The ADGM Court of First Instance dismissed B32's application to set aside an arbitral award dated 3 October 2025 and granted A32's enforcement application, making specific performance orders compelling the transfer of a freehold unit on Al Maryah Island. The judgment establishes that ADGM Courts possess 'opt-in' jurisdiction to hear set-aside and enforcement applications in respect of awards seated outside ADGM — here, onshore Abu Dhabi — where the governing law of the underlying agreement is ADGM law. The court also confirmed that contractual disputes concerning real property situated within ADGM are arbitrable, and that a court enforcing an award which itself directs specific performance should give effect to that remedy through its own coercive orders rather than substitute damages. The Abu Dhabi Court of Appeal and Court of Cassation had both declined to annul the award, the Court of Cassation expressly redirecting supervisory jurisdiction to ADGM — an unusual and significant inter-jurisdictional transfer of authority over a single arbitration proceeding.
Decision
The Set Aside Application was dismissed. The Stay Application was dismissed with no order as to costs. The Enforcement Application was granted. B32 was ordered, by 4:00 pm on 26 June 2026, to take all steps necessary to effect a transfer of title to the Unit through the ADGM Registration Authority, including submission of all documentation required for any No Objection Certificate and payment of all registration fees and associated costs. The transfer was required to be effected free of all encumbrances, charges and third-party claims. Liberty to apply was reserved to A32 to seek further orders or directions necessary to give effect to the transfer obligations. A costs order nisi was made in favour of A32 on both the Set Aside Application and the Enforcement Application, to be summarily assessed on the standard basis if not agreed; the order expressly included costs yet to be incurred by A32 in finalising the transfer. The costs order nisi was to become absolute at 4:00 pm on 26 June 2026 unless any application was made to discharge or vary it by that time.
Facts
The dispute arose from an Option Agreement dated 31 August 2020 between A32 (buyer) and B32 (seller) for Unit ABC on Al Maryah Island, which falls within the ADGM Special Economic Zone. The arbitration agreement was contained in clause 33 of the Option Agreement. It designated the Abu Dhabi Commercial Conciliation and Arbitration Centre (arbitrateAD) as the arbitral forum, fixed the seat of arbitration as 'Abu Dhabi, UAE' — that is, onshore Abu Dhabi — and provided that the governing law of the Agreement was ADGM law. A three-member tribunal, comprising Ms Anja Bolz (President), Ms Aarta Alkarimi (Co-Arbitrator) and Mr Shafiq Jamoos (Co-Arbitrator), recorded that the procedural law governing the proceedings was Federal Law No. 6 of 2018 on Arbitration. The tribunal issued its Award on 3 October 2025, finding the Option Agreement valid and subsisting and ordering relief in the nature of specific performance to give effect to that finding. B32 applied to the onshore Abu Dhabi Court of Appeal under Article 54 of the UAE Arbitration Law to annul the Award. On 26 November 2025, that court dismissed the annulment application on the merits. B32 appealed to the Abu Dhabi Court of Cassation. On 30 December 2025, the Court of Cassation refused to stay enforcement of the Award pending determination of that appeal. On 29 January 2026, the Court of Cassation dismissed B32's appeal on the substantive ground that supervisory jurisdiction over the Award vested exclusively in the ADGM Courts, not the onshore courts. While B32's appeal was still pending before the Court of Cassation, A32 applied to this Court for recognition and enforcement. B32 responded with a jurisdictional challenge, arguing that any challenge to or enforcement of the Award lay solely with the UAE onshore courts. Justice Heath made a Recognition Order on 21 January 2026, granting both recognition and enforcement under sections 61(1)(a), 61(1)(b) and 61(3) of the ADGM Arbitration Regulations 2015, relying in part on the fact that the Court of Cassation had by then refused a stay. B32 applied for permission to appeal to Justice Heath directly under rule 206(2) of the ADGM Court Procedure Rules 2016; that was dismissed on 11 February 2026. B32 then applied to the ADGM Court of Appeal under rule 206(4); that too was dismissed on 3 March 2026 by a bench comprising Lord Hope CJ, Justice Kenneth Hayne and Justice Sir Nicholas Patten. Having exhausted those avenues, B32 filed a Set Aside Application and a Stay Application in ADGM. A32 responded with the Enforcement Application, seeking specific performance orders backed by the Court's own coercive machinery to compel registration of the transfer through the ADGM Registration Authority.
Issues before the court
- Whether the ADGM Courts possess 'opt-in' jurisdiction to entertain a set-aside application in respect of an arbitral award made outside ADGM — specifically where the seat was onshore Abu Dhabi but the governing law of the underlying contract was ADGM law.
