Claim No: ARB 026/2025

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

(1) ONORATA
(2) OPALL
(3) OPALINA

Claimants/Applicants

and

ONSLOWE

Defendant/Respondent

ORDER WITH REASONS OF H.E. JUSTICE SHAMLAN AL SAWALEHI

UPON the Arbitration Claim filed on 9 July 2025 (the “Claim”) seeking to set aside the final award dated 28 January 2025 rendered in DIAC Arbitration No. XX (the “Set Aside Application”)

AND UPON reviewing the Claim Form, the evidence and documents filed by the parties, the Claimants’ Skeleton Argument, the Defendant’s Skeleton Argument, and the parties’ supporting documents on the court’s file

AND UPON hearing counsel for the Claimants and counsel for the Defendant at the Claim Hearing on 19 December 2025 before H.E. Justice Shamlan Al Sawalehi

IT IS HEREBY ORDERED THAT:

1. The Set Aside Application is dismissed.

2. The Claimants shall pay the Defendant’s cost of Application. The Defendant shall file and serve their Statement of Costs not exceeding 3 pages within 5 days of this Order.

Issued by:
Hayley Norton
Assistant Registrar
Date of issue: 7 January 2026
At: 11am

Introduction

1. This is an Application to set aside a final arbitral award dated 28 January 2025 (the “Award”), issued by an arbitral tribunal constituted pursuant to an arbitration agreement contained in the Articles of Association of the First Applicant.

2. The Application is brought under Articles 41 and/or 44 of DIFC Law No. 1 of 2008 (the “DIFC Arbitration Law”) and Rules 43.54 to 43.59 of the Rules of the DIFC Courts (“RDC”).

3. The Applicants’ challenge is confined to specific parts of the Award and is advanced on the basis that: (i) the tribunal exceeded the scope of the submission to arbitration; and/or (ii) the Award conflicts with the public policy of the UAE.

4. The Respondent opposes the Application and seeks its dismissal.

5. For the reasons set out below, the Application is dismissed.

Background

6. The summary of the background and the parties’ submissions set out below is confined solely to those facts and arguments relevant to the determination of this Application.

7. The First Applicant is a company incorporated in the Dubai Multi Commodities Centre (“DMCC”). The Second and Third Applicants and the Respondent were shareholders in that company. The dispute concerns the affairs and management of the company.

8. The parties’ arbitration agreement was contained in the company’s Articles of Association and Memorandum of Association (together “Shareholder’s Agreement”). In substance, it provides that differences arising between the company and shareholders (and specified connected persons) touching upon the intent and consequences of the Articles, acts affecting the company, or the affairs of the company, are to be referred to arbitration; and that the arbitration is to be conducted under the rules and procedures of the Dubai International Arbitration Centre (“DIAC”).

9. Arbitration proceedings commenced and culminated in the Award dated 28 January 2025.

10. Following issuance of the Award, the Applicants raised post-award queries with the arbitral tribunal on substantially the same grounds now relied upon in this Application. The tribunal declined to amend or vary the Award.

11. The Applicants filed this Set Aside Application on 9 July 2025 requesting (among other relief) a stay of enforcement pending determination.

Grounds of the Application

12. The Applicants rely on two principal grounds.

13. First, they rely on Article 41(2)(a)(iii), contending that the Award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of that submission.

14. Secondly, they rely on Article 41(2)(b)(iii), contending that the Award conflicts with the public policy of the UAE. The Applicants’ written and oral submissions focus on three determinations within the Award, which they contend illustrate jurisdictional excess and/or public policy conflict:

The Applicants’ Submissions

15. The following summary sets out the Applicants’ submissions relevant to the present Application. It is not intended to be exhaustive, and the omission of any fact or argument should not be taken as an indication that it has not been considered.

16. The Applicants submit that the arbitration agreement was limited to disputes between the company and its shareholders in their capacity as shareholders.

