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NEWS April 29 2020

Challenging & Enforcing Arbitration Awards 2020

By Areen Jayousi, Partner & Justin Alexander Gambino, Senior Associate

 
Applicable requirements as to form of arbitral awards

1. Must an award take any particular form (eg, in writing, signed, dated, place, the need for reasons, delivery)?
 
The form requirements for an award issued ‘onshore’ in the UAE are provided for under article 41 of Federal Law No. 6 of 2018 on Arbitration (Federal Arbitration Law), which states the award must: (i) be in writing; (ii) be issued by a majority of arbitrators; (iii) be signed by the arbitrators; (iv) state the reasons on which the award is based (unless otherwise agreed or not required under the applicable law); (vi) state the parties’ details; (vii) state the arbitrators’ details; (viii) include the arbitration agreement; (ix) give a summary of each party’s claims, statements and documents; (x) state the order made and the reasons on which it is based; and (xi) specify the date and place of issuance of the award. Under article 44, the arbitrators must notify the signed award to the parties within 15 days from issuance.
 
The Federal Arbitration Law does not apply to the special economic (or ‘offshore’) zones within the UAE – ie, the Dubai International Financial Centre (DIFC) and the Abu Dhabi Global Market (ADGM) – which have their own specific arbitration regulations.
 
Under article 38 of DIFC Law No. 1 of 2008 (the DIFC Arbitration Law) and article 50 of the ADGM Arbitration Regulations 2015 (the ADGM Arbitration Regulations), the award must be in writing and signed by a majority of arbitrators. Unless otherwise agreed or in case of settlement, the award shall lay out the grounds upon which it is based. It shall also specify the date and arbitral, as well as fixing the arbitration costs. A signed copy of the award shall be delivered to each party.
 
 
Applicable procedural law for recourse against an award

2. Are there provisions governing modification, clarification or correction of an award?
 
The Federal Arbitration Law provides for the modification, clarification and correction of an award issued in the UAE.
 
Article 49 allows a tribunal, upon request, to interpret any obscure or ambiguous part of the award. Unless otherwise agreed, such request must be made within 30 days upon receipt of the award. The tribunal will have 30 days (which can be extended by 15 days) from receipt of the request to provide a written interpretation, which shall become part of the award.
 
Article 50 allows for correction of any material errors in the award (clerical or computation), either upon request or on its own volition. A request for correction must be made within 30 days from receipt of the award. The tribunal will have t30 days to make the correction. This deadline may be extended by 15 days. Once made, the correction is notified within 15 days and forms part of the award.
 
Article 51 allows a party, within thirty days from receipt of an award, to request the tribunal to make an additional award on claims presented in the proceedings but not addressed in the award. If deemed justified, the tribunal will have 60 days to issue the additional award (subject to a further 30-day extension), which will become part of the award.
 
Should the arbitral tribunal refuse a request under articles 49–51, the party may then approach the competent court to do so (article 51(4)).  
 
For offshore awards, article 40 of the DIFC Arbitration Law and article 52 of the ADGM Arbitration Regulations impose a 30-day deadline whereby a party may ask the tribunal to correct an error or provide an interpretation of a part of the award. If justified, the tribunal shall do so within 30 days. It may correct any error on its own within 30 days of the date of the award. A party may also request the arbitral tribunal within 30 days to make an additional award which, if justified, it will do within 60 days.
 
3. May an award be appealed to or set-aside by the courts? If so, on what grounds and what procedures? What are the differences between appeals and applications for set-aside?
 
Article 53(1) of the Federal Arbitration Law sets out the grounds upon which an award can be set aside, namely where:
 
• no arbitration agreement exists or it is void or has become void under the law chosen by the parties (or under UAE law if no law is specified);

• either party was incompetent or lacked capacity to execute the arbitration agreement;

• an individual does not have the legal capacity to dispose of the disputed right under the law governing his capacity;

• a party was deprived of the right to present its case because it did not receive proper notice of the appointment of an arbitrator or of the arbitration, the tribunal breached the party’s right to due process or for any other reason beyond the party’s control;

• the award does not apply the designated law;

• the appointment of the arbitrators and establishment of the tribunal was not in accordance with the Federal Arbitration Law or the parties’ agreement;

• the proceedings were marred by irregularities that affected the award or the award was not issued within the specified time;

• the award decides matters not falling within the terms of reference or exceed their scope but, if those matters can be separated from those on which the tribunal had the authority to rule, only the portion of the award addressing issues on matters not submitted to arbitration may be set aside.
 
