DIFC courts enforce awards on interim measures for arbitration seated outside the DIFC courts
Mostafa Hamdy Ahmed
Cairo university, college of law, English section
This blog is written by Mostafa Hamdy Ahmed, a Law Graduate of Cairo university, college of law, English section
Background:
In 2024 the DIFC Court of Appeal approved in a former judgement that it has the governance to apply interim measures and that the court has this capability to issue such a judgement indeed though it's not the seat of arbitration as the interim measures takes the form of an award.
In Niel VS. Nader 2024 the case is concerning a provisional award that rendered by an arbitral bench that was it's seat of arbitration in UK( London), in the concerned arbitration agreement the controversies that arise are meant to be pertained to arbitration according to DIFC- LCIA Rules( a report in 2021) the common adventure that was between UAE( DIFC) and London( LCIA) was cancelled and all the rights and scores between these organisations were transferred to the recently established( DIAC) the arbitral bench in this case procedures was according to the DIAC Arbitration rules on this base.
The issue of the governance of the arbitral bench and its effect weren't bandied about, as obviouse the court would deliver its award on governance at any time soon. The issue that was subject of the Judgement however was whether under DIFC Law No. 1 of 2008 as amended by DIFC Law No. 1 of 2013( “ DIFC Arbitration Law ”) an award on interim measures can be delivered when the seat of arbitration is outside the DIFC.
The conclusion of the award :
The issue were between two articles:
1- composition 24 of the DIFC arbitration law that gives the right for the party who's in favour of the interim measures and has been approved to request from the DIFC an order administering the courts order, composition 24 only applies when the seat of the arbitration is the DIFC.
2- composition 42 and 43 for the same law provides for the recognition and enforcement of awards and apply when the is outside of the DIFC. The Descendant bandied that composition 24 of the DIFC is the only system of administering interim measures and it does n't apply when the seat of arbitration is outside the DIFC the bench might not apply an award on interim measures when the seat of arbitration is in london. The appeal court had a different point of view grounded on the interpretation of the word( award) in article 42 and 43 of the DIFC arbitration law it concluded that there's nothing in these papers that distinguishes between final and partial awards on the one hand and the interim measures on the other hand, it points that the composition 24 doesn't refers to interim measures in an award before this this award which eventually determined the disagreement. The appeal court decided that there was no satisfying reason for not administering an award, whether it be an award for interim measures or another subject.
Effect of the Award:
The award is a welcome countersign of the earlier development, which is in line with both transnational trends and the UAE commitment to act as apro-arbitration governance as it confirms the actuality of an fresh option for the parties to to arbitrations seated outside of the DIFC to apply courts awards on interim measures this chance is an fresh to the possibility to request interim measure directly from DIFC bench.
Resources:
https://www.difccourts.ae/rules-decisions/judgments-orders/court-appeal/neal-v-nadir-2024-difc-001
https://cms.law/en/int/expert-guides/cms-expert-guide-to-international-arbitration/difc
https://www.lexology.com/library/detail.aspx?g=2a7420c1-e3e1-44a5-8311-6d316517cc9b