Answer ... Arbitration in the United Arab Emirates is governed by the 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 Federal 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 Federal 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 Federal Arbitration Law also distinguishes between ‘domestic’ and ‘international’ arbitrations.

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 in writing, failing which it is null and void.

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

Answer ... Yes. Article 3 of the Federal 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.

Answer ... Yes. The Federal Arbitration Law is based on the United Nations Commission on International Trade Law 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 a three-month deadline.
• Unlike the Model Law, the Federal Arbitration Law does not provide for an automatic stay of enforcement proceedings in the event of an application to set aside the arbitral award.

Answer ... Article 2 of the Federal Arbitration Law sets out its scope and application, as explained in question 1.1. Under Article 2(1), parties can apply another law to govern arbitrations with their seat in the United Arab Emirates, provided that that such application does not offend UAE public order and morality.

Furthermore, there are mandatory provisions concerning the composition of the arbitral tribunal, including a requirement that the number of arbitrators be uneven (Article 9) and limitations on who can act as arbitrator (Article 10).

Answer ... Given that the Federal Arbitration Law was enacted in 2018, and that the Civil Procedure Law has been amended in the last three years to address issues pertaining to arbitration, there is nothing to suggest that the legislature intends to make further changes in the immediate future.

Answer ... The United Arab Emirates ratified the New York Convention in 2006 without reservation.

Answer ... 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).

Answer ... Under Article 4 of the Federal 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”.

Answer ... Article 28 of the Federal Arbitration Law provides that 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.

Answer ... The form and requirement of an arbitration agreement are set out in Chapter II of the Federal 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 by the representative of the legal entity authorised to execute such agreement.

Article 7(1) clarifies that an arbitration agreement will be considered null and void unless in writing. Article 7(2) further provides that the ‘writing’ 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 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.

Answer ... Under Article 6 of the Federal 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.

Answer ... 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 Federal 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).

Answer ... Article 20(1) of the Federal 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.

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

Answer ... Article 19(2) of the Federal 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.

Answer ... Article 4(1) of the Federal Arbitration Law states that an arbitration agreement can be executed only by a physical person who has legal capacity to act or by the representative of a legal entity authorised to do so.

Answer ... Although arbitral tribunals will generally set deadline for submissions after consultation with the parties, Article 30 of the Federal Arbitration Law sets default timelines for the filing of the statement of claim and the statement of defence unless otherwise agreed. Article 32 sets out the ramifications for a party’s failure to partake in the proceedings:

• Article 32(1) provides that the arbitration will be terminated if the claimant does not submit its statement of claim (without acceptable excuse) and if the arbitral tribunal believes that there is an undue and inordinate delay by the claimant in pursuing its claim, and that such delay would prevent a fair resolution or result in injustice against the respondent.
• Article 32(2) provides that the arbitration will proceed if the respondent fails to submit a statement of defence (or if the claimant fails to submit a defence in response to a counterclaim). However, such failure to submit a defence will not be considered an admission of the opposing party’s claim.
• Article 32(3) provides that, 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 and conclude whatever it may deem appropriate in light of the acts and the failure of said party, as justified by the circumstances of the arbitration case, and issue an award based on the evidence before it.

Answer ... Article 22 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 Federal Arbitration Law does not provide any 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, the International Chamber of Commerce, the Dubai International Arbitration Centre and the DIFC-LCIA).

Answer ... Article 37 of the Federal 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).

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

Answer ... The Federal Arbitration Law does not provide for the consolidation of arbitral proceedings. However, consolidation is possible if the specific institutional rules governing the arbitration allow for consolidation and the parties consent to it.

Answer ... Article 22 of the Federal 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, the specific institutional rules governing the arbitration may set such a deadline: for example, Article 7(1) of the International Chamber of Commerce Arbitration Rules provides that no additional party may be joined after the confirmation or appointment of any arbitrator, unless all parties, including the additional party, otherwise agree.

