On 3 May 2018, Sheikh Khalifa bin Zayed Al Nahyan, the President of the UAE, signed the first-ever UAE Federal Arbitration Law (Federal Law No. 6 of 2018) (the “Arbitration Law”). When it comes into effect, the Arbitration Law will change fundamentally the landscape for arbitration in the UAE.
Prior to the Arbitration Law, arbitration proceedings in the UAE were subject to a chapter (Articles 203 to 218) of the UAE Federal Civil Procedure Law (Law No. 11 of 1992) (the “Arbitration Chapter”). These provisions did not reflect international best practice and were problematic in a number of respects. This led to various “guerrilla tactics”, through which recalcitrant parties would seek to disrupt arbitration proceedings and to avoid adverse arbitral awards on technical or objectively unjustifiable grounds. The many potential pitfalls for the unwary served to increase the costs of arbitrating in the UAE, and diminished the reputation of the UAE as an “arbitration-friendly’ jurisdiction.
Many of the problems that arose under the Arbitration Chapter will be swept away by the Arbitration Law. For example, arbitrators will no longer need to be present physically in the UAE when signing arbitral awards, and there is a far greater degree of party autonomy in various aspects of the arbitration process. The use of technology is also now specifically permitted in a number of respects, including the use of videoconferencing for hearings and the use of email for both the formation of arbitration agreements and the giving of notices. The Arbitration Law, which is based largely (but not exclusively) on the UNCITRAL Model Law, also incorporates into UAE law various internationally-recognised concepts, including those of competence-competence (the power of a tribunal to decide on its own jurisdiction) and the separability of arbitration agreements.
Although the Arbitration Law is undoubtedly positive, there are some pre-existing issues that still remain, together with a number of new potential problems. For example, the Arbitration Law does not remove one of the most common grounds upon which parties seek to avoid adverse arbitral awards, namely the requirement that arbitration agreements must be executed by an individual with specific authority to agree to arbitration. As described below, there are also potential doubts as to the precise scope of application of the Arbitration Law, and at least the possibility that arbitral awards may be reviewed and set aside where the UAE courts consider that they are wrong on issues of law.
The Arbitration Law is likely to come into effect in mid-July 2018 (one month after publication in the official gazette), and will apply to both ongoing and future arbitration proceedings. When it comes into effect, the Arbitration Law will replace and repeal both the Arbitration Chapter and any other prior inconsistent legal provisions.
Key features of the Arbitration Law
1. Scope of application
Article 2 of the Arbitration Law defines the scope of its application. Once it comes into effect, the Arbitration Law will apply:
• To arbitration proceedings that take place in the UAE, except where the parties have agreed to apply another system of law and where that other system does not conflict with the public policy and public morals of the UAE.
• To international commercial arbitrations that take place overseas, where the parties agree to subject them to the Arbitration Law.
• To disputes arising out of a legal relationship that is regulated by UAE law, except as excluded by special provisions.
There are, unfortunately, a number of issues that arise from the defined scope of application of the Arbitration Law. First, and most fundamentally, the Arbitration Law would appear not to apply to the vast majority of foreign arbitral awards that are brought to the UAE for the purposes of enforcement. This means that the Arbitration Law is essentially domestic in application, and so of no direct assistance to parties seeking to enforce their overseas arbitral awards in the UAE.
Second, there is no express exclusion for arbitrations seated in either the DIFC or the ADGM. This is unfortunate as some may now try to argue that DIFC and ADGM seated arbitrations are subject to the Arbitration Law, rather than their own arbitration provisions. This is not entirely far-fetched, as it is at least arguable that Article 2(1) of the Arbitration Law is inconsistent with earlier provisions that disapply UAE Federal civil and commercial laws in the financial free zones (see Article 3 of Federal Law No. 8 of 2004). Article 60 of the Arbitration Law provides specifically that it repeals any other contradictory provision of law.
One potential answer to this may be that Article 2(1) of the Arbitration Law goes on to provide that the Arbitration Law does not apply where the parties have agreed to apply another system of law (and where that other system of law does not conflict with the public policy and public morals of the UAE). If parties have chosen to seat their arbitration in the DIFC or ADGM, then they have agreed to subject their arbitration to the arbitration provisions of either the DIFC or the ADGM. In that case, Article 2(1) of the Arbitration Law should give effect to that choice. Absent specific contractual wording to this effect, however, there is a risk that a judge would find that there was no agreement for the purposes of Article 2(1) of the Arbitration Law.
