Young ICCA Skills Training Workshop: Arbitration in the Middle East: The Issues, The Benefits, The Challenges
Post Event Report
by Slava Kiryushin[1]
The delegates arrived at the rooftop conference hall of the Diplomat Hotel in Manama to participate in two interactive sessions as well as to hear the keynote speech of Dr Hassan Radhi (Hassan Radhi & Associates).
The attendees included various local and international practitioners with varying degree of experience of international arbitration, with some admitting to having never experienced an arbitration and others having in-depth knowledge of the process. The panels also reflected a diverse background of arbitration specialists from Bahrain, UAE, Egypt and Lebanon.
The workshop began with introductory speeches from the event organisers, Aysha Mutaywea on behalf of BCDR-AAA, Sami Tannous on behalf of ICDR Y&I and Slava Kiryushin on behalf of Young ICCA. Each of the organisers gave a brief introduction to their organisation, its mission, goals and ways to be in touch for those interested in joining. After the introductions, Dr Hassan Radhi took the stage to discuss his views on historic and modern arbitration as well as the way that it is likely to develop in the future. The title of his keynote speech was “The Future of Arbitration in MENA: A 20-Year Look Ahead”.
Dr Radhi commenced with going to historic roots of arbitration in the Middle East which started prior to the Islamic era. He gave vivid examples of arbitration from the life of the Prophet Muhammad (saws) and the references in the Quran which supported and described the process of resolving disputes by way of decisions of arbitrators.
He then took the audience to early 20th century Bahrain by referring to disputes between Bahraini and German companies which were to be settled by a panel of 6 members of the (Majlis Alurfi) in proceedings similar to those of international commercial arbitration (3 Bahraini nationals and 3 foreigners). Dr Radhi completed his travel through history by referring to current norms of arbitration in Bahrain, the BCDR-AAA and the adoption of the UNCITRAL Model Law.
He also mentioned that a number of cross cultural issues have been overcome in international arbitration, which used to be problematic in the region. He gave examples of submission of witness evidence and noted that preparation of witness statements in advance of the hearing could historically be deemed as illegal behaviour by some. This is due to the local practice which was always for the witness to arrive fiscally at trial and answer any question posed to him by the judge or the parties.
Another example of the development of arbitration was the document disclosure/discovery process. Dr Radhi highlighted that the local practice was to have limited amount of documents submitted in support of a party’s case and that the culture of common law disclosure or discovery took a long time to be adopted locally. Dr Radhi praised the IBA Rules on the Taking of Evidence in International Arbitration for bringing conformity and guidelines to such delicate processes.
Finally, Dr Radhi concluded that the development of specialist schools on arbitration is a step forward which did not previously exist. He highlighted that while development of international conventions is important, it is equally important to provide education on the subject of arbitration to a younger generation of arbitrators.
Dr Radhi then invited the audience to share their thoughts and ideas on the likely development of arbitration in the future. He summarised the views of the audience by reference to the potential diversification of disputes which may be submitted to arbitration in the future (e.g. Islamic finance) as well as the current diversification of arbitration into media, sport and other specialist areas. Dr Radhi also mentioned that there is sufficient ground to believe that “lex mercatoria” may be used more commonly in certain types of disputes.
Dr Radhi finalised his address with some advice to the audience. One piece of such advice was for younger practitioners to learn more languages because international arbitration implies that the participants in the process should be able to communicate in more than just their native tongue. He insisted that the audience focuses on their understanding of the English language (for those who are not native speakers) as English prevails in the world of arbitration. Dr Radhi also encouraged everyone to take advantage of technologies that are out there to assist them in both their arbitrator and counsel work.
After the keynote speech, the first panel was convened and moderated by Aysha Mutaywea (BCDR-AAA, Bahrain). The title of the session was “Practical Considerations in International Arbitration in the Middle East” and the panel was composed of Sheikha Haya Rashed Al Khalifa (Haya Rashed Al Khalifa, Attorneys at Law & Legal Consultants, Bahrain) and Ziad Obeid (Obeid Law Firm, Lebanon). Sheikha Haya focused her presentation and knowledge sharing on interim measures and the importance of terms of reference. She gave first-hand experience of seeking interim measures from the local courts and gave a detailed summary of the key points which should be included in the terms of reference after an arbitration has commenced. Ziad presented on an overview of the arbitration process as a whole, starting with pathological or unclear arbitration clauses, as well as other issues which commonly arise in the arbitration process, until the signature of the award. Both speakers gave personal insight, experience and detailed consideration to their topics and achieved a difficult balance between providing adequate information for those with little experience in arbitration as well as those who deal with arbitration on a daily basis.
After a short coffee break, the second panel was convened and moderated by Slava Kiryushin (DLA Piper, Dubai). The title of the final session was “Enforcement of Awards in the Middle East and the Role of National Courts”, and the panel was composed of Sami Tannous (Freshfields Bruckhaus Deringer, Dubai), Girgis Abd El-Shahid (Shahid Law, Egypt) and Anne K Hoffmann (Al Tamimi & Co, Dubai). Sami focussed on the application of the New York Convention to various states and the most common issues relevant to enforcement experienced in Qatar, Bahrain, the Kingdom of Saudi Arabia and the UAE. Girgis made his contribution by discussing the detailed requirements of the Riyadh Convention related to the enforcement of awards and judgements. Anne wrapped up the proceedings by discussing the role of the DIFC courts in enforcing awards and whether there are any sufficient links between the award and the DIFC as a jurisdiction. All three speakers did a great job in ensuring that the talks were fluid and interlinked in a way that gave the audience an overview of various options to enforce the arbitral award.
The participants of the workshops contributed to the discussion and the Q&A sessions of both panels and raised a number of valid points and questions. The workshop finished with a reception at the Diplomat Hotel.
[1] Report prepared by Slava Kiryushin, Legal Consultant, DLA Piper (Dubai).