The Dubai International Financial Centre (DIFC) Court of First Instance (DIFC Court) has considered in its recent Order of 19 September 2023 in Muhallam v Muhaf [ARB 021/2022] (the “Order”) whether a provisional award introducing interim measures is enforceable in the DIFC as an “award”. The dispute centred around the controversial issue of whether interim awards are final awards capable of recognition, including under the New York Convention.
The DIFC Court held that interim awards could be recognised in the DIFC.
The DIFC is a free zone within the Emirate of Dubai, which has its own legislative legal framework, including the arbitration law. Specifically, Arbitration Law of 2008, DIFC Law No.1/2008, as amended (the “DIFC Arbitration Law”) applies generally – when the seat of arbitration is the DIFC, and for certain provisions – when the seat is elsewhere (such as the recognition and enforcement of awards). The DIFC Arbitration Law is based on the UNCITRAL Model Law on International Commercial Arbitration. The DIFC also applies the international treaties to which United Arab Emirates (UAE) are a party, including the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (the “New York Convention”) (Article 42(1) of the Arbitration Law).
The DIFC Arbitration Law provides for the power of both tribunals seated within the DIFC and the DIFC Court to order interim measures (Article 24(1)&(3)). It expressly allows enforcement of interim measures ordered by tribunals seated in the DIFC through the DIFC Court (Article 24(3)).
The question that arose in the above case was whether the interim measures ordered by tribunals not seated in the DIFC could be enforced under the DIFC Arbitration Law.
The Conclusions of the DIFC Court
The Claimant requested the interim measures to be recognised under Article 42 of the DIFC Arbitration Law, i.e., the rule providing that arbitral awards shall be recognised as binding within the DIFC and shall be enforced subject to limited grounds for refusal (Article 44 of the DIFC Arbitration Law).
The Defendant argued that the interim measures were not “a ruling recognisable and enforceable under Articles 42 and 43 of the DIFC Arbitration Law, or in other words that it is not an “arbitral award” for the purposes of those provisions.” It further argued that the only pathway for enforcement of interim measures was Article 24(2) of the DIFC Arbitration Law, which provides for enforcement of interim measures by the DIFC Court only when the arbitration is seated in the DIFC (Articles 24(2) & 7 of the DIFC Arbitration Law).
The DIFC Court concluded that the only effect of Article 24(2) was to give the DIFC Court jurisdiction to enforce interim measures where the seat of the arbitration is the DIFC and to provide for “an exceptional regime for the enforcement of interim measures where the seat of the arbitration is the DIFC.”
The DIFC Court went on to analyse Articles 42 and 43 of the DIFC Arbitration Law (dealing with enforcement of awards), taking into account the international jurisprudence on whether awards dealing with interim measures are enforceable under the New York Convention, if contained in interim “awards”. It concluded that “there is nothing in the New York Convention and the Model Law which would prevent courts from deciding that interim measures are or can be awards for the purposes of the enforcement provisions. Instead, it is a matter for this Court to interpret what “arbitral award” means in these provisions.”
Examining the DIFC Arbitration Law, the DIFC Court concluded that Article 24 itself allows interim measures to be “in the form of an award or in another form”. The DIFC Court also found that nothing in the DIFC Arbitration Law suggested that a measure in the form of an award within the meaning of Article 24 would not be an award for the purposes of Articles 42, 43 and 44.
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