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Arbitral proceedings

Starting an arbitration proceeding

What is needed to commence arbitration?

Article 28 of the DIFC Arbitration Law provides that, subject to any agreement between the parties (eg, contained in any agreed arbitration rules), an arbitration is commenced on the date on which a request for that dispute to be referred to arbitration is received by the respondent. 

Limitation periods

Are there any limitation periods for the commencement of arbitration?

No such limitation periods are identified in the DIFC Arbitration Law.  

Procedural rules

Are there any procedural rules that arbitrators must follow?

Under Article 26(1) of the DIFC Arbitration Law, arbitrators must follow the procedural rules selected by the parties.

Pursuant to Article 26(2), where the parties have not agreed on procedural rules or where the relevant procedural rules are silent on any particular matter, the tribunal may, subject to the provisions of the DIFC Arbitration Law, conduct the arbitration in such manner as it sees fit.

Under Article 30(1) of the DIFC Arbitration Law, unless the parties have agreed otherwise, the claimant shall state:

  • the facts supporting its claim;
  • the points at issue; and
  • the relief or remedy sought.

Likewise, the respondent shall state its defence in respect of these particulars. Under Article 30(2), a party may amend or supplement its claim or defence at any time, unless the tribunal believes it inappropriate to do so by reason of delay. 

Dissenting arbitrators

Are dissenting opinions permitted under the law of your jurisdiction?

There are no provisions under the DIFC Arbitration Law which prohibit arbitrators from issuing dissenting opinions. 

Judicial assistance

Can local courts intervene in proceedings?

Article 11 of the DIFC Arbitration Law lists the articles pursuant to which the DIFC courts will have the authority to perform functions of arbitration assistance and supervision. 

The DIFC court may:

  • decide on a challenge against an arbitrator (Article 19(3));
  • enforce an interim measure ordered by a tribunal (Article 24(2));
  • provide assistance in taking evidence (Article 34);
  • set aside an award of a tribunal (Article 41);
  • recognise and enforce an award (Articles 42 and 43); and
  • refuse to recognise or enforce an award (Article 44).

Subject to any process agreed between the parties in the arbitration agreement, the DIFC court may:

  • order the disclosure of information relating to the arbitral proceedings (Article 14);
  • appoint an arbitrator (Articles 17(3), 17(4) and 17(5));
  • terminate the mandate of an arbitrator (Article 20(1)); 
  • make an order relieving an arbitrator who resigns of any liability incurred by reason of his or her resignation, together with any order it sees fit with respect to entitlement to fees and expenses (Article 21(2));
  • issue a decision in respect of the jurisdiction of the tribunal (Article 23(3)); and
  • determine the amount of fees and expenses payable to the tribunal (Article 39(5)).

Can the local courts assist in choosing arbitrators?

Under Article 17(3)(c) of the DIFC Arbitration Law, the DIFC courts shall make any default appointment on behalf of a party or the party-nominated arbitrators, and shall appoint the entire tribunal where multiple parties have been unable to agree to arrange themselves into claimant and respondent groups.

What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration? Can the courts compel parties to arbitrate? Can they issue subpoenas to third parties?

Under Article 32(a) of the DIFC Arbitration Law, where a claimant without sufficient cause fails to file a statement of claim, the tribunal is obliged to terminate the proceedings. Where a respondent fails to file a statement of defence, the tribunal must continue with the proceedings without treating the respondent’s failure as an admission of the claim (Article 32(b)). This means that the claimant must proceed to prove its case. Where any party fails to produce documents or attend a hearing, the tribunal may continue the proceedings and make an award on the basis of the evidence before it (Article 32(c)).  

Under Article 34 of the DIFC Arbitration Law, the tribunal or a party with the approval of the tribunal may request assistance from the DIFC court in taking evidence. The DIFC court may execute the request within its competence and according to its rules on taking evidence.

Third parties

In what instances can third parties be bound by an arbitration agreement or award?

No express provisions in the DIFC Arbitration Law allow third parties to be joined to arbitration proceedings or be bound by arbitration awards. 

Default language and seat

Unless agreed by the parties, what is the default language and location for arbitrations?

Under Article 29 of the DIFC Arbitration Law, where the parties have not agreed on the language of the arbitration proceedings, the tribunal shall determine the language or languages to be used.

Article 27(1) of the DIFC Arbitration Law provides that, absent the parties’ agreement, where any dispute is governed by DIFC law, the seat of the arbitration shall be the DIFC.

Gathering evidence

How is evidence obtained by the tribunal?

Article 24(1) of the DIFC Arbitration Law provides that the tribunal will have the power to order interim measures, including preserving evidence that may be relevant and material to the resolution of the dispute. 

What kinds of evidence are acceptable?

Documentary, witness and expert evidence are all the norm.  Whether documentary disclosure is extensive or limited and the process for factual witness and expert evidence is at the discretion of the tribunal, within the parameters set by any institutional arbitration rules agreed by the parties.

Confidentiality

Is confidentiality ensured?

Article 14 of the DIFC Arbitration Law provides that, unless otherwise agreed by the parties, all information relating to the arbitration proceedings shall be kept confidential, except where disclosure is required by an order of the DIFC court.

Can information in arbitral proceedings be disclosed in subsequent proceedings?

Article 14 of the DIFC Arbitration Law provides that, unless otherwise agreed by the parties, all information relating to the arbitration proceedings shall be kept confidential, except where disclosure is required by an order of the DIFC court. 

Ethical codes

What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?

The DIFC Arbitration Law does not refer to any ethical codes for arbitrators or counsel. The government of Dubai Legal Affairs Department issued a draft Charter for the Conduct of Advocates and Legal Consultants in the Emirate of Dubai in 2015 (at the time of writing, it remains in draft form).

In practice, counsel and arbitrators will be bound by the ethical codes of their professional bodies and the DIFC Code of Conduct.

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