The author, whose copyright is indicated on the title page of the work, has granted the British University in Dubai the right to lend his research work to users of its library and to make partial or single copies for educational and research use. The author has also granted permission to the University to retain or make a digital copy for similar use and for the purposes of digital preservation of the work. With this, the purpose of the thesis is to determine whether the UAE arbitration practice in terms of arbitral jurisdiction is aligned with international practice or not.
This finding suggests that in the UAE these principles should be applied in all cases except where there is a strong challenge to the basis of the arbitration, such as where there are well-founded allegations that a party did not agree to the arbitration agreement.
THE ARBITRAL JURISDICTION
- Background
- Research Problem
- Research Question
- Aim and Objectives
- Research Methodology
- Significance of Research
- Structure of the Dissertation
Therefore, in the event of a dispute between the parties on the composition of the container contract or the validity of the arbitration agreement, this would be a challenge for. Therefore, the court can decide on all questions related to the existence, formation and/or validity of the arbitration agreement itself. 18 See Articles 5 and 6 of the Model Law (United Nations Commission on International Trade Law Model Law on International Commercial Arbitration of 1985 as amended in 2006).
19 Article 21 of the UNCITRAL Rules (United Nations Commission on International Trade Law) and Article 6(4) of the ICC Rules (International Chamber of Commerce Arbitration Rules).
OVERVIEW OF ARBITRATION AND ITS KEY PRINCIPLES
- Introduction
- The Rise and Development of Arbitration
- Defining Arbitration
- The Arbitration Agreement
- Competence (or Jurisdiction)
- The Concept of Arbitrability
- The Concept of Severability
- The Concept of Competence-Competence
- Conclusion
There is no express definition of the arbitration agreement under the laws of the UAE. 50 pcs. 2 of Article 203 of the CPC provides that: "2 - An arbitration agreement can only be proved in writing". Not only does the doctrine distinguish the container contract and the arbitration clause, but also provides that the parties formed an independent arbitration agreement, which is in the form of the arbitration clause.
The survival of the arbitration clause is very important for deciding how to resolve the dispute.
THE DOCTRINE OF SEVERABILITY
- Introduction
- The Need for Severability
- The Doctrine of Severability
- The Meaning
- The Essence
- The Rise and Existence of Severability
- Opinions and Arguments of the Doctrine of Severability
- Conclusion
It provides that the validity of an arbitration clause is independent and not conditional on the validity of the Container Contract. Cardegna (in 2006) when it held that an arbitration provision can be severed from the rest of the container contract and unless the arbitration clause is contested, the validity of the contract must be determined by the arbitrator in the first instance. It is considered a legal fiction that, in addition to the Container Contract, the parties form another contract in the form of the arbitration clause.
Contrary to most arbitration rules, some commentators believe that the severability doctrine does not (i) conform to contract law and (ii) appear logically sound. That should not be accepted and the courts will hear the arguments about the enforceability of the container contract before submitting a case to arbitration. In addition, in international arbitration, there is no international court with mandatory jurisdiction to rule on the validity of the arbitration agreement.
This defeats one of the main advantages of arbitration in terms of speed and simplicity. iii). The arbitration agreement will be valid in all cases, including when the container contract is void due to matters of public policy, such as if the cause of the container contract was illegal103 or was invalidated by the courts104. Some opinions106 distinguish between two meanings of the doctrine of separation, namely (i) the independence and separation of the arbitration agreement from the container contract.
Thus, the annulment of the Container Contract will not invalidate the arbitration agreement; and (ii) independence of the arbitration agreement from local laws, to the extent that the parties do not violate them. However, in line with the theory of separation of contract terms, the invalidation of the arbitration agreement will not in itself have a negative impact on the Container Contract, which remains valid.
THE DOCTRINE OF COMPETENCE-COMPETENCE
- Introduction
- The Competence-Competence Doctrine
- The Meaning
- The Merits
- The Rationale
- Judicial Review of the Doctrine
- Different Opinions and Arguments on the Competence-Competence
- Conclusion
Although there is no specific definition of the doctrine of jurisdiction in law, other definitions can be found in case law than is common. The merit of the competence-jurisdiction doctrine is that it empowers arbitrators to decide their jurisdiction. 129 Smit, Severability and Jurisdiction – Jurisdiction in International Arbitration Am. to decide on the content of the case, including challenging jurisdiction132.
Although the concept that the arbitral tribunal has the competence to determine its own jurisdiction is one of the most modern arbitration rules that now include in some shape or form133. 132 G Hutchinson, "The Existence of the Arbitration Agreement and the Kompetenz-Kompetenz Principle in Irish Law". For more information, see N Horn, 'The Arbitration Agreement in the Light of the Case Law of the UNCITRAL Model Law Int.
Certain legal scholars are of the opinion that Jurisdiction-Jurisdiction empowers the arbitral tribunal to look at the underlying contract and check the existence of a valid arbitration clause. In this respect, the UNCITRAL Model Law does not suggest that the doctrine of Jurisdiction-Jurisdiction should be considered as an independent competence of the tribunal, however, it said that the doctrine of severability. A proper interpretation of the relevant terms, based on valid legal basis189, would lead to the fact that the Jurisdiction-Competence doctrine would not be complete without the severability doctrine.
