contained in an exchange of written statements between the parties during the arbitration proceedings or upon acknowledgement before the competent court, where one party requests that the dispute be referred to arbitration and no objection is made by the other party.

3.2 Are there any provisions of legislation or any other legal sources in your jurisdiction concerning the separability of arbitration agreements?

Under Article 6 of the UAE Arbitration Law, an arbitration agreement is deemed separate from other clauses of the contract. Any claim that the contract is null or has been rescinded or terminated shall not affect the arbitration agreement contained therein, unless there is an issue concerning the capacity of any party. Furthermore, the arbitration will not be stayed because either party maintains that the contract is null or has been rescinded or terminated.

Article 14 of the Abu Dhabi Global Market (ADGM) Arbitration Regulations and Article 23 of the Dubai International Financial Centre (DIFC) Arbitration Law each contain separability provisions.

3.3 Are there provisions on the seat and/or language of the arbitration if there is no agreement between the parties?

As noted in question 2.2, the parties are free to agree on the place of the arbitration, failing which it shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties (Article 28 of the UAE Arbitration Law).

Article 29(1) specifies that the default language for the arbitration will be Arabic where the parties have not agreed otherwise. Article 29(2) states that the language shall apply to:

• the proceedings;
• any written statement submitted by the parties;
• any hearing; and
• any arbitral award, decision or other communication by the arbitral tribunal (unless otherwise agreed).

Both free zone laws allow the parties to agree on the seat of the arbitration. In the DIFC, the default is to that free zone if the dispute is governed by that particular arbitration law. In the ADGM, if the parties have not chosen a seat, an institution (if one has been chosen) or the tribunal will determine the seat.

4 Objections to jurisdiction

4.1 When must a party raise an objection to the jurisdiction of the tribunal and how can this objection be raised?

Article 20(1) of the UAE Arbitration Law requires a respondent to raise an objection to the arbitral tribunal's jurisdiction in its statement of defence at the latest. Article 20(2) clarifies that the respondent's appointment (or involvement in the appointment of) an arbitrator will not preclude it from raising any jurisdiction objection.

In the Dubai International Financial Centre (DIFC), the objection must be raised when the objector submits its first statement on the substance of the dispute. In the Abu Dhabi Global Market (ADGM), an objection may not be made after the objector has taken any step in those proceedings to answer the substantive claim.

4.2 Can a tribunal rule on its own jurisdiction?

Yes. Article 19(1) of the UAE Arbitration Law expressly allows an arbitral tribunal to rule on its own jurisdiction:

Article 24 of the ADGM Arbitration Regulations and Article 23 of the DIFC Arbitration Law each contain provisions allowing an arbitration tribunal to rule on its own jurisdiction.

4.3 Can a party apply to the courts of the seat for a ruling on the jurisdiction of the tribunal? In what circumstances?

It can where the tribunal has found that it has jurisdiction. Article 19(2) of the UAE Arbitration Law provides that where the arbitral tribunal has issued a decision in which it finds that it has jurisdiction, any party may apply to the competent court to decide the matter. Such request must be made within 15 days of the date on which the applicant received notice of the arbitral tribunal's decision. The court shall decide the request within 30 days of the date on which the application was registered. The court's decision is not subject to appeal. Furthermore, the arbitral proceedings shall be stayed until the application is decided, unless the arbitrators continue the arbitration upon the request of a party.

Article 19(3) warns that, should the arbitration proceed and the competent court rule that the arbitral tribunal lacks jurisdiction, the arbitral expenses shall be borne by the party that requested continuation of the arbitration.

In each of the two free zones, the applicable law contains a provision for the respective courts to finally determine a question of jurisdiction.

5 The parties

5.1 Are there any restrictions on who can be a party to an arbitration agreement?

Article 4(1) of the UAE Arbitration Law states that an arbitration agreement can be executed only by a physical person who has legal capacity to act or by a representative of a legal entity who is authorised to do so. Failure to have the properly authorised person execute the arbitration agreement will render it void. The courts have confirmed that this is a mandatory rule which cannot be waived under Article 25 of the UAE Arbitration Law.

