The recognition and enforcement of domestic and foreign awards in the UAE is subject to various regimes, depending on whether recognition and enforcement is sought onshore or offshore. Onshore recognition and enforcement is a process conducted before the mainland UAE courts*^[2] while offshore recognition and enforcement is carried out in the so-called free zones. For the purposes of this article, there are two relevant free zones in the UAE, the Dubai International Financial Centre (DIFC) and the Abu Dhabi Global Market (ADGM). Both are autonomous common law jurisdictions, which exist alongside the UAE civil legal system. Recognition and enforcement in the Emirates of Abu Dhabi and Dubai may therefore either be subject to the the civil onshore regime of the Abu Dhabi and Dubai courts or to the free zone regimes of the ADGM and DIFC courts. In addition, domestic awards, i.e. awards rendered in the UAE, may be challenged, both onshore and offshore, before the courts of the seat.

In light of this, the UAE courts limit their review of arbitration awards to procedural grounds only. These tend to be pleaded by the award debtor in a so-called nullification defence within the meaning of Article 216 of Federal Law No. 11/1992*^[3] in response to an application for ratification.*^[4] This does not prevent an award debtor from making an application for nullification in a separate action before the competent local court.*^[5] The UAE courts have held that only an award debtor may apply for award nullification, to the exclusion of an award creditor.*^[4] The burden of proof lies with the party seeking nullification.*^[6] Importantly, if there is a finding against arbitral jurisdiction, the UAE courts will have competence to rule on the merits.*^[7] In accordance with the well-established case law of the UAE courts, Article 216(1) of Federal Law No. 11/1992 sets out an exhaustive list of grounds for the nullification of arbitration awards,*^[8] subject to the addition of a violation of public policy.*^[4] These grounds can be subdivided into defects in the arbitration agreement and deficiencies in the arbitration procedure.*^[4] Except for the public policy exception, all of these are procedural in nature and do not require a review on the merits.*^[4]

Under Article 216(1)(a) of Federal Law No. 11/1992, which focuses on the validity of the arbitration instrument, i.e. the arbitration agreement and/or the terms of reference, the UAE courts may nullify an arbitration award if there is no arbitration agreement*^[9] or the arbitration agreement is invalid*^[10] or has expired or if the award is extra petita, i.e. outside the material or subject matter scope of the arbitration agreement and/or the tribunal's mandate.*^[11] An award is unlikely to be found extra petita on the basis of expert arbitrators, such as engineers, using their own specialist knowledge in the deliberation process without a prior submission of their own technical views to the parties for comment.*^[12] An arbitrator's performance infra petita of their mandate does not constitute a ground for annulment.*^[13] However, parties are generally entitled to introduce new matters into an ongoing arbitration provided they are sufficiently linked to matters already subject to determination by the tribunal.*^[14] Partial nullity of the award on grounds of extra petita will extend to parts of the award that deal with related claims.*^[7] An award will be nullified as a whole only if the parts of the award found to be null and void are indivisible from the remaining, valid parts of the award.*^[15]

Onshore recognition and enforcement of foreign awards

Article 238 of Federal Law No. 11/1992, which gives precedence to the application of international enforcement instruments over the enforcement regime under Article 235 of Federal Law No. 11/1992, the recognition and enforcement of foreign awards is guided by bi-*^[16] or multi-lateral*^[4] Conventions that bind the UAE. Generally speaking, in accordance with those Conventions, despite their actual wording,*^[4] an award will be enforced on the basis of reciprocity, i.e. provided that the enforcement criteria of a UAE award in the country of origin mirrors those applicable to the enforcement in the UAE of an award originating in that country and enforcement is not contrary to the principle of public policy as understood in the UAE.*^[17] *^[4] In other words, in practice, the UAE courts will only enforce foreign awards under those Conventions if the country of origin also enforces awards originating in the UAE. Examples of relevant enforcement precedents include actions for enforcement under the judicial co-operation agreement with France,*^[4] Libya*^[18] and Jordan.*^[4] Non-ICSID awards also benefit from the enforcement regime under these various Conventions, including most importantly the New York Convention.*^[4]

