Sharjah Court of Cassation confirms that participation in court-appointed expert proceedings does not waive arbitration

In a judgment issued on 6 July 2026, the Sharjah Court of Cassation considered two important issues concerning the preservation and the effectiveness of arbitration clauses in addendum agreements.

First, the Court considered whether an arbitration clause contained in an original contract applies where a later addendum does not refer to it. Secondly, it considered whether a party’s participation in court appointed expert proceedings constitutes an implied waiver of its right to rely on arbitration.

Background

The dispute arose from a sale agreement that included an arbitration clause referring disputes between the parties to arbitration. The parties later entered into an addendum modifying certain terms of their contractual relationship. Although the addendum did not refer or reiterate the arbitration clause, it also did not contain any provision expressly revoking or replacing it.

After one party commenced court proceedings before the Sharjah courts, the defendant argued that the claim was inadmissible because the dispute was subject to arbitration. A court appointed expert was subsequently appointed by the court to investigate the merits of the dispute. The defendant participated in the expert proceedings while continuing to maintain its arbitration plea.

The Court of Appeal rejected the plea and concluded that the omission of the arbitration clause from the addendum, coupled with the defendant’s participation before the expert, demonstrated that the defendant had implicitly accepted the jurisdiction of the courts.

The defendant challenged that conclusion before the Court of Cassation.

The Court’s ruling

The Court of Cassation overturned the Court of Appeal judgment.

The Court held that an arbitration agreement remains effective unless the parties clearly agree to revoke or replace it. It confirmed that an arbitration clause constitutes an independent agreement based on the parties’ consent. A subsequent addendum will generally supplement the original contract and will not extinguish an existing arbitration clause merely because the clause is not reiterated or confirmed. Clear evidence that the parties intended to revoke or replace the arbitration agreement is required.

The Court also distinguished between failing to invoke arbitration at the correct procedural stage and participating in court directed procedures after the arbitration plea had already been raised. It held that participation in expert proceedings does not constitute waiver of the arbitration agreement where the party has invoked the arbitration agreement at the first available procedural opportunity.

Article 8 of Federal Law No. 6 of 2018 concerning Arbitration requires a party to invoke the arbitration agreement before submitting any request or plea on the merits. In this case, the defendant had raised the plea in its first procedural defence and before addressing the substance of the dispute.

Its subsequent participation in expert proceedings, which were conducted pursuant to the court’s order, did not, according to the Court, retrospectively waive the arbitration plea or amount to acceptance of the court’s jurisdiction.

Practical implications

The judgment provides several practical points for contracting parties:

Contractual amendments should state expressly whether the original dispute resolution provisions remain in force. Reiterating or expressly incorporating the arbitration clause can help avoid unnecessary jurisdictional disputes.

• A party wishing to rely on arbitration should raise the relevant plea in its first defence and before making any request or submission on the merits.
• Where expert proceedings continue after the arbitration plea has been raised, a party relying on an arbitration clause should maintain an express reservation of rights in its submissions, correspondence and attendance before the expert.
• Participation in an expert process may remain necessary to protect the party’s substantive position if the arbitration plea is ultimately rejected. The judgment confirms that taking such position does not, by itself, undo a properly preserved arbitration plea.

Conclusion

The judgment reinforces the UAE courts’ support for the continued effectiveness of arbitration agreements.

A party should not be required to choose between maintaining its arbitration plea and protecting its position in expert proceedings ordered by the court. However a party wishing to rely on an arbitration clause, must raise the existence of such clause before engaging in any discussions in relation to the merits. A party that addresses the merits of the case before invoking the arbitration agreement may lose the right to rely on it.

For further information regarding arbitration agreements or disputes before the UAE courts, please contact Sherif Maher or Hesham El Samra at Clyde & Co.