Abu Dhabi Global Market judgments (Court of First Instance)

In the name of
His Highness Sheikh Mohamed bin Zayed Al Nahyan
President of the United Arab Emirates/ Ruler of the Emirate of Abu Dhabi

 

COURT OF FIRST INSTANCE
COMMERCIAL AND CIVIL DIVISION

BETWEEN

 

A32

Claimant

and

 

B32

Defendant

 

COURT OF FIRST INSTANCE
COMMERCIAL AND CIVIL DIVISION

BETWEEN

 

A35

Claimant

and

 

B35

Defendant

 

JUDGMENT OF JUSTICE PAUL HEATH KC

 

 

Neutral Citation:	[2026] ADGMCFI 0018
Before:	Justice Paul Heath KC
Decision Date:	9 June 2026
Decision:	Set Aside Application 1.             The Set Aside Application be dismissed. Enforcement Application 2.             The Enforcement Application be granted on the terms set out below. 3.             By 4.00 pm on 26 June 2026, B32/A35 ("B32") shall take all necessary steps to effect with the ADGM Registration Authority a transfer of the title deed for Unit ABC on Al Maryah Island (the "Unit"), including the payment of any fees or other costs associated with the registration of the transfer.   4.             Without limiting paragraph 3, B32 shall submit to the ADGM Registration Authority all necessary documentation required by it to effect the transfer of the title deed for the Unit into the name of A32/B35 ("A32"), including documentation required in respect of any "No Objection Certificate".   5.             The transfer of the Unit to A32 shall be made free of any encumbrances, charges or third-party claims.   6.             Liberty to apply is reserved for A32 to seek any further orders or directions necessary to give effect to paragraphs 3, 4 and/or 5 above. Stay Application 7.             The Stay Application be dismissed with no order as to costs. Costs 8.             There be a costs order nisi that A32 is entitled to costs on both the Set Aside Application and the Enforcement Application, to be summarily assessed on the standard basis if not agreed.  Costs are to include those yet to be expended by A32 (if any) in finalising the transfer of the Unit. The costs order nisi will become absolute at 4.00 pm on 26 June 2026 unless any application is made to discharge or vary it by that time. Other matters 9.             General liberty to apply.
Hearing Date:	10 April 2026
Date of Order:	9 June 2026
Catchwords:	Application to set aside arbitral award. 'Opt in' jurisdiction where award is made outside ADGM.  Whether set aside application is time barred.  Whether real property disputes are arbitrable.  Enforcement application for specific performance.  Whether Court should exercise discretion to make specific performance orders to give effect to award.  Form of specific performance orders.
Legislation Cited:	Federal Law No. 6 of 2018 on Arbitration ADGM Court Procedure Rules 2016 ADGM Arbitration Regulations 2015 Abu Dhabi Law No 4 of 2013 (as amended by Abu Dhabi Law No. 12 of 2020) ADGM Real Property Regulations 2024
Cases Cited:	Case No. XY (Appeal - Annulment of Arbitral Award - Abu Dhabi) 26 November 2025 Case No. XZ (Court of Cassation Abu Dhabi - Second Commercial Cassation Circuit) 29 January 2026 A34 v B34 ADGMCA-APP-2026-001 (Order dated 3 March 2026) A6 v B6 [2023] ADGMCFI 0005 Appeal No. 2011/486 (Court of Cassation Dubai - Real Estate Appeal) 29 November 2011 Appeal No. 43 of 2010 (Court of Cassation Dubai - Real Estate Appeal) 26 December 2020 Al Khaleej Investment PSC v Ocean Pearl Real Estate Comp LLC [2026] ADGMCFI 0017 FamilyMart China Holding Co Ltd v Ting Chuan (Cayman Islands) Holding Corporation [2023] UKPC 33 Republic of Mozambique v Privinvest Shipbuilding SAL (Holding) [2023] UKSC 32
Case Numbers:	ADGMCFI-2025-373 and ADGMCFI-2026-114
Parties and representation:	ADGMCFI-2025-373 For the Claimant: A32 (self-represented), assisted by Mr Tarek El Khoury of TEK Legal Consultancy For the Defendant: Mr Shashank Garg of QAF Legal ADGMCFI-2026-114 For the Claimant: Mr Shashank Garg of QAF Legal For the Defendant: A32 (self-represented), assisted by Mr Tarek El Khoury of TEK Legal Consultancy

 