More recently, the UAE courts have demonstrated a belated commitment to complying with the terms of the New York Convention when enforcing awards originating in other New York Convention countries.*^[19] In doing so, the UAE courts have expressly dismissed the application of grounds for challenge which are typically invoked by award debtors under Article 216 of Federal Law No. 11/1992, confirming that in compliance with their enforcement obligations under the New York Convention, there is no room for domestic procedural considerations in the application of the New York Convention.*^[20] Except for one set-back,*^[21] which is thought to

have been politically motivated,*^[4] the UAE courts have consistently enforced New York Convention awards since 2010 within the strict limits set by the terms of the Convention.*^[4] *^[4] Presentation of an original copy of the foreign award and a notarized translation of it into Arabic have been considered sufficient for enforcement under the Convention, grounds for refusal to enforce being strictly confined to those listed at Article V(2) of the Convention.

Unless one of the bi- or multi-lateral Conventions,*^[4] including the New York Convention, applies, the enforcement of foreign awards before the UAE courts follows the same rules as enforcement of foreign judgments.*^[22] UAE courts may refuse enforcement of a foreign award on grounds, such as:

• 1 the lack of proper jurisdiction of the tribunal at the place of arbitration;

• 2 deficient issuance of the arbitration award at the place of arbitration;

• 3 improper summoning or representation of one of the parties in the foreign arbitration proceedings;

• 4 the contradiction of the foreign award with a previous UAE judgment or its violation of public policy or bonos mores as understood in the UAE.*^[23]

It is important to note, recognition and enforcement is based on a principle of reciprocity,*^[24] and the UAE courts will only apply the provisions under Article 235 of Federal Law No. 11/1992 with awards issued in countries that, in turn, recognise and enforce UAE awards.*^[25] That said, given the UAE's wide, unreserved enforcement obligations under the New York Convention,*^[26] which require the UAE to recognise and enforce foreign awards from Convention and non-Convention countries alike, enforcement under Article 235 of Federal Law No. 11/1992 is anticipated to become practically insignificant. Nevertheless, in the majority of enforcement actions under the New York Convention to date, the UAE courts have, whether rightly or wrongly, emphasised the Convention origin of the award as a pre-requisite for enforcement.

Recognition and enforcement offshore are governed by the procedural regimes applicable in the free zones, i.e. the DIFC and the ADGM. Importantly, recognition and enforcement in one of the free zones is entirely independent from recognition and enforcement onshore. However, questions, arise where the onshore location of the award debtor's assets requires execution of an arbitral award onshore.

Recognition and enforcement in the DIFC*^[27]

Recognition and enforcement in the DIFC is governed by the DIFC Arbitration Law and benefits from the free movement of judicial instruments between the offshore and onshore courts under the Judicial Authority Law (Dubai Law No. 12/2004) as amended.

In their capacity as supervisory courts, the DIFC Courts, like the UAE Courts, will not perform a review on the merits. The legal basis for recognition and enforcement of domestic awards before the DIFC Courts is Article 42 of DIFC Law No. 1/2008, under which, ‘[...] awards [...] ratified by the DIFC Court may be enforced within the DIFC in the manner prescribed in the Rules of Court [i.e. the RDC]'.*^[28] Article 42(1) of DIFC Law No. 1/2008 confirms the DIFC Courts' obligation to ‘recognise [...] as binding within the DIFC [...] an arbitral award' whether it is international or domestic*^[29] and to ‘enforce [it] upon application in writing [...]' subject to the provisions of Articles 42-43 of DIFC Law No. 1/2008. Grounds for refusing recognition and enforcement of an arbitral award by the DIFC Courts are confined to those set out in Article 44 of DIFC Law No. 1/2008 and as such are restrictive, echoing the grounds for refusal underlying the New York Convention and support the general arbitration-friendliness of the DIFC Courts. There is little (if any) identifiable precedent to date.