On 6 February 2026, H.E. Justice Shamlan Al Sawalehi delivered a sharp rebuke to the Claimant in Oratio v Orangia, dismissing an application to introduce expert evidence on UAE public policy. The Claimant had sought to rely on a locally qualified advocate to bolster its set-aside challenge, but the Court found the move both unnecessary and disproportionate. With the underlying dispute involving a AED 14 million property sale, Justice Al Sawalehi’s ruling serves as a firm reminder that the Court remains the final arbiter of its own procedural fairness standards.
For arbitration counsel, this decision marks a significant tightening of the threshold for expert intervention in DIFC set-aside proceedings. By categorizing the Claimant’s public policy complaint as a matter of procedural fairness under Article 41(2)(a)(ii) of the Arbitration Law, the Court has effectively signaled that parties cannot use 'public policy' as a catch-all justification to introduce expert testimony where the Court is already fully competent to adjudicate the procedural merits. The ruling forces practitioners to move beyond boilerplate invocations of public policy and demonstrate, with precision, exactly why the Court requires external assistance to interpret the law.
How Did the Dispute Between Oratio and Orangia Arise?
The genesis of the dispute in Oratio v Orangia [2026] DIFC ARB 043 lies in a high-value real estate transaction that rapidly deteriorated into a multi-front arbitral conflict. Commercial property disputes in Dubai frequently generate complex enforcement battles, but the procedural posture in this matter escalated with unusual speed, transforming a standard breach of contract claim into a sophisticated test of the Dubai International Financial Centre (DIFC) Courts' statutory boundaries. The conflict centered on a Sale and Purchase Agreement dated 21 December 2020 pursuant to which the Claimant sold to the Defendant a Villa in Dubai (the “Property”) for a price of AED 31,000,000.
The breakdown of this AED 31 million transaction triggered arbitration proceedings that culminated in a substantial financial liability for the Claimant. The arbitral tribunal, tasked with untangling the contractual breaches associated with the Dubai villa transfer, ultimately found in favor of the Defendant. The resulting award was significant, not merely in its
How Did the Case Move From Initial Filing to Procedural Consolidation?
The genesis of the procedural friction in Oratio v Orangia lies in a high-value real estate transaction that ultimately fractured, culminating in a substantial arbitral award and triggering a race to the Dubai International Financial Centre (DIFC) Courts. The factual matrix, while commercially straightforward, set the stage for a complex sequence of tactical maneuvering between the award creditor and the award debtor. As the Court established at the outset of its procedural review, the underlying dispute between the Parties related to a Sale and Purchase Agreement dated 21 December 2020 (the “Original Agreement”) pursuant to which the Claimant sold to the Defendant Villa in Dubai (the “Property”) for a price of AED 31,000,000.
Following the breakdown of the Original Agreement, the parties proceeded to arbitration to resolve their competing claims. The arbitral tribunal ultimately found in favour of the Defendant, issuing a ruling that carried severe financial implications for the Claimant. The arbitration commenced, and on 11 August 2025, the Tribunal issued the Award ordering the Claimant to pay the amount of AED 14,043,096.42 (plus interest and costs as set out in the Award).
Faced with a liability exceeding AED 14 million—nearly half the value of the original property transaction—the Claimant initiated a preemptive strike against the award's validity. On 3 November 2025, the Claimant filed the Set-Aside Application pursuant to Article 41 of the DIFC Arbitration Law. This filing was a calculated effort to nullify the arbitral decision before the Defendant could mobilize to execute against the Claimant's assets within the jurisdiction.
Unwilling to wait passively for the set-aside proceedings to run their course, the Defendant launched an immediate counter-offensive. On 10 December 2025, the Defendant made an Application to seek recognition and enforcement (“R&E Application”) of the Award before DIFC. The dual filings created a classic procedural bottleneck. The DIFC Court of First Instance was now confronted with two parallel tracks concerning the exact same arbitral award: one seeking its total destruction, the other demanding its immediate execution.
To prevent the risk of irreconcilable judgments, avoid the duplication of evidentiary hearings, and streamline judicial resources, the Court intervened to manage the overlapping claims. By an order of Justice Shamlan Al Sawalehi dated 13 January 2026 consolidating the proceedings (the “Consolidation Order”), the two applications were formally joined into a single procedural track.
Consolidation, while administratively elegant, immediately altered the tactical landscape and sparked a fierce secondary skirmish. The Defendant, holding a valid but unenforced AED 14 million award, perceived the consolidation not merely as a scheduling mechanism, but as a structural delay to its enforcement rights. Consequently, on 26 January 2026, the Defendant filed an urgent application demanding that the Claimant pay the entire award sum into an escrow account pending the final resolution of the consolidated proceedings.
The Defendant anchored this aggressive demand in Article 44(2) of the DIFC Arbitration Law, advancing an inventive legal theory regarding the nature of court-ordered consolidation. The Applicant’s primary submission was that, as a result of the Consolidation Order, enforcement of the Award was effectively adjourned because recognition/enforcement would not proceed in parallel but would await determination of the Set-Aside Application.
The Applicant submitted that the legal framework does not provide for an automatic stay of enforcement merely because a set-aside application is issued, and that consolidation has the practical effect of suspending the timely pursuit of recognition/enforcement. In the Defendant's view, if the Court's case management decisions were going to force them to wait for the set-aside determination before realizing their award, the Court possessed a corresponding duty to protect their financial position by locking up the disputed funds.
To understand the Court's ultimate rejection of this theory, one must examine the precise statutory gateway the Defendant attempted to force open. Article 44(2) confers a discretionary power in specific circumstances, namely where an application for setting aside has been made and the Court considers it proper to adjourn its decision on recognition/enforcement, and “may also” order appropriate security.
The critical, non-negotiable trigger for this discretionary power is an actual adjournment of the enforcement decision. The Respondent fiercely contested that any such adjournment had occurred, attacking the Defendant's application at its jurisdictional root. The Respondent’s primary submission was jurisdictional: Article 44(2) is not engaged because there has been no adjournment of recognition or enforcement in this case.