JUDGMENT

Introduction

1.             There are two substantive applications before the Court which arise out of an unusual set of facts. The first is an application by B32/A35 ("B32")  to set aside (the "Set Aside Application") an award dated 3 October 2025 (the "Award") made in an arbitral proceeding brought by A32/B35 ("A32") against B32. The second is an application by A32 for enforcement of the Award (the "Enforcement Application"). The Award found in favour of A32, finding that an Option Agreement, dated 31 August 2020, (the "Agreement") [1]  for Unit ABC on Al Maryah Island (the "Unit") was "valid and subsisting" as between the parties and that relief in the nature of a specific performance order was required to give effect to its finding. [2]

2.             Clause 33 of the Agreement contained the arbitration agreement. It stated explicitly that the "seat of the arbitration shall be Abu Dhabi, UAE". [3] It also provided that the arbitration would be conducted under the Abu Dhabi Commercial Conciliation and Arbitration Centre Rules in force at the relevant time. [4] The arbitral tribunal (the "Tribunal") [5] recorded that the seat of the arbitration was "Abu Dhabi, UAE" and that the procedural law governing the proceeding was Federal Law No. 6 of 2018 on Arbitration (the "UAE Arbitration Law"). [6] Consistent with those statements, the Award, immediately above the signatures of the three arbitrators, recorded that the seat of arbitration was "Abu Dhabi, United Arab Emirates".  The Tribunal found that the governing law of the Agreement was ADGM law [7] and confirmed that the arbitrateAD Rules applied to the arbitration proceedings [8].

3.             B32 applied to the Court of Appeal of the onshore Abu Dhabi Commercial Court (the "Abu Dhabi Court of Appeal") for an order annulling the Award, under Article 54 of the UAE Arbitration Law. In a judgment given on 26 November 2025, the Abu Dhabi Court of Appeal ruled against B32 on the merits and dismissed the application. [9] B32 appealed to the Court of Cassation (the "Abu Dhabi Court of Cassation"). On 30 December 2025, the Abu Dhabi Court of Cassation refused a stay of enforcement of the Award pending determination of the appeal before it. On 29 January 2026, the Abu Dhabi Court of Cassation held that the jurisdiction in relation to any challenge to the Award was vested in the Abu Dhabi Global Market ("ADGM") Courts. Accordingly, it dismissed B32's appeal. [10]

4.             While B32's appeal was pending before the Abu Dhabi Court of Cassation, A32 applied to this Court for an order recognising and enforcing the Award (the "Recognition Application"). B32 countered with a challenge to this Court's jurisdiction to make recognition and enforcement orders (the "Jurisdiction Challenge"). In the knowledge that, on 30 December 2025, the Abu Dhabi Court of Cassation had refused to stay execution of the Award, pending determination of the appeal to that Court, I made an order, on 21 January 2026, granting both recognition and enforcement (the "Recognition Order"). Those orders were made in the following terms:

"...

Recognition and Enforcement

2.            Pursuant to sections 61(1)(a) and 61(3) of the Arbitration Regulations 2015 (the "Arbitration Regulations"), the Court recognises the Award as binding within the Abu Dhabi Global Market ("ADGM") on the persons between whom it was made.

3.            Pursuant to sections 61(1)(b) and 61(3) of the Arbitration Regulations, the Award shall be enforced within the ADGM as if it were a judgment of the Court.

..."

5.             In the same decision, I dismissed the Jurisdiction Challenge. The Jurisdiction Challenge had been based on B32's extant appeal to the Court of Cassation. B32 had submitted that I had no jurisdiction to determine the Recognition Application and "any application for annulment .. recognition .. and/or enforcement .. of the Arbitration Award rests solely with the UAE onshore (mainland) local courts". I dismissed the Jurisdiction Challenge on the basis that the Abu Dhabi Court of Cassation had not made any order staying enforcement pending appeal.

6.             B32 sought permission to appeal against the Recognition Order. [11] I dismissed that application on 11 February 2026. I explained my reasons for doing so as follows:

"2.          In opposing the Recognition Application, B32 contended that this Court lacked jurisdiction because the seat of the arbitration was in the Emirate of Abu Dhabi, United Arab Emirates. That stance was taken because B32 had a pending application for annulment of the Award in the onshore courts. The onshore Court of Appeal had dismissed the application on the grounds that there was no basis for annulment. At the time I made the Recognition Order, the Court of Cassation had refused to issue a stay of execution of the Award pending determination of the appeal. Later, on 29 January 2026, the Court of Cassation "annulled" the Court of Appeal's order, holding that jurisdiction lies with the Abu Dhabi Global Market ("ADGM") Courts. The proceeding seeking an order annulling the Award in the onshore courts is at an end. No order annulling the Award has been made by the onshore courts. No application to set aside the Award has been made in the ADGM Courts.

