The enforcement of electronic arbitral awards in international commercial disputes under the New York Convention: The case of Dubai and DIFC courts

Abstract

When arbitration is conducted online, some inherent, fundamental issues arise which could potentially undermine the enforceability of the final award under the provisions of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958, the “New York Convention” (NYC). The study identifies four key challenges which a winning party seeking the enforcement of an electronic award according to the NYC might face with relation to the enforcement of that award: the validity of electronic arbitration agreements, the enforceability of consumer arbitration agreements concluded online, obstacles arising out of the conduct of the arbitration procedures online and the issue of electronic authentication of the final award.
The study first critically analyses the NYC, to identify some key problems in relation to each of the said issues which might compromise or undermine the enforcement of awards rendered in online arbitration; it then makes suggestions as to some possible amendments to the NYC. The study then goes on to consider these issues in the context of the applicable law before the Dubai and DIFC Courts as the enforcement courts, to examine their ability to enforce such an award. The study concludes with several recommendations for both practice and law reform in the jurisdictions discussed, in relation to each issue.
The study is original in that it is the first comprehensive analysis of all the said issues, from formation of the arbitration agreement, through various stages of online procedures, to the final enforcement of the award, within the examined jurisdictions. Further, the recommended changes would help to improve the efficiency and reliability of the courts of Dubai and DIFC with regard to the enforceability of an award given via online arbitration. This is a particularly important issue in light of the current and anticipated growth in the prominence of the identified jurisdictions as financial and business centres, the centrality of international arbitration to international business and the fundamental need for confidence in the enforceability of the courts and arbitration awards.