Third, it is far from clear precisely what Article 2(3) of the Arbitration Law is intended to address. It may, for example, be broad enough to cover all agreements that are subject to UAE law. If so, then it will potentially expand the territorial scope of application of the Arbitration Law significantly.
2. Formation of arbitration agreements
The Arbitration Law materially improves upon the Arbitration Chapter regarding the content and form requirements for arbitration agreements. In particular:
• Whilst arbitration agreements must still be in writing (Article 7(1)), the Arbitration Law provides expressly that they can be concluded through an exchange of correspondence, including an exchange of emails (Article 7(2)(a)).
• Arbitration agreements also satisfy the “in writing” requirement if a written contract incorporates by reference an arbitration clause that is contained in another document (including standard form terms and conditions) (Articles 5 and 7(2)(b)).
• There will also be deemed to be a valid arbitration agreement if the parties agree to arbitrate orally a dispute during court litigation (Article 7(2)(c)), provided that is recorded in a judgment of court, and where one party asserts the existence of an agreement to arbitrate in either court or arbitration proceedings and the other party does not object to that assertion (Article 7(2(d)).
• Article 6 of the Arbitration Law provides for the separability of the arbitration agreement from the rest of the contract. As a result, the arbitration agreement is not affected by the invalidity, termination or recission of the main contract, except on grounds of capacity.
Despite these improvements, the Arbitration Law remains problematic with regard to issues of capacity. Article 4(1) of the Arbitration law provides expressly that a valid arbitration agreement can only be concluded on behalf of a legal entity by a representative with capacity to agree to arbitration (Article 4(1)). This is then reflected in Article 55(1)(c) of the Arbitration Law, which provides that a lack of authority to agree to arbitrate is a ground upon which an arbitral award can be set aside. Although issues of capacity should now be determined with reference to the law under which the relevant entity is constituted, in practice it will likely remain essential at the contract stage to ensure that there are special powers of attorney in place, and that those powers of attorney provide specifically for the power to enter into an arbitration agreement.
3. Constitution and composition of the tribunal
Article 10 of the Arbitration Law sets out various mandatory restrictions on who can (and who cannot) act as an arbitrator:
• An arbitrator must not be a minor, placed under legal guardianship or have been declared bankrupt (unless he or she has been “rehabilitated”).
• An arbitrator cannot have been deprived of his or her legal rights by virtue of having been convicted of a felony or a misdemeanour involving a breach of honour or trust.
• Perhaps most controversially, an arbitrator cannot be a member of the board of trustees or administrative body of an “arbitration foundation competent to regulate arbitration” in the UAE. The precise effect of this restriction is unclear, although it may potentially disqualify board members and/or trustees of institutions such as DIAC and DIFC-LCIA from sitting as arbitrators in arbitrations to which the Arbitration Law applies.
There are no restrictions on gender or nationality of arbitrators, other than those on which the parties agree (Article 10(3)).
Articles 11 to 17 of the Arbitration Law provide a set of “default” provisions, which will apply to the appointment, removal and replacement of arbitrators where the parties have not agreed otherwise. Most commonly, parties will have agreed to a particular set of arbitral rules, which will contain provisions that apply in place of Articles 11 to 17 of the Arbitration Law.
4. Jurisdictional Issues
The principle of competence-competence is reflected in Article 19 of the Arbitration Law. This provides that arbitral tribunals have the power to decide on their own jurisdiction, and to record that determination in either a “preliminary decision” or as part of their final award. In similar terms to the UNCITRAL Model Law, Article 19 goes on to provide a right to challenge a tribunal’s preliminary decision finding that it has jurisdiction before the courts. Such a challenge must be filed within 15 days of the preliminary decision being notified, and the court must make its (unappealable) decision within 30 days of the date on which the case is registered. A challenge to jurisdiction before the court will result in a stay of the arbitration proceedings, unless the arbitral tribunal, on the request of either party, decides that it should continue.
Article 8 of the Arbitration Law provides that the court shall dismiss any action that is covered by an arbitration agreement, providing that the existence of the arbitration agreement is raised before making any other motion or plea on the subject matter of the action, and unless the court decides that the arbitration agreement is invalid or unenforceable. This is substantially the same as the equivalent provision in the UNCITRAL Model Law, and an improvement upon the Arbitration Chapter (which required the existence of an arbitration agreement to be raised at the first hearing, or else the right to arbitrate would be deemed waived).
