UAE Law and Practice Contributed by: Gerard Moore, Patricia Ugalde Revilla, Antonin Sobek and Alanood Sinjab, Mayer Brown
provision rendering pre-award waivers ineffective. This suggests that such waivers could be valid, but the position has not yet been tested by the DIFC courts. • ADGM: Section 59 of the ADGM Arbitration Regu - lations expressly permits parties, by agreement, to waive the right to set aside the award, fully or for specified grounds. Even so, under Section 59 (2), such an award may still be denied recognition or enforcement within the ADGM on the grounds set out in Section 61 (non-arbitrability or conflict with UAE public policy). Post-award waiver may occur by failing to bring a set-aside application within the applicable time limit (30 days onshore, three months offshore – see 11.1 Grounds for Appeal ) or by express waiver after receiv - ing the award. 11.3 Standard of Judicial Review There is no review of the merits. An action to set aside, or to resist enforcement of, an award is not an appeal. The court confines itself to the limited grounds in Arti - cle 53 of the UAE Arbitration Law (and the equivalents in Article 41 of the DIFC Arbitration Law and Section 58 of the ADGM Arbitration Regulations). It will not re-examine the tribunal’s findings of fact, assessment of evidence or application of the law. The standard on the merits is therefore deferential rather than de novo. The UAE acceded to the New York Convention, with - out any reservations, by Federal Decree No 43 of 2006 (in force from 21 August 2006), giving the New York Convention the force of domestic law. Foreign awards are recognised and enforced subject only to the lim - ited grounds for refusal in Article V. The offshore regimes give effect to the New York Con - vention in the same way: the DIFC Arbitration Law (Article 42) and the ADGM Arbitration Regulations (Part 4) provide for the recognition and enforcement of New York Convention awards and require compli - ance with any applicable enforcement treaty. 12. Enforcement of an Award 12.1 New York Convention
The UAE is also party to: • the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, which allows for ICSID awards to be direct - ly enforceable as final judgments in each contract - ing state (Article 54); • the Gulf Cooperation Council Convention for the Enforcement of Judgments (the “GCC Conven - tion”), Letters Rogatory and Judicial Notices, which provides for mutual enforcement of arbitral awards among GCC member states in the same manner as judicial judgments (Article 12); and • the Riyadh Arab Agreement for Judicial Coopera - tion, which facilitates recognition and enforcement of arbitral awards across Arab League member states (Article 37). 12.2 Enforcement Procedure The procedures and standards for enforcement differ between the onshore and offshore regimes, although the UAE, DIFC and ADGM courts are each generally supportive of the recognition and enforcement of arbi - tral awards. • Onshore: an application to enforce is made to the President of the competent Court of Appeal (or a delegated judge), supported by the award, the arbitration agreement and an Arabic translation where required. The enforcement order must be issued within 60 days, unless a ground for annul - ment is established, and is subject to appeal within 30 days (see Articles 55 and 57 of the UAE Arbitra - tion Law). • Offshore: recognition and enforcement are sought from the DIFC court (Article 42 of the DIFC Arbi - tration Law) or the ADGM court (Section 61 of the ADGM Arbitration Regulations). Unlike the onshore regime, neither the DIFC Arbitration Law nor the ADGM Arbitration Regulations prescribe a mandatory timeframe for the court to determine an enforcement application. Once recognised, the award is enforced as if it were a judgment of that court. An award that has been annulled or suspended at the seat is, in principle, unlikely to be enforced, as this is a recognised ground for refusal (Article V(1)(e)
1057 CHAMBERS.COM
Powered by FlippingBook