ICC to open representative office in Abu Dhabi

The ICC has announced that it will be opening a representative office in the United Arab Emirates to service the Middle East and North Africa region.  The office aims to be open by early 2018 in the new arbitration hearing centre of the Abu Dhabi Global Market (ADGM) in Al Maqam Tower on Al Maryah Island in the UAE capital, Abu Dhabi.

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Abu Dhabi Global Market Courts secure co-operation arrangements with UAE Ministry of Justice and Federal Courts

Following on from our previous post on the enactment of the Abu Dhabi Global Market Arbitration Regulations 2015 and the creation of a new seat of arbitration in the Middle East, the Courts of the Abu Dhabi Global Market (“ADGM”) have entered into a memorandum of understanding with the United Arab Emirates Ministry of Justice (the “MoU”).

The ADGM Courts are frequently compared to the Courts of the Dubai International Finance Centre (“DIFC”) as they both operate as autonomous common law jurisdictions, operating with an independent judiciary (largely made up of experienced common law justices), carved out from the civil law jurisdictions in which they are situated, the Emirates of Abu Dhabi and Dubai respectively. However, one key difference between the ADGM and DIFC Courts is that, rather than merely applying common law principles, the ADGM directly incorporates English common law rules and principles into its legal system.

The MoU marks an important step for the integration of the ADGM Courts into the UAE legal system. The Preamble to the MoU states that the ADGM Courts “form part of the judicial system of the UAE” and, importantly, should therefore be considered UAE Courts for the purposes of international treaties.

The MoU also provides for judicial cooperation between the Federal Courts of the UAE. Clause (2)5 of the MoU states that the Federal and the ADGM Courts are to “take all necessary measures that will ensure that enforcement of the ADGM Courts’ judgments and arbitration awards issued in the ADGM” can be sought before the Federal Courts of the UAE. Importantly, ADGM judgments and arbitral awards should be enforced by the Federal Courts “without examining the substance of the dispute”.

However, given that the three Emirates with arguably the most commercial activity – Dubai, Ras Al Khaimah and Abu Dhabi itself – have elected to opt out of the UAE’s Federal judicial system (and are therefore not Federal Courts), the practical benefits of the MoU may be limited. Similar memoranda will be required to institute the same relationship with the Courts of these Emirates.

Nonetheless, what the introduction of the MoU does clearly demonstrate is the political support the ADGM enjoys from the UAE authorities and the overriding intent that the ADGM be promoted as an accommodating and arbitration friendly forum. Judging by the development of the DIFC’s relationship with the Courts of Dubai and with other courts across the globe, the MoU is likely to be the first of many such memoranda.

For further information, please contact Caroline Kehoe, Partner, Stuart Paterson, Partner, Craig Shepherd, Partner, Joseph Bentley, Associate or your usual Herbert Smith Freehills contact.

Caroline Kehoe
Caroline Kehoe
Partner
+971 4 428 6302
Stuart Paterson
Stuart Paterson
Partner
+ 971 4 428 6308
Craig Shepherd
Craig Shepherd
Partner
+971 4 428 6304
Joseph Bentley
Joseph Bentley
Associate
+971 4 428 6350

Enactment of the Abu Dhabi Global Market Arbitration Regulations 2015: the creation of a new “pro-arbitration” seat in the Middle East?

The Abu Dhabi Global Market ("ADGM"), a financial freezone in the United Arab Emirates, has enacted new arbitration regulations based on the UNCITRAL Model Law to create a new "pro-arbitration" seat in the Middle East. The ADGM Arbitration Regulations 2015 (the "ADGM Regulations") were enacted on 17 December 2015, and allow contracting parties to choose the ADGM as the seat of arbitration – no link is required to the ADGM for it to have jurisdiction.

The ADGM was recently established by decree of the Ruler of Abu Dhabi in 2013 and began operating in 2014. Similar to the Dubai International Financial Centre (the "DIFC"), the ADGM operates its own self-contained common law legal system, however, the ADGM directly incorporates English common law and a list of English statutes into its legal system by reference. In contrast, the DIFC has created its own separate body of substantive laws, with English law only applied in the event of conflict or gaps in DIFC law.

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