The Procedures of Precautionary Attachment Over Marine Vessels Between State Courts and Arbitration Tribunals

Maritime disputes arising from charter parties and carriage contracts are frequently agreed to be settled via arbitration, whether in the charter party agreement or the contract of carriage; however, the seizure of vessels can only be done through the state courts.

In this article, we shed light on precautionary attachment, a procedure entangled with arbitration tribunals and national courts. Precautionary attachment procedures, inherently linked to the validity of the debt, are shared among arbitration tribunals and national courts in resolving maritime disputes, including those involving legal consultants in Dubai.

It’s established in all legal systems that precautionary attachment as a temporary procedure necessitates that a claim on substance shall be filed within a specific period of time after the precautionary attachment order is issued to maintain the precautionary attachment otherwise, it will be lifted and considered null and void.

When it comes to precautionary attachment over vessels due to claims arising out of contracts of carriage or charter parties, while the precautionary attachment itself is pursued before state courts, there is frequently an arbitration agreement in relation to the claim on substance.

The issue is that most of the maritime legislations in the Arab region state that after the precautionary attachment order is issued, the claim on substance shall be filed before the competent court, meaning the state courts and the penalty for not filing the claim on substance as prescribed is lifting the attachment and releasing the vessel. Some legislators go further and determine the competent court as the state court within its venue jurisdiction the attachment is levied.

This procedure prescribed by the law and the mandatory provision to file the claim on substance before a state court seems as if it sets aside any arbitration agreement between the parties in this regard, whether this arbitration agreement is stated in the contract of carriage or the charter party agreement.

The above provisions were not any different from the provisions of the UAE commercial maritime law no. 26 of 1981, and this situation had to be dealt with through a very delicate technical approach in order to balance between following the mandatory procedures prescribed by the law in one hand, and maintaining the arbitration agreement between the parties in the other hand.

This balance is only attainable by filing the petition for the precautionary attachment before the competent court, and when the attachment order is issued, as maritime law practitioners we opt for filing the claim on substance, within the prescribed period, before the competent state court in compliance with the legal procedures prescribed by the law to maintain the validity and effectiveness of the precautionary attachment, and in the statement of claim we submit a request to stay the proceedings till the issuance of an arbitral award in observance of the arbitration agreement between the parties.

While this dilemma remains standing in most of the legislations in the MENA region, the UAE legislator has rectified this situation in the federal decree law no. 43 of 2023 on Maritime Law issued on 28 September 2023 whereby the legislator has segregated the attachment validity claim and the claim on substance as article 59 of the new maritime law states that the attachment validity claim shall be filed before the competent state court within 5 days from the issuance of the attachment order, while article 60 of the same law upholds the arbitration agreement in relation to the claim on substance, which will be filed separately from the attachment validity claim, and provides that the jurisdiction to review the claim on substance by the state court within its venue jurisdiction the attachment is levied shall not prejudice the arbitration agreement between the parties in this regard.

Therefore, under the federal decree law no. 43 of 2023 on Maritime Law, the attachment validity claim is subject to the jurisdiction of the state court within its venue jurisdiction the attachment is levied, while the claim on substance can be submitted separately to the competent state court or arbitration as the case may be.

Shamssedien Essam

Senior Associate

sea@adglegal.com