In the course of a dispute, tendering agreements may be concluded to remove the dispute from the jurisdiction of the court, provided that the court of first instance has not yet rendered its judgment and that the pleading period has not yet ended. While each dispute is unique, here are some general considerations that a party to a submission agreement should consider. (3) A tender agreement is an agreement that is concluded when the dispute has already arisen between the parties and no arbitration clause has been concluded beforehand. It is common to find this type of arbitration agreement in construction contracts where the contract may refer to FIDIFC`s standard terms that include a standard arbitration agreement. In this context, the Court of Cassation indicated in one of its judgments that a presentation agreement is less common than an arbitration clause. Since they are prepared after the dispute arises, they are usually much longer than an arbitration clause. A bidding agreement provides details of the dispute and issues between the parties and states that it will be submitted to arbitration. However, UAE law is unclear in this regard. Article 203(3) of the Civil Procedure Act of the United Arab Emirates stipulates that the subject matter of the dispute must be defined in an arbitration clause or during the examination of the claim, and Article 216(1)(a) provides that an arbitral award may be set aside in the absence of an “arbitration document”.
It is not clear whether this is an arbitration clause or a more comprehensive document such as a bid agreement. While far from finding a solution to any dispute in the COVID era, filing agreements offers another way to resolve disputes in an unusual legal environment. It is therefore always recommended that, while there may be an arbitration clause, a submission agreement (generally referred to in this context as an “act of arbitration” or a “statement of work”) be signed in each arbitration, whether or not the disputed contract contains an arbitration clause. A missing clause in one of these aspects may be impracticable or allow the other party to delay the proceedings as long as the ambiguity is clarified. For example, if the clause does not specify the number of arbitrators and no agreement is reached on this issue, this must be determined by the institution administering the arbitration) or, if the parties have not agreed on an institution, by the courts of the seat. The Party should consider what additional conditions, if any, could be set out in the submission agreement in order to adapt the procedure to the specific dispute. When national courts are asked for help, it can waste a lot of time and money. In a case handled by Al Tamimi & Company in Abu Dhabi, the plaintiff appealed to the national court to request the appointment of a single arbitrator and the tribunal rendered a judgment appointing a single arbitrator in accordance with the arbitration clause set out in the disputed agreement.
The agreement stipulated that the arbitrator was to be an arbitrator to be mutually agreed upon by the parties. It is important to note that the benefits offered by arbitration institutions during this pandemic are not limited to those who have arbitration clauses in their existing agreements. Even if your contract contemplates litigation, it`s not too late to leverage the comparative strengths of arbitration at this unusual time – using a filing agreement. While traditional disputes revolve around the physical location of a courthouse, arbitration institutions have long monitored disputes remotely, favoring conference calls and electronic filing of documents. In recent years, arbitration institutions have shown a willingness to go further, allow remote testimony and, in some cases, hold entire hearings remotely. Therefore, with the onset of the COVID-19 crisis, arbitration institutions were well positioned to quickly focus on remote dispute resolution. Instead of closing its case, the court kept the case pending by not ruling on the court fees that will be decided at a later date. The tribunal essentially took over the arbitration and treated it as an arbitration administered by the tribunal under the procedural law of the United Arab Emirates, which is not what the parties had agreed.
Many trade agreements now include an arbitration clause. The clause governs how any future disputes are resolved. As a rule, these are standard clauses provided by the institution and agreed by the parties to manage the future dispute. Such clauses should contain at least details on (a) the arbitration rules governing the procedure and the institution responsible for administering the procedure, if any; the seat or place of arbitration, the number of arbitrators and the language of the arbitration […].