3.            For the purposes of recognition and enforcement of an award by ADGM Courts, it does not matter in what State or jurisdiction the arbitration was seated. Section 62(1) of the Arbitration Regulations sets out the exclusive grounds on which a party may apply to resist the recognition and enforcement of an arbitral award. It applies "irrespective of the State or jurisdiction in which [the award] was made". Recognition and enforcement can only be refused if one or more of the grounds set out in section 62(1) of the Arbitration Regulations has been established. B32 has not furnished proof to establish any of those grounds."

(Emphasis added)

7.             Subsequently, B32 applied to the Court of Appeal (the "ADGM Court of Appeal") for permission to appeal my decision. [12] The ADGM Court of Appeal dismissed that application. In its decision of 3 March 2026, the Court said: [13]

"2.      There are at the heart of this case three questions: (i) did the Judge have jurisdiction to make the order recognising and enforcing the award; (ii) Were any grounds put before him that would enable him to refuse enforcement under section 62(1) of the Arbitration Regulations...; and (iii) was it open to him to make the order, given that the Court of Cassation had not yet embarked on its consideration of the appeal against the Court of Appeal's decision to dismiss the onshore application for "annulment" of the award?

3.        As to the first question, the fact that the Judge did have jurisdiction to grant the application to recognise and enforce the award under Part 4 of the Arbitration Regulations is beyond doubt. As for the second, section 62(1) of the Arbitration Regulations makes it clear that enforcement can be refused only if one of the grounds there set out are made out, and no such grounds were put forward or established by reference to applicable ADGM law. As for the third, given that the Court of Cassation had refused to issue a stay of execution pending the appeal, it was open to the Judge in the exercise of his discretion to proceed to make the order."

8.             The Recognition Order included an order that "the Award shall be enforced within the ADGM as if it were a judgment of the Court". [14] The effect of the Recognition Order is that enforcement of the Award has already been directed in ADGM. Given that the ADGM Court of Appeal refused permission for B32 to appeal against the Recognition Order, there is no basis on which that order can be challenged in ADGM. The Enforcement Application now seeks specific orders to enable enforcement to be carried into execution as contemplated by that order. I had that possibility in mind when making the Recognition Order. I said:

"12.       On balance, I consider that I should make an order immediately recognising and enforcing the award in ADGM. I have reached that view, on the basis that the [Abu Dhabi] Court of Appeal ... (as the supervisory court) has dismissed an application to annul the award and, in relation to the final appeal to the [Abu Dhabi] Court of Cassation, a stay pending determination of the appeal has been refused. Further, as can be seen from the terms on which the orders in the Award were expressed it may take some time for enforcement procedures to be completed in the ADGM. If B32 wishes to challenge steps that A32 takes in ADGM to obtain the benefit of the Award, it is not prevented from doing so. In my view, it would be wrong to deprive A32 of the opportunity to commence his enforcement proceedings now."

The applications

9.             The Set Aside and Enforcement Applications were heard together, virtually, on 10 April 2026. B32 also applied for a stay of the Enforcement Application until its Set Aside Application had been determined (the "Stay Application"). As the Set Aside and Enforcement Applications have been heard together, the Stay Application has become otiose.

10.         During the course of the 10 April 2026 hearing, B32 revealed that it had made an application to the Abu Dhabi Court of Cassation to "reverse" its decision. This, I was told, is a rarely exercised jurisdiction. I required B32 to make an election whether to proceed in the onshore Court or this Court in its endeavour to set aside the Award. On 13 April 2026, B32 filed an undertaking that, at the next call of the "reversal application" in the Court of Cassation, it would apply for the application to be withdrawn, discontinued or dismissed. B32 also undertook not to take any steps to prosecute the reversal application. I understand that the reversal application is no longer live. That being so, this Court is required to determine the Set Aside Application.

The Set Aside Application

(a)           Introductory comments

11.         The Set Aside Application was filed on 19 February 2026. B32 seeks to invoke this Court's jurisdiction under the ADGM Arbitration Regulations 2015 (the "Arbitration Regulations"). Ordinarily, an application to set aside an award will be made in the seat of the arbitration. The ADGM Courts have proceeded on the basis that the seat is in onshore Abu Dhabi.

