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The UAE legislator opted to use one term “arbitration instrument” in the UAE Civil Procedures Code, and it is not always clear whether this is referring to an arbitral agreement or the terms of reference. In a series of decisions the Abu Dhabi Court of Cassation has helpfully clarified which of the Procedures Code provisions apply to the arbitral agreement, and which provisions apply to the terms of reference. The Abu Dhabi Court of Cassation has also explained how these terms relate to each other, as well as other key issues, thus helping to clarify the applicable formal requirements applying to arbitration under UAE law.
Arbitration agreements can take one of three forms: an arbitration clause in the contract; an arbitration deed entered into after the dispute arises; and an arbitration clause incorporated into the contract by reference.
In Case No.467/2013, the Abu Dhabi Court of Cassation stated that the arbitration clause constitutes an agreement between the contracting parties in their contract that any dispute resulting from the execution or interpretation of their contract shall be referred to arbitration. The arbitration clause exists before the dispute arises. Where there is no arbitration clause or any other arbitration agreement between the parties to refer a dispute arising between them to arbitration, the parties may enter into an agreement to refer the dispute to arbitration. Such an agreement is known as an “arbitration deed”. Unlike the arbitration clause, the arbitration deed begins its existence only after the dispute arises between the parties.
In case No.214/2014, the Abu Dhabi Cassation Court stated that if the contract entered into between the parties refers to another document, which includes an arbitration clause, then this is considered an arbitration clause by incorporation. However, the Abu Dhabi Cassation Court stipulated that in order to have a valid arbitration clause by incorporation, the reference to the document which includes the arbitration clause must include an explicit and specific reference to the arbitration clause in the referenced document.
Article number 203(1) of the Civil Procedures Code states that:
“It shall be permissible for contracting parties generally to stipulate in the original contract or in a subsequent agreement to refer any dispute between them concerning the implementation of a specified contract to one or more arbitrators and it shall likewise be permissible to agree by special conditions to arbitration in a particular dispute.”
This recognizes the difference between an arbitration clause and an arbitration deed. It highlights that the parties may agree on the arbitration in their original contract (i.e. an arbitration clause), or can agree in a subsequent agreement (i.e. an arbitration deed).
The meaning of “Arbitration Instrument” in articles 203 and 216
Aside from the arbitration clause, arbitration deed, and arbitration clause by incorporation, the Abu Dhabi Court of Cassation judgment No. 467/2013 noted the existence of “terms of reference”. This refers to a procedural document that is prepared by the arbitrators to evidence the parties’ agreement of the procedural matters relating to the arbitration proceedings.
As noted before, the Civil Procedures Code refers only to one term, which is “arbitration instrument”, it does not use the terms “terms of reference” or “arbitration deed”. How then are we to recognise those provisions using ‘arbitration instrument’ to refer to ‘arbitration deed’, and those using it to refer to ‘terms of reference’? The Abu Dhabi Court of Cassation, in judgment No.467/2013, confirmed that the UAE legislator meant to refer to the “terms of reference” in some of the Civil Procedures Code articles, and to the “arbitration deed” in some other articles:
The use of the term ‘arbitration instrument’ in the Civil Procedures Code has caused some confusion as it could be referring to ‘arbitration deed’ or ‘terms of reference’.
The “arbitration deed” is a type of arbitration agreement. The “terms of reference” is a procedural document that is prepared by the arbitrators to evidence the parties’ agreement regarding the procedural matters related to the arbitration proceedings.
The Abu Dhabi Court of Cassation has confirmed that Article 203(3) of the Civil Procedures Code is referring to the “arbitration deed”. Article 216(1)(a) is referring to the “terms of reference”. Unlike the arbitration agreement, the “terms of reference” does not have to be signed by the parties in order to be valid. This interpretation by the Court makes the arbitral process more robust in the UAE.