5.2 Are the parties under any duties in relation to the arbitration?

As a modern arbitration law, the UAE Arbitration Law affords many opportunities for party autonomy, for the parties to agree to the procedure of the arbitration. Also, agreement to a set of institutional rules allows for those rules to govern the aspects of the arbitration that are amenable to party autonomy.

However, in the absence of agreement between the parties, Article 30 of the UAE Arbitration Law sets:

• a 14-day time limit for communication of the statement of claim; and
• the same time limit for communication of the statement of defence.

Article 32 states as follows:

• If the claimant fails to communicate its statement of claim in a timely fashion, the arbitration will be terminated;
• If the respondent fails to communicate its statement of defence in a timely fashion, the arbitration will continue, without treating such failure as an admission of the claimant's allegations; and
• If a party fails to adhere to the arbitral procedure or appear at the hearing without good cause, the arbitral tribunal may:
• • continue the arbitration, drawing appropriate conclusions based on the actions and default of the party in question, as justified by the circumstances of the arbitration case; and
  • proceed to make the award based on the evidence before it.

Also, under Article 34, if the tribunal appoints an expert, the parties are under a positive duty to:

• give that expert relevant information; or
• produce for inspection any relevant documents, goods or other property that the expert may require of them.

5.3 Are there any provisions of law which deal with multi-party disputes?

Article 22 of the UAE Arbitration Law empowers the arbitral tribunal to join third parties either upon the request of a party or upon the request of the third party, provided that it is a party to the arbitration agreement, after giving all parties (including the third party) the opportunity to hear their statements.

The UAE Arbitration Law provides no further guidance on multi-party disputes, although these are recognised by the arbitration rules of the more prominent institutions administering arbitrations in the United Arab Emirates (eg, ArbitrateAD, the Dubai International Arbitration Centre, the International Chamber of Commerce and the London Court of International Arbitration).

6 Applicable law issues

6.1 How is the law of the arbitration agreement determined in your jurisdiction?

Article 37 of the UAE Arbitration Law states that the arbitral tribunal shall decide on the dispute in accordance with the rules of law chosen by the parties. It further provides that, unless otherwise agreed by the parties, any designation of the law of a given state shall be construed as a reference to the substantive rules of that law and not to the conflict of laws rules (provided that this is not contrary to the public order and morality of the state).

6.2 Will the tribunal uphold a party agreement as to the substantive law of the dispute? Where the substantive law is unclear, how will the tribunal determine what it should be?

Yes, subject to the restrictions outlined in question 6.1. Moreover, Article 38 of the UAE Arbitration Law provides that if the parties have failed to agree on the applicable law, the arbitral tribunal will apply the substantive rules of the law which it considers has the closest connection with the substance of the dispute.

7 Consolidation and third parties

7.1 Does the law in your jurisdiction permit consolidation of separate arbitrations into a single arbitration proceeding? Are there any conditions which apply to consolidation?

The UAE Arbitration Law does not provide for the consolidation of arbitral proceedings. However, consolidation is recognised by the arbitration rules of the more prominent institutions administering arbitrations in the United Arab Emirates.

7.2 Does the law in your jurisdiction permit the joinder of additional parties to an arbitration which has already commenced?

Article 22 of the UAE Arbitration Law empowers the arbitral tribunal to join third parties either upon the request of a party or upon the request of the third party (provided that it is a party to the arbitration agreement). There is no limit on when the additional party can be joined to the proceedings. However, joinder is recognised by the arbitration rules of the more prominent institutions administering arbitrations in the United Arab Emirates. Most of the commercial and construction arbitrations in the United Arab Emirates are institutional, so parties typically agree to institutional rules, many of which contain joinder provisions.

