A Non-Formalistic Application of the Law by the Dubai Court of Cassation

In two recent decisions, the Dubai Court of Cassation (“DCC”) has once again demonstrated an arbitration-friendly approach by upholding arbitration agreements that could have been declared void under a strict application of the law. The first decision (DCC Challenge No. 1262/2025 (Commercial)) relates to the requirement of writing, whilst the second decision (DCC Challenge No. 595/2026 (Commercial)) concerns the timing of invoking an arbitration clause in court proceedings.

Dubai Court of Cassation Challenge No. 1262/2025 (Commercial)

The Writing Requirement

For an arbitration agreement to be valid under the laws of the United Arab Emirates (“UAE”), it must be in writing. The writing requirement is explicitly stated in Article 7 of the UAE Federal Arbitration Law No. 6/2018 (“Arbitration Law”), which provides that “[t]he arbitration agreement shall be in writing; otherwise it shall be void.” Writing can take various forms as set out in Article 7.2. For the purposes of the current analysis, Article 7.2.a is the relevant provision. It states that the writing requirement is met:

 “[i]f [the arbitration agreement] is included in an instrument signed by the parties or in the letters or other means of written correspondence between the parties, or made by an electronic mail in accordance with the regulations in force in the State governing the electronic transactions.”

Accordingly, there are three ways to conclude an arbitration agreement: (a) inserting the arbitration agreement in a document, usually a contract, signed by the parties; (b) inserting the arbitration agreement in letters or other written communication exchanged between the parties; or (c) agreeing to arbitration through electronic messaging, e.g., email.

The Courts’ Reasoning

The extent to which the writing requirement had been met was examined by the DCC in Challenge No. 1262/2025 (Commercial). An arbitration award was issued in 2025 (“Award”) in an arbitration conducted under the auspices of the Dubai International Arbitration Centre (“DIAC”). The respondent filed an application for the annulment of the Award before the Court of Appeal (“COA”), putting forward a number of arguments including the absence of a written arbitration agreement between the parties. The respondent argued that the contract between the parties had not been signed by the respondent. The COA rejected the application for annulment on the basis that offer and acceptance had taken place, that a binding contract had been concluded between the parties, and that the binding effect applies to the entirety of the contract including the arbitration clause.

The respondent challenged the decision of the COA before the DCC, and the challenge was dismissed. In its decision, the DCC enumerated the various forms an arbitration agreement can take as set out in Article 7.2.a. It stated that electronic records, documents, or letters are equal to written ones in their binding effect as well as their evidentiary weight. Further, the DCC explained that a contract can be concluded electronically where offer and acceptance are exchanged through electronic messages, without the need for the agreement to be printed on paper. It added that expressing the intent to conclude a contract can be done through conduct and that offer and acceptance need not be reflected in a single document.

Turning to the facts of the case, the DCC explained that the contract carried the letterhead of the respondent, who had prepared and sent it to the claimant for the latter’s signature. The respondent had not claimed that the contract was not returned to it. Hence, according to the DCC, this indicated that the parties intended to conclude the contract and that the arbitration agreement was valid. Separately, the DCC took into consideration that the respondent had participated in the arbitral proceedings without raising a challenge.

Observations 

Technically, the arbitration agreement that was the subject of the Award did not take any of the forms set out in Article 7.2.a. The contract incorporating the arbitration agreement was not signed. There was no written correspondence between the parties, whether through letters or electronic messages, relating specifically to the arbitration agreement, let alone agreeing to it. However, the DCC did not analyse whether any of the three forms set out in Article 7.2.a were met. Instead, it relied on legal principles relating to offer and acceptance, the validity of electronic communication, and the conduct of the parties in order to conclude that a contract was formed. It then concluded that the arbitration clause was binding.

The DCC may have disregarded Article 7.2.a but it applied the essence of the provision and the purpose intended. Article 7.2.a aims to ensure that the consent of the parties to arbitration is recorded in written form. The DCC found such expression of consent in the various elements surrounding the conclusion of the contract and, as a result, dispensed with the need to apply Article 7.2.a word for word. Also, the Arbitration Law is based on the UNCITRAL Model Law on International Commercial Arbitration (“Model Law”). Article 7 of the Arbitration Law reflects Article 7 (Option I) of the Model Law with some modifications. The DCC’s decision is in line with Article 7.3 (Option I) of the Model Law, which provides that “[an] arbitration agreement is in writing if its content is recorded in any form…” The arbitration agreement in the case at had was in fact written down in the contract between the parties.

