The signing of arbitral awards under UAE law: recent developments with respect to the enforcement of foreign awards in the UAE

Soraya Corm-Bakhos MCIArb looks at UAE law on the signing of arbitral awards and its impact on the enforcement of foreign awards

by Soraya Corm-Bakhos MCIArb

It is well settled under UAE law that arbitrators are required to sign the reasoning and dispositive parts of an arbitral award, failing which the award is invalid. This requirement extends to foreign awards. This article looks at the relevant provisions of the Federal Arbitration Law and latest jurisprudence from the UAE courts refusing to enforce foreign awards based on a irregularity in the signing of the award.  

Introduction

Under UAE law, an award must comply with several formalistic requirements to ensure its validity. One of those mandatory requirements is the signature of the award by the arbitrators. In the event of an irregularity in the signing of an award, there is a risk that the award may be set aside or not enforced by the onshore UAE courts. Recent case law confirms that this position not only remains unchanged for domestic awards under the UAE Federal Arbitration (FAL) but may also negatively impact the enforcement of foreign awards under the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (NYC).  

Relevant legal provisions  

Prior to the entry into force of the FAL in 2018, Article 212(5) of the UAE Civil Procedures Code (CPC) provided in relevant part that the award “must be in writing […]it must in particular include […] the signatures of the arbitrators”.  

Although Article 212(5) of the CPC did not include any specific detail as to where and how the award must be signed, the onshore UAE courts have ruled that: 

  1. It is not sufficient for arbitrators to sign the final page of the award; both the reasoning and the dispositive parts of an award must be signed (see Case No. 233/​ 2007, judgment of the Dubai Court of Cassation of 13 January 2008; also Case No 156/​2009, judgment of the Dubai Court of Cassation of 27 October 2009);  
  1. if the reasoning and the dipositive part of an award overlap or are contained in the same document, it may be sufficient for the last page of the award that contains both part of the reasoning and the dispositive part to be signed (see Case No. 233/2007, judgment of the Dubai Court of Cassation of 13 January 2008; also Case No. 156/2009, judgment of the Dubai Court of Cassation of 27 October 2009); and 
  1. this signing requirement qualifies as a matter of public policy which may be raised ex officio by the court (see Case No. 218/2006, judgment of the Abu Dhabi Court of Cassation dated 17 October 2006; also Case No 156/​2009, judgment of the Dubai Court of Cassation of 27 October 2009). 

Based on those rulings, it is well settled that a domestic award may be set aside or declared unenforceable as a matter of UAE law in the event of a irregularity in the signing of the award. Arbitrators and legal counsel operating in the UAE are mostly familiar with this stringent signing requirement and will usually always err on the side of caution and ensure that each arbitrator signs or at least initials each page of the award with a full signature on the final page of the award.  

Article 41(3) of the FAL, which replaced Article 212(5) of the CPC, now provides: “The award shall be signed by the arbitrators and in arbitral proceedings with more than one arbitrator, the signatures of the majority of all members of the Arbitral Tribunal shall suffice, provided that the reason for any omitted signature is stated”. Like Article 212(5) of the CPC, Article 41(3) of the FAL still requires the award to be signed by all arbitrators but does not provide that an award must be signed on each page or where the signatures must be affixed.  

Recent local courts’ rulings 

Recent rulings of the onshore UAE courts have confirmed that the previous line of cases issued under the old Article 212(5) still apply under the FAL in the context of not only domestic but also foreign arbitral awards. 

Domestic awards 

In a judgment dated 14 June 2020, the Dubai Court of Cassation considered the enforcement of a UAE seated arbitral award under the FAL. The court adopted a strict interpretation of Article 41(3) of the FAL requiring that both the reasoning and dispositive parts of the award be signed.  

However, importantly, in this case the court did not set aside the award for violation of public policy but decided to remit the award to the Dubai Court of Appeal to allow the irregularity in the signing of the award to be rectified by the arbitral tribunal in accordance with Article 54(6) of the FAL.[1] Article 54(6) allows a party to the arbitration to request the competent court of appeal to let a tribunal rectify any formalistic defect in the award that would otherwise serve as a ground for nullification. [2]  

Foreign awards 

In two subsequent cases, the Dubai Court of Cassation applied the narrow and strict approach to the signing of awards in the context of applications for enforcement of foreign awards, i.e. awards rendered in proceedings seated outside of the UAE.  