7.3 Does an arbitration agreement bind assignees or other third parties?

While, under Article 4(1) of the UAE Arbitration Law, the signatory to a contract containing an arbitration clause must have special authority to bind a person or entity to that arbitration clause, advances have been made in respect of the assignment of a contract containing an arbitration clause. In Dubai Court of Cassation Decision 1603/2022 (Commercial), it was confirmed that general or special successors to the signatory of an arbitration agreement can be bound in an assignment of rights. While each case should be examined on its own facts, it is likely that if the signatories to the assignment had the special authority to bind their entity to an arbitration agreement, the arbitration agreement should go with the assignment. The same applies to other third-party rights. Within the Dubai International Financial Centre and Abu Dhabi Global Market, one would have to use common law doctrines and principles to assess whether the assignment of the contract brings with it the assignment of the arbitration agreement.

8 The tribunal

8.1 How is the tribunal appointed?

Article 11(1) of the UAE Arbitration Law makes it clear that party autonomy rules in relation to the appointment of the arbitrator or arbitrators. Therefore, in practice, as most arbitrations in the United Arab Emirates are institutional, the institution's rules will be followed with regard to the appointment of the arbitrator or arbitrators.

However, in ad hoc arbitration or where the parties have not agreed to another method of appointment:

• Article 9 of the Federal Arbitration Law provides that the arbitral tribunal shall be composed of three members;
• Article 11(2) allows the parties to agree on a sole arbitrator within 15 days; in case of default, the appointing authority or the responsible UAE court will appoint one, with no appeal;
• Article 11(3) mandates that each party should appoint one arbitrator and the two appointed arbitrators should then agree on the third arbitrator; in case of default by any party within 15 days, the appointing authority or the responsible UAE court will appoint one, with no appeal;
• Article 11(4) ensures that the appointing authority or the responsible UAE court must have due regard to any qualifications required of the arbitrator so as to secure the appointment of an independent and impartial arbitrator or tribunal;
• Article 11(5) is a fallback provision that allows the responsible UAE court to ensure that a proper arbitrator or tribunal is appointed, with no appeal; and
• Articles 11(6)-(8) aim to ensure that all parties know about the request for an appointment of an arbitrator and provide that:
• • the responsible UAE court can request an arbitration institution in the United Arab Emirates to provide a list of potential arbitrators; and
  • the third arbitrator appointed shall preside.

8.2 Are there any requirements as to the number or qualification of arbitrators in your jurisdiction?

Article 9 of the UAE Arbitration Law states that where the number of arbitrators is not agreed, the number shall be three. The number of arbitrators must not be even.

Article 10(1) of the UAE Arbitration Law states that an arbitrator must be a natural person who:

• is not a minor;
• is not under a court interdiction order;
• is not without civil rights by reason of bankruptcy (unless they have been discharged); and
• has not been convicted of a felony or misdemeanour for a crime involving moral turpitude or breach of trust.

Article 10(2), which previously prohibited an arbitrator from being on the board of trustees or the administrative body of an arbitration institution in the United Arab Emirates, has been amended to allow such a person to serve under certain conditions (see Article 10bis – "Conditions for Appointing an Arbitrator from Among Members of the Supervisory or Regulatory Authorities in the Competent Arbitration Institution").

Article 10(3) negates any requirement of gender or nationality for arbitrators, unless otherwise agreed by the parties as provided for by law.

Article 10(4) requires a potential arbitrator to make a disclosure in writing of anything that is likely to give rise to doubts as to their impartiality or independence on a continuing basis.

8.3 Can an arbitrator be challenged in your jurisdiction? If so, on what basis? Are there any restrictions on the challenge of an arbitrator?

Yes, an arbitrator can be challenged in the United Arab Emirates. Article 14 of the UAE Arbitration Law provides that an arbitrator may be challenged ('recused') only where:

• there are circumstances which give rise to serious doubts regarding his impartiality or independence; or
• it is established that the requirements agreed upon by the parties or set out in the UAE Arbitration Law are not met.

However, Article 14(2) prohibits a party from challenging an arbitrator if the party appointed the arbitrator or otherwise participated in the individual's appointment to the arbitral tribunal, unless the challenge is based on a reason of which it becomes aware after the appointment has been made. Furthermore, Article 14(3) provides that a challenge will not be accepted by a party that has previously submitted a request for the recusal of the same arbitrator in the same arbitration and for the same reason.