12.         As will become apparent, some jurisdictional points arise with regard to this Court's ability to deal with the Set Aside Application. I analyse those issues on the basis of two underlying assumptions on which B32 and A32 presented their respective arguments, namely:

a.             they accepted that the ADGM Courts have jurisdiction to determine the Set Aside Application; and

b.             they accepted that the Set Aside Application should be determined by reference to the Arbitration Regulations. Neither party placed any reliance on the UAE Arbitration Law. 

(b)           The jurisdictional issue

13.         Although not argued, a prior jurisdictional point arises as to whether, in the circumstances of this case, this Court is empowered to make an order setting aside the Award. Section 58(1) of the Arbitration Regulations provides an exclusive basis to set aside an award made in an arbitration, the seat of which is ADGM. The grounds on which an arbitral award may be set aside are limited to those contained in section 58(2)(a) and (b). Section 58(2)(c) provides that any application to set aside an award "may not be made after three (3) months have elapsed from the date on which the party making that application had received the award". The Set Aside Application was made more than three months after the Award was made available to the parties. On the other hand, the annulment application to the Abu Dhabi Court of Appeal was filed within the 30 days permitted by Article 54(2) of the UAE Arbitration Law.

14.         Article 13(7) of Abu Dhabi Law No (4) of 2013, as amended by Abu Dhabi Law No. 12 of 2020, (the "Founding Law") provides for the circumstances in which this Court has "exclusive jurisdiction" to "consider and decide" matters to which it refers. Article 13(8) of the Founding Law goes further: The ADGM Courts "may hear and adjudicate any civil or commercial claim or dispute where the parties agree in writing to file such claim or dispute with them whether before or after the claim or dispute arises" (the "Opt-In Jurisdiction").

15.         The question is whether this Court is entitled to use the "Opt-In Jurisdiction" as a means to determine, under section 58 of the Arbitration Regulations, a set aside application arising from an arbitration seated in onshore Abu Dhabi. The point was considered, in similar albeit not identical circumstances, by Justice William Stone SBS KC, in A6 v B6. [15] In that case, the parties had confirmed their agreement to submit to ADGM Courts' jurisdiction notwithstanding a lack of nexus between the parties or relevant events (on the one hand) and the ADGM jurisdiction (on the other).

16.         In A6 v B6, both the Abu Dhabi Court of Appeal and the Abu Dhabi Court of Cassation subsequently declined to hear the merits of the case in light of their view that jurisdiction was vested in ADGM Courts. As in this case, the party seeking to set aside the award had filed a timely annulment application in the onshore Court. Acknowledging that "there is considerable international jurisprudence as to whether, as a matter of public policy, there even exists a residual discretion to extend time in applications to set aside arbitral awards", [16] Justice Stone considered whether, by exercising the Opt-In Jurisdiction, the parties were entitled to have the set aside application determined on the basis that the annulment application had been filed in the onshore Court of Appeal within the 30 day period for which the UAE Arbitration Law also provides. [17] His Honour also considered whether, if it were entitled to entertain the set aside application, this Court could determine it under the UAE Arbitration Law, rather than the Arbitration Regulations.

17.         The Judge held that he did have jurisdiction to consider the setting aside application, and was entitled to apply the UAE Arbitration Law. His Honour said: [18]

"In the circumstances of this case, do ADGM Courts have jurisdiction to grant the relief sought in the Claim, and if so, on what basis?

14.         The circumstances of this case are unusual. B6 recognises this, arguing that for the avoidance of doubt it is not suggested that ADGM is the proper seat of any ICC arbitration conducted in the Emirate of Abu Dhabi, but that in the "exceptional circumstances" of A6's application, and in light of the written consent of both parties to submit to the jurisdiction, there exists a "narrow exception" for ADGM Courts to assume jurisdiction and to decide the present application on its merits.

15.         This Court's initial hesitation as to jurisdiction has been met by the parties' express agreement, contained in writing in the papers filed in these proceedings and confirmed through counsel, that they wish to submit to the jurisdiction of this Court, and that in so doing they wish to 'opt in' to the jurisdiction of the Court pursuant to Abu Dhabi Law No. 4 of 2013 (as amended by Abu Dhabi Law No 12 of 2020) (the "Founding Law"), which permits parties to refer their disputes to ADGM Courts notwithstanding a lack of nexus to ADGM; Article 13(8) of the Founding Law reads:

"The Global Market's Courts may hear and adjudicate any civil or commercial claim or dispute where the parties agree in writing to file such claim or dispute with them whether before or after the claim or dispute arises".