17. They contend that, although the tribunal was entitled to resolve disputes arising from shareholder relations, it exceeded its jurisdiction by determining matters said to fall outside that relationship.

18. In particular, the Applicants argue that the tribunal attributed liability to the Second Applicant by reference to legal capacities distinct from that in which he consented to arbitration, including as an employee and as a director.

19. They submit that the tribunal thereby transformed the nature of the dispute and imposed obligations which were not within the contemplation of the arbitration agreement.

20. The Applicants further contend that the tribunal granted relief which, in practical terms, affected the rights and obligations of an entity that was not a party to the arbitration agreement and did not participate in the proceedings.

21. They argue that an arbitral tribunal has no authority to determine or interfere with the rights of non-parties.

22. The Applicants also submit that certain remedies ordered by the tribunal are legally impermissible or incapable of lawful implementation, particularly in light of corporate governance requirements.

23. On that basis, they argue that the Award is unenforceable and that its enforcement would offend UAE public policy.

24. The Applicants emphasise that they do not challenge the procedural conduct of the arbitration but maintain that the tribunal crossed the boundary between permissible remedial discretion and impermissible jurisdictional overreach.

The Respondent’s Submissions

25. The Respondent submits that the arbitration agreement was deliberately drafted in broad terms and was intended to encompass disputes concerning the affairs of the company.

26. The Respondent argues that the disputes determined by the tribunal arose directly from the conduct of the parties in relation to the company and were squarely within the scope of the submission to arbitration, as reflected in the Terms of Reference agreed by the parties.

27. The Respondent submits that the Applicants’ attempt to draw sharp distinctions between different legal capacities is inconsistent with the substance of the disputes that were referred.

28. The Respondent further submits that the tribunal did not determine the rights of any non-party, but merely fashioned remedies as between the parties to the arbitration.

29. The Respondent contends that the Applicants’ complaints are disagreements with the tribunal’s reasoning and choice of remedies. Such disagreements, as it is submitted, do not engage Article 41 and cannot justify setting aside an arbitral award.

30. The Respondent also submits that the Applicants have not identified any fundamental principle of UAE public policy that is infringed by the Award, and that any issues of practical implementation are matters for enforcement, not annulment.

31. The Respondent further relies on Articles 9 and 23 of the DIFC Arbitration Law, submitting that the Applicants waived any jurisdictional objections by participating in the arbitration without timely objection, and that the tribunal properly ruled on its own jurisdiction.

Statutory Framework

32. The DIFC Arbitration Law reflects a strong legislative policy in favour of the finality of arbitral awards. Articles 41 and 44 set out a closed list of grounds upon which an arbitral award may be set aside or refused recognition or enforcement.

33. The grounds in Article 41 are exhaustive. They are not a vehicle for appeal on the merits, nor a mechanism permitting the Court to re-determine factual questions, to re-interpret the contract and evidence presented in the arbitration, or to substitute its own remedial preferences for those of the tribunal.

34. The Court’s role is limited to determining whether one or more of the statutory grounds is established. The burden of proof rests on the Applicant seeking to set aside the award. The threshold is intentionally high: the Court’s intervention is exceptional and must be justified by the grounds in Article 41, properly applied.

Discussion

35. Against the above statutory framework, I will discuss below the following issues:

Article 41(2)(a)(iii)

36. Article 41(2)(a)(iii) is directed to the situation in which a tribunal determines matters not referred to it, or grants relief that is truly outside the submission to arbitration. It is not an appeal route against a tribunal’s analysis, evaluation of evidence, or selection among remedies available to it within the submission.

37. I must therefore distinguish carefully between:

38. The arbitration agreement in this case extended to disputes touching upon the affairs of the company and acts affecting it. Having regard to the breadth of the clause and the manner in which the parties themselves conducted the arbitration, I am of the view that the disputes placed before the tribunal fall squarely within the scope of disputes contemplated by the arbitration agreement.