Article 15 of the UAE Arbitration Law sets out the procedures for the recusal of an arbitrator. A party that is allowed under Article 14 to challenge an arbitrator must do so within 15 days of becoming aware of the grounds. If the challenged arbitrator fails to recuse themselves or if the other party does not approve of the recusal within 15 days, the institution or the court must decide on the request within 10 days, with no appeal. The arbitration may continue while the institution/court is deciding on the challenge. If the institution/court decides to remove the arbitrator, it may issue an appropriate decision regarding the fees or expenses of the arbitrator or for the recovery of fees or expenses that have been paid to the arbitrator, without appeal. An arbitrator's withdrawal is not to be considered an acknowledgement of the validity of any of the reasons for recusal.

Article 16 sets out a procedure for removal if an arbitrator:

• fails to perform their duties;
• dies; or
• becomes incapable of performing their duties.

8.4 If a challenge is successful, how is the arbitrator replaced?

For the appointment of a substitute arbitrator, the same procedures are followed as were followed for the appointment of the arbitrator who is being replaced. After the appointment of the substitute arbitrator, the parties can determine the scope of the proceedings. If the parties fail to agree on the scope of the proceedings, the reconstituted tribunal will decide on:

• the validity of any of the previous proceedings; and
• the scope of the proceedings going forward.

The decision issued by the reconstituted tribunal will not affect the right of a party to appeal against the proceedings that were carried out before the reconstitution the tribunal, based on a reason which arose before the appointment of the substitute arbitrator.

8.5 What duties are imposed on arbitrators? Are these all imposed by legislation?

The UAE Arbitration Law imposes the following duties on arbitrators:

• to be, and to continue to be, impartial and independent (Article 14(1));
• to perform their functions or be subject to removal (Article 16(1)); and
• to treat the parties equally and provide each party with an equal and full opportunity to present its claims and defence (Article 26).

8.6 What powers does an arbitrator have in relation to: (a) procedure, including evidence; (b) interim relief; (c) parties which do not comply with its orders; (d) issuing partial final awards; (e) the remedies it can grant in a final award and (f) interest?

(a) Procedure, including evidence?

The arbitration procedures, including in relation to evidence, are subject to party autonomy (Article 23). However, if there is no agreement to follow certain procedures, the tribunal or sole arbitrator may determine the procedures that deems appropriate:

• in compliance with the basic principles of litigation and international agreements to which the United Arab Emirates is a party; and
• subject to any contrary provisions of the UAE Arbitration Law.

(b) Interim relief?

Article 18(2) of the UAE Arbitration Law allows the tribunal or sole arbitrator to petition the competent court to order interim or precautionary measures for current or future arbitration proceedings, whether before or during the course of those proceedings.

Article 21 grants the tribunal or sole arbitrator the discretion to order interim or precautionary measures "as it may deem necessary and as required by the nature of the dispute", mentioning in particular:

• the preservation of evidence that may be material to the resolution of the dispute;
• the preservation goods that constitute part of the subject matter of the dispute, such as an order to deposit with third parties or to sell perishable goods;
• the preservation of assets and property in relation to which a subsequent award may be enforced;
• the maintenance or restoration of the status quo pending determination of the dispute; and
• any action that would prevent, or desistance from action that is likely to cause, current or imminent harm or prejudice to the arbitral process itself.

Article 21(2) allows the tribunal or sole arbitrator to order that security be provided.

Article 21(3) grants the tribunal or sole arbitrator the power to modify, suspend or terminate an interim measure.

(c) Parties which do not comply with its orders?

Article 21(4) of the UAE Arbitration Law allows for court enforcement of the tribunal's/sole arbitrator's interim measures order.

Article 18(2) allows the tribunal/sole arbitrator to approach the court for an order of interim or precautionary measures.

(d) Issuing partial awards?

Under Article 39(1) of the UAE Arbitration Law, the tribunal/sole arbitrator may issue interim awards or partial awards. Under Article 39(2), interim awards are enforceable before the courts.

(e) The remedies it can grant in a final award?

