Public Policy as a Ground for Challenging and Vacating Domestic Arbitral Awards in the United Arab Emirates

  • Gordian Udechukwu Ojiako

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The study explores how Public policy (and/or public order) is utilised as a ground for challenging and vacating domestic arbitral awards in the United Arab Emirates (UAE). Among the points of particular interest being its impact on the finality, conclusiveness and binding nature of arbitration due to the existence of different parallel courts in the country. Three research questions are presented focused on first, the purpose of the Public policy (and/or public order) exception in the UAE; the second, on the scope of this exception and the third (and final) on the impact of the exception on the judicial rulings of the different parallel courts that constitute the ‘UAE Courts. Three findings are made. The first suggests that Public policy (and/or public order) is used to provide legitimacy to institutions enacting coercive power. The second finding is that Public policy (and/or public order) is generally construed in a very broad manner in the UAE. The third is that is that there are differences in terms of interpretation of public policy across the various parallel courts in the UAE. This study has three possible limitations. First, the case laws analysed were based on cases decided within the context of the ‘old’ UAE Arbitration law. However, the UAE promulgated a new standalone arbitration law, Federal Law No. 6 of 2018 on Arbitration, which took effect on July 2018. For this reason, none of the case laws analysed is based on statutory interpretations of ‘new’ UAE Arbitration law. Second, because the UAE does not maintain any formal case reports, nor do the arbitral institutions that operate in the country retain comprehensive information on arbitral awards that have been challenged, for this reason, the cases analysed in the study were limited to those reported in English in a number of legal databases. Third, noting that the UAE does not adhere to the principles of stare decicis, it is very doubtful whether a comprehensive overview of the Public policy (and/or public order) imperative in UAE domestic arbitration can actually be drawn. Arguably, these three limitations may impede the applicability of the findings to a future understanding of the use of Public policy (and/or public order) as a justification for challenging and also vacating domestic arbitral awards in the country. However, despite these limitations, the analysis of the cases still affords scholars the opportunity to engage in detailed and intimate exploration of the broad manifestation of the Public Policy and ‘Order Public’ (public order) exception. Thus, in terms of generalisability, the findings from the study are likely to apply to a developing arbitration practice across the Gulf region. The thesis makes specific contributions to the theory and practice of arbitration law in general and its application to Public policy (and/or public order) in particular. In terms of desired improvements which will entail restricting arbitration vacatur on the basis of Public policy (and/or public order), the study highlights the impact of such exceptions on the operations of parallel legal systems in the UAE by directing our attention to the relationship and tensions between two of such parallel courts; UAE federal courts (‘Courts of the UAE’) and the ‘free zone’ courts such as the Dubai International Financial Courts (DIFC) and the Dubai International Arbitration Centre (DIAC) who together with the UAE federal courts constitute the ‘UAE Courts’
Dyddiad Dyfarnu2019
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  • Prifysgol Aberystwyth
GoruchwyliwrDavid Poyton (Goruchwylydd) & Nathan Gibbs (Goruchwylydd)

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