(2)    The Court

The arbitrateAD Court (the Court), has a supervisory role over the arbitrations administered under the arbitrateAD Rules. Under the arbitrateAD Rules, the Court is responsible for handling the appointment of arbitrators, resolving challenges to arbitrators, and scrutinising arbitral awards, among other functions. The Court is composed of 15 prominent international arbitration practitioners, nearly half of whom are women. This diverse panel boasts a broad geographic presence, with members located in 11 jurisdictions. Among these are five representatives from the Middle East region, four of whom hail from the United Arab Emirates, along with 10 others from Africa, Europe, Asia, and the Americas. Maria Chedid, a dual citizen of the U.S. and Lebanon, has been appointed as the president of the inaugural Court in a landmark moment in the UAE as the first woman to serve as the president of an arbitral court in the Middle East. The gender and geographical diversity within the Court exemplify arbitrateAD’s global vision and will be welcomed by the international arbitration community, which has long been advocating for diversity within the practice of international arbitration.

(3)    Arbitrators

arbitrateAD published its initial list of arbitrators on 1 February 2024. It includes a diverse range of internationally renowned arbitrators from the region and across the globe.

II.    The arbitrateAD Rules

Several Middle Eastern arbitration institutions have recently updated their rules to modernise their practices and improve their arbitration offerings in the Middle East and North Africa. These updates aim to provide parties with advanced and efficient institutional support and procedures for resolving disputes while also ensuring a competitive edge within their jurisdiction and on a global scale.

The release of the arbitrateAD Rules has sparked interest among practitioners. As many users may be aware, the last update to the ADCCAC rules took place in 2013 and was designed to promote and improve expediency and transparency. Despite this, it has always remained a criticism of ADCCAC, particularly by users of other international arbitral institutions, that the administration of cases was slow and inefficient. Over a decade later, the arbitrateAD Rules have been designed to be forward-thinking and progressive, with a focus on balancing effective scrutiny against the need for expediency and efficiency in the management and administering of cases. We take a look below at the most salient provisions of the arbitrateAD Rules.

(1)    What are the transitional provisions incorporated into the arbitrateAD Rules?

The arbitrateAD Rules apply to all arbitration proceedings commenced on or after 1 February 2024. In cases where parties previously consented to resolve their disputes through arbitration under the old ADCCAC rules, disputes commenced on or after 1 February 2024 will now be administered by arbitrateAD under the arbitrateAD Rules. The provisions relating to emergency arbitrators (article 35) and expedited proceedings (article 36) do not automatically apply unless the parties have previously consented to their application. For parties who opt for arbitration under the arbitrateAD Rules, articles 35 and 36 will apply by default to their arbitrations. Arbitrations commenced prior to 1 February 2024, which are currently administered under the ADCCAC rules, will continue to be administered by the ADCCAC case management office until their conclusion.

(2)    How is the default seat determined under the arbitrateAD Rules?

If the parties have not explicitly agreed on the seat of the arbitration, pursuant to article 22(2) of the arbitrateAD Rules, the default seat will be the Abu Dhabi Global Market (ADGM) unless, considering all the relevant circumstances and after giving the parties a reasonable opportunity to be heard, the Court decides otherwise.

arbitrateAD is therefore moving away from the previous position under the ADCCAC rules (article 17), where the default seat of arbitration was Abu Dhabi. This follows the recent move by the Dubai International Arbitration Centre (DIAC), which in 2022 introduced the Dubai International Financial Centre, another offshore jurisdiction, as its initial seat. As such, the arbitral institutions of Abu Dhabi and Dubai now have common law jurisdictions as their default or initial seats.

(3)    What provisions govern consolidation and joinder of parties?

The new rules include provisions for consolidating multiple arbitrations into a single proceeding and allowing the joinder of new parties. In this regard, the arbitrateAD Rules have addressed a notable deficiency observed in the old ADCCAC rules. Articles 9 to 12 of the arbitrateAD Rules now enable parties to limit the risk of concurrent proceedings and facilitate the resolution of complex disputes involving multiple parties and contracts. Pursuant to article 10(2), where there is no agreement between parties, the Court has the power to determine if claims under several contracts can proceed in a single arbitration. The Court will take into account various factors including whether the arbitration agreements are compatible, whether the relief sought arises out of the same transaction or series of transactions, and matters of expediency and efficiency. Similarly with respect to joinder, article 11 gives the Court the right to join parties even where there is no party agreement.

These additions will undoubtedly be welcomed in the arbitration landscape of Abu Dhabi.

(4)    What powers are granted to the tribunal under the arbitrateAD Rules?

One of the challenges faced by arbitral institutions is balancing effective scrutiny against the need for expediency and efficiency in the management and administering of cases. Article 31(1) of the arbitrateAD Rules grants the tribunal extensive powers to oversee the proceedings and gather evidence. For instance, article 31(3) outlines the tribunal’s “broadest powers” among others to “direct the timetable and procedure of the arbitration; bifurcate proceedings; convene meetings, case management conferences, or hearings; direct the taking of evidence; exclude cumulative or irrelevant evidence; decide to hear witnesses, expert witnesses appointed by the parties or any other person(s); appoint one or more experts, after consulting with the parties; and direct the parties to focus the presentation of their case on issues that are deemed by the Tribunal to be relevant”.

