Arbitration is a crucial mechanism for resolving international disputes, but it can operate effectively only with the support of state courts. In November, during Dubai Arbitration Week, EPAM Law organised a session at the premises of the Emirati law firm Horizons & Co, where leading experts discussed the interaction between state courts and arbitration, anti-suit injunctions, and the enforcement of interim and protective measures.
The event was opened and moderated by Evgeny Raschevsky, Partner and Head of the International Arbitration and Litigation Practice at EPAM Law. He introduced the central theme of the discussion—the utilisation of state court mechanisms to enhance the efficiency of arbitration—and emphasised its relevance to the international legal community.
«In today's globalised world, an effective arbitration system is achievable only with active support from national courts. This is particularly important given the increasing number of cross-border disputes. Judicial support is essential both during the arbitration process and in the enforcement of arbitral awards.» - Evgeny Raschevsky, Partner and Head of the International Arbitration and Litigation Practice, EPAM Law
Mr. Ali Al Zarooni, Managing Partner at Horizons & Co, addressed the issue of interim measures in arbitration and the UAE courts' approach towards them. He observed that arbitration is often perceived as a protracted process, making the speed of judicial response to requests for interim relief, as well as enforcement of arbitral decisions on such measures, a pivotal concern for parties. Recently, the UAE introduced the possibility of enforcing interim measures within a week. Previously, these processes could take significant time, frequently leading to the loss of assets as dishonest debtors managed to dissipate them before enforcement.
Mr. Al Zarooni also highlighted Dubai's distinctive legal framework, where civil law and common law systems coexist, offering unique advantages for arbitration. Over the past few years, UAE courts have shown increased engagement in supporting arbitration, aligning with the country’s ambition to become the region’s foremost arbitration hub. To achieve this, the UAE is actively working to enhance the speed and transparency of judicial procedures in support of arbitration.
Mr. Tim Taylor, Partner at EPAM Law, provided an analysis of recent trends in common law courts regarding international arbitration. He began by referencing the foundational principle of the UNCITRAL Model Law on International Arbitration, which emphasises that courts should support arbitration and refrain from undue interference. Mr. Taylor underscored the importance of examining the rules of specific arbitral institutions to determine whether they restrict access to.
He contrasted the approaches of the UK and the Dubai International Financial Centre (DIFC). In the UK, the Arbitration Act states that courts “should not” interfere in arbitration except as permitted by the Act, whereas DIFC law uses the more stringent term “shall not” interfere. However, while UK courts can provide interim relief in support of arbitrations seated abroad, the DIFC imposes restrictions on granting such measures for arbitrations outside its jurisdiction. Mr. Taylor suggested that DIFC courts might revisit this position in the future.
Vladimir Talanov, Partner in the International Arbitration and Litigation Practice at EPAM Law, highlighted that, despite the supportive role of arbitration, recent practice has demonstrated that in some cases recourse to state courts remains the only effective mechanism for safeguarding clients’ interests. This is particularly relevant for Russian parties.
In jurisdictions where local legislation is based on the UNCITRAL Model Law, seeking interim relief from national courts is generally unproblematic as the law expressly states that such actions do not breach arbitration agreements. However, in certain countries, collaboration between courts and arbitration tribunals is fraught with difficulties. For example, until 2023, enforcing interim measures granted by arbitration tribunals was exceedingly challenging in Argentina, Thailand, and Italy. This raises concerns about the effectiveness of obtaining interim relief in arbitration if the debtor’s assets are located in such jurisdictions. The issue is particularly pronounced when it comes to the enforcement of emergency arbitrator decisions, which are typically not final and are subject to review or annulment by the arbitration tribunal.
«In many jurisdictions, state courts have the authority to grant interim relief on an ex parte basis. In contrast, most major arbitration rules do not permit such measures, even within the framework of emergency arbitrator procedures. This difference is a crucial factor when deciding whether to seek interim relief from a state court or an arbitration tribunal.» - Vladimir Talanov, Partner, EPAM Law
Mr Talanov also noted a growing trend in requests for security for costs orders. While this practice is widely established in the United Kingdom, it is less prevalent in other jurisdictions. For instance, last year, the International Chamber of Commerce recorded 24 requests for such orders, of which arbitration tribunals granted only four.
Dr. Hermann Knott, Partner at Kunz Law, examined contemporary trends in the use of anti-suit injunctions across Europe. He noted that under the Brussels Regulation, obtaining an anti-suit injunction within the EU is nearly impossible. If proceedings are initiated in one member state, courts in other member states cannot issue injunctions to halt the first proceedings, even when an arbitration agreement exists. However, following Brexit, English courts have regained the ability to issue anti-suit injunctions against proceedings within the EU.
Dr. Knott also discussed the use of anti-suit injunctions in patent disputes, referencing a landmark case where a German court issued such an injunction to protect a patent proceeding within the EU. This development represents a significant step in broadening the application of anti-suit injunctions beyond traditional arbitration contexts.
Natalia Soldatenkova, Senior Lawyer at EPAM Law, explained the criteria used to evaluate whether recourse to a state court is admissible or whether it undermines an arbitration agreement. For example, since arbitration tribunals are not constrained by a fixed list of interim measures they can impose, anti-suit injunctions, although rarely applied, may occasionally be necessary.
«In instances where the debtor in arbitration is a “shell company,” filing a claim in a state court against the beneficiary of the debtor may be the only effective means to secure enforcement. Claims brought against third parties are distinct from those subject to an arbitration clause and do not endanger the arbitration agreement. This is because the beneficiary would not be a party to the agreement unless the arbitration tribunal issues a ruling for their inclusion.» - Natalia Soldatenkova, Senior Lawyer, EPAM Law
Ms Soldatenkova highlighted that established legal practice provides a set of criteria to assess whether parallel court proceedings could threaten arbitration and whether an anti-suit injunction is warranted. Such injunctions have been granted in cases where an identical dispute between the same parties, falling within the scope of an arbitration agreement, was brought before a court, or where state courts implemented measures that directly obstructed participation in arbitration—such as an anti-arbitration injunction.
Dr. Umar A. Oseni, Secretary-General of the Arbitration Centre of the Organisation of Islamic Cooperation (OIC-AC), addressed concerns about state court intervention in arbitration. He observed that such concerns have existed since the adoption of the UNCITRAL Model Law in 1976, particularly in developing countries. However, the focus has since shifted towards how courts can collaborate with arbitration to improve procedural efficiency.
Dr. Oseni highlighted the evolution of arbitration practice in Turkey, noting that the country’s legislation largely aligns with international standards, being modelled on the UNCITRAL Model Law and the Swiss International Arbitration Act. Turkish courts play a critical role in supporting arbitration, including the enforcement of foreign arbitral awards, with several successful precedents. Notably, Turkish law allows parties to seek interim relief from state courts even when bound by an arbitration agreement. According to Dr. Oseni, such collaboration between judicial and arbitral systems is essential for the continued growth of arbitration.