16.         Given the parties' written agreement as to jurisdiction, which satisfies one of the jurisdictional gateways contained in the Founding Law, there is no need for the Court to consider whether, on the facts of this particular case, any of the other jurisdictional gateways have been satisfied, and the Court declines to do so.  Accordingly, this case shall proceed on the basis that the parties have opted into the jurisdiction of the Court which of itself is sufficient to found jurisdiction.

Should the provisions of Part 3 of the ADGM Arbitration Regulations be applied in determining this application, or should the [UAE] Arbitration Law be applied, and if so, why?

17.         Acceptance of jurisdiction begs the question as to the law to be applied in determining the Application.

18.         B6 says that A6's application falls to be decided under the Federal Arbitration Law since under the sub-contract the arbitration was seated in Abu Dhabi and the contractual governing law specifies the laws of the Emirate of Abu Dhabi and the federal laws of the UAE. Further, the Federal Arbitration Law is the default procedural law governing arbitrations conducted in the UAE unless the parties have agreed to a different procedural law or the arbitration is seated in one of the financial free zones of the UAE.

19.         For its part, A6 finds itself on the horns of a dilemma as the result of the circumstances as have arisen, the Court of Cassation having declined to hear its action in nullity in favour of deferring to the jurisdiction of ADGM Courts. A6 now adopts essentially a 'hybrid' position, on the one hand acknowledging the contractual relevance of the Federal Arbitration Law (and also, in context of the time bar argument, Federal Law No. 5 of 1985 on the Civil Transactions Law of the UAE (the "Federal Civil Code")), but conversely inviting substantive recourse to the ADGM Arbitration Regulations - when this application was filed for hearing before this Court it was expressly stated to be filed "in accordance with Section 58 of the ADGM Arbitration Regulations 2015".

20.         The difficulty A6 faces, however, is that under the provisions of Section 58, the title appended to which is 'Application for setting aside as exclusive recourse against arbitral award', recourse to ADGM Courts against an arbitral award is predicated upon the arbitration in question having its seat in ADGM, which is not the present case, it being undisputed that the seat of the subject arbitration is mainland Abu Dhabi, and neither A6 nor B6 sought to argue that establishment of an ICC Case Management Office within ADGM affects the contractual choice of arbitral seat.

21.         In entertaining this application, which is the wish of each party, this Court therefore must apply the Federal Arbitration Law, which represents the governing arbitration law the parties agreed in the sub-contract, and the ADGM Arbitration Regulations have no application.

..."

18.         I confess to being much less sanguine than Justice Stone as to whether the ADGM Courts should assume jurisdiction in circumstances such as these. That said, I make the following comments:

a.             As a matter of first principles, I do not see the Opt-In Jurisdiction as conclusive as to whether this Court can exercise jurisdiction. The Opt-In Jurisdiction simply allows a gateway to the ADGM Courts and provides a basis on which they may exercise powers in respect of cases that otherwise have no connection with ADGM. If parties elect to opt-in to the ADGM Courts' jurisdiction, this Court must still be satisfied that it has the power to make the orders sought.

b.             While Justice Stone may well be right in his analysis, I have doubts about whether it is appropriate for this Court to apply the UAE Arbitration Law in circumstances such as these. I do not need to make a final decision on that. There is a point of difference between A6 v B6, and this case on which I distinguish the former. In A6 v B6, one of the parties expressly asked the Court to apply the UAE Arbitration Law, rather than the ADGM Arbitration Regulations. They did so because they contended that the arbitration was seated in onshore Abu Dhabi, and that its procedural law was to be applied by the ADGM Court.  The Court agreed that the UAE Arbitration Law should be treated as the default procedural law and applied by the ADGM Courts under the Opt-In Jurisdiction. In the present case, both parties rely on the Arbitration Regulations as their source of jurisdiction for the Set Aside Application.