Beyond strict statutory interpretation, the Respondent exposed the tactical reality underpinning the Defendant's urgent application. The Respondent submitted that the Application, though framed under Article 44(2), proceeds in substance on a freezing-order premise and therefore requires solid evidence of unjustified dissipation. Securing a freezing injunction—traditionally known as a Mareva order—in the DIFC requires a notoriously high evidentiary threshold. An applicant must demonstrate a real, objective risk that the respondent will actively dissipate assets to frustrate a future judgment. By utilizing Article 44(2), the Defendant was attempting a procedural end-run around these stringent requirements, seeking to lock up AED 14 million without proving any actual risk of dissipation, relying solely on the existence of the Court's own Consolidation Order.
The doctrinal roots of Article 44(2) further dismantled the Defendant's position. The Respondent additionally advanced a connected submission that Article 44(2) is derived from the New York Convention regime for foreign awards and that the conditions covered by Article 44(2) concerns delay where set-aside is in a different forum beyond the enforcement court’s control. This is a vital doctrinal distinction that goes to the heart of international arbitration practice. When an enforcement court in one jurisdiction is asked to enforce an award that is currently being challenged in the courts of the arbitral seat in a foreign jurisdiction, the enforcement court might choose to adjourn its proceedings to wait for the foreign court's ruling. In that specific scenario, ordering security protects the award creditor during the delay caused by a sovereign court beyond the enforcement judge's control.
However, in Oratio v Orangia, the DIFC Court is acting as both the supervisory court handling the set-aside and the enforcement court handling the execution. The Court is not waiting on a foreign jurisdiction; it is actively managing both claims simultaneously on its own docket. H.E. Justice Shamlan Al Sawalehi decisively rejected the Defendant's attempt to weaponize the Consolidation Order, finding the statutory gateway entirely closed. For those reasons, the Court concluded that Article 44(2) was not engaged on the present facts and procedural posture because there had been no adjournment of the Court’s decision on recognition/enforcement within the meaning of that provision.
The ruling establishes a clear, unyielding boundary: active case management does not equate to an adjournment. Consolidating a set-aside application with an enforcement application brings the issues together for a unified, efficient hearing; it does not put the enforcement application on hold in the manner contemplated by the New York Convention or Article 44(2).
The court's management of the case highlights the tension between parallel set-aside and enforcement proceedings, and the lengths to which award creditors will go to secure their winnings before a final substantive hearing. If the Court had accepted the Defendant's premise, it would have created a highly disruptive precedent. Every consolidation order in the DIFC involving parallel arbitration claims would automatically trigger an application for security, effectively reversing the burden of risk and forcing award debtors to post millions in escrow simply because the Court decided to hear the matters together for administrative convenience.
The DIFC Courts have consistently guarded against procedural mechanisms being used to bypass substantive legal thresholds, a philosophy echoed in earlier jurisprudence regarding parallel proceedings and enforcement delays, such as the approach seen in ARB-005-2014: Eava v Egan [2014] ARB 005. By ensuring the application was dismissed with costs, Justice Al Sawalehi reinforced that a party seeking to freeze assets pending a consolidated hearing must meet the heavy burden of a traditional freezing order, rather than relying on the routine administrative act of consolidation as a statutory shortcut to financial security.
Why Did the Court Reject the Need for Expert Evidence on Public Policy?
The attempt to introduce expert evidence in arbitration set-aside proceedings often serves as a tactical battleground, where parties seek to expand the scope of review beyond the strict confines of the arbitral statute. In Oratio v Orangia, the Claimant sought to deploy a locally qualified UAE advocate to opine on matters of UAE public policy, arguing that the arbitral tribunal’s conduct violated fundamental principles of natural justice. The application forced the Dubai International Financial Centre (DIFC) Court of First Instance to confront a critical boundary: the line between a genuine evidentiary gap regarding foreign or local law, and a purely judicial question of procedural fairness.
H.E. Justice Shamlan Al Sawalehi’s resolution of this issue was unequivocal. The Court clarified that the interpretation of public policy, when invoked in the context of arbitral procedural fairness, is an inherently judicial function rather than an evidentiary one. The ruling dismantled the Claimant’s attempt to outsource the determination of natural justice to an external expert, reinforcing the Court’s exclusive competence over its own procedural standards.
The procedural flashpoint emerged late in the set-aside timeline. The Claimant had initiated its challenge to the AED 14 million property sale award in early November 2025. However, it was not until the end of the year that the evidentiary application materialized. As H.E. Justice Al Sawalehi recorded:
This is the Claimant’s Application dated 30 December 2025 (the “Application”) seeking permission, pursuant to Rule 31.12-31.14 of the Rules of the DIFC Courts (“RDC”), to rely on expert evidence from a locally qualified UAE advocate on matters said to engage UAE public policy.
The Claimant’s core grievance was that the arbitral tribunal had allegedly determined the case against it based on an argument that had not been advanced by the opposing party during the arbitration. According to the Claimant, this deprived it of a proper opportunity to respond, which it characterized as contrary to a fundamental principle of natural justice and UAE public policy. To substantiate this claim, the Claimant argued that the DIFC Court would rarely be in a position to make definitive findings on UAE public policy without the specialized assistance of a local advocate. Consequently, the Claimant asserted that expert testimony was "reasonably required" under RDC 31.12 to resolve the proceedings fairly.
The Defendant, Orangia, mounted a vigorous opposition, characterizing the application as both procedurally and substantively misconceived. The Defendant argued that the Claimant was attempting to dress up a standard procedural complaint as a complex issue of public policy merely to delay the final determination of the set-aside claim. Crucially, the Defendant pointed out that the Claimant’s application rested on a generalised proposition at a high level of abstraction, failing to identify any specific, concrete rule of UAE law that was actually in dispute and required expert elucidation.
H.E. Justice Al Sawalehi’s analysis cut through the Claimant’s framing, focusing instead on the substantive nature of the grievance. The Court recognized that the complaint—being ambushed by an unpleaded argument—is a classic due process issue. It does not require an exploration of the esoteric depths of UAE public policy; rather, it falls squarely within the statutory grounds for setting aside an award based on an inability to present one's case. The Court held:
The Claimant’s pleaded complaint, being deprived of the opportunity to meet a case not advanced, is directly addressed by Article 41(2)(a)(ii) of the Arbitration Law.