Article 54(2) imposes a 30-day time limit for a party to present a set-aside action. 
 
Article 53(2) allows a court to set aside an award on its own where: (i) the subject matter of the dispute cannot be submitted to arbitration; or (ii) the award offends public policy or morals of the state.
 
While a party can apply for set-aside, it cannot appeal the merits of the award. It can, however, appeal the court’s decision dismissing a set-aside action (article 54(1)).
 
As for offshore jurisdictions, DIFC Arbitration Law (article 41) and ADGM Arbitration Regulations (article 53) state that set-aside application is the only available recourse and provide the grounds for which set-aside is warranted, namely where:
 
• a party to the arbitration agreement lacked capacity;

• the arbitration agreement is not valid under the applicable law;

• the party against whom the award is invoked was not given proper notice of the appointment of an arbitrator or of the proceedings or was otherwise unable to present its case;

• the award decides on matters not falling within the terms of reference or exceed their scope but, if those matters can be separated from those on which the tribunal had the authority to rule, only the portion of the award addressing issues on matters not submitted to arbitration may be set aside; and

• the composition of the tribunal or the procedure was not in accordance with the parties’ agreement or, absence such agreement, with the applicable law.
 
Article 53(2)(a)(vi) of ADGM Arbitration Regulations provides for set-aside where the award is not yet binding or has been set-aside by the competent authority in the arbitral seat or under the law of which the award was rendered.
 
Both the DIFC Arbitration Law (article 41(2)(b)) and ADGM Arbitration Regulations (article 52(b)(3)) empower a court to set-aside an award where: (i) the subject matter of the dispute was not arbitral; or (ii) it conflicts with UAE public policy. The DIFC Arbitration Law mandates set-aside where the dispute is expressly referred to a different body or tribunal.
 
Set-aside actions in both jurisdictions require that the application be made within three months unless otherwise agreed.
 
4. What is the applicable procedural law for recognition and enforcement of an arbitral award in your jurisdiction? Is your jurisdiction party to treaties facilitating recognition and enforcement of arbitral awards?
 
The recognition and enforcement of awards issued onshore outside the UAE (ie, foreign awards) is governed by a recent amendment to the Civil Procedure Code (repealing articles 235 to 238) (ie, Cabinet Decision No. 57/2018).

The UAE is also party to treaties which promote the recognition and enforcement of foreign awards, including the ICSID Convention and the 1958 New York Convention. The UAE has signed several BITs and is member of multilateral agreements (ie, the Investment Protection Agreement of the Organisation of Islamic Cooperation (1981), the Riyadh Convention on Judicial Cooperation between States of the Arab League (1983) and the GCC Convention for the Execution of Judgments, Delegations and Judicial Notifications (1996)).

The recognition and enforcement of awards offshore are governed by article 42 of the DIFC Arbitration Law and article 55 of the ADGM Arbitration Regulations. The provisions in the above-mentioned treaties also apply offshore.

5. Is the state a party to the 1958 New York Convention? If yes, what is the date of entry into force of the Convention? Was there any reservation made under article I(3) of the Convention?

The UAE ratified the 1958 New York Convention in 2006 without reservation. The Convention applies to awards being enforced in the UAE, including the DIFC (DIFC Arbitration Law, article 42) and the ADGM (ADGM Arbitration Regulations, article 55).
 

Recognition proceedings

6. Which court has jurisdiction over an application for recognition and enforcement of arbitral awards (reciprocity and/or commercial relationship)?
 
Article 55 of the Federal Arbitration Law mandates that an enforcement application for a domestic award onshore be made to the Chief Justice of the competent Court of Appeal.
 
The Federal Arbitration Law is silent as to the enforcement of arbitral awards issued outside of the UAE. However, under the Cabinet Decision No. 57/2018 (see question 4), an application for enforcement need only be submitted to the competent execution judge. 
 
UAE’s offshore jurisdictions each have their own competent courts for the enforcement of arbitral awards, namely the Courts of First Instance.
 
7. What are the requirements for the court to have jurisdiction over an application for recognition and enforcement of arbitral awards? Must the applicant identify assets within the jurisdiction of the court that will be the subject of enforcement for the purpose of recognition proceedings?
 