Article 20 of the Arbitration Law requires jurisdictional objections to be raised by the time the respondent submits its Statement of Defence, at the latest. Where one party considers that a particular matter raised by the other side is outside the jurisdiction of the tribunal, it is required to make that objection immediately upon that matter being raised by the other side. In both cases, however, the tribunal can consider a jurisdictional objection made later than this if it considers that the delay is excusable. Article 20(2) provides specifically that a party does not waive its jurisdictional objections by appointing an arbitrator or by participating in the appointment process.
Article 25 of the Arbitration Law further provides that a party who continues to participate in an arbitration without raising any objection to a known violation of the arbitration agreement or the law will be taken to have waived his right to rely on this violation subsequently. An objection must be made within seven days from the date that a party becomes aware of a violation, or within the period of time otherwise agreed upon by the parties. There is no equivalent of this provision in the Arbitration Chapter, and its inclusion in the Arbitration Law is significant as it should prevent parties from failing to raise technical or procedural objections contemporaneously, but still seeking to use those issues to try and attack the validity of the award.
5. Powers of the tribunal
The Arbitration Law confers a number of important powers upon arbitral tribunals. For example:
• Article 21 of the Arbitration Law gives tribunals the power to order interim or provisional measures, either on the request of a party or of its own motion. Examples of such measures are provided at Article 21(a) to (e), although this appears intended to be a non-exhaustive list. The examples specified include orders to maintain evidence, to maintain assets or funds against which enforcement may later be sought and to prevent a party from doing something that may prejudice the arbitration process. The powers afforded to the arbitral tribunal under Article 21 may be modified or excluded by agreement of the parties, and a party in receipt of an order for interim or preliminary measures may enforce that order through the courts pursuant to Article 21(4) of the Arbitration Law.
• Articles 18 and 36 of the Arbitration Law empower the tribunal to seek the assistance of the courts in support of arbitration proceedings. Article 18 of the Arbitration Law entitles the courts to order interim or preliminary measures. It can be triggered either at the request of the tribunal or by an application to the court by one of the parties. Article 36 of the Arbitration Law allows the courts to assist in obtaining evidence, including documentary evidence and the attendance of witnesses. Only the tribunal can make a request to the courts under Article 36, which can come either on the tribunal’s own motion or on an application to the tribunal by one of the parties.
• Article 43 of the Arbitration Law allows the tribunal to decide to continue the arbitration proceedings even where there are one or more specific issues that fall outside its jurisdiction, a challenge to the authenticity of a document that has been exhibited, or where criminal proceedings have been started. This contrasts starkly with Article 209 of the Arbitration Chapter, which required the tribunal to suspend the proceedings in each of these circumstances, and which was sometimes abused by parties that wanted an excuse to delay ongoing arbitration proceedings.
6. Conduct of arbitration proceedings and hearings
Whilst there is express recognition of the basic right of the parties to be granted a full and equal right to present their cases (Article 26), the Arbitration Law generally allows for the precise form of procedure to be agreed by the parties. In many cases, of course, the parties will have agreed to a particular set of arbitral rules that affords the power to the tribunal to determine the procedure. In the absence of any other agreement, Articles 28 to 35 of the Arbitration Law provide a form of procedure that is to be followed.
The Arbitration Law deals with some of the issues that arose under the Arbitration Chapter, and which led to confusion and cost amongst arbitrating parties. For example:
• Article 24 of the Arbitration Law allows notices to be given by email and fax.
• Article 28(2)(b) of the Arbitration Law allows both hearings and tribunal deliberations to take place using technology such as videoconferencing or telephone (see also Article 33(b)). Article 35 of the Arbitration Law provides specifically that this applies to the testimony of both fact and expert witnesses, who therefore no longer need to attend a hearing in person to give their evidence or to be cross-examined.
• Article 28(2)(a) of the Arbitration Law allows the tribunal to hold hearings at any location, regardless of the seat of the arbitration.
• Article 33(8) of the Arbitration Law gives the tribunal a wide discretion to determine the rules of evidence that it will apply, to decide on what evidence is to be admitted, to decide when and in what format evidence is to be admitted, and to determine the weight that is to be afforded to each piece of evidence.