By re-anchoring the dispute to Article 41(2)(a)(ii) of the DIFC Arbitration Law, the Court effectively neutralized the demand for expert evidence. Article 41(2)(a)(ii) provides that an award may be set aside if the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings, or was otherwise unable to present its case. The determination of whether a party was "unable to present its case" is a fundamental judicial task. It requires the supervising judge to review the arbitral record, assess the procedural history, and apply established standards of fairness. It does not require a local advocate to explain what fairness means under UAE law, because the DIFC Court itself is the ultimate arbiter of procedural fairness within its jurisdiction.
The Claimant’s reliance on prior DIFC authorities to suggest a default need for expert evidence whenever public policy is invoked was systematically dismantled. The Court rejected the notion that the mere invocation of the words "public policy" automatically triggers an evidentiary requirement. H.E. Justice Al Sawalehi stated:
I accept the Defendant’s submission that the authorities relied upon by the Claimant do not establish a default rule that expert evidence is required whenever public policy is invoked.
This holding is doctrinally significant. It prevents parties from using the public policy ground (Article 41(2)(b)(iii)) as a Trojan horse to introduce unnecessary expert testimony, which inevitably inflates costs and delays proceedings. Expert evidence in the DIFC Courts is governed by Part 31 of the Rules of the DIFC Courts (RDC), which strictly limits such evidence to that which is "reasonably required" to resolve the proceedings. The Court exercises a robust gatekeeping function under RDC 31.12 to ensure that experts are only deployed when there is a genuine, disputed issue of specialized knowledge that the judge cannot resolve independently.
In Oratio v Orangia, the Claimant failed to meet this threshold. The Court noted that the Claimant had not identified any concrete, disputed issue of UAE public policy that required specialized explanation. A generalized assertion that deciding a case on an unadvanced argument violates natural justice is a universal legal principle, not a uniquely complex feature of UAE law requiring expert translation. The Court is fully equipped to assess whether the tribunal's conduct breached the fundamental norms of due process without needing an external advocate to confirm that such a breach would also offend public policy.
The tactical context of the application also weighed heavily against the Claimant. The timing of the request suggested an effort to derail the procedural timetable rather than a genuine need for evidentiary support. The Court observed that the Claimant had commenced the set-aside claim on 3 November 2025 and had already filed multiple rounds of evidence without ever identifying a specific UAE public policy rule or explaining why an expert was necessary. The sudden realization, months into the litigation, that a local advocate was indispensable appeared highly opportunistic.
This intolerance for procedural maneuvering aligns with the DIFC Courts' broader jurisprudence regarding arbitration challenges. In cases such as ARB-027-2024: ARB 027/2024 Nalani v Netty, the Court has consistently penalized parties who attempt to use procedural applications to obstruct the efficient resolution of arbitration-related claims. The DIFC operates as a pro-arbitration jurisdiction, and its supervisory courts are acutely aware of the tactics employed by losing parties to delay enforcement or complicate set-aside proceedings. By dismissing the application for expert evidence, H.E. Justice Al Sawalehi sent a clear message that the Court will not entertain satellite litigation over evidentiary matters that are fundamentally within the Court's own judicial competence.
Furthermore, the Claimant’s admission that it had not even identified a particular expert in the time available, and would only engage one if permission were granted, underscored the speculative nature of the application. It was, in essence, a fishing expedition. The Claimant was asking the Court for a blank check to find an expert who might subsequently articulate a public policy argument that the Claimant itself had failed to particularize in its pleadings. The Court rightly refused to facilitate this reverse-engineered approach to litigation.
The distinction drawn by the Court between a substantive rule of public policy and a procedural fairness complaint is vital for practitioners navigating the DIFC Arbitration Law. If a party wishes to challenge an award on the basis that its substantive enforcement would violate a specific, perhaps obscure, tenet of UAE public policy—such as a prohibition against certain types of speculative contracts or specific mandatory provisions of local commercial law—expert evidence might theoretically be justified if the rule is genuinely disputed. However, when the complaint is that the tribunal acted unfairly, failed to give a party a hearing, or decided the case on an unpleaded basis, the issue is one of procedural justice. Procedural justice is the daily bread of the DIFC Courts. It is a matter of applying the statutory standards of Article 41(2)(a)(ii), a task for which the presiding judge requires no external instruction.
By firmly categorizing the Claimant's grievance as a procedural fairness issue rather than a free-standing public policy question requiring expert input, H.E. Justice Al Sawalehi protected the integrity and efficiency of the set-aside process. The ruling confirms that the DIFC Court will not abdicate its judicial function to expert witnesses, nor will it allow the strict parameters of RDC Part 31 to be bypassed by creative pleading. The interpretation of what constitutes a fair hearing remains securely within the domain of the bench, ensuring that arbitration challenges are resolved on their legal merits rather than bogged down in manufactured evidentiary disputes.
What Is the Correct Legal Framework for Assessing Procedural Fairness?
The boundary between a standard procedural grievance and a fundamental breach of public policy is frequently tested in set-aside applications, often by award debtors seeking to maximize their avenues of attack. In Oratio v Orangia, the Claimant attempted to blur this boundary entirely, seeking to introduce expert testimony on UAE law to prove that the arbitral tribunal’s handling of the case violated local public policy. H.E. Justice Shamlan Al Sawalehi firmly rejected this conflation, ruling that the DIFC Arbitration Law already provides a dedicated, exhaustive statutory mechanism for addressing due process complaints.
The procedural clash originated from the Claimant’s dissatisfaction with the tribunal’s decision-making process. The Claimant alleged that the tribunal had determined the case against it based on an argument that the opposing party had never formally advanced, thereby depriving the Claimant of a proper opportunity to respond. Rather than relying solely on the standard statutory grounds for challenging an award based on procedural unfairness, the Claimant sought to elevate the grievance into a matter of sovereign concern. The Claimant filed an application to adduce expert evidence, arguing that the tribunal’s conduct violated a fundamental principle of natural justice and UAE public policy.
To substantiate this elevated claim, the Claimant argued that the DIFC Court required external assistance to understand the nuances of UAE public policy. The application was framed under the procedural rules governing expert testimony:
This is the Claimant’s Application dated 30 December 2025 (the “Application”) seeking permission, pursuant to Rule 31.12-31.14 of the Rules of the DIFC Courts (“RDC”), to rely on expert evidence from a locally qualified UAE advocate on matters said to engage UAE public policy.
