Recognition and enforcement of foreign arbitral award

15 Feb, 2021
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Mohamed Abdelrehiem

Partner - Head of Litigation UAE, Ibrahim & Partners

1. 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. 

1.1 In the UAE, the law governing arbitral proceedings and the recognition and enforcement of arbitral awards is the UAE Federal Arbitration Law no. 6 of 2018 issued on 15 May 2018 (the “Arbitration Law”). The Arbitration Law is a recent development that has introduced substantial new procedures for enforcing domestic arbitral awards, but it did not address the process when it comes to foreign arbitral awards.

1.2 As a result, Cabinet Decision no. 57 of 2018 was issued on 9 December 2018 (the “Cabinet Decision”) to address the enforcement of foreign arbitral awards more clearly. Pursuant to the Cabinet Decision, a new set of rules were introduced to regulate the enforcement of foreign arbitral awards and, as a result, the UAE has two different regimes for recognition and enforcement of arbitral awards. One for domestic awards and one for foreign awards. 

1.3 In this article, we will address the main procedures of the Cabinet Decision to enforce a foreign arbitral award in the UAE. 

2. 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 number 57/2018 as follows:

2.1.1 a petition for enforcement must be submitted to the Court of Execution where execution is being sought. 

2.1.2 the execution judge must issue an order within a maximum of three days from the date of filing, and 

2.1.3 the order of the execution judge is subject to the usual channels of judicial appeal.

2.2 The execution judge will only issue an order of execution after checking that the following conditions are met, which is similar to the ones under the New York Convention:

2.2.1 the courts of the UAE had no jurisdiction to review the merits of the award and that the tribunal which issued the award did have jurisdiction in accordance            with the rules governing international judicial jurisdiction laid down in their law; 

2.2.2 the award or order was issued by a court or tribunal having jurisdiction in accordance with the law of the country in which it was issued; 

2.2.3 the parties to the action in which the foreign award was issued were summoned to attend and were correctly represented; 

2.2.4 the award or order has acquired the force of res judicata in accordance with the law of the court or tribunal that issued it, and 

2.2.5 the award does not conflict with a judgment or order already issued by a court in the UAE and contains nothing that conflicts with morals or public policy              matters in the UAE. 

2.3 Finally, it is important to note that the above process was introduced in 2018 in order to facilitate the execution process. Nevertheless, it is also important to note that it is a new process that has not been thoroughly tested by the courts, and there is, naturally, a degree of judicial uncertainty as a result.

2.4 Documents and Information Required 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. In the event that the agreement to arbitrate is contained in a contractual clause, then the full contract will be required.

2.4.3 an Arabic translation of the arbitral award, attested by a competent authority, if the award is not issued in Arabic; and 

2.4.4 Proof of serving the final arbitral award to the parties following its issuance date. 

3. Conclusion 

On balance, we consider that this new regime provides a more streamlined way for enforcement that is close to the enforcement of a local court judgment. However, due to the fact that both regimes are relatively new, there is still some ambiguity as to the court’s direction and application of the new procedures. Based on our experience under the old regime, local courts are likely to continue to entertain public policy and jurisdiction arguments as substantial grounds to fight enforcement of arbitral awards, and in particular foreign arbitral awards. 

 

Mohamed Abdelrehiem

Partner 
Ibrahim & Partners 

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