The Arbitration Clause and the Urgent Court Expert: Why There Is No Contradiction

Arbitration & Dispute Resolution · UAE

When a dispute is bound for arbitration but the evidence is disappearing, the UAE onshore courts can still appoint an expert to record and preserve the facts — and doing so does not waive your right to arbitrate.

By Jouslin KhairallahKH Legal — Arbitration & Dispute Resolution

The problem every arbitration party eventually faces

More and more UAE contracts send their disputes to arbitration. But arbitration takes time to begin: the tribunal has to be constituted, arbitrators appointed, the seat and rules confirmed. Meanwhile, the evidence that will decide the case can be changing by the day — a defective installation is repaired or ripped out, a site condition is altered, a technical failure is quietly “fixed,” goods are disposed of. By the time the tribunal exists, the proof may be gone.

The natural instinct is to go straight to the local court to have the situation examined and recorded before it is lost. And immediately the worry surfaces: “My contract says arbitration — if I go to court, will I be treated as having abandoned it?”

The short answer: no contradiction

No. UAE law draws a clean line between deciding a dispute and preserving the evidence for it. Asking the onshore courts to urgently appoint an expert to record and preserve the factual state is a precautionary, evidentiary measure. It does not put the merits before the court, and it does not surrender the arbitration agreement. The two sit side by side.

What the Arbitration Law actually says

Federal Law No. 6 of 2018 on Arbitration settles the point in its own words:

That second sentence is the heart of it. The legislator expressly anticipated a party going to court for protective relief while arbitration is agreed — and expressly said it is not a waiver.

And because the merits are reserved to the tribunal — the court must refer a properly-invoked dispute to arbitration (Article 8), and the tribunal rules on its own jurisdiction (Article 19, the competence-competence principle) — a purely precautionary application never places the substance of the claim before the judge.

Why an expert appointment fits

The law itself treats preserving evidence as a precautionary act, not as deciding anything. Among the interim measures the Arbitration Law lists, it expressly includes “an order to preserve evidence that may be material to the resolution of the dispute” (Article 21(1)(a)). A court-appointed expert who inspects and records the factual state is doing exactly that — securing evidence — not ruling on who is right.

The mechanism: “proof of state” (إثبات الحالة)

The tool the courts use is the proof-of-state application. Under Article 108 of the UAE Law of Evidence (Federal Decree-Law No. 35 of 2022), a party who fears the loss of the features of an incident that may become the subject of a dispute may apply — by an urgent lawsuit — for the situation to be inspected and its state recorded; and the court may appoint an expert to attend, inspect, hear statements and report, with the parties given a hearing on that report.

The urgency and the “no merits” character are built into the procedure. The urgent-matters judge under Article 27 of the Civil Procedure Law (Federal Decree-Law No. 42 of 2022) rules only “on a provisional basis and without prejudice to the substance of the right” (بصفة مؤقتة ومع عدم المساس بأصل الحق). The court is preserving a photograph of the facts; it is not deciding the case.

What the expert does — and does not — do

The court expert’s role is narrow and factual. He or she records the external condition of things — the state of the works, the site, the goods, the system — as external evidence, and clarifies the claim so that it can be properly understood. The expert does not decide liability, does not apportion fault, and does not resolve the dispute. That report is later placed before the arbitral tribunal, which weighs it — alongside everything else — when it determines the merits under the arbitration agreement.

Getting it right: timing and the fine print

• Act early. The whole value of the measure is speed — it is at its strongest before the tribunal is constituted, taken to capture evidence that will otherwise be lost. Once a tribunal is in place, the UAE courts increasingly recognise the tribunal’s own power over interim measures, so the pre-constitution, purely evidentiary window is where this tool is cleanest.
• Stay on the evidentiary side of the line. The protection in Article 18(3) is for a genuinely precautionary, evidentiary application. A party that uses the court to argue the merits invites a very different characterisation.
• Onshore matters. This analysis is for arbitration seated onshore in the UAE and the onshore national courts under Federal Law No. 6 of 2018. The DIFC and ADGM run their own common-law arbitration regimes, with their own courts and their own interim-measure rules.
• Read your clause. If the arbitration clause — or the chosen institutional rules — expressly hands conservatory and evidence-taking powers to the tribunal or an emergency arbitrator, a court may defer to that. Which is precisely why the wording of the clause deserves attention when the contract is drafted.

The courts reinforce the principle: the Dubai Court of Cassation has confirmed that applying to the UAE courts for provisional and precautionary measures does not waive the agreement to arbitrate the substantive dispute (Case No. 296 of 2024).

The takeaway

An arbitration clause is not a padlock on the courthouse door. When evidence is at risk, a UAE business can — and often should — turn to the onshore courts to have an expert record and preserve the facts quickly, without giving up a single degree of its right to arbitrate. Used properly, the court expert protects the very evidence the tribunal will later need to do justice.