The Claimant’s strategy relied on a specific interpretation of prior DIFC jurisprudence. The Claimant asserted that previous rulings established a precedent whereby the DIFC Court will rarely be in a position to make definitive findings on UAE public policy without the guidance of a locally qualified advocate. Consequently, the Claimant argued that such expert evidence was reasonably required” within the meaning of RDC 31.12 to ensure the proceedings were resolved fairly and efficiently.
Justice Al Sawalehi dismantled this argument by identifying a fundamental category error in the Claimant’s approach. The grievance at the heart of the set-aside application—the alleged inability to meet an unpleaded case—was not a novel question of UAE public policy requiring specialized local law analysis. It was a textbook allegation of procedural unfairness. The DIFC Arbitration Law, modeled on the UNCITRAL Model Law, anticipates exactly this type of complaint and provides a specific statutory remedy.
The Defendant correctly identified that the Claimant was attempting to bypass the standard framework. The Defendant argued that the application was substantively misconceived because the underlying issue was already governed by the specific provisions of the Arbitration Law dealing with due process. Justice Al Sawalehi agreed with this characterization, cementing the primacy of the statutory text:
The Claimant’s pleaded complaint, being deprived of the opportunity to meet a case not advanced, is directly addressed by Article 41(2)(a)(ii) of the Arbitration Law.
Article 41(2)(a)(ii) allows an arbitral award to be set aside if the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings, or was otherwise unable to present his case. By explicitly pointing to this provision, the Court emphasized that Article 41(2)(a)(ii) operates as a complete code for assessing whether a party was afforded a fair hearing.
The distinction between Article 41(2)(a)(ii) (inability to present a case) and Article 41(2)(b)(iii) (conflict with the public policy of the UAE) is not merely academic; it dictates the evidentiary requirements and the scope of the Court's review. Procedural fairness in international arbitration is an objective standard that the supervisory court is uniquely equipped to assess by reviewing the arbitral record, the pleadings, and the transcripts. It does not require a deep dive into the substantive public policy of the broader state. If every allegation of an unpleaded point or a truncated cross-examination could be repackaged as a violation of UAE public policy, the efficiency of the set-aside process would collapse under the weight of unnecessary expert reports.
The Court firmly rejected the Claimant's attempt to manufacture a default rule requiring expert evidence whenever the phrase "public policy" is invoked in a pleading. The Defendant had forcefully argued that the Claimant failed to identify any concrete, disputed or properly particularised issue of UAE law, relying instead on a generalized proposition at a high level of abstraction. Justice Al Sawalehi endorsed this view, clarifying the limits of prior DIFC authorities:
I accept the Defendant’s submission that the authorities relied upon by the Claimant do not establish a default rule that expert evidence is required whenever public policy is invoked.
This ruling reinforces the principle that the DIFC Court retains absolute discretion over the admission of expert evidence, particularly on matters that fall squarely within its own judicial competence. The assessment of whether a tribunal afforded a party a reasonable opportunity to present its case is the bread and butter of a supervisory court. To outsource that assessment to a local advocate under the guise of "public policy" would be an abdication of the Court's supervisory role. Expert evidence is restricted to that which is genuinely necessary to resolve the proceedings; it is not a tool for parties to artificially inflate the complexity of a standard due process challenge.
The tactical realities of the Claimant's application further undermined its position. The Defendant characterized the move as an attempt to delay listing and final determination of the set-aside claim. The chronology of the proceedings strongly supported this inference. The Claimant had initiated the set-aside process months earlier but only sought permission for expert evidence at a late stage, without having even identified a specific expert to instruct. The Court took a dim view of this procedural sequencing:
I accept the submission that the Claimant commenced the set-aside claim on 3 November 2025 and filed multiple rounds of evidence without identifying any particular UAE public policy rule or explaining why expert evidence was required.
The Claimant's admission that it had not identified an expert and would only engage one if permission were granted—purportedly in the interests of costs—backfired. It highlighted the speculative nature of the application. The Claimant was essentially asking the Court for a blank check to go fishing for a UAE public policy argument that might retroactively justify its procedural complaints.
This strict approach to procedural discipline aligns with the broader trajectory of DIFC jurisprudence, which consistently penalizes attempts to derail or overcomplicate arbitration-related litigation. As seen in cases like ARB 027/2024 Nalani v Netty, the DIFC Courts are highly attuned to the tactics employed by award debtors to protract enforcement or set-aside proceedings. Late applications that lack substantive particularization are routinely dismissed with adverse cost consequences.
By dismissing the application in Oratio v Orangia, Justice Al Sawalehi sent a clear message to practitioners: procedural fairness is governed by Article 41(2)(a)(ii), and the Court is fully capable of applying that standard without external help. Parties cannot circumvent the high threshold for proving a due process violation by simply re-labeling their grievance as a breach of UAE public policy. The legal framework for assessing procedural fairness is self-contained within the Arbitration Law, and the Court will not permit the introduction of costly, time-consuming expert evidence to answer questions it is already mandated to decide.
How Does the DIFC Approach to Security for Costs Compare to Other Jurisdictions?
The intersection of set-aside applications and enforcement proceedings frequently generates intense tactical skirmishing in international arbitration. When a losing party challenges an award, the prevailing party inevitably seeks to secure the award sum, fearing asset dissipation during the delay. In Oratio v Orangia [2026] DIFC ARB 043, the Dubai International Financial Centre (DIFC) Court of First Instance confronted a direct attempt to leverage a procedural consolidation into a substantive order for security. The resulting judgment by H.E. Justice Shamlan Al Sawalehi establishes a rigorous boundary between active case management and the statutory concept of an "adjournment," reinforcing the jurisdiction's sophisticated alignment with global enforcement treaties.
The factual matrix of the dispute provided a high-stakes backdrop for this procedural clash. The conflict originated from a high-value real estate transaction, which the Court summarised succinctly: the underlying dispute between the Parties related to a Sale and Purchase Agreement dated 21 December 2020 (the “Original Agreement”) pursuant to which the Claimant sold to the Defendant Villa in Dubai (the “Property”) for a price of AED 31,000,000.
