Chapter
Introduction
Research Aim
Significance of the research
Objectives
Methodology
Structure
Chapter 2: Arbitration
Introduction
At the outset, it is necessary to explain what arbitration means, as it represents the content and essence of arbitration work. Where arbitration is preferred at the local and international level due to the advantages of arbitration which encourage parties to resort to this route due to the fact that the proceedings are confidential, less formal and supposedly cheaper than court proceedings.
Arbitration in the modern Era
7 Subsequently, UNCITRAL was established by the United Nations General Assembly in 1966. UNCITRAL's official mandate is to "promote the progressive harmonization and standardization of international trade law" through agreements, model laws and other instruments dealing with major areas of trade, from the purchase and sale of goods to dispute resolution. In 1985, the United Nations Commission adopted the UNCITRAL Model Law on International Commercial Arbitration, as this law plays an important role in helping countries reform and update their laws related to arbitration proceedings and in establishing a uniform legal framework that helps legislators draft arbitration laws7 .
Why Arbitration
The natural consequence of this is that the arbitration decision will come within a considerably shorter period of time if the same dispute is brought before the court. Therefore, given that the publication of the arbitration award to the parties' competitors may harm them, the arbitration awards may only be published with the consent of the parties to preserve the confidentiality of their dealings.
Arbitration in UAE
The UAE Arbitration Law did not specify the conditions for the validity of the arbitration agreement. 6 of 2018 on arbitration, that the arbitrator may not be a member of the board of trustees.
Chapter 3: Arbitration Agreement
Introduction
At the beginning of this section, the researcher would like to point out that the arbitration clause in the agreement or contract between the parties is independent of the rest of the terms of the contract16. It is worth noting that UAE law provides a condition that the arbitrator or tribunal may not decide the dispute solely on the basis of the rules of fairness and justice without being bound by the provisions of the law or without the terms of the law to be observed. contract in dispute and current practices between the parties to the type of dispute18.
Definition
In addition to this, it is also a condition for the validity of the arbitrator's award, since the presence of the arbitration clause entails the validity of the arbitration, and the absence of an arbitration agreement leads to the nullity of the arbitration award 22 The UAE Arbitration Law of 2018 defines the arbitration agreement as the agreement of the parties to resort to arbitration, whether this agreement was made before or after the dispute arose24.
Conditions for the validity of the arbitration agreement
Therefore, disputing parties must agree on the gender and nationality of the arbitrator before commencing arbitration proceedings. Therefore, the court rejected this appeal and confirmed the validity of the arbitrator and the judgment issued in the dispute51. Be a member of one of the approved arbitration centers in the state - Other (Please specify).
Chapter 4: Arbitrator
Who is Arbitrator
The researcher therefore believes that the arbitrator is the most important element of the arbitration, because as long as the arbitrator is competent, impartial and independent during the arbitration process, the integrity of the arbitration process and the validity of the final decision. award in dispute. Therefore, the task of arbitration may be terminated to some extent in the event of the arbitrator's death or incapacity for any reason. In addition to the legal conditions that an arbitrator must fulfill in accordance with the provisions of the law, arbitration centers have set detailed conditions for enrollment on their lists of arbitrators, the most important of which are academic education, practical experience and the precedent of the cases they have handled.
Appointing the arbitrator - Arbitrator Selection Criteria
- Obligatory conditions (As per Law)
- Terms agreed upon by the parties
Many jurists believe that defects attributable to arbitration are based on the wrong choice of arbitrator. 9 and 10 of the UAE Arbitration Law 2018 set out the conditions to be met in the selection of the arbitrator. It is also established that the arbitrator may be a foreigner and it is not required that he be of a certain nationality to perform arbitration duties.
Arbitrator vs Expert
- Qualifications
- How to be appointed
- The nature of the relationship with the appointing authority
- The Mission of the Arbitrator
- Nature of role of the Arbitrator
- Oversight of the arbitrator's work
- End of Mission
The arbitrator's relationship with the disputing parties who appointed him/her in the arbitration case is a contractual relationship based on the arbitration agreement that sets the framework for the arbitrator and defines the obligations and rights for both. While the job of the technical expert in arbitration is determined by the arbitral tribunal, with the expert deriving its jurisdiction in the dispute from a preliminary ruling of the arbitral tribunal appointing him in the case. The natural purpose of the arbitrator's job is to render an award that is final and binding on the parties.
