The UAE has rapidly emerged as a leading financial centre, attracting large global investors and businesses. As international developers and contractors continue to invest in construction projects, there has been an increasing trend in the use of arbitration in Dubai. The arbitration process is the preferred method to resolve disputes by commercial companies. As the certified language of arbitration proceedings is in English, a specialist tribunal can be appointed as opposed to the more broad UAE courts, and arbitration is generally more cost-effective and less time-consuming. This has led businesses and investors in the UAE to ensure that arbitration clauses or agreements are inserted into their contracts. Furthermore, the downturn in economic conditions in the real estate market over the past few years has led to an increase in disputes in general, and parties are more likely to issue court proceedings than to try to recover their losses through other ventures.
In International Chamber of Commerce (“ICC”) arbitrations, new claims that are subsequent to the terms of reference are subject to the arbitral tribunal’s authorization. Article 23(4) of the ICC Arbitration Rules (“Rules”) give discretion to the arbitral tribunal by setting forth that the arbitral tribunal shall consider the nature of new claims, the stage of the arbitration, and other relevant circumstances.
The issue of new claims in ICC arbitrations and the application of Article 23(4) in these matters are analyzed in this article.
The Supreme Court of Canada recently reviewed the law of recognition and enforcement in Canada of foreign judgments in a decision called Chevron Corp. v. Yaiguaje. The decision has implications for large multi-national corporations with subsidiaries in Canada, as the effect of the decision is to open the door to ignoring the separate legal personality of the local subsidiaries and putting at risk the assets of those subsidiaries in order to satisfy a judgment obtained against a foreign parent corporation in a foreign jurisdiction. The decision is therefore a victory for foreign plaintiffs who are being thwarted in their enforcement efforts by complex corporate structures that shield assets from them under the legal fiction of separate corporate personalities.
The importance of interim and conservatory measures ordered by arbitrators has been widely recognized in international arbitration, since the important sets of rules regulating arbitrations set forth provisions enabling the arbitral tribunal to rule on these measures. Interim and conservatory measures are more commonly used in practice, with the adoption of fast-track proceedings by the important set of rules regulating arbitration. As there is a possibility that the parties will not abide by these measures in all of the cases, there is an emerging need to enforce these measures outside of the seat of the arbitration.
In July 2013 the United Nations Commission on International Trade Law (“UNCITRAL”) adopted rules for Treaty-based Investor- State arbitration to provide transparency (“Rules”). The rules came into force on April 1, 2014. The Rules are considered as an important step taken in the evolving field of investment arbitration considering that previous versions of UNCITRAL Arbitration Rules do not refer to issues of transparency even in cases of strong public policy.