Therefore, it can be argued that the doctrine of competence-competence is conditioned by the principle of separability and not an inherent power of the court190. While the courts have jurisdiction to determine their jurisdiction by statute and statute, the arbitral tribunal's jurisdiction, on the other hand, derives from the parties.
INTERNATIONAL RECOGNITION OF THE DOCTRINES OF SEVERABILITY AND
- Introduction
- International Recognition of the Severability and Competence-Competence
- The Conventions
- The Arbitral Institutions Rules
- The International Laws and Rules
- Conclusion
Pursuant to paragraphs 3 and 5 of Article 6 of the ICC Rules, the tribunal is entitled to rule on its jurisdiction. This indicates that the invalidation or rescission of the Holder Contract will not invalidate the arbitration agreement. Such an arbitration clause will be treated as an agreement independent of the other provisions of the contract.
Under Article 7 of the AAA Rules, the arbitral tribunal is entrusted with the authority to rule on its own jurisdiction. Furthermore, the tribunal is empowered to decide on the formation or validity of the Holder Contract. The arbitral tribunal will have the power to determine the existence or the validity of the contract of which an arbitration clause forms part.
52 . decision by the arbitral tribunal that the contract is null and void will not ipso jure entail the invalidity of the arbitration clause. 1. “The arbitral tribunal shall have the power to rule on its own jurisdiction, including any objections relating to the existence or validity of the arbitration agreement. A decision by the arbitral tribunal that the Contract is void will not automatically entail the invalidity of the arbitration clause…”.
A decision by the arbitral tribunal that the contract is void does not ipso jure invalidate the arbitration clause." (emphasis added). The doctrine of severability is necessary to avoid any invalidity of the arbitration agreement when the underlying container contract is void.
RECOGNITION OF THE DOCTRINES OF SEVERABILITY AND COMPETENCE-
- Introduction
- Recognition of the Severability Doctrine in the UAE
- The Legal Recognition of Severability
- The Judicial Recognition of Severability
- Evaluation of the Court Judgments
- Jurisprudence View on the Severability Principle
- The Legal and Judicial Recognition of the Competence-Competence Doctrine in the UAE
- The Draft Arbitration Law
- The Recognition of the Severability and Competence-Competence Doctrines by Arbitration
- Conclusion
While many courts in UAE have ruled that an arbitration clause is not affected by the invalidity or cancellation of the container contract. Pursuant to paragraph 1 of Article 203246 of the CPC, the legislature of the UAE accepts the arbitration agreement in the two globally accepted forms i.e. a separate filing agreement or an arbitration clause. the rest is valid. 244 Article 56 of the CTC states that: "A subordinate thing (right or obligation) is declared null and void if the main thing (right or obligation) is declared null and void".
Further, according to paragraph 2 of Article 203 of the CPC, only written agreements248 can establish the existence of arbitration agreements. Nevertheless, some other opinions278 accept the application of the doctrine of separability, but with some limitations. Matters normally revolve around the existence, formation or invalidity of the arbitration agreement or container contract.
288 Paragraph 1 of Article 7 of the draft provides that: “1) The arbitration clause shall be separate from the other terms of the contract. Therefore, outside the courts, the doctrines of severability and competency-competence are recognized by most arbitration centers operating in the UAE290. This is evidenced by court decisions, jurisprudence and rules of the main arbitration institutions in the UAE.
The UAE courts' application of the doctrines of severability and competency-competence is unique. This is without prejudice to the necessity and significant benefits of the severability and Competency-Competence doctrines.
CONCLUSION AND RECOMMENDATIONS
However, the scope of the committee must be very clear in order to support the autonomy of the parties and that the committee must not exceed its limits or the essence of its formation. In its decision, the committee must review the documents presented at a very high level and not take a position on the merits of the case. In case of doubt, or if nothing appears in relation to the arbitrability of the case, the parties must, however, be referred to arbitration.
The decision of the Committee will be final and will be issued within a very limited period of time, such as two months. Al-Sharqawi M, International Commercial Arbitration (Al-Tahkim Al Tijari Al-Dawly) (Dar Al Nahda Al-Arabia, Cairo, 2011). Briri M, International Commercial Arbitration (Al-Tahkim Al-Tejri Al Dawly) (3rd edn, Dar Al Nahda Al Arabiya, Cairo, 2004).
Sami F, International Commercial Arbitration (Al-Tahkim Al-Tejary Al-Dawly) (6th edn, Dar Al Thaqafa Publishing, Cairo, 2012). Hutchinson G, “The existence of the arbitration agreement and the Kompetenz-Kompetenz principle in Irish law The International Journal of Arbitration, Mediation and Dispute Management 73-81. Shackleton S, "London's high cost as an arbitration venue - Court of Appeal rejects jurisdiction-jurisdiction and separation in Midgulf International Ltd v Groupe" [2010].
Ahmad Al Slqusheiri, speaker at arbitrator qualification held at Sheratoon Creek Hotel, Dubai, on 11 June 2014. Al Shehawy Al-Sharqawy, speaker at arbitrator qualification held at Sheratoon Creek Hotel, Dubai, on 12 June 2014.