A petitioner seeking to enforce a domestic award onshore must comply with the Federal Arbitration Law (article 55). The enforcement of a foreign award depends on the State in which it was issued, as the UAE has executed treaties with States for the recognition of awards (see the answer to question 4). Under Cabinet Decision No. 57/2018 (article 85) the court must confirm the following before enforcing a foreign arbitral award:

• the court does not have exclusive jurisdiction over the dispute and the foreign court was competent in accordance with the rules of international jurisdiction established by its law;

• the award was made in accordance with the law of the arbitral seat;

• the parties to the arbitration were summoned and duly represented;

• the award has the force of res judicata in accordance with the law of the seat;

• the award does not conflict with the judgment of a domestic court and/or is not contrary to public policy/morals.

A topic of discussion in the UAE has been the use of the DIFC Courts to enforce foreign judgments in onshore Dubai. The Joint Judicial Committee for the Dubai Courts and DIFC Courts rule on the ability of DIFC Courts to enforce awards outside of the DIFC.

A petitioner seeking to enforce an award in the ADGM must comply with the formalities in article 56 of the ADGM Arbitration Regulations.

Under UAE law, an applicant is not bound by any law provision to identify assets in the UAE to recognise or enforce an arbitral award.

8. Are the recognition proceedings in your jurisdiction adversarial or ex parte?
 
In the UAE, a petition for recognition of an award is obtained ex parte, but the recognition proceedings themselves are adversarial. Article 55 of the Federal Arbitration Law mandates that the petition be made with the Chief Justice (or anyone he delegates), who then serves it on the respondent. The respondent can challenge the award with a set-aside action or when opposing of the petition to confirm the award.
 
Articles 85 and 86 of the Cabinet’s Decision No. 57/2018 require a party seeking to enforce a foreign award onshore in the UAE to file a petition with the execution court in the jurisdiction in which enforcement is sought. The judge will have three days to render his or her decision and this can be appealed by the respondent.
 
Application for recognition and enforcement of awards in the DIFC (regardless of where issued) can be made without notice, yet the court may instruct the applicant to serve the application on the respondent where the set-aside deadline has not yet expired, or there is some doubt about regularity of the award or its service upon the respondent.
 
Rule 232 of the ADGM Court Procedure Rules 2016 provides that an applicant seeking enforcement can make an application without notice. If permission to enforce is granted, the order must be then served on the respondent (Rule 234).
 
9. What documentation is required to obtain the recognition of an arbitral award?
 
Article 55 of the Federal Arbitration Law requires that a party seeking enforcement must submit an application to recognise the award. The application must be accompanied by:

• the original award or a certified copy;

• a copy of the Arbitration Agreement (translated into Arabic);

• an Arabic translation of the award, attested by a sworn translator (if issued in any other language); and

• a copy of the minutes of filing of the original award in Court.

A party seeking to enforce an award offshore must submit an arbitration claim form together with the original/ duly certified copy of the award and arbitration agreement. Where not in English, the court may request the party to provide a translation.

10. If the required documentation is drafted in another language than the official language of your jurisdiction, is it necessary to submit a translation together with an application to obtain recognition of an arbitral award? If yes, in what form must the translation be? 
 
For the enforcement of onshore awards in the UAE, an award issued in a language other than Arabic must be fully translated in Arabic. The translation must be attested by a sworn translator.
 
When seeking to enforce an award in the DIFC or AGDM, where the award and/or agreement are not in English, the courts may request the party to provide a certified translation thereof.
 
11. What are the other practical requirements relating to recognition and enforcement of arbitral awards 
 
In all three jurisdictions, an application for recognition and enforcement requires payment of a court fee. 
 
12. Do courts recognise and enforce partial or interim awards?
 
Interim/partial awards are enforceable in the UAE (Federal Arbitration Law, article 39). A party seeking to enforce interim/partial award must apply to the Chief Justice of the competent Court of Appeal (or anyone he delegates). Article 21(4) requires a party seeking to enforce an interim order to obtain prior written permission from the tribunal. 
 
Article 24 of the DIFC Arbitration Law permits a party to apply to the DIFC Court of First Instance to enforce an interim measure, provided that the applicant has first obtained written permission from the tribunal.
 
Article 28 of the ADGM Arbitration Regulations provides that a party seeking to enforce an interim measure, must make an application to the ADGM Court of First Instance or ‘any competent court’, with notice to the opposing party.  
 
13. What are the grounds on which an award may be refused recognition? Are the grounds applied by the courts different from the ones provided under article V of the Convention?
 
