UAE Law and Practice Contributed by: Antonios Dimitracopoulos and Martin Khoshdel, BSA Law
the final arbitral award where there has been a failure to pay all costs of the arbitration. 7.4 Legal Representatives Article 33 (4) of the Federal Arbitration Law allows parties to engage experts, lawyers or other persons to represent them before the arbitral tribunal, at their own expense. The DIFC Arbitration Law does not contain a similar provision and the law is silent on this point. The ADGM Arbitration Regulations contains a defined term within Schedule 1 defining “party representa - tives” as any person who appears for a party, whether they hold a legal qualification or otherwise and irre - spective of the jurisdiction in which they are admitted to practise law in any event. 8. Evidence 8.1 Collection and Submission of Evidence In general, the parties are required to state their cases at the pleadings stage. It is at the parties’ discretion whether to exhibit any documentary evidence that they wish to rely on. If the arbitration proceeds on a memorial basis, then the parties will be required to submit all documentary evidence and supporting witness statements with the pleading. If the arbitration proceeds on the common- law basis, then the parties will be free to submit their documents at the production stage. The tribunal and the parties will agree which basis to proceed with their arbitration on in line with any insti - tutional rules as applicable. In relation to the giving of evidence at the hearing, Article 36 of the UAE Arbitration Law provides for an arbitral tribunal ‒ of its own initiative or pursuant to a party’s request – to seek the court’s assistance in taking evidence. A witness may, therefore, be required to appear before the arbitral tribunal to:
• “submit oral testimony”; and/or • “present documents or any evidence thereof”. Article 34 of the DIFC Arbitration Law and Regula - tion 48 of the ADGM Regulations provide the arbitral tribunal or a party (with approval of the arbitral tri - bunal) with the right to request “assistance in taking evidence”. The rules of arbitral institutions ‒ for example, the DIAC Rules (Article 25.2) and the ArbitrateAD Rules (Article 31.2) ‒ provide the arbitral tribunal with the discretion to adopt its preferred rules on evidence. 8.2 Rules of Evidence The rules of evidence in arbitral proceedings seated in the UAE will be left to the parties to make submissions on or agree and for the tribunal to ultimately deter - mine. The UAE Civil Code contains a provision that the burden of proof starts with the claimant, which shifts to the defendant to disprove the claimant’s case. The UAE Evidence Law (Federal Law No 10 of 1992) gen - erally governs the procedural requirements for pre - senting evidence in civil and commercial disputes. This DIAC Rules 2022 and ArbirateAD Rules 2024 contain provisions stating that the burden of proof is on each party to prove the facts in support of its respective case. The standard of proof is not stipu - lated and will be left to the parties and the tribunal to determine. 8.3 Powers of Compulsion Article 36 the Federal Arbitration Law allows the tribu - nal to submit a request to “the president of the court”, who may decide to: • impose, on the witness who unduly fails to attend or refrains from giving testimony, the penalties stipulated in the laws in force in the state; • order a third party to produce any documents in its possession that are necessary to decide on the dispute; or • issue orders for judicial delegation. These powers allow an arbitral tribunal to access the president of the federal or local appeal court and require the production of evidence.
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