Dispute Resolution 2011 - Habib Al Mulla

Habib Al mulla & Co United ArAb emirAtes
31 enforcement
What procedures exist for enforcement of foreign and domestic
awards?
To ensure recognition and enforcement, domestic awards have to
undergo a validation/ratification process before the UAE courts. This
process is based on an ordinary court action, resulting in an order of
recognition and enforcement by the competent court of first instance,
which in turn is subject to the ordinary channels of appeal before the
UAE courts. The UAE courts have become increasingly arbitrationfriendly
and look favourably on the recognition and enforcement
of arbitration awards. There is no time limit for the commencement
of the ratification process. Importantly, the enforcement of an
award is suspended pending completion of the recognition process
(Dubai Court of Cassation, petition No. 265/2007, judgment of
03/02/2008).
The recognition and enforcement of foreign awards is guided by
the applicable bilateral or multilateral conventions listed in answer
to question 21 as well as the New York Convention on the Recognition
and Enforcement of Foreign Arbitral Awards. Generally
speaking, in accordance with those conventions, an award should
be enforced provided it is final and appropriate for enforcement in
the country of origin and it is not contrary to the principle of public
policy as understood in the UAE. It is worth noting in this context
that there are two recent instances of enforcement of foreign awards
in the UAE under the New York Convention (vide Fujairah Federal
Court of First Instance, Case 35/2010, judgment of 27 April 2010;
and Dubai Court of First Instance, Case No. 268/2010, judgment of
12 January 2011). Awards rendered in the Dubai International
Financial Centre (DIFC) are recognised and enforced in the UAE
through a DIFC court order, which is likely enforceable in the UAE as
a foreign judgment (article 7(2), Law No. 12 of 2004 in respect of the
Judicial Authority at the Dubai International Financial Centre). Recognition
and enforcement of DIFC awards before the Dubai courts is
facilitated by reference to the 2009 Memorandum of Understanding
Between Dubai Courts and DIFC Courts (which entered into force as
from 16 June 2009) and the related Protocol of Enforcement between
Dubai Courts and DIFC Courts, provided the awards are final and
appropriate for enforcement before the DIFC court.
Bar the application of one of the bilateral or multilateral conventions
referred to above (article 238, CPC), the enforcement of foreign
awards follows the same rules as the enforcement of foreign judgments
(article 236, CPC). The UAE courts may refuse enforcement
of a foreign award on grounds such as:
• the lack of proper jurisdiction of the tribunal at the place of
arbitration;
• the deficient issuance of the arbitration award at the place of
arbitration;
• the improper summoning or representation of one of the parties
in the foreign arbitration proceedings;
• the contradiction of the foreign award with a previous UAE judgment
or its violation of public policy or bonos mores as understood
in the UAE (article 235, CPC).
Importantly, recognition and enforcement is based on a principle
of mutual recognition, whereby the UAE courts will only apply the
provisions under article 235 CPC in relation to awards issued in
countries that, in turn, recognise and enforce UAE awards (article
235(1), CPC).
32 Costs
Can a successful party recover its costs?
Costs usually follow the event, namely, the loser pays, even though
the arbitrators retain some discretion to allocate costs and fix their
own fees (subject to the determination of fees and costs in accordance
with fee and costs schedules consecrated by the governing institutional
rules, vide DIAC).
An arbitration tribunal may award all kinds of costs, including
arbitration fees and expenses. Counsel fees may also be recovered
in full.
Alternative dispute resolution
Habib Al mulla & Co
33 types of Adr
What types of ADR process are commonly used? Is a particular ADR
process popular?
The following types of ADR are occasionally used in the UAE.
mediation and conciliation
There are no particular court procedures that prescribe either of these
two methods of alternative dispute resolution; parties nonetheless
routinely provide in their commercial agreements for a tiered form
of dispute resolution, mediation or conciliation being followed by
a more formal dispute resolution procedure, such as arbitration or
litigation. Any settlements reached through mediation or conciliation
are contractual in nature and can be enforced as contracts before the
UAE courts. At any stage in the proceedings before the UAE courts,
the parties are allowed to file settlement agreements. Any court fees
paid ad datum will be forfeited.
expert determination
Expert determination is only rarely used as a dispute resolution
mechanism. As expert determination is usually used to determine
uncertain parameters, such as a particular value or a fair price,
Karim nassif karim.nassif@habibalmulla.com
Gordon blanke gordon.blanke@habibalmulla.com
Level 14, 014 Tower Tel: + 971 4 423 0000
Al Khail Road Fax: +971 4 447 9777
Business Bay www.habibalmulla.com
Dubai
United Arab Emirates
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