Article 55(2) of the Federal Arbitration Law provides that the grounds for which an onshore court can refuse recognition of an award are the same as those entitling it to grant a set-aside action under article 53(1) (see question 3).
 
The grounds for which a court can refuse enforcement in the DIFC and ADGM mirror those under the New York Convention (article V), i., where a party established that:
 
• a party to an arbitration agreement lacked capacity;

• the arbitration agreement is not valid under the applicable law;

• the party against whom the award is invoked was not given proper notice of the appointment of an arbitrator or of the proceedings or was otherwise unable to present its case;

• the award decides on matters not falling within the terms of reference or exceed their scope but, if those matters can be separated from those on which the tribunal had the authority to rule, only the portion of the award addressing issues on matters not submitted to arbitration may be set-aside; or

• the composition of the tribunal or the procedure was not in accordance with the parties’ agreement or, absence such agreement, with the applicable law:

• the award has not yet become binding on the parties or has been set-aside or suspended by a court of the jurisdiction in which, or under the law of which, that award was made.

Recognition and enforcement of the award may be refused where a court finds that:

• the subject-matter of the dispute was not arbitral under the applicable law; or

• it would be deemed contrary to UAE public policy.
 
14. What is the effect of a decision recognising the award in your jurisdiction? Is it immediately enforceable? What challenges are available against a decision recognising an arbitral award in your jurisdiction?
 
Under the Federal Arbitration Law (article 55), the judge has 60 days from receiving an application to recognise/enforce the award, unless there are grounds calling for set-aside. Under article 56, an action for set-aside does not stay enforcement. However, the court may issue a stay upon request where a party can establish good cause. The court shall decide the request within 15 days after the date of the first scheduled hearing. If the stay ordered, the court has 60 days to decide on the set-aside application.
 
In the DIFC, a party applying for award enforcement must submit the original award (or a duly certified copy) and the original arbitration agreement (or a duly certified copy). Pursuant to article 41 of the DIFC Arbitration Law, recourse to the court against an arbitral award may be made only by an application for setting aside. Once the award has been ratified by the court, it will be enforceable both within and outside the jurisdiction to the extent permitted under the Judicial Authority Law.
 
Articles 55 and 56 of the ADGM Regulations provide that an award issued in the AGDM be enforced as if it were a judgement of a court within the jurisdiction and all of the court’s powers in respect of the enforcement of judgments will apply to its enforcement.
 
15. What challenges are available against a decision refusing to recognise an arbitral award in your jurisdiction?
 
Under article 57 of the Federal Arbitration Law, a party can appeal a court order granting or denying enforcement of an award with the competent Court of Appeal within 30 days of the order’s notification to the parties. This order may be further appealed to the Court of Cassation.
 
In offshore jurisdictions, the Court of First Instance’s decision to refuse recognition of an award can be appealed to the Court of Appeal.
 
16. Will the courts adjourn the recognition or enforcement proceedings pending the outcome of annulment proceedings at the seat of the arbitration? What trends, if any, are suggested by recent decisions? What are the factors considered by courts to adjourn recognition or enforcement?
 
Article 56(1) of the Federal Arbitration Law clarifies that a set-aside action will not stay enforcement of an award. However, the court may nonetheless stay enforcement upon request where good cause is shown. The court shall decide the request for a stay of enforcement within 15 days of the date of the first scheduled hearing.
 
Rule 43.70(2)(b) of the DIFC Court Rules and Rule 234(3) of the ADGM Court Regulations provide that a court may adjourn enforcement proceedings pending its decision on set-aside.
 
17. If the courts adjourn the recognition or enforcement proceedings pending the annulment proceedings, will the defendant to the recognition or enforcement proceedings be ordered to post security? What are the factors considered by courts to order security? Based on recent case law, what are the form and amount of the security to be posted by the party resisting enforcement?
 
Yes, the court may, upon a petition to adjourn the recognition/enforcement proceedings pending the annulment proceedings, order the applicant to post security or provide a money guarantee (Federal Arbitration Law, article 56(3)).
 
DIFC Arbitration Law (article 44(2)) and the ADGM Arbitration Regulations (article 57(1)(c)) provide that the court may order a party requesting a stay to post appropriate security. Pursuant to Practice Direction No. 1 of 2017, the presiding judge in the DIFC will evaluate the merits of the respondent’s challenges when deciding whether or not to order the respondent to pay the amount of the award into the court.
 
