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Strict Interpretation of Arbitration Clause Waiver by Dubai Courts

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Strict Interpretation of Arbitration Clause Waiver by Dubai Courts

In UAE mainland courts, invoking an arbitration clause must be done before engaging in any substantive discussion of a case's merits. Under Article 8 of Federal Law No. 6 of 2018 on Arbitration and Article 86 of Decree Law No. 42 of 2022 on Civil Procedures, making submissions on the case merits is considered a waiver of the arbitration clause. A recent Dubai Court of Cassation (COC) judgment reinforced this principle by ruling that a defendant who verbally responded to questions on the merits during a hearing with a court-appointed expert was deemed to have waived his right to rely on the arbitration clause, even though he later submitted a written defense invoking the clause.

This case illustrates that Dubai Courts strictly interpret the waiver of arbitration clauses to include both verbal and written arguments presented before a court-appointed expert, who is typically only responsible for technical assessments, not legal submissions. The judgment broadens the scope of what constitutes a waiver, emphasizing that any discussion of case merits, even outside the courtroom, can result in losing the right to arbitration.

 

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