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68

Legal Focus

JUNE 2012

Dispute Resolution dubai

As the abundance of disputes in the UAE continues to mount, following the property crisis that hit Dubai in 2008, everyone involved rummages through their contracts to look for that clause that no one paid much attention to during the good days, with a view to sharpen their claws and get ready for battle. But in a country where procedural pitfalls are rifer than one would expect, even getting a case off the mark can present the unwary with stumbling blocks, many questions are raised. To find out more, Lawyer Monthly speaks to Antonios Dimitracopoulos, Partner, BSA LLP. He explains how getting to grips with the procedural and, at times, philosophical aspects of dispute resolution clauses, has become somewhat of a science in itself in the UAE and that being hungry to tuck into the merits of substantial disputes whilst overlooking the process applicable, may lead – even strong cases with excellent legal representation- to a complete waste of time and money.

In deciding where to go and resolve a dispute in the UaE, isn’t it sufficient to just check the relevant clause in the contract?

No, it is not a simple case of reading what it says on the tin. Whilst no dispute resolution clause usually means direct access to Court, at times, even choosing the right Court may be a job and a half, unless one keeps abreast of the numerous laws that are shaping the local scene and change the course of litigation and arbitration.

Parties’ location normally determines at least which courts to go to in most jurisdiction. Is the position different in the UaE?

With the advent of the Dubai International Financial Centre, or “DIFC”, Courts and the recent expansion of their jurisdiction, in short the answer is no. Up until the end of 2011, parties could contract in or out of the DIFC Courts’ jurisdiction. Now, the DIFC Courts’ net has become tighter and contracting out of the DIFC Court’s statutory jurisdiction has become more difficult. On the other hand, contracting in, is always an option. This is not so with all other Courts in the UAE.

It is understood that this is generally considered to be a good thing to be able to opt for dIFc courts.

Well, yes for claimants no for defendants. The

DIFC Courts are English Law based, have a faster process, less fraught with procedural pitfalls and more likely to see though and disallow delaying tactics. In addition, there is no written warranty of authority required, like a notarised Power of Attorney, which has traditionally been a field of expertise in itself and a cause of substantial disruptions to all dispute resolution modes in the UAE and the Arab judicial world as a whole.

What if one has opted for arbitration: would that make life any easier in bypassing the court process – be it dIFc or UaE?

I am afraid not. The fact is that arbitration is not always a path to a smooth and trouble-free dispute resolution process here. The reason being, that Court ratification of any award is necessary for enforcement. This can often prove to be a fully fledged litigation on the back of an already lengthy arbitration.

can you give some examples of instances where the ratification of arbitral awards in the UaE has proven to be more complex than one would expect?

The first and most common issue is whether the arbitration clause is considered valid or not. The authority of the person signing the arbitration clause, the intention of the parties, incorporation by reference are all put to the test and are the most common stumbling blocks encountered,

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