19.         In my view, on the facts of the present case, this Court cannot exercise jurisdiction under section 58 of the Arbitration Regulations to determine the Set Aside Application. I say that for two reasons:

a.             Clause 33 of the Agreement [19] recorded the parties' agreement that the seat of the arbitration was Abu Dhabi. The parties did not indicate that ADGM law was to be the procedural law of the arbitration. In fact, the Tribunal held that the UAE Arbitration Law operated as the procedural law of the arbitration. On that basis, I do not consider that I can apply ADGM procedural law on the Set Aside Application. It is too late for the parties to resile from their agreement that onshore Abu Dhabi was the seat of the arbitration and that the UAE Arbitration Law was the procedural law governing the arbitral proceeding.

b.             If the Set Aside Application were to be determined under section 58 of the Arbitration Regulations, this Court is expressly prohibited from extending the period of three months in which such an application must be made. Section 58(2)(c) states that an application of that type "may not be made after (3) months have elapsed from the date on which the party making [the] application had received the award". There is no legitimate legal basis to ignore the time limit imposed by section 58(2)(c) of the Arbitration Regulations.

20.  While I have held that this Court cannot exercise its jurisdiction to entertain the Set Aside Application, in case I am wrong on that point I deal fully with the substantive arguments advanced on the Set Aside Application.

(c)           Should the Award be set aside?

                (i)            The substantive grounds

21.         On the assumption that section 58 of the Arbitration Regulations can be used (a proposition that I have rejected) B32 advances two "primary" grounds on which it seeks to set aside the Award:

a.             The first is that the Award "deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration". (the "Mandate Issue")

b.             The second is that the Award ruled on an issue which was not arbitrable, as being in contravention of UAE public policy. The public policy ground for setting aside an award is set out in section 58(2)(b)(ii) of the Arbitration Regulations, and refers expressly to recognition or enforcement of an award being contrary to the public policy of the UAE. (the "Public Policy Issue")

22.         B32 also advanced other grounds on which it seeks to set aside the Award. Some of these go to the question whether the Tribunal was correct in holding that the Agreement was both valid and enforceable.  These points are challenges to the merits of the Tribunal's decision. Section 58(4) of the Arbitration Regulations makes it clear that "the Court must not undertake a merits review of the award either on fact or law". None of the other grounds are, in my view, arguable. I see no need to address them directly given my findings on other points. I deal solely with the Mandate Issue and the Public Policy Issue.

(ii)              The Mandate Issue

23.         The first ground is jurisdictional in nature. B32's position is that the Tribunal did not have a mandate to deal with certain issues that it determined in the Award. In its skeleton argument, B32 argued:

"21.          The Tribunal did not merely interpret the parties' signed and operative contractual framework. Rather, it moved beyond that framework and treated an unsigned and unexecuted SPA appended to the Option Agreement as though it were itself a binding and enforceable instrument capable of specific enforcement.

22.            The Tribunal was not empowered to create, revive, validate, or impose contractual obligations that had not crystallised under the parties' signed agreements.

23.            [B32] further submits that the relief ultimately granted by the Tribunal was not supported by any valid and subsisting arbitration agreement.

24.            [B32's] position has consistently been that the Reservation Form contained no arbitration clause, while the SPA relied upon by the Tribunal was unsigned and did not itself operate as an independent or completed arbitration agreement.

25.            Pursuant to the ADGM Arbitration Regulations 2015, while Article (24) permits the arbitral tribunal to grant interim measures, such power is expressly limited and must not prejudice the substantive rights of the parties or alter their legal positions. This limitation has been plainly breached in the present case, as the interim order went beyond preservatory measure and effectively prevented the Respondent from exercising a statutory right granted under ADGM law governing off-plan sales, namely the right to terminate the preliminary registration where the purchaser is in default of payments exceeding 30% of the unit price. This constitutes a breach of the principle of equal treatment and due process under Article (18), as well as a clear excess of jurisdiction within the meaning of Article (53(1)(c)), thereby giving rise to valid grounds for setting aside the award or the interim measure.

26.            The tribunal [exceeded] their jurisdiction by restructuring legal and financial position of both parties, previously agreed final and binding."

24.         Sections 25 and 26 of the Arbitration Regulations deal with objections to the substantive jurisdiction of an arbitral tribunal. Section 25(1) allows an arbitral tribunal to rule on its own substantive jurisdiction; including the question of the disputes that have been submitted to arbitration in accordance with the arbitration agreement. Section 25(2) provides that any such ruling may be challenged by any available arbitral process of appeal or review that the parties may have agreed, or in accordance with the provisions of Chapter 4 of the Arbitration Regulations.