In the United Arab Emirates, a tribunal has the discretion to award a range of remedies – including damages, specific performance and declarations – as long as these are requested by the parties.

(f) Interest?

Arbitrators in the United Arab Emirates have the power to award both pre and post-award interest, as long as these are requested by the parties.

8.7 How may a tribunal seated in your jurisdiction proceed if a party does not participate in the arbitration?

As set out in question 5.2, if a party fails to adhere to the arbitral procedure or appear at the hearing without good cause, Article 32 of the UAE Arbitration Law allows the arbitral tribunal to:

• continue the arbitration, drawing appropriate conclusions based on the actions and default of the party in question, as justified by the circumstances of the arbitration case; and
• proceed to make an award on the evidence before it.

8.8 Are arbitrators immune from liability?

The UAE Arbitration Law does not provide for immunity from liability for arbitrators. In particular, criminal or civil liability for arbitrators can arise from:

• corrupt practices; or
• deceitful or fraudulent conduct.

In the Dubai International Financial Centre and the Abu Dhabi Global Market (ADGM), however, arbitrators enjoy immunity in connection with an arbitration unless they cause damage by conscious and deliberate wrongdoing, in addition to common criminal liability under UAE law. The ADGM Arbitration Regulations further provide that arbitrators remain liable by reason of their resignation.

It is further recommended that arbitrators take out professional liability insurance.

9 The role of the court during an arbitration

9.1 Will the court in your jurisdiction stay proceedings and refer parties to arbitration if there is an arbitration agreement?

Yes, under Article 8 of the UAE Arbitration Law, the court will declare the inadmissibility of the action:

• if the defendant raises such a plea before any claim or defence on the substance of the case; and
• unless the court finds that the arbitration agreement is null and void or incapable of being performed.

9.2 Does the court in your jurisdiction have any powers in relation to an arbitration seated in your jurisdiction and/or seated outside your jurisdiction? What are these powers? Under what conditions are these powers exercised?

Article 2(2) states that the UAE Arbitration Law applies to any international commercial arbitration which:

• is carried out outside the state; and
• is subject to the UAE Arbitration Law upon the agreement of the parties.

Under Article 3, an arbitration is deemed "international, whether carried on inside or outside the UAE", if:

• one of the following is situated outside the state in which the parties have their places of business:
• • the place of arbitration as determined in or referred to by the arbitration agreement;
  • the place where a substantial part of the obligations arising from the commercial relationships between the parties is to be performed; or
  • the place with which the subject matter of the dispute is most closely connected;
• the subject matter of the dispute that is subject to the arbitration agreement relates to more than one country; or
• the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one country.

Therefore, the UAE Arbitration Law can apply in or outside the United Arab Emirates depending on the factors enumerated above.

9.3 Can the parties exclude the court's powers by agreement?

While many provisions of the UAE Arbitration Law allow for change or amendment under the principle of party autonomy, the parties may not exclude the court's powers by agreement.

10 Costs

10.1 How will the tribunal approach the issue of costs?

Under the UAE Arbitration Law, the tribunal has broad discretion over costs, without being bound to the 'loser pays' principle. Most commercial and construction arbitrations in the UAE are institutional, so the parties typically agree to institutional rules, which will likely contain cost provisions.

Also, unless otherwise agreed by the parties, Article 46(1) defines the costs of the arbitration as including:

• the fees and expenses incurred by tribunal members; and
• the costs of tribunal-appointed experts.

Under Article 46(2), the tribunal has the power to shift and apportion these costs.

Article 46(3) provides that, on request by a party, the court can review costs, unless the parties have already agreed on them.

Article 47(1) allows the arbitrators to refuse to deliver the final arbitral award to the parties in case of failure to settle all costs of arbitration, including their fees and expenses.

Article 47(2) provides that if the tribunal refuses to deliver the award in accordance with Article 47(1), a party may submit a request to the court after notifying the other parties and the tribunal to require the tribunal to deliver the award to the parties, after proving the settlement of all fees and expenses:

• requested by the tribunal; or
• fixed by the court according to Article 46.