Following the breakdown of that agreement, the matter proceeded to arbitration. The tribunal ultimately found in favour of the Defendant, Orangia, resulting in a substantial financial liability for the Claimant, Oratio. The issuance of the award triggered the subsequent race to the DIFC Courts: the arbitration commenced and on 11 August 2025, the Tribunal issued the Award ordering the Claimant to pay the amount of AED 14,043,096.42 (plus interest and costs as set out in the Award). Faced with an eight-figure liability, Oratio initiated a preemptive strike. On 3 November 2025, the Claimant filed the Set-Aside Application pursuant to Article 41 of the DIFC Arbitration Law. Orangia responded shortly thereafter; on 10 December 2025, the Defendant made an Application to seek recognition and enforcement of the Award. Recognising the inherent inefficiency of running parallel tracks for the same underlying arbitral award, the Court intervened administratively. H.E. Justice Shamlan Al Sawalehi issued an order on 13 January 2026 consolidating the two proceedings.
It was this administrative consolidation that Orangia attempted to weaponise. Orangia filed an urgent application demanding that Oratio pay the entire AED 14,043,096.42 award sum into an escrow account pending the final determination of the consolidated proceedings. Orangia anchored its demand on Article 44(2) of the DIFC Arbitration Law, which grants the Court discretion to order security if it adjourns enforcement proceedings pending a set-aside application. Orangia's legal theory relied on equating the practical delay caused by consolidation with a formal adjournment, submitting that as a result of the Consolidation Order, enforcement of the Award was effectively adjourned because recognition/enforcement would not proceed in parallel but would await determination of the Set-Aside Application.
Orangia further argued that the procedural reality of the DIFC framework necessitated such protection. They contended that while the law does not mandate an automatic stay, the administrative reality of merging the cases achieved the same result, submitting that the legal framework does not provide for an automatic stay of enforcement merely because a set-aside application is issued, and that consolidation has the practical effect of suspending the timely pursuit of recognition/enforcement.
Oratio’s defence rested on a strict, textualist interpretation of the DIFC Arbitration Law, coupled with a structural analysis of international arbitration conventions. Oratio argued that the statutory gateway for ordering security had simply not been opened. The Respondent’s primary submission was jurisdictional in nature, asserting that Article 44(2) requires a formal adjournment, not merely a consolidated timetable.
Crucially, Oratio contextualised Article 44(2) within the broader architecture of cross-border enforcement, specifically its roots in the New York Convention. Article VI of the New York Convention allows an enforcement court to adjourn its decision and order security if an application for setting aside the award has been made to a competent authority in the country where the award was made. The logic of the Convention is designed for bifurcated jurisdictions—where the enforcement court is forced into a passive waiting posture while a foreign supervisory court determines the award's validity. The Respondent additionally advanced a connected submission that Article 44(2) is derived from the New York Convention regime for foreign awards and that the conditions covered by Article 44(2) concern delay where set-aside is in a different forum beyond the enforcement court’s control.
In the present dispute, the DIFC Court was acting as both the supervisory court (handling the set-aside) and the enforcement court. By consolidating the applications, the Court was not ceding control or waiting on a foreign docket; it was actively managing the resolution of both questions simultaneously. Therefore, the underlying rationale for the New York Convention's security provision—protecting the creditor from the risks of a prolonged, uncontrollable foreign delay—was entirely absent.
Furthermore, Oratio exposed the tactical reality of Orangia's application. By seeking to lock up AED 14 million without satisfying the rigorous tests for a freezing injunction, Orangia was attempting an end-run around the Rules of the DIFC Courts (RDC) Part 25. A standard freezing order requires the applicant to demonstrate a real risk of unjustified asset dissipation. Orangia had provided no such evidence, relying entirely on the statutory hook of Article 44(2). The Respondent submitted that the Application, though framed under Article 44(2), proceeded in substance on a freezing-order premise and therefore required solid evidence of unjustified dissipation.
H.E. Justice Shamlan Al Sawalehi decisively rejected Orangia's expansive interpretation of the statute. The judgment delineates a clear boundary between active judicial management and passive abeyance. Article 44(2) confers a discretionary power that is strictly conditional. The Court confirmed that the power to order security only crystallises when the Court explicitly deems it proper to adjourn the recognition or enforcement decision. For those reasons, H.E. Justice Shamlan Al Sawalehi concluded that Article 44(2) was not engaged on the present facts and procedural posture because there had been no adjournment of the Court’s decision on recognition/enforcement within the meaning of that provision.
This ruling carries significant weight for practitioners navigating the DIFC's arbitration landscape. It confirms that the DIFC Court will not permit statutory provisions designed for specific jurisdictional scenarios to be repurposed as general asset-preservation tools. The refusal to conflate consolidation with adjournment protects parties from being penalised simply because the Court adopts an efficient case management strategy. If consolidation automatically triggered the risk of an eight-figure security order, parties might resist sensible procedural streamlining, leading to fragmented and costly parallel litigation.
The decision also reinforces the DIFC's reputation as a sophisticated, pro-enforcement jurisdiction that adheres closely to international norms. By aligning its interpretation of Article 44(2) with the underlying purpose of the New York Convention, the Court ensures predictability for cross-border litigants. The DIFC has long championed a robust approach to arbitration enforcement, a trajectory clearly visible since foundational rulings like ARB-003-2013: Banyan Tree Corporate PTE Ltd v Meydan Group LLC [2013] DIFC ARB 003. In Banyan Tree, the Court established its willingness to enforce awards even absent assets within the DIFC, provided the statutory criteria were met. Oratio v Orangia represents the necessary corollary to that expansive jurisdiction: while the Court will readily enforce valid awards, it will strictly police the procedural mechanisms used to secure them, demanding precise adherence to statutory gateways.
Litigants seeking to secure award sums pending set-aside applications in the DIFC must now carefully evaluate their procedural strategy. Relying on the mere existence of a parallel set-aside challenge is insufficient. Unless the Court formally adjourns the enforcement proceedings—typically because it is waiting on a foreign supervisory court—Article 44(2) will remain closed. Applicants requiring asset protection in consolidated, purely domestic DIFC proceedings must instead meet the heavy evidentiary burden of a standard freezing injunction under RDC Part 25, proving a genuine risk of dissipation rather than relying on the administrative timeline of the Court's docket.
