This article was originally published on Thomson Reuters Practical Law.
The Emirates Maritime Arbitration Centre (EMAC) was officially launched in November 2016. It signifies an important push by the United Arab Emirates (UAE) to promote a specialised regional maritime dispute resolution institution. Due to growing maritime activity, EMAC aims to provide the finest arbitration services in the region with arbitrations seated in the Dubai International Financial Centre (DIFC), unless otherwise agreed, under the (pro-arbitration) DIFC Courts’ supervisory jurisdiction. In addition, EMAC’s role extends to supervision and promotion of other dispute resolution mechanisms, including mediation. EMAC enjoys financial and administrative independence and its governance structure is composed of a Board of Trustees, an Executive Committee and a Secretariat.
EMAC’s website provides information as to the admission criteria for the arbitration and mediation panels, forms for those who wish to register as arbitrators or mediators, model clauses, standard forms and the EMAC Arbitration and Mediation Rules (both effective from 23 June 2016). Separate fees and costs structures are detailed for the arbitration and mediation processes. The former provides for registration and institutional administrative fees varying according to dispute value, whereas the mediation institutional fees are fixed. As is common, the fees of the arbitrators and mediators are not set but are determined on an hourly basis in consultation with the arbitrators/mediator, the parties and EMAC. Online payment will be made available in due course.
Much of the work, including the filing and some case management, can be done online. In due course, EMAC plans to create a complete online platform for case management. This will include a preliminary review of the documents filed and whether they meet the respective filing criteria, sharing of filed documents between the parties, EMAC and arbitrators/mediators, and, where applicable, scheduling of hearings and enabling online meetings.
Regarding arbitration, EMAC offers a hybrid-form, ad hoc arbitration with light-touch case management powers granted to the Executive Committee. In line with other arbitral institutions, EMAC has a number of modern initiatives and the articles of the Arbitration Rules comply with the latest international best practice, being largely modelled on the UNCITRAL Arbitration Rules 2010. It is only possible to comment on some of the features here.
Emergency arbitration is possible in cases of exceptional urgency (Article 12). At any time prior to the formation of the arbitral tribunal, any party may apply in writing to the Secretariat for the immediate appointment of a temporary sole arbitrator to conduct emergency proceedings pending the formation of the arbitral tribunal. If the application is granted, the Executive Committee appoints a temporary arbitrator to conduct the emergency proceedings in any manner it determines appropriate, taking into account the:
- Nature of the emergency proceedings.
- Need to afford to each party, if possible, an opportunity to be consulted.
- Claim and reasons for emergency relief.
- Parties’ further submissions.
The temporary arbitrator may hold any hearing and shall decide on the claim for emergency relief, order or award, as soon as possible, and in all cases no longer than 14 days following its appointment. Any relief order or award made by the temporary arbitrator may be subsequently confirmed, varied, discharged or revoked in whole or in part by the arbitral tribunal for the main proceedings.
Fast-tracking (expedited arbitration) is available (Article 50) and arbitrators can opt to proceed on the basis of documents only (Article 18). Under Article 50, fast-tracking is immediately applied for cases below seven million dirhams (approximately US $1.9 million). However, the parties may agree to select the fast track rules on amounts exceeding these sums provided that they make their selection before the appointment of the arbitral tribunal, otherwise the tribunal’s approval is required. The award must usually be issued within a period of time not exceeding three months from the date of the transmission of the file to the arbitral tribunal.
Unlike the UNCITRAL 2010 position, unless the parties agree otherwise or EMAC decides that three are appropriate, the default position is to have one arbitrator tribunals (Articles 8 and 50(6)). In fast track arbitrations in which the amount claimed does not exceed one million dirhams (approximately US $270,000) the tribunal must be composed of a sole arbitrator appointed by the Executive Committee. The default position has the potential for allowing procedural and cost efficiency, since sole arbitrators will be able to respond more quickly to parties than where the decision may have to be made by three arbitrators.
Tribunals are empowered under Article 28 to issue interim measures, including but not limited to injunctions, restraining orders and dispositions. Under this, orders can, for example, specifically be made to sell perishable assets and for escrow accounts. Under Article 36, a tribunal must issue the final award 90 days from when hearings are deemed closed, unless this is extended by the Executive Committee, thus ensuring awards are rendered within a reasonable time.
Being seated in the DIFC (in the absence of a choice to the contrary) means that EMAC awards recognised and ordered to be enforced by the DIFC Courts can be enforced:
- Either in the Dubai courts or in other Emirate courts without review of the underlying merits.
- Regionally under bilateral and multilateral treaties.
Thus the intention is to ensure timely and cost effective determination of disputes with outcomes that can be enforced regionally and internationally. This is also the case for the mediation rules, now briefly considered.
Under the EMAC Mediation Rules, if parties fail to appoint a mediator, EMAC can do so, and the parties having the right to accept or reject such an appointment within one week (Article 6). The intention is for mediation to take place fairly swiftly. The mediator is tasked with completing his or her assignment within 30 days from the date of notification to assume the task (Article 8), although the Secretariat can extend this to up to 90 days from the date of notification to assume the task (Article 9). If the parties reach settlement, this can be registered in writing in the form of an agreed arbitration award made by consent, in which case the mediator shall act as an arbitrator and is not bound to give reasons upon which it is based (Article 11). The latter will allow settlements to be enforced as arbitral awards without requiring fresh proceedings against defaulters.
EMAC aims to provide a modern dispute resolution offering in the region for those involved in the maritime industry by adopting international best practice, coupled with light touch case management. Parties should be encouraged by the content of the EMAC rules, EMAC’s seat in the DIFC and the access to the DIFC courts’ enforcement mechanisms.