Capacity

39. The Applicants’ case proceeds on the premise that participation in arbitration in one capacity does not amount to submission in other capacities. As a matter of general principle, legal capacity and consent may indeed matter in assessing jurisdiction, particularly where the alleged obligor is not a party to the arbitration agreement at all.

40. However, the Court must consider the arbitration clause actually agreed and the nature of the disputes submitted. The arbitration clause relied upon by both parties is drafted in broad terms concerning disputes touching the company’s affairs and acts affecting it.

41. In shareholder disputes of this nature, parties may and often do advance allegations of conduct undertaken through corporate offices, employment roles, and managerial functions, all within a single commercial dispute concerning corporate affairs.

42. The Applicants’ “capacity” submission therefore rests on the proposition that the tribunal, in resolving disputes about the company’s affairs, impermissibly determined a separate and independent dispute (for example, a free-standing employment dispute).

43. I am not satisfied that the Applicants have demonstrated that the tribunal decided such a distinct dispute. The determinations challenged by the Applicants are tied to the company’s financial affairs and shareholder entitlement. The Applicants’ complaint is ultimately directed at the tribunal’s reasoning route and remedial mechanism.

44. That is not sufficient to establish an excess of mandate under Article 41(2)(a)(iii).

Third parties

45. I am not persuaded that the tribunal made binding determinations of the rights of any non-party. The Award resolves disputes as between the parties to the arbitration and does not purport to impose obligations directly on third parties. That compliance with the Award may require interaction with third parties does not render the Award defective.

46. Questions of implementation or enforcement are distinct from the scope of the tribunal’s authority at the set-aside stage.

Salary

47. The Applicants characterise the salary issue as an employment dispute, not a shareholder dispute. The Respondent characterises it as a dispute concerning corporate funds and financial management within the affairs of the company.

48. In my view, the key point for Article 41(2)(a)(iii) is not whether one could label the dispute with an “employment” description. The question is whether the tribunal was deciding a dispute about the affairs of the company and shareholder entitlement that the parties had submitted to arbitration.

49. Based on the submissions, I am not satisfied that the Applicants have demonstrated that the tribunal decided a distinct employment dispute separate from the shareholder or company affairs dispute.

Dividends

50. The Applicants argue that the tribunal directed the Second Applicant, in the capacity of director, to cause dividend payment and that (i) he was not before the tribunal in that capacity; and (ii) the Articles require shareholder approval for dividend declaration.

51. I accept that internal corporate governance rules may constrain the practical route by which dividends are declared and paid. However, the Applicants’ complaint again targets the remedial structure and its compatibility with internal corporate processes.

52. The existence of such constraints does not establish that the tribunal decided a dispute outside the submission to arbitration. Dividend entitlement and profit allocation are paradigmatic shareholder disputes touching the company’s affairs and fall within the contemplation of the arbitration clause.

53. Article 41(2)(a)(iii) does not permit such a merits-adjacent review unless the tribunal plainly stepped outside the submission. On the material before me, the Applicants have not shown that it did.

Public policy

54. Public policy is a narrow and exceptional ground. It is to be construed restrictively. It is not sufficient to assert that an award is legally or commercially inconvenient.

55. The Applicants’ public policy arguments proceed on two broad themes: (i) alleged non-arbitrability of employment disputes; and (ii) alleged unfairness or natural justice concerns where a non-party may be affected or where certain orders may be difficult to execute.

56. On the material before me, the Applicants have not demonstrated that the Award offends any fundamental principle of UAE law, morality, or justice. Allegations that a remedy is difficult to implement or inconsistent with internal corporate arrangements do not, without more, engage public policy.

57. I am therefore not satisfied that Article 41(2)(b)(iii) is engaged.

Conclusion

58. The statutory threshold for setting aside an arbitral award has not been met.

59. Any request for a stay of enforcement or relief under Article 44 necessarily falls away in light of the dismissal of the Application.

60. The Application is dismissed.