How Did the Court Exercise Its Discretion in Assessing Costs?
The assessment of costs in Oratio v Orangia [2026] DIFC ARB 043 provides a stark illustration of the DIFC Courts' increasingly aggressive posture toward disproportionate billing in procedural skirmishes. Following the substantive dismissal of two distinct applications—an attempt to introduce expert evidence and a separate strike-out application—H.E. Justice Shamlan Al Sawalehi was tasked with assessing the successful parties' costs on the standard basis. Rather than rubber-stamping the submitted statements, the Court wielded its discretion under Part 38 of the Rules of the DIFC Courts (RDC) to heavily discount the claimed amounts. The resulting orders serve as a clear warning to practitioners: over-lawyering routine procedural applications will result in significant unrecoverable costs, regardless of the underlying merits of the victory.
The first of these assessments, issued on 4 March 2026, dealt with the assessment of the Defendant’s costs following the dismissal of the Claimant's application to rely on expert evidence regarding UAE public policy. The Defendant, having successfully resisted the application, submitted a Statement of Costs claiming AED 51,450. For a procedural application determined entirely on the papers without an oral hearing, this figure immediately drew judicial scrutiny. H.E. Justice Al Sawalehi noted that while the Defendant was entirely justified in responding to the application, the underlying issues lacked factual or legal complexity. The Court's reaction to the quantum claimed was unequivocal:
The Court considers that, for a short procedural application dealt with on the papers, this sum is excessive when viewed through the lens of proportionality.
The Court's application of the proportionality principle was swift and mathematically severe. Relying on the mandate to ensure costs are both reasonably incurred and proportionate in amount, the Court slashed the recovery by a full 40%. The Claimant was ordered to pay only 60% of the total claimed costs, resulting in a final award of AED 30,870. This aggressive reduction underscores a fundamental reality of DIFC litigation: the standard basis of assessment inherently favors the paying party when doubts arise regarding the proportionality of the time spent. When an application is resolved on the papers—meaning no oral advocacy preparation, no hearing bundles, and no time spent in court—a bill exceeding AED 50,000 for written submissions on a narrow evidentiary issue is objectively difficult to justify under the strictures of RDC 38.21.
A similar fate awaited the Respondent in the parallel cost assessment for the strike-out application, issued one day prior on 3 March 2026. Here, the Respondent filed a Statement of Costs claiming the amount of AED 30,736.80. The statement provided a granular breakdown of the billing structure, revealing that the quantum was driven almost entirely by senior practitioner involvement. Specifically, the claim comprised 8 hours and 54 minutes of partner time billed at AED 3,298 per hour, alongside a mere 30 minutes of paralegal time at AED 1,450 per hour.
The Court's analysis of this second bill was highly nuanced, separating the reasonableness of the hourly rates from the proportionality of the total time spent. H.E. Justice Al Sawalehi did not take issue with the hourly rates themselves, expressly finding that AED 3,298 per hour fell comfortably within the acceptable range for commercial litigation in the DIFC Courts. Furthermore, the Court accepted that it was entirely reasonable for a senior practitioner to conduct the matter, given the strategic importance of a strike-out application. However, the total quantum generated by nearly nine hours of partner time on a discrete procedural application triggered the Court's proportionality override. The structural imbalance of the bill—where partner time outstripped paralegal time by a ratio of nearly 18 to 1—suggested a top-heavy approach to drafting and review that the Court was unwilling to fully endorse.
However, in the exercise of my discretion, and to ensure that the recovery reflects proportionality, the Court considers it appropriate to allow 80% of the total claimed costs.
Consequently, the Court capped the recovery and awards the amount of AED 24,589.44. While an 80% recovery is certainly more favorable than the 60% awarded in the expert evidence application, the 20% haircut still represents a tangible financial penalty for top-heavy staffing. When a partner handles the lion's share of the drafting and review for a procedural application, the resulting bill will inevitably face strict scrutiny under RDC 38.21 and 38.23. The Court's willingness to trim the edges of an otherwise reasonable hourly rate demonstrates that proportionality is assessed on the final figure, not merely on the individual components of the bill. Even if every hour was genuinely worked and the rate was market-standard, the final product must still represent proportionate value for the task at hand.
The dual cost orders in Oratio v Orangia must be read against the broader backdrop of the DIFC Courts' evolving jurisprudence on cost recovery. The mandate under RDC 38.7 requires the Court to determine whether costs were reasonably and proportionately incurred, and whether they are reasonable and proportionate in amount. This dual-pronged test ensures that even if a specific task was necessary, the amount spent executing it must still align with the complexity and value of the underlying dispute. The standard basis of assessment dictates that any doubt as to reasonableness or proportionality must be resolved in favor of the paying party. By actively applying these discounts, H.E. Justice Al Sawalehi is enforcing a vital economic discipline upon the parties.
Similar judicial impatience with procedural overreach and disproportionate billing has been observed in recent arbitration-related enforcement disputes across the DIFC. For instance, the strict policing of procedural boundaries and the financial consequences of overstepping them were central themes in ARB-027-2024: ARB 027/2024 Nalani v Netty. In both instances, the DIFC Courts have signaled that the standard basis of assessment is not a blank cheque for the prevailing party. The Court will not act as a passive conduit for transferring exorbitant legal fees from one party to another simply because an application was won.
To ensure compliance and prevent further protracted disputes over the payment of these reduced sums, H.E. Justice Al Sawalehi imposed strict timelines and default penalties. In both orders, the paying party was directed to satisfy the Costs Award within 14 days of the date of this Order, pursuant to RDC 38.40. Failure to meet this deadline triggers immediate financial consequences designed to deter strategic delays in settlement.
In the event that the Claimant fails to pay the Costs Award within 14 days of the date of this Order, interest shall accrue at the rate of 9% per annum from the date of this Order until payment in full, in accordance with Practice Direction No. 4 of 2017.
