Following the issuance of Decree No. (34) of 2021 on 14 September 2021, Article 4 (“the Decree”) and number of matters relating to interim remedies have changed.
Primarily, this legislation abolished the DIFC-LCIA Arbitration Centre’s administering body and the Emirates Maritime Arbitration Centre (EMAC). This caused an effective merger of the bodies with the Dubai International Arbitration Centre (DIAC).
Below we look at the role of emergency arbitrators and the new applicable courts for interim remedies where a seat is (and is not) specified.
Interim Remedies: which seat and which court?
As a starting point, the new legislation reaffirms two points
- Article 4(a) states that
- for onshore Dubai seated arbitrations the applicable court for interim remedies is the onshore Dubai Court.
- in regard to DIFC seated arbitrations, the DIFC Court is applicable.
- Article 7 confirms that the Dubai Court and DIFC Court, in accordance with each court’s respective procedures, will consider claims, applications and appeals in respect of awards or arbitration measures issued by arbitration tribunals of the DIAC and DIFC-LCIA (and EMAC).
This is straightforward as it restates practices that have been previously effected.
For contracts that do not specify the seat, but do specify one or other of the arbitration centres, Article 4(b) provides that DIFC should be the seat. This is significant because the DIFC Court applicable rules and arbitration law have now become the default. Interim remedies are accordingly subject to the broad spectrum of interim measures permitted by the DIFC Court.
Contraversially, this is potentially in conflict with 20.1 of the DIAC’s Rules. However, DIAC has 6 months to implement the Decree, and it is anticipated that a new set of rules will be created to mitigate any conflict.
Where an arbitration is currently in process but where no seat was specified, the Decree will have the least impact. Article 6(b) applies to tribunals or panels that were formed before the Decree came into force. It specifies that, even where the centre was abolished the arbitration will continue in accordance with the rules and procedures they had already adopted.
There is speculation about as yet unformed panels and tribunals, however the safest bet for any party is to try and commence talks to agree the seat. DIFC now appears to be the obvious choice as any appeal or later review would fall within a DIFC regimen.
Previously, there were specific provisions for the appointment of emergency arbitrators; Article 9B and Article 12, for the DIFC-LCIA Rules and EMAC Rules respectively. However, there was no such provision for the DIAC Rules, the only option available under Article 12 was recourse to an expedited formation of the tribunal.
Due to the new Decree applications for interim remedies will have easier access to emergency arbitrators, falling in line with international best practice. Article 11(9) of the Decree, outlines the functions of the newly created Arbitrations Court. It provides that the Court will supervise emergency arbitration before the commencement of arbitration proceedings, as is stipulated by the arbitration rules of the DIAC. It is therefore likely that a specific provision for the appointment of emergency arbitrators will be included in the new DIAC Rules.
Overall, the full extent of the impact on interim remedies remains to be seen. However, from what can be stipulated so far, the Decree has made the process more streamline, and seeks to implement world leading better practice.