Recognition and enforcement of foreign arbitral award
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Introduction
There are multiple jurisdictions in the UAE that allow for the recognition and enforcement of arbitral awards, each based on different laws and procedures.
1. Legal Framework
1.1 In the UAE, the law governing arbitral proceedings and the recognition and enforcement of arbitral awards is UAE Federal Arbitration Law No. 6 of 2018, issued on 15 May 2018 (the “Arbitration Law”). The Arbitration Law introduced substantial new procedures for enforcing domestic arbitral awards; however, it did not clearly address the enforcement of foreign arbitral awards.
1.2 As a result, Cabinet Decision No. 57 of 2018, issued on 9 December 2018 (the “Cabinet Decision”), was introduced to address the enforcement of foreign arbitral awards more clearly. Pursuant to the Cabinet Decision, a new set of rules was introduced to regulate the enforcement of foreign arbitral awards. Consequently, the UAE now operates under two distinct regimes for the recognition and enforcement of arbitral awards: one applicable to domestic awards and another applicable to foreign awards.
1.3 This article addresses the main procedures under the Cabinet Decision for enforcing a foreign arbitral award in the UAE.
Procedure for Recognition and Enforcement of Foreign Arbitral Awards
Onshore Regime
2.1 The execution procedure for a foreign arbitral award is set out in Article 85 of Cabinet Resolution No. 57 of 2018, as follows:
2.1.1 A petition for enforcement must be submitted to the Court of Execution where enforcement is sought.
2.1.2 The execution judge must issue an order within a maximum of three (3) days from the date of filing.
2.1.3 The execution judge’s order is subject to the usual channels of judicial appeal.
2.2 The execution judge will issue an order for enforcement only after verifying that the following conditions are satisfied, which are broadly aligned with those under the New York Convention:
2.2.1 The UAE courts do not have jurisdiction to review the merits of the award, and the tribunal that issued the award had jurisdiction in accordance with the rules governing international judicial jurisdiction applicable in its legal system.
2.2.2 The award was issued by a court or tribunal having jurisdiction under the law of the country in which it was rendered.
2.2.3 The parties to the proceedings were duly summoned and properly represented.
2.2.4 The award has acquired the force of res judicata in accordance with the law of the court or tribunal that issued it.
2.2.5 The award does not conflict with any judgment or order previously issued by a UAE court and does not contravene UAE public policy or morals.
2.3 It is important to note that this enforcement process was introduced in 2018 to facilitate and streamline execution procedures. However, as this remains a relatively new regime, it has not yet been extensively tested before the courts, and a degree of judicial uncertainty remains.
Documents and Information Required for Recognition and Enforcement
2.4 The following documents and information must be submitted by the party seeking recognition and enforcement of a foreign arbitral award:
2.4.1 The original arbitral award.
2.4.2 A copy of the arbitration agreement. Where the arbitration agreement forms part of a contractual clause, the full contract must be provided.
2.4.3 An Arabic translation of the arbitral award, duly attested by a competent authority, if the award was not issued in Arabic.
2.4.4 Proof that the final arbitral award was duly served on the parties following its issuance.
Conclusion
On balance, this new regime provides a more streamlined approach to enforcement, bringing it closer to the execution of a domestic court judgment. Nevertheless, given that both enforcement regimes remain relatively new, some ambiguity persists regarding the courts’ interpretation and application of the new procedures.
Based on experience under the previous regime, UAE courts are likely to continue to entertain public policy and jurisdictional arguments as substantive grounds for resisting enforcement, particularly in relation to foreign arbitral awards.
For Further Information
Ahmed Ibrahim
Managing Partner
Email: [email protected]Malack El Masry
Partner
Email: [email protected]