The imposition of a 9% default interest rate under Practice Direction No. 4 of 2017 adds a sharp edge to the Court's cost management regime. It ensures that while the successful party's recovery is curtailed by proportionality, the reduced sum is at least protected against deliberate delayed payment. The overarching narrative from the cost assessments in Oratio v Orangia is one of precise judicial calibration. The DIFC Courts are actively managing the economics of arbitration-related litigation, ensuring that the costs of procedural skirmishes do not eclipse the substantive issues at stake. Practitioners must internalize the reality of this approach: staffing a simple paper application with extensive partner hours, or claiming excessive time for routine drafting, will reliably invite a judicial haircut. Proportionality is not merely a theoretical concept in the RDC; it is a mathematical reality applied rigorously at the assessment stage.
What Does This Mean for Practitioners Navigating Set-Aside Applications?
The dismissal of the expert evidence application in Oratio v Orangia [2026] DIFC ARB 043 delivers a sharp doctrinal warning to arbitration practitioners operating within the Dubai International Financial Centre: substantive legal arguments must take precedence over procedural maneuvers that risk judicial censure. The Claimant’s attempt to introduce expert testimony on UAE public policy was not merely unsuccessful; it was fundamentally misaligned with the supervisory competence of the DIFC Courts. By seeking to rely on a locally qualified advocate to opine on what was essentially a standard natural justice complaint, the Claimant engaged in a tactical overreach that H.E. Justice Shamlan Al Sawalehi swiftly dismantled.
At the heart of the Claimant’s strategy was an application seeking permission, pursuant to Rule 31.12-31.14 of the Rules of the DIFC Courts (RDC), to adduce expert evidence. The underlying premise advanced by the Claimant was that the DIFC Court would rarely be in a position to make findings related to UAE public policy without external assistance. This argument attempts to exploit a perceived jurisdictional anxiety—the idea that a common law court might hesitate to interpret the public policy of the broader UAE civil law framework without a local guide. Justice Al Sawalehi firmly rejected this premise, clarifying the boundaries of the Court’s inherent competence:
I accept the Defendant’s submission that the authorities relied upon by the Claimant do not establish a default rule that expert evidence is required whenever public policy is invoked.
This ruling dismantles the assumption that invoking "UAE public policy" automatically unlocks the door to expert evidence under RDC Part 31. Expert testimony in the DIFC is not admissible as of right; it is strictly restricted to that which is reasonably required to resolve the proceedings. The Claimant’s fatal error was advancing a generalized proposition at a high level of abstraction. They failed to identify any concrete, disputed or properly particularised issue of UAE public policy that actually required elucidation.
Instead, the core grievance was that the arbitral tribunal had allegedly determined the case on the basis of an argument not advanced by the opposing party, thereby depriving the Claimant of a proper opportunity to respond. To any experienced arbitration practitioner, this is a classic due process complaint. It is a question of procedural fairness, not a complex riddle of foreign law requiring an expert's decoding. The Court recognized this category error immediately, noting that the issue was already governed by Article 41(2)(a)(ii) of the Arbitration Law.
Justice Al Sawalehi’s reasoning provides a clear directive on how practitioners must map their challenges:
The Claimant’s pleaded complaint, being deprived of the opportunity to meet a case not advanced, is directly addressed by Article 41(2)(a)(ii) of the Arbitration Law.
When a party alleges that it was unable to present its case, the supervisory court is perfectly equipped to assess the tribunal's conduct against the standards of natural justice enshrined in the Arbitration Law. Attempting to dress up a standard Article 41(2)(a)(ii) challenge as a novel breach of UAE public policy is a transparent attempt to complicate the proceedings. The DIFC Courts have consistently shown a low tolerance for such artificial complexity, a trend similarly observed in ARB-027-2024: ARB 027/2024 Nalani v Netty, where procedural obstruction was met with strict judicial pushback.
The timing of the Claimant's application further undermined its credibility. The set-aside claim was issued on 3 November 2025. The Claimant then filed multiple rounds of evidence without identifying any specific UAE law issue or demonstrating any necessity for expert intervention. Waiting until 30 December 2025 to file the application, while simultaneously admitting that an expert had not even been identified yet, signaled to the Court that the move was likely a tactical delay rather than a substantive necessity. Practitioners must understand that the DIFC Courts scrutinize the procedural chronology just as closely as the black-letter law. Late applications that threaten to derail the efficient listing and final determination of a set-aside claim will face intense skepticism.
However, the lessons from Oratio v Orangia are not solely directed at unsuccessful applicants. The subsequent costs order issued on 4 March 2026 serves as a vital warning to successful respondents regarding the proportionality of their cost submissions. Having successfully defeated the expert evidence application, the Defendant submitted a Statement of Costs claiming AED 51,450. For a premium commercial litigation practice, this figure might seem routine for drafting a robust opposition. Yet, Justice Al Sawalehi applied a strict proportionality test, ultimately slashing the recovery to 60%.
When assessing costs on the standard basis, the Court has had regard to RDC 38.7, 38.21 and 38.23. The critical factor was the nature of the application itself. It was a procedural skirmish determined entirely on the papers, without the need for a hearing. The legal and factual matrix was not complex; it required a straightforward application of established principles regarding RDC Part 31 and Article 41 of the Arbitration Law. The Court’s rationale for the reduction was explicit:
The Court considers that, for a short procedural application dealt with on the papers, this sum is excessive when viewed through the lens of proportionality.
This 40% reduction underscores a fundamental reality of DIFC litigation: winning the substantive argument does not grant a party a blank check for cost recovery. The Court will aggressively police the financial efficiency of the proceedings. Practitioners must ensure that the time and resources billed for interim applications are strictly commensurate with the complexity and importance of the issue at hand. Over-lawyering a straightforward paper application will result in unrecoverable costs, directly impacting the client's bottom line. The final award of AED 30,870, payable within 14 days, came with the standard enforcement mechanism that interest shall accrue at the rate of 9% per annum upon default, pursuant to Practice Direction No. 4 of 2017.
