Interim measures are essential tools in arbitration practice to protect rights, preserve assets, and ensure the integrity of arbitral proceedings.
However, the interaction between court-issued interim measures and arbitration agreements presents nuanced differences, particularly when comparing the UNCITRAL Model Law with the UAE Federal Law No. 6 of 2018 (the UAE Arbitration Law).
This article aims to clarify these differences and offer strategic considerations, especially given the challenges posed by the high costs of appointing an emergency arbitrator.
The Approach of the UNCITRAL Model Law
Article 9 of the UNCITRAL Model Law stipulates that a party’s request for an interim measure from a court, whether before or during arbitration proceedings, is not incompatible with the arbitration agreement. This realistically reflects the need for urgent protection, particularly before the arbitral tribunal is constituted.
Article 17 also grants the arbitral tribunal itself the authority to issue interim measures once constituted, such as preserving evidence, maintaining the status quo, or securing assets, thereby offering flexibility to the parties without undermining their commitment to arbitration.
The Approach of UAE Federal Law No. 6 of 2018
The UAE Arbitration Law, which heavily draws from the UNCITRAL Model Law, permits parties to approach UAE courts for interim measures despite the existence of an arbitration agreement. Specifically, Article 18 grants courts the authority to issue protective measures before the tribunal is constituted or when the tribunal is unable to effectively implement such measures.
However, there are some practical differences:
- Judicial Caution: Courts tend to exercise caution and show considerable deference to the sanctity of the arbitration agreement.
- Emergency Arbitrator Mechanism: The law provides for the appointment of an emergency arbitrator prior to the constitution of the arbitral tribunal. However, the associated high costs can be burdensome, especially in medium or small-scale disputes.
The Impact of Administrative Decision No. 4 of 2025
The issuance of Administrative Decision No. 4 of 2025, which prohibits parties from filing applications to appoint experts through amicable settlement centers, has further complicated the situation. When there is an urgent need to preserve technical evidence, parties are now forced to either:
- Request interim measures from the court, or
- Resort to the appointment of an emergency arbitrator.
This has been exemplified in practice when both the Amicable Settlement Center and the Urgent Matters Court rejected applications to appoint an expert in a dispute between a property owner and an interior design company.
The objective was to preserve the condition of a property before engaging a new contractor, and despite an arbitration clause being in place, parties faced significant hurdles in obtaining urgent measures.
Strategic Considerations
In light of these developments, parties are advised to:
- Draft Arbitration Agreements Carefully: Explicitly include provisions allowing recourse to courts for interim measures without breaching the arbitration agreement.
- Assess Timing: In the absence of a tribunal and under urgent circumstances, carefully evaluate whether approaching a court or an emergency arbitrator is the more appropriate course.
- Balance Costs and Risks: Assess whether the potential loss of evidence or assets outweighs the financial burden of appointing an emergency arbitrator.
Conclusion
While both the UNCITRAL Model Law and UAE Federal Law No. 6 of 2018 allow parties to seek interim measures from courts without violating the arbitration agreement, the practical application in the UAE demands significant caution, particularly after Administrative Decision No. 4 of 2025.
Therefore, strategic planning and a cost-benefit analysis are crucial to safeguard parties’ interests without unnecessarily escalating arbitration-related expenses.