18. Is it possible to obtain the recognition and enforcement of an award that has been fully or partly set-aside at the seat of the arbitration? In case the award is set-aside after the decision recognising the award has been issued, what challenges are available against this decision?
 
Both onshore and offshore courts will generally refrain from recognising/enforcing an foreign award until after a set-aside application at the arbitral seat has been decided or the time-limit for such application has expired. 
 

Service

19. What is the applicable procedure for service of extrajudicial and judicial documents to a defendant in your jurisdiction?
 
Chapter 1 of Cabinet Decision No. 57/2018 sets out the procedure for service in the UAE. Notice by a litigant or the court may be served by a process server or, if authorised by the court, the litigant or his agent (article 3). Under articles 6 and 7, service may be performed electronically or, where not possible, in person at the head office of the respondent’s legal representative or any of its partners. In the absence of a legal representative, notice shall be delivered to an employee of the respondent’s offices. As a last resort, notice may be made by way of posting or publication.

Part 9 of the DIFC Court Rules and Part 4 of the ADGM Court Regulations prescribe the different ways in which documents may be served on the opposing party, as well as the circumstances in which service must be performed by the Court.

20. What is the applicable procedure for service of extrajudicial and judicial documents to a defendant out of your jurisdiction?
 
Service of process for individuals domiciled abroad and who cannot be served via electronic means or private companies is governed by article 7(6) of Cabinet Decision No. 57/2018. A copy of the notice shall be delivered to the Ministry of Justice so as to refer it to the Ministry of Foreign Affairs, which shall communicate it to the respondent by diplomatic means (unless a treaty applies, such as those listed in the answer to question 4).

Rules 9.53 and 9.54 of the DIFC Court Rules state that court permission to serve process outside the DIFC is not required, but the serving party must ensure it complies with the laws of the jurisdiction in which service is being made.

Rules 23 to 25 of the ADGM Court Regulations govern service outside of the jurisdiction which, inter alia, require that a party seeking to serve a claim form on the respondent must provide a notice specifying the grounds on which it is entitled to serve the claim form outside the jurisdiction.
 

Identification of assets

21. Are there any databases or publicly available registers allowing the identification of an award debtor's assets within your jurisdiction?
 
There are no databases publicly available to a creditor to locate the assets of a debtor.
 
Both the DIFC and the ADGM have company registers, but these contain limited information.
 
22. Are there any proceedings allowing for the disclosure of information about an award debtor within your jurisdiction?
 
Article 18 of the Federal Law No. 10 of 1992 on Evidence in Civil and Commercial Transactions permits a litigant to apply for a court order compelling its opponent to disclose information.
 
Rule 25.1 of the DIFC Court Rules and Rule 71.1 of the ADGM Court Regulations allow a party to apply for a court order directing a party to provide information about the location of property or assets or to provide information in relation thereof.
 
 
Enforcement proceedings 

23. Are interim measures against assets available in your jurisdiction? May award creditors apply such interim measures against assets owned by a sovereign state?
 
Yes, interim measures against assets are provided for under UAE federal law, in particular Chapter 8 of the Cabinet Decision No. 57/2018. Certain limitations to the use of interim measure against sovereign state assets apply. Article 106(1) provides that public funds of the UAE or of its emirates, (including Waqf funds), cannot be attached. Article 106(10) prohibits attachment of the funds of foreign embassies and diplomatic bodies enjoying diplomatic immunity under the condition of reciprocity.
 
Interim measures are also available under Part 25 of the DIFC Court Rules and Part 10 of the ADGM Court Procedure Rules, and these include injunctions, declarations and orders (including freezing orders).
 
While there is currently no precedent from the ADGM courts that suggests interim measures against assets owned by a sovereign state may be enforced, there is at least one judgement by the DIFC Court in which it was held that a properly drafted sovereign immunity waiver clause will be upheld (see Pearl Petroleum Company Limited & Others v The Kurdistan Regional Government of Iraq).
 
24. What is the procedure to apply interim measures against assets in your jurisdiction? Is it a requirement to obtain prior court authorisation before applying interim measures? If yes, are such proceedings ex parte?
 
Articles 18 and 21 of the Federal Arbitration Law authorise courts and tribunals to apply interim measures against assets under the cover of the general rules governing this matter provided for in the Cabinet Decision No. 57/2018 (see answers to questions 25-31 below). These measures are ex parte if applied by a court (in accordance article 18) but adversarial if applied by a tribunal (under article 21) as it would take place during the arbitration.
 
