In brief
The Dubai Court of Cassation recently confirmed an arbitral tribunal's authority to issue an anti-suit injunction in ICC arbitration proceedings. The seat of the arbitration is the United Arab Emirates (UAE). This marks a significant decision, strengthening the UAE as an arbitration friendly seat and reaffirming the arbitral tribunal's authority to order provisional or conservatory measures, including anti-suit injunctions.
Background
The anti-suit injunction was challenged before the Dubai Court of Appeal, whereby the Court of Appeal annulled the anti-suit injunction on the basis that it violated a party's right to access Courts and the UAE Federal Arbitration Law No. 6 of 2018 ("UAE Arbitration Law"). On further appeal, the Dubai Court of Cassation reversed the Court of Appeal's judgment.
Arbitral tribunal's authority to order anti-suit injunction upheld
The Court of Cassation held that article 21 of the UAE Arbitration Law expressly grants an arbitral tribunal the authority to order interim or conservatory measures (including anti-suit injunctions), as it may deem necessary and as required by the nature of the dispute.
Furthermore, the Court of Cassation highlighted that article 21 of the UAE Arbitration Law gives the arbitral tribunal the sole power to modify, suspend or terminate any provisional or conservatory measures ordered, whether on its own initiative (in exceptional cases) or by the request of any party. The Court of Appeal accordingly erred on the application of the law when it annulled the tribunal's anti-suit injunction and ought to have dismissed the court proceedings on the basis of lack of jurisdiction.
Final thoughts
The Court of Cassation's judgment is important and goes a long way in strengthening the UAE as an arbitration friendly seat, confirming the validity of interim measures - in particular anti-suit injunctions -ordered during the course of arbitration proceedings. This further confirms the UAE's commitment to preserving the integrity of the arbitration process, including arbitrations seated in the UAE.
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*This article was authored by Luka Kristovic-Blazevic (Partner and Head of International Arbitration, Middle East), Sally Kotb (Partner, Dubai) and Marlize Dumas (Associate, Dubai).
Malik Mikel, Trainee Solicitor, has contributed to this legal update.