can I arbitrate without an arbitration clause in UAE

Under the UAE Federal Arbitration Law No. 6 of 2018, a valid written arbitration agreement is a prerequisite for compelling arbitration; without such an agreement a party cannot force the other into arbitral proceedings and must pursue litigation or another dispute-resolution mechanism.

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WHAT CONSTITUTES A VALID ARBITRATION AGREEMENT UNDER UAE LAW?

An arbitration agreement must be in writing, signed by the parties, and contain a clear intention to submit present or future disputes to arbitration, as stipulated in Article 7 of Federal Decree-Law No. 6 of 2018 on Arbitration (the Federal Arbitration Law). The agreement may be incorporated into the main contract or exist as a stand-alone document, but it must expressly define the scope of disputes, the arbitral rules that will govern the procedure, and the seat of arbitration. Oral understandings, implied consent, or mere conduct do not satisfy the statutory writing requirement; the law treats the absence of a written clause as a lack of jurisdiction for any arbitral tribunal.

CAN PARTIES AGREE TO ARBITRATE AFTER A DISPUTE HAS ARISEN WITHOUT A PRIOR CLAUSE?

Yes. The Federal Arbitration Law expressly allows a "submission agreement" under Article 8, whereby parties who are already in a dispute may consent to refer that specific controversy to arbitration. To be effective, the submission must be in writing, signed by both parties, identify the dispute with sufficient precision, and designate either an arbitral institution (such as DIAC, ICC, or LCIA) or a set of ad-hoc rules (e.g., UNCITRAL). If one party refuses to sign, the matter proceeds before the competent UAE courts unless a party successfully seeks a court-ordered arbitration under Article 11, which is granted only in exceptional circumstances and subject to strict procedural safeguards.

WHAT HAPPENS IF A PARTY INITIATES COURT PROCEEDINGS DESPITE AN EXISTING ARBITRATION AGREEMENT?

The defendant may file a plea of lack of jurisdiction, prompting the court to examine the existence and scope of the arbitration agreement under Article 10 of the Federal Arbitration Law. If the court finds a valid written agreement that covers the dispute, it must issue an order staying the litigation and directing the parties to arbitrate. Should the court decline to stay the proceedings, the aggrieved party may still enforce any subsequent arbitral award under the New York Convention, which the UAE has ratified, although enforcement may be more complex if the award is rendered after litigation has commenced.

ARE THERE ANY EXCEPTIONS WHERE ARBITRATION CAN PROCEED WITHOUT A WRITTEN CLAUSE?

The federal statute provides no general exception to the writing requirement. However, certain free-zone regimes have adopted more flexible approaches. In the Dubai International Financial Centre (DIFC), Article 5 of the DIFC Arbitration Law treats a clear exchange of emails or other electronic communications that evidences the parties' consent as satisfying the writing requirement. Likewise, the Abu Dhabi Global Market (ADGM) Arbitration Regulations accept electronic records that are capable of being accessed for subsequent reference. Outside these zones, the federal requirement remains strict, and parties seeking to rely on electronic correspondence must ensure that the exchange meets the formal criteria of a written agreement under the relevant free-zone law.

WHAT ARE THE PRACTICAL STEPS TO ENFORCE AN ARBITRATION AGREEMENT IN THE UAE?

1. Verify the agreement - Confirm that the arbitration clause satisfies the writing and signature requirements of Article 7 of the Federal Arbitration Law, and that it clearly identifies the scope, rules, and seat.
2. Issue a formal notice - When a dispute arises, serve the other party with a notice invoking the arbitration clause, proposing the appointment of arbitrators in accordance with the agreed procedure, and specifying a reasonable timeframe for response.
3. Seek judicial assistance if needed - If the respondent refuses to participate, file an application with the competent UAE court (usually the Civil Court of the emirate where the defendant is domiciled) requesting an order to compel arbitration under Article 10. Attach the arbitration agreement, any correspondence demonstrating the parties' intent, and a draft of the terms of reference for the tribunal.
4. Court hearing and order - The court will schedule a hearing, assess the validity of the agreement, and, if satisfied, issue a stay of the litigation and direct the parties to arbitrate. Costs typically include court filing fees (approximately AED 1,000-2,000) and attorney fees for preparing the application, which vary according to the complexity of the case and the seniority of counsel.
5. Proceed to arbitration - Once the tribunal is constituted, follow the agreed rules for pleadings, evidence, and hearings. The award, once rendered, can be enforced in the UAE under the New York Convention or, if the seat is within the UAE, directly through the local courts.

FREQUENTLY ASKED QUESTIONS

Does the UAE recognize international arbitration awards?
Yes. The UAE is a signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958). Under Article 213 of the UAE Civil Procedure Code, foreign arbitral awards are enforceable unless specific grounds for refusal exist, such as a violation of public policy, lack of proper notice, or the award being beyond the scope of the submission.

Can an arbitration clause be waived by conduct?
Waiver is possible when a party, with full knowledge of the arbitration agreement, actively participates in court proceedings without objecting to jurisdiction. Article 12 of the Federal Arbitration Law treats such conduct as a waiver of the right to arbitrate. Mere delay or procedural missteps, absent a clear intention to litigate, do not constitute waiver.

What if the arbitration agreement designates a foreign seat?
The UAE courts will uphold the parties' choice of seat, provided it does not contravene UAE public policy. The arbitration will proceed under the law of the chosen seat, and any resulting award may be enforced in the UAE under the New York Convention.

Are there time limits to initiate arbitration after a dispute arises?
The Federal Arbitration Law does not prescribe a limitation period for commencing arbitration; any applicable limitation derives from the substantive law governing the claim (e.g., the UAE Civil Code for commercial contracts). Parties should consult the relevant limitation provisions to avoid procedural bars.

Can a party challenge the arbitrator's impartiality after the award?
Challenges to impartiality must be raised before the award is rendered, typically during the arbitration proceedings. Post-award challenges are limited to setting aside the award on grounds such as arbitrator bias under Article 34 of the UNCITRAL Model Law, which the UAE has incorporated via the Federal Arbitration Law.

Is mediation required before arbitration in the UAE?
No statutory precondition mandates mediation before arbitration unless the parties' agreement expressly includes a multi-step dispute resolution clause. The UAE encourages amicable settlement, but mediation remains voluntary unless contractually stipulated.

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