“Do I Believe in Arbitration? I do. But not in arbitration between a lion and a lamb, in which the lamb is in the morning found inside the lion.”

Introduction

Arbitration is a private framework for dispute resolution wherein parties consent to submit to the nonpartisan arbitrators rather than approaching courts. An interim or an interlocutory measure in arbitration is a preliminary relief which is conceded prior to issue the final order, to ensure that relief on the debated issue could, in any case, be accessible post rendering the final award. Interim measures, as witnessed by Lawyers In Dubai, are always taken care of at a critical stage either before the constitution of the arbitral tribunal or amid the arbitration proceedings. In some jurisdictions, it is still considered that an agreement to arbitrate is a waiver of party’s entitlements to seek interlocutory orders from local courts. However, nowadays, it is commonly comprehended that an agreement for arbitration does not intercept the parties to approach the court for interim reliefs.

The long-awaited Federal Law Number 6 of 2018, Federal Arbitration Law, hereinafter referred to as the Arbitration Law, released on 16 June 2018 and upon its enactment, it substituted 15 articles of UAE Civil Procedure code (the Civil Code) governing arbitration in UAE. The Arbitration Law place its reliance on United Nations Commission on International Trade Law (UNICTRAL) Model Law (the Model Law) which has significantly impacted in revamping the arbitration framework of UAE and making it internationally viable. A wave of extraordinary changes can be perceived upon reading the Arbitration Law, wherein one of the most remarkable and discussed change is the introduction of interim measure in the arbitration proceedings. Formerly, the Civil Code was silent regarding the tribunal’s authority to pass interim relief in support of the proceedings, obliging the national courts to entertain the issue, unless the rules adopted by the parties govern the same. And the rest is history, moving on to the new Arbitration Law which explicitly authorizes the arbitral tribunals to pass interim and conservatory orders supporting the proceedings wherever relevant.

Under the new law, either party has the right to discretely detriment the counterparty from the steps taken to frustrate the subject matter of the dispute. These measures are against such prejudice until the final award is received. While, the Civil Code did not provide provisions for interim measures, other arbitration laws in UAE such as DIFC and ADGM offered some form of interim measures.

Legalities Surrounding Interim Measures

Articles 18(2) and 21 of the new Arbitration Law governs the legal procedures in relation to interim measures. The foregoing articles empower both the courts as well as the tribunals to order an extensive range of interim measures assisting the arbitration proceedings. Pursuant to Article 21 of the Arbitration Law, the tribunal may order interim relief either upon party’s request or suo moto.

The foregoing article outlines following non-exhaustive list of orders that can be undertaken by the arbitrator or the tribunal:

• Safeguard the evidence;
• Protect the goods which form a significant part of the dispute;
• Preserve the assets or funds out of which the award can be served;
• Maintaining the status quo pending the final order;
• Pass an order to take an action which can prevent either party from taking an action which would frustrate the arbitration process;

The provision further states that the tribunal might require the party;

• Requesting interim relief to offer relevant security covering the costs of such measures and might further require the party to bear the expenses arising due to enforcement of such measures, unless otherwise directed by the tribunal;
• At the request of either party or suo moto to cancel or amend the interim measure it has ordered, upon serving a prior notice;
• Upon the written request from the part on whom the interim measure has been ordered, may request the competent court to order the enforcement of the order to the tribunal within 15 days from the date of receipt.

On the other hand, Article 18(2) of the Arbitration Law entitles the competent courts to grant interim measures in support of the proceedings at any stage of arbitration. There is no restriction as to who can approach the court in this regards; the provision authorizes the parties as well the tribunal to approach the court for such measures. Reverberating the authority offered to the tribunal under the new law, the aforementioned article offers rights to parties and the tribunal to seek support from the competent court. This power is extraordinary and cannot be located in the arbitration rules and regulations of ADGM and DIFC. Under the abode discussed provisions, the court has been accredited with granting interim measures, which was earlier absent.

A step Further from the Model Law

Although, the new Arbitration law has its roots in the Model Law, however, it goes further to assist the arbitration proceedings which is evident from the provisions of the new law. In line with the foregoing, Article 21 of the Arbitration Law is based upon Article 17 of the Model Law. However, we can determine three significant differences in both the provisions as follows:

• Firstly, unlike the Model Law, the Arbitration Law under Article 21 grants power to the tribunal to safeguard the goods constituting the essential part of the subject matter;
• Secondly, the arbitration law as oppose to the Model Law does not have a provision of granting an ex-parte interim measure, if the other party tries to hamper with the arbitration proceedings;
• Thirdly, as contrary to the Arbitration law, the Model Law requires the tribunal to consider the balance of convenience prior to granting the interim relief. Accordingly, the tribunal should consider whether an award of damages will recompense the harm that can be caused by the issuance of the interim measures, whereas, the Arbitration Law is silent on this subject and allows to court to pass interim measures when deems necessary.

Conclusion

In order to have a more harmonized framework for entertaining the interim measures, the UAE government has passed the Arbitration Law which in itself is predominant than the other laws pertaining to the arbitration including the DIFC, ADGM, and the Model Law. It is pertinent to highlight that parties prior to determining their Lex Arbitri, must determine which jurisdiction has provisions pertaining to interim reliefs or may take the assistance of Commercial Lawyer in Dubai.