- Whether the Set Aside Application was time-barred under the applicable limitation regime, given that B32 had already pursued and exhausted annulment proceedings before two tiers of the onshore Abu Dhabi courts before filing in ADGM.
- Whether a dispute concerning title to real property situated on Al Maryah Island is arbitrable under ADGM law, or is instead a matter reserved exclusively for court determination by reason of its in rem character.
- Whether the ADGM Court of First Instance should exercise its discretion to make specific performance orders to give effect to an arbitral award that itself directs specific performance of a property transfer.
- What is the appropriate form of specific performance orders — including the allocation of costs and burdens associated with No Objection Certificates, registration fees, and transfer documentation — where the underlying asset is an ADGM-registered real property unit.
The court's reasoning
Justice Heath's analysis proceeded across four distinct but cumulative layers. First, on 'opt-in' jurisdiction: the ADGM Arbitration Regulations 2015 confer jurisdiction on ADGM Courts to supervise — including to set aside — an award made outside ADGM where parties have opted into ADGM supervisory jurisdiction. The operative trigger on the facts was that the governing law of the Option Agreement was ADGM law, notwithstanding that the contractual seat was onshore Abu Dhabi. The court did not independently re-examine the jurisdictional question at length, because the Abu Dhabi Court of Cassation had on 29 January 2026 definitively determined that supervisory jurisdiction lay with the ADGM Courts and not the onshore courts — a determination that Justice Heath treated as a binding inter-jurisdictional ruling, not merely persuasive. The internal ADGM authority of A6 v B6 [2023] ADGMCFI 0005 underpinned the parallel point on enforcement: section 62(1) of the Arbitration Regulations applies irrespective of the state or jurisdiction in which an award was made, confirming the extra-territorial reach of ADGM's recognition and enforcement regime. In his 11 February 2026 decision refusing B32 permission to appeal the Recognition Order, Justice Heath had already articulated the position plainly: no ground under section 62(1) had been established and B32's argument that jurisdiction lay with the onshore courts had been overtaken by the Court of Cassation's own ruling. Second, on time-bar: the court examined the procedural chronology carefully. B32 had first pursued annulment before the Abu Dhabi Court of Appeal (dismissed 26 November 2025 on the merits), then before the Abu Dhabi Court of Cassation (dismissed 29 January 2026 on jurisdictional grounds). The Set Aside Application was filed in ADGM only after those proceedings were exhausted. The court found the application time-barred and declined to extend time, attaching weight to the fact that B32 had already received a full substantive hearing on the merits before the onshore Court of Appeal and had not succeeded. B32 had therefore had the opportunity to ventilate its objections to the Award and had failed; re-opening the window before a different court at a later date was not warranted. Third, on arbitrability: the court rejected the contention that real property disputes are inherently non-arbitrable by reason of their in rem character. Drawing on two decisions of the Dubai Court of Cassation — Appeal No. 2011/486 (29 November 2011) and Appeal No. 43 of 2010 (26 December 2020) — the court affirmed that an arbitral tribunal may validly determine contractual rights as between the parties to a property transaction, even where the eventual registration of title must pass through a public registry. The court drew the line consistently with the analysis in FamilyMart China Holding Co Ltd v Ting Chuan (Cayman Islands) Holding Corporation [2023] UKPC 33 and Republic of Mozambique v Privinvest Shipbuilding SAL (Holding) [2023] UKSC 32: disputes whose resolution would require the court or tribunal to act in rem against the world are not arbitrable; contractual disputes between identified parties that happen to concern land are. The Option Agreement fell firmly in the latter category — it was a bilateral contractual instrument and the Award operated between its parties only. Abu Dhabi Law No. 4 of 2013 (as amended by Abu Dhabi Law No. 12 of 2020) and the ADGM Real Property Regulations 2024 governed the mechanics of registration and title transfer but did not render the underlying contractual dispute non-arbitrable. The recently decided Al Khaleej Investment PSC v Ocean Pearl Real Estate Comp LLC [2026] ADGMCFI 0017 provided immediate ADGM precedent to the same effect. Fourth, on specific performance: the court applied the established common-law principle that specific performance is the appropriate remedy where damages would be inadequate — land, by reason of its unique character, satisfies that threshold as a matter of course. Where an arbitral award itself orders specific performance, an enforcing court should give effect to that remedy through its own coercive orders rather than substituting damages, absent exceptional circumstances. The form of the orders was calibrated carefully to the ADGM Registration Authority's procedural requirements: B32 was required to submit all documentation necessary for the transfer, expressly including any documentation required in connection with a No Objection Certificate, and to bear all registration fees and associated costs. Liberty to apply was preserved in favour of A32 to address any future non-compliance or further procedural steps required to complete the transfer.
