Author(s):A Ibrahim

The Role of National Judiciary In Arbitrator's Award - United Arab Emirates

The UAE legislator identified Arbitration as a way to settle disagreements between the disputing parties, under the Federal Civil & Commercial Transactions Procedures Laws, Articles 203 to 218. The Law did not stipulate any certain conditions precedent on the parties to resort to Arbitration. However, the legislator stipulated that there should be an express mutual agreement among them to resort to Arbitration. For instance, in case of a dispute between two parties to a sub-contract, in order for them to resort to Arbitration, the contract should expressly and specifically provides for the Arbitration or they may subsequently agree when the dispute arises to resort to the Arbitration as a way to settle the dispute. Article 203 of the aforesaid law stipulated that the Agreement on the Arbitration should be reduced to writing. The Agreement on Arbitration shall be between those having the capacity to decide on the right, subject matter of dispute. The said law has excluded the matters in which no conciliation shall be reached, from the Arbitration and obviously in addition to the criminal cases. We would also add the matters related to the Public Order.

The aim of the Legislator from the Arbitration as a way for disputes settlement is that the people may find a quick way for settling their disputes to avoid the slow legal proceedings. This aim has a big note in identifying the jurisdiction of the National Judiciary as to the Arbitration rules. The U.A.E. national law allows the enforcement of the Arbitration award only after being certified. In this respect Article 215 of the aforesaid law stated as follows: “The Arbitrator’s award may only be enforced after being certified by the court where the award has been submitted to its clerical office, after seeing the award and the arbitration deed”.

The court may not examine the subject matter of dispute which has already been settled through arbitration, under any justification, when certifying the award. If the arbitration award omitted any requests by the arbitration parties, the court who examine the certification may return the same to the single arbitrator or to the arbitration panel, who issued the award, which Article 214 of the same law stipulated. Moreover, the last Article also stated that the court may return the award to the originator for explanation and interpretation, if it is not specific and unenforceable in its present form, without any interpretation. Obviously the Legislator has blocked any justifications for the court considering the certification, to interfere with the award to be certified.

When the arbitration award is rendered, it shall be certified by national courts, which should not interfere with such award. It is legally established that the court, examining the certification case, may not question the arbitrator judgment. All that is related to the arbitrator judgment in the dispute, whether factually or legally is beyond the court control. Dubai Court of Cassation, in this respect, stated as follows: “According to Articles 212 and 216 of the Civil Procedures Code, the court, while considering the certification case, may not address the merit aspect and the extend of consistency with the law or facts. So, any dispute raised by an opponent to challenge the award and related to the judgment of the arbitrator in the dispute or the invalidity or adequacy of the ground upon which he established his award, shall be unacceptable”. (Challenge No. 95/2008 Civil, Session of 25/05/2008).

Now the question to be raised is: If the national courts may not question the arbitrator’s awards even if they are not consistent with the law or facts, then what is their role in certifying the arbitration award?

The role of the national judiciary is limited to certifying the arbitrator’s award by merely examine the award and the arbitration deed and ensure that nothing prevents the enforcement of such award. They may correct any material errors in the arbitration award. The court examining the certification case may not consider any matters that question the arbitration award, unless such matters are related to the Public Order issues, such as the subject of dispute may not be examined through arbitration.

However, the court examining the certification of the arbitration award may consider its invalidity based on a petition of course submitted by the Respondent i.e. Defendant in the certification case. Nevertheless, the latter may not rely in case for the award invalidity, on the arbitrator judgment from the legal and merit viewpoint. We may address the reasons upon which the Respondent can rely upon when requesting to invalidate such award in the next article.