Young ICCA Skills Training Workshop: Strategy Considerations in International Arbitration in the Middle East
Post Event Report
by Sarah-Jane Fick and Shadha Zawawi [1]
The Young ICCA Dubai Skills Workshop kicked off on the eve of 18 November 2014 with a traditional meal for approximately 20 members of Young ICCA at the Park Hyatt, overlooking the lights of Dubai Creek.
The next day delegates assembled at the Dubai International Arbitration Centre (DIAC) to listen to key speakers discuss ‘Strategy Considerations in International Arbitration in the Middle East’. The workshop was moderated by Mr Michael Hwang SC (Chief Justice of the DIFC Courts) and included an impressive faculty from renowned local and international firms. There was also an international mix of delegates from the Gulf region and India.
The workshop commenced at 8.00am with the opening speech of Mr Hwang SC wearing his hat as the member of the ICCA governing board. Mr Hwang SC gave an insight into the journey of the formation of the ICCA, which started over half a century ago and has now evolved into a global platform of arbitration knowledge and a respected skills network.
Nassif BouMalhab, Partner of Clyde & Co, and Anne K. Hoffmann, Special Counsel of Al Tamimi & Company, presented on the enforceability of arbitral awards in the local Dubai Courts, (offshore) DIFC Courts and generally across the Middle East. Using examples of recent cases on enforcement of arbitral awards in Dubai and DIFC Courts, Ms Hoffmann carefully assessed the key deliberations to be kept in mind when choosing to enforce the award in Dubai or the DIFC Courts. Domestic legal rules in Articles 215-217 and 236 of the UAE Civil Code and Article 42 of the DIFC Arbitration Law were discussed. The case of Banyan Tree Corporation PTE LTD v Meydan Group LLC and subsequent developments were discussed, and it now seems that the DIFC Courts will hear actions for the ratification of domestic Dubai awards, even in the absence of any geographical nexus with the DIFC. The general conclusion was that the use of the DIFC Courts to effectively bypass local Courts for a ruling on enforceability would significantly speed up this process for foreign awards in Dubai. However, recognition of awards in the local Courts remains essential if assets are onshore and you need to send the bailiffs round, or are seeking anything other than a freezing order.
Extending the topic further, Mr BouMalhab addressed the key points for enforcing an award outside of the UAE by discussing the various conventions and bilateral treaties to which the UAE is party, and addressing the practical considerations for enforcing the award outside of the UAE. Mr BouMalhab shed light on the application of the New York Convention in the DIFC Courts and the Dubai Courts, noting a growing and favourable application of the New York Convention in the UAE.
The next session on the ‘Interplay between arbitration and courts’ started off with Gordon Blanke, Counsel of Baker & McKenzie Habib Al Mulla, providing an academic comparison of the articles relating to interim measures contained within the rules of DIAC, the DIFC Courts, and ADCAAC Rules as well as the UAE Civil Code, and highlighting the various common law principles that can be evidenced in these rules. Erin Miller Rankin, Head of Construction in the MENA region at Freshfields Bruckhaus Deringer, then took to the floor to air the ‘dirty tricks’ she had experienced during her years of practice in the region. Ms Miller Rankin highlighted that instigating fraud or criminal proceedings against opposing legal teams only served to undermine the legitimacy and reputation of the UAE as a center of excellence for international arbitration, and called for an open dialogue on the possibility of a universal ethical code to disincentivize such malpractice. The floor suggested a public register to (confidentially) name and shame the perpetrators of dirty tricks, and it was generally agreed that institutional codes of conduct, such as that required in the DIFC Courts, would help establish good practices. Finally, Mohammed Al Suwaidi, Managing Partner of Al Suwaidi & Company, discussed various tactics he had witnessed to achieve the nullification of an award including challenges to power of attorneys, and incorrect oaths administered to witnesses. He ended by calling for a swift amendment to existing procedural rules in Dubai, a message that was well-received by the delegates.
After a quick coffee break, the delegates geared up for another round of interesting insights into the ‘Best Practices for the Region’. The panel of speakers discussed the practical steps that could be taken in both the UAE and wider MENA region to ensure compliance with procedural rules. Adam Vause, Partner of DLA Piper clarified the UAE rules in respect of administering oaths to witnesses and the requirements for, and correct preparation of, terms of reference. Hassan Arab, Partner and Regional Head of Litigation of Al Tamimi & Company, continued with this theme with particular focus on the infamous issue of the ‘signing’ of the Final Award and clarified that relevant provisions of UAE Civil Code did not specify which page/pages are required to be signed by the arbitrator but provided certain information which should mandatory be included in the award such as the place where the award was issued and signature of arbitrator. Mr Arab concluded that in light of the various judgments issued by UAE Courts and as a matter of good practice, arbitrators should ensure that all pages of an award are signed. Mr Arab also addressed the issue of whether an arbitrator was required to be physically present in Dubai when signing an award seated in Dubai, and suggested that, in the absence of guidance from local courts on this point and considering the general practice followed, the best practice would suggest that the arbitrator was present in the seat of arbitration at the time of signing. Ali Al Aidarous, Managing Attorney of Ali Al Aidarous International Legal Practice, finished the workshop with an overview of the rules regarding time limits in respect of rendering awards, and situations where such time limits could be interrupted or suspended.
The workshop provided the attendees with valuable guidance, and practical tips on arbitration practice in the region. The attendees not only took this opportunity to seek clarification on various points of law, but also offered some great ideas and proposals for ensuring a more efficient and well-rounded arbitration practice in the region.
After an enjoyable and interactive debating session the workshop was followed by lunch, and the delegates later enjoyed drinks at the Sofitel, Downtown.
[1] Report prepared by Sarah-Jane Fick, Associate, Freshfields Bruckhaus Deringer (Dubai) and Shadha Zawawi, Senior Associate, The Legal Group (Dubai)