Pre-arbitration procedural requirements such as referring disputes to a designated engineer, consultant, or Dispute Adjudication Board (DAB) before initiating arbitration—are common in construction contracts, particularly under FIDIC-based frameworks.

Yet, a recurring legal debate arises:

What happens if these procedural steps are skipped?

Do such failures deprive the arbitral tribunal of jurisdiction altogether?

Or do they merely affect the timing or admissibility of the claim?

In a significant recent decision, the Dubai Court of Cassation addressed this issue, reaffirming a growing international consensus that distinguishes between jurisdictional competence and admissibility filters in arbitration.

2. Case Summary – Dubai Cassation No. 946/2024 (Commercial)

In this case, a contractor challenged an arbitral award rendered under the auspices of the Dubai International Arbitration Centre (DIAC), arguing that the arbitral tribunal lacked jurisdiction because:

A third party was involved in the dispute, but not a signatory to the arbitration agreement.

The arbitral tribunal ignored contractual preconditions, particularly a failure to refer the dispute to the Engineer before commencing arbitration, by Clause 67(1) of the FIDIC-based contract.

The contractor was not properly notified of the engineer’s decision or of the dispute being referred to the engineer.

The applicable notification rules under the UAE Civil Procedure Law (Federal Law No. 42 of 2022) were allegedly not followed.

However, the Dubai Court of Cassation rejected the challenge, holding that the failure to observe preconditions, such as prior referral to the Engineer, does not affect the jurisdiction of the tribunal.

Instead, it affects the admissibility of the claim and is a matter for the tribunal to assess.

3. Legal Classification: Jurisdiction vs. Admissibility

The Court made a clear conceptual distinction:

Jurisdiction

Admissibility

Determines whether the tribunal has the legal authority to hear the dispute.

Determines whether the claim can be heard at this time and in its present form.

Affects the existence of arbitral power.

Affects the procedural readiness of the claim.

Can be reviewed by national courts.

Generally left to the discretion of the arbitral tribunal.

The Court emphasized that preconditions to arbitration, such as dispute escalation clauses, are not matters of jurisdiction, but of admissibility meaning that even if a party fails to comply with such requirements, it does not automatically return jurisdiction to state courts.

4. Contractual Context: FIDIC Contracts

In this case, the parties had incorporated the 1987 FIDIC Conditions of Contract (Red Book), with amendments via Particular Conditions. Clause 67 required disputes to be first referred to the Engineer for a decision, and only if the decision was unsatisfactory (or absent after a time period), could arbitration proceed under Clause 67(3).

The Court also noted that the parties expressly waived their right to arbitration under Clause 67(3) in specific scenarios, making engineer decisions final in some cases.

This contractual background significantly influenced the Court’s reasoning, showing respect for party autonomy and the principle that the contract is the law of the parties.

5. Statutory Framework: UAE Federal Arbitration Law (Law No. 6 of 2018)

The Court referred to several key provisions of the UAE Arbitration Law:

Article 5(3): Allows incorporation of an arbitration clause by reference.
Article 37(2): Recognizes the enforceability of arbitration provisions found in model contracts or international standard forms (e.g., FIDIC), unless they conflict with public policy.
This supports the enforcement of multi-tier dispute resolution clauses embedded in industry-standard forms.

6. Comparative Perspectives

Courts and tribunals in leading arbitration jurisdictions have adopted a similar view:

🇬🇧 UK – Emirates Trading Agency v. Prime Mineral Exports [2014] EWHC 2104 (Comm)

The English High Court held that a failure to attempt amicable settlement before arbitration under a multi-tier clause went to admissibility, not jurisdiction. The arbitral tribunal retained the power to decide on such issues.

🇸🇬 Singapore – BBA v. BAZ [2020] SGCA 53

The Singapore Court of Appeal affirmed that compliance with pre-arbitration steps (e.g., negotiation, mediation, referral to DAB) is a matter of admissibility, not jurisdiction, unless the clause is drafted in strictly mandatory language clearly barring arbitration.

🇺🇸 USA – BG Group v. Argentina, 134 S. Ct. 1198 (2014)

The US Supreme Court held that a requirement to first litigate in local courts before arbitration was a procedural condition, not a jurisdictional prerequisite, and thus for arbitrators, not courts, to decide.

7. Practical Implications for Practitioners and Contracting Parties

Parties must follow pre-arbitration procedures carefully, failing to do so may delay their claim or result in dismissal for being premature.

However, such failures rarely invalidate the tribunal’s jurisdiction or make arbitration entirely void.

Arbitrators are empowered to interpret and enforce pre-arbitration clauses based on contract terms, factual circumstances, and procedural fairness.

Where ambiguities exist, the burden is on the claimant to prove that conditions have been met, or were excused.

8. Conclusion

The Dubai Court of Cassation has provided a well-reasoned and internationally harmonized clarification: pre-arbitration conditions are a matter of admissibility, not jurisdiction.

This distinction ensures that arbitration remains a flexible, efficient, and contractually driven dispute resolution method, without opening the floodgates to judicial interference on technical procedural grounds.

Parties to arbitration agreements should therefore:

Draft preconditions clearly and precisely;
Maintain written records of compliance with all steps.
Avoid initiating arbitration prematurely;

Recognize that arbitral tribunals have primary authority over procedural matters, including whether preconditions have been met.

This jurisprudential development enhances certainty and efficiency in the arbitral process and reinforces the UAE’s alignment with international best practices in arbitration.