Recent developments under article 41(3) of the UAE Federal Arbitration Law (FAL), which entered into force on 16 June 2018 and replaced the former UAE Arbitration Chapter (the arbitration-specific provisions of the UAE Civil Procedures Code), provide some initial guidance on the signature of arbitral awards under the new law. Article 41(3) of FAL contains a mandatory signature requirement in the following simple terms: “the award shall be signed by the arbitrators”. No further guidance, other than this, can be found in the new law. Importantly, the simplicity of the wording echoes the analogical, albeit not identical, wording of corresponding article 212(5) of the former UAE Arbitration Chapter, which read, in equally mandatory terms, in relevant part as follows: “the award must in particular include the signatures of the arbitrators.”
Pursuant to established case law precedent, the signature requirement under article 212(5) of the former UAE Arbitration Chapter qualified as a matter of public policy and as such, had to be raised by a supervisory court ex officio (see Case No. 218/2006, ruling of the Abu Dhabi Court of Cassation of 17 October 2006). Under the old regime, to ensure the valid execution of arbitral awards, both the reasoning and the dispositive part of the award had to be signed (see Case No. 233/2007, ruling of the Dubai Court of Cassation of 13 January 2008, and Case No. 156/2009, ruling of the Dubai Court of Cassation of 27 October 2009), albeit that some few, exceptional cases required signature on the last page of the award only on the basis that the wording “based on all of the above” established a sufficiently close connection between the signed dispositive part of the award on the one hand and the reasoning part of the award on the other (see Case No. 834/Judicial Year 4, ruling of the Abu Dhabi Court of Cassation of 30 December 2010, and Case No. 537/1999, ruling of the Dubai Court of Cassation of 23 April 2000). In the event that the reasoning and the dispositive part of an award overlapped, signature of the page of the award that contained both part of the reasoning and the dispositive part was sufficient (see Case No. 16/Judicial Year 23, ruling of the Federal Supreme Court of 29 April 2003, Case No. 233/2007, ruling of the Dubai Court of Cassation of 13 January 2008, and Case No. 156/2009, ruling of the Dubai Court of Cassation of 27 October 2009). This, in turn, gave rise to the proposition that where the individual pages of the award were numbered consecutively by reference to the total number of pages of the award, a signature of the final page of the award was to be sufficient for enforcement purposes (see G. Blanke, Commentary on the UAE Arbitration Chapter, Sweet & Maxwell, 2017, at II-103). The apparent logic of the UAE courts being that the signature of individual pages of an award was to establish a nexus between the various component parts of the award to confirm their authorship by each signatory arbitrator.
In a recent ruling of 14 June 2020, basing itself on the existing case law precedent under article 212(5) of the former UAE Arbitration Chapter and on the similarity in wording between the old and new law, the Dubai Court of Cassation found in favour of the application of a strict signature requirement under article 41(3) of FAL, requiring both the reasoning and the dispositive parts of the award to be signed. This creates continuity between the old and the new regime with respect to what is considered to be the proper execution of arbitral awards under UAE law. This outcome is not necessarily surprising given the qualification of the signature requirement as a matter of public policy, as confirmed by the Dubai Court of Cassation itself. Failure to comply would therefore expose an arbitral award to potential nullification under article 53(2)(b) of FAL, pursuant to which “the [supervisory] court shall, on its own initiative, set aside the arbitral award if it finds that the arbitral award is in conflict with the public policy and morality of the state (the UAE).” For the avoidance of doubt, the court’s conclusions will probably also apply to the signature of electronic awards within the meaning of article 41(6) of FAL, requiring the electronic signing of both the reasoning and the dispositive parts of the award.
Importantly, however, short of setting aside the subject award for violating public policy in the instant proceedings, the Dubai Court of Cassation opted for remittance of the award to the Dubai Court of Appeal in order for the irregularity in execution to be rectified by the incumbent tribunal pursuant to article 54(6) of FAL. Article 54(6) resembles article 214(1) of the former UAE Arbitration Chapter in relevant part. It essentially allows a party to the arbitration to request the competent court of appeal that hears an action for annulment to suspend the annulment proceedings for a maximum period of 60 days in order to allow the tribunal to make rectifications of form to the award that would otherwise serve as good grounds for nullification. In deference to the res judicata principle, such rectifications may only go to the form of the award and not to the merits. In accordance with article 52 of FAL, the merits evidently become res judicata upon issuance of the award. To an extent, this article is also modeled on article 34(4) of the UNCITRAL Model Law, which provides for remission to the tribunal of the award in order for it to eliminate grounds that would otherwise result in the setting aside of the award. Within the context of UAE-seated arbitrations more specifically, this article provides a measure of reassurance that clerical errors of a procedural nature committed by the tribunal, such as the formalistic requirements informing the issuance and execution of the award (including, for example, the signature requirement) can be addressed in time so as to avoid nullification of the award for pro forma or formalistic reasons.
Taken in the round, whilst establishing continuity in the application and interpretation of the signature requirement under article 212(5) of the former UAE Arbitration Chapter and article 41(3) of FAL, the Dubai Court of Cassation has also helpfully confirmed the scope of article 54(6) of FAL, which applies to the rectification of irregularities in the form of the award, including the signature requirement. It is to be hoped that the application of article 54(6) of FAL in this context will contain instances of nullification of non-compliant awards, especially those that exhibit clerical irregularities in execution, going forward.