Dubai Court of Cassation Challenge No. 595/2026 (Commercial)

Invoking the Arbitration Agreement before the Courts

When a dispute that is subject to an arbitration clause is brought before the UAE courts, a defendant may challenge the court’s jurisdiction on the basis of an arbitration agreement. This principle is set out in Article 8.1 of the Arbitration Law, which states that:

“[t]he court, before which an action was instituted regarding a dispute in respect of which an Arbitration Agreement exists, shall dismiss the action, if the Respondent moves to dismiss on this ground before making any other motions or plea on the subject matter of the action...”. 

The only condition the defendant should bear in mind is to invoke the arbitration agreement before raising other defences or submitting any requests.

The Courts’ Reasoning

In DCC Challenge No. 595/2026 (Commercial), the defendant company challenged the court’s jurisdiction on the basis of the arbitration agreement after having made submissions on the merits and having filed a request. The plaintiff had filed a claim before the Court of First Instance (“CFI”) for an amount exceeding one hundred and forty million UAE Dirhams, together with interest. In its first submission, the defendant argued, amongst other things, that it had no capacity and that there was no written basis for the claim. In its second submission, the defendant filed a request for joinder of a third party. It was only in its third submission that the defendant raised the arbitration clause, requesting dismissal of the proceedings for lack of jurisdiction. The CFI issued a decision ordering the defendant to pay part of the amount claimed. The defendant challenged the CFI decision before the COA, which upheld the CFI’s decision. Both courts dismissed the defendant’s plea on the basis that, prior to raising the arbitration clause, the defendant had made a submission on the merits.

The defendant challenged the decision of the COA before the DCC and obtained a favourable decision. The DCC referenced Article 8.1, explaining that a defendant who makes submissions on the merits without invoking arbitration is considered to have implicitly waived the agreement to arbitrate. However, there should be no doubt about the party’s intention to waive. The DCC then explained that waiver of the arbitration agreement requires knowledge on the part of the concerned party that they have the right to make such a waiver.

In the case at hand, the defendant was not aware of the existence of the arbitration agreement when it made its submission on the merits on 9 September 2025. On 25 September 2025, the claimant submitted the contract between the parties, which contained an arbitration clause. At the following hearing, on 2 October 2025, the defendant invoked the arbitration agreement requesting dismissal of the proceedings. This sequence of events was due to the fact that the defendant did not have a copy of the contract because ownership of the defendant had changed after the conclusion of the said contract. Accordingly, the DCC accepted the defendant’s challenge, reversed the decision of the COA, and dismissed the proceedings filed by the claimant for lack of jurisdiction.

Observations 

The DCC based its analysis on the concept of impossibility to perform the requirement of Article 8.1. Given that the defendant was not aware of the existence of the arbitration agreement, it was not in a position to invoke the arbitration agreement until a copy of the contract was produced. The DCC explained that waiver requires knowledge of the right to waive, but what was meant here was knowledge of the existence of the arbitration clause itself. Once such knowledge was obtained, the defendant had to comply with the requirement of Article 8.1, and that is exactly what the defendant did.

Here again, the DCC took into consideration the purpose behind the relevant legal provision. Article 8.1 aims to give a party the opportunity to decide whether they want the case to be heard before the courts or in arbitration. A party can only determine which route to follow if they are aware of the existence of both routes. In the absence of knowledge that an arbitration agreement exists, they cannot exercise the right to waive the arbitration agreement.

Final Remarks

In both cases, the DCC did not apply the relevant provisions of the law in a formalistic manner. Instead, it took into consideration the rationale behind the provisions as explained above. In these two decisions, the DCC implemented the court’s duty to respect the essence and the spirit of the relevant legal provision.

In the meantime, these decisions reflect a willingness by the courts to adopt a more liberal approach towards arbitration. Historically, UAE courts have treated the agreement to arbitrate as a waiver of the right to litigate and have considered such waiver to be a very serious matter that needs to be monitored very closely by the courts. Hence, the courts rigidly implemented the writing requirement as well as the conditions for challenging a court’s jurisdiction. These two recent decisions however follow a different approach as seen from the above analysis. They do not apply the relevant provisions in a strict manner.

At this stage, it is not yet possible to conclude that the courts are no longer treating arbitration as an exceptional route to resolve disputes but these two decisions indicate a change in the way arbitration is perceived by the courts. An agreement to arbitrate is no longer being treated as a step fraught with risk for the parties, which requires protection by the courts. Having said that, parties are still encouraged to respect the provisions of the Arbitration Law and implement them carefully.