Article 33(5) of the Arbitration Law appears to address concerns that first arose in November 2017 regarding the rights of non-UAE citizens to represent parties as advocates in UAE-seated arbitration proceedings. These concerns were based upon a particular reading of Ministerial Resolution No. 972 of 2017 of the Executive Regulations to the Federal Legal Profession Law No. 23 of 1991 (the “Regulations”), which some commentators have argued allowed only individuals who are licensed as advocates to appear in UAE-seated arbitrations. With limited exceptions, only Emiratis are entitled to be registered as advocates. Even though that interpretation of the Regulations was not shared by all members of the UAE legal community, Article 33(5) of the Arbitration Law appears to put the issue beyond doubt as it allows parties to be represented at hearings by “experts and legal attorneys including advocates and others”. To the extent there is any inconsistency, this provision of the Arbitration Law will take priority over the earlier Regulations.
Less positively, the Arbitration Law does not provide that witnesses no longer have to swear an oath before giving their evidence. Instead, Article 33(7) of the Arbitration Law provides that the hearing of witnesses (including experts) shall be conducted in accordance with UAE law, unless the parties agree otherwise. As a result, provisions such as Article 41 of the Law of Evidence in Civil and Commercial Transactions (Law No. 10 of 1992) — which prescribes a specific form of religious oath that witnesses must swear, and also requires the sequestration of witnesses before they have given their evidence — are likely still to be considered relevant.
Nonetheless, the position regarding witnesses is somewhat better than it was under the Arbitration Chapter in two respects. First, Article 33(7) of the Arbitration Law expressly permits the parties to agree to dispense with legal requirements for witness testimony. One of the major issues with the Arbitration Chapter was that witnesses who had provided a written witness statement were required to attend a hearing to swear an oath even if the parties agreed that there was no need for the witness to testify orally. Second, as set out above, Article 25 of the Arbitration Law provides that a party will waive its right to object to a violation of the arbitration agreement or the Arbitration Law if it is not raised within 7 days. This may defeat attempts to overturn arbitral awards on grounds not raised contemporaneously, including the failure by a witness to give evidence under oath.
Very helpfully, many of the pitfalls surrounding the issuance of arbitral awards under the Arbitration Chapter have been removed by the Arbitration Law. For example:
• There is no longer a requirement for arbitrators physically to be in the UAE when signing awards. Pursuant to Article 41(6) of the Arbitration Law, awards can be signed abroad and even may be signed by arbitrators electronically.
• Tribunals now have the power to issue one or more partial awards, including awards disposing of discrete issues or aspects of the case (Article 39(1)). Partial awards can be enforced, apparently in the same way as final awards (Article 39(2)).
• Tribunals now have more time to notify the parties of an award. Under Article 213(3) of the Arbitration Chapter, the tribunal had only five days after the award was issued to deliver the award to the parties. Now, Article 44 of the Arbitration Law provides that the tribunal has up to 15 months from the date on which the award is issued to notify the award to the parties by providing them with an original or a photocopy. This is a positive development as there have been instances in which awards were challenged because they reached one or more of the parties outside of the five-day period provided for under the Arbitration Chapter.
• Article 47(1) of the Arbitration Law provides that the tribunal may withhold its award pending full payment of its fees and expenses. There is, however, a mechanism by which a party can apply to court for an order directing the tribunal to release the award, although this requires proof that the tribunal’s fees and expenses have been paid.
• The Arbitration Law contains specific provisions allowing for applications to the tribunal for an interpretation of an award (Article 49), for the correction of clerical or computational errors by the tribunal (Article 50), and for an additional award in respect of matters not dealt with (Article 51). These provisions are similar to those found in the UNCITRAL Model Law.
Despite these positive developments, the Arbitration Law does not solve at least one of the more well-publicised problems with the Arbitration Chapter. Specifically, the Arbitration Law does not provide the tribunal with the express power to award payment of a party’s legal costs. This is an issue particularly with the DIAC rules, as there has been at least one Court of Cassation decision holding that the DIAC rules do not provide a contractual basis for the tribunal to award legal costs. Although new DIAC rules are expected imminently that should provide that express authorisation, it was hoped by many that this issue would be addressed in the Arbitration Law.
