Preservation of Evidence and Arbitration Agreements in Dubai: What You Need to Know
- kylelecuona
- 6 days ago
- 3 min read
Parties with Dubai-seated or UAE-governed arbitration agreements can now confidently apply to the UAE courts to preserve evidence without breaching their arbitration clause or risking dismissal of future arbitral proceedings.
A 2025 Dubai Court of Cassation decision has confirmed that court applications for the preservation of evidence are procedural in nature and protective, not substantive claims. As a result, these types of application do not fall within the scope of arbitration agreements.
1. What is a preservation of evidence application?
Preservation of evidence (sometimes called “recording the status quo” or expert appointment) allows a party to ask the court to:
Record the factual condition of property, works, or assets;
Appoint an expert to inspect or assess technical issues;
Preserve documents, data, or physical evidence at risk of loss;
Secure evidence before it is altered, destroyed, or becomes inaccessible;
These applications are typically made urgently and are pre-emptive; often made before arbitration begins or before a tribunal is constituted.
2. The 2025 Dubai Court of Cassation Ruling
The Court clarified that:
Applications for evidence preservation do not determine contractual rights or liabilities;
They do not amount to “disputes” under an arbitration clause;
They do not violate or waive arbitration agreements;
UAE courts retain jurisdiction to grant such procedural protection.
This ruling removes prior uncertainty and inconsistent lower-court decisions.
3. Why This Matters for Businesses
Previously
Parties risked objections that court involvement breached arbitration clauses;
Evidence could be lost while parties waited to commence arbitration;
Tactical arguments were sometimes used to delay or block preservation efforts.
Now
Parties can act quickly and safely, using the tools of the Court, to protect evidence;
The Arbitration remains intact and unaffected;
Courts are recognised as supporting - not undermining - the arbitration process.
4. How Dubai Now Compares Internationally
Dubai’s position is now fully aligned with leading arbitration jurisdictions:
England: Courts routinely preserve evidence under the Arbitration Act;
DIFC & ADGM: Courts have long permitted interim and evidentiary relief;
Singapore & Hong Kong: Courts actively assist arbitration with procedural measures.
As a result, Dubai onshore courts are now part of this international pro-arbitration mainstream.
5. Practical Guidance for Clients
When You Can Go to Court
You may apply to UAE courts to:
Preserve evidence;
Appoint an expert;
Inspect property or assets;
Record technical or factual conditions;
Even if your contract contains an arbitration clause.
When You Should Not Go to Court
You should not ask courts to:
Decide liability or breach;
Interpret contractual obligations;
Award damages or substantive relief;
These remain exclusively for the arbitral tribunal.
6. Strategic Advantages
Speed: Courts can act immediately where tribunals are not yet formed;
Evidence security: Reduces risk of interference with evidence or factual disputes later;
Arbitration efficiency: Stronger evidentiary foundation once arbitration begins;
Reduced procedural challenges: Lower risk of jurisdictional objections.#
7. Key Takeaway
The Dubai Court of Cassation has confirmed a clear rule which has been used in other jurisdictions such as England:
Procedural court applications to preserve evidence are compatible with arbitration agreements.
This development significantly strengthens Dubai’s reputation as an arbitration-friendly jurisdiction and gives businesses greater confidence that urgent evidence protection will not jeopardise their agreed dispute resolution mechanism.
Nothing in this article should be taken as legal advice. All cases are dependent on their facts and expert legal advice should be sought.
Barrister
London
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