Answer ... Generally speaking, third parties are not bound by an arbitration agreement under UAE law. However, if a contract provides for arbitration in the event of a dispute and one of the signatories to the contract assigns its rights in the contract to a third party, that third party will be bound by the arbitration agreement.

Answer ... Article 9 of the Federal Arbitration Law provides that, absent any agreement between the parties, the arbitral tribunal shall be composed of three members.

Article 11(1) allows the parties to agree on the procedure to appoint the members of the arbitral tribunal. In practice, if the arbitration is being administered by a particular institution, then the designated institution shall be responsible for appointing the arbitrators pursuant to the agreed-upon procedural rules.

Articles 11(2) and 11(3) further set out the procedure to be followed in the event that the parties are unable to agree on the identity of a sole arbitrator, or if the co-arbitrators cannot agree on the identity of the chairman.

Answer ... Article 9(2) of the Federal Arbitration Law provides that the number of arbitrators must be uneven, failing which the arbitration shall be deemed null and void.

The requirements to be met by an arbitrator are set out under Article 10. In addition to any requirements agreed upon by the parties, Article 10 imposes the following requirements:

• The arbitrator must be a physical person; and
• The arbitrator must not:
• • be a minor;
  • be incapacitated;
  • have been deprived of civil rights due to filing for bankruptcy, unless he or she is rehabilitated;
  • have been sentenced for a felony or misdemeanour involving moral turpitude or dishonesty, even if the individual has been rehabilitated; or
  • be a member of the board of trustees or administrative branch of the arbitration institution governing the matter.

Article 10(3) states that an arbitrator need not be a specific gender or nationality (unless agreed otherwise by the parties or required by law).

Finally, Article 10(4) states that an arbitrator must declare, in writing, that there are no doubts as to his or her impartiality and/or independence from the date of the proceedings.

Answer ... Article 14 of the Federal Arbitration Law provides that an arbitrator may be challenged in circumstances which give rise to serious doubts regarding the individual’s impartiality or independence, or where the individual does not possess the qualifications agreed upon between the parties or stipulated by the Federal Arbitration Law.

A party’s ability to challenge the appointment of an arbitration is not unfettered. 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 the party became aware after the appointment was made. Furthermore, Article 14(3) provides that a challenge will not be entertained by a party who has already submitted a challenge against the same arbitrator, in the same arbitration and for the same reason.

Answer ... The procedure for the replacement of arbitrators is set out under Article 17 of the Federal Arbitration Law. Article 17(1) provides that a replacement arbitrator will be appointed following the same procedure that was adopted to appoint the replaced arbitrator.

Answer ... An arbitrator has a duty to be impartial and independent. Should serious doubts arise as to the arbitrator’s impartiality and independence, the arbitrator may be challenged pursuant to Article 14 of the Federal Arbitration Law.

Under Article 16, an arbitrator’s mandate will be terminated if:

• the arbitrator becomes unable to perform his or her functions;
• the arbitrator fails to act or ceases to perform his or her functions without undue delay in the arbitration proceedings; or
• the arbitrator intentionally neglects to act according to the arbitration agreement, though he or she has been notified through all applicable means of notification and communication in the state, yet fails to withdraw; or
• the parties fail to agree on his or her dismissal.

Answer ... (a) Procedure, including evidence?

Under Article 23(2) of the Federal Arbitration Law, in the event that the parties have not identified the procedure to be applied in the arbitration, the arbitrators may determine the applicable procedure, subject to the Federal Arbitration Law, in compliance with the basic principles in litigation and international agreements to which the state is a party.

(b) Interim relief?

Under Article 18(2) of the Federal Arbitration Law, an arbitral tribunal can petition the competent court to issue interim or precautionary measures where deemed necessary, for the current or future arbitral proceedings, whether before or in the course of the arbitration.