Article 33(2) also provides that the tribunal has “full authority over the conduct of the hearing”, allowing it to decide whether the hearing shall be conducted in-person, remotely or in a hybrid set-up. This feature is commonly adopted in most modern arbitral rules, serving to advance efficiency objectives and promote more environmentally-sustainable arbitration practices.

(5)    In what ways does the use of technology feature in the new rules?

Technology has a prominent place in the arbitrateAD Rules. In addition to permitting electronic submissions and virtual hearings, article 41(4) allows for the award to “be signed electronically by the Tribunal (including by using software which provides for the digital verification of the signatory's identity and their intent to sign the document), if deemed appropriate, taking into account all relevant circumstances, including but not limited to the applicable law(s)”.

The validity of an electronically-signed award has been the subject of debate in recent years. The arbitrateAD Rules provision hinges on the law applicable to the arbitration. Uncertainty exists regarding the enforceability of such an award under UAE law. The position is also unclear for a number of other jurisdictions, suggesting that arbitrators may wish to adhere to more conventional methods of signing the award, until domestic legislation around the world catches up with digital signature practices.

(6)    How are awards scrutinised under the arbitrateAD Rules?

The scrutiny of arbitral awards is a crucial final step towards the issuance of the final award. Under article 40(2) of the arbitrateAD Rules, the Court is empowered to scrutinise the tribunal’s award for any “apparent clerical errors, inconsistencies, or omissions in the Award or to matters addressed in the Award Checklist”. The ‘Award Checklist’ is a periodic resource provided by the Court to arbitrators acting under the arbitrateAD Rules. The Court is not empowered to comment on the merits of the underlying award. The arbitrateAD Rules have not mirrored article 34 of the ICC Rules 2021, which explicitly empowers the Secretariat of the ICC to also draw the tribunal’s attention “to points of substance”.

Should any inconsistencies be identified, the parties can, under article 42 of the arbitrateAD Rules, apply to the tribunal for correction and/or interpretation of the award, or the tribunal may do so of its own volition.

(7)    What does the express waiver of rights to appeal, recourse, or defence entail?

Article 41(12) of the arbitrateAD Rules stipulates that parties shall be deemed to have waived their rights to any appeal, recourse, or defence against the award, except in cases of evident clerical or computational inaccuracies, or if the tribunal failed to consider specific claims presented during the arbitration process, as separately addressed under articles 42 and 43 of the arbitrateAD Rules. This is applicable “insofar as such waiver can be validly made”. This provision reinforces the parties’ ability to achieve a conclusive resolution of their disputes and avoid prolonged appeals, which could compromise the hallmark trait of arbitration: speed and efficiency.

(8)    The emergency arbitration process

Article 35 of the arbitrateAD Rules establishes provisions for emergency arbitration, allowing parties to seek urgent preliminary measures before the tribunal’s constitution by applying for an emergency arbitrator through the case management office, regardless of whether they have submitted their request for arbitration.

The emergency arbitration’s seat aligns with the agreed arbitration seat, or defaults to the ADGM if there is no agreement to that effect. The emergency arbitrator possesses powers similar to a traditionally constituted tribunal and may issue orders or awards with written reasons. The emergency arbitrator is expected to rule on applications within 10 days, extendable subject to a reasoned request.

(9)    The expedited procedure

The expedited proceedings procedure outlined in article 36 of the arbitrateAD Rules will apply unless explicitly agreed otherwise by the parties, with the threshold for the application of the expedited proceedings set at AED 9 million for the aggregate of all claims and counterclaims. This amount is significantly higher than the threshold set by other regional institutions, such as DIAC, which sets its threshold for the combined value of claims and counterclaims for expedited proceedings at AED 1 million under article 32.1(a) of the DIAC Rules 2022.

Expedited proceedings are presided over by a sole arbitrator, appointed as per article 13(5) of the arbitrateAD Rules, who conducts proceedings in accordance with article 20(3), taking into account their expedited nature.

Moreover, arbitrateAD’s expedited procedure simplifies expedited proceedings such that the request for arbitration is considered the statement of claim, the answer to the request for arbitration constitutes the statement of defence, and if a counterclaim is made, the claimant’s reply to the counterclaim shall constitutes the statement of defence to the counterclaim. This streamlines the whole process, eliminating the need for additional submissions.

The tribunal may, upon consultation with the parties, decide disputes based solely on documentary evidence and must issue the final award within four months of receiving the case file, extendable by the case management office for up to two additional months upon a reasoned request.

III.    Concluding remarks

The newly established arbitrateAD centre and its new rules mark a significant advancement for arbitration in Abu Dhabi, and indeed in the Middle East. The modern and forward-looking approach demonstrates a commitment to balancing effective scrutiny against the need for expediency and efficiency in the management and administration of cases. While this is certainly a positive development for the arbitration landscape in the UAE and further afield, it remains to be seen whether the new rules go far enough to drive change, how the new institution will compare in terms of service and speed to other major regional or global arbitral centres, and whether the new institution will attract users and their arbitration agreements.

In-depth 2024-057