The issue of arbitration costs is addressed at Articles 46 and 33(5) of the Arbitration Law. Articles 46(1) and (2) provide that the tribunal has the power to assess and award the arbitration costs, including the remuneration and costs of the arbitrators and the costs of any tribunal-appointed experts. There is no mention here of legal costs, or the costs of experts appointed by the parties, and so it is unlikely that the courts would find that Article 46 gives the tribunal the power to assess and award such costs. Indeed, Article 33(5) of the Arbitration Law provides that whilst a party may engage lawyers and experts of their choosing to represent it, they are to bear the costs of doing so themselves.
Unfortunately, Article 33(5) may create a broader potential concern, namely tribunals may no longer have the power to award the payment of legal and party-appointed expert costs, even where there is an express agreement to this effect or where the parties have agreed to a set of arbitral rules that gives the tribunal this power. This is because Article 33(5) of the Arbitration Law, on its face, is expressed in mandatory terms. This contrasts with other provisions of the Arbitration Law (see Article 33(2) and (7), for example), which provide that they apply only where the parties have not agreed otherwise. Tribunals and courts will ultimately have to decide how Article 33(5) should be interpreted.
Another uncertainty created by the new Arbitration Law concerns the time limit for rendering a final award. Article 42 of the Arbitration Law sets a time limit of six months from the date of the first hearing for the award to be issued, although the tribunal has the power to extend the deadline for up to a further six months. There is also provision for the parties to agree to allow an extension of more than six months. Absent an agreement, however, any further extension of time can only be made by the courts.
The potential problem with Article 42 of the Arbitration Law is the lack of any obvious mechanism for arbitral institutions to grant extensions of time, as is provided for in most major institutional rules. Whilst it is certainly arguable that the parties will have agreed to such an extension (by virtue of having agreed to the application of a particular set of institutional rules), it is not clear whether this will satisfy the requirements of Article 42 of the Arbitration Law. In this regard, the Arbitration Law represents a step backwards from the Arbitration Chapter, Article 210 of which specifically allowed the parties’ agreement to extensions of time to be either express or implied.
The lack of clarity in this area is particularly unfortunate as the consequences of a tribunal’s failure to issue a final award within the applicable time period are severe. Not only will a failure to meet the relevant deadline be grounds for the award to be set aside (Article 53(1)(g) of the Arbitration Law), but a party may also apply for a court order terminating the arbitration proceedings if the arbitration award is not issued within the requisite time period. If the proceedings are terminated, either party may start court proceedings to resolve the dispute (Article 42(3)).
The Arbitration Law contains express provisions recognising the confidentiality of arbitration awards (Article 44). Article 33(1) of the Arbitration Law further provides that arbitration hearings are to be confidential. The Arbitration Law does not, however, deal specifically with the confidentially of documents, pleadings, evidence and submissions that are produced by the parties and the tribunal during the course of arbitration proceedings.
Where the parties have chosen a set of arbitral rules that contain their own confidentiality provisions, or where the parties separately agree to a confidentiality regime, these will continue to apply. Similarly, it is possible for the parties to agree to waive confidentially in the award for the purposes of Article 44(1) of the Arbitration Law.
9. Challenges to, and enforcement of, arbitration awards
The Arbitration Law contains several improvements over the Arbitration Chapter regarding both challenges to, and the enforcement of, arbitral awards. In particular:
• Article 52 of the Arbitration Law provides that awards are binding on the parties and that they have the force of res judicata. It is only, apparently, where enforcement of the award is sought in the UAE that court recognition of the award will be required. There was no equivalent provision in the Arbitration Chapter, which led to claims that court recognition of an award was required before an arbitral award had any binding effect.
• Article 54(3) of the Arbitration Law requires any application for annulment of an arbitral award to be brought within 30 days of the award being provided to the parties. Challenges to arbitral awards brought after the expiry of this period will not be considered by the courts. This contrasts starkly with the Arbitration Chapter, which had no time limit on challenges to arbitral awards.
• Article 55 provides for a fast-tracked and simplified procedure for applications to recognise arbitral awards. An application to recognise an award must be decided by the court within 60 days (Article 55(e)), as must an application to set aside an award (Article 55(3)). These time periods are significantly shorter than those currently experienced in applications to recognise or set-aside awards before the UAE courts. If these time periods are followed in practice, they will speed-up materially the process of recognition and enforcement of arbitral awards in the UAE.
• Article 53(1) of the Arbitration Law provides that an award may be challenged either by means of an application to set aside the award or in response to an application to recognise and enforce the award. This addresses the confusion caused by a relatively recent Court of Cassation decision, in which it was held that the only way to challenge an award was in response to an application for recognition and enforcement.