Part 25 of the DIFC Rules provides interim measures may be issued prior to and following issue of the claim(s) form. Applications can be made with or without notice. Applications with notice must state the order sought and the time/location of the hearing (which cannot be less than three days), in addition to providing evidence and a draft of the proposed order itself. Urgent applications are made without notice and must provide evidence justifying why notice has not been provided.
 
Rule 72 of the ADGM Court Regulations provides that an interim measure application may be made before a claim has been brought, but only where urgent or if it is in the interests of justice to do so. Rule 64 requires an applicant to file an application notice, witness statement and a draft of the order sought. Where made before a claim is issued, the application must be accompanied by an undertaking to the court to the effect that it will submit a claim within two days after the application notice is filed. Applications without notice may be made if permitted by a Rule, Practice Direction or the court.
 
25. What is the procedure for interim measures against immovable property within your jurisdiction?
 
Article 113 of the Cabinet Decision No. 57/2018 governs interim measures (ie, seizures) against an immovable property. To obtain an interim measure, the applicant must submit an official copy of the title deed of the property to be seized with its petition, as well as comply with the requirements provided under article 111.

Part 46 of the DIFC Court Rules provides specific procedures for the obtainment of charge orders in relation to securities and funds in court while Part 47 allows for the attachment of future assets, including money in court and future earnings. Part 25 of the DIFC Rules provides that a petitioner may apply for interim relief on either an ex parte basis or by giving notice to the other side. The application notice must state the order sought and the date, time and place of the hearing. The application notice and evidence in support must be served as soon as practicable after issue and in any event not less than three days before the Court is due to hear the application.

Part 32 of the ADGM Court Regulations provides that charging orders may be obtained on interests in trusts, stock, securities and other intangible interests held by the court.
 
26. What is the procedure for interim measures against movable property within your jurisdiction?
 
Article 111(2) and 115 of the Cabinet Decision No. 57/2018 govern the procedure for an interim measure against movable property when sought by a landlord against a tenant to secure a right to collect rent. Articles 111 and 112 are applicable to all other cases in which an interim measure is sought against movable property.
 
27. What is the procedure for interim measures against intangible property within your jurisdiction?
 
Article 111 of the Cabinet Decision No. 57/2018 lays down the general rule for all interim measures, including those sought against intangible property. However, articles 147 and 148 provide that interim measures may be applied against stocks, bonds, revenues and shares.
 
28. What is the procedure to attach assets in your jurisdiction? Is it a requirement to obtain prior court authorisation before attaching assets? If yes, are such proceedings ex parte?
 
Article 111 Cabinet’s Decision No. 57/2018 provides that a UAE court can issue a provisional seizure of assets and property where a creditor can show that, inter alia:
 
• the debtor does not have a stable residence in the jurisdiction;

• the creditor fears on the basis of serious evidence that the debtor flees or smuggles or conceals his funds; and/or

• the debt securities are at risk of being lost.
 
Before issuing an order for seizure, the court may request any statements, evidence or affidavits as well as conduct necessary investigations with the assistance of the competent administrative authorities, when it is deemed necessary.
 
Article 113 provides that, where the debtor does not hold any writ of execution or if his debt is not of a specified amount, the judge may order a provisional seizure and temporarily estimate the debt owed based on the creditor’s petition.
 
Within eight days of the issuance date of the seizure order, the creditor must file action for the establishment of right, in cases where the seizure is ordered by the magistrate of summary justice. In response, the debtor can file a grievance against the seizure order.
 
Article 109 provides that the debtor can have the attachment released by depositing a sum approximately equal to the sum owed with the court’s treasury.
 
Part 48 of the DIFC Rules governs enforcement against a debtor’s assets. Following issuance of an order for seizure, an enforcement officer shall deliver to the debtor or leave at each place where execution is levied, a notice informing the debtor of the execution. Orders issued by courts in the DIFC are generally enforceable onshore in light of a reciprocal enforcement protocol (Dubai Law No. 12 of 2004 (as amended by Dubai Law No. 16 of 2011).
 
Part 32 of the ADGM Court Regulations allows a party to apply for a charging order against a debtor’s assets. If issued by the court, an interim charging order must be served on the debtor and a hearing will be scheduled to determine whether a final charging order should be issued. The creditor, once having obtained the final charge order, can then request the court to order the sale of the property.
 
