Critical Legal Issues Associated with Arbitration Agreement
Publication: Journal of Legal Affairs and Dispute Resolution in Engineering and Construction
Volume 16, Issue 2
Abstract
Despite its high cost and long procedures in some cases, arbitration may be perceived as a safe dispute resolution mechanism, at least in complex and large disputes. This may be owed to the customary unified standards internationally, the relatively high procedural flexibility, its privacy, and reduced uncertainty. As arbitration is an exception to litigation depriving parties of the default litigation right; an arbitration agreement validity is key. The paper explores arbitration agreement forms under the UAE laws and identifies critical matters affecting its validity. To that extent, the maturity and materialization of a dispute is a critical issue that may often be overlooked by disputants. In the context of arbitration however, this becomes more complicated as it interfaces with the tribunal’s capacity and jurisdiction. While the review of the arbitration agreement forms demonstrates both flexibility but high procedural aspects, it is worth highlighting that the materialization of a formal dispute, particularly in construction contracts and similar highly procedural contracts, is a common delay tactic for arbitration procedures defense counsels may resort to. Limited institutional arbitration rules call for a check on the existence of an arbitration agreement on a prima facia basis, the criteria of which, is determined by courts and arbitration centers, leaving generous room for interpretation.
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Data Availability Statement
No data, models, or code were generated or used during the study.
References
List of Cases
Appeal no 371-203 [2014] Dubai Court of Appeal (Dubai Court of Appeal)
Cassation no 1308/2020 [2020] Dubai Cassation (Dubai Cassation).
Cassation no 140/2007 [2007] Dubai Cassation (Dubai Cassation).
Cassation no 167/1998 [1998] Dubai Cassation (Dubai Cassation).
Cassation no 204/2008 [2008] Dubai Cassation (Dubai Cassation).
Cassation no 209/2004 [2004] Dubai Cassation (Dubai Cassation).
Cassation no 327/2013 [2013] Dubai Cassation (Dubai Cassation).
Cassation no 38/2016 [2016] Dubai Cassation (Dubai Cassation).
Cassation no 387/2017 [2017] Dubai Cassation (Dubai Cassation).
Cassation no 392/2014 [2014] Dubai Cassation (Dubai Cassation).
Cassation no 462/2002 [2002] Dubai Cassation (Dubai Cassation).
Cassation no 5/2009 [2009] Dubai Cassation (Dubai Cassation).
Cassation no 924/2009 [2009] Abu Dhabi Cassation (Abu Dhabi Cassation).
Cassation no 955/2010 [2010] Abu Dhabi Cassation (Abu Dhabi Cassation).
Union Supreme Court no 2/2018 [2018] Union Supreme Court (Union Supreme Court).
Union Supreme Court no 4/2012 [2013] Union Supreme Court (Union Supreme Court).
List of Statutes
UAE Civil Procedures Code 1992.
UAE Civil Transactions Law 1985.
UAE Federal Arbitration Law 2018.
UAE Federal Law of Proof in Civil and Commercial Transactions 1992.
UAE Federal Law on Commercial Companies 2015.
UAE Federal law on Electronic Transactions & Commerce 2006.
Works Cited
Blackaby, N., C. Partasides, A. Redfern, and M. Hunter. 2015. Redfern and Hunter on international arbitration. 6th ed. Oxford, UK: Oxford University Press.
Born, G. B. 2021. International commercial arbitration. Deventer, Netherlands: Wolters Kluwer.
Ghoneim, A., and O. Khodeir. 2013. “Types of arbitration agreements.” Accessed June 5, 2022. https://www.tamimi.com/law-update-articles/know-your-type-three-types-of-arbitration-agreements-in-a-nutshell/.
Paulsson, J. 2005. “Jurisdiction and admissibility.” In Global reflections on international law, commerce and dispute resolution. Paris: ICC Publishing.
Schultz, T., and F. Ortino. 2020. The Oxford handbook of international arbitration. Oxford, UK: Oxford University Press.
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© 2024 American Society of Civil Engineers.
History
Received: Jun 7, 2023
Accepted: Nov 22, 2023
Published online: Feb 22, 2024
Published in print: May 1, 2024
Discussion open until: Jul 22, 2024
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