• Article 53(4) of the Arbitration Law provides that the parties’ arbitration agreement shall survive a successful application to set aside an award (unless the lack of a valid arbitration agreement is the basis upon which the award has been set aside). This is very positive, as, on occasion, UAE courts had taken the view that the arbitration agreement would cease to be effective on the successful challenge of an award. This meant that the parties would have to resolve their dispute in the courts.
• Where there has been a successful application to set aside an award, Article 54 of the Arbitration Law provides that the judgment on such an action shall be appealable only to the applicable Court of Cassation. Pursuant to Article 57 of the Arbitration Law, the court’s decision on an application to enforce the award (whether it grants enforcement or refuses it) may be appealed to the applicable Court of Appeal, although such an appeal must be made within 30 days from the date of service of the judgment.
• Article 65 of the Arbitration Law provides that enforcement proceedings are not automatically stayed by an application to set aside the award. The court can still order a stay at its discretion and may order security or a deposit of funds as a condition of doing so.
Article 53 of the Arbitration Law sets out an exhaustive list of the grounds upon which an arbitration award may be set aside. Much like the UNICTRAL Model Law (and the New York Convention), these grounds are split between matters that a party seeking to challenge an award must establish and grounds that the court may consider on its own initiative. The grounds that are available to a party seeking to set aside an award are:
• There is no arbitration agreement, the arbitration agreement is not valid, or the arbitration agreement has expired under the law that is applicable (Article 53(1)(a)).
• Either party to the arbitration agreement was under some incapacity pursuant to the law applicable to it (Article 53(1)(b)).
• The concerned person did not have the power to enter into an arbitration agreement (Article 53(1)(c).
• A party to the arbitration was unable to present its case because that party was not properly notified of the appointment of an arbitrator or of the arbitral proceedings, the tribunal’s “violation of principles of litigation” or for any other reason beyond its control (Article 53(1)(d).
• The arbitral award disregards the application of the substantive law agreed to by the parties (Article 53(1)(e)).
• The composition of the arbitral tribunal or the appointment of the arbitrators has occurred in a manner contrary to the law or the agreement of the parties (Article 53(1)(f)).
• There was serious irregularity in the arbitration proceedings that affects the award, or the award was issued after the expiry of the fixed period (Article 53(1)(g)).
• The award contains decisions on matters not included in the arbitration agreement or beyond the limit of such agreement. However, if those parts of the award that are subject to the arbitration agreement are separable from those that are not, only the latter shall be set aside (Article 53(1)(h)).
Separately, the courts may set aside arbitral awards on their own initiative should they determine that the award deals with matters that are not capable of being resolved by arbitration (Article 53(2)(a)) or that it contravenes UAE public order or public ethics (Article 53(2)(b)).
Whilst some of the grounds for challenge are similar to those found in the UNCITRAL Model Law, others bear a greater resemblance to the grounds for challenge that existed under Article 216 of the Arbitration Chapter. There are also entirely new grounds for challenge that are not part of either the UNCITRAL Model Law or the Arbitration Chapter. As a result, there are several grounds for challenge under the Arbitration Law that do not reflect international best practice, and which may prove potentially problematic. In particular:
• Perhaps most obviously, it is possible to read Article 53(1)(e) of the Arbitration Law as permitting an award to be set aside due to an error of law. If the courts interpret the law in this way, Article 53(1)(e) opens up the possibility for a substantive judicial review of all arbitral awards, creating a major impediment to the recognition and enforcement of arbitral awards in the UAE.
• It is not clear what is meant by the reference in Article 53(1)(d) of the Arbitration Law to the “tribunal’s violation of principles of litigation”. Some may argue that this requires arbitral tribunals to comply with the rules of procedure and evidence that apply to litigation before the UAE courts, although that would be inconsistent with other parts of the Arbitration Law (such as Article 33(8), which gives the tribunal discretion to determine the rules of evidence). Perhaps the better view is that this is a reference to a broader concept of “due process”.
• As noted previously, issues of capacity have an unfortunate prominence in Article 53(1) of the Arbitration Law. This includes a lack of specific authority to agree to arbitration (Article 53(1)(c)) as a ground to set aside an award. No doubt, this will further fuel attempts to avoid adverse awards by parties who will argue that the individual who signed the relevant contract on their behalf did not have specific authority to enter into an arbitration agreement.