Arbitrator’s authority
Arbitrator’s duties
- First: Duties specified by the opponents
- Second: Duties in according with the law
- Third: Duties in terms of morals and ethics
Therefore, the arbitrator has adversarial duties, legal duties, and ethical duties. These duties derive from the arbitration agreement, where the parties to the dispute specify the framework that the arbitrator will take when considering the case and the duties required of the arbitrator expressly. Herein lies the importance of the arbitration agreement, as it is the law established by the parties that must be followed by the arbitrator and by the parties themselves.
Impartiality and Independence
- Disclosure principle
- Impartiality
- Independence
30 Therefore, it is not easy to establish a consistent standard for the meaning of impartiality and independence of the arbitrator. 34 circumstances that may raise doubts about the arbitrator's impartiality, the arbitrator must notify the parties thereof. On the contrary, this may raise doubts about the lack of independence of the chairman of the arbitration court.
Liability VS Immunity
45 any fees or expenses paid to him during the arbitration proceedings, since the text of the previous law, which obliged the arbitrator to compensate for the damage caused by his mistake, has been repealed. The relationship between the arbitrator and the parties to the arbitration dispute, or the arbitration institution, is based on a contractual basis, whereby the arbitrator's role in the arbitration procedure begins with his consent to take over the task of arbitration and start the agreed arbitration procedures. Therefore, an arbitrator is deemed to be liable to the parties to the dispute if the arbitral award is set aside by reason of any error committed by him, and he may be liable and claim damages for any damage that may befall any of the parties and thus may affect the his reputation and professional standing.
Litigants’ guarantees against the arbitrator
It was based on prepared questions that contributed to the main goals of the researcher. Therefore, some believe that the disciplinary responsibility of the arbitrator is inconsistent with the private nature of arbitration. In your view, the reason for challenging the arbitrator led to the vacating of the final award.
Chapter 6: Data Analysis
Introduction
This section will consist of the collected data from the use of a closed survey, as mentioned in Appendix B, developed based on the experience of arbitrators and practitioners in the UAE arbitration field. The survey was sent to various respondents, as mentioned in Appendix A), who are knowledgeable about the research topic.
Survey design
Survey analysis
Question no. 3 and 4 identify the age group of the respondents and determine the extent of their experience in the UAE. The following questions (no. 5 and 6) aim to evaluate the diversity of the respondents in terms of their gender and nationalities. In question no 16 it was necessary to know if the respondent is a decision maker to choose an arbitrator in a case in which he is involved, should he choose him from one of the arbitrators belonging to the arbitration center, or should he select a freelance arbitrator.
Outcomes
56 Finally, it was understood from the responses of the respondents that the majority, 63%, support the idea of the existence of a unified legal center for the accreditation of the arbitrator, and 57% support the existence of a unified legal authority to issue licenses to arbitrators. to exercise the profession of arbitration.
Summery
- Conclusion
Therefore, the arbitrator is considered to be the backbone of the arbitration process, and the breach of his mission or failure to fulfill his duty of independence and impartiality may lead to the failure of the entire arbitration process and the invalidation of the arbitration award as a result. of this defect. All this means that the arbitrator works with all impartiality, transparency and complete independence from the parties in the light of compliance with the applicable law, with the aim of achieving the required balance between respect for the authority of the will and compliance with the legal regulation in society. This will consequently damage the reputation of the arbitration system and its effectiveness in resolving disputes.
Recommendations
58 The arbitrator performs the work of a judge, so he enjoys his immunity similar to the immunity of judges, except that it is considered a harmful application of the principle of absolute immunity of the arbitrator and not establishing his responsibility for actions that he does in bad faith or in bad faith. parties to the dispute and affects their financial position, especially in the case of lack of conscience and unrestrained internal motives of the arbitrator as a human being who can be wrong or right. It is imposed on the arbitrator if he violates some of his obligations, such as the obligation to pay compensation for damage caused by one of the parties to the proceedings or the obligation to return the sums he received for his fees. spent in the arbitration case. I recommend that the UAE legislature amend the text of the Arbitration Law to include in detail the instances of lack of independence and impartiality of the arbitrators which, if found, would render the arbitral tribunal unfit to hear the case, as it has detailed these circumstances which apply to the arbitrators and are mentioned in detail in the Civil Procedure Act.
Limitation
Bailey J, 'Construction Law Volume I, II & III' (Informa Law from Routledge 2011) BÂRSAN MM and CARDIŞ MM, 'The Arbitration Clause. Levin P, Construction Contract Claims, Changes, and Dispute Resolution (3rd edn, 2016) Lim CL, Ho J and Paparinskis M, International Investment Law and Arbitration (2021) Macintyre E, Business Law, vol 8 (8th edn, PEARSON 2016) . As part of my Masters in Construction Law and Dispute Resolution, I am conducting a survey to examine the role of the arbitrator in the arbitration process.
