Dissertations for Construction Law in Dispute Resolution (CLDR)

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Browsing Dissertations for Construction Law in Dispute Resolution (CLDR) by Subject "arbitration agreement"

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    The Application of the Doctrines of Severability and Competence- Competence in the UAE
    (The British University in Dubai (BUiD), 2014-07) ELBANA, MOHIEELDIN MOSAAD
    Arbitration is considered one of the best options available to parties for resolving their disputes. Nowadays, courts strongly encourage arbitration, and thus, has been largely adopted locally and internationally. With that, this dissertation aims to determine whether, or not, the UAE arbitration practice in respect of the arbitral jurisdiction aligns with the international practice. In addition, this dissertation will also examine the importance and implications of Competence-Competence and severability doctrines under the UAE law. In-depth research has been done to answer these issues. This includes, without limitation, going through a series of reviews and gathering information from different sources such as journals, books, court judgments, awards, and articles. We discovered that there is an urgent need to introduce new global concepts within the effective legislation, including the competence-competence and severability concepts, to tackle the issue of who decides the jurisdiction of the tribunal and make sure that the arbitration agreement is not ineffective. This finding suggests that, in the UAE, these principles need to be applied in all cases except when there is a solid challenge to the basis of the arbitration such as when there are valid allegations that the party did not agree on the arbitration agreement. Therefore, we recommend forming an independent body, which can be in the form of a judicial committee (be it an independent circuit in local courts or linked with the technical office of the Minister of Justice or the Chairman of the court (the “Committee”)) to deal with the issues that negatively affect the continuation of the arbitral proceedings on summary basis. The role of this Committee shall be to facilitate the determination of cases and to support the parties’ autonomy. If the Committee finds a major reason that prevents the arbitral proceedings, as if the arbitration agreement was never formed or the dispute is not arbitrable, the case shall forthwith be referred to the competent court for determination, otherwise the matter shall be referred to the tribunal to continue the arbitral proceedings.
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    Invalidity of Arbitration Agreement Impact on Referral to Arbitration and Arbitral Awards
    (The British University in Dubai (BUiD), 2021-12) DWEIK, DINA TAYSEER; Dr Abba Kolo
    Arbitration has become a common route for dispute resolution, particularly in large projects carried out in the Middle East, in which the parties involved may be part of international entities. Most of the standard forms of contracts recommend arbitration in lieu of litigation due to numerous reasons that are mainly attributable to time and expertise. Nonetheless, in recent years the phenomenon of parties making attempts to file cases before the courts became frequently observed in spite of the existence of an Arbitration Agreement in the contract. In this regard, it is strongly advised for contracting parties to have genuine intention to bind by arbitration, by referring their disputes to arbitration rather than recourse to courts or any other dispute resolution mechanism, and by abiding by arbitral awards. The UAE Arbitration Law, the Model Law and the New York Convention were all drafted with a formidable initiative to secure the parties’ intention to arbitrate, by giving effect to an Arbitration Agreement. To elaborate further, giving effect to an Arbitration Agreement can be demonstrated through the referral to arbitration by either dismissing a claim filed before a court or a stay of court proceedings for lack of jurisdiction. In the same context, giving effect to an Arbitration Agreement, in regard to the arbitral awards, can be understood as the recognition and enforcement of arbitral awards by the courts, whether they were domestic or foreign arbitral awards, without any exemptions, except for those referred to in the national law and conventions as compelling reasons to revoke the arbitral award. However, there are limited cases in which a claimant may refer the dispute to courts or contest enforcing an arbitral award and challenge its validity, albeit having agreed on arbitration as a dispute resolution route, for reasons related to the validity of the Arbitration Agreement beside other reasons included in the aforementioned legislations which mainly revolve around adequacy, integrity and jurisdiction. The subject of this study is to highlight the validity of the Arbitration Agreement and how does this impact the referral to arbitration and the recognition & enforcement of arbitral awards.
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    Invalidity of Arbitration Agreement Under the United Arab Emirates Law
    (The British University in Dubai (BUiD), 2017-09) TOUHBOUB, HEBA ZAIN
    This dissertation discusses the Invalidity of Arbitration Agreement Under the United Arab Emirates Laws, as arbitration agreement is considered as the foundation stone of the arbitral process. Therefore, it is important to discuss the arbitration agreement and highlight the main conditions that help the parties to establish a valid arbitration agreement, it focus mainly on the cases that the parties should maintain to avoid having invalid agreement and in result a challenge of the arbitration award, which will delay the arbitral process and the enforcement of the arbitration award. This paper also includes arbitration and arbitration agreement definition, the features of arbitration as well as the differentiations between arbitration and other dispute resolution mechanisms such as mediation. The paper also aims to highlight the role the national courts in terms of the application of the invalidity of the arbitration award by presenting the procedures to submit such application to the court. Moreover, a recommendation to develop the efficiency of the court role regarding the invalidity of the arbitration award has been presented. This thesis addressed slightly the arbitration under the arbitration centers in the United Arab Emirates.
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    Types Validity of Arbitration Agreement Under United Arab Emirates Law
    (The British University in Dubai (BUiD), 2016-06) Falaknaz, Sara Ali
    The theme of this dissertation is a detailed study about the conditions required to validate any arbitration agreement under the United Arab Emirates Law. It deals with the basic characteristics and definitions of the arbitration agreement as well as how is it valid under the UAE law. This thesis will also discuss the advantages and the disadvantages of the arbitration in UAE. The paper also aims to present the types of the arbitration agreement in UAE and the requirements of each agreement to be valid as it will also examine the existing legislation and laws along with some Court of Cassations judgments. The paper will as well mention the rules of the several arbitration institutions in UAE regarding the different types of the arbitration agreement and their requirement. Any arbitration clause may be defective, as this paper will also state the different types of the defective arbitration clauses and how to avoid it by using standard arbitration clauses.