The definition of 'arbitration costs' in the UAE Arbitration Law does not include legal fees. However, institutional rules will likely include these fees. If there are no institutional rules, the parties must specifically agree in writing to allow the tribunal to apportion the legal fees.

10.2 Are there any restrictions on what the parties can agree in terms of costs in an arbitration seated in your jurisdiction?

There are no specific restrictions on what the parties can agree in terms of costs in the United Arab Emirates, unless it is illegal.

11 Funding

11.1 Is third-party funding permitted for arbitrations seated in your jurisdiction?

Yes, third-party funding is permitted in arbitrations in the United Arab Emirates. This is not specifically regulated in the UAE Arbitration Law, although institutional rules may regulate it. As a civil law jurisdiction, the United Arab Emirates does not recognise certain common law prohibitions against third-party funding.

12 Award

12.1 What procedural and substantive requirements must be met by an award?

Under Article 37 of the UAE Arbitration Law, the award must reflect a decision made in accordance with the rules of law chosen by the parties as applicable to the substance of the dispute.

Under Article 41, the award:

• must be made in writing
• must be signed by a majority of the tribunal members and is valid if signed by the members or by the presiding arbitrator, unless otherwise agreed by the parties; in case of a dissent, the dissenting reasons must be written or attached to the award and will be considered an integral part of the award. The award can be signed at a place other than the seat; and
• must include:
• • the names and addresses of the parties;
  • the names, nationalities and addresses of the arbitrators;
  • the arbitration agreement;
  • a summary of the claims, statements, documents and the operative part of the award; and
  • the award's reasoning, if this is mandatory; and
  • the date and place of issuance. The date of the award is when it was signed by:
  • • the sole arbitrator; or
    • the last member of the tribunal.

12.2 Must the award be produced within a certain timeframe?

Yes, the award terminating the dispute must be rendered within six months of the date of the first hearing of the arbitration proceedings, with an additional six-month extension which can be ordered by the tribunal. However, the parties can agree to any date or method to determine the date of the award terminating the dispute. Most arbitrations in the United Arab Emirates are institutional and institutional rules will likely specify a means of calculating the deadline for awards.

Under Article 44 of the UAE Arbitration Law, the arbitrators must notify the signed award to the parties within 15 days of its issuance.

13 Enforcement of awards

13.1 Are awards enforced in your jurisdiction? Under what procedure?

Yes. Article 55 of the UAE Arbitration Law sets out the procedure for the enforcement of a domestic award. Enforcement must be ordered within 60 days of filing of the date for the request.

The UAE Arbitration Law is silent as to the enforcement of foreign arbitral awards. However, under Cabinet Decision 57/2018 (which amended certain provisions of the UAE Civil Code), an application for enforcement need only be submitted to the competent execution judge. Current case law shows that the United Arab Emirates typically enforces foreign arbitration awards, with the odd outlier.

14 Grounds for challenging an award

14.1 What are the grounds on which an award can be challenged, appealed or otherwise set aside in your jurisdiction?

Article 53 of the UAE Arbitration Law sets out the following grounds for annulment, which are exhaustive:

14.2 Are there are any time limits and/or other requirements to bring a challenge?

Under Article 54(2) of the UAE Arbitration Law, a challenge must be brought within 30 days of notification of the arbitral award to the applicant requesting nullification.

14.3 Are parties permitted to exclude any rights of challenge or appeal?

No.

15 Confidentiality

15.1 Is arbitration seated in your jurisdiction confidential? Is a duty of confidentiality found in the arbitration legislation?

Under Article 33(1) of the UAE Arbitration Law, the default position is that hearings are held in camera.

Under Article 48, arbitral awards cannot be published without the prior written consent of the parties.

15.2 Are there any exceptions to confidentiality?

The UAE Arbitration Law provides that confidentiality will not apply to the hearing (Article 33(1)) and/or the arbitral award (Article 48) if so agreed by the parties. However, courts are increasingly anonymising their judgments with regard to the identity of the parties.

Article 48 further specifies that confidentiality will not apply to the publication of court judgments dealing with the arbitral award.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.