Key Court of Cassation judgement on arbitration clause translation: What you need to know

A recent judgement of the Dubai Court of Cassation established the authority of the court to interpret the intention of the parties in an arbitration clause drafted in English disregarding an erroneous translation in Arabic. Importantly, the Court confirmed that the agreement of the parties to resort to the courts is for the issuance of interim measures is not in any way a waiver of arbitration agreement.

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On 30 July 2024 Dubai Court of Cassation reversed a judgement of the Court of Appeal who had mis-interpreted the arbitration clause agreed between the parties by relying on an incorrect Arabic translation of the clause agreed between the parties in English. The translation of the dispute resolution clause in Arabic provided that the parties shall resort to arbitration to settle their disputes but that the parties may also resort to the courts to settle their dispute. The Court of Appeal had considered that the agreement of the parties granted jurisdiction to the Court to consider the substance of the dispute. The Court of Cassation, however, considered the original provision of the arbitration clause agreed between the parties which mentioned that the parties shall exclusively resort to arbitration to settle their disputes but that the parties may resort to the competent courts with respect to injunctive relief or provisional remedies. The Court of Cassation considered that although “injunctive relief” or “provisional remedies” are common law concepts that do not exist under UAE law, the translation of the clause should take into consideration the intention of the parties which intended to give the courts the authority to only order precautionary or interim measures which are recognised under UAE law.

The Court of Cassation clarified that the agreement of the parties to resort to the courts to obtain injunctive relief or provisional remedies does not grant the court’s jurisdiction over the substance of the dispute.

The Court of Cassation therefore confirms the right granted to parties by Federal Law No. 6 of 2018 on Arbitration (the Arbitration Law) to request interim or precautionary measures from the courts either before or during arbitration proceedings. Importantly, the Court of Cassation confirms that such measures do not constitute a waiver of the arbitration agreement. In reaching this conclusion the Court of Cassation has highlighted the importance of relying on accurate Arabic translations of dispute resolution clauses that express the true intention of the parties.

If you have any questions regarding the implications of this judgement or need assistance with arbitration clauses, please contact Sherif Maher or Hesham El Samra.