UAE Trends and Developments Contributed by: Alim Khamis, Gateley Middle East
Trends In a continuing trend, construction and real estate dis - putes dominate the UAE institutional caseload and account for more than two-thirds of cases at arbi - trateAD (a major arbitral institution in Abu Dhabi). The same sectors account for approximately 60% of the Dubai International Arbitration Centre’s caseload. While construction remains dominant, certain trends are emerging across a variety of sectors in arbitration generally. Increasingly, parties are seeking to negoti - ate and agree a more comprehensive dispute resolu - tion mechanism as part of their contracts, with arbitra - tion stipulated as the last resort. The practical effect of this is that dispute resolution is becoming a longer process given that several steps must be completed under the contract prior to proceeding to arbitration if the matter is not settled beforehand. Recourse to arbitration is not a new development even if the contractual steps required to proceed to arbitration are more extensive and bespoke than in prior years. Such mandatory pre-arbitration steps include, but are not limited to, a non-binding expert opinion to be rendered within a narrow timeframe or the reintroduction of Dispute Adjudication Boards, which were not commonly used in the UAE previously (and, in fact, expressly removed from contracts). arbi - trateAD’s introduction of mediation and adjudicator- appointment rules reflects this evolving landscape. Recent geopolitical events have also resulted in dis - putes that require immediate management prior to reaching arbitration, considering that commercial par - ties may prefer to preserve supply chain arrangements pending a final determination on the merits in arbi - tration. Those measures can take the form of emer - gency adjudication, partial settlements or contractual amendment. Here, the relevant trend is not simply more negotiation, but the use of alternative dispute resolution to keep projects afloat and supply chains operational in exceptional circumstances. Another notable and welcome trend is one regarding arbitrator authority. In past years, it was common for a sole arbitrator or panel of arbitrators to consent to sev - eral extensions of time or tolerate procedural delays in order to avoid any allegations of arbitrator bias or
procedural unfairness. Over the past 12 months, there appears to have been a modified approach by which arbitrators adhere to procedural timetables agreed by the parties and grant short extensions in exceptional circumstances. This trend demonstrates that arbitra - tors can keep to agreed timetables and ensure that an arbitration progresses in a timely manner while also affording parties procedural fairness. For the first time in its history, the DIFC Court of Appeal upheld a challenge to an arbitral award in the case of Oheo Bank v Parker [2025] DIFC CA 006. Briefly, the facts were as follows: An arbitral tribunal dismissed a customer’s complaints relating to fraud and negligence against its bank, save for breach of regulatory duty, for which the bank was held liable. However, the unusual feature of this case was that the successful ground of breach was never pleaded and first presented only in a post-hearing brief after the hearing was concluded. Case Developments DIFC Court of Appeal The question for the Court of Appeal was whether the bank was deprived of natural justice and unfairness considering that it was not given an opportunity to defend itself against the one claim that was upheld. The Court of Appeal held that to ensure fairness for both parties, the unpleaded claim could have been put to the bank such that the bank could have responded via a supplemental post-hearing brief. As a result, the Court of Appeal set aside parts of the arbitral award containing the majority’s decision on breach of regulatory duty. The decision is significant because it demonstrates that while the UAE is an arbitration-friendly jurisdic - tion, arbitral awards will be scrutinised carefully and potentially set aside if fundamental principles of natu - ral justice or fairness are not met. Court of Cassation A separate case decided by the Court of Cassation addressed a perennial matter regarding the assign - ment of rights and arbitration agreements. The case concerned a third-party funding agreement. Under
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