UAE Law and Practice Contributed by: Antonios Dimitracopoulos and Martin Khoshdel, BSA Law
The DIFC Arbitration Law and the ADGM Arbitration Regulations permit an arbitration agreement to be enforced if it is contained within an electronic commu - nication, provided the information contained therein is accessible so as to be useable for subsequent refer - ence. 3.2 Arbitrability Although Article 41 (2)(b)(i) and 44 (1)(b)(vi) of the DIFC Arbitration Law and Article 58 (2)(b)(i) of the ADGM Regulations provide for the possibility of certain sub - ject matter not being capable of settlement by arbitra - tion, there is no prescriptive list within either of these laws as to which matters may not be arbitrable. The Federal Arbitration Law does not specify a list of non-arbitrable disputes. Given that arbitral awards may be set aside where the award offends against public policy, the source of non-arbitrable disputes derives from the public policy of the UAE. The fol - lowing matters are generally accepted as being non- arbitrable (non-exhaustive): • criminal cases; • matters concerning personal status such as mar - • specific real estate matters such as the unilateral termination of off-plan property sale agreements; • bankruptcy and insolvency matters; and • disputes involving the state exercising public func - tions. The general approach is that matters that are of a public law nature are generally not arbitrable. This fol - lows from Article 3 of the UAE Civil Code Law No 5 of 1985, which stipulates as matters of public order “marriage, inheritance, and lineage, and matters relat - ing to sovereignty, freedom of trade, the circulation of wealth, rules of private ownership, and the other rules and foundations upon which society is based.” 3.3 National Courts’ Approach With regard to determining the law governing the arbitration agreement, national courts have applied the UAE Civil Code (as outlined in 3.2 Arbitrability ) and the relevant arbitration legislation, in addition to riage, inheritance and lineage; • matters of public governance;
considering previous court rulings to determine which matters would not be arbitrable. 3.4 Validity The Federal Arbitration Law, the DIFC Arbitration Law, and the ADGM Arbitration Regulations all provide that the arbitration agreement is a separate agreement irrespective of the validity of the contract to which it belongs. The doctrine of separability is a fundamental principle enshrined within all arbitration legislation in force in the UAE. There are no restrictions on the parties’ autonomy when it comes to selecting arbitrators in the UAE. 4.2 Default Procedures The default procedure is for the arbitral institution to select arbitrators where there has been a failure to nominate arbitrators or where two party-nominated arbitrators have failed to nominate a chairperson. All three arbitration laws (the Federal Arbitration Law, the DIFC Arbitration Law, and the ADGM Arbitration Regulations) permit court intervention as a final resort to appoint arbitrators, meaning that the parties and the centre must have failed to appoint arbitrators ‒ assuming that the arbitration is not an ad hoc arbitra - tion. If the arbitration is ad hoc and the parties failed to appoint arbitrator(s) in accordance with the arbitra - tion agreement, or if no such appointing procedure is contained in the arbitration agreement, then the par - ties may seek assistance from the court of the seat of arbitration. 4.3 Court Intervention The DIFC court of first instance and the ADGM court would be required to give due regard to any qualifica - tions required of the arbitrator by the agreement of the parties and to any other factors that will lead to the appointment of an independent and impartial arbi - trator. The DIFC court and the ADGM court will also consider the advisability of appointing an arbitrator of a nationality other than that of any party. 4. The Arbitral Tribunal 4.1 Limits on Selection
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