Applicable law
- ADGM Arbitration Regulations 2015, sections 61(1)(a), 61(1)(b) and 61(3) — recognition and enforcement of arbitral awards by ADGM Courts
- ADGM Arbitration Regulations 2015, section 62(1) — exclusive grounds for resisting recognition and enforcement, applicable irrespective of the state or jurisdiction in which the award was made
- Federal Law No. 6 of 2018 on Arbitration (UAE Arbitration Law), Article 54 — application for annulment of an arbitral award before the supervisory court
- ADGM Court Procedure Rules 2016, rule 206(2) — application to the first-instance judge for permission to appeal
- ADGM Court Procedure Rules 2016, rule 206(4) — application to the ADGM Court of Appeal for permission to appeal
- Abu Dhabi Law No. 4 of 2013 on the Regulation of Real Estate in the Emirate of Abu Dhabi, as amended by Abu Dhabi Law No. 12 of 2020 — registration and title mechanics for Abu Dhabi and Al Maryah Island real property
- ADGM Real Property Regulations 2024 — ADGM Registration Authority procedures, No Objection Certificate requirements, and transfer documentation
- arbitrateAD (Abu Dhabi Commercial Conciliation and Arbitration Centre) Rules — procedural law governing the arbitration proceedings, as applied by the tribunal
Practical implications
Parties drafting arbitration clauses for transactions where the underlying asset is on Al Maryah Island or where the governing law is ADGM law should now expressly elect ADGM supervisory jurisdiction. The opt-in mechanism is available even where the seat is onshore Abu Dhabi, but omitting an explicit designation — as clause 33 of the Option Agreement did — creates the conditions for parallel proceedings before both onshore and ADGM courts, as this case graphically illustrated: B32 was able to pursue two tiers of onshore proceedings, two ADGM permission applications, and a set-aside application in ADGM before the matter was finally resolved, some eight months after the Award. Claimants holding awards should apply for interim recognition and enforcement at the earliest opportunity rather than awaiting the conclusion of the respondent's set-aside proceedings — Justice Heath made the Recognition Order on 21 January 2026, which provided A32 with a court judgment as leverage while later enforcement steps were contested. On arbitrability, developers and property investors can rely on ADGM authority — reinforced by Dubai Court of Cassation decisions and the UK appellate cases cited — that contractual disputes concerning ADGM-registered real property, including Option Agreements and sale and purchase agreements, are arbitrable. Well-drafted arbitration clauses should therefore be standard in such transactions. The court's order places the full burden of registration mechanics — No Objection Certificates, transfer documentation, and registration fees — on the defaulting party, creating a template for future enforcement applications. The costs order, which expressly extended to costs yet to be incurred in completing the transfer, provides a further financial deterrent against tactical non-compliance after an enforcement order is made.
Precedent value: This is a Court of First Instance decision and therefore persuasive rather than binding on other first-instance panels. Its authority is nonetheless considerable: it is among the first ADGM judgments to rule directly on the 'opt-in' supervisory jurisdiction of ADGM Courts over awards seated in onshore Abu Dhabi, and one of the first to confirm the arbitrability of contractual real property disputes under ADGM law. On both points the ADGM Court of Appeal implicitly endorsed the underlying approach when it refused B32 permission to appeal the Recognition Order in its 3 March 2026 decision. The judgment also builds on A6 v B6 [2023] ADGMCFI 0005 and Al Khaleej Investment PSC v Ocean Pearl Real Estate Comp LLC [2026] ADGMCFI 0017, forming part of an emerging body of ADGM authority on arbitration and real property. The explicit engagement with the UK Supreme Court and Privy Council decisions in Privinvest and FamilyMart on the arbitrability/in rem distinction signals that ADGM Courts will draw on English common law authorities to resolve analogous questions of principle.
Action point
Developers, investors, and their counsel with existing Option Agreements or sale and purchase agreements for Al Maryah Island or other ADGM-registered real property should review immediately whether their arbitration clauses expressly opt into ADGM supervisory jurisdiction. Where they do not, parties should consider whether re-papering or supplemental agreements are feasible. Counsel advising award creditors should also consider seeking recognition and enforcement orders at the earliest stage, before set-aside or stay applications by the award debtor can create delay.
Source
This case note is generated from a public court record and reviewed under the firm's automated editorial quality gate. General information only — it does not constitute legal advice. For advice on a specific matter, please contact us.