The strategic takeaways for practitioners navigating set-aside applications in the DIFC are unequivocal. First, avoid filing applications for expert evidence unless there is a clear, identified gap in the Court's competence. If the issue touches upon procedural fairness, natural justice, or the tribunal's handling of the parties' arguments, the Court will view itself as fully competent to adjudicate the matter without external instruction. Second, ensure all procedural complaints are properly mapped to the relevant articles of the Arbitration Law. Do not attempt to elevate a standard Article 41(2)(a)(ii) due process complaint into a nebulous public policy challenge simply to justify procedural maneuvers. Finally, be prepared for the Court to apply strict proportionality tests to all cost submissions. Both the pursuit of unnecessary applications and the submission of inflated cost claims will draw judicial censure, reinforcing the DIFC Courts' commitment to efficient, substantive, and proportionate dispute resolution.
What Issues Remain Unresolved in the Oratio v Orangia Saga?
While the recent procedural skirmishes in Oratio v Orangia have provided crucial guidance on the admissibility of expert evidence and the mechanics of security applications, the substantive core of the dispute remains entirely unresolved. The final determination of the set-aside application is still pending, leaving the ultimate fate of the AED 14 million arbitral award hanging in the balance. The underlying conflict, stemming from a Sale and Purchase Agreement dated 21 December 2020 for a Dubai villa priced at AED 31,000,000, has now morphed into a complex procedural battleground that tests the boundaries of the DIFC Courts' supervisory jurisdiction.
The most immediate strategic uncertainty arises from the interplay between the consolidation of the proceedings and future enforcement actions. On 13 January 2026, H.E. Justice Shamlan Al Sawalehi issued an order consolidating the proceedings, merging the Claimant’s set-aside application with the Defendant’s recognition and enforcement (R&E) application. This procedural maneuver immediately triggered a secondary dispute over whether the consolidation effectively paused the enforcement trajectory, prompting the Defendant to seek security under Article 44(2) of the DIFC Arbitration Law. The Defendant argued that the legal framework does not provide for an automatic stay of enforcement merely because a set-aside application is issued, and that consolidation practically suspends the timely pursuit of recognition.
However, the Court firmly rejected the premise that consolidation equates to an adjournment within the meaning of the statute. The Respondent successfully argued that Article 44(2) is derived from the New York Convention regime, designed primarily for scenarios where the set-aside application is pending in a different, foreign forum beyond the enforcement court’s direct control. By consolidating the matters before the same DIFC judge, the Court retained full control over the timeline, rendering the statutory gateway for security inapplicable. For these reasons, the Court concluded that Article 44(2) was not engaged on the present facts and procedural posture because there had been no adjournment of its decision on recognition/enforcement within the meaning of that provision.
This ruling leaves a significant tactical void. The Defendant is now forced to await the consolidated hearing without the comfort of the AED 14,043,096.42 award sum sitting securely in an escrow account. The Respondent had accurately characterized the Defendant's security application as proceeding, in substance, on a freezing-order premise, which would require solid evidence of unjustified dissipation—evidence the Defendant had not marshaled. The Court's refusal to grant security under the guise of Article 44(2) forces practitioners to carefully evaluate whether they must meet the higher, more rigorous thresholds of a standard freezing injunction (Mareva relief) when seeking to lock down assets during a consolidated set-aside and enforcement battle.
Beyond the mechanics of enforcement, the case leaves open a profound doctrinal question regarding the outer limits of expert evidence in public policy challenges. The Claimant had attempted to introduce testimony from a locally qualified UAE advocate, arguing that the DIFC Court will rarely be in a position to make findings related to UAE public policy without such assistance. The Court dismantled this assumption, refusing to abdicate its own competence to interpret and apply UAE law.
I accept the Defendant’s submission that the authorities relied upon by the Claimant do not establish a default rule that expert evidence is required whenever public policy is invoked.
By rejecting the existence of a default rule, H.E. Justice Shamlan Al Sawalehi has set a high bar for future litigants, but the Court has yet to define precisely when expert evidence might actually be 'reasonably required' in a public policy context. In Oratio v Orangia, the Claimant's fatal error was framing its grievance as a matter of public policy when it was, at its core, a routine complaint about procedural fairness. The Claimant alleged it was deprived of the opportunity to meet a case not advanced in the arbitration. The Court correctly identified that this specific grievance is already explicitly governed by Article 41(2)(a)(ii) of the Arbitration Law, which deals with a party's inability to present its case.
Because the issue fell squarely within the statutory parameters of procedural fairness—a domain where the DIFC Court possesses unquestioned expertise—the introduction of a local advocate's opinion was deemed entirely disproportionate. The Claimant had also severely prejudiced its own application by filing multiple rounds of evidence over several months without ever identifying a specific, concrete rule of UAE public policy that was allegedly breached.
This dynamic mirrors the broader judicial philosophy emerging from the DIFC Courts, where judges are increasingly intolerant of procedural bloat and tactical delays. Similar to the strict jurisdictional boundaries enforced in cases like ARB-006-2024: ARB 006/2024 Neville v Nigel, the Court in Oratio is signaling that parties cannot use vague invocations of "UAE public policy" as a Trojan horse to introduce unnecessary expert testimony or derail the efficient resolution of arbitration claims. If a party wishes to rely on UAE public policy to set aside an award, it must plead the specific, concrete rule of law that is engaged and demonstrate exactly why the Court requires external assistance to understand it.
The unresolved question, therefore, is what a successful application for expert evidence on public policy would actually look like. If a future litigant identifies a highly obscure, deeply nuanced, and genuinely disputed principle of UAE public policy—perhaps one rooted in complex Sharia principles or uncodified customary commercial practices—would the Court then concede that expert evidence is reasonably required? The Oratio decision leaves that door slightly ajar, confirming only that expert evidence is not admissible as of right and that generalized complaints of unfairness will not suffice.
As the parties march toward the consolidated hearing on the substantive merits, the Claimant faces a steep uphill battle. Stripped of its proposed expert evidence, it must now convince the Court that the Tribunal's conduct violated the strict procedural fairness standards of Article 41(2)(a)(ii). The Defendant, meanwhile, must navigate the interim period without the security of an escrow arrangement, relying on the Court's ultimate willingness to enforce the AED 14 million award once the set-aside challenge is inevitably resolved. The procedural clarity achieved in these preliminary orders has only heightened the stakes for the final showdown, ensuring that the ultimate judgment in Oratio v Orangia will be closely scrutinized for its handling of the substantive set-aside threshold.