Rights of representation & audience in Arbitration proceedings in Dubai – DIAC Arbitration Rules 2022 – UAE Arbitration Law n. 6/2018

When approaching the matter related to rights of representation & audience (known also as “Ius postulandi”) in arbitration proceedings, I believe that we should take in due consideration the hierarchy of sources of law in the UAE legal system.

1) Rights of representation & audience in arbitration.
It is incontrovertible that the Rules of any Arbitral Institution are to be considered as having a contractual nature only to which parties adhere signing the arbitration agreement. Therefore, they (the Rules) are subordinate to the law.
2) Interpretation of the law – Hierarchy of sources of law.
According to art. 1 of the UAE Civil Transaction Law (Federal Law No. 5 of 1985) “Legislative provisions shall apply to all issues referred to therein verbally and contextually. There is no room for discretion if the provision has definitive denotation”.

In addition, pursuant to art. 31 of the aforesaid UAE Civil Transaction Law “A mandatory provision (of law) shall take precedence over a contractual stipulation”.
3) The arbitration agreement and the applicable law.
In the case at issue, in accordance with the arbitration agreement signed between the Claimant and the Respondent, the arbitration shall be conducted according to the DIAC Rules and the legal seat of the arbitration shall be Dubai.
The Laws of the United Arab Emirates include also the Dubai Regulations (namely Executive Council Resolution No. 22 of 2011 and Administrative Resolution No. 236 of 2015) related to the professions of Advocates and Legal Consultants in the Emirate of Dubai which – obviously – is part of the United Arab Emirates.
4) Legal nature of the DIAC Rules.
In this legal framework the above-mentioned Dubai Regulations (which have a force of law) prevail on a mere contractual provision (the DIAC Rules).

5) Interpretation of art. 7.5. DIAC Rules.
In my opinion article 7.5. of DIAC Rules 2022 (“….irrespective of their nationality or professional qualifications”) is referred to Experts who are fully entitled to represent the appointing party in arbitration.
It is clear that the above-mentioned DIAC Rule 7.5. (related to the Parties’ representation in arbitration) is referred to Experts only who have skills and expertise in different fields (“… irrespective of their …… professional qualifications”), and who are called to give their scientific / technical opinion on certain technical matters.
Therefore, I believe that such provision is not referred to the Legal defence in arbitration which is a prerogative of Lawyers and Legal Consultants only registered with the LAD.
On the other side, it is clear that the Dubai Legal system’s aim is to preserve a technical defense in arbitration whose result would be jeopardized if the defence of a Party was granted to non professional representatives without a Legal background.
Foreign lawyers are not banned in arbitration cases held in Dubai but preliminary they need to obtain a temporary registration with the Legal Affairs Department.
Lack of professional qualification as a lawyer or legal consultant does not permit even a temporary registration with the LAD and prevents other professionals from representing for legal matters third parties before Arbitral Tribunals in Dubai, despite a Power of Attorney granted to them.

6) Powers granted to the Arbitral Tribunal.
According to article 7.4 of DIAC Arbitration Rules 2022, “Upon its constitution, the Tribunal shall have the power to require from any party proof of authority granted to its representative(s) in such a form as the Tribunal may determine, so as to satisfy itself that the parties’ representatives have the authority required by the seat of the arbitration to conduct the arbitration”.

Therefore, pursuant to art.4.(a)(1) of the Statute of the Dubai International Arbitration Centre attached to the Decree No. (34) of 2021 Concerning the Dubai International Arbitration Centre, “Where the parties to arbitration choose the Emirate as the seat or place of arbitration, the Arbitration Agreement and arbitration proceedings will be governed by the above mentioned Federal Law No. (6) of 2018”.

The indicated UAE Federal law No. (6) of 2018, grants the legal representation of a party before the arbitral tribunal as long as the appointed party provides the proof of the power granted to him / her in such form determined by the Arbitral Tribunal (art. 33.5. of the UAE Arbitration Law No. 6 of 2018).

In other words, the UAE arbitration law (art. 33.5.) empowers the Arbitral Tribunal to determine only the adequate form of the power of attorney. Such power granted to the Arbitral Tribunal by the law does not include any discretion for admission in the arbitration of a representative lacking legal requirements, regardless the validity of a power of attorney.