Article 21 of the Federal Arbitration Law provides that, unless otherwise agreed by the parties, an arbitral tribunal can grant interim relief (either upon party request or sua sponte) deemed necessary and as required by the nature of the dispute. Such relief includes the following:

• an order to preserve evidence that may be material to resolve the dispute;
• an order to take necessary measures to preserve goods that constitute the subject matter of the dispute or to sell perishable goods;
• an order to preserve assets and property for the purposes of enforcement of an award;
• an order maintaining or restoring the status quo pending determination of the dispute; or
• an order to take action that would prevent (or refrain from taking action that is likely to result in) current or imminent harm or prejudice to the arbitral process itself.

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

As mentioned above in question 8.6(b), Article 18(2) of the Federal Arbitration Law states that an arbitral tribunal can petition the competent court to issue interim or precautionary measures where deemed necessary during an arbitration.

(d) Issuing partial final awards?

Article 39 of the Federal Arbitration Law allows for an arbitral tribunal to issue interim and summary awards before issuance of the final award. These are enforceable with the competent court by way of petition.

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

An arbitral tribunal can award damages, specific performance and declaratory relief, provided that such relief was awarded pursuant to an express request by the parties.

(f) Interest?

Arbitrators have the power to award both pre and post-award interest, provided that this is done pursuant to an express request by the prevailing party.

Answer ... Article 32 of the Federal Arbitration Law allows an arbitral tribunal to proceed with an arbitration (or terminate it) where one of the parties does not actively participate. See question 5.2.

Answer ... The Federal Arbitration Law is silent as to whether arbitrators can be subject to liability.

Prior to the enactment of the Federal Arbitration Law, the Dubai Court of Cassation in Case 484/2017 held that an arbitrator may be subject to civil liability in tort where the arbitrator performed or failed to perform an act and this resulted in harm to a party. The court further clarified that mere mistake or negligence by the arbitrator would be insufficient to entitle a party to relief in tort; rather, there would need to be a showing of serious mistake arising from deceit, fraud, collusion with the opposing party or a failure to arbitrate without acceptable justification.

From a criminal law perspective, Article 257 of the Penal Code (Law 3/1987) previously provided that arbitrators (among others) appointed by an administrative or judicial authority or the parties to a dispute faced imprisonment if found to have acted contrary to the duty of objectivity and integrity in the performance of their professional mandate. This was later amended by Federal Decree 24/2018, which removed arbitrators from the ambit of this provision.

Answer ... Yes. Article 8 of the Federal Arbitration Law provides that a court will decline jurisdiction over a dispute subject to an arbitration agreement, unless the court finds that the arbitration agreement is null and void or incapable of being performed. Furthermore, a court action will not stay the commencement or continuation of the arbitration.

Answer ... Yes. Courts in the jurisdiction have the authority to assist in an arbitration where necessary pursuant to various provisions of the Federal Arbitration Law.

Articles 11 and 13 provide that the competent court may, upon the request of the parties, assist in the appointment of arbitrators.

Article 18 provides that the competent court can issue interim or precautionary measures where deemed necessary for arbitral proceedings, upon the request of either one of the parties or the arbitral tribunal. Under Article 21(4), the court may grant an order for the enforcement of interim relief issued by an arbitral tribunal.

Article 19 allows the competent court, upon the request of one of the parties, to rule on the arbitral tribunal’s decision that the arbitrators have jurisdiction to hear the dispute.

Article 36 allows the competent court to assist in the production of evidence in arbitration, including the production of documents and witness testimony. The competent court can also order the production of evidence by third parties.

Article 47 provides that a party can request the competent court to order an arbitral tribunal to deliver the arbitral award to the parties, provided that all fees and expenses requested by the arbitrators (or fixed by the court) have been satisfied.

Answer ... No. While the parties have discretion to agree on the procedures governing the arbitral proceedings, they cannot exclude the court’s powers to intervene.