25.         Section 26(1) of the Arbitration Regulations provides that any objection to substantive jurisdiction must be raised by a party not later than the time it takes the first step in the proceedings to contest the merits of any matter in respect of which the challenge is made. Section 26(2) adds that, any objection arising "during the course of the arbitral proceedings" that the arbitral tribunal is exceeding its substantive jurisdiction must (subject to the tribunal's ability to admit a late objection in justifiable circumstances) be made as soon as possible after the matter alleged to be beyond its jurisdiction is raised. Section 26(3) authorises the arbitral tribunal to rule on any such objection "either as a preliminary question or in an award on the merits".

26.         A number of jurisdictional issues were raised before the Tribunal. They were classified as "objections to the Tribunal's jurisdiction in relation to matters related to validity of claims sought, arbitrability, and compliance with pre-arbitral procedures". Nevertheless, the Tribunal dealt with those jurisdictional objections at length. [20] Almost all were addressed at an interim stage of the arbitration. Although B32 failed before the Tribunal, it did not make any application, under section 27(1) of the Arbitration Regulations, to the Court to determine the point. In those circumstances, section 27(1) makes it clear that a party may lose the right to object pursuant to section 11 of the Act. Section 11(3) states that where an arbitral tribunal rules that it has substantive jurisdiction and a party who could have questioned the ruling by challenging the award does not do so (or does not do so within a time permitted by the arbitration agreement or legislation) it "may not object later to the tribunal's substantive jurisdiction on any ground which was the subject of that ruling". I do not consider there are any live issues of that type that require analysis.

27.         Although not strictly matters of "mandate", B32 raised three other concerns about the way in which the Tribunal went about its decision-making:

a.             The first alleged that the Tribunal breached the "equal treatment" rule [21] by making decisions which had the effect of "restructuring legal and financial positions of both parties [which had] previously [been] agreed final and binding". There is nothing to suggest that the Tribunal failed to comply with the equal treatment rule or acted beyond its mandate in dealing with the subject matter of this challenge. I reject this challenge.

b.             The second concerns interim measures [22] imposed by the Tribunal. There is nothing in the evidence or the Award itself on which any finding that the Tribunal exceeded its jurisdiction could be based. The issue with which the interim measure was concerned was debated at a substantive level. In my view, any challenge should be characterised as one going to the merits. Such challenges are not permissible on a set aside application. [23]

c.             The third is a complaint that the Tribunal did not render its final award within a period of six months from the date of its constitution. That, B32 submits, was contrary to Article 33 of the Agreement. This point was raised before the Tribunal, and dealt with in the Award. The Tribunal rejected the challenge, as did the onshore Abu Dhabi Court of Appeal on the annulment application. I agree with their conclusions.

28.         In my view, the Mandate Issue (including the complaints involving equal treatment and interim measures) must be resolved in favour of A32.

(iii)             The Public Policy Issue

29.         The second ground is based on public policy. [24] It is said that decisions were made by the Tribunal in relation to the transfer or registration of real property which were not arbitrable disputes. B32 contends that determination of disputes relating to real property are within the exclusive jurisdiction of either the onshore or ADGM Courts. The substance of the objection is not so much that enforcement of the Award would be contrary to the public policy of the UAE but, rather, whether the dispute was arbitrable. Section 58(2)(b)(i) applies when the subject matter of the dispute is not capable of resolution by arbitration under ADGM law (a question of arbitrability) while section 58(2)(b)(ii) is directed to circumstances in which enforcement of the award would be contrary to the public policy of the UAE.

30.         The primary argument is that, because the dispute relates to real property, it was contrary to UAE public policy for them to be resolved by arbitration rather than through the Abu Dhabi courts. That is said to be a public policy objection that could not be waived. I do not accept that the point that the objection is one that rests on public policy. It is an arbitrability issue. The two decisions of the Dubai Court of Cassation on which B32 relied are, in fact, based on arbitrability and arose out of disputes in connection with non-registration on the Interim Real Property Register in the Emirate of Dubai (the "Interim Real Property Register"). In Appeal 2011/486, Real Estate Appeal, the Dubai Court of Cassation [25] held, in the context of a sales agreement that was not registered on the Interim Real Estate Register, that this related to "matters of public order due to [a] connection with the rules of private property and the Wealth trading" and was  not arbitrable. In Appeal 43 of 2010, Real Estate Appeal [26], the same Court held that disputes involving the registration of off-plan sales in the Interim Real Property Register were not arbitrable "due to its violation of public order". In the context of this public policy issue, I note that when considering the same challenge on the annulment application the Abu Dhabi Court of Appeal found that there was no breach of UAE public policy on the facts of this case. [27]

