UAE Federal Supreme Court Confirms Courts’ Jurisdiction Over Evidence Preservation Despite Arbitration Clauses (Judgment No. 262/2025) 6/10

3 min 35 sec February 18, 2026 (Edited) الترجمة العربية

Written by

Dr. Hassan Arab

Partner, Regional Head of Dispute Resolution

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Hend Al Mehairi

Associate

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Dina Assar

Senior Knowledge Lawyer

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Introduction

The Federal Supreme Court, in its judgment issued on 13 May 2025 in Commercial Cassation No. 262 of 2025, confirmed an important principle governing the relationship between arbitration agreements and the jurisdiction of UAE courts over precautionary proceedings instituted for the preservation of evidence such as action for determination of facts.
The Court held that an Action for Determination of Facts is, by nature, a protective (conservatory) action falling within the courts’ general and original jurisdiction unless the parties agree otherwise. This is notwithstanding that, under Article 21 of Federal Law No. 6 of 2018 on Arbitration, an arbitral tribunal may—on a party’s request or on its own initiative—order interim or precautionary measures as it deems appropriate.
The Court further clarified that where an arbitration clause does not specifically grant arbitrators the authority to order interim/urgent or precautionary measures, the courts remain competent to hear such applications. The mere existence of an arbitration agreement does not prevent a party from resorting to the courts for evidence-preservation measures. On this basis, the Supreme Court overturned the judgments of the lower courts, which had dismissed the action due to the arbitration clause and confirmed that the Court of First Instance was competent to hear the Determination of Facts action.

Background of the Dispute

The dispute arose from a maritime charter agreement under which the claimant chartered a vessel for the carriage of cargo. Upon the vessel’s arrival at the port of discharge, unloading was refused by port authorities due to alleged non-compliance with safety and security requirements. As a consequence, the cargo sale contract was cancelled, causing financial losses to the claimant.
Fearing that material facts relating to the vessel’s condition might dissipate or become impossible to prove, the claimant filed an action seeking the appointment of a maritime expert to establish the factual condition of the vessel, its compliance with safety requirements, alleged contractual breaches, and the resulting damages. Notably, the claimant submitted the action exclusively as a Determination of Facts action, without advancing any claims relating to the merits of the dispute.

Procedural History and the Supreme Court’s Ruling

The Court of First Instance dismissed the action on the ground that the parties were bound by an arbitration clause. This decision was upheld by the Court of Appeal. Upon cassation, however, the Federal Supreme Court overturned the appealed judgment and held that the judgment was contrary to the correct application of law.

The Court held that the lower courts erred in law by characterising the action as falling within the scope of the arbitration clause, notwithstanding its purely conservatory nature. Consequently, the Supreme Court ruled that the Court of First Instance was competent to hear the action and remitted the case pursuant to Article (168) of Federal Decree-Law No. (42) of 2022 on Civil Procedures.

The Court’s Reasoning

The Supreme Court’s reasoning centered on the proper characterization of the action for determining jurisdiction. The Court underscored the principle that the nature of an action and the corresponding court competence are defined by the claimant’s final requests. Since the claimant’s sole request was for the appointment of an expert to document and preserve facts, the action was categorized as a protective, not a merits-based, dispute. A Determination of Facts action is a precautionary proceeding designed to preserve material facts that are at risk of being lost, thereby ensuring their availability for a future substantive dispute, whether in litigation or arbitration.
The judgment further clarified that the courts’ general jurisdiction over interim or conservatory powers persists unless a contract or a specific submission agreement to arbitration explicitly assigns these powers to arbitrators.

A general agreement to arbitrate disputes concerning contract interpretation or performance does not, on its own, strip the courts of their power to grant conservatory relief. In this instance, the contract’s arbitration clause did not delegate power over interim measures, leading the Court to conclude that the trial court was competent to hear the case.

Conclusion

This Judgment restores doctrinal clarity by confirming that arbitration clauses cannot be expansively interpreted to bar precautionary judicial intervention. It reinforces the principle that UAE courts remain guardians of evidentiary preservation unless expressly divested of such authority. The judgment affirms the role of the judiciary in safeguarding and preserving evidence pending the determination of the merits of the dispute, whether before the courts or arbitral tribunals.