29. What is the procedure for enforcement measures against immovable property within your jurisdiction?
 
Articles 149 to 169 of Cabinet Decision No. 57/2018 set out the procedure for attachment of real estate. If the execution judge is satisfied with the seizure petition, he will communicate the seizure to the competent department. The debtor will then be notified of the seizure within seven days and, should he not object, sale of the property will be ordered. The execution judge, before selling the property via auction, should notify the debtor to pay the debt within a month. In two limited circumstances, the debtor may request an extension of this deadline. In any event, the debtor’s residence cannot be attached unless the debt arises from a mortgage on the property (article 106).
 
The DIFC Court Rules and ADGM Court Regulations do not provide for any specific provisions governing immovable property and the procedure for its seizure is that specified in question 28. 
 
30. What is the procedure for enforcement measures against movable property within your jurisdiction?
 
Under article 128 of Cabinet Decision No. 57/2018, the seizure of movables shall proceed on the basis of the case minutes, which shall include, inter alia, the writ of execution, details of the goods seized and the method of seizure. The debtor shall be asked to sign the seizure minutes. The seizure shall not require removal of the seized objects from their location except by virtue of the order of the execution judge. The judge will appoint a receiver to take possession of the seized items. The debtor can apply to the court to have the seized items sold at auction and use the proceeds to pay the creditor. It should be noted that article 106 specifies various categories of movable property which are immune from attachment.
 
The procedure to attach movable property offshore is generally that outlined in the answer to question 28, yet the DIFC Court Rules (Rule 48.3 ff) and the ADGM Court Regulations (Rule 182) provides specific provisions for the sequestration and delivery of movable property where such property has been the subject of the parties’ dispute.
 
31. What is the procedure for enforcement measures against intangible property within your jurisdiction?
 
Articles 116 to 127 of Cabinet Decision No. 57/2018 outline the procedure for the seizure of credits held by the debtor towards a third party. Seizure shall take place without notice on the debtor and payment shall be made by the garnishee by depositing the debt with the Court’s treasury. Articles 147 and 148 provide specific provisions for the seizure of stocks, bonds, revenues and shares.

Part 46 of the DIFC Court Rules provides specific procedures for the obtainment of charge orders in relation to securities and funds in court. Part 47 allows for the attachment of future assets, including money in court and future earnings.

Part 32 of the ADGM Court Regulations provides that charging orders may be obtained on interests in trusts, stock, securities and other intangible interests held by the court.
 
 
Enforcement against foreign states 
 
32. Are there any rules in your jurisdiction that specifically govern recognition and enforcement of arbitral awards against foreign states?
 
There are no specific rules that govern recognition and enforcement of arbitral awards against property owned by foreign states in the UAE.
 
Although the DIFC and ADGM rules and regulations govern the enforcement of foreign awards, these do not provide specific provisions for recognition and enforcement of awards against foreign states.
 
33. What is the applicable procedure for service of extrajudicial and judicial documents to a foreign state?
 
Article 7(6) of the Cabinet Decision No. 57 of 2018 set out the procedure for the service of documents on persons who have a known domicile abroad. Such procedure involves a copy of the notification being delivered to the Ministry of Justice, which in turn refers it to the Ministry of Foreign Affairs, which communicates the notification through diplomatic channels. However, alternative mandatory means of service may be applicable under international agreements to which the UAE is a party.
 
The procedures governing the service of documents pursuant to these international agreements also apply to DIFC and ADGM proceedings.
 
34. Are assets belonging to a foreign state immune from enforcement in your jurisdiction? If yes, are there exceptions to such immunity?
 
There is no UAE law that expressly grants a foreign state sovereign immunity from enforcement proceedings.
 
35. Is it possible for a foreign state to waive immunity from enforcement in your jurisdiction? If yes, what are the requirements of such waiver?
 
There is no waiver of sovereign immunity under UAE law as domestic law does not provide foreign states with immunity from enforcement. However, the DIFC Court has recognised waiver of sovereign immunity by a state under English law (see Pearl Petroleum, Dana Gas PJSC and Crescent Petroleum Company International Limited v The Kurdistan Regional Government of Iraq (DIFC ARB /003/2017)).
 
 
 
Source: https://globalarbitrationreview.com/jurisdiction/1006416/united-arab-emirates#answer2
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