Arbitration is founded on the mutual consent of the parties; therefore, any waiver must be equally explicit and grounded on the same mutual intent (1/10)

2 min 20 sec February 18, 2026 (Edited) الترجمة العربية

Written by

Dr. Hassan Arab

Partner, Regional Head of Dispute Resolution

h.arab@tamimi.com View LinkedIn Profile

Hend Al Mehairi

Associate

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Dina Assar

Senior Knowledge Lawyer

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The Dubai Court of Cassation issued an important judgment emphasizing a fundamental principle: arbitration, as a method of dispute resolution mechanism, is founded on legislative recognition and parties’  mutual agreement to adopt it, thereby waiving recourse to the default mechanism of litigation before state courts. The principle of party autonomy is a cornerstone of arbitration, determining its very existence. Arbitration cannot be established without the parties’ mutual consent, which is achieved through offer and acceptance (i.e., parties’ consent), along with their legal capacity and the legislature’s recognition of arbitration as a valid method of dispute settlement. Accordingly, any waiver of an arbitration clause must also be based on mutual consent; one party alone cannot unilaterally declare or decide to waive the arbitration clause.

This principle was clearly reflected in the Dubai Court of Cassation judgment in Appeal No. 618 of 2023 , Commercial, issued on 26 October 2023. The court held that when there are two agreements between the parties – an original agreement, such as the main construction contract, and a subsequent agreement, such as a subcontract – the parties’ agreement in the subsequent contract to submit disputes to court jurisdiction does not constitute an implied waiver of the arbitration clause found in the original contract, specially in the absense  of any express language which clearly indicates the parties’ intention to waive arbitration [1]. Moreover, each contract has a distinct subject matter, allowing the disputes to be segmented so that the subject of one contract does not affect the other.

This judgment is among the jurisprudential decisions that support arbitration, clearly demonstrating the judiciary’s respect for party autonomy in choosing the mechanism(s) for resolving their disputes — be it arbitration, litigation, or both. As the judgment explains,  where the agreements between the parties differ as to the dispute resolution method, selecting both mechanisms in different contracts does not render arbitration subordinate or invalid. In such a case, the later agreement to litigate does not nullify the arbitration clause in the original contract.

[1] In Commercial Appeal No. 618 of 2023, dated on 26 October 2023, the Court held that although a party may expressly or implicitly waive reliance on an arbitration clause, an implied waiver requires a clear act or procedural step that unmistakably demonstrates an intention to abandon such clause and to relinquish the right to invoke it, leaving no room for doubt as to the party’s will to waive the arbitration agreement. The determination of whether such waiver exists or is negated falls within the discretion of the court of first instance, by virtue of its authority to assess the evidence, indications, and documents submitted to it and to weigh them collectively. The Court of Cassation will not interfere with such assessment where the judgment is based on sound reasons supported by the record, sufficient to sustain it, and leading to the conclusion reached.