On 15 April 2020, the Dubai Court of Cassation issued a judgment refusing to enforce a foreign award, which contained the signature of the arbitrator on the last page only.[3] In reaching this decision, the court referred to the following Articles of the NYC: 

  1. Article III which provides in relevant part: “Each contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon”; and 
  1. Article V(2)(b) which provides that enforcement of an arbitral award may be refused if the competent enforcing court finds that the “recognition or enforcement of the award would be contrary to the public policy of that country”. 

The court considered that the “applicable procedural rules” comprise all the provisions of the FAL, including Article 41(3). As regards Article 41(3), the court confirmed its previous line of cases and ruled that signing an award requires signing both the dispositive and the reasoning parts of the award otherwise the award is deemed invalid and enforcement would be contrary to UAE public policy. 

On 21 April 2022, the Dubai Court of Cassation refused to enforce the foreign award (which was issued under the ICDR-AAA Rules) on grounds of public policy for lack of compliance with the UAE law signing requirements.[4] The court once again considered that arbitrators must sign not only the operative part of the award but also its reasoning for the award to be valid and enforceable.  

Conclusion 

Despite the entry into force of the FAL and the more streamlined enforcement process of foreign awards introduced by the latest amendments to the CPC[5], the onshore UAE courts remain susceptible to refuse enforcement of awards, whether domestic or foreign, on (perhaps overly) technical grounds.[6]   

When arbitrating parties anticipate that enforcement may need to take place in the UAE, they should ensure that the arbitrators sign every page of the award (regardless of whether the law of the seat includes a similar requirement) to mitigate the risk of a challenge to enforcement based on a failure to comply with the mandatory signing requirement under UAE law.

Soraya Corm-Bakhos is a Member of the Chartered Institute of Arbitrators. She works as Counsel for Watson Farley & Williams (Middle East) LLP and can be contacted on SCorm-Bakhos@wfw.com

The views expressed in this article are those of the author and do not necessarily reflect those of the Chartered Institute of Arbitrators.

To submit an article for publication please contact our editors, Farhan Shafi, Mohammed Taj or Reshma Oogorah.

  1. Case No 1083/2019 – Ali & Sons Marine Engineering Factory LLC v E-Marine FZC, judgment of 14 June 2020.
  2. For a commentary of this decision, see Gordon Blanke “Your signature, please: recent developments under article 41(3) of FAL”, Practical Law Arbitration Blog (August 20, 2020) available at http://arbitrationblog.practicallaw.com/your-signature-please-recent-developments-under-article-413-of-fal/.
  3. Case No. 403/2020.
  4. See case No. 109/2022, judgment of 21 April 2022. For a detailed commentary of this decisions, see Sara Sheffield, Reem Faqihi, “UAE Court Rejects Enforcement of Foreign Arbitral Award for Irregularity in the Placement of the Arbitrator’s Signature and Confirms the Period for Appealing an Order to Execute Foreign Arbitral Awards”, Kluwer Arbitration Blog (12 September 2022), available at http://arbitrationblog.kluwerarbitration.com/2022/09/12/uae-court-rejects-enforcement-of-foreign-arbitral-award-for-irregularity-in-the-placement-of-the-arbitrators-signature-and-confirms-the-period-for-appealing-an-order-to-execute-foreign-arbitr/.
  5. See Cabinet Decision No. 57 of 2018 amending the CPC; Article 85(2) of the Cabinet Decision now provides that an application for enforcement of a foreign award may be submitted directly to the execution judge who is required to issue its decision within 3 days. The judge’s order remains subject to appeal.
  6. See Cabinet Decision No. 57 of 2018 (in particular Article 85(2)), which provides that an order for enforcement of a foreign award may now be obtained by way of petition submitted directly to the execution judge.

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