31.         In my view, no question of public policy arises in respect of the arbitrability of disputes relating to real property situated within the ADGM. At all material times, Al Maryah Island was part of the ADGM. The ADGM Courts, exercising powers under the Real Property Regulations 2024, as well as principles of common law and equity, must assess whether arbitration is or is not prohibited by reason of the real property laws it must apply. The law applicable to the transfer and registration of real property is that of the lex situs, the place where the real property is located. The lex situs is ADGM law. [28]

32.         The only statutory provision which might cast some doubt on the proposition that such disputes are arbitrable is section 51(3)(c)(ii) of the Arbitration Regulations. Section 51(3)(c)(ii) presumptively confers on the arbitral tribunal the same powers as the Court may exercise "to order specific performance of a contract (other than a contract relating to land)". There is an important distinction to be drawn between a dispute that cannot be referred to arbitration as a matter of law and one in which the tribunal is empowered to decide a dispute but is restricted in the remedies that it is entitled to apply. The first prevents an arbitration from occurring. The second allows the dispute to be determined by arbitration, subject to constraints on the power to grant a particular remedy.

33.         From a common law perspective, both the Supreme Court of the United Kingdom and the Privy Council have recently held that the fact that only a court can grant a remedy does not prevent parties from referring particular factual inquiries for determination by arbitration; it simply requires the Court to make the ultimate order to give effect to the tribunal's findings. In FamilyMart China Holding Co Ltd v Ting Chuan (Cayman Islands) Holding Corporation [29] the Privy Council, in the context of an application to wind up a company on the "just and equitable" ground, held that matters such as whether one party had breached obligations under a shareholders' agreement were arbitrable even though it was necessary for the Court to make any winding up order that might follow from the findings. [30] The Court, in determining whether to make a winding up order exercises a discretionary power. The same position pertains in respect of a specific performance order, which the Court also has a discretion to make.

34.         Applying that approach to section 58(2)(c)(ii) of the Arbitration Regulations, questions of validity and enforceability of the Agreement were arbitrable. The constraint on the Tribunal was that it could not make coercive orders for specific performance. Those orders that are required to give effect to the Tribunal's findings that the Agreement is valid and enforceable are for the Court to direct in its enforcement jurisdiction. The circumstances in which a specific performance order might be made in ADGM in respect of ADGM registered land is discussed in this Court's recent decision in Al Khaleej Investment PSC v Ocean Pearl Real Estate Comp LLC. [31]

The Enforcement Application

35.         I reiterate that this Court has already decided that the Award should be enforced. That must be treated as a final decision of the ADGM Courts because the ADGM Court of Appeal refused permission for B32 to appeal against the Recognition Order. The orders that I now make are for the purpose of enabling the findings of the Tribunal to be implemented. They are made on the basis that A32 has, since the date of the Award, made a final payment to B32 in the sum of AED 2,500,000, that the Tribunal recorded remained owing at the date of the Award.

Conclusion

36.         Having reviewed the terms of the Award, I am satisfied that a specific performance order is required to give effect to the Tribunal's findings. In granting the Enforcement Application, I make the following orders:

a.             By 4.00 pm on 26 June 2026, B32 shall take all necessary steps to effect with the ADGM Registration Authority a transfer of the title deed for the Unit, including the payment of any fees or other costs associated with the registration of the transfer.

b.             Without limiting sub-paragraph (a), B32 shall submit to the ADGM Registration Authority all necessary documentation required by it to effect the transfer of the title deed for the Unit into the name of A32, including documentation required in respect of any "No Objection Certificate".

c.             The transfer of the Unit to A32 shall be made free of any encumbrances, charges or third-party claims.

d.             Liberty to apply is reserved for A32 to seek any further orders or directions necessary to give effect to sub-paragraphs (a), (b) and/or (c) above.

37.         The Set Aside Application is dismissed.

38.         I make a costs order nisi that A32 is entitled to costs on both the Set Aside and Enforcement Applications, to be summarily assessed on the standard basis if not agreed. Costs are to include those yet to be expended by A32 (if any) in finalising the transfer of the Unit in accordance with the orders I have made. The costs order nisi will become absolute at 4.00 pm on 26 June 2026 unless any application is made to discharge or vary it by that time.

39.         The Stay Application, being spent, is dismissed with no order as to costs.

Issued by:   Linda Fitz-Alan Registrar, ADGM Courts 9 June 2026