The Emirate of Dubai has issued a new executive decision, called the Dubai
Executive Council Decision No. 16 of 2022 (Dubai Decision
), governing the rules on appointment and procedure for arbitrators
involved in fault-based divorces.
Brief Background
Family law matters and disputes in the UAE are broadly regulated by the
Federal Law No. 28 of 2005 (UAE Personal Status Law), as
amended from time to time.
According to the last changes in the UAE Personal Status Law, parties will
have to prove their claim if either of them applied for divorce due to
harm, for example, if a wife has claimed divorce due to physical violence,
verbal abuse, physical separation, lack of financial support or adultery.
In such cases, the court may ask the party to provide evidence, such as
witnesses, to support their claim.
If such evidence has not been provided, the case could be rejected due to
lack of proof. However, the law gives the applicant the right to file his
case for a second time and request the court to appoint arbitrators to
settle the matter amicably. If the matter cannot be settled in such a
manner, the court may grant the decree of divorce. Of course, this will
have a significant impact on financial arrangements of the parties, but
that could be discussed in a separate article.
In this article, we will analyze the Dubai Decision which has been issued
by the Emirate of Dubai with regard to the appointment of arbitrators.
It is important to bear in mind that these regulations apply only in the
Emirate of Dubai and replace the existing rules in Dubai (Regulation No. 8
of 2006) related to arbitrators in family lawsuits.
Divorce Proceedings in the UAE
Under the UAE Personal Status Law, divorce can be obtained either through
mutual consent or through contested proceedings via fault-based divorce.
Appointment of Arbitrators by Spouses
In a fault-based divorce proceeding, the Dubai Decision provides for the
right of both parties to nominate one arbitrator each.
In accordance with Article 9/c of the Dubai Decision, the arbitrators
nominated by the spouses are required to: (a) be from the family of one of
the spouses and familiar with their marital conditions; and (b) not be a
witness, representative or guardian of one of the spouses.
Appointment of Arbitrators by a Judge
According to Article 9/b of the Dubai Decision, if both spouses or one of
the spouses are unable to nominate the arbitrators, the judge has the right
to appoint arbitrators from the arbitrators’ roll established under the
Dubai Decision.
Article 8 of the Dubai Decision sets out the conditions to be met for an
arbitrator to be entered in the roll. These conditions include the
arbitrator to be a Muslim male with full legal capacity, medically fit, be
married or previously married, have good conduct and behavior, have no
judgment convicting him of any felony, familiar with Shariah law and not
less than 35 years of age, amongst others. These conditions are much more
elaborate than those in the previous rules.
Both kinds of arbitrators, whether appointed by the judge or the spouses,
will have to take an oath under Article 11, without which the arbitration
will be deemed void.
What are the Duties of the Arbitrators?
Article 12 of the Dubai Decision clearly sets out the duties of the
arbitrators, which they must follow during the process of arbitration. The
arbitrators are required to follow the provisions of the UAE Personal
Status Law, the Dubai Decision and other relevant rules.
They must maintain confidentiality during the proceedings and investigate
the causes of discordance, be soft spoken while addressing the spouses and
not rush into making a decision regarding separation.
Reconciliation Efforts and Arbitration Proceedings
It is the duty of the arbitrators to make all efforts to reconcile the
spouses, including by way of seeking assistance of their relatives. If the
arbitrators believe that reconciliation is impossible, a report setting out
the causes of disagreements, extent of harm between the parties and
conclusion drawn by the arbitrators, should be prepared and submitted to
the judge under Article 13/e.
If the arbitrators don’t draw the same conclusion, then each arbitrator
will submit its report individually and the court will appoint two
additional arbitrators or a single arbitrator whose opinion will prevail
under Article 13/f of the Dubai Decision.
Can the Arbitrators be Dismissed?
Yes. Under Article 15 of the Dubai Decision, if a spouse believes that an
arbitrator will not perform his duty without bias, a request for dismissal
of the arbitrator may be made. This would especially be applicable in cases
where the arbitrator is a relative, guardian, custodian or employee of
either of the spouses or where there is an existing dispute between one of
the spouses and the arbitrator.
Conclusion
The Dubai Decision is a welcome move, as it attempts to streamline the
arbitration process by clarifying the persons, and conditions to be met,
for being appointed as an arbitrator in family disputes. However, given
that the law has just come into force, its effective implementation remains
to be seen.
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About the Author
Dr. Hassan Elhais publishes analysis of UAE arbitration matters, including arbitration agreements, dispute resolution and arbitral awards. For readers researching an arbitration lawyer in Dubai, his writing offers insight into the legal questions surrounding these topics. Explore his published work and practice-area information for further context.
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