Interim Remedies in Dubai Based Arbitration, Part 1

As many involved in dispute resolution in the UAE, and in international arbitration generally, will be aware, recently there was a significant shake up of the arbitration landscape in Dubai, following the issuance of Decree No. (34) of 2021 (the “Decree”), on 14 September 2021.

The most eye-catching aspect of this legislation, Article 4, was the abolition of the DIFC-LCIA Arbitration Centre’s administering body, and of the Emirates Maritime Arbitration Centre (“EMAC”), in an effective merger with the Dubai International Arbitration Centre (“DIAC”).

This series of two blogposts seeks to explore some known, as well as some speculative, consequences of the Decree in respect of certain discrete issues relevant to interim remedies. This first post considers the effects on interim remedy procedures before arbitral tribunals. Later this week I will also comment on the effects of the Decree on interim remedies before the courts.

Interim Remedies before Tribunals (Role of Emergency Arbitrators)

Before the Decree, there were some significant differences in respect of interim remedy procedure, depending on which centre had been agreed.

In respect of each centre’s rules, there was/is a generally broad discretion for tribunals to issue interim/conservatory measures, expressed in relatively similar wording, albeit with some differences, in particular in respect of specific factors for the tribunals to take into account. Such measures would also of course be dependent to some extent on the law of the seat.

However, the real contrast arose in respect of the ability to appoint urgent/emergency arbitrators. Whilst under the DIFC-LCIA Rules and EMAC Rules there was specific provision for the appointment of emergency arbitrators (Article 9B and Article 12 respectively), there was no such provision within the DIAC Rules. As such, parties to a DIAC arbitration agreement, wishing to obtain an urgent interim remedy (outside of the courts), only had recourse to an expedited formation of the tribunal (Article 12).

When there is a matter of real urgency before any arbitral tribunal has been formed (which is often the case for interim remedies), the benefit of an emergency arbitrator over expedited formation is clear and obvious. It is often possible to get an award/order from an emergency arbitrator within a matter of days, whereas, in respect of expedited tribunals (especially three member tribunals), awards could still take months to produce, by which time the benefit of obtaining an interim award would often have already passed and/or prejudice had already occurred.

In this regard, one provision of the Decree is specifically noted. Article 11(9), which concerns one of the functions of a newly created “Arbitration Court”, provides:

“For this purpose, the Arbitration Court will have the duties and powers to: … (9) Supervise emergency arbitration before the commencement of arbitration proceedings, as prescribed by the arbitration rules and the DIAC”

It is also noted that various other provisions of the Decree reference certain powers regarding both the proposition and promulgation of arbitration rules/procedures (e.g. Article 3(8), Article 11(2), Article 11(5)), with the overall objective of DIAC being restated at Article 2(1) as: “to enhance the position of the DIAC as one of the best options available to parties to Disputes for efficient and effective Dispute resolution, through adopting the international best practices in ADR Methods management”.

Accordingly, it appears that if/when the new DIAC Rules are promulgated, there is likely to be specific provision for the appointment of emergency arbitrators, especially as this would accord with what is increasingly recognised as international best practice.