Answer ... Article 46 of the Federal Arbitration Law provides that, unless agreed otherwise by the parties, the arbitrators shall determine the arbitration costs. These include:

• the fees and expenses incurred by the arbitral tribunal for the purpose of execution of its tasks; and
• the costs of the appointment of experts by the arbitral tribunal.

This provision also states that an arbitral tribunal can order one of the parties to bear all or a portion of such fees and expenses.

Under Article 47, the arbitral tribunal can refuse to deliver the arbitral award where the arbitration costs remain outstanding.

Legal fees can also be awarded, provided that this power is expressly granted to the arbitrators by the parties in the terms of reference.

Answer ... No.

Answer ... Third-party funding is permitted in UAE-seated arbitrations.

Answer ... The form and content requirements for an award issued in the United Arab Emirates are set out under Article 41 of the Federal Arbitration Law, which states the award must:

• be in writing;
• be issued by a majority of arbitrators;
• be signed by the arbitrators;
• state the reasons on which the award is based (unless otherwise agreed or not required under the applicable law);
• state the parties’ details;
• state the arbitrators’ details;
• include the arbitration agreement;
• give a summary of each party’s claims, statements and documents;
• state the order made and the reasons on which it is based; and
• specify the date and place of issuance of the award.

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

Answer ... Article 42 of the Federal Arbitration Law provides that, absent party agreement, the arbitral award must be rendered within six months of the date of the first hearing in the arbitration. The arbitral tribunal may, however, decide to extend the period up to no more than six months, unless otherwise agreed by the parties.

Answer ... Yes.

Article 55 of the Federal Arbitration Law mandates that an enforcement application for a domestic award be made to the chief justice of the competent court of appeal.

The Federal Arbitration Law is silent as to the enforcement of foreign arbitral awards in the United Arab Emirates. However, under Cabinet Decision 57/2018 (which amended provisions within the Civil Code), an application for enforcement need only be submitted to the competent execution judge.

Answer ... Article 53(1) of the Federal Arbitration Law sets out the grounds upon which an award can be set aside, as follows:

• No arbitration agreement exists, or the arbitration agreement is void or has become void under the law chosen by the parties (or under UAE law if no law is specified);
• Either party was incompetent or lacked capacity to execute the arbitration agreement;
• An individual does not have the legal capacity to dispose of the disputed right under the law governing his or her capacity;
• A party was deprived of the right to present its case because it did not receive proper notice of the appointment of an arbitrator or of the arbitration, the tribunal breached the party’s right to due process or for any other reason beyond the party’s control:
• The award does not apply the designated law;
• The appointment of the arbitrators or the establishment of the tribunal was not in accordance with the Federal Arbitration Law or the parties’ agreement;
• The proceedings were marred by irregularities that affected the award or the award was not issued within the specified time; or
• The award decides matters not falling within the terms of reference or exceed their scope; but if those matters can be separated from those on which the tribunal had the authority to rule, only that portion of the award addressing issues on matters not submitted to arbitration may be set aside.

Article 53(2) allows a court to set aside an award on its own initiative where:

• the subject matter of the dispute cannot be submitted to arbitration; or
• the award offends public policy or morals of the state.

While a party can apply to have an award aside, it cannot appeal the merits of the award. It can, however, appeal the court’s decision dismissing a set-aside action (Article 54(1)).

Answer ... Article 54(2) of the Federal Arbitration Law imposes a 30-day timeframe for a party to present a set-aside action.

Answer ... No.

Answer ... Article 33(1) of the Federal Arbitration Law states that hearings are held in camera unless agreed otherwise by the parties.

Article 48 further states that arbitral awards cannot be published in whole or in part without the prior written consent of the parties.

Answer ... The Federal Arbitration Law provides that confidentiality will not apply to the hearing (Article 33(1)) and/or the arbitral award (Article 48) if agreed by the parties. Article 48 further specifies that confidentiality will not apply to the publication of court rulings dealing with the arbitral award.